IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 1790-99

THE STATE OF TEXAS

v.

CHARLES SEIDEL, JR., Appellee

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTH COURT OF APPEALS

O P I N I O N

On August, 17, 1997, appellee was arrested for felony driving while intoxicated and was released on a felony bond. The District Attorney's Office rejected the case on December 7, 1997 - it never filed an indictment or an information in district court. On April 16, 1998, appellee filed a writ of habeas corpus asserting that because the State delayed in obtaining an indictment as required under Texas Code of Criminal Procedure Article 32.01, the prosecution and bail should be discharged. The district court granted this motion on the merits, dismissing both the prosecution and the bail with prejudice. The State did not appeal the district court's ruling.

The Guadalupe County Attorney's Office then filed a complaint and information against appellee in county court, charging him with misdemeanor driving while intoxicated. On June 9, 1998, appellee filed a Special Plea of Collateral Estoppel, alleging that the County Attorney's Office was barred from prosecuting the misdemeanor driving while intoxicated because "the facts necessary to prove the case . . . are the exact same facts and elements which have resulted in a judgment which was terminated by a final order or judgment for the defendant that has not been reversed, set aside or vacated." Appellee also filed a pre-trial writ of habeas corpus, arguing that prosecution was barred by the Double Jeopardy Clauses of the United States and Texas Constitutions. The county court granted appellee's application, stating that because the prosecution was dismissed with prejudice, the State was not permitted to file a lesser charge stemming from the same transaction.

The State appealed the county court's ruling and asserted that the county court misapplied the applicable law, thereby abusing its discretion in granting appellee habeas relief. The court of appeals agreed with the State and concluded that although appellee was entitled to a discharge from bail, the State was not barred "from filing subsequent charges anytime within the limitation period." State v. Seidel, 2 S.W.3d 524, 526 (Tex. App.--San Antonio 1999). It found, however, that the "State waived this error when it failed to appeal the district court's order dismissing the prosecution with prejudice." Id.

This Court granted the State's Petition for Discretionary Review to determine whether "the State waive[s] its right to appeal an order dismissing an information by failing to appeal an earlier void order that purported to dismiss the prosecution 'with prejudice'." ⁽¹⁾ The State argues that the court of appeals holding conflicts with our decision in State v. Johnson, 821 S.W.2d 609 (Tex. Crim. App. 1991). Because the district court did not have the authority or jurisdiction to dismiss the felony driving while intoxicated "with prejudice," the State contends that order was void.

We first address whether the trial court had jurisdiction to dismiss the felony "with prejudice." Generally, a district court lacks jurisdiction over a case when an information or indictment has not yet been filed in that court. See Ex parte Dobbs, 978 S.W.2d 959, 962 (Tex. Crim. App. 1998) (stating that a district court has no jurisdiction of a criminal case until presented with an indictment or information.); Garcia v. Dial, 596 S.W.2d 524, 527 (Tex. Crim. App. 1980) (stating that "it is well settled that a valid indictment, or information if indictment is waived, is essential to the district court's jurisdiction in a criminal case."). In this case, an information or indictment had not yet been filed when the trial judge dismissed the bail and prosecution against appellee. The district court, however, had proper jurisdiction to act under the Speedy Trial Act because appellee was "held to bail for his appearance to answer any criminal accusation before the district court." See Tex. Code Crim. Proc. Ann. Art. 32.01.

Next, we address whether the district court had the authority to dismiss the prosecution with prejudice. In State v. Johnson, this Court stated, "a court may take a particular action only if that action is authorized by constitutional provision, statute or common law, or the power rises from an inherent or implied power." Id. at 612. Generally, a trial court does not have the power to dismiss a case unless the prosecutor so requests. See id. at 613. A trial court does, however, have the power to dismiss a case without the State's consent under Texas Code of Criminal Procedure Article 32.01. See id. at 612 n. 2. Article 32.01 provides,

When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation before the district court, the prosecution, unless otherwise ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant on or before the last day of the next term of the court which is held after his commitment or admission to bail or on or before the 180^th day after the date of commitment or admission to bail, whichever is later.

Tex. Code Crim. Proc. art. 32.01. Effective May 6, 1997, Article 28.061 ⁽²⁾, which bars further prosecution for a discharged offense, was amended, and that article no longer applies to a discharge under Article 32.01. Therefore, even if a defendant is entitled to discharge from custody under Article 32.01, that defendant is not free from subsequent prosecution. See 41 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 23.81 (Supp. 2000).

Because appellee was arrested after the change to Article 28.061 had taken effect, the district court in the instant case wrongly dismissed appellee's prosecution "with prejudice." There is no statutory or constitutional provision allowing a dismissal with prejudice, the prosecutor did not consent to a dismissal with prejudice, and the court had no inherent power to dismiss the prosecution with prejudice. See Johnson, 821 S.W.2d at 613. In sum, the district court did not have the authority to dismiss the prosecution "with prejudice." Therefore, the court of appeals correctly determined that "[appellee] was entitled to a discharge from bail because of the State's failure to timely file an indictment" and rightly noted that "Article 28.061 could not be properly used to bar the State from filing subsequent charges anytime within the limitation period." Seidel, 2 S.W.3d at 526.

The court of appeals erred, however, in failing to recognize that because the district court judge purported to dismiss the prosecution "with prejudice" beyond the scope of its proper authority, that part of the judgment was void. A trial court may have jurisdiction to act over a case, yet lack authority to act in a particular manner over that case. Lack of jurisdiction over a case renders the judgment void, and it may always be collaterally attacked. See Hoang v. State, 872 S.W.2d 694, 698 (Tex. Crim. App. 1993). Lack of authority to act in a particular manner may render the judgment either void or voidable depending on the type of the error, however. Unauthorized acts (or errors) can be characterized as either "illegal" or "irregular." See Davis v. State, 956 S.W.2d 555, 559 (Tex. Crim. App. 1997). See also Ex parte Banks, 769 S.W.2d 539, 544 (Tex. Crim. App. 1989) (Clinton, J., dissenting); Ex parte White, 98 S.W. 850, 851 (Tex. Crim. App. 1906). "Illegal acts" are defined as "acts that are not authorized by law." Black's Law Dictionary 598 (7^th ed. 2000). On the other hand, "irregular acts" are defined as "acts or practices that vary from the normal conduct of an action." Black's Law Dictionary 669 (7^th ed. 2000); see also Ex parte Shields, 550 S.W.2d 670, 675 (Tex. Crim. App. 1976) (stating that an irregularity is the "want of adherence to some prescribed rule or mode of proceeding"). While a judgment is merely "voidable for irregularity," it is "void for illegality." See White, 98 S.W. at 851.

Support for the distinction between the two types of unauthorized acts is found in Davis. 956 S.W.2d at 559. In Davis, this Court recognized that "judicial functions performed by one without any authority to act" may be void. Id. at 559. We noted that a conviction was void if the trial judge was constitutionally or statutorily disqualified to preside over the proceedings. See id. We further stated that "errors involving the violation of statutory procedure have not been deemed void, but voidable." Id. In sum, this Court recognized in Davis that errors involving statutory procedure are merely voidable. But it also acknowledged that other non-jurisdictional errors can render a judgment void. ⁽³⁾ See id.

In this case, the trial judge's dismissal "with prejudice" was more than a variance from the normal conduct; that action was outside the parameters of any rule or procedure in place at that time. We conclude that the trial judge's action was more than a mere violation of statutory procedure. The trial judge's action was not authorized by law and was, therefore, void. Cf. State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 5 (Tex. Crim. App. 1990) (stating that "[a] trial court judge is without legal authority to remove a District Attorney from a case and, as such, any order attempting to do so is void."); State ex rel Vance v. Clawson, 465 S.W.2d 164, 168 (Tex. Crim. App. 1971) (holding that because the trial court did not have authority to grant a defendant time credit, that part of the order attempting to grant the time credit was void.).

"A void judgment is a nullity from the beginning, and is attended by none of the consequences of a valid judgment. It is entitled to no respect whatsoever because it does not affect, impair, or create legal rights." Ex parte Spaulding, 687 S.W.2d at 745 (Teague, J., concurring). Since the trial court's dismissal "with prejudice" was void, it may be attacked either by direct appeal or collateral attack. See Ex parte Shields, 550 S.W.2d at 675. Therefore, in the instant case, the State was not required to appeal from the district court's dismissal "with prejudice" in order to bring a subsequent prosecution against appellee.

The judgment of the court of appeals is reversed, and the cause is remanded to that court for proceedings consistent with this opinion.

HOLLAND, J.

Publish

Date: February 28, 2001

1. In its petition for discretionary review, the State Prosecuting Attorney's Office presented two grounds for review. The list of granted petitions for discretionary review for January 19, 2000, erroneously indicated that we had granted both grounds. A check of the relevant paperwork indicates that we actually granted only ground one, which is discussed in this opinion. Therefore, the second ground is dismissed as improvidently granted.

2. Article 28.061 states,

If a motion to set aside an indictment, information, or complaint for failure to provide a speedy trial is sustained, the court shall discharge the defendant. A discharge under this article is a bar to further prosecution for the offense discharged and for any other offense arising out of the same transaction, other than an offense of a higher grade that the attorney representing the state and prosecuting the offense that was discharged does not have the primary duty to prosecute.

Tex. Code Crim. Proc. Art. 28.061.

3. For example, this Court has long held that a sentence is void when the punishment is unauthorized. See Ex parte Beck, 922 S.W.2d 181, 182 (Tex. Crim. App. 1996); Ex parte McIver, 586 S.W.2d 851, 854 (Tex. Crim. App. 1979). A punishment exceeding the statutory maximum is not outside the jurisdictional parameters of a trial court. Nevertheless, such a punishment renders the judgment void because it is illegal. i.e., unauthorized by law.