The State of Texas v. Elotina Patterson

• Court: Court of Appeals of Texas
• Decided: August 27, 2025
• Docket: 08-24-00300-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ THE STATE OF TEXAS, No. 08-24-00300-CR § Appellant, Appeal from the § v. County Court at Law No. 7 § ELOTINA PATTERSON, of El Paso County, Texas § Appellee. (TC# 20240C02946) §

OPINION

Because “jurisdiction over a case is an absolute systemic requirement,” the Court of

Criminal Appeals has recognized that “[i]f there is no jurisdiction, the court has no power to act.” 1

Criminal jurisdiction over a person requires the proper “filing of a valid indictment or

information.” 2 In this appeal, the State challenges the dismissal of an indictment and case against

Elotina Patterson. A grand jury empaneled by a district court returned an indictment charging

Patterson with the misdemeanor offense of participating in a riot. After the cause was assigned to

1 State v. Dunbar, 297 S.W.3d 777, 780 (Tex. Crim. App. 2009). 2 Jenkins v. State, 592 S.W.3d 894, 898 (Tex. Crim. App. 2018) (citing Garcia v. Dial, 596 S.W.2d 524, 527 (Tex. Crim. App. 1980)). a county court at law, Patterson filed a plea to the jurisdiction seeking dismissal of her case. The

trial court dismissed her case, and the State appealed.

We conclude that the county court’s jurisdiction was not properly invoked and it lacked

authority to take any action other than to dismiss Patterson’s case. Accordingly, we affirm the order

dismissing the case.

I. BACKGROUND

The State sought, and a grand jury empaneled in an El Paso district court returned,

indictments against 141 individuals, including Patterson, alleging participation in an April 12,

2024 riot in El Paso, Texas. The indictments were filed with the El Paso County Clerk and assigned

en masse to a county court at law. The record before us consists of the county court clerk’s record

and reporter’s record for the hearings held in Patterson’s case on May 13, 2024, and June 24, 2024,

in which the parties argued over the filing of the indictment and the process by which the case

came before the county court. During the May 13, 2024 hearing, the court and the parties

referenced earlier hearings held in other defendants’ cases similarly charged wherein questions

were raised about the jurisdiction of the county court. However, we do not have any of those

referenced hearings in the record before us.

A. The indictment

In April 2024, a grand jury empaneled by an El Paso County district court returned an

indictment charging Patterson with the Class B misdemeanor offense of participating in an alleged

April 12, 2024 riot. 3

The indictment stated that the “Grand Jurors for the County of El Paso, State of Texas, duly

organized as such, at the January Term, A.D., 2024, of the 120th Judicial District Court for said

3 See Tex. Penal Code Ann. § 42.02(b), (e).

2 County, upon their oaths in said Court, present that on or about the 12th day of April, 2024, and

anterior to the presentment of this indictment, in the County of El Paso and State of Texas . . .

Patterson [committed the offense of participating in a riot].” It was signed by the grand jury

foreperson.

The bottom portion of the instrument indicated it was filed on April 25, 2024. It was signed

by a deputy county clerk, who also certified it was “a true and correct copy of the original

indictment on file in my office.” A hand-written notation appearing on the top of the document

shows it was assigned county court cause number 20240C02946. On its face, the indictment

contains no district clerk file stamp, no district court cause number, and no indication it was filed

in the district court or with the district court clerk. The case was assigned to County Court at Law

No. 7. 4

B. The plea to the jurisdiction and the transfer order

Patterson filed a plea to the jurisdiction in the county court, alleging it lacked subject-matter

jurisdiction over her case, and thus she sought a dismissal. The State obtained an “Order of

Certification and Transfer” from the district court, in which it stated, “the Grand Jury inquired into

misdemeanors and returned indictments relating to those misdemeanor cases listed in the

[attached] Charging Instrument Report,” which consists of a list of the 141 cases, including

Patterson’s, for which the grand jury returned indictments charging the defendants with

participating in the alleged April 12, 2024 riot. The order was signed on May 9, 2024. All of the

cases listed in the Charging Instrument Report were identified by their county court cause numbers.

The district court “certifie[d] to the County Courts . . . that said indictments were returned into the

4 On April 23, 2024, Judge Sue Kurita, the presiding administrative judge of the El Paso County Courts, signed an order stating that “Operation Lone Star cases be assigned to County Court at Law 7.” The parties appear to agree that Patterson’s case fell within the scope of those cases.

3 District Court,” and ordered that the indictments be “transferred to the County Courts having

jurisdiction to try them for trial.”

The order, though signed by the district court judge, was file-stamped by the County Clerk,

not the District Clerk; it included a county court cause number in the caption, indicating that it was

entered in “Cause Nos.: 20240C02820 et[] seq.”; and it was captioned as pending “IN THE

GRAND JURY FOR THE 120TH DISTRICT COURT,” rather than in the district court. No district

court cause number appears anywhere in the transfer order or the Charging Instrument Report it

referenced.

C. Hearings on the plea to the jurisdiction

The trial court held a hearing on Patterson’s plea to the jurisdiction on May 13, 2024. 5 At

that hearing, the county court judge acknowledged that 141 indictments had been filed in his court

and took judicial notice of the county clerk’s record and the district court’s May 9 transfer order

filed in the case. Patterson argued the transfer order was ineffective to invoke the county court’s

jurisdiction, contending her indictment was improperly filed in the county court in the first

instance; the transfer order was “void” and ineffective to transfer the case as there was no evidence

that the indictment was properly filed in the district court clerk’s office and transferred by the

district clerk to the county court as required by the Code of Criminal Procedure; and the proper

remedy was to dismiss the indictment. The State countered at the hearing and in a later written

response that the indictment was properly filed in the county court and a transfer order was not

needed, but that if one was needed, the May 9 order sufficed and any shortcoming in the filing

requirements was a “procedural irregularity,” not a jurisdictional defect. The State further argued

that, to the extent the transfer order was deficient, the proper remedy was for the county court to

5 The hearing also addressed the pleas to the jurisdiction filed by 118 other defendants who were similarly charged with the riot offense.

4 send the indictment back to the grand jury with “instructions” on how to proceed with initiating a

proper transfer, rather than dismiss the indictment.

At the May 13 hearing, the county court expressed concern that the indictment had not

been properly filed in its court, and it gave the State the right to come forward with evidence to

support a finding that the indictment was properly transferred to the county court. The court further

suggested that if no such evidence existed, the State could either obtain a new indictment from the

grand jury and follow the correct steps to effectuate a transfer or it could file an information in the

county court charging the defendant with the offense.

The county court held a second hearing on Patterson’s plea on June 24, 2024. At that

hearing, the court expressed its belief that the State had agreed to re-indict Patterson, and it

indicated it was waiting for that to be accomplished before ruling on Patterson’s plea to the

jurisdiction. The State explained that although it re-indicted 59 of the original 141 defendants who

were in custody, it chose not to re-indict the remaining defendants, including Patterson, who had

been released on bond.

As to Patterson’s case, the State argued it had no burden to take any action, and that it was

the county court’s obligation to transfer the matter to the “grand jury court” if it believed there was

a defect in the process. At the conclusion of the hearing, the county court ruled that Patterson’s

case had not been properly transferred to the county court and it lacked jurisdiction to hear her

case.

On June 26, 2024, the county court issued an “Order Dismissing Indictment,” which states

in pertinent part:

This cause is before the Court on Defendant’s Plea to the Jurisdiction. After hearing the arguments of counsel, reviewing the evidence presented and considering all documents contained in the Court’s file, the Court finds that it does not have subject matter jurisdiction in this cause.

5 It is therefore ORDERED that this cause is DISMISSED.

Defendant is ORDERED released from custody and the El Paso Sheriff’s Office is ORDERED to remove any conditions of bond associated with this case from the Texas Crime Information Center database maintained by the Department of Public Safety.

The State timely appealed from the order. In turn, Patterson moved to dismiss the appeal.

II. THE STATE’S RIGHT TO APPEAL

In Patterson’s motion to dismiss the appeal, she asserts this Court lacks subject-matter

jurisdiction. She claims the order of dismissal is not final and appealable and the State lacks a right

to appeal. 6 See Bell v. State, 515 S.W.3d 900, 901 (Tex. Crim. App. 2017) (recognizing that a

“jurisdictional issue should be fully vetted by the court of appeals in the first instance”). Because

we conclude the order is appealable and the State has a right to appeal, we deny Patterson’s motion.

A. Applicable law

Article 44.01 of the Texas Code of Criminal Procedure grants the State a right to appeal

any trial court order in a criminal case that “dismisses an indictment, information, or complaint or

any portion of an indictment, information, or complaint.” Tex. Code Crim. Proc. Ann. art.

44.01(a)(1); see also Tex. Const. art. V, § 26 (“The State is entitled to appeal in criminal cases, as

6 In its reply brief, the State argues that Patterson’s request for dismissal of this appeal constitutes an unauthorized cross-appeal that should be dismissed for want of jurisdiction. But an appeal—whether a direct appeal or a cross- appeal—is a proceeding that challenges a decision by a lower court. See, e.g., Appeal, BLACK’S LAW DICTIONARY (12th ed. 2024) (defining “appeal” as “[a] proceeding undertaken to have a decision reconsidered by a higher authority; esp., the submission of a lower court’s or agency’s decision to a higher court for review and possible reversal”); Cross- Appeal, BLACK’S LAW DICTIONARY (12th ed. 2024) (referencing the definition of an appeal); Point of Error, BLACK’S LAW DICTIONARY (12th ed. 2024) (defining “point of error” as “[a]n alleged mistake by a lower court asserted as a ground for appeal”). Thus, a challenge to this Court’s jurisdiction is not an “appeal,” a “cross-point in a State’s appeal,” or a “cross-appeal.” Moreover, “[a]n appellate court has jurisdiction to determine whether it has jurisdiction on its own motion or upon motion of a party to the appeal.” State ex rel. Holmes v. Hon. Ct. of Appeals for Third Dist., 885 S.W.2d 389, 405 (Tex. Crim. App. 1994) (Overstreet, J., concurring in part and dissenting in part). As such, we conclude that we have jurisdiction to consider Patterson’s challenge to our jurisdiction to hear the State’s appeal. See Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996) (recognizing that an appellate court “has jurisdiction to determine whether it has jurisdiction”).

6 authorized by general law.”). Under this statute, “the State has the power to appeal from any trial

court order concerning an indictment or information . . . whenever the order effectively terminates

the prosecution in favor of the defendant.” 7 State v. Moreno, 807 S.W.2d 327, 332 (Tex. Crim.

App. 1991). Further, the fact that the State may have the ability to amend an indictment to correct

any deficiencies the court may perceive in the indictment is irrelevant, as the State may appeal

from a trial court order that forces the State to amend the charging document. See id. at 333–34.

B. Analysis

In terms of appealability, Patterson argues in both her motion and her appellate brief that

the trial court did not dismiss the indictment but instead dismissed “the proceeding.” And, she

contends, because the State was not barred by the county court from prosecuting her case in the

future by obtaining a new indictment or information charging her with the same offense, the county

court’s order is not a final, appealable order and it did not “effectively terminate” her prosecution.

We disagree and instead conclude that the county court’s order effectively terminated her

prosecution on this indictment. Whether the State can prosecute her case in the future is immaterial

to our jurisdiction over the State’s appeal of the challenged order. As the State points out, the trial

court’s order is labeled “Order Dismissing Indictments.” Thus, while the body of the order stated

the court was granting Patterson’s plea to the jurisdiction due to a lack of subject-matter

jurisdiction and was thereby dismissing “this cause,” the effect of the order was to dismiss the

indictment filed in that court and preclude the State from prosecuting Patterson on the charged

offense. The fact that the State had the option to re-indict Patterson or open a new case by filing

an information in the county court does not impact the appealability of the order at issue.

7 The court noted, however, that a verdict of acquittal is not reviewable on appeal. See State v. Moreno, 807 S.W.2d 327, 332 n.6 (Tex. Crim. App. 1991).

7 As the Court of Criminal Appeals has explained, the key issue in determining the

appealability of an order dismissing an indictment is not whether the order precluded the State

from re-indicting a defendant, i.e., whether it was with prejudice, but whether the order precluded

the State from prosecuting the defendant on the indictment “under which it wished to proceed.”

See State v. Richardson, 383 S.W.3d 544, 548 (Tex. Crim. App. 2012) (“By quashing the

enhancement paragraphs [in the State’s indictment] and thereby prohibiting the state from referring

to the [defendant’s] offenses as felonies, the trial court’s ruling foreclosed the state from

proceeding on the indictment ‘under which it wished to proceed.’”) (citing United States v. Wilson,

420 U.S. 332, 333 n.7 (1975)). In other words, regardless of whether the State could amend an

indictment or continue the prosecution in some other fashion, where the trial court finds that the

State may not proceed on an indictment as filed in its court, “the State is entitled to stand on its

charging instrument and appeal a trial court’s adverse ruling dismissing the same, even if

amendment is possible.” State v. Plambeck, 182 S.W.3d 365, 370 (Tex. Crim. App. 2005). This is

so even if the trial court’s ruling was without prejudice. Id.

Thus, we conclude that, regardless of the manner in which the county court phrased its

order, because the order precluded the State from going forward with its prosecution of the

indictment at issue, the court’s order is appealable. See Moreno, 807 S.W.2d at 332 (holding Art.

44.01(a)(1) permits the state to appeal an order concerning an indictment or information

“whenever the order effectively terminates the prosecution in favor of the defendant”); see also

State v. Young, 810 S.W.2d 221, 223 (Tex. Crim. App. 1991) (recognizing that “[t]he mere label

attached either to the defendant’s motion or to the trial court’s order ruling on same cannot

determine its appealability”). Accordingly, we conclude that we have jurisdiction over the State’s

appeal, and we deny Patterson’s motion to dismiss. We next turn to the merits of the State’s appeal.

8 III. ISSUE ON APPEAL

On appeal, the State presents a single point of error, contending “the trial court erred by

dismissing valid and perfectly transferred indictments,” including Patterson’s case. In support of

its contention, the State advances two primary arguments. 8 First, the State asserts the case was

properly transferred from the district court to the county court under Articles 21.26 and 21.28 of

the Texas Code of Criminal Procedure. Second, the State argues that, even if it was not properly

transferred, “the trial court judge utilized an unauthorized remedy” when it dismissed the

proceeding. The proper remedy, according to the State, was for the county court judge to re-transfer

the case “back to . . . the court with the sitting grand jury, the 120th District Court.” The State

therefore requests that we reverse the county court’s dismissal order and remand the case to the

county court “for disposition of the charges levied against each defendant[].”

IV. STANDARD OF REVIEW

In reviewing the dismissal of an indictment, we apply a bifurcated standard of review. See

State v. Krizan-Wilson, 354 S.W.3d 808, 815 (Tex. Crim. App. 2011). We give “almost total

8 In addition to its primary arguments, the State also complains that the county court failed to explain why it granted the defendants’ pleas to the jurisdiction. As set forth above, however, throughout the two hearings held in this matter, the county court explained its concerns about the validity of the transfer process and its belief that it lacked jurisdiction to hear Patterson’s case. But more importantly, the State has not cited any authority to support a conclusion that the county court was required to provide any such explanation, whether orally or in writing, prior to ruling on a plea to the jurisdiction. Nor has the State addressed how any such failure to provide an explanation would constitute reversible error. Therefore, the State has waived this complaint. See Tex. R. App. P. 38.1(i) (addressing briefing requirements); Adams v. State, No. 08-10-00235-CR, 2012 WL 3025915, at *5 (Tex. App.—El Paso July 25, 2012, no pet.) (not designated for publication) (recognizing that when an appellant has “inadequately briefed [an]issue, nothing is presented for [an appellate court’s] review,” and the issue is therefore “waived” (citing Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.) (recognizing that the failure to adequately brief an issue results in waiver))). In addition, the State neither requested an explanation of the ruling from the county court, nor did it object to any deficiencies in the county court’s order granting Patterson’s plea. Thus, the State failed to preserve any complaint it may have had on this issue. See Tex. R. App. P. 33.1 (addressing error preservation requirements); see also State v. Robles, 631 S.W.3d 870, 873–74 (Tex. App.—San Antonio 2021, no pet.) (stating that preservation of error requirements apply to the State when the State is the appellant); Jean v. State, Nos. 14-94-00913-CR, 14-94- 00914-CR, 1996 WL 460177, at *2 (Tex. App.—Houston [14th Dist.] Aug. 15, 1996, no pet.) (not designated for publication) (stating the appellant failed to preserve error by failing to request findings of fact and conclusions of law and by failing to object to the trial court’s failure to file findings of fact and conclusions of law).

9 deference to a trial court’s findings of facts that are supported by the record, as well as mixed

questions of law and fact that rely upon the credibility of a witness.” Id. However, we apply “a de

novo standard of review to pure questions of law and mixed questions that do not depend on

credibility determinations.” Id.

Here, because no witnesses testified at the hearings and our decision depends exclusively

on a question of law, that is, whether procedures were followed to lawfully transfer the indictments,

we review the issue de novo. See State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004)

(“When the resolution of a question of law does not turn on an evaluation of the credibility and

demeanor of a witness, then the trial court is not in a better position to make the determination, so

appellate courts should conduct a de novo review of the issue.”); see also Mungin v. State, 192

S.W.3d 793, 794 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (recognizing that the adequacy

of an indictment is a question of law that an appellate court reviews de novo).

Moreover, as explained below, our decision hinges on interpreting the statutes and

constitutional provisions defining when a county court has jurisdiction to entertain an indicted

case, which are pure questions of law. See Ramos v. State, 303 S.W.3d 302, 306 (Tex. Crim. App.

2009) (recognizing that statutory construction involves questions of law that an appellate court

reviews de novo); City of Fort Worth v. Rylie, 649 S.W.3d 246, 249 (Tex. App.—Fort Worth 2022,

pet. denied) (recognizing that the de novo standard of review applies to both constitutional and

statutory interpretation (citing Patel v. Tex. Dep’t of Licensing & Regul., 469 S.W.3d 69, 87 (Tex.

2015); Fin. Comm’n of Tex. v. Norwood, 418 S.W.3d 566, 585 (Tex. 2013))).

To resolve the State’s contention that the county court erred in dismissing the indictment,

we must delve into the grand jury process and review the procedures required to transfer a case to

10 a county court when a grand jury empaneled in a district court returns an indictment charging a

defendant with a misdemeanor offense.

V. WHETHER THE COUNTY COURT ERRED IN DISMISSING THE INDICTMENT

As the key question in this case is whether jurisdiction vested in the county court to

adjudicate the indictment filed against Patterson, we start with a brief overview of what jurisdiction

entails in a criminal proceeding of this nature. Then, we turn to the specific question of whether

the processes followed in this case properly invoked the jurisdiction of the county court over the

indictment charging Patterson with the misdemeanor riot offense.

A. Law on jurisdiction

“The term ‘jurisdiction’ refers to the power of a court to hear a controversy and make

decisions that are legally binding on the parties involved.” State v. Dunbar, 297 S.W.3d 777, 780

(Tex. Crim. App. 2009) (citing Dears v. State, 154 S.W.3d 610, 612 (Tex. Crim. App. 2005)).

Because “jurisdiction is an absolute systemic requirement,” the Court of Criminal Appeals has

recognized that “[i]f there is no jurisdiction, the court has no power to act.” Id. “A trial court’s

jurisdiction over a criminal case consists of the power of the court over the ‘subject matter’ of the

case, conveyed by statute or constitutional provision, coupled with ‘personal’ jurisdiction over the

accused[.]” Dunbar, 297 S.W.3d at 780 (quoting Fairfield v. State, 610 S.W.2d 771, 779

(Tex. Crim. App. 1981)); see also Jenkins v. State, 592 S.W.3d 894, 898 (Tex. Crim. App. 2018)

(“A trial court’s jurisdiction over a criminal case consists of the power of the court over the ‘subject

matter’ of the case, coupled with ‘personal’ jurisdiction over the accused.”). “[A] lack of personal

or subject-matter jurisdiction deprives a court of any authority to render a judgment.” Ex parte

Moss, 446 S.W.3d 786, 788 (Tex. Crim. App. 2014).

11 With respect to subject-matter jurisdiction, district courts have jurisdiction over felony

offenses and certain misdemeanors not at issue here. Trejo v. State, 280 S.W.3d 258, 263

(Tex. Crim. App. 2009) (Keller, J., concurring) (quoting Tex. Const., art. 5, § 8 and Tex. Code

Crim. Proc. Ann. art. 4.05) (recognizing that district courts have subject-matter jurisdiction “in

[all] criminal cases of the grade of felony”). County courts at law have jurisdiction over Class A

and Class B misdemeanors. See Tex. Code Crim. Proc. Ann. art. 4.07 (establishing criminal

jurisdiction of county courts); Tex. Gov’t Code Ann. § 25.0003(a) (stating that statutory county

courts possess the same jurisdiction as county courts), § 25.0731(a)(7) (stating that County Court

at Law No. 7 of El Paso County is a statutory county court).

In a criminal case, the charging indictment is what gives a trial court personal jurisdiction

over a defendant, lasting until the termination of the proceedings. Dunbar, 297 S.W.3d at 780

(recognizing that the trial court acquired personal jurisdiction over the defendant when an

indictment was filed against her but lost personal jurisdiction 30 days after sentencing). Unlike in

civil cases, where personal jurisdiction over a party may be had merely by that party’s appearance

before the court, criminal jurisdiction over a person requires “the filing of a valid indictment or

information” in a proper court. Jenkins, 592 S.W.3d at 898 (citing Garcia v. Dial, 596 S.W.2d 524,

528 (Tex. Crim. App. 1980)); see also Trejo, 280 S.W.3d at 260 (observing that in a criminal case,

jurisdiction “requires both a general grant of authority to the trial court and a charging instrument

that invokes that jurisdiction over the particular case”).

Here, there is no doubt that the county court had subject-matter jurisdiction over the offense

of participating in a riot for which Patterson was indicted, as it is a Class B misdemeanor offense.

Tex. Penal Code Ann. § 42.03(b), (e). But here the question remains whether the return of the

12 indictment and procedures that were followed properly invoked the county court’s jurisdiction over

Patterson’s case. 9

B. The grand jury process and required procedures to transfer a misdemeanor indictment to a county court

The State has two available methods to charge a defendant with the commission of a

Class B misdemeanor offense. First, the State may charge a person with a misdemeanor offense

by filing an information. Tex. Const. art. V, § 17; Tex. Code Crim. Proc. Ann. art. 21.20; see also

Hullum v. State, 415 S.W.2d 192, 195 (Tex. Crim. App. 1966), underlying judgment rev’d on

different grounds in opinion on appellant’s second motion for rehearing without withdrawing

original opinion, 415 S.W.2d 198 (Tex. Crim. App. 1967). Second, a grand jury is authorized to

inquire into misdemeanors and return indictments for such offenses. See Tex. Const. art. V, § 17;

Hullum, 415 S.W.2d at 195; Quarles v. State, 385 S.W.2d 395, 396 (Tex. Crim. App. 1964) (“There

can be no question that a grand jury may return an indictment charging a misdemeanor.”). Here,

only the second method is at issue.

(1) Obtaining an indictment

A grand jury, once formed, “shall inquire into all offenses subject to indictment of which

any grand juror may have knowledge or of which the grand jury is informed by the attorney

representing the state or by any other credible person.” Tex. Code Crim. Proc. Ann. art. 20A.051;

see also Ex parte Edone, 740 S.W.2d 446, 448 (Tex. Crim. App. 1987) (explaining the grand jury

process). “After hearing all testimony accessible to them, the grand jurors vote as to presentment

9 We note that in her plea to the jurisdiction, Patterson argued the trial court lacked “subject-matter jurisdiction,” and similarly, the trial court’s order dismissing her indictment referred to the county court’s “subject-matter jurisdiction.” We do not take this to mean that the county court mistakenly believed it lacked subject-matter jurisdiction over Class B misdemeanors in general, but that it believed it lacked jurisdiction over Patterson’s particular case due to an improperly filed indictment, thereby using the term, “subject-matter jurisdiction” in a broader sense of the word. See Trejo v. State, 280 S.W.3d 258, 260 (Tex. Crim. App. 2009) (defining subject-matter jurisdiction broadly as encompassing both the jurisdiction to hear the type of offense and the jurisdiction to hear the defendant’s particular case by invocation of either a valid indictment or information).

13 of an indictment.” Edone, 740 S.W.2d at 448; see Tex. Code Crim. Proc. Ann. art. 20A.301. “If at

least nine grand jurors concur in finding the bill, the foreperson shall make a memorandum of the

vote with any information enabling the attorney representing the state to prepare the indictment.”

Tex. Code. Crim. Proc. Ann. art. 20A.301. The attorney representing the State must then prepare

the “indictment found by the grand jury and [must] deliver the indictment to the foreperson,” who

must sign the indictment. Tex. Code Crim. Proc. Ann. art. 20A.302(a), (b).

(2) Presenting an indictment

The Code of Criminal Procedure, under the heading “Presentment of Indictment,” provides

that once a grand jury has returned an indictment charging a defendant with a criminal offense,

“the grand jury shall, through the foreperson, deliver the indictment to the judge or court clerk,”

and “[a]t least nine grand jurors must be present to deliver the indictment.” Tex. Code Crim. Proc.

Ann. art. 20A.303; see also State v. Dotson, 224 S.W.3d 199, 204 (Tex. Crim. App. 2007). Thus,

presentment occurs when an indictment “is delivered by the grand jury, through its foreman, to the

judge or clerk of court.” Carrillo v. State, 2 S.W.3d 275, 277 n.5 (Tex. Crim. App. 1999).

“An indictment is considered as presented when it has been duly acted upon by the grand

jury and received by the court.” Tex. Code Crim. Proc. Ann. art. 12.06; see also Allen v. State, 570

S.W.3d 795, 799 (Tex. App.—Houston [1st Dist.] 2018), aff’d, 614 S.W.3d 736 (Tex. Crim. App.

2019). The Code further provides, “[a]n indictment, information, complaint, or other charging

instrument or a related document in a criminal case may be filed in electronic form with a judge

or clerk of the court authorized to receive the document.” Tex. Code Crim. Proc. Ann. art.

21.011(a). Accordingly, an indictment is only presented to a court when (1) the foreperson properly

presents it to the court or clerk, and (2) it is received by either the judge or the court clerk. 10 See

10 The Code provides, “[i]f the defendant is in custody or under bond at the time the indictment is presented, the fact of the presentment shall be entered in the court’s record, noting briefly the style of the criminal action, the file number

14 Tex. Code Crim. Proc. Ann. arts. 12.06, 20A.303, 21.011(a); see also Whaley v. State, No. 07-16-

00126-CR, 2018 WL 3559235, at *2 (Tex. App.—Amarillo July 24, 2018, no pet.) (mem. op., not

designated for publication) (“Article 20.21 provides the disjunctive conjunction ‘or’ in requiring

delivery of the indictment to the judge or clerk of the court.”); Tex. Const. art. V, § 12 (b) (defining

an indictment as “a written instrument presented to a court by a grand jury charging a person with

the commission of an offense”).

(3) Transferring an indictment from the district court to a county court

The Texas Constitution mandates that, when grand juries empaneled in the district courts

inquire into misdemeanors, “all indictments therefor returned into the District Courts shall

forthwith be certified to the County Courts or other inferior courts, having jurisdiction to try them

for trial[.]” 11 Tex. Const. art. V, § 17. Consistent with this provision, the Code of Criminal

Procedure also provides that “[u]pon the filing of an indictment in the district court which charges

an offense over which such court has no jurisdiction, the judge of such court shall make an order

transferring the same to such inferior court as may have jurisdiction, stating in such order the cause

transferred and to what court transferred.” Tex. Code Crim. Proc. Ann. art. 21.26. Establishing

required procedures to accomplish the transfer, the Code’s provision entitled “Duty on Transfer”

states:

The clerk of the court, without delay, shall deliver the indictments in all cases transferred, together with all the papers relating to each case, to the proper court or justice, as directed in the order of transfer; and shall accompany each case with a

of the indictment, and the defendant’s name.” Tex. Code Crim. Proc. Ann. art. 20A.304(a). But “[i]f the defendant is not in custody or under bond at the time the indictment is presented, the indictment may not be made public and the entry in the court’s record relating to the indictment must be delayed until the capias is served and the defendant is placed in custody or under bond.” Id. at 20A.304(b). 11 The Constitution further provides if an “indictment be quashed in the County, or other inferior court, the person charged, shall not be discharged if there is probable cause of guilt, but may be held by such court or magistrate to answer an information or affidavit.” Tex. Const. art. V, § 17. The parties here do not address this portion of the Constitution.

15 certified copy of all the proceedings taken therein in the district court, and with a bill of the costs that have accrued therein in the district court.

Tex. Code Crim. Proc. Ann. art. 21.28.

The Code further provides: “Any case so transferred shall be entered on the docket of the

court to which it is transferred. All process thereon shall be issued and the defendant tried as if the

case had originated in the court to which it was transferred.” Tex. Code Crim. Proc. Ann. art. 21.29.

Finally, when applicable, the Code provides for a case to be returned to the transferring court when

it was transferred improvidently to a court lacking in jurisdiction over such cause:

When a cause has been improvidently transferred to a court which has no jurisdiction of the same, the court to which it has been transferred shall order it to be re-transferred to the proper court; and the same proceedings shall be had as in the case of the original transfer. In such case, the defendant and the witnesses shall be held bound to appear before the court to which the case has been re-transferred, the same as they were bound to appear before the court so transferring the same.

Tex. Code Crim. Proc. Ann. art. 21.30.

C. Analysis

(1) Could the grand jury indictment be filed directly in the county court?

Although the State initially argued in the trial court that the indictment could be filed in the

county court without the need for a transfer order from the district court, it now appears to concede

that such an order was necessary. We agree.

It has long been the rule in Texas that only a district court may assemble a grand jury and

all indictments are presentable only in the district courts. See Coker v. State, 7 Tex. Ct. App. 83,

85 (1879); Tex. Const. art. V, § 13 (granting authority to the district courts to assemble grand

juries). Chapter 19 of the Code of Criminal Procedure also makes it clear that district courts are

the only courts authorized to assemble a grand jury. See, e.g., Tex. Code Crim. Proc. Ann.

art. 19A.051 (authorizing the district judge to empanel a grand jury).

16 As well, Tex. Const. art. V, § 17 requires that a grand jury indictment accusing a defendant

of a misdemeanor be presented to the district court in the first instance and may only thereafter be

transferred to a trial court having jurisdiction of the offense. 12 The various statutory provisions set

forth above reflect the same requirement—that indictments be presented to the district court then

transferred to the inferior court having subject-matter jurisdiction over the offense. See, e.g.,

Tex. Code Crim. Proc. Ann. art. 21.02(2) (an indictment shall be deemed sufficient if it appears

that the “same was presented in the district court of the county where the grand jury is in session”);

art. 21.26 (requiring district court judge, upon the filing of an indictment that “charges an offense

over which [the district court] has no jurisdiction” to transfer the case to an inferior court);

art. 21.30 (authorizing the judge of a court to which a case has been “improvidently transferred”

to re-transfer the case to a proper court); see also Aguillon v. State, No. 14-17-00002-CR, 2017

WL 3045797, at *1 (Tex. App.—Houston [14th Dist.] July 18, 2017, pet. ref’d) (mem. op., not

designated for publication) (recognizing that after voting, the grand jury foreman must deliver the

indictment to the district court judge or clerk of the court).

12 We acknowledge the 1985 amendments to section Tex. Const. art. V, § 12 but do not interpret them as intending to alter the requirement that presentment must be made in the district court, as clearly set forth Tex. Const. art. V, § 17. In 1985, the Texas Constitution was amended, and Article V, § 12(b) now provides: “An indictment is a written instrument presented to a court by a grand jury charging a person with the commission of an offense.” Tex. Const. art. V, § 12(b). We have not found any authority, however, that this revision to the Constitution would allow a grand jury to present an indictment to any court of its choosing. To the contrary, the Court of Criminal Appeals has recognized that “[t]here 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[.]” State v. Hall, 829 S.W.2d 184, 188 (Tex. Crim. App. 1992). And as the concurring opinion pointed out in DeDonato v. State, “a literal reading of article V, § 12(b) could lead to absurd results,” as it would allow the mere presentment of an indictment to vest jurisdiction in any court, and therefore, “absent an objection from the defendant, a capital murder case could be properly tried in a county court.” DeDonato v. State, 819 S.W.2d 164, 168 (Tex. Crim. App. 1991) (Maloney, J., concurring, joined by Baird and Benavides, JJ.)). Moreover, any such interpretation would be in direct conflict with above-described provisions in the Code and the Texas Constitution, which clearly require presentment to be made in the district court. See generally Oakley v. State, 830 S.W.2d 107, 111 (Tex. Crim. App. 1992) (recognizing that a court must “follow the historical tradition of reading and construing the Constitution as a whole and not piecemeal”).

17 We see no basis in law that would allow the county court or the county clerk to bypass the

legally required presentment and transfer procedures in the district court and accept presentment

of the indictment in the first instance, or to file the indictment without a proper transfer order. See

Bird v. State, 91 S.W. 791, 791 (Tex. Crim. App. 1906) (stating that “the county court was not

authorized to impanel grand juries or receive indictments,” and for the county court to have

jurisdiction, there must be a transfer order from the district court); Austin v. State, 40 S.W. 724,

725 (Tex. Crim. App. 1897) (holding that “indictments could not be filed” directly in a county

court without having been returned to a district court and transferred, via district court order, to the

county court).

(2) Was the indictment properly transferred pursuant to the May 9 order?

Having conceded that an indictment must initially be presented in the district court then

duly transferred to the county court, the State contends the district court’s May 9 order reflects that

these requirements were met. The State points out that in the order, the district court “certified”

that the grand jury indictments were “returned” to the district court, and it further ordered that all

indictments listed in the attached charging instrument report be “transferred to the County Courts

having jurisdiction to try them for trial.”

The State contends the “presumption of regularity” applies, and we must therefore

presume, in the absence of any evidence to the contrary, that the district court’s transfer order

properly certified that the indictments were presented to the district court and proper steps were

followed to achieve a transfer to the county court. See generally Light v. State, 15 S.W.3d 104, 107

(Tex. Crim. App. 2000) (“The presumption of regularity is a judicial construct that requires a

reviewing court . . . to indulge every presumption in favor of the regularity of the proceedings and

documents in the lower court.”); see also Ex parte Stacey, 709 S.W.2d 185, 189 (Tex. Crim. App.

18 1986) (recognizing that the presumption of regularity applies unless there is “a showing to the

contrary”). The State contends that although there may have been a delay in obtaining the May 9

order, which came approximately two weeks after the indictment was filed in the county court, it

nevertheless complied with Article 21.26, thus we should presume the cases were properly

transferred.

The State argues that a dismissal does not ordinarily preclude properly transferring the

matter a subsequent time. See, e.g., Lenzen v. State, 16 S.W.2d 234, 234 (Tex. Crim. App. 1929)

(recognizing that if the defendant had challenged the lack of a proper transfer order prior to trial,

“the state might easily have procured a proper certificate of transfer covering the error, failing in

which the court should have sustained the plea to the jurisdiction”); Bonner v. State, 44 S.W. 172,

173 (Tex. Crim. App. 1898) (stating that if a defendant’s plea had been timely made challenging

the lack of a transfer order, “the state might have procured a proper certificate of transfer”);

Hawkins v. State, 17 Tex. Ct. App. 593, 595–96 (1885) (holding that the trial court had jurisdiction

when the county attorney “obtained a certiorari to the district clerk to send [to the county court] a

complete transcript of the record” that corrected problems with an original transfer of the case,

even though the county court case had previously been dismissed due to a deficient transfer from

the district court).

But Patterson contends the evidence of record shows procedures were not correctly

followed in the first instance in her case. Patterson maintains that her timely plea to the jurisdiction

required dismissal of the case by the county court. Countering the State’s argument, she urges that

regardless of when a transfer order was obtained, it could only be effective if the indictment to be

transferred was actually filed in the district court in the first instance—and a case thereafter opened

with a cause number assigned—so as to permit the district court clerk to act on a transfer order

19 and transfer the case to the county court. In support of her argument, Patterson points out that

Article 21.26 requires a transfer order to identify “the cause transferred.” Tex. Code Crim. Proc.

Ann. art. 21.26. She further notes that Article 21.28 similarly provides that there must be a “case”

pending in the district court for it to be transferred to the county court. And she contends that if no

case was properly filed in the district court, there would be nothing to transfer to the county court.

We agree.

Although the district court’s May 9 order reflects that the grand jury indictments were

“returned” to the district court, there is nothing in the order itself or in the record provided to the

county court to support a finding that a “case” or “cause” was opened in the district court from

which a transfer could have been accomplished. As set forth above, and as Patterson points out,

the transfer order does not reference any district court cause numbers, and instead only references

county court cause numbers. Similarly, the document attached to the transfer order, which

identifies the cases to be transferred, lists and identifies cases solely by county court cause

numbers. In short, there is nothing in the record to suggest that the district court clerk had opened

a case on Patterson’s indictment. See Lynn v. State, 13 S.W. 867, 868 (Tex. Ct. App. 1890) (stating

that “there must be a file number upon the indictment in the district court” and that “it is a sufficient

description and identification of the cause to state its file number”); Dittforth v. State, 80 S.W. 628,

628 (Tex. Crim. App. 1904) (“It has been held that in the transfer of cases[,] a general order, giving

the numbers in the district court, and character of offense, is sufficient[.]” (emphasis added)).

Nor is there anything in the record before us to suggest that the district clerk opened any

cases for filing. When a district clerk receives a document for filing, the clerk has a ministerial

duty to accept the document and to duly file it in her records. See generally In re Am. Airlines, Inc.,

No. 02-22-00201-CV, 2022 WL 4131198, at *4 (Tex. App.—Fort Worth Sept. 12, 2022, original

20 proceeding) (mem. op.) (recognizing that “[a] district clerk has a ministerial duty to file a document

when it has been properly presented to the clerk”). The clerk does so by indorsing a file mark on

the document, recording it in her file docket, and maintaining it in her files. See In re Smith, 270

S.W.3d 783, 786 (Tex. App.—Waco 2008, no pet.) (“The clerk ‘files’ a document by indorsing a

file mark on it, recording it in the clerk’s file docket, and maintaining the document in the clerk’s

file for the suit.” (citing Tex. Gov’t Code Ann. § 51.303 (setting forth duties of district clerk in

filing and maintaining court records))); see also Tex. Gov’t Code Ann. § 51.304 (setting forth

duties of district clerk to preserve court files); Tex. Code Crim. Proc. Ann. art. 2A.153 (setting

forth duties of district clerk to receive and file all papers presented to her). Here, there is nothing

in the record to suggest the indictments were ever filed with the district clerk.

In addition, in regard to a proper transfer of an indicted misdemeanor case, there is nothing

in the record to demonstrate that the district clerk complied with the Article 21.28 requirements by

delivering to the county court the “papers” in the case or a “certified copy of all the proceedings

taken therein in the district court.” And the indictment itself only bears the county court clerk’s

file-stamp and county court cause number. Although the county court gave the State the

opportunity to create a record to support its contention that a proper transfer occurred, or could

occur, the State failed to produce any such evidence. As such, the evidence in the record before the

county court established that the indictments were filed in the county court in the first instance

without a proper transfer order. Although the district court thereafter “ordered” the indictment

transferred to the county court, there is no evidence that a case was properly filed and opened in

the district court that could be transferred. 13 Therefore, any “presumption of regularity” has been

13 In fact, as set forth above, at the May 13 hearing, the State argued that the grand jury acted appropriately in presenting the indictments directly to the county court clerk for filing, thereby acknowledging that, at the time, there was no transfer order directing the district clerk to transfer the “cases” to the county court.

21 overcome by the evidence in the record before us. See Ex parte Stacey, 709 S.W.2d 185, 189

(Tex. Crim. App. 1986) (concluding that the presumption of regularity in the court proceedings

was rebutted by the evidence in the record supporting a “contrary” finding); see also Dittforth, 80

S.W. at 628 (stating “the burden is on the state to show that the particular case was ordered

transferred”). Moreover, there is no evidence of a properly executed transfer of the district court

record by the district clerk. See Tex. Code Crim. Proc. Ann. art. 21.28.

Accordingly, we agree with Patterson that her case was not properly transferred to the

county court.

(3) Was the failure to properly transfer the case a jurisdictional defect?

Having found that the proper steps to accomplish a transfer were not taken, we turn to the

question of whether the failure to follow these steps can be construed as a mere procedural error

or whether the failure was jurisdictional. We agree with Patterson that the failure constitutes a

jurisdictional deficiency that may be raised and ruled upon prior to trial.

As set forth above, in a criminal case, the charging indictment is what gives a trial court

“personal jurisdiction” over a defendant. Dunbar, 297 S.W.3d at 780; Jenkins, 592 S.W.3d at 898.

In turn, the Court of Criminal Appeals has recognized that because an indictment may not be

presented directly to a county court, “[a]n order of the [district court] transferring the indictment

to the [county court] is essential to the jurisdiction of the latter.” 14 Horton v. State, 20 S.W.2d 1111,

14 Appellant relies on Henderson v. State, 526 S.W.3d 818, 821 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d) for the proposition that the lack of a transfer order is a “procedural” matter and not a jurisdictional one, which “can be cured at any time.” Henderson, however, involved a case in which a district clerk filed an indictment in a district court other than the court in which the grand jury had been assembled. Id. at 821. In that case, the court held that the lack of a motion to transfer the case was, “at best, a procedural issue.” Id. But the holding in Henderson has no impact on the question of whether a transfer order is required to invoke the jurisdiction of a county court. As set forth above, a transfer order is only required when an indictment is transferred from the grand jury district court to an inferior court, such as the county court. Tex. Code Crim. Proc. Ann. art. 21.26. In contrast, when approved by the local rules, a district clerk may assign an indictment to a district court within the same county and is not required to file the indictment in the court in which the grand jury was assembled, and therefore may do so without a transfer order. See Bourque v. State, 156 S.W.3d 675, 678 (Tex. App.—Dallas 2005, pet. ref’d); Tamez v. State, 27 S.W.3d 668, 675 n.1 (Tex. App.—

22 1111 (Tex. Crim. App. 1929); see also Austin v. State, 40 S.W. 724, 725 (1897) (recognizing that

without a proper order transferring an indictment to an inferior court, the “inferior court can acquire

no jurisdiction”); Bird, 91 S.W. at 791 (recognizing that an order transferring jurisdiction from the

district court to the county court is required “in order to attach jurisdiction of the county court”).

The Court of Criminal Appeals in Lenzen recognized that a defendant may file a plea

challenging the jurisdiction of a county court prior to trial based on the contention that the

indictment charging him with a misdemeanor “was not transferred by proper order from the district

court[.]” See Lenzen, 16 S.W.2d at 234. But the court recognized that such a challenge would come

too late if it was made for the first time on appeal, expressly overruling a line of cases that held

otherwise. Id. In effect, the court ruled that the defendant waived his right to contest the court’s

jurisdiction over his case, i.e., his personal jurisdiction, by standing trial, thereby subjecting

himself to the jurisdiction of the court. Id. (“It seems beyond question that the accused having

admitted the jurisdiction of the trial court by entry of appearance and plea and the standing of trial,

he should not be allowed to raise the question thereafter.”).

In a long line of cases that followed, the Court of Criminal Appeals continued to recognize

that when a grand jury indictment is filed in the county court without a proper transfer order from

the district court, the defendant may file a plea to the jurisdiction seeking dismissal of the

Waco 2000, pet. ref’d); see also Tex. Gov’t Code Ann. § 24.024 (providing that “[i]n a county with two or more district courts, the district judges may adopt rules governing the filing and numbering of cases, the assignment of cases for trial, and the distribution of the work of the courts as in their discretion they consider necessary or desirable for the orderly dispatch of the business of the courts”). This is because the district clerk for a county serves as the district clerk for all of the district courts in the county. Tex. Const. art. V, § 9 (providing that the district clerk “shall be a clerk for the District Court of each county” in which she is elected); Duclos v. Harris Cnty., 263 S.W. 562, 563 (Tex. 1924) (“A clerk is an essential to a district court, and also each county is by law provided with one[.]”). However, the district clerk and the county clerk are two separate positions created by the Texas Constitution. Tex. Const. art. V, § 9 (creating the position of the district clerk); Tex. Const. art. V, § 15 (creating the position of the county clerk to serve as the clerk for the county courts); see also Hardy Oil Co. v. Markham State Bank, 131 S.W. 440, 441 (Tex. App.—San Antonio 1910, no writ) (holding that although the Texas Constitution permits a single clerk to perform the duties of both positions, “the duties and powers are just as much separated as though held by different persons”). Accordingly, unless authorized by law, the county clerk may not assume the duties of the district clerk.

23 indictment prior to trial, but the failure to do so before trial waives the challenge. See, e.g., King v.

State, 255 S.W.2d 879, 881 (Tex. Crim. App. 1953) (“In the absence of a plea to the jurisdiction of

the [transferee court], timely filed and presented, the question as to the transfer of the case was

waived.”); McNeal v. State, 346 S.W.2d 345, 346 (Tex. Crim. App. 1961) (holding that a plea to

the jurisdiction related to a transfer order “comes too late after notice of appeal”); see generally

Ex parte Rodgers, 598 S.W.3d 262, 268 (Tex. Crim. App. 2020) (“Because Applicant and his trial

counsel raised no objection to the indictment, they may not now challenge its efficacy to invoke

the jurisdiction of the district court.”). In sum, the point remains that defendants may contest the

county court’s jurisdiction prior to trial based on complaints of improper transfer of a case

following return of a grand jury indictment. Patterson did just that.

(4) Was dismissal the proper remedy?

This brings us to the final step of our analysis, which is to determine whether the trial

court’s decision to dismiss the indictment and case was the proper “remedy.” As a preliminary

matter, the State complains that the county court improperly shifted the burden to the State to

“remedy the situation as perceived by the trial court judge,” or in other words, to “fix” the problem

created by the improperly transferred indictments. And the State contends it was without

“authority” to “correct” any “mistake[s]” made by the district court. The county court, however,

was not requiring the State to correct any such “mistake[s].” Instead, at the May 13 hearing, it

merely noted that the State could either present it with evidence that a proper transfer had taken

place or re-indict the defendants (or charge them by information) and ensure the process was

properly followed with respect to any new charging instrument. The State did neither; instead, it

decided to stand firm on the indictment as filed and on the record before the county court.

24 The State still contends on appeal that if the county court believed it lacked jurisdiction

over Patterson’s case due to the improper transfer, the proper remedy was to re-transfer the cases

“back to . . . the court with the sitting grand jury” presumably to allow the district court or the

district clerk to address the problem. 15 In support of this argument, the State relies primarily on

Code of Criminal Procedure Article 21.30, which provides for a re-transfer of a case to a proper

court when it has been improvidently transferred to a court lacking jurisdiction. Tex. Code Crim.

Proc. Ann. art. 21.30. But as Patterson points out, this re-transfer provision only applies to

situations in which a “case” has been opened in a court and then improvidently transferred to the

wrong court, i.e., a court lacking subject-matter jurisdiction. We agree that Article 21.30 only

applies when a properly filed case is improvidently transferred to the wrong court, not when it was

not properly filed and transferred in the first instance. 16 See id.

In addition, the two cases upon which the State relies for the proposition that the county

court had the authority to re-transfer the indictment to the district court are not on point. As

Patterson notes, these cases involved situations in which the indictments were correctly filed in

the district court in the first instance but improperly tried in those courts because they lacked

subject-matter jurisdiction over misdemeanor-level offenses.

15 The State also argues in a separate section of its brief that “the trial court should have enquired of its Clerk in an attempt to determine whether a proper transfer had occurred . . . and should have[] instructed its clerk to remedy [any] deficiencies.” The State fails, however, to explain how the county court’s clerk would have authority to remedy any deficiencies in a grand jury’s presentment of an indictment to a district court, in a district court’s order transferring a case to the county court, or in a district clerk’s actions in transferring a case pursuant to a district court’s order. Moreover, the State provides no authority for this argument and has therefore waived it. See Tex. R. App. P. 38.1(i); Adams, 2012 WL 3025915, at *5. 16 For example, if the district court mistakenly transfers to the county court a case initially filed in the district court that sufficiently charges a felony offense, because the county court would lack jurisdiction over the case, it would be required to re-transfer the case to the district court—the court with subject-matter jurisdiction. See Pittman v. State, 310 S.W.2d 103, 104 (Tex. Crim. App. 1958); State v. Williams, 780 S.W.2d 891, 891–93 (Tex. App.—San Antonio 1989, no pet.).

25 Specifically, in Ex parte Jones, the Court of Criminal Appeals reversed a felony theft

conviction based on an indictment alleging a Class B misdemeanor in its primary count, but also

alleging the defendant had been convicted of a prior felony. 682 S.W.2d 311, 313 (Tex. Crim. App.

1984) (en banc). Because the allegation of one prior felony did not convert the misdemeanor charge

into a third-degree felony, nor did it properly enhance the charge to a felony-level offense, the

court held that the district court lacked subject-matter jurisdiction over the case. Id. (citing

Tex. Const., art. 5, § 8). As a result, the court set aside the felony conviction and the cause was

remanded to the district court for transfer to a county court with jurisdiction over the misdemeanor

offense alleged in the indictment. Id. The Court of Criminal Appeals reached the same conclusion

in Harris v. State, 565 S.W.2d 66, 68 (Tex. Crim. App. 1978) (en banc). There, indictments alleged

misdemeanor-level offenses prohibiting delivery of marihuana, but the defendant was convicted

on those offenses in a district court. Id. The court reversed the convictions and the causes were

remanded to the district court for transfer to a court having misdemeanor jurisdiction for trial. Id.

(citing Tex. Const. art. V, § 17; Tex. Code Crim. Proc. Ann. art. 21.26). Here, in contrast, we are

faced with a situation in which there is no evidence that Patterson’s case was properly filed in any

court. More particularly, there is no evidence that the county court had jurisdiction over Patterson’s

case, such that it had the authority to take any action other than to dismiss it.

It is fundamental that “a source of jurisdiction must be found to authorize” any action by

the trial court. State v. Patrick, 86 S.W.3d 592, 595 (Tex. Crim. App. 2002). “Without jurisdiction,

[a] trial court has no power to act.” Id. Here, the State has failed to identify a source of jurisdiction

or authority that would allow the trial court to transfer the indictment to the district court under

these circumstances, nor are we aware of any. We therefore conclude that this would not have been

a proper remedy. Stated otherwise, the “[j]urisdiction of a court must be legally invoked, and when

26 not legally invoked, the power of the court to act is as absent as if it did not exist.” Ex parte

Caldwell, 383 S.W.2d 587, 589 (Tex. Crim. App. 1964) (citing State v. Olsen, 360 S.W.2d 398,

400 (Tex. 1962)).

It is well-established that when a trial court lacks jurisdiction to hear a case, the proper

remedy is dismissal. See Garcia, 596 S.W.2d at 528 n.5, (recognizing that if no source of

jurisdiction exists, “the court is without jurisdiction [and] it has no authority to render any

judgment other than one of dismissal”). Thus, in a series of cases, courts have recognized that

when a defendant challenges a county court’s jurisdiction to hear a case prior to trial based on the

lack of a proper transfer order, the proper remedy is dismissal of the case for lack of jurisdiction.

See, e.g., Wilkins, 5 S.W.2d at 770 (“If there was [no proper transfer], the prosecution should be

dismissed.”); Dittforth, 80 S.W. at 628 (holding that the county court erred by not granting

defendant’s “motion in the nature of a plea to the jurisdiction of the court, or to dismiss the case,

on the ground that there was no sufficient transfer of the indictment from the district to the county

court”); Sommerlatte v. State, 39 S.W.2d 38, 39 (1931) (holding that the county court should have

granted the defendant’s motion to quash an indictment, which was made in the form of a plea to

the jurisdiction, where the evidence established that there was no valid transfer of the indictment

from the district court); Herenz v. State, 199 S.W. 618, 618–19 (Tex. Crim. App. 1917) (holding

that county should have granted defendant’s plea to the jurisdiction where there was no evidence

of a valid presentation to the district court or a valid transfer order); Lenzen, 16 S.W.2d at 234

(concluding that if defendant had brought a plea challenging the county court’s jurisdiction due to

the lack of a proper transfer order, the court would have been required to grant the plea due to the

lack of jurisdiction to hear the defendant’s case); Brumley v. State, 1881 WL 9628, at *1 (Tex. Ct.

App. 1881) (holding that where the record established that an indictment was “not properly and

27 legally transferred” to the county court, the trial court erred by denying defendant’s motion to

quash the indictment).

As the State did not come forward with evidence to establish that Patterson’s case was

properly filed with the district court and thereafter transferred from that court so as to give the

county court jurisdiction over her case, we conclude that the county court acted properly in

granting Patterson’s plea to the jurisdiction and dismissing her case.

The State’s sole issue on appeal is overruled.

VI. CONCLUSION

Having overruled the State’s sole issue on appeal, we affirm the trial court’s order

dismissing Patterson’s case.

PER CURIAM

August 27, 2025

Before Palafox, J., Soto, J., and Barajas, C.J. (Ret.) Barajas, C.J. (Ret.), (sitting by assignment)

(Publish)