Taylor v. State

• Decision Date: 23 May 1917
• Docket Number: (No. 4365.)
• Citation: 197 S.W. 196
• Parties: TAYLOR v. STATE.
• Court: Texas Court of Criminal Appeals

197 S.W. 196

TAYLOR v. STATE.

(No. 4365.)

Court of Criminal Appeals of Texas.

May 23, 1917.

Appeal from District Court, Bexar County; W. S. Anderson, Judge.

E. B. Taylor was convicted of murder, and appeals. Reversed and remanded.

Ward & Bickett, of San Antonio, Hart & Patterson, of Austin, and Wilcox & Graves and A. S. Fisher, Jr., all of Georgetown, for

appellant. W. C. Linden, of San Antonio, and E. B. Hendricks, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The verdict of the jury awarded appellant five years' confinement in the penitentiary for murder.

The case was transferred from Travis to Williamson county, thence by the trial judge of his own motion on change of venue to Bexar county. After the conviction appellant raised the question of the invalidity of the order transferring the case from Williamson to Bexar county. This transfer order was based upon article 626, C. C. P., and article 3, § 45, of the Constitution. By the terms of the Constitution under the article supra power is vested in the court to change venue in civil and criminal cases, to be exercised only in such manner as shall be provided by law, and the Legislature shall pass laws for that purpose. In obedience to this mandate of the Constitution the Legislature enacted article 626, supra. In this article authority is granted district judges to change venue of their own motion of cases to any county in their own or an adjoining district. The statute is express in its limitation of this power, and confines it, as above stated, to a county in his own district or to some county in an adjoining district. There are other statutes making provisions for the transfer of cases on change of venue, but they do not apply here, and are unnecessary to be noticed. By the provisions of the Constitution it will be seen that it is not self-executing; therefore it became necessary for the Legislature to pass suitable laws and provide necessary rules of procedure to carry into effect such provisions of the Constitution. Outside of the granted authority under article 626, supra, the judge has not been clothed with authority to change venue of his own motion. Outside of the provisions of that article the judge cannot so act. His orders, decrees, and judgments would not be authorized, but would be ultra vires and void. The Legislature having exclusive authority to provide for such changes of venue and the procedure to be followed, consequently it necessarily follows that the courts must confine their action within the given procedure and prescribed limitations. It may be well enough to state here that within the limitation set forth the courts may exercise proper legal discretion, but discretion ends within the terms of the power granted. Discretion is never arbitrary, but must be legal and judicial, and not to be exercised outside of, but always within, legal bounds. This statute constitutes the authority and boundaries of judicial action and discretion. Beyond its terms a judge has no right to act, and there is to him confided no discretion outside of the provisions of the statute. Hipp v. Bizzle, 3 Tex. 21; Watts v. Holland, 56 Tex. 54; article 626, C. C. P.; article 3, § 45, of the Constitution; Ex parte Chase, 43 Ala. 303-310; Gibbons v. Ogden, 9 Wheaton, at page 66, 6 L. Ed. 23; State v. Cummings, 36 Mo. 263, 278; 3 Words and Phrases, pp. 2096-2098; Norris v. Clinkscales, 47 S. C. 488, 25 S. E. 797, 801.

Where authority ends the power to act ceases. Discretion to act under a given state of case must be within the controlling grant and therefore subordinate to the legislative authority. It can never rise superior to nor subordinate to legislative grant of power. That power is the supreme test. If this be not true, the discretion, if it could be so termed, would not depend upon the granted authority. It would be superior to legislation and the Constitution, and would operate as an assumption of original power. To so hold would be destructive of governmental authority, and would make such assumption of authority a justification for the destruction of sovereignty. Our Constitution provides in article 1, § 10, for a trial by an impartial jury. This is held so sacred that it cannot be waived. Article 1, § 10, Const. Article 1, § 29, of the Constitution expressly provides that all laws in contravention of the Bill of Rights shall be null and void. A change of venue is a guaranty to the accused of a fair trial by an impartial jury. This is practically if not the main basis underlying both the Constitution and legislation for change of venue. Randle v. State, 34 Tex. Cr. R. 58, 28 S. W. 953. See, also, the Statutes.

This is not a question of venue, but is entirely one relating to a change of venue. Its whole basis is bottomed upon the theory that where venue is there may exist a reason for changing that venue. The Constitution was ordained and the statute enacted to get away from the influences and the reasons operating against a fair trial in the county of venue. If venue and change of venue mean the same thing, the statute which provides for a change of venue would be practically useless. There cannot exist a possibility for changing venue until there has been venue fixed in some appropriate jurisdiction from which the case is sought to be transferred.

Venue is necessary to the exercise of judicial authority. The term "change of venue" necessarily implies that the venue has been previously fixed in some jurisdiction. So it ought to be clearly seen that the jurisdiction of the court in Bexar county did not and could not attach except by a change of venue, and under this record only by reason of the act of the judge under the provisions of article 626, supra. Bexar county did not and could not have original jurisdiction. The offense charged did not occur in that county, and the deceased did not die in that county; therefore Bexar county could not obtain or exercise jurisdiction by reason of venue. C. C. P. arts. 243, 258. Therefore the change of venue is all there is or that can be claimed for the exercise of jurisdiction by the court in Bexar county, and it, therefore, becomes a jurisdictional question.

There are three questions, as a general proposition, of jurisdiction: First, of the person; second, of the subject-matter; and, third, the power of the court to render the particular judgment it does render. Without a concurrence of these there can be no legal authority in the court to try the case or render a judgment. Ex parte Degener, 30 Tex. App. 566, 17 S. W. 1111. For collation of cases see 5 Rose Notes, p. 863. That case has been followed in a great number of cases and is now the settled law, not only by authority of the decisions, but by reason of its inherent strength and correctness. As article 626, supra, has defined and determined the authority of the court, so that authority must remain and can only be exercised. Within its terms the judge may act; outside of those terms he cannot act, and any order outside of that statute he may enter would be void. That the Legislature could have provided wider latitude of power is no reply to their failure or refusal so to do. Venue in this character of case is jurisdictional. The judge cannot exercise authority to try the case except by reason of the change of venue. Outside of that he did not acquire, nor could he exercise, jurisdiction. He had to look alone to the order of the district judge of Williamson county for his authority to act. Venue did not and could not attach in this case by any act of the grand jury of Bexar county returning an indictment against appellant.

There is some contention that defendant waived his legal rights by not interposing objection in Williamson county when the order of transfer was made. It is not necessary to discuss that question here, in view of what we have said. If the order was void, there was nothing to waive. The court was without authority to change the venue to Bexar county district court, and that court was without authority to render the judgment that was rendered. Ex parte Degener, 30 Tex. App. 566, 17 S. W. 1111. If the court had not authority to make the order transferring the case, it brought nothing, and could bring nothing, suggesting the question of waiver on the part of defendant, and could confer no jurisdiction upon the Bexar county district court. Appellant's failure to except to a void order is not a waiver, and could not make that order a valid judgment. While not expressly deciding this particular question, as it was not raised, our courts have recognized the limit of judicial authority and discretion as confined within the terms of this statute when the order is made by the judge of his own motion. For compilation of cases, see Harris' Ann. Constitution, p. 291, note 4. If there is an exception to the above statement, it is found in Grooms v. State, 40 Tex. Cr. R. 327, 50 S. W. 370. That case, when looked at in the light of its statements, is not an exception, but recognizes the rule stated by the writer. That case may be better stated by quoting the language used by Judge Henderson. The venue of the case was changed by consent and agreement from Atascosa to Travis county. It will be noticed that Travis county had authority to entertain jurisdiction or venue of land forgery cases. The Grooms Case was a land forgery. Atascosa county had jurisdiction to try the offense as well under the statute. Quoting from that opinion Judge Henderson said:

"Article 553, supra, authorizes prosecutions for forgery of land titles to be prosecuted also in Travis county; that is Travis county, as well as the county where the land is situated has original jurisdiction. But the complaint here is that while the prosecution could have originated in Travis county, yet there was no authority to transfer the venue by agreement from Atascosa to Travis county; it being insisted in this connection that consent will not confer jurisdiction. Inasmuch as Travis...