Kelley v. State

• Decision Date: 03 July 1984
• Docket Number: No. 1065-83,1065-83
• Citation: 676 S.W.2d 104
• Parties: Carolyn Kate KELLEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 104

676 S.W.2d 104

Carolyn Kate KELLEY, Appellant, v. The STATE of Texas, Appellee.

No. 1065-83.

Court of Criminal Appeals of Texas,

En Banc.

July 3, 1984.

Lawrence B. Mitchell, Richard J. Corbitt, Dallas, for appellant.

Henry Wade, Dist. Atty., Anne B. Wetherholt and R.K. Weaver, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

We granted the State's petition for discretionary review in order to consider whether the Dallas Court of Appeals was correct in holding Art. 1918c, V.A.C.S. (Supp.1983), ¹ entitled "Magistrates in district courts in Dallas County," was unconstitutionally applied under the facts of the instant case. Kelley v. State, 669 S.W.2d 329 (Tex.App.--Dallas, 1983).

Because the record does not include a transcription of any court reporter's notes, we must rely solely on the documents included in the transcript for information regarding the transactions in the instant case. The record reflects appellant was initially indicted for the third degree felony offense of theft of property. The Criminal District Court then transferred the cause to the "Magistrate's Court" for further proceedings under a general order entered by the Criminal District Court of Dallas County pursuant to Art. 1918c. Thereafter, various form motions and waivers were (1) A standard plea bargain agreement with notations indicating that the defendant would plead guilty and would testify, that the conviction would be for a misdemeanor and the punishment would be confinement in the Dallas County Jail for 180 days with weekend service; nothing was noted on the form regarding probation. The form was signed by the appellant, her counsel, and the assistant district attorney.

executed and filed on the same date. These motions included:

(2) Another standard form within which the assistant district attorney requested that the court reduce the offense to the lesser and included Class A Misdemeanor theft offense; the magistrate granted the motion by affixing his signature in the blank beside the signature of the prosecutor. The second half of the document stated the following:

"Comes now the Defendant in the above cause, and would show that he now stands charged in the above cause with a Misdemeanor Offense, states that he will enter his plea of GUILTY to said charge at the proper time in open Court, and with his attorney being present, and hereby waives his right to trial by jury and asks the court to proceed to trial herein without a jury and to consent to Defendant's waiver of trial by jury.

"Defendant further prays that the Court accept his plea of GUILTY and proceed to enter Judgment herein as provided by law, and Defendant requests that the Court place him on probation in this cause. ²

"[signatures of appellant and her attorney]

"The foregoing Waiver of trial by jury, made by the Defendant in open court and in the presence of his Attorney, is consented to and approved by the Court. The application of Defendant for probation is hereby (Granted) (Denied).

"[signature of magistrate]"

(3) A preprinted "Probation Order" which is signed by the magistrate and which this time denies the motion for probation (see (2) above).

(4) A judicial confession executed by appellant, and approved by the magistrate.

(5) Another waiver of appellant's right to a jury trial (see (2) above), which is signed by all, including the magistrate.

(6) An order by the magistrate permitting appellant to serve the jail confinement on consecutive weekends as per her request.

(7) A docket sheet which included an entry on the date of the trial signed by the magistrate. The entry consisted of numerous alternate findings which apparently had been stamped on prior to the guilty plea and which were modified by handwritten notes. The entry notes all of the pertinent occurrences at the guilty plea, including waivers and the punishment assessed. The entry also notes that the application for probation was denied; several other form sentences which referenced either probation or a fine were left blank.

(8) A judgment signed by the district judge which appears to be a standard, "fill-in-the-blank" form for criminal guilty pleas in Dallas County. No reference is made to the magistrate's role in the taking of this plea. The judgment, however, does properly recite that the offense was reduced to a Class A misdemeanor; that the appellant waived "his" right of trial by jury, pled guilty, and stipulated to the introduction of evidence; and that the court approved of the above, found the appellant guilty, and assessed punishment at 180 days confinement in the Dallas County Jail, to be served on consecutive weekends. The judgment failed, however, to mention the application for probation or the order denying the same. As the Court of Appeals stated, "There is no indication in the judgment that the district court judge ever considered the matter of probation."

The district court judge gave appellant permission to appeal pursuant to Art. 44.02, V.A.C.C.P. On appeal, appellant's sole ground of error asserted that Art.

1918c, was, as a whole, unconstitutional in that it was an attempt by the Legislature to delegate its constitutional authority for the creation of courts to the judiciary of Dallas County in violation of Tex. Const. art. 5, sec. 1. The Court of Appeals found that, contrary to the appellant's claim, Art. 1918c did not create "courts" with independent jurisdiction, but simply authorized a procedure whereby magistrates, acting as surrogates and not judges, are appointed to assist the district court judges in certain limited matters. ³

We agree with the Court of Appeals on this issue.

"Judicial power" as envisioned by the Constitution embraces "(1) The power to hear facts, (2) the power to decide the issues of fact made by the pleadings, (3) the power to decide the questions of law involved, (4) the power to enter a judgment on the facts found in accordance with the law as determined by the court, (5) and the power to execute the judgment or sentence." Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, 645 (1933); quoted with approval in State Farm Mutual Automobile Ins. Co. v. Worley, 346 S.W.2d 407, 409 (Tex.Civ.App.--El Paso 1961).

Art. 1918c specifically limits the powers of the magistrates, and prohibits the magistrates from performing those ultimate judicial functions, i.e., presiding over a trial on the merits or ruling on any issue of law or fact of which the determination thereon could result in dismissal or require the dismissal of the case. ⁴ Moreover, Art. 1918c, Sec. 7, specifically provides:

"(a) On the conclusion of the proceedings, the magistrate shall transmit to the referring court all papers relating to the cases involved, together with the findings, conclusions, orders, recommendations, or other actions taken.

"(b) The referring court may modify, correct, reject, or reverse any action taken by the magistrate, or recommit it for further information, as the court may deem proper and necessary in the particular circumstances of the case."

No act of the magistrate is legally binding unless and until the magistrate's actions are adopted by the referring court. They have no power of their own and are unable to enforce any ruling. Accordingly, it is apparent from the face of the statute that the magistrates act only as the agents of the district court, with proper supervision by the district court. We fail to see how the article on its face is unconstitutional as alleged by the appellant. The Court of Appeals was correct in so holding.

The Court of Appeals went one step further than the appellant requested in his brief, however, and found that the statute was unconstitutionally applied to the appellant in the instant case. The court first noted that Art. 42.13, Sec. 3, V.A.C.C.P., provides in pertinent part that:

"The judges of the courts of the State of Texas having original jurisdiction of criminal actions, when it shall appear to the satisfaction of the court that the ends of justice and the best interests of the public as well as the defendant will be subserved thereby ... may place the defendant on probation...."

The court then concluded:

"that when the Constitution of the State of Texas created district courts and vested jurisdiction of the present case in one of those courts, that Constitution requires that the person occupying the office of judge of that court--and not a surrogate appointed by that judge--make the judicial decisions concerning 'the ends of justice,' and 'the best interests of the public' and 'the best interests ... of the defendant' required by Article 42.13 [Sec.] 3. Accordingly, we hold that under the Constitution of the State of Texas only the judge of the Criminal District Court of Dallas County held the 1 "We are not unmindful of section 7(c) of article 1918(c) which provides for automatic approval of action taken by magistrates where, upon retransmittal to it, the referring court makes no 'modification, correction, rejection, reversal, or recommittal.' Resort to this provision, however, does not validate for constitutional purposes, a magistrate's ruling on a matter which the record fails to disclose was ever presented to a district judge for a final decision."

judicial power of the State of Texas to make a final decision on whether appellant should be placed on probation pursuant to Article 42.13 [Sec.] 3 and that this judicial power cannot be delegated to a surrogate. By virtue of an impermissible application of Article 1918c appellant has been denied probation solely by a person not then holding the judicial power of the State of Texas to deny probation.¹ Thus we conclude that the 'tribunal' which conducted the hearing on appellant's application for probation and denied with finality that motion was one not constitutionally authorized to so act." Kelley, 669 S.W.2d at...