SINCLAIR, EX PARTE CHESTER v. the State of Texas

In the Court of Criminal

Appeals of Texas

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No. PD-0184-22

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EX PARTE CHESTER SINCLAIR,

Appellant

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On State’s Petition for Discretionary Review

And Discretionary Review on Court’s Own Motion

From the Thirteenth Court of Appeals

Bexar County

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YEARY, J., announced the judgment of the Court and filed an

opinion in which KELLER, P.J., and KEEL, J., joined. RICHARDSON and

MCCLURE, JJ., concurred in the result. NEWELL, J., filed a dissenting

opinion in which HERVEY, WALKER, and SLAUGHTER, J.J., joined.

This case arises out of actions taken by a Bexar County

magistrate judge on an application for a writ of habeas corpus in a

deferred-adjudication community supervision case. We granted the

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State’s petition for review to decide whether the court of appeals had

jurisdiction over Appellant’s attempted appeal from proceedings on that

application. On the Court’s own motion, we also granted review to decide

whether, in a habeas proceeding under Article 11.072 of the Texas Code

of Criminal Procedure, a trial court has jurisdiction to rule on a motion

to reconsider after the trial court has entered an appealable order

granting or denying, in whole or part, an application under the statute.

Because we conclude that the trial court failed to enter an

appealable order granting or denying Appellant relief, we have no cause

to reach the question on which we separately granted review. And for

the same reason, we conclude that the court of appeals lacked

jurisdiction over Appellant’s attempted appeal. Therefore, we vacate the

judgment of the court of appeals, dismiss the appeal, and remand the

case to the trial court with instructions to dismiss the appeal.

I. BACKGROUND

A. Habeas Application

In 1998, Appellant pled nolo contendere to the offense of indecency

with a child by sexual contact, alleged to have been committed in 1996.

See TEX. PENAL CODE § 21.11. The trial court placed him on deferred

adjudication community supervision for a period of six years, which

Appellant successfully completed in 2004. Nevertheless, in 2018,

following a recantation by the child-victim, Appellant sought relief from

the trial court’s order imposing community supervision through an

application for a writ of habeas corpus, claiming actual innocence. TEX.

CODE CRIM. PROC. art. 11.072.

On October 2, 2018, the presiding judge of the trial court—the

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227th District Court in Bexar County—referred the matter to a criminal

law magistrate in an order with instructions to “[i]ssue the writ of

habeas corpus” and “conduct a hearing.” See TEX. GOV’T CODE § 54.908

(governing the scope of the powers of a criminal magistrate in Bexar

County). The district court judge’s order of referral instructed the

magistrate judge to “[a]ct in accordance with Sec. 54.908, Gov’t Code, by

virtue of which this matter is referred.” It further stated that “[a]ny

action you [the magistrate judge] take will become a decree of this Court

if not super[s]eded by an order entered by me within fifteen (15) days of

your report of your action to me.”

The magistrate judge held an evidentiary hearing in March of

2019, at the conclusion of which he granted the parties a month to file

proposed findings of fact and conclusions of law. On August 19, 2019,

the magistrate judge signed Appellant’s recommended findings of fact

and conclusions of law. This document concludes with the sentence:

“Based on these Findings of Fact and Conclusions of Law, the Court

recommends that relief be granted based on actual innocence.” On the

reporter’s record of the August 19th hearing, the magistrate judge also

orally stated that “[t]his Court hereby enters written findings of fact and

conclusions of law which will be placed in the court’s file.”

Twenty-four days later, on September 12, 2019, the State filed a

motion, directed to the magistrate judge, requesting that he reconsider

his recommended findings of fact and conclusions of law. 1 The

1 This motion to reconsider was directed to the 227th District Court.

The fact that the State contemplated that the magistrate judge would rule on

the motion, however, is evident from the proposed order the State attached to

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magistrate judge granted the State’s motion on September 17, 2019,

thereby agreeing to reconsider his initial recommended findings and

conclusions and his recommendation that relief should be granted.

Subsequently, at a brief, non-evidentiary hearing held on November 5,

2019, the magistrate judge orally adopted the State’s proposed findings

of fact and conclusions of law. He then purported also to orally deny

Appellant relief. This time, however, no contemporaneous written order

was entered to memorialize this purported ruling. 2

B. Appeal

On December 2, 2019, Appellant filed his notice of appeal from

the magistrate judge’s November 5th ruling. Rather than address the

appeal on the merits, however, the court of appeals initially notified the

parties, by a letter dated February 7, 2020, that the appeal was in

danger of being dismissed for lack of a “final, signed order.” See TEX. R.

APP. P. 37.1; State v. Sanavongxay, 407 S.W.3d 252, 258 (Tex. Crim. App.

the motion. The signature line for the court’s ruling, as prepared by the State,

listed the magistrate judge’s name as the “Judge Presiding,” rather than the

district court judge’s name.

2 At the November 5th hearing, the magistrate judge announced from

the bench: “I now set aside my previous findings of fact and conclusions of law

and I adopt the State’s proposed findings of fact and conclusions of law and

they are hereby filed and entered of record in this cause.” But there is no

version of the State’s proposed findings of fact and conclusions of law in the

clerk’s record that was signed by the magistrate judge. Moreover, the copy of

the State’s proposed findings and conclusions that are in the clerk’s record—

unsigned by the magistrate judge—do not purport to deny relief, but only to

recommend to the trial court that it deny relief. The magistrate judge

continued: “To summarize, I am denying relief under the application for writ

of habeas corpus.” But there is no written order from the magistrate judge in

the clerk’s record reflecting such a purported denial of relief, as the court of

appeals would soon notice.

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2012) (“precedent requires that an order be in writing”). The State—not

Appellant—responded to this letter by seeking a written order from the

magistrate judge, through what it called a “STATE’S MOTION TO

ENTER,” to memorialize the magistrate judge’s November 5th ruling.

On February 18, 2020, the magistrate judge signed the State’s proposed

written order, purporting to “enter[] into the record the ruling of the

habeas court [on November 5, 2019], finding that relief should be

denied.” The court of appeals apparently accepted this as the written

order of the trial court denying Appellant relief, as it thereafter

proceeded on the assumption that it had acquired appellate jurisdiction.

On the merits, Appellant argued that the court of appeals should

reinstate the magistrate judge’s August 19th recommendation that

relief be granted because he had lacked jurisdiction to entertain the

State’s September 17th motion for reconsideration. Ex parte Sinclair

(Sinclair I), 13-20-00065-CR, 2021 WL 5930728, at *2 (Tex. App.—

Corpus Christi–Edinburg Dec. 16, 2021) (mem. op., not designated for

publication). 3 In response, the State contended that its motion for

reconsideration, like a motion for new trial, could be filed outside of the

twenty-day window for filing a notice of appeal. Id.; see TEX. R. APP. P.

26.2(b) (“The [State’s] notice of appeal must be filed within 20 days after

the day the trial court enters the order . . . to be appealed.”). Therefore,

in the State’s view, the trial court had retained plenary jurisdiction to

consider its motion for reconsideration and to alter its ruling. Sinclair I,

2021 WL 5930728, at *2.

3 The appeal was transferred by order of the Supreme Court of Texas

from the Fourth Court of Appeals to the Thirteenth Court of Appeals. See TEX.

GOV’T CODE § 73.001.

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On original submission, the court of appeals sided with Appellant,

holding that: (1) the State’s motion to reconsider was not the functional

equivalent of a motion for new trial and therefore did not extend the

trial court’s jurisdiction; and (2) the State failed to appeal from the trial

court’s original grant of relief within twenty days, as required by Article

44.01 of the Code of Criminal Procedure and Texas Rule of Appellate

Procedure 26.2. Id. at *3–4 (citing TEX. CODE CRIM. PROC. art. 44.01(d);

TEX. R. APP. P. 26.2(b)). In the court of appeals’ view, the State’s only

recourse to challenge the granting of relief under Article 11.072 was to

appeal, not to seek reconsideration in the trial court. Id. Consequently,

the court of appeals reversed the written order that was ultimately

entered on February 18, 2020, and remanded the case to the trial court

with instructions to vacate the order of September 17, 2019, which had

purported to grant the State’s motion to reconsider. Id. at *4. 4

Following the court of appeals’ decision on original submission,

the State filed a motion for rehearing. In its motion, the State argued—

for the first time—that the magistrate judge had lacked “authority to

4 On both original submission and rehearing, the court of appeals

treated every action of the magistrate judge as if it had constituted a definitive

ruling by “the trial court,” i.e., the district court judge—as if the district court

judge had been the one to undertake the initial fact development. See, e.g., Ex

parte Sinclair (Sinclair II), 13-20-00065-CR, 2022 WL 619146 at *1 (Tex.

App.—Corpus Christi–Edinburg Mar. 3, 2022) (mem. op., not designated for

publication) (“After this Court notified Sinclair his appeal would be dismissed

because there was no written, final judgment, the State—not Sinclair—sought

an appealable order from the trial court, a Bexar County Magistrate.”)

(emphasis added). This is so even though the district court judge never entered

a written order following his original order of October 2, 2018, in which he

referred the case to the magistrate judge to do no more than simply: (1) issue

the writ, and (2) conduct a hearing.

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issue a final order regarding a writ of habeas corpus” on the trial court’s

behalf and that, therefore, the court of appeals lacked jurisdiction over

the case for want of an appealable order. Ex parte Sinclair (Sinclair II),

13-20-00065-CR, 2022 WL 619146 at *1 (Tex. App.—Corpus Christi–

Edinburg Mar. 3, 2022) (mem. op., not designated for publication). The

court of appeals refused to entertain the merits of the State’s argument,

however. Id. It reasoned that the State was precluded under the doctrine

of invited error from challenging the basis for its exercise of appellate

jurisdiction on original submission. Id. (citing Woodall v. State, 336

S.W.3d 634, 644 (Tex. Crim. App. 2011)). 5 Having solicited the written

order of February 18th from the magistrate judge in response to the

court of appeals’ February 7th letter threatening to dismiss the appeal—

and having expressly requested the court of appeals to entertain

Appellant’s appeal based on that February 18th order—the State would

not be heard to contest the appellate court’s jurisdiction on rehearing.

Id.

The court of appeals next reiterated that its disposition on

original submission had been “merely” to remand the case with

instructions to the trial court to vacate the magistrate judge’s

September 17th order granting the State’s motion for reconsideration of

its August 19th findings and conclusions and recommendation as to

relief. Id. at *2. The court of appeals also then observed that its original

opinion had been “limited to the trial court’s September 17 order.” Id. It

5 The court of appeals did not expressly address whether the invited-

error estoppel doctrine could operate to confer appellate jurisdiction that was

otherwise lacking. We note that this Court’s opinion in Woodall did not involve

invited-error estoppel that was deemed to confer jurisdiction.

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observed that it had “not address[ed] the merits or applicability of any

of the trial court’s previous orders or whether any of those previous

orders are final judgments.” Id. (emphasis added). It then appended a

footnote in which it acknowledged—for the first time—that the trial

court had referred this case to the magistrate judge, and that the

referral order provided that the magistrate judge’s actions would

become the decree of the trial court if not superseded within fifteen days

of “reporting” its action to the trial court. Id. at *2 n.3. The footnote

ended by quoting Sections 54.912(a) and (c) of the Government Code,

which required the trial court to “enter a decree on the minutes adopting

the actions of the magistrate of which the court approves[.]” Id. (citing

TEX. GOV’T CODE § 54.912(a), (c)).

C. Discretionary Review

This Court granted the State’s petition for discretionary review,

which raised a single ground: “Did the court of appeals have jurisdiction

over [Appellant’s] appeal?” 6 The State argues that the court of appeals

lacked jurisdiction over this case because the trial court failed to enter

an appealable order in the first instance. The State reasons that the

6 As we observed at the outset, we also granted a second ground for

review on our own motion, namely: “In a proceeding under Article 11.072 of

the Code of Criminal Procedure, does a trial court have jurisdiction to rule on

a motion to reconsider after the trial court has entered an appealable order

denying or granting, in whole or part, an application under the statute?” Ex

parte Sinclair, No. PD-1084-22, 2022 WL 4088314, at *1 (Tex. Crim. App. Sept.

7, 2022) (order, not designated for publication). Of course, if the court of

appeals lacked jurisdiction over the appeal, as the State’s ground for review

contends, then the ground that this Court granted on its own motion would

essentially prove moot: The court of appeals’ ruling with respect to whether

Article 11.072 conferred authority on the magistrate judge to consider the

State’s motion for reconsideration would be nullified.

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magistrate judge’s August 19th action did no more than recommend that

the trial court grant Appellant relief—and neither the trial court’s

referral order nor the statute delineating the scope of the magistrate

judge’s power, located in Chapter 54 of the Government Code,

authorized anything more. State’s Brief at 21–24; see TEX. GOV’T CODE §

54.908 (explicitly authorizing a magistrate in Bexar County to

ultimately “rule” only “on admissibility of evidence” and “on a pretrial

motion”). Without an appealable order, the State contends, the court of

appeals never acquired jurisdiction. Id. at 24.

Appellant responds that, under the trial court’s referral order and

the statute governing such referrals, the trial court judge procedurally

adopted the magistrate judge’s recommended findings and conclusions

as its own decree, and thereby entered an appealable order, which the

State failed to timely appeal. Appellant’s Brief at 13. Appellant also

contends that the State, in having moved for reconsideration,

acknowledged that the magistrate judge’s “original [o]rder granting

relief was not a mere recommendation[,]” and that the State is therefore

estopped from arguing otherwise before this Court. Id. (citing, as did the

court of appeals, Woodall, 336 S.W.3d at 644). 7

7 With respect to the ground for review that this Court granted on its

own motion, the State argues that the magistrate judge retained plenary power

for thirty days over its “order” of August 19, 2019, (which had merely

recommended granting Appellant relief) and, therefore, he had “implied

jurisdiction” to reconsider his recommended findings of fact and conclusions of

law during that period. State’s Brief at 14, 19. Appellant responds that Section

8 of Article 11.072, in explicitly providing a right to appeal a trial court’s order

granting or denying relief, precludes other remedies, including a motion to

reconsider. Appellant’s Brief at 7; TEX. CODE CRIM. PROC. art. 11.072 § 8.

Because our resolution of the State’s ground for review is sufficient to dispose

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II. APPLICABLE STATUTES

We are compelled here to focus on and understand the operation

of two separate statutes, one located in our Code of Criminal Procedure,

and another one located in our Government Code. First, Article 11.072

of our Code of Criminal Procedure “establishes the procedures for an

application for a writ of habeas corpus in a felony or misdemeanor case

in which the applicant seeks relief from an order or judgment of

conviction ordering community supervision.” TEX. CODE CRIM. PROC. art.

11.072 § 1 (emphasis added). 8 Second, Subchapter N in Chapter 54 of

our Government Code, which includes Sections 54.901 to 54.913 of that

code, establishes criminal law magistrates in Bexar County to assist

“[t]he judges of the district courts of Bexar County that give preference

to criminal cases” by “perform[ing] the duties authorized by [that]

subchapter.” TEX. GOVT. CODE § 54.901(a).

Section 6(a) of Article 11.072 provides that “the trial court shall

enter a written order granting or denying the relief sought in the

application” within sixty days from the date the State files its answer.

Id. at § (6)(a). If the trial court concludes that an applicant is “manifestly

entitled to no relief,” then the application may be dismissed as frivolous,

of the case, however, we do not ultimately resolve the ground for review that

we granted on our own motion.

8 On its face, Section 1 of Article 11.072 permits a defendant who is

placed on deferred adjudication community supervision to pursue habeas

relief. Section 2(b) also includes applicants like Appellant, who have completed

their community supervision, by its requirement that, “[a]t the time the

application is filed, the applicant must be, or have been, on community

supervision[.]” Id. at § 2(b) (emphasis added).

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and the trial court “shall enter a written order denying the application

as frivolous.” Id. at § 7(a). “In any other case, the [trial] court shall enter

a written order including findings of fact and conclusions of law.” Id.

Thus, the statute pervasively contemplates that the writ must be

disposed of by a written order from the trial court.

Article 11.072 also explicitly provides that, to assist in processing

such writ applications, a trial court judge may enlist the services of a

magistrate judge. Section 6(d) of Article 11.072 specifies that “[t]he court

may appoint [a] . . . magistrate to hold a hearing ordered under this

section and make findings of fact.” Id. at § (6)(d). But Article 11.072,

itself, enumerates no further duties a magistrate judge may perform

with respect to an 11.072 application.

On the other hand, Texas Government Code Section 54.906, titled

“Proceeding That May Be Referred[,]” specifies: “(a) A judge may

refer to a magistrate any criminal case for proceedings involving . . . (3)

a postconviction writ of habeas corpus[.]” TEX. GOV’T CODE §

54.906(a)(3). Because Appellant successfully completed deferred

adjudication, his 11.072 writ is not a postconviction writ of habeas

corpus application. See Ex parte White, 506 S.W.3d 39, 45 n.30 (Tex.

Crim. App. 2016) (“Deferred adjudication . . . is not a conviction.”).

However, Section 54.906 also includes a catch-all provision which

permits a judge to refer to a magistrate “(8) any other matter the judge

considers necessary and proper[.]” TEX. GOV’T CODE § 54.906(a)(8).

Article 11.072 also clearly contemplates that habeas applications

requesting relief from an order of deferred adjudication community

supervision may be referred to a magistrate judge, at least for some

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limited purposes. See TEX. CODE CRIM. PROC. art. 11.072 § 6(d) (“The

trial court may appoint an attorney or magistrate to hold a hearing

ordered under this section and make findings of fact.”).

Once such a referral has been made, the question of the scope of

the magistrate judge’s authority to act is another question. Section

54.908 of the Government Code (titled “Powers”) generally delineates

the scope of that authority, and only explicitly authorizes magistrates to

ultimately “rule” on a very limited number of matters—namely,

“admissibility of evidence” and “a pretrial motion[.]” TEX. GOV’T CODE §

54.908(a)(4), (a)(10). There is, however, another catch-all provision in

Section 54.908(a)(15), which also authorizes a magistrate judge to “do

any act and take any measure necessary and proper for the efficient

performance of the duties required by the order of referral.” TEX. GOV’T

CODE § 54.908(a)(15) (emphasis added). 9

Finally, Article 11.072, Section 6(d)’s provision for appointment

of a magistrate specifically limits the magistrate judge’s power to

“hold[ing] a hearing . . . and mak[ing] findings of fact”—nothing more.

In short, a magistrate judge’s authority to act in an Article 11.072

proceeding is expressly circumscribed. It is thus up to the district court

judge, under the express requirements of Article 11.072, to take the

work product of a magistrate judge and convert it into the “written

9 The district court judge’s order of referral in this case, however,

limited the duties of the magistrate judge to “[i]ssu[ing] the writ” and to

“conduct[ing] a hearing.” We note that Section 6(d) of Article 11.072 does not

empower magistrate judges to issue writs of habeas corpus; however, in any

event, under Section 4(a), “[w]hen an application is filed under this article, a

writ of habeas corpus issues by operation of law.” TEX. CODE CRIM. PROC. art.

11.072 §§ 6(d), 4(a).

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order” of the trial court granting or denying relief. So, how does the

district court judge go about this?

Under the Texas Government Code, “[a] referring court may

modify, correct, reject, reverse, or recommit for further information any

action taken by the magistrate.” TEX. GOV’T CODE § 54.912(a). If the

referring court does nothing, then “the [magistrate’s] action becomes the

decree of the court.” Id. at § 54.912(b). Section 54.912 contains no

provision, however, that expressly authorizes “the referring court”

prospectively to declare that, if it should fail to “supersede” the

magistrate’s “action” within a certain time to be specified by the referring

court, that action will become the “decree” of the referring court. Instead,

Section 54.912(c) explicitly provides: “At the conclusion of each term

during which the services of a magistrate are used, the referring court

shall enter a decree on the minutes adopting the actions of the

magistrate of which the court approves.” Id. at § 54.912(c).

III. ANALYSIS: WAS THERE EVER AN APPEALABLE ORDER?

Appellate jurisdiction must be legislatively conferred. Ragston v.

State, 424 S.W.3d 49, 52 (Tex. Crim. App. 2014). Under Article V,

Section 6, of the Texas Constitution, “a statute must expressly give the

courts of appeals jurisdiction.” Whitfield v. State, 430 S.W.3d 405,

407−08 (Tex. Crim. App. 2014). Jurisdiction of the courts of appeals to

entertain appeals from a trial court’s resolution of community-

supervision writ applications under Article 11.072 is expressly conferred

by Section 8 thereof. TEX. CODE CRIM. PROC. art. 11.072 § 8. That

provision authorizes the losing party to appeal. Specifically, it provides

that the applicant may appeal “[i]f the application is denied in whole or

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in part,” and the State may appeal “[i]f the application is granted in

whole or in part[.]” Id.

This Court’s precedent requires that, generally, for an appeal

from an order to proceed, that order must have been reduced to writing.

Sanavongxay, 407 S.W.3d at 258−59; 10 see also Guthrie-Nail v. State,

543 S.W.3d 225, 227 (Tex. Crim. App. 2018) (recognizing that a nunc pro

tunc judgment is an appealable order, but that a court of appeals cannot

“assert jurisdiction over the case grounded on a docket entry and oral

ratification of a pre-existing judgment”). Whether the court of appeals

in this case acquired jurisdiction therefore depends upon whether the

10 While Sanavongxay concerned a State’s appeal, that case stands for

the general proposition that “our precedent requires that an [appealable] order

be in writing.” 407 S.W.3d at 258–59. Although there are no published opinions

on point, every court of appeals that has confronted the issue has applied the

same rule to appeals taken by appellants. See Prince v. State, No. 01-17-00200-

CR, 2017 WL 1434271, at *2 (Tex. App.—Houston [1st Dist.] Apr. 20, 2017)

(mem. op., not designated for publication); Awadalla v. State, No. 02-20-00102-

CR, 2020 WL 5949918, at *1 (Tex. App.—Fort Worth Oct. 8, 2020) (mem. op.,

not designated for publication); Holt v. State, No. 03-19-00468-CR, 2019 WL

6870343, at *1 (Tex. App.—Austin Dec. 17, 2019) (mem. op., not designated for

publication); Noble v. State, No. 05-23-01179-CR, 2023 WL 8519107, at *1 (Tex.

App.—Dallas Nov. 22, 2023) (mem. op., not designated for publication); Harper

v. State, No. 08-22-00001-CR, 2022 WL 633389, at *1 (Tex. App.—El Paso Mar.

4, 2022) (mem. op., not designated for publication); Nichols v. State, No. 09-14-

00048-CR, 2014 WL 1400809, at *1 (Tex. App.—Beaumont Apr. 9, 2014) (mem.

op., not designated for publication); Kennedy v. State, No. 10-22-00026-CR,

2022 WL 481070, at *1 (Tex. App.—Waco Feb. 16, 2022) (mem. op., not

designated for publication); McCreary v. State, No. 12-20-00029-CR, 2020 WL

827587, at *2 (Tex. App.—Tyler Feb. 19, 2020) (mem. op., not designated for

publication); Amos v. State, No. 13-22-00458-CR, 2022 WL 17351779, at *1

(Tex. App.—Corpus Christi–Edinburg Dec. 1, 2022) (mem. op., not designated

for publication), reh’g denied (Dec. 27, 2022); Kossie v. State, No. 14-20-00671-

CR, 2021 WL 245236, at *1 (Tex. App.—Houston [14th Dist.] Jan. 26, 2021)

(mem. op., not designated for publication).

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trial court “entered a written order . . . denying the relief sought” by

Appellant, as required by Article 11.072. TEX. CODE CRIM. PROC. art.

11.072 §§ 6(a), 7(a), 7(b). If the trial court did not, then no appealable

order issued from the trial court and the court of appeals necessarily

lacked jurisdiction over the case.

The record in this case includes no written order signed by the

actual trial court judge that rules on the merits of Appellant’s Article

11.072 writ application. The trial court judge signed nothing beyond the

initial order of October 2, 2018, by which he referred the writ application

to the magistrate judge to conduct fact development. Consequently, the

question here is whether any action that the magistrate judge took

during the ensuing proceedings ultimately counted as the “written

order” of the trial court denying relief, capable of conferring jurisdiction

over Appellant’s appeal on the court of appeals. For the following

reasons, we conclude that none of the magistrate judge’s actions resulted

in an appealable order of the trial court in this case.

A. Which Order (If Any) Could Be the Appealable Order?

We next review the actions of the trial court judge and the

magistrate judge, seriatim, to explain why nothing that occurred at the

trial court level amounted to a written order of the trial court denying

relief.

1. The Trial Court Judge’s Order of Referral: October 2, 2018

The district court judge’s order referring the Appellant’s writ

application to the magistrate judge, though it was in writing, was not,

itself, of course, an order granting or denying relief. On its face, it

authorized no more specific involvement on the magistrate judge’s part

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than to “conduct a hearing.” Beyond that, it instructed the magistrate

judge to “[a]ct in accordance with Sec. 54.908, Gov’t Code, by virtue of

which this matter is referred.” The referral order also declared that

“[a]ny action you take will become the decree of this Court if not

super[s]eded by an order entered by me within fifteen (15) days of your

report of your action to me.” Pursuant to the referral order, the

magistrate judge conducted an evidentiary hearing on March 14, 2019,

at the conclusion of which it solicited proposed findings of fact and

conclusions of law from the parties. This much he was authorized to do

under Section 54.908(a)(1) and (a)(2) of the Government Code.

2. The Magistrate’s Findings and Conclusions: August 19, 2019

The magistrate judge apparently took no further action until

August 19, 2019. On that date, the magistrate judge announced on the

record that he “hereby enters written findings of fact and conclusions of

law which will be placed in the court’s file.” In the written “Findings of

Fact and Conclusions of Law” that he filed, the magistrate judge

“ma[d]e” findings and “formulate[d]” conclusions, as expressly

authorized under Subsections (a)(8) and (a)(9) of Section 54.908 of the

Government Code. TEX. GOV’T CODE §§ 54.908(a)(8), (a)(9). Based on

those findings and conclusions, the magistrate judge then

“recommend[ed] that relief be granted based on actual innocence.”

(emphasis added).

Although in writing, this document did not purport to actually

grant Appellant relief. Did it nevertheless become the decree of the trial

court when, at least as far as the record reveals, the trial court judge did

not supersede it within fifteen days, as per the original order of

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referral? 11 Even assuming for argument’s sake that it did, another

11 The dissent would hold that it did. Dissenting Opinion at 3

(“Pursuant to statute and the trial court’s referral order, fifteen days after the

magistrate entered the order, the magistrate’s written order became the final

decree of the trial court because the trial court did not correct or modify it or

enter an order superseding it.”). And it argues that the legislative history of

Section 54.908 of the Government Code supports that conclusion. Id. at 3 n.5.

Two notes in response.

First, it is unclear that adopting by inaction an order which only

recommends that the trial court grant relief results in a decree that actually

grants relief. The courts of appeals, at least with respect to their civil

jurisdiction, have held that language merely recommending granting or

denying the remedy sought does not constitute a final appealable judgment.

See, e.g., In re Wilmington Tr., Nat’l Ass’n, 524 S.W.3d 790, 793 (Tex. App.—

Houston [14th Dist.] 2017, orig. proceeding) (concluding that although the

order at issue stated that the motions in question “should” be granted, it was

“not a final judgment because it contain[ed] no decretal language that . . .

finally dispose[d] of the action”).

Second, a careful reading of the legislative history of Section 54.908

shows that it does not lend the support to the dissent’s argument that the

dissent suggests. The dissent notes that, prior to 2001, Section 54.908(b)

stated: “A magistrate may not enter a ruling on any issue of law or fact if that

ruling could result in dismissal or require dismissal of a pending criminal

prosecution, but the magistrate may make findings, conclusions, and

recommendations on those issues.” Acts 1989, 71st Leg., ch. 1068, § 1, p. 4322,

eff. Aug. 28, 1989. The dissent argues that, by removing this language from

Section 54.908, “the Legislature clearly sought to improve the flow of the

judicial process by providing more flexibility for trial courts in relying upon

magistrates.” Dissenting Opinion at 3 n.5.

But then, as now, Section 54.908 limited the matters a magistrate could

“rule” on to the admissibility of evidence and pretrial motions. Compare Acts

2001, 77th Leg., ch. 680, § 1, p. 1286, eff., Sept. 1, 2001 (Section 54.908 as

amended in 2001), with TEX. GOV’T CODE § 54.908(a) (the current statutory

language, which still only allows a magistrate to “rule” on questions about

admissibility of evidence and pretrial motions). Thus, when the Legislature

removed the prohibition on magistrates issuing rulings which “could result in

dismissal or require dismissal[,]” it merely removed what might have

otherwise seemed like a prohibition against rulings on the admissibility of

evidence or on pretrial motions if those rulings could result in or require

dismissal of a criminal prosecution. In other words, the Legislature’s removal

SINCLAIR – 18

question remains: Would that decree constitute the written order

necessary to dispose of Appellant’s Article 11.072 application?

In short, the answer is no. Appellant would not be authorized

under Article 11.072, Section 8, to appeal, since an applicant may only

appeal the denial of relief under that provision. TEX. CODE CRIM. PROC.

art. 11.072 § 8. The magistrate judge’s August 19, 2019, findings did not

purport to deny relief. The court of appeals would therefore have lacked

jurisdiction to entertain such an appeal.

3. Motion to Reconsider: September 17 & November 5, 2019

On September 17, 2019, the magistrate judge signed a written

order granting the State’s request to reconsider his August 19th findings

of fact and conclusions of law and his recommendation that relief be

granted. This written order did not come from the trial court judge, and

it neither granted nor denied relief on the writ application itself. It was

therefore not an appealable order under Article 11.072.

On November 5, 2019, in open court and on the record, the

magistrate judge declared that he was setting aside his earlier findings

and conclusions and adopting the State’s proposed findings and

conclusions instead. He then stated: “To summarize, I am denying relief

under the application for writ of habeas corpus.” He did not, at that time,

of the prohibition on entering a ruling if that ruling could result in or require

dismissal made it clear that it was indeed possible for a magistrate to rule on

the admissibility of evidence or a pretrial motion even if that ruling might

ultimately result in the dismissal of a criminal case. It did not also thereby

increase the number or type of issues upon which a magistrate could “rule,” as

otherwise limited by the text of Subsection 54.908(a). And still conspicuously

absent from the enumerated powers of magistrates is any express authority to

rule on an application for writ of habeas corpus. See TEX. GOV’T CODE §

54.908(a).

SINCLAIR – 19

however, memorialize this oral pronouncement with a written order.

Nor did the magistrate judge himself have the authority to ultimately

rule on the writ application—by written order or otherwise.

Making an ultimate ruling on the merits of an Article 11.072 writ

application is not among the powers of a magistrate judge that are listed

in Section 54.908(a) of the Government Code. While that provision

permits a magistrate judge to “rule on the admissibility of evidence” and

to “rule on a pretrial motion[,]” it does not empower him to rule on the

merits of a habeas application. TEX. GOV’T CODE § 54.908(a)(4), (10). It

is true that Subsection (a)(15) of Section 54.908 contains a kind of catch-

all provision, providing that a magistrate “may do any act and take any

measure necessary and proper for the efficient performance of the duties

required by the order of referral.” Id. at § (a)(15). But the referral order

in this case authorized the magistrate judge to do nothing more than

issue the writ of habeas corpus and simply “to hold a hearing.” That

referral order, even when construed alongside the general powers

enumerated in Section 54.908(a), cannot reasonably be read to have

“required” the magistrate judge to rule on the merits of Appellant’s

Article 11.072 writ application on the trial court’s behalf.

And in any event, this oral ruling on the merits could not serve to

confer jurisdiction in the court of appeals. While it did at least purport

to deny (not just recommend denying) relief for purposes of an

applicant’s appeal under Section 8 of Article 11.072, this oral ruling did

not constitute a “written order” that would trigger a right to appeal

under Article 11.072. That seems to be the reason the court of appeals

sent a letter to the parties on February 7, 2020, threatening to dismiss

SINCLAIR – 20

Appellant’s appeal (presumably for want of appellate jurisdiction) if

“this defect is not cured.”

4. The Magistrate Judge’s Order of February 18, 2020

This brings us to the magistrate judge’s written order of February

18, 2020, which the State solicited in response to the court of appeals’

February 7th letter. 12 Here, for the first time, the magistrate judge

memorialized his recommendation that relief be denied, in writing: “This

Court . . . now enters an order entering into the record the ruling of the

habeas court, finding that relief should be denied.” (Emphasis added). It

expressly ordered “that this Court’s previous oral pronouncement of this

decision is ENTERED.” However, the oral pronouncement of November

5, 2019, had seemed to do more than just enter “this decision” that “relief

should be denied.” (Emphasis added.) In fact, the magistrate judge had

orally pronounced on November 5th that “I am denying relief under the

application for writ of habeas corpus.” (Emphasis added.)

So, what was the effect of the magistrate judge’s written order of

February 18, 2020? On original submission, the court of appeals was

apparently content to regard the magistrate judge’s February 18th order

12 The body of the magistrate judge’s written order of February 18th

reads, in its entirety:

On this date, the above Motion to Enter order of the court,

asking this Court to enter the November 5, 2019, ruling of the

habeas court, was presented. This Court, having considered the

same, now enters an order entering into the record the ruling of

the habeas court, finding that relief should be denied. The entry

of this court shall serve as a final, written order for appellate

purposes.

IT IS THEREBY ORDERED THAT THIS COURT’S

PREVIOUS ORAL PRONOUNCEMENT OF THIS DECISION

IS ENTERED.

SINCLAIR – 21

as an appealable order, proceeding to the merits of Appellant’s

arguments on appeal. But the answer to the question boils down to

whether the court of appeals was justified in regarding the magistrate

judge’s written order of February 18th as sufficient to confer it with

appellate jurisdiction.

B. Appealable Order Under Section 54.912, Government Code?

Did the magistrate judge’s written order of February 18th

denying relief somehow become the written order of the trial court by

virtue of the district court judge’s initial referral order? Or, at the very

least, did the February 18th order become a written order of the trial

court fifteen days after that action was taken, by reference to the express

terms of the referral order itself. 13 It is perhaps arguable that such a

provision in a referral order is not inconsistent with the terms of Section

13 Section 54.912, on its face, does not explicitly permit nor prohibit the

referring court judge from imposing a specific temporal deadline on when the

magistrate judge’s action should become the decree of the trial court. See note

15, post. So, at what point in time, if ever, would the magistrate judge’s “action”

become the decree of the trial court? Does that only happen “at the conclusion

of” the term, or can the referring court prescribe an earlier date? If the

referring court picks an earlier date, then does the magistrate judge’s written

recommendation become the trial court’s written order on that date for

purposes of disposing of an Article 11.072 writ application? Or does the

magistrate judge’s recommendation only become the order of the trial court for

Article 11.072 purposes on the date at the end of term when the trial court

enters its official decree on its minutes adopting the magistrate judge’s

recommendation? Indeed, this Court has said that an appealable order is

“entered” when the trial court “signs” it. State v. Wachtendorf, 475 S.W.3d 895,

899 (Tex. Crim. App. 2015) (plurality opinion). So, should the earlier date upon

which the magistrate judge signed the recommendation serve as the launching

point (as the court of appeals seems tacitly to have assumed), even though it

has not yet even become the decree of the trial court according to the timeline

established by the referral order, much less a written order granting or denying

relief for purposes of Article 11.072?

SINCLAIR – 22

54.912 of the Government Code. 14

We do not ultimately believe, however, that Section 54.912 of the

Government Code controls. The mere tacit acceptance of a magistrate

judge’s recommended ruling as the decree of the court, under Section

54.912(c) of the Government Code, does not result in an appealable order

from an Article 11.072 proceeding. We conclude, instead, that Article

11.072 itself requires, as a predicate to appellate jurisdiction, a discrete

written order from the trial court judge that either grants or denies

relief. 15

C. Appealable Order Under Article 11.072?

Several provisions of Article 11.072 contemplate that the

disposition of a writ application may be accomplished only by way of a

14Section 54.912(a) permits the trial court judge wide latitude with

respect to the “action taken by the magistrate” following a referral order. If the

trial court judge does not exercise the latitude afforded by Section 54.912(a)—

if he “does not modify, correct, reject, reverse, or recommit for further

information”—then the magistrate’s “action becomes the decree of the court”

by virtue of Section 54.912(b). But this subsection of the statute does not speak

to when that occurs. Only Section 54.912(c) speaks to when: “At the conclusion

of each term during which the services of a magistrate are used, the referring

court shall enter a decree on the minutes adopting the actions of the magistrate

of which the court approves.”

15 Indeed, entry of a decree on the minutes adopting the action of the

magistrate, under Section 54.912(c), might constitute the written order of the

trial court that Article 11.072 demands, depending upon how it might be

phrased. A written decree, entered in the minutes of the court, expressly

declaring that the trial court adopts the magistrate judge’s proposed findings

of fact and conclusions of law and thereby does grant (or deny) relief, followed

by the judge’s signature, would certainly seem to satisfy Article 11.072. TEX.

CODE CRIM. PROC. art. 11.072 §§ 6(a) (“the trial court shall enter a written

order granting or denying the relief sought in the application.”), 7(a) (“the

[trial] court shall enter a written order including findings of fact and

conclusions of law.”).

SINCLAIR – 23

written order granting or denying relief—by the trial court. For instance,

as we have observed, “the trial court shall enter a written order granting

or denying relief sought” within sixty days of the filing of the State’s

answer. TEX. CODE CRIM. PROC. art. 11.072 § 6(a) (emphasis added). If

“the court” concludes that the writ application is frivolous, it “shall enter

a written order denying the application as frivolous.” Id. § 7(a)

(emphasis added). “In any other case, the court shall enter a written

order including findings of fact and conclusions of law.” Id. (emphasis

added). 16

Nothing in Chapter 54, Subchapter N, of the Government Code,

which regulates criminal law magistrates in Bexar County, authorizes

a magistrate judge to whom an Article 11.072 writ application has been

referred to render an order that ultimately disposes of the case. 17 Only

16 What is more, under Section 7(b) of Article 11.072, at the time the

written order is entered, “the clerk of the court shall immediately . . . send a

copy of the order” to the parties. TEX. CODE CRIM. PROC. art. 11.072 § 7(b). It

is hard to imagine how the clerk of the court could send a copy of the entry of

a decree that the district court has accepted the magistrate’s recommendation

upon the minutes of the court to the parties.

17 At least one court of appeals has recognized as much, albeit in an

unpublished opinion. In Ex parte 1993 Custom Van, No. 07-97-0254-CR, 1997

WL 760554, at *1 (Tex. App.—Amarillo 1997) (not designated for publication),

the same magistrate judge involved in this case orally pronounced judgment

awarding a vehicle to the San Antonio Police Department for destruction. The

court of appeals noted that, even assuming an oral pronouncement would have

constituted a final judgment, Ҥ 54.908(a)(11) provides that a magistrate may

‘recommend the rulings, orders, or judgment to be made in a case.’ It is

noteworthy that nowhere in the statute does it provide that a criminal law

magistrate may actually render a final ‘ruling, order or judgment.’” Id. at *2.

Consequently, the court concluded that, “while a criminal law magistrate may

be empowered to recommend rulings of law and fact, the magistrate is not

SINCLAIR – 24

the trial court judge can sign the written order disposing of the case, and

only a written order of the trial court judge, so disposing of the case, will

serve as an appealable order. We conclude, then, that a trial court

judge’s eventual entry of a decree on the minutes of the court, adopting

a magistrate judge’s recommended disposition of the case, does not

constitute the signed written order necessary to confer appellate

jurisdiction. 18 The court of appeals did not acquire jurisdiction as a

result of the magistrate judge’s written order of February 18, 2020—

regardless of whether that order purported to actually deny relief or

whether the trial court judge may yet (the record does not reveal) have

adopted that order on its minutes as the decree of the court. 19

empowered to render a final decree or judgment. That being true, no final

appealable judgment has been entered.” Id. at *3.

18 Our conclusion that only a signed written order from the trial court

judge constitutes an appealable order in an Article 11.072 case has the benefit

of creating a fixed point from which the appellate timetable begins—the date

the trial court judge signs an order granting or denying relief, whether or not

based on the recommendations of a magistrate judge. “Establishing a definite

starting date for calculating appellate timetables serves the interests of all

parties.” State ex rel. Sutton v. Bage, 822 S.W.2d 55, 57 (Tex. Crim. App. 1992)

(quoting State v. Rosenbaum, 818 S.W.2d 398, 402 (Tex. Crim. App. 1991)).

19 The court of appeals concluded that the State should be estopped from

challenging its jurisdiction on the ground that, having induced the magistrate

judge to sign what purported to “serve as a final, written order for appellate

purposes[,]” the State should not be permitted to argue that the magistrate

judge never had authority to enter such an order. Sinclair II, 2022 WL 619146

at *1. Appellant has not advanced that argument before this Court. (Appellant

argues, instead, that the State is estopped from denying that the magistrate’s

August 19, 2019, recommended findings and conclusions constituted a written

order of the trial court granting Appellant relief because it later filed a motion

to set aside those findings and recommendation.) And even if Appellant had

asserted the same estoppel argument embraced by the court of appeals, we

SINCLAIR – 25

IV. CONCLUSION

We conclude that there is not yet an appealable order in this case,

and that the court of appeals consequently never acquired jurisdiction

to entertain Appellant’s appeal. 20 Accordingly, we vacate the judgment

note that the State obtained no benefit from its assistance to the defense when

it requested that the magistrate judge reduce its otherwise oral-only order

made on November 5, 2019, to writing. Also, as the court of appeals observed

with regard to the State’s motion for rehearing: “the State assert[ed] that [the

court of appeals] lack[ed] jurisdiction over this appeal because the trial court

did not enter an appealable order as Bexar County Magistrates have no

authority to issue a final order regarding a writ of habeas corpus.” Id.

(emphasis added). But there is a difference between arguing that an order is

not appealable because it is not in writing and arguing that an order is not

appealable because it is not even a final order made by a proper judicial officer

and therefore subject to appeal.

In any event, ordinarily, “estoppel does not apply when the trial court

lacked jurisdiction.” See Ex parte Heilman, 456 S.W.3d 159, 167 (Tex. Crim.

App. 2015). And “[a]lthough only subject matter jurisdiction is categorically

immune from estoppel, Gutierrez v. State, 380 S.W.3d 167, 177 (Tex. Crim.

App. 2012), demonstrating estoppel to challenge some other type of jurisdiction

would seem to be an onerous task.” Ex parte Macias, 541 S.W.3d 782, 786 n.

23 (Tex. Crim. App. 2017). The court of appeals was obligated to examine

whether it had jurisdiction, regardless of the State’s arguments on rehearing.

See State v. Martinez, 548 S.W.3d 751, 760 (Tex. App.—Corpus Christi–

Edinburg 2018) (“We first must determine whether we have jurisdiction over

this . . . appeal.”). To now hold that this Court cannot consider the underlying

issue in this case on the same grounds as the court of appeals did, would be, in

effect, to hold that the court of appeals can be conferred jurisdiction by

estoppel. This, we will not do. Cf. Daniel v. Dallas Indep. Sch. Dist., 351 S.W.2d

356, 359 (Tex. App.—El Paso 1961, writ ref’d n.r.e.) (“[J]urisdiction of a court

is so important and essential that it has long been held that it cannot be

conferred by estoppel.”).

20 We therefore dismiss, as moot, the ground for review that we granted

on our own motion.

As to the statutory “conflict” the dissent alleges this opinion “creates,”

Dissenting Opinion at 9, we make two observations. First, to the extent that

Article 11.072’s requirement that “the trial court shall enter a written order

granting or denying the relief sought” conflicts with Section 54.912(b)’s

SINCLAIR – 26

of the court of appeals and remand the case to that court with

instructions to dismiss the appeal. TEX. R. APP. P. 78.1(d). The case

remains pending in the trial court.

FILED: July 31, 2024

PUBLISH

adoption-by-inaction provision, that conflict arises from the statutes’ plain

language, not because this Court “creates” it. TEX. CODE CRIM. PROC. art.

11.072 § 6(a); TEX. GOV’T CODE § 54.912(b). To “harmonize” the statutes so that

the magistrate judge’s recommendation would become the written order of the

trial court through inaction would require the Court to ignore: (1) the trial

court judge’s referral order, which did not authorize the magistrate judge to

rule on the merits of the application; (2) Article 11.072’s plain language, which

limits what a magistrate judge may do to “hold[ing] a hearing” and “mak[ing]

findings of fact”; and (3) Section 54.912(c), which requires the trial court judge

to explicitly “adopt[] the actions of the magistrate of which it approves.” See

TEX. CODE CRIM. PROC. art. 11.072 § 6(d); TEX. GOV’T CODE § 54.912(c). Second,

the dissent vastly overstates the extent and effect of what it deems to be the

“conflict.” It is true that in habeas cases seeking relief from an order of

community supervision, Article 11.072 requires the trial court judge to do more

than simply adopt a magistrate judge’s recommendation by utter inaction. But

the burden on the trial court judge is no more onerous than issuing an order

explicitly stating that it grants or denies relief as the magistrate judge

recommends.