NO. 1790-99







Womack, J., filed a dissenting opinion in which keller, p.j., and Meyers, J., joined.

Although the State did not appeal from the district court's order that dismissed, with prejudice, its prosecution of the appellee, the Court allows the State to collaterally attack that order in a prosecution of the appellee that the State filed later in another court. The stated reason for allowing this collateral attack is "that because the district court purported to dismiss the prosecution 'with prejudice' beyond the scope of its proper authority, that part of the judgment was void." Ante at 5. But lack of authority does not make a judgment void, although we have mistakenly said so more than once.

The Court rests its holding on six opinions that are not precedents for this decision. In fact, four of the six opinions are precedents for a decision opposite to the Court's.

The ratio decidendi of the Court's opinion is, "Unauthorized acts (or errors) can be characterized as either 'illegal' or 'irregular.'" (1) Three opinions are cited in support of this notion, with primary reliance on Davis v. State. (2) The opinion in Davis does not characterize any act as "illegal" or "irregular." The words do not even appear in the opinion. Davis distinguished mere procedural error, on the one hand, from lack of jurisdiction in a court and lack of qualification of the judge. (3) The question was whether a judgment of probation was "void" because the district court's transfer of the case to a magistrate was not entered before the magistrate heard the case. The holding was that the judgment was voidable, but not void, because the error did not affect either the jurisdiction of the court or the qualifications of the judge.

The error in this case concerned the process by which the district judge referred this case to its surrogate, whose acts were adopted by the trial court. Therefore, jurisdiction was not affected and the order placing Appellant on probation was not void even though a procedural irregularity arose due to the untimeliness of the referral order. This is not to say that the case was properly transferred, only that the error was not jurisdictional and the conviction is not void. (4)

If the Davis reasoning were applied to today's case, the judgment of the court of appeals would be affirmed, because the error in the district court's judgment did not go to the jurisdiction of the district court or the qualification of the judge to preside in the court.

A second case that the Court cites today, Ex parte White, (5) is also contrary to today's holding. There too the Court made no distinction between "illegal" and "irregular" acts; the words do not appear in the opinion. The question was whether a minor who pleaded guilty and was sentenced to the penitentiary could have habeas corpus relief from the judgment because there was no proof, or finding by the jury, that he should be placed in the penitentiary rather than the reformatory. The Court held that the irregularity "would have merely rendered the judgment voidable, and not void, if the complaint had been made on appeal." (6) The district court's lack of authority to sentence a minor to the penitentiary without such evidence and finding did not make the sentence void. If this holding were applied to today's case, the result would be the opposite from the Court's.

The third opinion on which the Court relies today is a dissenting opinion by Judge Clinton in Ex parte Banks, where he said, "Almost uniformly the threshold question went to integrity of the judgment, viz: Whether the claim is that the judgment is void for illegality or voidable for irregularity." (7) At this point in his opinion, Judge Clinton referred to the threshold questions in cases that were cited in two early opinions (8) that were in turn cited in a case that he identified as the earliest statement of this Court that habeas corpus should not be permitted to raise questions that could have been raised on appeal. (9) Although this dissent is interesting, it does not rise to the level of precedent for today's decision. Even if it did, it would add no strength to the Court's reasoning. We are told that habeas corpus is available when restraint is authorized by a judgment that is "void," not merely "voidable." And "void" means "illegal," while "voidable" means "irregular." And "illegal" means "not authorized by law," while "irregular" means "var[ying] from the normal conduct of an action," or "want of adherence to some prescribed rule." (10) Now this process of chasing definitions can go on indefinitely without getting any closer to a principled rule that distinguishes restraint for which habeas will lie from restraint for which it will not. The district court's dismissal in this case can be characterized in either category. As my Brother Meyers has said:

[T]his Court is prone to characterize any nonwaivable requirement of the law as jurisdictional, with the invariable consequence that its opinions are more confusing than they need to be. Although the word "jurisdiction" has a broad meaning in common parlance, and is often used as a synonym for "authority" even in legal writing, it is traditionally considered in the law to identify a much more specific kind of power.

A court's jurisdiction is comprised generally of its authority to render a particular kind of judgment (such as an order of commitment or a judgment for money damages) in some kinds of disputes (such as felony criminal prosecutions or personal injury lawsuits) between certain classes of persons (such as everyone present within the state or within a subdivision of the state). There are, of course, many other nonjurisdictional aspects of litigation in which the conduct of a court is controlled by law. Sometimes, when the court's conduct violates one of these laws, especially a law which seems "mandatory" on its face, it is common to say that the court did not have authority to act as it did. But it is a mistake to say that the court was without jurisdiction in the matter.

If the problem were merely semantical, calling attention to it would be sniveling. But, whether defects of adjudication are considered jurisdictional has a profound effect on the treatment they receive in other contexts. The writ of habeas corpus, for example, is available to set aside a criminal conviction on the basis of any jurisdictional defect in the proceedings which led to it, no matter how remote in time. Apart from violations of the United States Constitution, and a few anomalies of Texas law, we do not permit the writ to attack anything else. (11)

In two other cases that the Court cites, State ex rel. Eidson (12) and State ex rel. Vance v. Clawson, (13) we granted the State mandamus relief from orders that it could not appeal. The questions in those cases were whether relief at law was available (it wasn't because of the lack of appeal) and whether the district courts had a ministerial duty to withdraw their orders (they did). Whether the orders were void was irrelevant, and any mistaken statements about voidness were obiter dicta.

The sixth case on which the Court relies, Ex parte Shields, (14) demonstrates that the Court's decision today is incorrect. Shields was untimely sentenced, in violation of a statute which gave trial courts authority to pronounce sentence only after the time had expired to file a motion for new trial. If he had raised the error on appeal, the judgment would have been reversed. But because the error was not such as to make the sentence void, his collateral attack on the sentence was rejected. The same is true in this case. If the State had appealed the district court's dismissal, it might have won because of error; the question is not before us. But it did not appeal. The dismissal was not made without jurisdiction, not can I think of another reason why it should be regarded as void.

I agree with the court of appeals, and I respectfully dissent from the Court's reversal of the judgments below.

En banc.

Delivered February 28, 2001.


1. Ante at 5.

2. 956 S.W.2d 555, 559 (Tex. Cr. App. 1997).

3. Id. at 558-59.

4. Id. at 560.

5. 50 Tex. Cr. 473, 98 S.W. 850 (1906).

6. Id., 50 Tex. Cr. at 474, 98 S.W. at 851.

7. Davis, 956 S.W.2d at 544.

8. Ex parte McKay, 82 Tex. Cr. 211, 199 S.W. 637 (1917); Ex parte White, 50 Tex. Cr. 473, 98 S.W. 850 (1906).

9. Ex parte Rova, 85 Tex. Cr. 626, 215 S.W. 322, 323 (1919).

10. Ante at 6-7.

11. Stine v. State, 908 S.W.2d 429, 433 (Tex. Cr. App. 1995) (Meyers, J., concurring) (citations omitted).

12. 793 S.W.2d 1 (Tex. Cr. App. 1990).

13. 465 S.W.2d 164 (Tex. Cr. App. 1971).

14. 550 S.W.2d 670 (Tex. Cr. App. 1976).