Ex parte Giles

• Decision Date: 05 December 1973
• Docket Number: No. 47859,47859
• Citation: 502 S.W.2d 774
• Parties: Ex parte Cooper E. GILES.
• Court: Texas Court of Criminal Appeals

Page 774

502 S.W.2d 774

Ex parte Cooper E. GILES.

No. 47859.

Court of Criminal Appeals of Texas.

Dec. 5, 1973.

Rehearing Denied Jan. 9, 1974.

Donald W. Rogers, Jr. and Gerald R. Goynes, Houston, for appellant.

Carol S. Vance, Dist. Atty., and James C. Brough, Asst. Dist. Atty, Houston, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

These proceedings present the question of the constitutionality of Section 6.01(c) of the Texas Controlled Substances Act, Vernon's Ann.Civ.St. art. 4476--15 (Acts 1973, 63rd Leg., Ch. 429, p. 1132--effective August 27, 1973), which has been codified as Article 725f, Vernon's Ann.P.C.

The relator was convicted in the 178th District Court of Harris County on October 18, 1972, of the felony offense of possession of marihuana (on the 15th day of August, 1971) in Cause No. 168,817.

The trial upon relator's plea of guilty was before a jury, which assessed his punishment at thirty (30) years. On December 19, 1972, sentence was imposed and notice of appeal was given.

The appellate record has not been filed in this court, and on October 10, 1973, the relator filed a written motion in the trial court electing to be sentenced under the provisions of Section 6.01(c) of the Texas Controlled Substances Act, which reads as follows:

'In a criminal action pending, on appeal, or commenced on or after the effective date of this Act, for an offense committed before the effective date, the defendant, if adjudged guilty, Shall be assessed punishment under this Act if he so elects by written motion filed with the trial court requesting that the court sentence him under the provisions of this Act.' ¹ (emphasis supplied)

The trial court refused such motion and relator now seeks a writ of mandamus to compel the Honorable Dan Walton, Judge of the 178th District Court to sentence him in accordance with the provisions of the aforementioned statute.

Respondent urges that Section 6.01(c) of Article 725f, supra, is unconstitutional insofar as it infringes upon the power of the Governor to grant pardons and commutations pursuant to Article IV, Sec. 11 of the State Constitution, Vernon's Ann.St., that the procedure of sentencing is not covered in caption of the bill which enacted the Texas Controlled Substances Act in violation of Article III, Sec. 35 of the Texas Constitution, and that the said Section 6.01(c) infringes upon the constitutional right to trial by jury.

JURISDICTION

At the outset we must determine if this court has jurisdiction of these proceedings.

Article V, Sec. 5 of our State Constitution provides in part:

'The Court of Criminal Appeals shall have appellate jurisdiction coextensive with the limits of the State in all criminal cases of whatever grade, with such exceptions and under such regulations as may be prescribed by law.

'The Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus, and under such regulations As may be prescribed by law, issue Such writs as may be necessary to enforce its own jurisdiction. . . .' (emphasis supplied)

Article 4.03, Vernon's Ann.C.C.P., also provides that this court shall have appellate jurisdiction coextensive with the limits of the State in all criminal cases, and Article 4.04, Vernon's Ann.C.C.P., provides that the 'court and each member thereof shall have, and is hereby given, power and authority to grant and issue and cause the issuance of writs of mandamus and certiorari agreeable to the principles of law regarding said writs, whenever in the judgment of said court or any member thereof the same should be necessary to enforce the jurisdiction of said court.'

Thus, this court may issue writs of mandamus to enforce the court's appellate jurisdiction or its original jurisdiction to issue writs of habeas corpus, but this is a limited use of such writ, for the Court of Criminal Appeals has no general power to issue writs of mandamus. Millikin v. Jeffrey 117 Tex. 134, 299 S.W. 393 (1927); Ex parte Boehme v. State, 158 Tex.Cr.R. 597, 259 S.W.2d 201, 203 (1953); Ex parte Rubison, 170 Tex.Cr.R. 314, 340 S.W.2d 815 (1960); Eaves v. Landis, 96 Tex.Cr.R. 555, 258 S.W. 1056 (1924); Hogan v. Turland, 430 S.W.2d 720 (Austin Court of Civil Appeals--1968); Bradley v. Miller, 458 S.W.2d 673 (Tex.Cr.App.1970).

Is our appellate jurisdiction here involved so as to afford us the authority to issue the writ of mandamus?

We cannot conclude that it is. The appellate record has not yet been received by this court, and the trial court still retains jurisdiction of the cause. See Articles 40.09, 44.11, Vernon's Ann.C.C.P.; Rangel v. State, 408 S.W.2d 231 (Tex.Cr.App.1966); Brill v. State, 408 S.W.2d 232 (Tex.Cr.App.1966); Tucker v. State, 416 S.W.2d 437 (Tex.Cr.App.1967). Cf. Phillips v. State, 429 S.W.2d 897 (Tex.Cr.App.1968); Carrillo v. State, 480 S.W.2d 612 (S.Ct.1972).

It is clear that the refusal of the trial court to act under the provisions of Section 6.01(c) of the Texas Controlled Substances Act does not infringe upon our appellate jurisdiction so as to authorize this court to consider the issuance of a writ of mandamus.

Nevertheless, in light of the relator's allegations, supported by the record, that he would be entitled to immediate relief if the trial court acceded to his request to sentence him under the penalty provisions of the Texas Controlled Substances Act, his possession of marihuana being shown to be four grams, ² we shall consider the pleadings as an application for writ of habeas corpus. Cf. Vance v. Clawson, 465 S.W.2d 164 (Tex.Cr.App.1971) cert. den., Pruett v. Texas, 404 U.S. 910, 92 S.Ct. 226, 30 L.Ed.2d 182, rehearing den., 404 U.S. 996, 92 S.Ct. 529, 30 L.Ed.2d 548 (wherein the application for writ of prohibition was treated as an application for writ of mandamus).

We now undertake consideration of respondent's contention that the provisions of said Article 6.01(c) would infringe on the Governor's constitutionally granted powers of clemency.

CONSTITUTIONAL AUTHORITY TO GRANT CLEMENCY

Article IV, Sec. 11, Vernon's Ann.St.Const., grants to the Governor the power, 'after conviction,' and upon the recommendation of the Board of Pardons and Paroles to grant reprieves and commutations of punishments and pardons. He is also given the power to remit fines and forfeitures. ³

Recently in Smith v. Blackwell, 500 S.W.2d 97 (Tex.Cr.App.1973), this court had occasion to briefly discuss the history of such constitutional provision, and it need not be repeated here.

It is observed that the people of a state are at liberty to lodge this power in any branch of government they may so desire. Ex parte Miers, 124 Tex.Cr.R. 592, 64 S.W.2d 778, 780 (1933). In Texas the power has long been lodged in the Executive.

Our State Constitution also provides in Article II, Sec. 1 thereof that the power of government shall be divided in three distinct departments, Executive, Legislative and Judicial, and further provides '. . .; And no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted. (emphasis supplied)

This clearly words Article has been interpreted to mean that a power which has been granted to one department of government may be exercised only by that branch to the exclusion of the others. Snodgrass v. State, 67 Tex.Cr.R. 615, 150 S.W. 162 (1912). And any attempt by one department of government to inferfere with the powers of another is null and void. Ex parte Rice, 72 Tex.Cr.R. 587, 162 S.W. 891 (1914). This is a well established maxim of constitutional law.

If there has been any remission by the people of the Governor's power of clemency after conviction in criminal cases, it is to be found in Article IV, Sec. 11A of our State Constitution, which reads:

'The Courts of the State of Texas having original jurisdiction of criminal actions shall have the power, After conviction, to suspend the imposition or execution of sentence and to place the defendant upon probation and to reimpose such sentence, under such conditions as the Legislatue may prescribe.' (emphasis supplied)

SECTION 6.01

, TEXAS CONTROLLED SUBSTANCES ACT

Section 6.01(a) of the Texas Controlled Substances Act provides that '(E)xcept as provided in Subsections (b) and (c) of this section,' the Act applies only to offenses committed on or after the effective date of the Act, and that offenses committed before the effective date shall be governed by the law existing before such date, 'which law is continued in effect for this purpose, as if this Act were not in force.' ⁴

Said Subsections (b) and (c) provide as follows:

'(b) Conduct constituting an offense under existing law that is no longer an offense under this Act may not be prosecuted after the effective date of this Act. If, on the effective date of this Act, a criminal action is pending for conduct that does not constitute an offense under this Act, the action is dismissed on the effective date of this Act. However, a final conviction existing on the effective date of this Act, for conduct constituting an offense under existing law, is valid and unaffected by this Act.

'(c) In a criminal action pending, on appeal, or commenced on or after the effective date of this Act, for an offense committed before the effective date, the defendant, if adjudged guilty, shall be assessed punishment under this Act if he so elects by written motion filed with the trial court requesting that the court sentence him under the provisions of this Act.'

The provisions of Subsection (a), above, are generally in accord with the provisions of the present Articles 15, 16 and 17, Vernon's Ann.P.C. ⁵

Said Subsection (b) generally is in accord with Article 14, Vernon's Ann.P.C., ⁶ and with certain exceptions hereinafter noted, Subsection (c) generally relates to Article 13, Vernon's Ann.P.C. ⁷

It...