*1 KELLY, Appellant, Patrick O’Neil Texas, Appellee. STATE
No. 439-85. Texas, Appeals
Court of Criminal
En Banc.
Feb. *2 Huttash, Atty., Austin,
Robert State’s State. APPELLANT’S PETITION
OPINION ON FOR DISCRETIONARY REVIEW AND REVIEW ON COURT’S OWN MOTION TEAGUE, Judge. granted petition
We
for discretionary
review that was filed on
behalf
Patrick
Kelly,
O’Neil
hereinafter
ap-
referred to as
pellant, order to review the decision
appeals,
the court of
Supreme
Third
Judi-
District,
rejected
cial
appellant’s
which
1918c, V.A.C.S.,
claim that Art.
the “Dallas
County Magistrates’ Act”, was unconstitu-
tional as it
was enacted
contravention
of Art.
Section
of the State Consti-
tution,
general prohibits
which in
the enact-
ment of any
special”
“local or
law
Legislature.
Kelly
(Tex.App.-3rd 1985).
Review
granted
was also
on this Court’s own mo-
tion, in the event that we found the statute
constitutional, in order to determine wheth-
general
er the
referral order from the trial
judge
magistrate
to the
was valid.
affirm,
We
but
for different reasons
given by
appeals.
than
the court of
26, 1982,
May
record reflects that on
appellant appeared before Hon. Howard G.
Wilson, duly appointed magistrate
a
of Dal-
acting pursuant
las
who was then
to a
order of referral from District
Kinkeade,
Judge
Ed
in and for the
District,
194th Judicial
in whose district
appellant’s
pending.
cause
then
Magistrate
ap-
Wilson thereafter convicted
pellant
committing
felony
offense of
Mitchell,
Lawrence B.
appeal only,
burglary
building
of a
and sentenced him
Dallas,
appellant.
(4) years’
to a term of four
confinement in
Henry Wade,
Atty.,
Dist.
Department
Corrections,
Dennis E. Guf-
which Wil-
Scott,
fey, Rider
probated. Judge
Steve Miller
ap-
& William son ordered
Kinkeadе
Johnson,
Dallas,
Randell
Attys.,
proved
things
Asst.
Magisrate
Dist.
in all
Wilson’s ac-
1918c, V.A.C.S.,
August
County,
1. Art.
approval
became effective
of Dallas
with the consent and
V.A.C.S.,
County,
1981. It has been recodified at
of the Commissioners Court of Dallas
Code,
(Ver-
seq.
may appoint magistrate
perform
54.301 et
the duties
Supp.1986).
subchapter.”
appellant’s
non’s
authorized
this
We will decide
challenge to the statute as it existed when he
Although
is limited to the actions
now,
was convicted. The Act
then and
of the 194th Judicial District Court of Dallas
alia, "(a)
judge
inter
Each
of a district court of
applicable
it is
to all of the above dis-
gives preference
Dallas
that
to criminal
trict
of Dallas
listed in subsection
judge
cases and each
of a criminal
(a),
distriсt court
ante.
Thereafter,
tions.
acting pursuant
satisfy
requirment
sufficient to
of [Art.
State’s
appellant’s
supra].”
motion to revoke
proba-
tion, Judge
appellant’s
Kinkeade revoked
Because of its
holding
reasons for
that
probation.2
constitutional,
Art. 1918c
we find
appeals
the court of
implicitly
has
appeal,
On
appellant
direct
asserted that
*3
found that
the District Court of Dallas
Judge
revoking
Kinkeade’s order
proba
his
County, acting in and for the 194th Judicial
tion
original
was void
his
because
convic
District, was created or
pursu-
established
tion
Magistrate
obtained before
Wilson was
V,
1,
ant to Art.
supra.
That district
void as it
pursuant
was obtained
court, however,
existence,
came into
not
provisions
1918c,
supra,
Art.
as it was
through
provisions
V,
the
1,
of Art.
Section
worded,
then
which he claims is unconstitu
through
provisions
but
the
of Art.
“special
tional because it is a
or local” law
V,
7,
of the Constitution. Also see
Ill,
enacted
contravention of Art.
Section
199a, V.A.C.S.,
Art.
the “Judicial Districts
56,
Constitution;
of the
prohibi
Texas
1969”,
Act of
which has been recodified at
against
tion
“special or
provi
local” laws
V.A.T.S.,
Code, Chapter
sion of the Constitution. The Third Court
History
Texas,
teaches us that
since it
of Appeals rejected that contention and
Republic
was a
and after it became a
rejected
also
appellant’s other contention
always
has
judicial
been divided into
dis-
general
that the
order of referral
in
was
IV,
2,
tricts. Article
Sеction
of the Consti-
valid.
Kelly
S.W.2d,
See
su
provided
tution of 1836
for not less than
pra.
eight judicial
three nor more than
districts.
In rejecting
appellant’s
contention
IV,
6,
Article
Section
of the Constitution of
1918c,
that Art.
supra, is unconstitutional
that “The State shall be di-
because it violates Art.
Section
su- vided
judicial
into convenient
districts.”
pra,
appeals
court of
held that
IV,
Article
Section was worded as was
empowered
to enact Art.
Constitution,
IV,
the 1845
as was Article
1918c, supra,
through
Section
of the Constitution of 1866. Ar-
V,
three),
Art.
1 (paragraph
Section
which
ticle
Section
of the Constitution of
provides:
“The
may establish
provision.
1869 contained a like
such other courts
necessary
as it
present Constitution,
Section
of the
organiza-
18, 1876,
April
which became effective on
tion
jurisdic-
conform the
alia,
provided, inter
that “The State shall
tion of the district and other courts there-
many judicial
divided into as
districts
rejecting
appellant’s
to.” In
other con- may
law,
provided by
now or hereafter be
tention,
Judge
general
that
Kinkeade’s
or-
which
be increased or diminished
der of referral was insufficient to bestow
law.” Also
see
of the
jurisdiction Magistrate Wilson,
on
Constitution,
provides
which
that “The Ju-
appeals
held: “We hold that this order
dicial Districts in this State and the time of
of referral of
magistrate
holding
cases to the
is
the Courts therein are fixed
appellant’s probation,
allegation.
In its motion to revoke
That conviction
affirmed
alleged
Aрpellant
the State
several violations.
unpublished
in an
the Third Court of
pled
alleged
"true" to three of the
violations.
Appeals.
Kelly
No. 3-84-037
hearing
The
on the State’s motion to revoke
CR(T), February
1985. This Court refused
Kinkeade,
Judge
occurred before
after which
appellant’s petition
discretionary
review
Judge
appellant’s probation
Kinkeade ordered
January
in that cause on
1986. None of the
(4)
revoked and sentenced him to serve four
impli-
issues involved in the cause at Bar were
years’
Department
confinement in the
of Correc-
aggravated robbery appeal.
cated in the
Other
allegations
tions. One of the
in the State’s mo-
challenging
validity
than
of the
order revok-
appellant
tion to revoke was that
committed the
probation
ground
his
on the
that Art.
aggravated robbery,
offense of
for which he was
unconstitutional,
supra, is
and his claim that the
twenty
later convicted and sentenced to serve
(20) years’
invalid,
appellant
order of referral
Department
confinement
in the
challenge
validity
does
otherwise
Appellant pled
Corrections.
"not true” to that
revoking
probation.
trial court’s order
his
allegation. Judge
finding
Kinkeade made no
forming part
Constitution,
ordinance
importance
of this
of the fact that all
provided by
until
present
that,
otherwise
law.”
of our
truly
district courts are
particular
courts in
judicial
and for a
dis
al,
In Lytle
et al. v.
et
Halff
trict,
emphasized
cannot be
enough. Al
(1889),
And so have acted. through ture of Article 199, V.A.C.S.,provided for 180 Judi- 1, of the Constitution. cial 199a, Districts in this State. Art. V.A. C.S., which was the “Judicial Act Districts discussion, Pertinent to our 1969,” increased that One of number. originally pro- Section of the Constitution districts by new created that Act was in part: judicial power vided “The of this District, the 194th Judicial over which Court, Supreme State shall be vested one Judge Kinkeade presides. then and now Appeals, Courts of Civil in a Court of statutory provisions have been recodi- Courts, Appeals, Criminal in District V.A.C.S., Code, fied Chap- Courts, Courts, in Commissioners Today, ter 24. there are at least 360 Judi- Peace, Courts of Justices of the cial Districts in this criminal five may provided by such other courts as judicial districts in Dallas three In 1891 the of this law ...” voters judicial criminal districts in Tarrant Coun- following amended Section to add the ty, judicial and one criminal district in Jef- provision to that section: “The County. ferson Dis- above Judicial establish such other courts as it tricts necessarily partic- arе not limited to a necessary jurisdic- Districts, county ular several Judicial tion and con- District, 135th Judicial jurisdiction which form the of the district and Calhoun, DeWitt, Goliad, Jackson, covers other inferior courts thereto.” It is this Refugio, Counties, and Victoria multi- provision appeals are last on which the court of ple county districts. “The relied to hold that au- by
thorized
art.
1 to
appellate
create courts and
Our
courts
interpreted
have
organize
they
those courts as
deem neces-
amendment to mean that “it was not in-
sary.”
by
tended
the 1891 amendment
deprive
of,
from,
the district courts
or to detract
on,
Early
interpreting
para-
the first
specifically granted them
graph
appellate
Section see
our
constitution;
legislative
authori-
consistently
courts have
held that the dec-
ty given
jurisdiction’
‘to conform the
preamble
or
laration
in that section mani-
only authority to
make the
object
fested the
of the framers of the
Constitution, i.e.,
statutory
“It
courts concurrent with
certainly
the ob-
ject
of the
framers of the Constitution to
constitutional district
complete judicial system,
mark out a
was not
destroy
to either
defining generally
province
of each of
district court’s constitutional
courts, by
objects
reference to the
con-
any part
transfer
exclusively
to a
each,
fided to the action of
and the relation
statutory
Cockrell,
court.”
In re
of each to the others. To that extent it
(Tex.Civ.App.-Amarillo
must
permanent,
be held to be
and not
1973).
subject
change by
Leg-
the action of the
islature, except
change may
aas
have been
The amendment has
held
been
plainly, though
for. This is
inci-
authorize the
to create courts
dentally,
special provision
indicated
other than those constitutional
iden
*5
change
jurisdiction
for a
in the
of the Coun-
1,
paragraph
tified
the first
of Sec.
such
ty
(Const.1876,
5,
22.)”
Court.
art.
sec.
Ex
as,
example,
the Probate Court of Har
Towles,
parte
(1877).
This
on its own
also lant’s contention that there
proрer
was no
granted
review
order
to determine
order of referral. The
Appeals
Court of
general
general
referral,
whether the
order of referral
is held that a 1981
order of
by Judge
complies
prior
entered
to the
appel
sued
Kinkeade
with the
“referral” of
1918c,
magistrate,
lant’s case to the
supra.
of Art.
find
was sufficient
We
appellant’s
to constitute
referral of
already
that this
case
issue has
been decided in
1918c, supra.
Kelly
under Article
see Ex
County,
another case from Dallas
(Tex.App.-Austin
parte
Stacey,
proper
act”,
vehicle under the
and also held cretionary review to consider the correct-
requirement
that there is “no
to name a
Appeals’
ness of the
Court
decision as to
particular magistrate or issue an order of
constitutionality
of the said 1981 ver-
separately
referral
for each case.” We
1918c, supra.
sion of Article
On our own
holdings.3
reaffirm those
granted
motion we
review to determine the
holding
correctness of the
that the 1981
judgment
Appeals
general order of
was sufficient to
referral
affirmed.
magistrate.
refer the cause to the
ONION, Presiding Judge, concurring in
Appellant challenges
constitutionality
dissenting
part
part.
1918c, Y.A.C.S.,
originally
of Article
en-
(Acts 1981,
Leg., p.
acted
ch.
Appellant
May
convicted on
was
1981)1
Aug.
impermissi-
eff.
as an
burglary
building,
of a
and his
“local or
in contravention
ble
law”
punishment
(4) years’
assessed at four
was
Tex.
Const.
confinement,
probated.
probation
His
was
1918c, supra, provides
appointment
for the
subsequently
year
revoked and a four
sen-
magistrates by
judges
district
in Dallas
imposed.
tence
give preference
whose
appeal appellant
On
order
asserted the
by judges
trial of
cases and
criminal
revoking probation
void because his
criminal district courts of Dallas
original
burglary
fatally
conviction for
provides
magistrates
per-
for the
defective because it had been obtained
by the
form certain functions authorized
magistrate
use of a
under Article
very
The statute is limited
its
statute.
Y.A.C.S.,
existence,
then in
аnd that said
County.
terms to Dallas
statute was
He further
unconstitutional.
following por-
Appellant
upon
relies
urged
appeal
if the
that even
statute
*7
III,
tion of Article
56 of
Constitution.
§
was held constitutional his cause or case
not,
shall
“Sec. 56
magis-
properly
was never
referred to a
trate as
appellant’s
(Acts 1981,
The Austin Court of
required by
claim that Article
Leg., p.
Article
Appeals rejected
1918c,
1918c,
ch.
supra.
supra
eff.
constitution,
law, authorizing:
except
[*]
as otherwise
[*]
pass any
[*]
[*]
local
[*]
or
in this
special
[*]
31, 1981),
practice
Aug.
“Regulating
as a
or
was unconstitutional
of,
in
special”
changing
of
or
the rules of evidence
“local or
law contravention
III,
proceeding
inquiry
or
any judicial
Article
before
56 of
State Constitution.
§
sheriffs,
courts,
peacе,
Appeals
rejected appel-
justices of the
The Court of
also
implemented,
might
Notwithstanding
previous
present
being
first
the statute
our
and
were
holdings,
particular
favorably
been
where a
cause has
received
all mem-
have been more
judge
particular
Court,
by just
referred
a district court
some
bers of this
rather than
magistrate,
keeping
appellate
for record
Also see footnote 5 in
members of this Court.
reason,
purposes,
highly
if
recom-
no other
we
Kelley
Article
56?
(1944).
for this conclu
177
Tex.Cr.R.
S.W.2d 975
§
Hav-
sion is found in the fact that all the district
ing
authority
courts,
to create district
courts in
Dallas
into Arti
referred
Legislature,
authority,
incident to such
1918c, supra,
cle
appoint
and authorized to
provide
proper
has the
to
for the
magistrates
regular
are
constitutional dis
functioning of such courts. This includes
trict
by
courts created
un providing
magistrates
for the use of
as in
1,
der the first
Article
§
1918c, supra.
exception
Article
Such is an
paragraph.4
not the second
difficulty
The
56,
to the
of Article
Tex.
§
with this conclusion is that
in Kelley v. Const., prohibiting
local or
laws.
State,
104,
676
(Tex.Cr.App.
S.W.2d
reasons,
foregoing
For the
I concur in the
Court, rejecting
a claim that
by
result
majority.
major-
reached
The
1918c, supra, was,
whole,
as a
un
ity seems to have found the well-known
attempt by
Legisla
constitutional as an
rabbit trail and
erroneously analyzed
have
ture
delegate
its
authority
question, holding
things
that the
county judi
creation of courts to the
194th District
by
Court was created
7 of
§
ciary, held that Article 1918cdid not create Article V rather
I
than
1.
dissent to the
§
independent jurisdiction,
“courts” with
but majority’s reasoning.
simply
procedure whereby
authorized a
Turning
to the
“Order of Refer-
magistrates, acting
surrogates
and not
ral,” I find that it was entered on October
judges,
appointed
are
to assist the district
1,1981.
аppellant
already
At that time
had
judges
court
in certain limited matters.
burglary,
been indicted for the
the indict-
State,
256,
See also
Scott
having
September
ment
been returned on
(Tex.Cr.App.1985); Howard v.
8,
Therefore,
the said order refer-
(Tex.Cr.App.1985).
Kelley
ring
“Magistrate’s
to the
all
Court”
“cases
(not
case),
to be confused with the instant
which have been indicted or have had such
though
3, 1984),
(July
decided earlier
was
duly
by
indictment
waived
the defend-
not cited
Appeals.
the Court of
ant_”
covered the instant case.
given
Whatever construction
attempted
scope
order also
set out
Appeals
opinion,
Court of
it is observed
magistrate’s
duties. The instant order
authority granted
Legisla-
that the
cry
parte
is a far
from
the one
Ex
V, 1,
Const.,
plena-
ture Article
Tex.
Stacey,
(Tex.Cr.App.1986).
51 clearly gener- of effect of version of statute shows that one 1869. One the 1876 of 1981 1 to all al Order of Referral was never intend- Sec. was abolish such courts but designated therein. For good expressly to be and and one ed then forever more gen- very special reasons the “Criminal District Upholding for all cases to come. Counties” Galveston and Harris Stacey, admonishing eral orders as in while of retained, otherwise, and “criminal dis- to the was all other bring courts do will not by the change trict courts” were to be established needed. I concur. Legislature. Interpretive Commentary See J., McCORMICK, joins in opinion. this following and Note Sec. 1. Al- Historical though 1 paragraph first of Sec. allud- CLINTON, Judge, dissenting part ed to “such courts as be estab- concurring judgment. in the lаw,” uniformly it held by lished that exception As broad as the is in Article judicial system provided as in the Con- “except provided Sec. as otherwise 56— changed by Leg- stitution could not be Constitution,” in this shall parte Towles, 48 islature. Ex Tex. 413 pass special any not local law authoriz- (1877); Tex.App. v. 30 Ginnochio proscribed ing matters therein does—it 584, 18 82 also Leach S.W. see theory by the admit evasion on the asserted 248, (1896). 471 36 Tex.Cr.R. 36 S.W. by accepted appeals, the court of decisions, said, it Such was later “nullified” viz: quoted language 1. Sec. Harris [1, “The State contends that this section 133, 41 County v. 91 Tex. S.W. 56, V], Ill, art. rather than art. § 650, (1897). 655 controlling agree. in this case. We We decisions, As to a reaction those hold that art. is not 1918c an unconstitu- paragraph an added the third amendment law,’ tional ‘localor of violation 1, thereby legislative to Sec. “restored” art. 56. The is autho- § power “establish courts as it such other V., by rized art. 1 to create courts necessary jur deem organize those as nec- they courts isdiction and thereof cet [et essary. Appellant’s ground first error generally era].” is overruled.” 655; Stewart, supra, 41 S.W. at State ex Kelly (Tex. S.W.2d McClelland, 148 Tex. rel. Rector App. 1985).1 analysis That turns — Austin However, (1949). 709-710 down, upside both and while authority pertains that other than opinion of partially this Court sets them in the those constitutional courts identified upright again expresses some notions 1, vesting paragraph judi first of Sec. “the put protections risk those the Fram State,” e.g., “in cial this District clеarly ers intended. Courts_” Courts Jor [and] In place, the first as constitutional histo dan v. V, ry Article Sec. related sections plain, makes Judicial District courts are not That constitutional district by Court Dallas was not created contemplation “such other within the Legislature pursuant re by the Article courts” is shown fact that lied on the State —the third Sec. 7 1876 Constitution first limited Sec. 1.2 districts, twentysix judicial their number particular A concern of the provided Framers whereas the amendment preexisting apportion with “Criminal Courts” flexibility autho- for the IY, many rized Article judicial Constitution the State into districts “as and in Sec. Constitution now or hereafter be law.” emphasis throughout again 1. All amended in is mine amended in 1891. Since unless para- otherwise indicated. secоnd the content is now in the graph of Sec. para- All such references are to that "third graph” appeared as it *10 52 for
Thus there was a mechanism establish
do that. But
the amendment was
ing additional constitutional district courts
adopted
purpose
making
for the
it
jurisdiction already provided by
with
Sec. 8.
Legislature
certain that the
had the au-
Legisla
42 mandates the
Sec.
thority to establish courts other than
“pass
ture to
such laws as
be neces
courts,
that its acts
constitutional
sary
carry
into effect the
establishing
them
strick-
should
Authority
Constitution.”
create
ground
they
en
on the
were
down
legislative depart
“inherent in the
is
might
violative of what
be conceived
state,”
County
ment of the
Harris
v. Stew
vague implications
general spir-
to be the
(The
art,
41
supra
para
S.W. at 653.
third
Constitution,
they
it of the
or that
did not
graph
adopted
abrogate
1
Sec.
“was
pattern
conform to the constitutional
for
given
the construction
in those [earlier]
county
district or
courts.
[T]he
cases,” ibid.,
to authorize the
particularly
expressly
1891 amendment
authorized
Legislature
“prescribe
jurisdiction
the
Legislature
the
to establish not more of
organization”
for “such other courts”
courts,
the same
but ‘such other courts
establish.)
it
”
necessary.’
as it
Similarly, in Sec. 16 of Article
the
Id.,
juries docketing cases jority regarding Article Arti- Sec. 1 and existing in the same manner as the district 56,1 and, III, cle reach the same Sec. result similarly directed court or courts which are therefore, judgment join the of the Court.4 county.” within that Having thus created the Judicial J., MILLER, joins except opinion this established District District and the 194th note 4. equal among dis- Court as an triсt had same always authority
inherent it has
possessed and a dis- organize exercised to by providing for
trict court officers
personnel, their responsibilities, duties and compensation,
their as for its func- well operations.
tions and As Justice Chief Jordan v. noted in
Hickman
supra question at “No had ever as to its that.” arisen to do PRESTON, Appellant, James Lee indeed, And, in 1891 purpose the basic objective adding the third v. Sec. 1 Article V was to authorize Texas, Appellee. The STATE power” to exercise its “full
creating more constitutional courts to es- No. 1277-85. “prescribe tablish “such courts” and Texas, Appeals of Court of Criminal organization thereof.” En Banc. Ibid, County and Harris v. 654-655; see discussion ante 41 S.W. at Feb. 1987.
pp. 43-44. holdings
From the various that otherwise provisions pertaining
valid governed by
of “such other courts” are v.
56, e.g.,
Harris
Crooker,
(Tex.Civ.App
arkana affirmed Tex. Tom Green
S.W. 652
Proffitt, (Tex.Civ.App.— 1946), no history,
Austin writ and authori therein, provi
ties cited similar fortiori sions for constitutional courts “other are Constitution,”
wise
through e.g., Ar implementing, enactments gov 7 and
ticle Secs. and are not See
erned
Crooker, supra, 248
Dal-
S.W. at 655. The
Stacy,
(Tex.Cr.App.1985).
Having
parte
148-150
Re
dissented in Ex
698 S.W.2d
curring
servings
register
pabulum
(Tex.Cr.App.1986), again
of such
as in note 3
I
continuing
Kelley
my
disapproval
majority
and in
that “a
the
State,
note 5
of the notion
comply
(Tex.Cr.App.1984),
order
referral” suffices to
676 S.W.2d
compliance.
with former Article 1918c. See
will not nourish
Wilson
Notes
Texas
newly created district courts the constitu
765-766.
tional
set out in
Section 8
I,
causing
equals
them to
thus
be
1891,
In
the voters of this State caused
among all of the constitutional district
1, supra,
amended
Section
However,
courts.
the amendment does not
adding
following
to that
give the
to de
Legislature may
section: “The
establish
of,
prive any other district court
or to de
necessary
such other courts as it
from,
jurisdiction specifically
tract
granted
constitution. Also see
conform the
of the district
them the
Tex.Jur.Srd,
and other inferior courts thereto.”
16
“Courts.”
47
instance,
In
Legisla
1948),
1918c, supra,
when the
no writ. Art.
is not a
1918c, supra,
ture enacted Art.
not
special”
it “did
“local or
law.
independent
create ‘courts’
jurisdic
with
Furthermore,
Ill,
Art.
Section
tion;
simply
proce
authorized a
[the Act]
supra,
place
not
does
on the
a
magistrates,
dure whereby
acting as surro
prohibition regarding
strict and inviolable
gates
judges,
appointed
are
to as
laws,
enactment
or local
judges
sist the district court
lim
certain
See,
example,
our
have so
held.
matters”,
performing
ited
as
certain
v.
41
signed
providing
functions and
recоmmen
(1897);
S.W. 650
Tom Green
v.
referring
dations
judge. Kelley
v.
Proffitt,
(Tex.Civ.App.-Aus