I join the judgment and Part II.B. of the opinion of the Court. I write only to point out the conflict between today's opinion and two opinions the Court recently issued.

First I must point out the full nature of the trial court's error in suspending Williams's sentence. The trial court's affirmative finding of the use of a deadly weapon not only "rendered Williams ineligible for probation," as the Court says ante at 2, but also left the trial court without authority to suspend the sentence.

Texas courts do not have inherent power to grant probation. ⁽¹⁾ In 1931 a statute gave the courts authority, without the verdict of a jury, to suspend a sentence that was not more than five years in felony cases other than murder, perjury, burglary of a private residence at night, robbery, arson, incest, bigamy, seduction, or abortion. ⁽²⁾ The constitutionality of the 1931 act was never addressed. ⁽³⁾

In order to remove any doubt about whether the 1931 act intruded on the governor's power to pardon, the executive article of the Texas Constitution, Article IV, was amended by the addition of section 11A in 1935:

The Courts of the State of Texas having original jurisdiction of criminal actions shall have the power, after conviction, to suspend the imposition or execution of sentence and to place the defendant upon probation and to reimpose such sentence, under such conditions as the Legislature may prescribe.

This section has been called "a limited grant of clemency to the courts by the people." ⁽⁴⁾ It was not self-enacting, and required enabling legislation. ⁽⁵⁾

The only statute that authorizes a court to suspend a sentence without the recommendation of a jury (in a case that is not a state-jail felony) is article 42.12, section 3, of the Code of Criminal Procedure. The next section of the article takes away a trial court's authority to suspend a sentence under section 3 when the court makes an affirmative finding of the use of a deadly weapon.

The provisions of Section 3 of this article do not apply … to a defendant when it is shown that a deadly weapon as defined in Section 1.07, Penal Code, was used or exhibited during the commission of a felony offense or during immediate flight therefrom, and that the defendant used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited. On an affirmative finding under this subdivision, the trial court shall enter the finding in the judgment of the court. On an affirmative finding that the deadly weapon was a firearm, the court shall enter that finding in its judgment. ⁽⁶⁾

Therefore the trial court lacked authority to grant probation in this case.

Why does the Court not give the applicant relief? It says the applicant "fails to show any entitlement to relief under Heath because the trial court's unauthorized probation order did not constitute an illegal sentence." ⁽⁷⁾ This follows the reasoning of the Court in Speth v. State, ⁽⁸⁾ which the Court cites today (ante at 5). I continue to believe that is not satisfactory to take a definition of "sentence" from one statute and apply it to a case that does not involve that statute. ⁽⁹⁾ But the Court ignores the fact that, even if a probation order is not a "sentence," a void probation order may be attacked by habeas corpus. The Court said so last month. ⁽¹⁰⁾

The Court's denial of relief because of the distinction between "illegal" and "unauthorized" also fails to take into account its recent holding in Ex parte Seidel. ⁽¹¹⁾ There the district court dismissed a prosecution "with prejudice," which was beyond the scope of its proper authority. This Court held that part of the judgment was void and could be collaterally attacked by the State:

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. 1991) …. "Illegal acts" are defined as "acts that are not authorized by law." Black's Law Dictionary 598 (7th 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 (7th 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."

Support for the distinction between the two types of unauthorized acts is found in Davis. In Davis, this Court recognized that "judicial functions performed by one without any authority to act" may be void. We noted that a conviction was void if the trial judge was constitutionally or statutorily disqualified to preside over the proceedings. We further stated that "errors involving the violation of statutory procedure have not been deemed void, but voidable." 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. [Footnote 3:] For example, this Court has long held that a sentence is void when the punishment is unauthorized. 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. [End footnote 3.]

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." Since the trial court's dismissal "with prejudice" was void, it may be attacked either by direct appeal or collateral attack. 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. ⁽¹²⁾

The trial court acted without authority to suspend this applicant's sentence. Why was that order not void under Seidel?

The Court's second reason for denying relief to the applicant is:

Indeed, since he received probation anyway, eligible or not, it is hard to imagine how the illegality of that probation affected the voluntariness of his plea. In any event, it certainly did not contribute to his conviction or punishment. Rather, it did just the opposite - detracted from his punishment by allowing him a suspended sentence when he was not entitled to one. Williams fails to show that he was harmed by the illegal grant of probation.

This is a good argument. Unfortunately the Court just rejected it in Ex parte Busby. ⁽¹³⁾ The trial court granted shock probation to Busby when its period of jurisdiction had expired. After Busby violated the conditions of his probation, he asked this Court to give him credit against his sentence for the time he had enjoyed the probation. Although I thought his argument was laughable for the same reasons the Court gives today, ⁽¹⁴⁾ a majority of my brethren accepted it, saying he "should not be penalized" for asking for probation. ⁽¹⁵⁾ Today the Court refuses relief to the applicant without mention of Busby. Are Seidel and Busby different from this case? If so, how? If not, are they disavowed as Heath is?

En banc.

Delivered April 11, 2001.

Publish.

1. Lee v. State, 516 S.W.2d 151 (Tex. Cr. App. 1974).

2. See Act of April 9, 1931, 42nd Leg., R.S., ch. 43, § 4, 1931 Tex. Gen. Laws 65, 66.

3. One judge later was of the view that, except for the Adult Probation and Parole Law, the courts had no authority to suspend sentence without the verdict of a jury. See Ex parte Pittman, 157 Tex. Cr. 301, 306, 243 S.W.2d 159, 162 (1952) (opinion of Davidson, P.J.).

4. State ex rel. Smith v. Blackwell, 500 S.W.2d 97, 101 (Tex. Cr. App. 1973).

5. State v. Klein, 154 Tex. Cr. 31, 224 S.W.2d 250 (1949).

6. Tex. Code Crim. Proc. art. 42.12, § 3g.

7. Ante at 6.

8. 6 S.W.3d 530 (Tex. Cr. App. 1999).

9. See Speth, 6 S.W.3d at 535 (Womack, J., concurring).

10. See Ex parte Busby, No. 73,797, --- S.W.3d --- (Tex. Cr. App. March 7, 2001).

11. No. 1790-99,--- S.W.3d --- (Tex. Cr. App. February 28, 2001).

12. Speth, --- S.W.3d at ---, slip op. at 5-7 (citations omitted).

13. No. 73,797, --- S.W.3d --- (Tex. Cr. App. March 7, 2001).

14. See Busby, --- S.W.3d at ---, slip op. at 3-5 (Womack, J., dissenting).

15. See Busby, --- S.W.3d at --, slip op. at 5.