In an earlier proceeding, a district court, allegedly pursuant to art. 32.01 of the Texas Code of Criminal Procedure, dismissed with prejudice the prosecution against appellee for felony driving while intoxicated. Although such disposition was erroneous, the state did not appeal the ruling. ⁽¹⁾ The state then filed against appellee, in county court, a complaint and information which alleged the lesser-included charge of misdemeanor driving while intoxicated and collaterally attacked the earlier dismissal in district court in this later proceeding in the county court-at-law.

I agree with the majority that the trial court was not disqualified and had jurisdiction ⁽²⁾ in this cause. The dispositive issues here are whether the trial court had the authority to do what it did and what consequences flow from that authority or lack thereof. I disagree with the majority in its conclusions about the trial court's authority and the consequences which follow from those conclusions.

The majority cites to Davis v. State, 956 S.W.2d 555 (Tex. Crim. App. 1997), for the proposition that "errors involving the violation of statutory procedure are merely voidable." Ante, at ___ (slip op. at 6). The majority then concludes that the dismissal with prejudice in this cause was void, not voidable, because it was "outside the parameters of any rule or procedure in place at that time." Id. at ___ (slip op. at 6). That phrase could just as easily be used to describe a "violation of a statutory procedure," making it merely voidable. Davis, 956 S.W.2d at 559. The holding in Davis resolved the issue before that Court: whether the claimed error was a procedural irregularity, making the conviction voidable, or a jurisdictional error, rendering the conviction void. The Davis Court specifically stated that "if a judge is qualified and not constitutionally or statutorily disqualified, his actions are not void due to procedural irregularities . . . although it may be error rendering the conviction voidable." Id. Ex parte White, 98 S.W. 850 (Tex. Crim. App. 1906), also cited by the majority, notes only that the various matters complained of by the defendant in his writ of habeas corpus were "mere irregularities in the course of a judicial trial" which would merely render the judgment voidable, rather than void, and should have been appealed. Id. at 851. ⁽³⁾

It is also clear that, in certain circumstances, a trial court does have authority to dismiss an indictment without the consent of the prosecutor. For example, a trial court may grant a motion to quash, which effectively dismisses the indictment, or a plea in abatement alleging violation of the right to a speedy trial, and, in the context of a valid plea of double jeopardy, a trial court may properly dismiss a prosecution with prejudice. See, e.g., State v. Johnson, 821 S.W.2d 609, 612 & n.2 (Tex. Crim. App. 1991). In the instant case, the district court had jurisdiction and the authority to dismiss with the consent of the prosecutor, and, under certain circumstances, the authority to dismiss without consent, with or without prejudice. The question here then is, what happens when a court exceeds its authority? ⁽⁴⁾ I believe that the answer is that while the district court, by dismissing with prejudice, exceeded its authority, the error was not jurisdictional, and so the dismissal is not void but voidable. Thus, the state should have appealed the dismissal and should not now be allowed to attack it in the county court-at-law.

However, I do not believe that such reasoning should be used to significantly revise or limit our approach to applications for writs of habeas corpus. Although writ applications are often characterized as collateral attacks, clearly writs are quite different from the challenge presented in this case. "Collateral attack" has been defined as "an attempt to avoid, defeat, or evade [a judgment], or to deny its force and effect, in an incidental proceeding not provided by law for the express purpose of attacking it . . . An attack on a judgment in any manner other than by action or proceeding, whose very purpose is to impeach or overturn the judgment; or, stated affirmatively, a collateral attack on a judgment is an attack made by or in an action or proceeding that has an independent purpose other than impeaching or overturning the judgment." Black's Law Dictionary 260 (6^th ed. 1990) (citations omitted) (emphasis added). Habeas corpus is just such an "action or proceeding, whose very purpose is to impeach or overturn the judgment . . . . ." Being different in character, habeas must be treated differently.

I respectfully dissent.

Johnson, J.

Date Delivered: February 28, 2001

Publish

1. The record from the hearing on appellee's motion to dismiss indicates that the district court intended only to discharge bail, but the court later signed an order dismissing the prosecution with prejudice. The state neither appealed nor, apparently, called the court's attention to the discrepancy between the order and the intent stated by the court at the hearing.

2. In Davis, we noted that certain of our prior decisions confused the concepts of "jurisdiction" and "authority." Davis, 956 S.W.2d 555, 558 (Tex. Crim. App. 1997). "Strictly speaking then, jurisdiction encompasses only the power of the tribunal over the subject matter and the person." Id. at 558-59. The State Prosecuting Attorney urges that there was no jurisdiction because there was no charging document and, therefore, nothing to dismiss. That argument is foreclosed by the language of art. 32.01: "When a defendant has been . . . held to bail to answer any criminal accusation before the district court, the prosecution . . . shall be dismissed and the bail discharged, if indictment or information be not presented . . . ." Undeniably, appellee was held to bail on "an accusation before the district court," i.e. an accusation of felony driving while intoxication.

3. The White court failed to address the defendant's allegation that the trial court's adjournment on the day of his sentencing denied him the right to appeal.

4. In State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 5 (Tex. Crim. App. 1990), cited by the majority in support of its holding, the trial court effectively removed the district attorney from office by unilaterally recusing the entire district attorney's office, an action which was clearly "without authority or jurisdiction," as the court lacked jurisdiction over both the subject matter and the person of the district attorney. In addition, Eidson was a writ of mandamus, and the issues to be resolved turned on different concerns and standards. Id. Similarly, in State ex rel. Vance v. Clawson, 465 S.W.2d 164, 168 (Tex. Crim. App. 1971), which concerned an application for a writ of prohibition, this court determined that a trial judge did not have the authority to grant time credits under the relevant statutory provisions, and asserted, without explanation, that his order doing so was "void."