dissenting.
The majority overrules the State’s motion for rehearing without written opinion. On original submission a majority of the Court reversed the order of the district court denying habeas corpus relief and remanded the cause so that petitioner could be afforded an examining trial. At issue in this appeal is the legislative intent behind V.T. C.A., Family Code, Section 54.02(h) (Amended by Acts 1975, 64th Leg., p. 2156, ch. 693, § 16), which provides:
“(h) If the juvenile court waives jurisdiction it shall state specifically in the order its reasons for waiver and certify its action, including the written order and findings of the court, and transfer the child to the appropriate court for criminal proceedings. On transfer of the child for criminal proceedings, he shall be dealt with as an adult and in accordance with the Texas Code of Criminal Procedure, 1965. The transfer of custody is an arrest. The examining trial shall be conducted by the court to which the case was transferred, which may remand the child to the jurisdiction of the juvenile court.” (Emphasis supplied).
We should grant the State’s motion for rehearing and hold that the Legislature, by its enactment of Section 54.02(h), did not intend that an indictment returned against a juvenile, after waiver and transfer from the juvenile court, should be void for failure of the district court to conduct an examining trial prior to the return of the indictment.
We should not consider this question in a habeas corpus proceeding before trial. The proper remedy, if any, lies not in habeas corpus but by appeal to this Court. We have often stated that habeas corpus may not be used as a substitute for appeal. Ex parte Powell, 558 S.W.2d 480 (Tex.Cr.App.1977); Mixon v. State, 365 S.W.2d 364 (Tex.Cr.App.1963); Ex parte Eldridge, 154 Tex. Cr.R. 50, 224 S.W.2d 262 (1949). Neither may it be used, as it is in this case, to test the validity of an indictment. Ex parte Oliver, 374 S.W.2d 894 (Tex.Cr.App.1964); Ex parte Brannon, 163 Tex.Cr.R. 311, 290 S.W.2d 914 (1956). In the absence of a showing that the question should not or cannot be presented by appeal, this Court should not exercise jurisdiction. Ex parte Patterson, 317 S.W.2d 536 (Tex.Cr.App.1958). The majority is getting close to allowing several appeals in one case before and after conviction. We have enough to do without having more appeals.
This Court’s opinion in Harris v. State, 457 S.W.2d 903 (Tex.Cr.App.1970), enumerated the traditional and statutory purposes of an examining trial in adult criminal proceedings. They are:
(1) to determine whether there is sufficient evidence of guilt to warrant further proceedings and, if not, to discharge the accused (Article 16.17, V.A.C.C.P.);
(2) to determine if bail should be allowed, and if so, to fix the amount of bail (Article 16.01, V.A.C.C.P.); and
(3) to perpetuate the testimony of witnesses (Article 16.09, V.A.C.C.P.).
It is the first and last of these that immediately concern the juvenile offender, prior to transfer to the criminal district court.
While juvenile court adjudications need not conform to all the requirements of an adult criminal prosecution, such proceedings must nevertheless afford the child the benefits of due process. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). To *831this end, Section 54.02 of the Family Code adequately ensures the perpetuation of testimony and the determination of probable cause in the juvenile court. The statute provides, in part:
“(c) The juvenile court shall conduct a hearing without a jury to consider transfer of the child for criminal proceedings.
“(d) Prior to the hearing, the juvenile court shall order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense.
U * * *
“(f) In making the determination required by Subsection (a) of this section, the court shall consider, among other matters:
tl * * *
“(3) whether there is evidence on which a grand jury may be expected to return an indictment.”
Under these statutory provisions, two of the three primary functions of an examining trial have been incorporated by the Legislature into juvenile court proceedings. It was not intended that these functions be needlessly duplicated by an examining trial in the district court.
Two of the three purposes of an examining trial have already been fulfilled in the juvenile court prior to the child’s transfer to the district court for criminal proceedings. Did the Legislature intend that the district court should be required to duplicate prior findings on probable cause and preserve testimony already presented in the juvenile court? We should conclude that it did not. Neither should we ascribe to the theory that the Legislature considered a full examining trial imperative to fulfill the sole remaining function of setting or denying bail, a procedure performable by the district court, in any event, Article 2.09, V.A.C.C.P., and which does not necessitate an examining trial.
It is argued that the Legislature’s intent that an examining trial be accorded a juvenile under past waiver and transfer provisions is indicative of its intent that such proceedings be mandatory under the current statute. Article 2338-1, Section 6, V.A.T.S. (Acts 1965, 59th Leg., p. 1256, ch. 577, § 3), this State’s first discretionary transfer statute, provided in part:
“[I]f the Court, after diagnostic study, social evaluation and full investigation, deems it contrary to the best interests of such child or the public to retain jurisdiction, the Court may, in its discretion, certify such child for proper criminal proceedings in any court which would have jurisdiction of the offense, if committed by an adult .
U * * *
“Upon certification to the District Judge having jurisdiction under the provisions of the Act, the District Judge shall have the powers and duties conferred upon examining magistrates by Chapter 3 of the Code of Criminal Procedure of the State of Texas. Provided that upon hearing the District' Judge shall make an order committing the child to jail, discharging him, admitting him to bail, or remanding him to the custody of the Juvenile Court as the law and facts of the case may require.” (Emphasis supplied).
Of importance is the fact that under this statute no provision existed for the determination of probable cause or perpetuation of testimony in the juvenile court prior to waiver of jurisdiction. Thus, the task of fulfilling these functions fell to the district court to which the case was certified. This, however, was the only preliminary hearing provided for by the Legislature. The statute did not call for determinations made in one court to be needlessly duplicated in another.
The argument has also been made that from each of our two preceding waiver and transfer statutes there may be discerned a clear legislative intent that a three-step procedure be followed before a juvenile is tried in district court, and that safeguards should exist at each step. The first step, it is asserted, occurs at the waiver and transfer hearing conducted in the juvenile court. *832As has been noted, however, Article 2338-1, Section 6, provided for no such hearing. Thus, under the 1965 statute, the ostensible “first step” and its attendant safeguards simply did not exist. It is contended that the “second step” in this three-stage procedure is the examining trial in the district court to which the child is transferred. It cannot be assumed that this step, either, was intended by the Legislature to constitute a mandatory safeguard. It is clear that under the 1965 version of Article 2338-1, Section 6, the district court to which a juvenile was transferred was to perform the function of an examining magistrate. The shifting of that burden to the juvenile court in 1967, however, brought about significant changes in the language of its successor statute, Article 2338-1, § 6(j) (Acts 1967, 60th Leg., p. 1082, ch. 475). Article 2338-1, § 6(j) provided in part:
“(j) [Hjowever, the examining trial shall be conducted by the district court or criminal district court which may remand the child to the jurisdiction of the juvenile court.”
There are no decisions of this Court which have interpreted Article 2338-1, § 6(j) as mandating, prior to its repeal, an examining trial in the district court subsequent to transfer of jurisdiction and prior to the return of an indictment against a juvenile. Indeed, the language of Article 2338-1, § 6(j) is almost identical to that employed in Section 54.02(h) of the Family Code — language which we construe here for the first time. Thus, it has never been made clear that, under past waiver and transfer provisions, an examining trial in district court was a mandatory “second step” in the process of prosecuting a juvenile in an adult tribunal.
To require that a juvenile receive an examining trial prior to the return of an indictment against him will not only result in duplicitous proceedings, but in the review by one district judge of the findings of another.1 Determinations as to the existence of probable cause made by a district judge sitting as a juvenile court would necessarily be reviewed and possibly overturned by the district court to which jurisdiction is transferred. Appellate jurisdiction in criminal cases lies solely in the Court of Criminal Appeals. Texas Constitution, Article 5, Section 5. The Legislature did not intend that courts of equal dignity exercise over one another a power that is tantamount to judicial review.
Indeed, the result becomes even more illogical in those counties served by a single district court and in which that court exercises juvenile jurisdiction. In these areas, the judge presiding over juvenile matters and the criminal district judge are one and the same individual.2 It is unreasonable to suppose that the Legislature intended a criminal district court to review, in an examining trial, the same evidence which he himself heard while sitting as juvenile judge prior to waiver and certification.
The Code Construction Act, V.A.T.S., Article 5429b-2, Section 3.01, provides in part:
“In enacting a statute it is presumed that U * * *
“(2) the entire statute is intended to be effective;
“(3) a just and reasonable result is intended;
“(4) a result feasible of execution is intended.”
See, Lovell v. State, 525 S.W.2d 511 (Tex.Cr.App.1975).
Here the results attendant upon a mandatory examining trial subsequent to waiver and certification and prior to the return of an indictment are neither reasonable nor feasible of execution. A requirement that three determinations be made as to probable cause (in the juvenile court, the district court, and the grand jury), that the same *833testimony be perpetuated in both juvenile and district courts, and that the findings of one district judge be subject to review and reversal by another is, at best, highly illogical.
The provisions of Section 54.02(h) articulate the Legislature’s intent that waiver and transfer of jurisdiction should form the dividing line between the application of the Family Code and the Code of Criminal Procedure to juvenile offenders. The statute clearly states that upon his transfer for criminal proceedings, the child is to be dealt with as an adult, subject to the provisions of the Code of Criminal Procedure. It has been held that a juvenile may waive legal rights where such waiver is knowing, voluntary, and attended by the safeguards required by Section 51.09 of the Family Code. D.A.W. v. State, 535 S.W.2d 21 (Tex.Civ.App. Houston [14th District] 1976); Lovell v. State, 525 S.W.2d 511 (Tex.Cr.App.1975); In re S.E.B., 514 S.W.2d 948 (Tex.Civ.App. El Paso, 1974); Moreno v. State, 510 S.W.2d 116 (Tex.Civ.App. Tyler, 1974). We should conclude that the juvenile’s right to an examining trial is not mandatory and is subject to waiver. More importantly, in determining that subsequent to certification a juvenile shall be dealt with as an adult under the Code of Criminal Procedure, the Legislature intended that he be subject to the provisions of Article 16.01 of that Code:
“The accused in any felony case shall have the right to an examining trial before indictment in the county having jurisdiction of the offense . . . .” (Emphasis supplied).
In decisions construing Article 16.01, it has been repeatedly held that the return of an indictment terminates a defendant’s right to an examining trial. McDonald v. State, 513 S.W.2d 44 (Tex.Cr.App.1974); Gaither v. State, 479 S.W.2d 50 (Tex.Cr.App.1972); McCullough v. State, 461 S.W.2d 404 (Tex.Cr.App.1970); Beshears v. State, 461 S.W.2d 122 (Tex.Cr.App.1970). We should presume that the Legislature, in choosing the wording used in Section 54.02(h) of the Family Code, was aware of this Court’s construction of Article 16.01 of the Code of Criminal Procedure. We should, therefore, conclude that when the Legislature determined that juveniles in the district court are to be treated as adults, subject to the Code of Criminal Procedure, it intended that their right to an examining trial would, like that of an adult, be terminated by the return of an indictment.
In ascertaining the intended meaning of Section 54.02(h), attention must be paid to the placement of language within the statute. It first provides that upon waiver and certification the juvenile shall be treated as an adult in accordance with the Code of Criminal Procedure. The language which follows that provision is a qualification thereof. The first qualification interposed by the Legislature is that the transfer of custody shall be equivalent to an arrest. This provision serves as a point of demarcation at which the Family Code ceases to operate and the Code of Criminal Procedure comes into play. The next sentence, “The examining trial shall be conducted by the court to which the case was transferred .”, is also a qualification upon the application of the Code of Criminal Procedure to juveniles. The Code is applicable to juveniles to the same extent as in adult proceedings with the exception that an examining trial, if any, shall not be conducted by a county court or magistrate but shall be held by the district court which assumes jurisdiction of the case. This provision does not guarantee that an examining trial shall be had; rather, it guarantees which court shall conduct the examining trial, if one is had at all. The juvenile is not thereby given the right to a compulsory examining trial but only given a procedural guarantee that it will be held, if at all, in a district court.
The reason for such qualifying language is clear. In enacting the Family Code it was the Legislature’s intent that lawyer-judges preside over juvenile proceedings. V.T.C.A., Family Code, Section 51.04. Accordingly, the Legislature ensured that if an examining trial was in fact held it would not be conducted by a non-lawyer magistrate or non-lawyer county judge who did not possess the degree of legal training as *834the juvenile district judge who had already issued the certification order. Moreover, such language was intended to prevent the overturning, by a county judge or magistrate, of determinations as to probable cause previously made by a district juvenile judge.
This Court wrote in Newsom v. State, 372 S.W.2d 681 (Tex.Cr.App.1963):
“[I]n construing a statute its subject matter, reason and effect must be looked to and when a literal enforcement would lead to consequences which the legislature could not have contemplated, the courts are bound to presume that such consequences were not intended and adopt a construction which will promote the purpose for which the legislation was passed.”
With the foregoing in mind, we should conclude that by its enactment of Article 54.02(h) the Legislature did not intend that an indictment returned against a juvenile, after waiver and transfer from the juvenile court, should be void for failure of the district court to conduct an examining trial. Such an interpretation would defeat the purpose for which the legislation was passed. Rather, the Legislature intended that an examining trial, if any, shall be conducted by the district or criminal district court to which the case is transferred, which court may then remand the child to the jurisdiction of the juvenile court if such action is deemed necessary.
It is argued that juveniles who have been transferred to the district court for criminal proceedings have an “additional right” to an examining trial not possessed by adults, and that this right is valuable in that it furnishes a final opportunity to have criminal proceedings against the juvenile terminated and the jurisdiction of the juvenile court resumed. This contention is without merit. An examining trial in an adult criminal proceeding also furnishes an opportunity for such proceedings to be terminated for lack of probable cause. But this fact does not give an adult the right to a com.pulsory examining trial, nor does it make the right which he does have any less subject to waiver. Likewise, the juvenile has no special “right” to an examining trial which he would not have if he were an adult. Following his transfer from juvenile to district court, his rights are those which are possessed by all criminal defendants and attain no special status. Once subject to the Code of Criminal Procedure, the juvenile cannot be continually wrapped in the protective cloak of the Family Code. The grand jury should not be effectively divested of jurisdiction to return an indictment after the Legislature has specifically provided that the accused is to be handled as an adult.
It is unreasonable for judges in a majority of the counties of the State to have to hold two separate hearings involving the same evidence.
The State’s motion for rehearing should be granted and the judgment should be affirmed.
. In 146 Texas counties, the juvenile court is presided over by a district judge. 1976 Texas Judicial Council Report on Juvenile Probation.
. To date, 172 counties are served by a single district court. In 146 of these counties, the district judge is also the juvenile judge. 1976 Texas Judicial Council Annual Report; 1976 Texas Judicial Council Report on Juvenile Probation.