Kelly v. State

• Citation: 724 S.W.2d 42
• Decision Date: 04 February 1987
• Docket Number: No. 439-85,439-85
• Parties: Patrick O'Neil KELLY, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 42

724 S.W.2d 42

Patrick O'Neil KELLY, Appellant, v. The STATE of Texas, Appellee.

No. 439-85.

Court of Criminal Appeals of Texas,

En Banc.

Feb. 4, 1987.

Lawrence B. Mitchell, on appeal only, Dallas, for appellant.

Henry Wade, Dist. Atty., Dennis E. Guffey, Rider Scott, Steve Miller & William Randell Johnson, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW AND

REVIEW ON COURT'S OWN MOTION

TEAGUE, Judge.

We granted the petition for discretionary review that was filed on behalf of Patrick O'Neil Kelly, hereinafter referred to as appellant, in order to review the decision by the court of appeals, Third Supreme Judicial District, which rejected the appellant's claim that Art. 1918c, V.A.C.S., the "Dallas County Magistrates' Act", was unconstitutional ¹ as it was enacted in contravention of Art. III, Section 56, of the State Constitution, which in general prohibits the enactment of any "local or special" law by the Legislature. See Kelly v. State, 686 S.W.2d 742 (Tex.App.-3rd 1985). Review was also granted on this Court's own motion, in the event that we found the statute constitutional, in order to determine whether the general referral order from the trial judge to the magistrate was valid.

We affirm, but for different reasons than given by the court of appeals.

The record reflects that on May 26, 1982, appellant appeared before Hon. Howard G. Wilson, a duly appointed magistrate of Dallas County who was then acting pursuant to a general order of referral from District Court Judge Ed Kinkeade, in and for the 194th Judicial District, in whose district court appellant's cause was then pending. Magistrate Wilson thereafter convicted appellant of committing the felony offense of burglary of a building and sentenced him to a term of four (4) years' confinement in the Department of Corrections, which Wilson ordered probated. Judge Kinkeade approved in all things Magisrate Wilson's actions. Thereafter, acting pursuant to the State's motion to revoke appellant's probation, Judge Kinkeade revoked appellant's probation. ²

On direct appeal, appellant asserted that Judge Kinkeade's order revoking his probation was void because his original conviction obtained before Magistrate Wilson was void as it was obtained pursuant to the provisions of Art. 1918c, supra, as it was then worded, which he claims is unconstitutional because it is a "special or local" law enacted in contravention of Art. III, Section 56, of the Texas Constitution; the prohibition against "special or local" laws provision of the Constitution. The Third Court of Appeals rejected that contention and also rejected appellant's other contention that the general order of referral was invalid. See Kelly v. State, 686 S.W.2d, supra.

In rejecting the appellant's contention that Art. 1918c, supra, is unconstitutional because it violates Art. III, Section 56, supra, the court of appeals held that the Legislature was empowered to enact Art. 1918c, supra, through the provisions of Art. V, Section 1 (paragraph three), which provides: "The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other courts thereto." In rejecting the appellant's other contention, that Judge Kinkeade's general order of referral was insufficient to bestow jurisdiction on Magistrate Wilson, the court of appeals held: "We hold that this order of referral of cases to the magistrate is sufficient to satisfy the requirment of [Art. 1918c, supra]."

Because of its reasons for holding that Art. 1918c supra, is constitutional, we find that the court of appeals has implicitly found that the District Court of Dallas County, acting in and for the 194th Judicial District, was created or established pursuant to Art. V, Sec. 1, supra. That district court, however, came into existence, not through the provisions of Art. V, Section 1, supra, but through the provisions of Art. V, Sec. 7, of the Constitution. Also see Art. 199a, V.A.C.S., the "Judicial Districts Act of 1969", which has been recodified at V.A.T.S., Government Code, Chapter 24.

History teaches us that Texas, since it was a Republic and after it became a State, has always been divided into judicial districts. Article IV, Section 2, of the Constitution of 1836 provided for not less than three nor more than eight judicial districts. Article IV, Section 6, of the Constitution of 1845 provided that "The State shall be divided into convenient judicial districts." Article IV, Section 6, was worded as was the 1845 Constitution, as was Article IV, Section 5, of the Constitution of 1866. Article V, Section 6, of the Constitution of 1869 contained a like provision. Article V, Section 7, of the present Constitution, which became effective on April 18, 1876, provided, inter alia, that "The State shall be divided into as many judicial districts as may now or hereafter be provided by law, which may be increased or diminished by law." Also see Article V, Section 14, of the Constitution, which provides that "The Judicial Districts in this State and the time of holding the Courts therein are fixed by ordinance forming part of this Constitution, until otherwise provided by law."

In Lytle et al. v. Halff et al, 75 Tex. 128, 12 S.W. 610 (1889), Chief Justice Stayton pointed out that Sections 7 and 14 of Article V "evidence the fact that it was intended the legislature, the only body empowered to make laws, should have power to increase or diminish the number of judicial districts, and to determine what territory should be embraced in a given district; and, in the absence of some limitation in these respects, nothing further appearing to illustrate the intention, the presumption would be that it was the intention to confer on the legislature the power to create a judicial district out of a territory, however small, if the business within it so required." (612). Thus, under the present Constitution, Art. V, Sec. 7, supra, the Legislature "is clothed with absolute authority to create, increase, or diminish judicial districts. Under this provision one county may be divided into parts or portions, and each part or portion thereof constitute a separate and distinct judicial district." Chambers v. Baldwin, 274 S.W. 1011, 1013 (Tex.Civ.App.-Texarkana 1925), reversed on other grounds, Chambers v. Baldwin, 282 S.W. 793 (Tex.1926).

And past Legislatures have so acted. Article 199, V.A.C.S., provided for 180 Judicial Districts in this State. Art. 199a, V.A.C.S., which was the "Judicial Districts Act of 1969," increased that number. One of the new districts created by that Act was the 194th Judicial District, over which Judge Kinkeade then and now presides. The statutory provisions have been recodified at V.A.C.S., Government Code, Chapter 24. Today, there are at least 360 Judicial Districts in this State, five criminal judicial districts in Dallas County, three criminal judicial districts in Tarrant County, and one criminal judicial district in Jefferson County. The above Judicial Districts are not necessarily limited to a particular county as several Judicial Districts, such as the 135th Judicial District, which covers Calhoun, DeWitt, Goliad, Jackson, Refugio, and Victoria Counties, are multiple county districts.

The importance of the fact that all of our present district courts are truly that, courts in and for a particular judicial district, cannot be emphasized enough. Although it is usually popular to refer to a particular district court as, for example, "The 177th Judicial District Court of Harris County," this is not entirely correct. The correct nomenclature in that instance would be, not as stated, but, instead, "The District Court in and for the 177th Judicial District sitting in Harris County," or wording to that effect.

Section 7 of the Constitution also provides in part: "For each district there shall be elected by the qualified voters thereof, at a General Election, a Judge ..."

Thus, as easily seen by the above, today a district court comes into existence when the Legislature creates a Judicial District after which the voters of that District elect a judge for that District Court. The qualifications, salary, where the court for that District shall be situated, and the term of office of the judge of that court are contained in Section 7. Section 8 provides what jurisdiction that court will have.

We find that the court of appeals in this cause erroneously held, albeit implicitly, that the 194th Judicial District Court was created or established by the Legislature through the provisions of Article V, Section 1, of the Constitution.

Pertinent to our discussion, Article V, Section 1, of the Constitution originally provided in part: "The judicial power of this State shall be vested in one Supreme Court, in Courts of Civil Appeals, in a Court of Criminal Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law ..." In 1891 the voters of this State amended Section 1 to add the following provision to that section: "The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto." It is this last provision on which the court of appeals relied to hold that "The Legislature is authorized by art. V, § 1 to create courts and organize those courts as they deem necessary." (743).

Early on, in interpreting the first paragraph of Section 1, see supra, our appellate courts have consistently held that the declaration or preamble in that section manifested the object of the framers of the Constitution, i.e., "It was certainly the object of the framers of the Constitution...