dissenting.
It has been said many times that innovative experiments involving the judiciary may be admirable, and even understandable, but such experiments must stay within the limitations imposed by the law.
Art. 5, Sec. 1, of the Texas Constitution, provides in part: “The judicial power of this State shall be vested in one Supreme Court, in Courts of Civil Appeals, in a Court of Criminal Appeals, in District Courts, in County Courts, in Commissioner Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law ...” “Magistrate’s Courts” are not listed.
The 67th Legislature, acting pursuant to Art. 5, Section 1, supra, enacted Art. 1918c, V.A.C.C., effective August 31, 1981, which authorized the creation of “Magistrates in Dallas County.”
Thereafter, effective August 29, 1983, the Legislature mandated that “the magistrates appointed by the judges of the district courts of Dallas County that give preference to criminal cases and the judges of the criminal district courts of Dallas County” are now statutory “magistrates.” See Art. 2.09, V.A.C.C.P. Persons who are now acting as magistrates in Dallas County pursuant to Art. 1918c, supra, are empowered, among other things, “to issue all process intended to aid in preventing and suppressing crime,” see Art. 2.10, V.A.C.C.P. This includes issuing search warrants, see Art. 18.01, V.A.C.C.P. Also see Chapter Six of the Code of Criminal Procedure.
Art. 4.01, V.A.C.C.P., has the following entitled caption: “What Courts Have Criminal Jurisdiction.” Under the statement, “The following courts have jurisdiction in criminal actions:,” the following is set out: “5. The magistrates appointed by the *113judges of the district courts of Dallas County that give preference to criminal cases and the judges of the criminal district courts of Dallas County as set out in Chapter 678, Acts of the 67th Legislature, Regular Session, 1981 (Article 1918c, Vernon’s Texas Civil Statutes).”
Although it may be argued that Art. 1918c, supra, is unconstitutional, it is not necessary to decide that question today.
Art. 1918c states that the magistrates provided by the act are to be appointed by the judges of the criminal district courts of Dallas County, subject to the consent and approval of the Commissioners Court of Dallas County. The magistrates serve at the will of the judges, not at the will of the people, and their services may be terminated at any time, “by majority vote of all the judges for whom the magistrate serves.” The only requirements to be a magistrate are the person appointed must be a resident of Texas and licensed to practice law in Texas for at least four years. The magistrate’s salary is determined by the Commissioners Court of Dallas County. Excepting a “trial on the merits, either with or without a jury,” and the prohibition that he “may not enter a ruling on any issue of law or fact of which the determination thereon could result in dismissal or require the dismissal of a pending criminal prosecution,” the magistrate is permitted to act in virtually the same capacity as a district judge. He may handle proceedings involving negotiated pleas of guilty; bond forfeitures; pretrial motions; postconviction writs of habeas corpus; examining trials; and “any other matters” that “his” judge deems necessary and proper. He is even given the power of contempt.
Under the statute, the magistrate obtains a case upon specific order of referral from “his” judge. The order must specify the duties the magistrate will perform in that case. After the magistrate has acted, he shall transmit to “his” judge all papers relating to the case, together with any findings, conclusions, orders, recommendations, or other actions taken. The magistrate’s judge “may modify, correct, reject, or reverse any action taken by the magistrate, or recommit it for further information, as the judge may deem proper and necessary in the particular circumstances of the case.” If no action is taken by the magistrate’s judge, then the magistrate’s actions “become the decree of the court.” At the conclusion of each term, the magistrate’s judge shall enter a decree adopting whatever actions the magistrate took on his behalf during that term.
The record of this cause reflects that an indictment was returned to Criminal District Court Number 4 of Dallas County, but was thereafter transferred by Hon. John Mead, the duly elected judge of that court, to the Criminal District Court of Dallas County, which case was received by Hon. Ron Chapman, the duly elected judge of that court.
On October 1, 1981, Judge Chapman entered a general order, wherein he “ORDERED that all cases which have been indicted, or have had such indictment duly waived by the defendant, and assigned to this Court are hereby referred to the Magistrate’s Court of Dallas County, Texas pursuant to Art. 1918c V.A.C.S., for the following proceedings: (thereafter are enumerated in general what is contained in Art. 1918c, supra.) [Emphasis Added]. However, in his general “Order of Referral,” Judge Chapman expressly authorized “the Magistrate’s Court” to do the following, which are not authorized by the statute: “(a) render a judgment in such plea; (b) sentence the defendant.”
I pause ’ to re-emphasize that no such thing as a “Magistrate’s Court of Dallas County, Texas” was created by the provisions of Art. 1918c, supra. The statute merely created the position of magistrate. One or more persons may be appointed by all of the criminal district judges to be magistrates. The judges may authorize one or more of the magistrates to share service with two or more courts. But, there is no such thing as a “Magistrate’s Court.” Thus, the magistrates act on an individual case basis per assignment from all of the criminal district judges.
*114In this instance, Hon. Howard Wilson acted as the magistrate in this cause. However, there is nothing in the record reflecting Wilson’s appointment as a magistrate by all of the criminal district judges of Dallas County, nor is there any assignment by Judge Chapman designating Wilson to act as a magistrate in this cause.
Because of what it states, I find the following most interesting:
Because there is not anything in this record which would reflect that Wilson was appointed to be a magistrate by all of the criminal district court judges of Dallas County, and because there is nothing in this record which would reflect that Judge Chapman specifically assigned this cause to Wilson, I would hold that everything Wilson did in this cause was void, and of no effect. In all due respect to Wilson, but based upon this record, Wilson might just as well have been an individual who walked in off one of the streets of Dallas into Judge Chapman’s courtroom' and was thereafter appointed by Judge Chapman to be a magistrate for his court.
Although I recognize that we are not dealing with a transfer of a cause from a district court to an inferior court, see Art. 21.26, Y.A.C.C.P., nevertheless, should less in the way of record documentary proof be expected than is required by Art. 21.26, supra, where, as the majority opinion states, this cause was “transferred” to the “Magistrate’s Court”? Because the proper documentation is not in the record, I would hold that Wilson was not authorized to act in this cause. Compare Austin v. State, 40 S.W. 724 (Tex.Cr.App.1897). In short, it has not been shown to my satisfaction that Wilson had “jurisdiction” to hear appellant’s cause.
Furthermore, Judge Chapman’s general “Order of Referral,” as applied to this cause, is a void order because nowhere therein is there any reference to this cause, by either style or number, nor is it stated in the order to which magistrate this cause was going to be referred to.
I find that the “Order of Referral” did not bestow “jurisdiction” upon a magistrate pursuant to Art. 1918c, supra. Therefore, it was unnecessary for the Court of Appeals to discuss or determine the actions of Wilson, or for this Court to discuss the decision of the Court of Appeals.
For all of the above reasons, I respectfully dissent to the majority’s needlessly writing on subjects that are not properly before this Court, as well as affirming this conviction.