Kelly v. State

724 S.W.2d 42, 1987 Tex. Crim. App. LEXIS 511

• Court: Court of Criminal Appeals of Texas
• Decided: February 4, 1987
• Docket: 439-85
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW AND REVIEW ON COURT’S OWN MOTION

TEAGUE, Judge.

We granted the petition for discretionary review that was filed on behalf of Patrick O’Neil Kelly, hereinafter referred to as appellant, in order to review the decision by the court of appeals, Third Supreme Judicial District, which rejected the appellant’s claim that Art. 1918c, V.A.C.S., the “Dallas County Magistrates’ Act”, was unconstitutional ¹ as it was enacted in contravention of Art. Ill, Section 56, of the State Constitution, which in general prohibits the enactment of any “local or special” law by the Legislature. See Kelly v. State, 686 S.W.2d 742 (Tex.App.-3rd 1985). Review was also granted on this Court’s own motion, in the event that we found the statute constitutional, in order to determine whether the general referral order from the trial judge to the magistrate was valid.

We affirm, but for different reasons than given by the court of appeals.

The record reflects that on May 26, 1982, appellant appeared before Hon. Howard G. Wilson, a duly appointed magistrate of Dallas County who was then acting pursuant to a general order of referral from District Court Judge Ed Kinkeade, in and for the 194th Judicial District, in whose district court appellant’s cause was then pending. Magistrate Wilson thereafter convicted appellant of committing the felony offense of burglary of a building and sentenced him to a term of four (4) years’ confinement in the Department of Corrections, which Wilson ordered probated. Judge Kinkeade approved in all things Magisrate Wilson’s actions. Thereafter, acting pursuant to the State’s motion to revoke appellant’s probation, Judge Kinkeade revoked appellant’s probation.²

On direct appeal, appellant asserted that Judge Kinkeade’s order revoking his probation was void because his original conviction obtained before Magistrate Wilson was void as it was obtained pursuant to the provisions of Art. 1918c, supra, as it was then worded, which he claims is unconstitutional because it is a “special or local” law enacted in contravention of Art. Ill, Section 56, of the Texas Constitution; the prohibition against “special or local” laws provision of the Constitution. The Third Court of Appeals rejected that contention and also rejected appellant’s other contention that the general order of referral was invalid. See Kelly v. State, 686 S.W.2d, supra.

In rejecting the appellant’s contention that Art. 1918c, supra, is unconstitutional because it violates Art. Ill, Section 56, supra, the court of appeals held that the Legislature was empowered to enact Art. 1918c, supra, through the provisions of Art. V, Section 1 (paragraph three), which provides: “The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other courts thereto.” In rejecting the appellant’s other contention, that Judge Kinkeade’s general order of referral was insufficient to bestow jurisdiction on Magistrate Wilson, the court of appeals held: “We hold that this order of referral of cases to the magistrate is sufficient to satisfy the requirment of [Art. 1918c, supra].”

Because of its reasons for holding that Art. 1918c supra, is constitutional, we find that the court of appeals has implicitly found that the District Court of Dallas County, acting in and for the 194th Judicial District, was created or established pursuant to Art. V, Sec. 1, supra. That district court, however, came into existence, not through the provisions of Art. V, Section 1, supra, but through the provisions of Art. V, Sec. 7, of the Constitution. Also see Art. 199a, V.A.C.S., the “Judicial Districts Act of 1969”, which has been recodified at V.A.T.S., Government Code, Chapter 24.

History teaches us that Texas, since it was a Republic and after it became a State, has always been divided into judicial districts. Article IV, Section 2, of the Constitution of 1836 provided for not less than three nor more than eight judicial districts. Article IV, Section 6, of the Constitution of 1845 provided that “The State shall be divided into convenient judicial districts.” Article IV, Section 6, was worded as was the 1845 Constitution, as was Article IV, Section 5, of the Constitution of 1866. Article V, Section 6, of the Constitution of 1869 contained a like provision. Article V, Section 7, of the present Constitution, which became effective on April 18, 1876, provided, inter alia, that “The State shall be divided into as many judicial districts as may now or hereafter be provided by law, which may be increased or diminished by law.” Also see Article V, Section 14, of the Constitution, which provides that “The Judicial Districts in this State and the time of holding the Courts therein are fixed by ordinance forming part of this Constitution, until otherwise provided by law.”

In Lytle et al. v. Halff et al, 75 Tex. 128, 12 S.W. 610 (1889), Chief Justice Stayton pointed out that Sections 7 and 14 of Article Y “evidence the fact that it was intended the legislature, the only body empowered to make laws, should have power to increase or diminish the number of judicial districts, and to determine what territory should be embraced in a given district; and, in the absence of some limitation in these respects, nothing further appearing to illustrate the intention, the presumption would be that it was the intention to confer on the legislature the power to create a judicial district out of a territory, however small, if the business within it so required.” (612). Thus, under the present Constitution, Art. V, Sec. 7, supra, the Legislature “is clothed with absolute authority to create, increase, or diminish judicial districts. Under this provision one county may be divided into parts or portions, and each part or portion thereof constitute a separate and distinct judicial district.” Chambers v. Baldwin, 274 S.W. 1011, 1013 (Tex.Civ.App.-Texarkana 1925), reversed on other grounds, Chambers v. Baldwin, 282 S.W. 793 (Tex.1926).

And past Legislatures have so acted. Article 199, V.A.C.S., provided for 180 Judicial Districts in this State. Art. 199a, V.A. C.S., which was the “Judicial Districts Act of 1969,” increased that number. One of the new districts created by that Act was the 194th Judicial District, over which Judge Kinkeade then and now presides. The statutory provisions have been recodi-fied at V.A.C.S., Government Code, Chapter 24. Today, there are at least 360 Judicial Districts in this State, five criminal judicial districts in Dallas County, three criminal judicial districts in Tarrant County, and one criminal judicial district in Jefferson County. The above Judicial Districts are not necessarily limited to a particular county as several Judicial Districts, such as the 135th Judicial District, which covers Calhoun, DeWitt, Goliad, Jackson, Refugio, and Victoria Counties, are multiple county districts.

The importance of the fact that all of our present district courts are truly that, courts in and for a particular judicial district, cannot be emphasized enough. Although it is usually popular to refer to a particular district court as, for example, “The 177th Judicial District Court of Harris County,” this is not entirely correct. The correct nomenclature in that instance would be, not as stated, but, instead, “The District Court in and for the 177th Judicial District sitting in Harris County,” or wording to that effect.

Section 7 of the Constitution also provides in part: “For each district there shall be elected by the qualified voters thereof, at a General Election, a Judge ...”

Thus, as easily seen by the above, today a district court comes into existence when the Legislature creates a Judicial District after which the voters of that District elect a judge for that District Court. The qualifications, salary, where the court for that District shall be situated, and the term of office of the judge of that court are contained in Section 7. Section 8 provides what jurisdiction that court will have.

We find that the court of appeals in this cause erroneously held, albeit implicitly, that the 194th Judicial District Court was created or established by the Legislature through the provisions of Article V, Section 1, of the Constitution.

Pertinent to our discussion, Article V, Section 1, of the Constitution originally provided in part: “The judicial power of this State shall be vested in one Supreme Court, in Courts of Civil Appeals, in a Court of Criminal Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law ...” In 1891 the voters of this State amended Section 1 to add the following provision to that section: “The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto.” It is this last provision on which the court of appeals relied to hold that “The Legislature is authorized by art. V, § 1 to create courts and organize those courts as they deem necessary.” (743).

Early on, in interpreting the first paragraph of Section 1, see supra, our appellate courts have consistently held that the declaration or preamble in that section manifested the object of the framers of the Constitution, i.e., “It was certainly the object of the framers of the Constitution to mark out a complete judicial system, by defining generally the province of each of the courts, by reference to the objects confided to the action of each, and the relation of each to the others. To that extent it must be held to be permanent, and not subject to change by the action of the Legislature, except as a change may have been provided for. This is plainly, though incidentally, indicated by a special provision for a change in the jurisdiction of the County Court. (Const.1876, art. 5, sec. 22.)” Ex parte Towles, 48 Tex. 413 (1877).

Our appellate courts have also held that the Legislature was not authorized to add to or change the judicial system as defined in Article V of the Constitution. In sum, the jurisdiction of newly created district courts of this State is confined to the subjects set out in Art. V, Section 8, of the Constitution, and the Legislature is powerless to confer upon those courts additional powers or to decrease their constitutional powers. See Cobb et al. v. Cohron, 26 S.W. 846 (Tex.Ct.Civ.App.1894), and the cases cited on page 847; State v. De Gress, 72 Tex. 242, 11 S.W. 1029 (Tex.1888); Jordan v. Crudgington, 149 Tex. 237, 231 S.W.2d 641, 644 (1950). Also see Vol. 1, The Constitution of the State of Texas: An Annotated and Comparative Analysis, at page 366; and the cases collated in 2 Notes on Texas Reports (1910 edition), at 765-766.

In 1891, the voters of this State caused Article V, Section 1, supra, to be amended by adding the following paragraph to that section: “The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction thereof, and may conform the jurisdiction of the district and other inferior courts thereto.”

Our appellate courts have interpreted the amendment to mean that “it was not intended by the 1891 amendment to deprive the district courts of, or to detract from, the jurisdiction specifically granted them by the constitution; the legislative authority given ‘to conform the jurisdiction’ was only authority to make the jurisdiction of the statutory courts concurrent with that of the constitutional district courts, and was not authority to either destroy the district court’s constitutional jurisdiction or to transfer any part of it exclusively to a statutory court.” In re Cockrell, 493 S.W.2d 620, 624 (Tex.Civ.App.-Amarillo 1973).

The amendment has been held to authorize the Legislature to create courts other than those constitutional courts identified in the first paragraph of Sec. 1, such as, for example, the Probate Court of Harris County, see State v. Mc Clelland, 148 Tex. 372, 224 S.W.2d 706 (1949); the Domestic Relations Court of Potter County, see Jordan v. Crudgington, 149 Tex. 237, 231 S.W.2d 641 (1950); the County Court at Law of Dallas County, see Johnson v. City of Dallas, 78 S.W.2d 265 (Tex.Civ.App.-Dallas 1934), writ refused, and such other courts as juvenile courts, etc. Also see Harris County v. Stewart, 91 Tex. 133, 41 S.W. 650 (1897). Thus, the Legislature now has the power to create such other courts as it believes necessary to the demands of the citizenry, but such amendment is applicable only to courts other than those constitutional courts identified in the first paragraph of Section one, supra. Jordan v. Crudgington, supra. The amendment not only authorizes the Legislature to create “other such courts”, it may grant to newly created district courts the constitutional jurisdiction set out in Section 8 of Article I, thus causing them to be equals among all of the constitutional district courts. However, the amendment does not give the Legislature the authority to deprive any other district court of, or to detract from, the jurisdiction specifically granted them by the constitution. Also see 16 Tex.Jur.Srd, “Courts.”

In this instance, when the Legislature enacted Art. 1918c, supra, it “did not create ‘courts’ with independent jurisdiction; [the Act] simply authorized a procedure whereby magistrates, acting as surrogates and not judges, are appointed to assist the district court judges in certain limited matters”, by performing certain assigned functions and providing recommendations to the referring judge. Kelley v. State, 676 S.W.2d 104, 107 (Tex.Cr.App.1984). Also see Scott v. State, 690 S.W.2d 256, 258 (Tex.Cr.App.1985), and Howard v. State, 690 S.W.2d 252, 255 (Tex.Cr.App.1985). Furthermore, the Act does not increase or diminish the constitutional jurisdiction of the District Court of Dallas County sitting in and for the 194th Judicial District.

Appellant asserts that Art. 1918c, supra, is a “special or local” law that was passed in violation of Art. Ill, Section 56, of the Constitution which generally prohibits the passage of such laws. In a sense, Art. 1918c, supra, is a “special or local” law as it is expressly limited to Dallas County. The intent of Art. Ill, Section 56, of the Constitution that provides that “[t]he Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law” was “to combat corruption, personal privileges, and meddling in local affairs — or, conversely, to prevent a group from dashing to the Capitol to get something their local government would not give them.” Vol. 1, The Constitution of the State of Texas: An Annotated and Comparative Analysis, at page 273. However, as the commentary to the section makes clear, that section of our Constitution has been rendered virtually meaningless by court decisions. In this instance, we find and hold that Art. 1918c, supra, does not run afoul of Art. Ill, Section 56, supra. The 194th Judicial District Court conducts business in the interest of the State of Texas. The conduct of its business is of vital importance to all of the citizens of this State and the State has a deep concern with that court conducting its business in an orderly and efficient manner, See and compare Lamon v. Ferguson, 213 S.W.2d 86 (Tex.Civ.App.-Austin 1948), no writ. Art. 1918c, supra, is not a “local or special” law.

Furthermore, Art. Ill, Section 56, supra, does not place on the Legislature a strict and inviolable prohibition regarding the enactment of special or local laws, and our courts have so held. See, for example, Harris County v. Stewart, 91 Tex. 133, 41 S.W. 650 (1897); Tom Green County v. Proffitt, 195 S.W.2d 845 (Tex.Civ.App.-Austin 1946), writ dism’d w.o.j.; Harris County v. Crooker, 224 S.W. 792 (Tex.Civ.App.-Texarkana 1920), aff'd 112 Tex. 450, 248 S.W. 652 (1923); Brazos River Transmission Electric Coop. v. Triplett, 225 S.W.2d 422 (Tex.Civ.App.-Waco 1949), no writ; Jones v. Anderson, 189 S.W.2d 65 (Tex.Civ.App.-San Antonio 1945), writ ref’d.

Today, we expressly hold that Art. 1918c, supra, was not enacted in contravention of Art. Ill, Section 56, supra.

Given our holding that the Legislature was authorized to create and establish the 194th Judicial District, it stands to reason that the Legislature was also empowered to pass additional legislation that would authorize that court to function in a judicious and effecient manner. In this instance, it chose to enact Art. 1918c, supra, the “Dallas County Magistrates Act,” to assist, inter alia, the 194th Judicial District Court.

“The statute was [primarily] enacted in order to reduce the heavy criminal dockets in Dallas County. To accomplish this, the statute enables the appointed magistrates to assist district court judges by performing certain assigned functions and providing recommendations.” Scott v. State, supra, at 258; Howard v. State, supra. It should not be questioned that the role that a magistrate plays in acting on behalf of the presiding judge of the 194th Judicial District is a role that is of great importance in aiding that district court to function in an efficient and proper manner.

We will next, and lastly, address the general order of referral signed by Judge Kinkeade that empowered Magistrate Wilson to act in this cause.

This Court, on its own motion, also granted review in order to determine whether the general order of referral issued by Judge Kinkeade complies with the provisions of Art. 1918c, supra. We find that this issue has already been decided in another case from Dallas County, see Ex parte Stacey, 709 S.W.2d 185 (Tex.Cr.App.1986), in which a majority of this Court held: “[A] general order of referral is a proper vehicle under the act”, and also held that there is “no requirement to name a particular magistrate or issue an order of referral separately for each case.” We reaffirm those holdings.³

The judgment of the Court of Appeals is affirmed.

1 . Art. 1918c, V.A.C.S., became effective August 31, 1981. It has been recodified at V.A.C.S., Government Code, Section 54.301 et seq. (Vernon’s Supp.1986). We will decide appellant’s challenge to the statute as it existed when he was convicted. The Act provided then and now, inter alia, "(a) Each judge of a district court of Dallas County that gives preference to criminal cases and each judge of a criminal district court of Dallas County, with the consent and approval of the Commissioners Court of Dallas County, may appoint a magistrate to perform the duties authorized by this subchapter.”

Although this opinion is limited to the actions of the 194th Judicial District Court of Dallas County, it is applicable to all of the above district courts of Dallas County listed in subsection (a), ante.

2 . In its motion to revoke appellant’s probation, the State alleged several violations. Appellant pled "true" to three of the alleged violations. The hearing on the State’s motion to revoke occurred before Judge Kinkeade, after which Judge Kinkeade ordered appellant’s probation revoked and sentenced him to serve four (4) years’ confinement in the Department of Corrections. One of the allegations in the State’s motion to revoke was that appellant committed the offense of aggravated robbery, for which he was later convicted and sentenced to serve twenty (20) years’ confinement in the Department of Corrections. Appellant pled "not true” to that allegation. Judge Kinkeade made no finding on that allegation. That conviction was affirmed in an unpublished opinion by the Third Court of Appeals. See Kelly v. State, No. 3-84-037 CR(T), February 6, 1985. This Court refused the appellant’s petition for discretionary review in that cause on January 27, 1986. None of the issues involved in the cause at Bar were implicated in the aggravated robbery appeal. Other than challenging the validity of the order revoking his probation on the ground that Art. 1918c, supra, is unconstitutional, and his claim that the general order of referral is invalid, appellant does not otherwise challenge the validity of the trial court’s order revoking his probation.

3 . Notwithstanding our previous and present holdings, where a particular cause has been referred by a district court judge to a particular magistrate, for record keeping and appellate purposes, if no other reason, we highly recommend that a "flll-in-the blanks” type of preprint-ed form be prepared and used for those causes, if such has not already occurred. Had this been done when the provisions of Art. 1918c, supra, were first being implemented, the statute might have been more favorably received by all members of this Court, rather than by just some members of this Court. Also see footnote 5 in Kelley v. State, 676 S.W.2d at 108.