Ex parte Norton
| Decision Date | 13 May 1998 |
| Docket Number | No. 205-96,205-96 |
| Citation | 969 S.W.2d 3 |
| Parties | Ex parte Carl Daniel NORTON. |
| Court | Texas Court of Criminal Appeals |
Stanley G. McGee, Angleton, for Appellant.
Jerome Aldrich, District Attorney, David Bosserman, Assistant District Attorney, Angleton, Matthew Paul, State's Attorney, Austin, for State.
Before the court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
Applicant filed an application for writ of habeas corpus alleging that he was entitled to discharge pursuant to Tex.Code Crim. Proc. Ann. art. 32.01 because he was indicted outside "the next term of court" as set out in art. 32.01. The trial judge denied relief and applicant appealed. The court of appeals reversed the trial court's denial of habeas relief. Norton v. State, 918 S.W.2d 25 (Tex.App.--Hous. [14th Dist.] 1996). We granted review to determine the correctness of that decision.
However, after carefully considering the two question for review and the briefs before us, we find that our decision to grant the State's petition for discretionary review was improvident. Accordingly, the petition for discretionary review is dismissed.
I dissent to dismissing the State's petition for discretionary review as improvidently granted. The issue presented before this Court is whether former Article 32.01 of the Code of Criminal Procedure, prior to its 1997 amendment, is unconstitutional.
A majority of this Court apparently believes this issue is no longer worth reviewing in light of the 1997 legislative amendments to Article 32.01 and Article 28.061 of the Texas Code of Criminal Procedure. 1 I disagree. If former Article 32.01 violates the separation of powers provision of Article II, Section 1 of the Texas Constitution, then current Article 32.01 suffers the same constitutional defect. It makes no difference whether the indictment is dismissed "with prejudice" under one provision or "without prejudice" under the other provision. And, I have some serious reservations about whether former and current Article 32.01 passes constitutional muster pursuant to this Court's decision in Meshell v. State, 739 S.W.2d 246 (Tex.Cr.App.1987). I would address the merits of the issue presented in this case.
A little history is in order. The State filed its petition for discretionary review in this case on February 5, 1996--well over two years ago. The case was held here for over fifteen months, until nine days after art. 28.061 of the Code of Criminal Procedure was amended. If the delay was occasioned by the intent to prevent the granting of the petition, the strategy did not succeed at that time--the petition was granted--but persistence seems to pay off. Today, a majority of the Court decides to dismiss the petition as improvidently granted. It is not appropriate to do so.
Prior to the statutory amendment, the dismissal of an indictment pursuant to art. 32.01 was with prejudice pursuant to art. 28.061. As of May 26, 1997, art. 28.061 is inapplicable to art. 32.01, so that the dismissal of an indictment under art. 32.01 is now without prejudice. Thus, it might seem that the Court would be wasting judicial resources by addressing a claim that will no longer arise. But prior art. 28.061 was in effect for ten years. A conviction obtained at any time during that ten years is, arguably, subject to challenge if the indictment was not timely presented under art. 32.01.
And, in fact, a number of cases with issues concerning the interplay of the two statutes are currently before the Court and continue to be presented in petitions. In State v. Condran, 951 S.W.2d 178 (Tex.App.--Dallas 1997, pet. granted ), for instance, the Dallas Court of Appeals held that former art. 28.061 is unconstitutional, and further held that appellee's complaint was moot because he did not obtain a ruling on his 32.01 claim until after the grand jury returned a second indictment. One of the issues raised in Condran (the mootness issue) is the exact issue raised (and granted) in ground one of the State's petition in this case. And while in Condran the constitutionality of a statute which is no longer in effect is challenged, in this case the constitutionality of a current statute--art. 32.01--is...
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