Pope v. Ferguson

• Decision Date: 01 October 1969
• Docket Number: Nos. B--1758,AKA--OC--60,AKA-OC-60,s. B--1758
• Parties: Lawrence C. POPE, Relator, v. Clarence FERGUSON, District Judge, et al., Respondents.
• Court: Texas Supreme Court

Page 950

445 S.W.2d 950

Lawrence C. POPE, Relator, v. Clarence FERGUSON, District Judge, et al., Respondents.

Nos. B--1758, AKA-OC-60.

AKA--OC--60

Supreme Court of Texas.

Oct. 1, 1969.

Byrd, Davis, Eisenberg & Clark, Don L. Davis, Austin, for relator.

Crawford Martin, Atty. Gen., Gilbert Pena, Asst. Atty. Gen., Austin, Holloway Martin, County Atty., Groesbeck, for respondents.

ORIGINAL MANDAMUS

CALVERT, Chief Justice.

In this direct proceeding in this court, relator, Lawrence C. Pope, seeks a writ of mandamus directing Honorable Clarence Ferguson, Judge of the District Court, 77th Judicial District, Limestone County, to dismiss from the court's criminal docket cause No. 4742--A in which relator is charged by indictment with armed robbery of the First State Bank of Thornton, Texas. The writ is sought on the ground that relator has been denied his constitutional right of speedy trial as guaranteed to him by the Sixth and Fourteenth Amendments to the Constitution of the United States and by Article I, § 10, Constitution of Texas, Vernon's Ann.St. We hold that this court does not have jurisdiction to grant the relief sought, and, accordingly, we deny the prayer for a writ of mandamus.

Relator's petition is a by-product of the decision of the Supreme Court of the United States in Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), in which that court disapproved our holdings in Cooper v. State, 400 S.W.2d 890 (Tex.Sup.1966), and Lawrence v. State, 412 S.W.2d 40 (Tex.Sup.1967), that Texas courts owed no duty to a federal prisoner to seek his return to this State for trial on a pending state criminal charge. Having disapproved our holdings in Cooper and Lawrence, and in spite of the suggestions of concurring Justices Black and Harlan, the Court declined to go further and decide the ultimate question presented by Smith's petition, i.e., whether, because of the long delay in giving him a trial, Smith was entitled to have this court issue a writ of mandamus to District Judge Hooey directing dismissal of the criminal case pending against him. Instead, the Court remanded the cause to this court for further proceedings not inconsistent with its opinion. What course of proceedings would have been consistent with the court's opinion was left unclear, as is indicated by the three separate opinions of the three concurring Justices. Fortunately, Smith saved us the embarrassment of trying to guess what was in the Court's mind, and of possibly misguessing our way into error by pleading guilty to the state criminal charge and thus rendering moot the mandamus proceeding in this court.

It may be just as well that the Supreme Court of the United States did not give this court specific instructions in Smith v. Hooey because there is no indication in the briefs presented to the Court in that case, or in the several opinions filed in the case, the jurisdiction of this court to order a dismissal was a matter of concern. It seems to us that the primary question in any such case is this: Does the Supreme Court of Texas have jurisdiction to issue a writ of mandamus directing a district court to dismiss a criminal case on the ground that the defendant has been denied a speedy trial? We think a negative answer to the question is compelled by state constitutional and statutory provisions, and, as indicated, that the negative answer is decisive of this case.

The facts of this case are, in some respects, almost a carbon copy of the facts in Smith v. Hooey, supra. ¹ Relator was convicted on March 22, 1961, in a United States district court, on a bank robbery charge which had been filed on November 17, 1960. He was sentenced by the federal court to 25 years in the custody of the Attorney General of the United States. An indictment for armed robbery of the same bank was returned into the state district court by a Limestone County grand jury on November 30, 1960, and was numbered 4742--A on the court's docket. It is that case which relator seeks to have dismissed. An indictment of relator for armed robbery of another bank was returned into another state district court on January 4, 1961, on which charge he was tried and convicted and sentenced to 50 years imprisonment, the sentence to run concurrently with the federal sentence. Relator was incarcerated in the United States Penitentiary at Leavenworth, Kansas, on October 18, 1961, and at all times since has been, and still is, a federal prisoner. A 'detainer' was filed against him by the County Attorney of Limestone County in late August or early September, 1962.

Beginning in March, 1962, relator made several efforts to obtain a copy of the Limestone County indictment and finally obtained a copy in September of that year. In July, 1966, he filed a motion in the state district court entitled 'Motion to Quash Indictment and Remove Detainer Warrant.' One of the grounds of the motion is that he had been denied his constitutional right of speedy trial. The motion was overruled by the trial judge 'until such time as petitioner's case is set for trial on its merits.' In December, 1966, he filed a motion in the trial court for 'Speedy Trial or Alternatively, Motion to Dismiss Indictment.' On the same date he filed a petition for writ of Habeas corpus ad prosequendum. The petition for writ of habeas corpus was denied by the trial judge on February 14, 1967.

On February 28, 1967, relator filed a petition in the Supreme Court of Texas by which he sought the issuance of a writ of mandamus to the district judge of the 77th District Court directing that relator be granted a speedy trial in Cause No. 4742--A or that the case be dismissed. The motion was overruled by this court on March 8, 1967, on the strength of our decisions in Cooper and Lawrence, supra. No further proceedings were instituted until after the Supreme Court of the United States decided Smith v. Hooey, supra, on January 20, 1969.

On May 21, 1969, relator filed in this court a petition which is the basis of the present proceeding. By his petition he asks only that the trial judge be directed to dismiss the criminal charge pending against him. Advised by the court's Administrative Assistant that the court was not disposed to issue a writ of mandamus to require the dismissal of charges, but that, if he wished, his petition would be treated as one seeking a speedy trial, relator replied that he 'declined to ask Again ² for a speedy trial.' Thereupon, we set the question presented by the petition down for hearing and decision and appointed counsel to represent relator.

This court was created by the Constitution of the State of Texas and has only such jurisdiction as is conferred upon it by the Constitution and statutes of the State. The court has no 'inherent power', Ex parte Hughes, 133 Tex. 505, 129 S.W.2d 270, 273 (1939); and not even the Supreme Court of the United States can confer upon it a power or jurisdiction beyond the limitations imposed by the source of its existence. This is not a lately developed philosophy, born of a desire to escape responsibility in a troublesome area of the law. It was always been the rule of decision in this State. It was so declared in Messner v. Giddings, 65 Tex. 301, 309 (1886), in this language: 'There is no such thing as inherent power of a court, if, by that, be meant a power which a court may exercise without a law authorizing it.' The same thought was put in even stronger language in Austin & N.W.R. Co. v. Cluck, 97 Tex. 172, 77 S.W. 403, 405, 64 L.R.A. 494 (1903), as follows:

Whatever may be the powers of courts of other states, there can be no doubt that the courts of Texas must look to the Constitution of this state, the enactments of the Legislature, and the common law for their authority to proceed as requested in this case (to require an injured plaintiff to submit to a physical examination); and if the authority did not exist at common law, and has not been conferred by the Constitution nor by the statutes of this state, then no court in Texas has the power to force any citizen to submit to a physical examination under such circumstances.'

See also, Hastings Oil Co. v. Texas Co., 149 Tex. 416, 234 S.W.2d 389, 393 (1950). We look, then, to the Constitution and to relevant statutes to determine whether this court has jurisdiction and power to direct trial courts to dismiss pending cases.

Article V, § 3, Constitution of Texas, provides that the appellate jurisdiction of the Supreme Court extends 'to questions of law arising in cases of which the Courts of Civil Appeals have appellate jurisdiction * * *.' It also provides that '(t)he Legislature may confer original jurisdiction on the Supreme Court to issue writs of quo warranto and mandamus in such cases as may be specified, except as against the Governor of the State.' Article V, § 5 provides: 'The Court of Criminal Appeals shall have appellate jurisdiction co-extensive with the limits of the State in all criminal cases of whatever grade, * * *.' Article V, § 6, authorizing creation of courts of civil appeals, provides: 'Said Courts of Civil Appeals shall have appellate jurisdiction co-extensive with the limits of their respective districts, which shall extend to all civil cases of which the District Courts of County Courts have original or appellate jurisdiction.' The clear effect of these constitutional provisions is that (1) the Supreme Court has no appellate jurisdiction in criminal cases; (2) the Court of Criminal Appeals has exclusive appellate jurisdiction in criminal cases; and, (3) except to enforce its own jurisdiction, the Supreme Court has only such original jurisdiction to issue writs of mandamus 'as may be specified' by the Legislature.

Jurisdiction of the Supreme Court in original proceedings to issue writs of mandamus to judges, as specified by the Legislature, whether in civil or criminal cases, is found in Articles 1733 and 1734, Vernon's Ann.Texas Civil Statutes. Article 1733 provides: 'The ...