# Ex Parte Ramos

> Court of Criminal Appeals of Texas · July 15, 1998 · 977 S.W.2d 616

URL: https://www.frixlaw.com/law-library/cases/9684817

## Case

- **Full name:** Ex Parte Roberto Moreno RAMOS
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** July 15, 1998
- **Citations:** 977 S.W.2d 616; 1998 Tex. Crim. App. LEXIS 96; 1998 WL 391834
- **Precedential status:** Published
- **Opinion:** Concurrence by Baird
- **Judges:** Womack, McCormick, Mansfield, Price, Holland, Baird, Overstreet, Keller, Meyers
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9684817

## How later opinions describe it (automated extraction)

- stating that because five of the habeas petitioner’s claims “have already been raised and rejected on the direct appeal from this conviction[, t]hey will not be addressed on habeas corpus”

## Opinion text

BAIRD, Judge,
concurring.
The order of the Court correctly sets forth the series of events resulting in the untimely filing of the instant application. I concur with the decision to deny relief but write separately to demonstrate the obvious inconsistency between Ex parte Smith, 977 S.W.2d 610 (Tex.Cr.App.), and the instant case.
The Smith Court refused to reach the merits of the untimely filed habeas application. The unmistakable mandate from Smith was “an applicant cannot establish good cause for untimely filing of an application filed after the 91st day after the applicable filing date.” Ibid., (citing Tex.Code Crim. Proc. Ann. art. 11.071 § 4(D). I dissented, believing the Court should have exercised its original jurisdiction to reach the merits of the habeas application. 1
*618 Now, the present majority resolves the identical situation in an entirely different way. They acknowledge that when Tex.Code Crim. Proc. Ann. art. 11.071 is “literally applied,” there can be no good cause for the reason the application was untimely filed. However, such a “literal application, would deny applicant the due course of law of the land.” Therefore, the majority purports to address the merits of applicant’s claims and denies relief. The majority’s advancement of the due course of law theory is devoid of any citations or legal analysis.
What is the law in one case is entirely different in another case presenting the identical issue. How can a habeas court which lost jurisdiction when the application was untimely, see Smith, retain jurisdiction when the statutory period has elapsed? It simply cannot. To hold as the present majority does would permit the parties to confer jurisdiction by agreement — a proposition that has been settled contrary to the present majority for decades. 2
The only jurisdiction under which we may consider the merits of the instant application is our original jurisdiction. Tex. Const. Art. V, Sec. 5. Despite their sleight of hand antics, the majority correctly determines the merits of applicant’s claims do not entitle him to relief. To that decision, I concur, but their delivering two totally conflicting opinions on the same day is shameful and will only lead to confusion in the future.
. In Smith, supra, Judge Womack intimated the dissenters betrayed our oaths of office because we believed the application should be considered. Judge Womack stated:
... Our oaths are to uphold the constitutions and laws of this country and state; they are not a commission to do what a majority of us think is fair. The law was passed by the legislature and approved by the governor, in ac *618 cordance with our constitutional form of government. The law is clear: this court shall dismiss this application because it was filed late. If the law is barbarous, the legislature should repeal it or the governor should commute or pardon those who are subjected to it. In the meantime, we must follow it.
Smith, at 611. (emphasis supplied). The majority opinion here makes no meaningful distinction between the instant case and Smith.
. In State v. Roberts, 940 S.W.2d 655, 657 (Tex.Cr.App.1996) this Court held, "... subject matter jurisdiction cannot be conferred by agreement of the parties; jurisdiction must be vested in a court by constitution or statute.”(citing Garcia v. Dial, 596 S.W.2d 524, 527 (Tex.Cr.App.1980)); and, Ex parte Caldwell, 383 S.W.2d 587, 589 (Tex.Cr.App.1964) If the parties cannot agree to confer jurisdiction they should not be able to confer jurisdiction by mistake as the majority now permits. Ante, at 617, slip op. pg. 3.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9684817. Public record. Not legal advice.