Faulder v. State

Decision Date02 July 1980
Docket NumberNo. 60554,60554
Citation612 S.W.2d 512
PartiesJoseph Stanley FAULDER, Appellant, v. The STATE of Texas, Appellee. Joseph Stanley FAULDER, Relator, v. Odis R. HILL, Criminal District Attorney, Gregg County, Respondent.
CourtTexas Court of Criminal Appeals
OPINION

ODOM, Judge.

Appellant Faulder was convicted of capital murder and received the death penalty. On appeal this Court reversed the conviction. The State, by and through Gregg County Criminal District Attorney Hill has filed a motion to stay the mandate of reversal in order that review may be sought in the United States Supreme Court pursuant to 28 U.S.C. Sec. 1257(3). Faulder has filed an application for writ of prohibition to prevent Hill from seeking such review.

The power of this Court to issue writs of prohibition is granted in Art. 5, Sec. 5, of the Texas Constitution:

"Subject to such regulations as may be prescribed by law, regarding criminal law matters, the Court of Criminal Appeals and the Judges thereof shall have the power to issue the writs of habeas corpus, mandamus, procedendo, prohibition, certiorari, and such other writs as may be necessary to protect its jurisdiction or enforce its judgments."

The function of a writ of prohibition was stated in State ex rel. Vance v. Clawson, 465 S.W.2d 164, 168 (Tex.Cr.App.):

"It has been said that 'a writ of prohibition is that process by which a superior court prevents inferior courts, tribunals, officers, or persons from usurping or exercising jurisdiction with which they have not been vested.' 73 C.J.S. Prohibition Sec. 1, p. 9."

If the State, through the office of its Criminal District Attorney of Gregg County, is preparing to seek review of this Court's decision in Faulder's case, and if such action is beyond the jurisdiction or power of that office, then a writ of prohibition would be available to prevent such an usurpation of authority.

Faulder argues the proposed action by Hill is outside the power of his office because of the prohibition of Article 5, Sec. 26, of the Texas Constitution, which provides:

"The State shall have no right of appeal in criminal cases."

Faulder also relies on the similar provision of the Code of Criminal Procedure, Art. 44.01, and on the plurality dictum and concurring opinion in White v. State, 543 S.W.2d 366 (Tex.Cr.App.).

Hill replies with the argument that by virtue of the supremacy clause of the United States Constitution, Article VI, the provision of the Texas Constitution relied on by Faulder must yield to 28 U.S.C. Sec. 1257(3), which provides:

"Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows:

"...

"(3) By writ of certiorari, ... where any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties or statutes of, or commission held or authority exercised under, the United States."

We reject at the outset the notion that the supremacy clause and Sec. 1257(3) play a significant role in the analysis of whether a writ of prohibition should issue. The federal statute relied on by Hill is concerned with the jurisdiction of the Supreme Court to hear a case, i. e., with the power of that Court. We do not, nor could we, propose to rule on what cases that Court may or may not hear. The issue raised by Faulder, in contrast, is not one of the power of the Supreme Court, but of the power of the Criminal District Attorney of Gregg County.

Before jurisdiction may be exercised, it must be legally invoked. State v. Olsen, 360 S.W.2d 398, 400 (Tex.). Faulder challenges the capacity of the Criminal District Attorney, as a state officer, to invoke the jurisdiction of any court to review a criminal case. The powers of that office, argues Faulder, are restricted by the provision of the Texas Constitution which declares "The State shall have no right of appeal in criminal cases."

A simple example should illustrate the distinction between questions of the power of the Supreme Court to hear a case and the power of the State prosecutor to request that Court to exercise jurisdiction. It is well established that a party to a law suit, including a defendant in a criminal case, may waive the right of appeal, as well as many other rights and protections. If the party waives that right, then his attorney is without authority to pursue the appeal even though courts exist with jurisdiction to hear an appeal in the case, if brought before it. Denial to the attorney by the client of the power to seek review is wholly distinct and independent of the power of the reviewing court to hear the case. See generally Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976). If Art. 5, Sec. 26, supra, were construed as an instruction to the attorneys representing the State in criminal cases, from their client, the people of Texas, that the purpose for which they are retained does not include seeking an appeal, i. e., as an instruction that they shall not appeal in criminal cases, the parallel to our example of waiver would be complete. The parallel, however, is drawn here merely for purposes of illustrating the distinction between the issue of the jurisdiction of the Supreme Court, and the issue of the authority of the prosecuting attorney under State law. Having sharpened that distinction, we reiterate that the former issue is not in this case, and move on to the latter.

Faulder's argument, simply stated, is that this is a criminal case, action by respondent seeking review of his case by the Supreme Court would constitute an appeal, and the express prohibitions of Art. 5, Sec. 26, supra, and Art. 44.01, V.A.C.C.P., would be violated by such action on the part of respondent Hill. The plurality dictum expressed in White v. State, supra, correctly concluded, and respondent does not dispute, that a case such as this one is a criminal case, and that review of the case, whether denominated an appeal, a writ of error, a writ of certiorari, or any other name, is still an appeal. Beyond this part with which we agree, the plurality in White concluded "that a petition for certiorari in the Supreme Court in a case such as (this) one before us is an appeal of a criminal case," and therefore prohibited by Art. 5, Sec. 26, supra. Today we reach a different conclusion, based on the scope of the prohibition of Section 26, as considered in light of the constitutional context of that prohibition.

Article 5 of the Texas Constitution is entitled "Judicial Department." It establishes the structure, powers, and responsibilities of the judicial branch of the State of Texas. As such, it is addressed to the derivation, characteristics, and internal relations of that system, and does not speak to the relation of that system or a part of that system to entities beyond, such as the federal judiciary. In this context, we construe the outer limits of the prohibition of Section 26 to be a restriction on the permissible operations within the Texas judicial system. This holding on the outer limits of the scope of Sec. 26 is sufficient to support our conclusion that no violation of that provision would occur by respondent filing application for writ of certiorari in the Supreme Court to review our decision in appellant-relator's case. Consequently, in deciding this case it is unnecessary to make further examination of Sec. 26 with respect to the exact scope of its restriction within the Texas judicial system.

For these reasons, we hold Art. 5, Sec. 26, of the Texas Constitution does not prohibit respondent from seeking review of our decision in this case by application for writ of certiorari in the Supreme Court of the United States. The application for writ of prohibition is denied.

It is the practice of this Court to issue a stay of mandate for thirty days when review of a decision of this Court is sought by an unsuccessful appellant in a death penalty case. We similarly issue such a stay in this case. The motion to stay the mandate is granted for thirty days.

It is so ordered.

DOUGLAS, Judge, concurring.

I concur for the reasons in the dissent to the plurality opinion in White v. State, 543 S.W.2d 366, 370 (Tex.Cr.App.1976), on remand from the Supreme Court of the United States.

The question is answered in 1914 in Harrison v. St. Louis & S. F. R. Co., 232 U.S. 318, 34 S.Ct. 333, 58 L.Ed. 621.

The St. Louis and San Francisco Railroad Company was a corporation chartered under the laws of Missouri. It operated in interstate commerce and had hundreds of miles of railroads in Oklahoma. In 1980 the company was sued by a resident of Oklahoma in a state court. On the ground of diversity of citizenship the railroad company filed to remove the case to a federal court. The acting Secretary of State for Oklahoma under a state statute declared the license of the railroad company forfeited because it had filed to remove the case to federal court. The Supreme Court wrote:

"It may not be doubted that the judicial power of the United States as created by the Constitution and provided for by Congress pursuant to its constitutional authority is a power wholly independent of state action, and which therefore the several states may not by any exertion of authority in any form, directly or indirectly, destroy, abridge, limit, or render inefficacious. The doctrine is so elementary as to require no citation of authority to sustain it. Indeed, it stands out so plainly as one of the essential and fundamental conceptions upon which our constitutional system rests, and the lines which define it are so broad and so obvious, that, unlike some of the other powers delegated by the Constitution, where the lines of distinction are less clearly defined, the...

To continue reading

Request your trial
23 cases
  • Faulder v. State
    • United States
    • Texas Court of Criminal Appeals
    • September 30, 1987
    ...an application for writ of prohibition to prevent the State from seeking such review. A majority of this Court held in Faulder v. Hill, 612 S.W.2d 512 (Tex.Cr.App.1981), that "Art. 5, Sec. 26, of the Texas Constitution does not prohibit [the State] from seeking review of our decision in thi......
  • Hankins v. State
    • United States
    • Texas Court of Criminal Appeals
    • November 18, 1981
    ...in light of Ex parte McWilliams, 634 S.W.2d 815 (Tex.Cr.App.1982) (Opinion on State's Motion for Rehearing), and Faulder v. Hill, 612 S.W.2d 512 (Tex.Cr.App.1981). For the reasons stated, I vigorously CLINTON, Judge, dissenting. More than one hundred years ago judges of the former court of ......
  • Brown v. State
    • United States
    • Texas Court of Criminal Appeals
    • September 14, 1983
    ...of Hankins v. State, 646 S.W.2d 191 (Tex.Cr.App.1981); Ex parte Mc Williams, 634 S.W.2d 815 (Tex.Cr.App.1982); Faulder v. Hill, 612 S.W.2d 512 (Tex.Cr.App.1981), at the present time the criminal law of this State, subject to Federal review and intervention, is determined by the predilection......
  • Saldano v. State
    • United States
    • Texas Court of Criminal Appeals
    • March 13, 2002
    ...9. 33. See TEX. CONST. art. V, § 26 (amended 1987) ("The State shall have no right of appeal in criminal cases"). 34. Faulder v. Hill, 612 S.W.2d 512 (Tex.Cr. App.1980). 35. See Texas v. Parrish, 510 U.S. 801, 114 S.Ct. 41, 126 L.Ed.2d 11 (1993) (District Attorney of Harris County); Texas v......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT