(concurring).
I concur in the majority’s disposition of this habeas corpus action filed pursuant to Article 11.07, V.A.C.C.P.
Presented for this Court’s consideration is whether the indictment is fundamentally defective. If the indictment fails to allege an offense against the laws of Texas, then it was insufficient to invoke the jurisdiction of the trial court, and the conviction was void and subject to attack at any time. On the other hand, if the indictment is merely duplicitous, fails to give sufficient notice of what acts are charged, or fails to allege sufficient facts to bar a subsequent conviction, then any complaint would be of nonju-risdictional defects, and be deemed waived by the failure to make timely objection. See American Plant Food Corp. v. State, Tex.Cr.App., 508 S.W.2d 598, 604.
Our attention should therefore be directed to the sufficiency of the indictment to allege an offense against the laws of Texas. Because such a defect, if shown, is jurisdictional in that it goes to the power of the trial court to hear the case and to enter a judgment of conviction against him, it may be asserted at any time.
It is fundamental in our system of government that sovereignty resides in the people and that the State may exercise only those powers given to it by law, and only in the manner and according to the forms authorized by law. Courts may exercise only those powers granted them, and even those powers may be exercised only when the power to act is properly invoked. These principles are stated in many decisions of the high courts of this State, some of which follow.
Chief Justice Cureton, speaking for the Supreme Court of Texas in Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, wrote:
“ ‘Judicial power’ is the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for a decision. Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246; Liberty Warehouse Co. v. Grannis, 273 U.S. 70, 47 S.Ct. 282, 71 L.Ed. 541; 11 Texas Jurisprudence, pp. 711, 712, Sec. 9, and cases cited in the notes.”
*269“Jurisdiction” refers to the exercise of this power. In Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, Chief Justice Cureton stated this truth thusly:
“Jurisdiction is power to hear and determine the matter in controversy according to established rules of law, and to carry the sentence or judgment of the court into execution. Banton v. Wilson, 4 Tex. 400, 402; Withers v. Patterson, 27 Tex. 491, 496, 86 Am.Dec. 643; Templeton v. Ferguson, 89 Tex. 47, 54, 33 S.W. 329: G. T. & W. Ry. Co. v. Lunn (Tex.Civ.App.), 141 S.W. 538, 541; Corpus Juris vol. 15, pp. 723 to 726; Swift & Co. v. Memphis Cold Storage Warehouse Co., 128 Tenn. 82, 158 S.W. 480, 485.”
The Court of Criminal Appeals, speaking through Judge Davidson in Williams v. State, 145 Tex.Cr.R. 536, 170 S.W.2d 482, said, “. . . jurisdiction means the power of the court to hear and to determine the case.”
Necessary to the exercise of its power, a court must secure jurisdiction to do so, which jurisdiction is of three parts. This truth was expressed in Parr v. State, 108 Tex.Cr.R. 551, 1 S.W.2d 892, quoting from Taylor v. State, 81 Tex.Cr.R. 347, 197 S.W. 196, as follows:
“There are three questions, as a general proposition, of jurisdiction: First, of the person; second, of the subject-matter, and, third, the power of the court to render the particular judgment it does render. Without a concurrence of these there can be no legal authority in the court to try the case or render a judgment.”
For additional statements of the meaning of jurisdiction, see Emery v. State, 57 Tex. Cr.R. 423, 123 S.W. 133; Farmers’ Nat. Bank v. Daggett, Tex.Com.App., 2 S.W.2d 834, 839; Ex parte Armstrong, 110 Tex. Cr.R. 362, 8 S.W.2d 674; 16 Tex.Jur .2d, Criminal Law, Sec. 191; 22 C.J.S. Criminal Law § 107.
The requirement of jurisdiction before action is fundamental to our system of government. In State v. Klein, 154 Tex.Cr.R. 31, 224 S.W.2d 250, a writ of prohibition to prevent an unlawful exercise of power by the District Court of Willacy County issued after reasoning founded upon the principle, “For a court to act, it must have jurisdiction to do so. This is fundamental. 11 Tex.Jur., Courts, Sec. 9, p. 711; 12 Tex.Jur., Criminal Law, Sec. Ill, p. 385.”
All jurisdictional requirements must be satisfied or the court’s action, other than dismissal, is void. “There are three facts that seem to be absolutely necessary to the jurisdiction of the court or as jurisdictional questions: First, the court must have jurisdiction of the person; second, of the subject-matter; and, third, to render the particular judgment rendered. Otherwise, the prosecution will be void, as also the judgment." (Emphasis added.) Emery v. State, supra. “If the court has no jurisdiction, it should proceed no further with the case other than to dismiss it for want of power to hear and determine the controversy. In such a case, any order or decree entered, other than one of dismissal, is void.” (Emphasis added.) Hall v. Wilbarger County, 37 S.W.2d 1041, 1046 (Tex.Civ.App. — Amarillo 1931), affirmed, Tex.Civ.App., 55 S.W.2d 797. “If the trial court was without jurisdiction for any reason, the judgment rendered by it is void . .” State v. Olsen, Tex., 360 S.W.2d 398. “Since the Dallas county district court had no jurisdiction of this particular case, what was done therein was necessarily void, for judicial action without jurisdiction is void.” (Emphasis added.) Cleveland v. Ward, supra, at 1071. See also 15 Tex.Jur.2d, Courts, Sec. 50; 16 Tex.Jur.2d, Criminal Law, Sec. 181.
Because judicial action without jurisdiction is void, it cannot be waived and may be raised at any time. “Although most rights and procedural matters may be waived, jurisdictional matters may not be.” Casias v. State, Tex.Cr.App., 503 S.W.2d 262. “A judgment which is void is conclusive of nothing, and may be the subject of inquiry in a collateral proceeding.” Ex parte Duncan, 42 Tex.Cr.R. 661, 62 S.W. 758. “It is within the power of the parties to a lawsuit to waive simple irregularities affecting their rights; but they cannot waive such *270matters as jurisdiction in the court to hear and determine their controversies. . .” Hall v. Wilbarger County, 37 S.W.2d 1041 (Tex.Civ.App. — Amarillo, 1931), affirmed, Tex.Civ.App., 55 S.W.2d 797. See also, Farmers’ Nat. Bank v. Daggett, supra; Ex parte Armstrong, supra.
In recent days institutions of government have been the object of criticism for exercising powers they do not possess. It is common knowledge that the courts have not been immune from such criticism. All who exercise powers of government in the name of the people would do well to re-examine the source of such powers. The judiciary might well keep in mind the words of Chief Justice Stayton who in 1888, speaking for the Supreme Court of Texas in Stuart v. Anderson, 70 Tex. 588, 8 S.W. 295, 299, wrote, “The exercise or assumption of a power when a fact necessary to its existence is wanting, is usurpation.”
Prerequisite to the exercise of State power by a court to hear and determine a particular case is the proper invocation of the jurisdiction of that court. “Jurisdiction of a court must be legally invoked; and when not legally invoked, the power to act is as absent as if it did not exist.” State v. Olsen, 360 S.W.2d 398, 400; Ex parte Caldwell, Tex.Cr.R., 383 S.W.2d 587; Newton v. State, Tex.Cr.R., 509 S.W.2d 610, 613. To invoke that power for criminal prosecution, it is required that the State file a written pleading alleging facts that, if proven, would show the commission of an offense against the laws, which offense must be within the subject-matter jurisdiction of the court. See, e. g., Bass v. State, Tex.Cr.App., 427 S.W.2d 624, 626; Ex parte Vasquez, 122 Tex.Cr.R. 475, 56 S.W.2d 190; Bragg v. State, 109 Tex.Cr.R. 632, 6 S.W.2d 365; Parr v. State, 108 Tex.Cr.R. 551, 1 S.W.2d 892; Lott v. State, 18 Tex.App. 627. To prosecute for a felony, prior to enactment of Article 1.141, V.A.C.C.P., jurisdiction could be invoked only by the filing of an indictment. King v. State, Tex.Cr.App., 473 S.W.2d 43, 49. Even with the enactment of that article, it is still essential that the State’s pleading allege facts showing the commission of an offense within the jurisdiction of the court, for without such allegations the court is without power to proceed, and a conviction in such event is void and subject to attack at any time. See, e. g., Woodward v. State, 86 Tex.Cr.R. 632, 218 S.W. 760; Barnes v. State, 79 Tex.Cr.R. 395, 185 S.W. 2; Bass, Vasquez, Bragg, Parr, Lott, all supra.
This review of rules governing the powers of courts is made here in order that it may be clear to all that a jurisdictional defect in an indictment is something wholly different both in origin and in consequences from non-jurisdictional defects such as duplicity or want of sufficient notice. The latter may be waived while the former may not. Cf. Day v. State, Tex.Cr.App., 532 S.W.2d 302, 315, n. 7. In assessing an issue of adequate notice, it is proper to regard the State’s pleading with an eye from the defendant’s position, but in assessing the sufficiency of the State’s pleading to invoke the jurisdiction of the trial court, the allegations must be viewed objectively without regard to the defendant’s perspective, and the acts set out must be measured against the law they are supposed to violate. It is not enough to say that a defendant found the notice adequate, because notice is not at issue. It is the power of the court that is at issue.
It is obvious that the indictment in the case at bar fails to allege- that petitioner entered the habitation “with the intent to commit a felony or theft.” The allegation in the indictment that the petitioner intended to “exercise control over the property” is not sufficient to allege the crime of theft. Under V.T.C.A. Penal Code, Sec. 31.03, theft is defined, for our purposes, as occurring when a person “exercises control over the property, without the owner’s effective consent.”
The indictment being fundamentally defective, and not alleging an offense against the laws of Texas, it was insufficient to invoke the jurisdiction of the trial court and will not support a conviction; and therefore this conviction is void. See Standley v. *271State, Tex.Cr.App., 517 S.W.2d 538; Ex parte Roberts, Tex.Cr.App., 522 S.W.2d 461.
I therefore concur in granting the relief.