State v. Hall

829 S.W.2d 184, 1992 Tex. Crim. App. LEXIS 64, 1992 WL 55267

• Court: Court of Criminal Appeals of Texas
• Decided: March 25, 1992
• Docket: 1096-90
• Status: Published

Opinions

OPINION ON THE STATE’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellee, Patricia Ann Hall, was charged by information with two counts of criminally negligent homicide, a Class A misdemeanor. See Tex.Penal Code § 19.07. The trial court dismissed the information on the ground the prosecution was barred by the two-year statute of limitations, and the First Court of Appeals affirmed the dismissal. State v. Hall, 794 S.W.2d 916 (Tex.App.—Houston [1st Dist.] 1990). We granted the State’s petition for discretionary review, pursuant to Rule 200(c)(4) of the Texas Rules of Appellate Procedure, to determine whether the statute of limitations was tolled so as to enable the prosecution to go forward. Having determined that the statute of limitations was not tolled, we will affirm the judgment of the court of appeals.

We first briefly review the procedural history of this cause. On November 15, 1985, the Harris County grand jury returned two indictments, which were presented in the 228th District Court of that county and which alleged that appellee committed the criminally negligent homicide of two persons. The two indictments were worded identically — except for the names of the victims — and alleged that

in Harris County, Texas, Patricia Ann Hall, hereafter styled the Defendant, ... on or about June 27,1985, did ... unlawfully, intentionally and knowingly operate a motor vehicle on a public highway, in her official capacity as a Harris County Sheriff’s Office Deputy, [and] did ... negligently cause her official police vehicle to collide with a vehicle occupied by [the victims], and by the Defendant’s criminal negligence, did cause the death of the [victims], namely, by operating her official police vehicle at a greater rate of speed than was reasonable and prudent under the existing conditions, and by failing to maintain a proper lookout for the vehicle occupied by the [victims] and the Defendant was not responding to an emergency call.

Appellee, relying on articles 4.05 and 4.07¹ of the Texas Code of Criminal Procedure,² filed a pretrial motion to dismiss the indictments, arguing that the district court

lacks jurisdiction to hear this case of negligent homicide. Negligent homicide is a misdemeanor and it is the County Court which maintains exclusive jurisdiction of misdemeanors, with the exception of those misdemeanors which involve official misconduct. The State has failed to allege any facts giving rise to the charge [of] official misconduct which would thereby give [the district court] jurisdiction. The mere fact that the indictment charges the words, “while in her official capacity,” and “operating her official police vehicle,” are wholly insufficient as a matter of law to constitute an allegation of official misconduct.

Appellee’s motion to dismiss was denied, and the jury subsequently found her guilty as charged.

Appellee raised the jurisdictional issue again on appeal, and the Fourteenth Court of Appeals reversed her conviction on that basis. Hall v. State, 736 S.W.2d 818 (Tex.App.—Houston [14th Dist.] 1987, pet. ref’d). Relying in part on Robinson v. State, 470 S.W.2d 697 (Tex.Cr.App.1971), the court of appeals held that the indictments did not allege misdemeanors involving official misconduct. The court of appeals explained that a criminal act involves “official misconduct,” for district court jurisdiction purposes, only if that criminal act is “inextricably a function of the official duties of the defendant.” Hall, 736 S.W.2d at 821. The court of appeals went on to state that it did “not consider operating a motor vehicle an inextricable function of a police officer’s official duties.” Id. The court also cautioned the State that “[n]ot every offense committed by a public official involves official misconduct,” id. at 820, and that “official misconduct is an offense which cannot be committed by an ordinary citizen,” id. at 822.

Despite the holding of the Fourteenth Court, the State did not abandon the prosecution. On August 23, 1989, an assistant district attorney of Harris County filed an information in County Criminal Court at Law Number 10 of that county, charging appellee with the same two counts of criminally negligent homicide. Appellee then filed a motion to dismiss on the basis of the two-year statute of limitations for misdemeanor prosecutions. See Tex.Code Crim. Proc. art. 12.02. The county court granted appellee’s motion to dismiss, and the State appealed, arguing that the statute of limitations, Article 12.05,³ was tolled when the initial indictments were presented in the 228th District Court. The First Court of Appeals, relying principally on Ex parte Ward, 560 S.W.2d 660 (Tex.Cr.App.1978), disagreed with the State and held that the statute of limitations was not tolled under Article 12.05 because the original indictments “were not filed in a court of competent jurisdiction.” State v. Hall, 794 S.W.2d 916, 919 (Tex.App.—Houston [1st Dist.] 1990).

Before this Court, the State reasserts its claim that the statute of limitations was tolled upon the presentment of the original indictments in the district court, which, the State argues, was a “court of competent jurisdiction.” The State argues first that the district court was a court of competent jurisdiction because Article 4.05 grants district courts jurisdiction of all misdemeanors involving official misconduct and “the [original] indictments [in this case] alleged misdemeanors involving official misconduct.” The State, citing Studer v. State, 799 S.W.2d 263 (Tex.Cr.App.1990), argues second that the district court was a court of competent jurisdiction because, under Article V, § 12(b), of the Texas Constitution, the presentment of an indictment to a court invests that court with jurisdiction to try the case.4

Appellee argues in response that the statute of limitations was not tolled upon presentment of the original indictments to the district court. Appellee contends, as she did below, that the district court was not a court of competent jurisdiction because the original indictments did not allege misdemeanors involving official misconduct. Appellee does not respond to the State’s constitutional argument.

We turn first to the State’s argument that the district court was a court of competent jurisdiction because the indictments presented therein alleged misdemeanors involving official misconduct. We held in Ex parte Ward, 560 S.W.2d 660 (Tex.Cr.App.1978), that, for the purposes of Article 12.05, a court of competent jurisdiction is a court with jurisdiction to try the case. Since that interpretation has not been legislatively overruled in the many years following Ward, we are confident that it is correct. See Lockhart v. State, 150 Tex.Crim. 230, 200 S.W.2d 164, 167-168 (1947) (prolonged legislative silence following judicial interpretation of statute implies approval of interpretation). Under Ward and Article 4.05, then, the district court was a court of competent jurisdiction only if the indictments alleged misdemeanors involving official misconduct.

Twice in recent years we have had occasion to discuss the meaning of the phrase, “official misconduct,” as used in Article 4.05. In Robinson v. State, 470 5.W.2d 697, 699 (Tex.Cr.App.1971), we held that official misconduct, for the purposes of that article, was defined in Tex.Rev.Civ. Stat. art. 5973.⁵ Article 5973, still in effect at the time of appellee’s trial in 1985, defined “official misconduct” as

any unlawful behavior in relation to the duties of his office, wilful in its character, of any officer intrusted in any manner with the administration of justice, or the execution of the law; and includes any wilful⁶ or corrupt failure, refusal or neglect of an officer to perform any duty enjoined on him by law.

(Footnote and emphasis added.) Although this statutory definition includes the term, “wilful neglect,” we do not construe that term to include negligence. Rather, “wilful neglect” refers to “the intentional disregard of a plain or manifest duty.” Black’s Law Dictionary 1600 (6th ed. 1991).

More recently, in Gallagher v. State, 690 S.W.2d 587 (Tex.Cr.App.1985), we again discussed, at considerable length, the meaning of official misconduct within the context of Article 4.05 and again concluded that for a criminal act to constitute official misconduct, it must be both wilful and related to the duties of the defendant’s office. See also Emerson v. State, 727 S.W.2d 267 (Tex.Cr.App.1987). And, again, because our holdings in Robinson and Gallagher have not been legislatively overturned, although many years have passed, we are confident that they are correct.

Given the established legal definition of “official misconduct,” it is apparent that the original indictments in this case did not allege misdemeanors involving official misconduct. The indictments alleged neither “wilful” misconduct nor misconduct “related to the duties” of appellee’s office. We thus conclude that the district court wherein the original indictments against appellee were presented was not a court of competent jurisdiction under Article 4.05. Compare Ex parte Slavin, 554 S.W.2d 691 (Tex.Cr.App.1977) (invalid indictment tolled statute of limitations, but trial court there had subject matter jurisdiction of offense charged).

We turn next to the State’s contention that the district court was a court of competent jurisdiction by virtue of the last sentence in Tex. Const, art. V, § 12(b). Although the language cited by the State is apparently sweeping, we recognized in Stu-der that the original understanding of this language was that it would only overrule “the line of cases [from this Court] holding that a fundamental error in a charging instrument deprives the [trial] court of jurisdiction of the case.” Studer, 799 S.W.2d at 269 (quoting Texas Legislative Council report). We went on to note that the extensive legislative history showed that “the perceived evil [the Texas Legislature was] correcting was the raising of indictment defects for the first time after a trial and conviction and the subsequent reversal of that conviction because of that defect.” Id. at 270-271. There is nothing in the legislative history of Article V, § 12(b), suggesting that it was believed that that article would automatically vest subject matter jurisdiction in any court in which an indictment was presented, thereby effectively abrogating Chapter 4 of the Texas Code of Criminal Procedure.⁷ As a member of this Court recently observed,

a literal reading of article V, § 12(b) could lead to absurd results. If the mere presentment of an indictment could vest jurisdiction in any court, then ... a capital murder case could be properly tried in a county court. I cannot believe that such a result was the legislature’s or the voters’ intent.

DeDonato v. State, 819 S.W.2d 164, 168 (Tex.Cr.App.1991) (Maloney, J., concurring). We conclude, therefore, that the district court wherein the original indictments against appellee were presented was not a court of competent jurisdiction by way of Article V, § 12(b).⁸

Having determined that the district court was not a court of competent jurisdiction, we hold that the statute of limitations was not tolled. The judgment of the court of appeals is therefore AFFIRMED.

MILLER, J., concurs in the result.

1 . Article 4.05 provides:

District courts and criminal district courts shall have original jurisdiction in criminal cases of the grade of felony, of all misdemeanors involving official misconduct, and of misdemeanor cases transferred to the district court under Article 4.17 of this code.

In 1985, Article 4.07 provided:

The county courts shall have original jurisdiction of all misdemeanors of which exclusive original jurisdiction is not given to the justice court, and when the fine to be imposed shall exceed two hundred dollars.

2 . Unless otherwise noted, all articles cited in this opinion are in the Texas Code of Criminal Procedure.

3 . Article 12.05 provides in relevant part:

(b) The time during the pendency of an indictment, information, or complaint shall not be computed in the period of limitation.

(c) The term "during the pendency," as used herein, means that period of time beginning with the day the indictment, information, or complaint is filed in a court of competent jurisdiction, and ending with the day such accusation is, by an order of a trial court having jurisdiction thereof, determined to be invalid for any reason.

(Emphasis added.)

4 . Texas Constitution art. V, § 12(b), provides:

An indictment is a written instrument presented to a court by a grand jury charging a person with the commission of an offense. An information is a written instrument presented to a court by an attorney for the State charging a person with the commission of an offense. The practice and procedures relating to the use of indictments and infor-mations, including their contents, amendments, sufficiency, and requisites, are as provided by law. The presentment of an indictment or information to a court invests the court with jurisdiction of the cause.

5 . Article 5973 was repealed in 1987 and recodi-fied as Tex.Loc.Gov't Code §§ 21.002(b)(2) and 87.011(3). These new statutes substitute "intentional” for "wilful.” See generally State v. Williams, 780 S.W.2d 891 (Tex.App.—San Antonio 1989, no pet.).

6 . Conduct is "wilful” if it is intentional, as distinguished from negligent, and if it is done in bad faith or without reasonable ground for believing it to be lawful. Brown v. State, 167 Tex.Crim. 621, 322 S.W.2d 626, 627-628 (1959); Rankin v. State, 139 Tex.Crim. 247, 139 S.W.2d 811, 812 (1940); Elmore v. State, 126 Tex.Crim. 519, 73 S.W.2d 107, 108 (1934); see also R. Perkins & R. Boyce, Criminal Law 875 (3rd ed. 1982).

7 . Chapter four delineates the criminal subject matter jurisdiction of Texas courts.

8 . Also worth noting is the fact that, unlike the defendant in Studer, appellee lodged a complaint regarding the indictment in the trial court. Thus, there was no waiver of a substance defect under Article 1.14(b), as there was in Studer.