dissenting.
This Court should never expressly, or implicitly, overturn any law simply to affirm a conviction or to accommodate some county of this State.
Today, however, under the guise of clerical error, an aggressive and assertive majority of this Court makes an exception for Gregg County. I fear what exception the aggressive and assertive majority might create tomorrow. Nevertheless, Brewster and Loving Counties, please be patient as the aggressive and assertive majority will get to your counties in due time.
Recently, an aggressive and assertive majority of this Court held that the legal phrase “term of court” had no meaning in our law. See Ex parte Williams, 704 S.W.2d 773 (Tex.Cr.App., 1986) (Teague, J., dissenting opinion). Today, under the guise of clerical error, the aggressive and assertive majority proceeds to abolish the need in Gregg County for transfer orders, formal or informal, between its respective district courts.
The author of the majority opinion is badly mistaken when he states that there is clerical error in the judgment in this cause and clerical error in the order of the trial judge approving the record on appeal.
The parties in this cause inform us through their briefs that the indictment against Linda White Gray, hereinafter referred to as the appellant, was returned on January 28, 1979, to the 124th Judicial District Court of Gregg County. Judge David Moore was then the duly elected judge of that court. He was thereafter succeeded by Judge Alvin Khoury, who is still the judge of that court. On March 28, 1984, Judge Moore, while sitting as the presiding judge of the 188th Judicial District Court of Gregg County, granted the appellant probation. The State, in its brief on ap*610peal, puts it this way: “It should further be noted that the Appellant was originally tried before JUDGE DAVID MOORE of the 124th Judicial District Court sitting in the 188th Judicial District Court.” However, the record does not reflect how the case got to the 188th Judicial District Court, which omission I find causes the author of the majority opinion to commence hypothesizing, resulting in many erroneous conclusions.
The judgment of conviction correctly reflects that the appellant’s conviction occurred in the 188th Judicial District Court, and the appellant makes no complaint about the case being assigned to the 188th Judicial District Court. Her complaint goes to the lack of anything in the record to show that her case was lawfully transferred from the 188th Judicial District Court to the 124th Judicial District Court, in which her probation was revoked.
After granting the appellant probation in the 188th Judicial District Court, Judge Moore, apparently forgetting that he was then sitting as the judge of the 188th Judicial District Court, caused the clerk to have the records reflect that the appellant had been granted probation in the 124th Judicial District Court. This is the real gravamen that causes the author of the majority opinion to commence his travels in the wrong direction.
The appellant contended on appeal that because no formal or informal order transferring her case from the 188th Judicial District Court to the 124th Judicial District Court ever existed, this caused Judge Khoury, the duly elected judge of the 124th Judicial District Court, not to have jurisdiction to hear and determine the State’s motion to revoke. She is correct.
The Tyler Court of Appeals correctly agreed with the appellant and reversed the order of revocation. However, what the Court of Appeals also should have done was to urge this Court to expressly overrule the panel majority opinion of Davila v. State, 651 S.W.2d 797 (Tex.Cr.App.1983), which gave a strained construction and interpretation of the facts of that cause. Fortunately for the bench and bar the majority opinion does not mention Davila, supra, but I will.
Davila, supra, erroneously held, notwithstanding the clear and express language of Art. 42.12, Section 5, V.A.C.C.P., that in a county having two or more district courts, a formal transfer order need not be extant if a judge of one of the district courts, in whose court the defendant was not granted probation, hears and determines a State’s motion to revoke a defendant’s probation. For the reasons stated in the dissenting opinion that I filed in Davila, supra, this holding flies in the face of Art. 42.12, Section 5, supra. Davila, supra, should be expressly overruled.
Notwithstanding the fact that Davila, supra, was wrongly decided, it can easily be distinguished from this cause. In this cause, there is no evidence whatsoever of even an informal agreement between Judge Vascocu, who was then and is now the duly elected judge of the 188th Judicial District Court, and Judge Khoury, who is now the duly elected judge of the 124th Judicial District Court, that Judge Khoury could hear and decide the State’s motion to revoke the appellant’s probation. Because of this omission in the record, Judge Khoury lacked jurisdiction to hear and decide the State’s motion to revoke the appellant’s probation, and the Tyler Court of Appeals so held.
The decision of the Tyler Court of Appeals is correct. The majority opinion of this Court incorrectly reverses the judgment of that court, to which decision I respectfully dissent.