Kelly v. State

ONION, Presiding Judge,

concurring in part and dissenting in part.

Appellant was convicted on May 26, 1982, of burglary of a building, and his punishment was assessed at four (4) years’ confinement, probated. His probation was subsequently revoked and a four year sentence imposed.

On appeal appellant asserted the order revoking probation was void because his original conviction for burglary was fatally defective because it had been obtained by use of a magistrate under Article 1918c, Y.A.C.S., then in existence, and that said statute was unconstitutional. He further urged on appeal that even if the statute was held constitutional his cause or case was never properly referred to a magistrate as required by Article 1918c, supra.

The Austin Court of Appeals rejected appellant’s claim that Article 1918c, supra (Acts 1981, 67th Leg., p. 2546, ch. 678, eff. Aug. 31, 1981), was unconstitutional as a “local or special” law in contravention of Article III, § 56 of the State Constitution. The Court of Appeals also rejected appellant’s contention that there was no proper order of referral. The Court of Appeals held that a 1981 general order of referral, entered prior to the “referral” of appellant’s case to the magistrate, was sufficient to constitute a referral of appellant’s case under Article 1918c, supra. See Kelly v. State, 686 S.W.2d 742 (Tex.App.-Austin 1985).

We granted appellant’s petition for discretionary review to consider the correctness of the Court of Appeals’ decision as to the constitutionality of the said 1981 version of Article 1918c, supra. On our own motion we granted review to determine the correctness of the holding that the 1981 general order of referral was sufficient to refer the cause to the magistrate.

Appellant challenges the constitutionality of Article 1918c, Y.A.C.S., as originally enacted (Acts 1981, 68th Leg., p. 2546, ch. 678, eff. Aug. 31 1981) 1 as an impermissible “local or special law” in contravention of Article III, § 56, Tex. Const. Article 1918c, supra, provides for the appointment of magistrates by district judges in Dallas County whose courts give preference to the trial of criminal cases and by judges of criminal district courts of Dallas County, and provides for the magistrates to perform certain functions authorized by the statute. The statute is limited by its very terms to Dallas County.

Appellant relies upon the following portion of Article III, § 56 of the Constitution.

“Sec. 56 The Legislature shall not, except as otherwise provided in this constitution, pass any local or special law, authorizing:

* * * * * *

“Regulating the practice or jurisdiction of, or changing the rules of evidence in any judicial proceeding or inquiry before courts, justices of the peace, sheriffs, *49 commissioners, arbitrators or other tribunals, or providing or changing methods for the collection of debts, or the enforcing of judgments, or prescribing the effect of judicial sales of real estate. (Emphasis supplied.)

The courts have said from time to time that a law that applies only to a given locality is not a local law if the subject matter is of general interest or affects the State as a whole. See, e.g., Clark v. Finley, 93 Tex. 171 , 54 S.W. 343 (1899). The Constitution of the State of Texas: An Annotated and Comparative Analysis, Vol. I, 274. And a law is not a local law if it is a matter in which the State at large is interested. Lamon v. Ferguson, 213 S.W.2d 86, 88 (Tex.Civ.App.-Austin 1948, no writ).

Jones v. Anderson, 189 S.W.2d 65 (Tex.Civ.App.-San Antonio 1945), as other cases, noted the exception clearly set forth in said Article III, § 56. Finding that Article Y, § 1, another constitutional provision, authorized the creation of a criminal district, judicial district, criminal district court and a criminal district attorney of Bexar County, and the abolition of the office of County Attorney for Bexar County the Jones court rejected the claim that Article 52-161, V.A. C.C.P. (1925), was a special or local law.

Article V, § 1, Texas Constitution (Judicial power, courts in which vested):

“Section 1. The judicial power of this State shall be vested in one Supreme Court, in one Court of Criminal Appeals, in Courts of Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace and in such other courts as may be provided by law.

“The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto.” Adopted Nov. 4, 1980, eff. Sept. 1, 1981.

Much could be written of the history of Section 1 of Article V of the 1876 Constitution, 2 but suffice it to say that the first paragraph of Section 1 refers to constitutional courts, and the second paragraph thereof refers to “such other courts,” meaning courts other than constitutional courts, such as county courts at law, domestic relations courts, etc., often referred to as statutory courts. See Jordan v. Crudgington, 149 Tex. 237 , 231 S.W.2d 641 (1950); Johnson v. City of Dallas, 78 S.W.2d 265 (Tex.Civ.App.-Dallas 1934, writ ref’d.).

In the instant case the Court of Appeals in disposing of appellant’s contention that the Dallas County Magistrates’ Act (Article 1918c, supra) was a “local or special law” apparently utilized only the second paragraph of § 1 of Article V. The court wrote:

“Texas Const.Ann. art. V, Sec. 1 (Supp. 1985) provides, in pertinent part:

“ ‘The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other courts thereto.’

“The State contends that this section, rather than art. Ill, Sec. 56, is controlling in this case. We agree. We hold that art. 1918c is not an unconstitutional ‘local or special law,’ in violation of art. Ill, Sec. 56. The Legislature is authorized by art. V, Sec. 1 to create courts and organize those courts as they deem necessary. Appellant’s first ground of error.” (Emphasis supplied.)

By apparently utilizing only the second paragraph of said § 1 without much further discussion than above the Court of Appeals left its decision less than clear. Did the court intend to hold that Article 1918c, supra, created a statutory court (a Magistrate’s Court for Dallas County) under the second paragraph of § 1 of Article V, which if valid, would be an exception to *50 Article III, § 56? 3 Support for this conclusion is found in the fact that all the district courts in Dallas County referred to in Article 1918c, supra, and authorized to appoint magistrates are regular constitutional district courts created by the Legislature under the first paragraph of § 1, Article V, not the second paragraph. 4 The difficulty with this conclusion is that in Kelley v. State, 676 S.W.2d 104, 107 (Tex.Cr.App.1984), this Court, rejecting a claim that Article 1918c, supra, was, as a whole, unconstitutional as an attempt by the Legislature to delegate its constitutional authority for creation of courts to the county judiciary, held that Article 1918c did not create “courts” with independent jurisdiction, but simply authorized a procedure whereby magistrates, acting as surrogates and not judges, are appointed to assist the district court judges in certain limited matters. See also Scott v. State, 690 S.W.2d 256, 258 (Tex.Cr.App.1985); Howard v. State, 690 S.W.2d 252, 255 (Tex.Cr.App.1985). Kelley (not to be confused with the instant case), though decided earlier (July 3, 1984), was not cited by the Court of Appeals.

Whatever construction may be given to the Court of Appeals opinion, it is observed that the authority granted to the Legislature by Article V, § 1, Tex. Const., is plenary and has been so construed a number of times. Ex parte Spring, 586 S.W.2d 482, 484 (Tex.Cr.App.1978). This constitutional provision allows the Legislature to provide a flexible and adaptable judicial system. Ex parte Spring, supra; Harris County v. Stewart, 91 Tex. 133 , 41 S.W. 650 (1897). The Legislature has the exclusive authority to create constitutional district courts, fix their territorial jurisdiction and determine their number, etc. Pierson v. State, 147 Tex.Cr.R. 15 , 177 S.W.2d 975 (1944). Having the authority to create district courts, the Legislature, incident to such authority, has the power to provide for the proper functioning of such courts. This includes providing for the use of magistrates as in Article 1918c, supra. Such is an exception to the provisions of Article III, § 56, Tex. Const., prohibiting local or special laws. For the foregoing reasons, I concur in the result reached by the majority. The majority seems to have found the well-known rabbit trail and have erroneously analyzed the question, holding such things that the 194th District Court was created by § 7 of Article V rather than § 1. I dissent to the majority’s reasoning.

Turning to the general “Order of Referral,” I find that it was entered on October 1,1981. At that time appellant had already been indicted for the burglary, the indictment having been returned on September 8, 1981. Therefore, the said order referring to the “Magistrate’s Court” all “cases which have been indicted or have had such indictment duly waived by the defend-ant_” covered the instant case. The order also attempted to set out the scope of the magistrate’s duties. The instant order is a far cry from the one in Ex parte Stacey, 709 S.W.2d 185 (Tex.Cr.App.1986). While I do not retreat from the position I took in Stacey in my opinions on original submission or in dissent on rehearing, I conclude the order suffices as to the instant case. I concur in the result reached by the majority as to the order.

I fully understand the underlying but unexpressed concern of the majority as to the effect of now holding general orders such as in Stacey invalid, but my reading *51 of the statute clearly shows that one general 1981 Order of Referral was never intended to be good then and forever more and for all cases to come. Upholding such general orders as in Stacey, while admonishing courts to do otherwise, will not bring the change needed. I concur.

McCORMICK, J., joins in this opinion.

. Now see V.T.C.A., Government Code, §§ 54.-301-54.313.

. See generally Jordan v. Crudgington, 149 Tex. 237 , 231 S.W.2d 641, 644, 645 (1950); Tex.Jur. 3rd, Vol. 16, § 4, p. 232; The Constitution of The State of Texas: An Annotated and Comparative Analysis, Vol. I, p. 366.

. Article 2.09, V.A.C.C.P. (Who Are Magistrates), was amended in 1983 to include within that statute magistrates appointed under Article 1918c, supra (Acts 1983, 68th Leg., ch. 204, p. 883, eff. Aug. 29, 1983). Article 4.01, V.A.C.C.P. (What Courts Have Criminal Jurisdiction), was also amended in 1983 to include Article 1918c magistrates. These amendments were not mentioned in the instant opinion of the Court of Appeals.

The State in its brief filed in the Court of Appeals appears to rely upon all of § 1 of Article V, not just the second paragraph, but did advance an additional argument. “The State wishes, however, to additionally address the situation created should the magistrate’s court be viewed as a separate court contrary to the holding in Kelley v. State, supra [ 669 S.W.2d 329 (Tex.App.-Dallas 1983)]....”

. See Article V, §§ 1, 7 and 8, Texas Const.; V.T.C.A., Government Code, §§ 24.007, 24.008, 24.309, 24.373, 24.374, 24.382, 24.383, 24.431, 24.432, 24.433, 24.468, 24.469, 24.901, 24.902, 24.903, 24.904, 24.905; see also § 24.115.