State v. Klein, 24505.

• Decision Date: 19 October 1949
• Docket Number: No. 24505.,24505.
• Citation: 224 S.W.2d 250
• Parties: STATE v. KLEIN et al.
• Court: Texas Court of Criminal Appeals

Page 250

224 S.W.2d 250

STATE v. KLEIN et al.

No. 24505.

Court of Criminal Appeals of Texas.

October 19, 1949.

Rehearing Denied November 23, 1949.

Commissioners' Decision.

S. L. Gill, Raymondville, (C. A. Edwards Phoenix, Ariz., amicus curiae), for respondent.

Lyle V. Timmins, Raymondville, attorney for the State by appointment, Ernest S. Goens, Former State's Attorney, Austin, George P. Blackburn, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

Jose Maria Cavazos, Jr. was convicted in the District Court of Willacy County of the offense of assault with intent to maim, with punishment assessed at confinement in the penitentiary for a term of two years.

From this conviction an appeal was perfected to this court. We affirmed the judgment, see Tex.Cr.App., 220 S.W.2d 153, and, upon that affirmance, issued our mandate to the trial court.

After the mandate had been received and filed in the trial court, and before the issuance of a capias thereon or the serving of the sentence had begun, Cavazos filed a motion in the District Court of Willacy County for probation under what is known as the Adult Probation and Parole Law of this State, being Chapter 452, Acts Regular Session of the 50th Legislature in 1947, and appearing as Art. 781b, Vernon's C. C. P.

The Honorable Arthur A. Klein, Judge of said court, entertained the motion, heard evidence thereon, and took same under consideration.

Pending and during consideration of the motion by Judge Klein, representatives of the State presented to Honorable Tom L. Beauchamp, one of the Judges of this court, an application for the writ of prohibition to prohibit and restrain Judge Klein from granting probation, as prayed for, and from further entertaining the motion, it being the State's contention that the District Court of Willacy County was without jurisdiction of the case.

Permission to file the application was granted by judge Beauchamp, and Judge Klein was, by him, ordered to show cause why the writ should not issue. Further consideration of the motion by Judge Klein was stayed, pending final determination of the application by this court.

Respondent, Judge Klein, joined by Cavazos, has answered herein, to the effect that under Sec. 11A of Art. IV of the Constitution, Vernon's Ann.St., and under the Adult Probation and Parole Law passed in pursuance thereof, the District Court of Willacy County was authorized to suspend the execution of the sentence and place Cavazos upon probation.

Two questions are thus presented for our determination, and are stated as follows:

(a) May a district court suspend the execution of sentence and place upon probation one convicted in that court of the felony offense of assault with intent to maim, with punishment assessed at two years' confinement in the penitentiary, after an appeal has been made to and conviction affirmed by the Court of Criminal Appeals of this State and after the issuance of mandate by said court, and before the convict has actually begun serving the sentence imposed?

(b) If the above question be answered in the negative, does this court have authority to prohibit the suspension of such sentence by writ of prohibition?

So far as we are aware, the questions presented are of first impression in this State.

The answer to the first question lies in the construction to be given Sec. 11A of Art. IV of our Constitution and Section 1 of the Adult Probation and Parole Law.

Sec. 11A of Art. IV was adopted as an amendment to our Constitution in 1935, and reads as follows: "The Courts of the State of Texas having original jurisdiction of criminal actions shall have the power, after conviction, to suspend the imposition or execution of sentence and to place the defendant upon probation and to reimpose such sentence, under such conditions as the Legislature may prescribe."

The amendment was not self-enacting; legislative action was required to make effective its provisions. It was not until 1947 that the legislature provided such legislation by the passage of the Adult Probation and Parole Law, Section 1 of which reads as follows: "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, shall have the power, after conviction or a plea of guilty for any crime or offense except murder, rape, and offenses against morals, decency, and chastity where the maximum punishment assessed the defendant does not exceed ten (10) years imprisonment, and where the defendant has not been previously convicted of a felony, to suspend the imposition or the execution of sentence and may place the defendant on probation for the maximum period of the sentence imposed or if no sentence has been imposed for the maximum period for which the defendant might have been sentenced, or impose a fine applicable to the offense committed and also place the defendant on probation as hereinafter provided. Any such person placed on probation shall be under the supervision of such court and a probation and parole officer serving such court as hereinafter provided."

While the Adult Probation and Parole Law contains many other sections, only Section 1 necessarily enters into a determination of the question before us.

It will be noted that the power conferred by Sec. 11A of Art. IV of the Constitution, as well as Section 1 of the Adult Probation and Parole Law, was intended to and is exercisable by the courts of this State "having original jurisdiction of criminal actions," as a judicial tribunal. The power conferred is not to the judge of the court in his individual capacity as a judicial officer.

For a court to act, it must have jurisdiction to do so. This is fundamental. 11 Tex.Jur., Courts, Sec. 9, p. 711; 12 Tex.Jur., Criminal Law, Sec. 111, p. 385.

The District Court of Willacy County is a court having original jurisdiction of criminal actions. Of necessity, therefore, the District Court of Willacy County was required to have jurisdiction to suspend the execution of sentence in the case against Cavazos, at the time and under the circumstances here presented, in order to so suspend the execution of sentence. The question of jurisdiction, then, is of commanding importance.

Art. 828, C. C. P. reads as follows: "The effect of an appeal is to suspend and arrest all further proceedings in the case in the court in which the conviction was had, until the judgment of the appellate court is received by the court from which the appeal was taken. In cases where, after notice of appeal has been given, the record or any portion thereof, is lost or destroyed, it may be substituted in the lower court, if said court be then in session; and, when so substituted, the transcript may be prepared and sent up as in other cases. In case the court from which the appeal was taken be not then in session, the appellate court shall postpone the consideration of such appeal until the next term of said court from which said appeal was taken; and the said record shall be substituted at said term as in other cases."

Under this statute, when Cavazos gave notice of appeal to this court from the judgment of conviction, the District Court of Willacy County lost jurisdiction, and this court immediately acquired jurisdiction of the case. It is only by the judgment of this court that jurisdiction over the case is restored to the District Court of Willacy County.

This court affirmed the judgment of conviction. Upon that judgment we issued our mandate, directed to the District Court of Willacy County, which reads as follows:

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