Hullum v. State

OPINION ON APPELLANT’S SECOND MOTION FOR REHEARING

BELCHER, Judge.

This case was assigned, on appellant’s motion for rehearing, to the writer as a Commissioner for consideration and recommendation of its disposition. After studying the record I prepared an opinion in which it was recommended that the case be reversed and remanded. This opinion was approved by the court and delivered October 12, 1966, but was thereafter withdrawn in the opinion on the State’s Motion for Rehearing delivered November 30, 1966.

On January 1, 1967, I became a constitutional member of this court.

The former opinion delivered October 12, 1966, reversing and remanding this case reads as follows:

“The trial was had on October 18, 1965, in the County Court at Law No. 2 of Travis County, on an indictment returned and filed in the 147th District Court of Travis County, Texas, charging the appellant with the offense of misdemeanor theft of ten dollars in money.

“Appellant contends that the trial court lacked jurisdiction over this cause on the ground that the indictment was not transferred to it from the 147th District Court in accordance with law.

“This contention was first raised in the motion for a new trial. At the hearing on the motion these facts were adduced. The order for transfer, when signed by the district judge, directed that the cause be transferred to ‘the County Court at Law of Travis County.’ The county clerk’s office did not file this order but returned it to the district clerk because the order failed to specify whether the cause was transferred to the County Court at Law No. 1 or County Court at Law No. 2 of Travis County, these being the only County Courts at Law of Travis County. The deputy district clerk, without the authority and knowledge of the district judge, inserted ‘No. 2’ immediately after the words, ‘County Court at Law,’ in the order, and returned it to the county clerk.

“Art. 5, Sec. 17, Tex.Const., in part reads as follows:

“ ‘Grand juries empanweled in the District Courts shall enquire into misdemeanors, and all indictments therefor returned into the District Courts shall forthwith be certified to the County Court or other inferior courts, having jurisdiction to try them for trial.’ ”

“Art. 419, C.C.P., provides:

“ ‘Upon the filing of an indictment in the district court which charges an offense over which such court has no jurisdic *199 tion, the judge of such court shall make an order transferring the same to such inferior court as may have jurisdiction, stating in such order the cause transferred and to what court transferred.’ ” (Now Art. 21.26, C.C.P.)

“Both County Courts at Law Nos. 1 and 2 of Travis County have jurisdiction in misdemeanor theft cases. Art. 1970-324 and 324a, R.C.S.

“Included in the inferior courts referred to in the above provisions of the constitution and the statute are the county court, county courts at law, justice courts and corporation courts.

“ ‘County courts have original jurisdiction in misdemeanor cases when the fine to be imposed exceeds $200, except where jurisdiction has been conferred on district courts or criminal district courts.

“ ‘Justices’ courts have original jurisdiction where the punishment may be by fine not in excess of $200, except where the offense involves official misconduct. * * *

“ ‘The corporation court and the justice of the peace have concurrent jurisdiction in cases arising under criminal laws, committed within the corporate limits, if the maximum fine is $200.

“ ‘The jurisdiction of justices’ courts over cases in which the fine may not exceed $200 is not exclusive; county courts have original concurrent jurisdiction with justices’ courts of misdemeanors cognizable in the latter courts, except where it has been otherwise provided, as in cases of misdemeanors involving official misconduct.

“ ‘The amendment of the Penal Code provision providing that the theft of property of the value of $5 or less is to be punished by a fine not exceeding $200 has been held not to deprive the county court of concurrent jurisdiction with the justice’s court.

“ ‘County courts at law and courts known as county courts at law No. 2 have been established in some counties and invested with original criminal jurisdiction. County courts of some counties have been divested of their criminal jurisdiction and such jurisdiction has been conferred on county courts at law.’ ” 16 Tex.Jur.2d 348, Sec. 193, and 341, Sec. 186.

“The judge of the district court in which an indictment is returned charging a misdemeanor offense over which such court has no jurisdiction has the duty of deciding the court or courts having jurisdiction of the offense charged, and the judge alone has the duty of deciding to what court he will transfer the cause, as the statute directs that ‘the judge * * * shall make an order transferring the same * * * stating in such order * * * to what court transferred.’

“The numerous misdemeanor offenses and the wide range of courts which may have jurisdiction of them impose the duty upon the judge of the court in which the misdemeanor indictment was returned of deciding to which one of said courts he will transfer the case. Concurrent jurisdiction for the same misdemeanor offense charged in an indictment may be in a county court, one of several county courts at law, a justice court, or a corporation court.

“The insertion by interlineation of ‘No. 2’ following ‘County Court at Law’ in the order previously signed by the judge was unauthorized. Although the order of transfer relied on is regular on its face, the evidence adduced on the motion for new trial and as certified in a formal bill of exception shows that such order is not the order as signed by the judge, and that the interlineation was made without the judge’s knowledge. The deputy district clerk had no power to materially change the order of transfer and make it express something that the judge had not pronounced.

*200 “The transfer of this case was authorized only by virtue of the power and authority conferred by the provisions of the constitution and the statute mentioned. This being true, it inevitably follows that under the statute, the transfer of this case to an inferior court having jurisdiction to try it was alone at the option and within the exercise of the right given the district judge to decide to what court the cause would be transferred.

“47 Tex.Jur.2d 149, Sec. 114, reads as follows:

“ ‘It is a general rule that public duties must be performed and governmental powers exercised by the officer or body designated by law; they cannot be delegated to others. This is particularly true of duties that are judicial in their nature, or that call for the exercise of reason or discretion.’ ”

“From the record, it is concluded that the order relied on in transferring this case to the County Court at Law No. 2 of Travis County was void. The unauthorized alteration of the order made in contravention of the statute was one of substance and constitutes error that may be raised for the first time after verdict.”

We were in error in withdrawing the foregoing opinion granting appellant’s motion for rehearing, and in applying the rule that any complaint of irregularity in the transfer of the case from the district court to County Court at Law No. 2 should have been raised prior to trial. It is apparent from the record that neither appellant nor his counsel was aware of the fact that the district judge had not authorized the insertion in his order transferring the case to the County Court at Law “No. 2” so as to make it appear to be his order transferring the case to County Court at Law No. 2 of Travis County where the case was tried, until the hearing on their motion for new trial. The state does not contend otherwise.

We further observe that we were in error in concluding that the equivocal, uncertain and conflicting testimony of the complainant as to representations made by appellant prior to the release of her sons from Gardner House and the undisputed fact that she voluntarily paid appellant $10 several days after the boys had been released and she had been told by the juvenile officer that they were being probated to her, was sufficient to sustain a finding that appellant obtained the $10 from the complainant “upon his false representation that he could get her boys out of the juvenile home.” She knew that the boys were out when she paid appellant the $10.

The affidavit, signed statement and oral statements attributed to complainant, as well as her testimony at the trial and at the hearing on appellant’s claim of denial of due process, convince us of the correctness of her statement that she was not sure just what R. C. Hullum told her.

For the reasons stated, appellant’s second motion for rehearing is granted and the judgment is now reversed and the cause remanded.