I cannot agree that a piece of paper purporting to be the final judgment in a criminal case, signed by a magistrate and not the district court judge, constitutes a final judgment of the Criminal District Court No. 2 of Dallas County, Texas. Consequently, I respectfully dissent.
In his third point of error, appellant contends that the trial court committed reversible error by permitting the jury to consider the second paragraph in the indictment because the conviction set out in that paragraph was not shown to be a legal conviction. I agree with appellant and write to express my disagreement with the majority in its disposition of appellant's third point of error. I would hold that the conviction used for enhancement of punishment in trial court cause number F86-96667-QR, court of appeals number 05-86-00807-CR, is void on its face. I agree with the majority's holding that the evidence is sufficient to support appellant's conviction. Consequently, I would sustain appellant's third *Page 682 point of error and reverse and remand trial court cause number F86-96667-QR, court of appeals number 05-86-00807-CR.
From a "willingness . . . to approve of a `rubber stamp' judicial system," see Kelley v. State, 669 S.W.2d 329, 333 (Tex.App. — Dallas 1983) (Whitham, J., concurring)rev'd 676 S.W.2d 104 (Tex.Crim.App. 1984), to a willingness to presume that a district court judge conducted a hearing even though the transcript of the proceedings recites that it was heard before a magistrate, see Ex parteStacey, 682 S.W.2d 348, 351-56 (Tex.App. — Dallas 1984) (Whitham, J., dissenting) rev'd 709 S.W.2d 185 (Tex.Crim.App. 1986), to a willingness to tolerate "waiver" of a defendant's right to have his cause determined by a judge,see Ex parte Allen, 699 S.W.2d 886, 889-91 (Tex.App. — Dallas 1985, pet. ref'd) (Whitham, J., dissenting), to a willingness to tolerate unwritten findings by the magistrate,see Allen, 699 S.W.2d at 891 (Whitham, J., dissenting), our decisions concerning the Magistrates Act have eroded any right a defendant may have to have his cause decided by one vested with judicial power under the Texas Constitution. We have now come full circle.
Today, the majority takes the final step and holds that a judgment signed by a magistrate, is a valid, final, subsisting judgment. Article V, Section 1 of the Constitution of the State of Texas provides:
The judicial power of this State shall be vested in one Supreme Court, in one Court of Criminal Appeals, in Courts of Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law.
The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto.
Article V, Section 7, of that Constitution provides for the creation of judicial districts and for the election of judges for those district courts. Article V, Section 8 of that Constitution provides that "[t]he District Court shall have original jurisdiction in all criminal cases of the grade of felony." The majority's opinion confirms my expressed concern about the magistrate system under the Magistrates Act, TEX.GOV'T CODE ANN. § 54.301, et seq. (Vernon Supp. 1987). Today, the majority approves a magistrate system in which the judges of district courts create other district courts and appoint the judges of those courts. SeeKelley, 669 S.W.2d at 333. Indeed, the docket sheet of the complained-of cause identifies the magistrate as a "Visiting Judge." Furthermore, numerous court papers in the complained-of cause identify the magistrate as "judge." To my mind, such a magistrate system is contrary to the provisions of Article V, Sections 1, 7, and 8 of the Constitution of the State of Texas. When the disqualification of a judge arises from a constitutional or statutory provision, it cannot be waived; the judgment is void and is subject to collateral attack. Ex parte Miller, 696 S.W.2d 908, 910 (Tex.Crim.App. 1985). Contrary to the majority, in my view, the Constitution of the State of Texas does not contemplate a judicial system in which a judge of a district court becomes an absent figure in the disposition of a case pending in that court. To my mind, the Constitution of the State of Texas requires that the judge of the court make the ultimate judicial determination of a defendant's conviction and sentence. Consequently, I conclude that the Constitution disqualifies a magistrate from signing a judgment. Thus, the judgment at issue in the present case is void. Indeed, it is not a judgment at all.
The majority holds that "where, for purposes of enhancement, the State makes a prima facie showing that a judgment of prior conviction and sentencing is regular on its face, there is apresumption of regularity of the judgment." (Emphasis in original). What the majority fails to explain, however, is how a judgment and the resulting sentence can be regular on its face when, on its face, the judgment and the resulting sentence shows that it was signed by one totally lacking any judicial *Page 683
power. I quote the signature portion of such judgment and resulting sentence:
Heard by Judge Patterson [the magistrate] for Judge Metcalfe [the district court judge]
(S) M. Boyd Patterson, Jr. Judge
To my mind, such a judgment and resulting sentence is void. The majority's holding is contrary to the Constitution of the State of Texas, contrary to the express language of the Magistrates Act, and contrary to every opinion construing the Magistrates Act.
"Judicial power" as envisioned by the Article V, Section 1 of the Constitution of the State of Texas embraces "(1) The power to hear facts, (2) the power to decide the issues of fact made by the pleadings, (3) the power to decide the questions of law involved, (4) the power to enter a judgment on the facts found in accordance with the law as determined by the court, (5) and the power to execute the judgment or sentence."Morrow v. Corbin, 122 Tex. 553, 560-61, 62 S.W.2d 641, 645 (1933); Kelley v. State, 676 S.W.2d 104, 107 (Tex.Crim.App. 1984) (emphasis added).
Mengel Box Co. v. Fowlkes, 135 Tenn. 202, 186 S.W. 91, 92 (1916).A court is an instrumentality of sovereignty, the repository of its judicial power, with authority to adjudge as to the rights of person or property between adversaries. The presence of a judge or judges is necessary as an essential element of a court. A "court" was defined by Bacon to be "an incorporeal being, which requires for its existence the presence of the judges or a competent number of them."
The State of Texas, as sovereign, has placed none of its judicial power, with authority to adjudge as to the rights of person or property between adversaries, in magistrates appointed pursuant to the Magistrates Act. The State of Texas, as sovereign, created district courts, and provided for judges of those courts, in Article V, Sections 1 and 7 of its Constitution and placed its judicial power in all criminal cases of the grade of felony in those district courts. TEX. CONST. art. V, § 8. Accordingly, the court of criminal appeals has held that magistrates appointed pursuant to the Magistrates Act are neither courts nor judges, but only individuals possessed of certain qualifications appointed to perform certain limited duties for instrumentalities of the State of Texas that are, indeed, true courts. See Rabb v.State, 730 S.W.2d 751, 752-54 (Tex.Crim.App. 1987);Kelley, 676 S.W.2d at 107.
In every opinion construing the Magistrates Act, the courts have continued to emphasize that magistrates lack the power to make ultimate judicial determinations. "No act of the magistrate is legally binding unless and until the magistrate's actions are adopted by the referring court." Kelley, 676 S.W.2d at 107. "[Magistrates] have no power of their own and are unable to enforce any rulings." Id. "Magistrates act only as agents of the district court, with proper supervision by the district court." Id. "The district judges must approve the recommendations and supervise the magistrates in the performance of their duties." Scottv. State, 690 S.W.2d 256, 258 (Tex.Crim.App. 1985). "Since a defendant's plea [of guilty] is not final unlessand until the district judge adopts the actions of themagistrate, the magistrates may properly take pleas offered as part of a plea bargain." Id. (emphasis added). "As long as the magistrate acts within the scope of his authority, the judge adopts the magistrate's actions, and the judge presides over any matters notsubject to delegation to the magistrate [the Magistrates Act] is not violated." Scott, 690 S.W.2d at 259 (emphasis added). "Where . . . the judgment of the courtis an independent action of the court and the magistrate's role is limited to advisory and factfinding functions . . . we see no error in permitting the magistrate to preside over the hearing to proceed to adjudication." Ex parte Howard,685 S.W.2d 672, 674 (Tex.Crim.App. 1985) (emphasis added). "A defendant's probation is not finally revoked unless and until the district judge . . . adopts the recommendations of the magistrate. . . . The final revocation, however, is made by the district judge with proper constitutional authority."Jones v. State, 728 S.W.2d 801, *Page 684 at 803 (Tex.Crim.App. 1987). Cf. United States v.Raddatz, 447 U.S. 667, 683, 100 S.Ct. 2406, 2416, 65 L.Ed.2d 424 (1980) (Federal Magistrates Act does not violate article III of the United States Constitution "so long asthe ultimate decision is made by the district court" ) (emphasis added).
My research has revealed only two cases in which it appears that a magistrate entered the judgment of conviction and assessed punishment. Both cases are distinguishable from the present case. In Kelly v. State, 724 S.W.2d 42 (Tex.Crim.App. 1987), the opinion states that "Magistrate Wilson thereafter convicted appellant of committing the felony offense of burglary of a building and sentenced him to a term of four (4) years' confinement in the Texas Department of Corrections, which Wilson ordered probated." Id. at 43. However, the opinion further states that "Judge Kinkeade approved in all things Magistrate Wilson's actions."Id. at 43-44. In Rabb the opinion states that "the magistrate accepted the appellant's pleas of guilty and assessed punishment at ten years' confinement in the Texas Department of Corrections in each case." 730 S.W.2d at 751. However, the opinion further states "[t]hereafter, the district court judge ordered appellant placed on probation in all three cases." Id. To my mind, each of these cases illustrate that the final judicial determination in sentencing a defendant and assessing his punishment must be made by the trial court judge and not by the magistrate.
Apparently, the majority believes that because the conviction used for enhancement resulted from a plea of guilty, the magistrate was empowered, under section 54.306(a)(1) of the Magistrates Act, to enter the final judgment and sentence in that cause. I cannot agree. In Howard v. State, 690 S.W.2d 252 (Tex.Crim.App. 1985), the court of criminal appeals held that it was not error to permit the magistrate to preside at a hearing on a plea of guilty when the parties had not agreed on the punishment to be assessed. In doing so, however, the court emphasized that the sentencing must be performed by the court. The court stated:
Howard, 690 S.W.2d at 255-56 (emphasis added).The magistrates act as agents of the district courts and have no authority of their own . . . magistrates were to assist the courts by processing those matters not requiring ultimate judicial determinations. . . . The portion of the trial requiring judicial determination, appellant's sentencing, was properly held before a district court judge.
Thus, I conclude that sentencing is an act of ultimate judicial determination that cannot be performed by a magistrate. I conclude that when the Constitution of the State of Texas created district courts and vested jurisdiction of the present case in one of those courts, that Constitution requires that the person occupying the office of judge of that court — and not a surrogate appointed by that judge — make the ultimate judicial decision concerning the defendant's sentence.
Nor can I find any language in the Magistrates Act that would lend support to the majority's determination that a judgment signed by a magistrate is a valid judgment which can be used for enhancement of punishment. The Magistrates Act provides:
*Page 685(a) Except as limited by an order of referral, a magistrate to whom a case is referred may:
(1) conduct hearings;
(2) hear evidence;
(3) compel production of relevant evidence;
(4) rule on admissibility of evidence;
(5) issue summons for the appearance of witnesses;
(6) examine witnesses;
(7) swear witnesses for hearings;
(8) make findings of fact on evidence;
(9) formulate conclusions of law;
(10) rule on a pretrial motion;
(11) recommend the rulings, orders, or judgment to be made in a case;
(12) regulate proceedings in a hearing; and
(13) do any act and take any measure necessary and proper for the efficient performance of the duties required by the order of referral.(b) A magistrate may not enter a ruling on any issue of law or fact if that ruling could result in dismissal or require dismissal of a pending criminal prosecution, but the magistrate may make findings, conclusions, and recommendations on those issues.
TEX.GOV'T CODE ANN. § 54.308 (Vernon Supp. 1987) (emphasis added). I find no provision contained in section 54.308 that would permit a magistrate to enter a final judgment; under subsection (a)(11) of section 54.308 the magistrate may onlyrecommend the judgment to be entered. Section 54.311 of the Magistrates Act provides that:
At the conclusion of the proceedings, a magistrate shall transmit to the referring court any papers relating to the case, including the magistrate's findings, conclusions, orders, recommendations, or other action taken.
TEX.GOV'T CODE ANN. § 54.311 (Vernon Supp. 1987) (emphasis added). I find no provision contained in section 54.311 that would permit a magistrate to enter a final judgment; under section 54.311 the magistrate shall forward to the referring courts its findings, conclusions, orders, recommendations, or other action. Section 54.312 of the Magistrates Act provides:
(a) A referring court may modify, correct, reject, reverse, or recommit for further information any action taken by the magistrate.
(b) If the court does not modify, correct, reject, reverse, or recommit an action of the magistrate, the action becomes the decree of the court.
(c) At the conclusion of each term during which the services of a magistrate are used, the referring court shall enter a decree on the minutes adopting the actions of the magistrate of which the court approves.
TEX.GOV'T CODE ANN. § 54.312 (Vernon Supp. 1987). To my mind, the court cannot "modify, correct, reject, reverse, or recommit" the cause if the magistrate has entered a final judgment of conviction; thus, the magistrate has become vested with full judicial power, unfettered by any supervision by the judicial officers in whom our constitution vests judicial authority.
Finally, I conclude that even under its own holding that the presumption of regularity in the judgment must prevail the majority is incorrect. The majority states that:
On a collateral attack, in the absence of an affirmative showing to the contrary, we will not assume that the case was unreferred or that Judge Metcalfe violated the Magistrates Act by neglecting to properly review and adopt the magistrate's actions as required under section 54.312 of the Act.
Appellant made an affirmative showing to the contrary. The record reflects the following at trial:
[Defense Attorney]: Judge, I just want to state on the record that I have gotten the jacket in Cause Number F-83-89507 [the conviction complained of here] which is one of the convictions the State relies upon, I believe in paragraph number two. I simply want to have this marked as Defendant's Exhibit Number 2, I suppose, if my memory serves me correct, and I want to offer this to the Court in just a second for the Court to peruse.*Page 686The main thing I want to bring the Court's attention concerning this particular case, is that the judgment doesn't bear the signature of any criminal district judge that has ever been elected to office in the County of Dallas, Texas.
It recites in the judgment that the case was heard by Judge Patterson sitting for Judge Metcalf[e]. On the front of the jacket — Well, it bears the signature, as I read it, M. Boyd Patterson, Junior who we know to be a magistrate here in Dallas County, Texas.
And I'll bring to the Court's attention that no where in the jacket is there a signed waiver of having the case heard by the elected district judge for this court which was Criminal District Court Number 3 — no, Number 2, of Dallas
County, Texas in the month of May of 1983. Nor is there a magistrate check list, nor is there an order approving or adopting the acts of the criminal district court magistrate by Judge Metcalf[e].* * *So with that I'll just mark this as Defendant's Exhibit 2 and if the State has no objection I'll just tender that to the Court so the Court can look it over.
[State's Attorney]: I have no objection.
THE COURT: Admitted.
[State's Attorney]: This is the first I've heard of it as far as judgment set F-83-89507-I.Judge Patterson is a magistrate and took his plea pursuant to the magistrate system here in the county. And I think that's it's proper.
(Emphasis added). From this, I conclude that the State conceded that "Judge Patterson," whose name appears on the complained-of judgment is, in fact, a magistrate. I further conclude from my review of Defendant's Exhibit two that appellant presented uncontroverted evidence that the "jacket" in the complained-of cause does not contain "a signed waiver of having the case heard by the elected district judge." I further conclude from my review of Defendant's Exhibit two that appellant presented uncontroverted evidence that the "jacket" in the complained-of cause does not contain an order approving or adopting the acts of the criminal district court magistrate. Consequently, I cannot agree with the majority that appellant failed to sustain his burden of showing that the judgment was void. It follows, and I would so hold, that even if the presumption of regularity applies to a judgment which, on its face, shows that it was entered by one lacking any judicial authority, that presumption has been overcome by appellant in the present case.
For all of the above reasons, appellant has met his burden, in his collateral attack on the complained-of judgment, of showing that such judgment was void. Accordingly, I would reverse the conviction in trial court cause number F86-96667-QR, court of appeals number 05-86-00807-CR, and remand the cause to the trial court for a new trial. I agree with the majority that the conviction in the companion case in trial court cause number F86-96664-QR, court of appeals number 05-86-00806-CR must be affirmed.
ADDENDUM I agree with the majority that the conviction in the companion case in trial court cause number F86-96664-QR, court of appeals number 05-86-00806-CR must be affirmed. I do so in light of the majority's holding in Rose v. State, 724 S.W.2d 832 (Tex.App. — Dallas 1986, pet. granted). Nevertheless, I remain of the opinion that article 37.07, section four of the Texas Code of Criminal Procedure is invalid and unconstitutional for the reasons expressed in my dissent inRose.