dissents. See Ex parte Young, 418 S.W.2d 824, 829 (Tex.Crim.App.1967) (applicant required to first petition judge of court where convicted).
OVERSTREET, J., dissents. WHITE, J., not participating. McCORMICK, Presiding Judge,dissenting.
I respectfully dissent to the majority’s holding that failure to file a petition for writ of habeas corpus with the district clerk in the county of the convicting court will not result in the dismissal of the petition for lack of jurisdiction. The majority bases this holding upon a “plain reading” of Article 11.07, Section 2, V.A.C.C.P. However, my reading of the statute requires the clerk to “transfer or assign” the habeas corpus petition to the convicting court only after the petition has been filed with the district clerk in the county of the convicting court.
In addition, we have already decided this issue. We previously have interpreted Article 11.07, Section 2, as requiring the habeas corpus petition to be filed with the district clerk in the county of the convicting court. Ex parte Brager, 704 S.W.2d 46 (Tex.Cr.App.1986); Ex parte Woodward, 619 S.W.2d 179 (Tex.Cr.App.1981). If this interpretation was unacceptable to the Legislature, it could have amended the statute, which it has not done. See Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182, 185-86 (Tex.1968). I would follow our previous interpretation of Article 11.07, Section 2. See id. (in the area of statutory construction, the doctrine of stare decisis has its greatest force).
The majority disavows Brager, supra, and Woodward, supra, without really explaining why. Under these circumstances, “our voice becomes only a voice of power, not of reason.” See Mapp v. Ohio, 367 U.S. 643, 686, 81 S.Ct. 1684, 1708, 6 L.Ed.2d 1081 (1961) (Harlan, J., dissenting).
Finally, the majority ignores the unreasonable burden which will be placed on the district clerks of small counties with a large number of prisons. These district clerks will now be required to determine in which of the 254 counties in Texas the applicant was convicted and then forward all of these petitions to the district clerk where it should have originally been filed. With the same liberal reading of Section 2(b), one could just as easily assume “clerk” in Section 2(b) means municipal clerks, county clerks, district clerks, and appeals court clerks. Did the Legislature intend for each of these clerks to be required to transfer petitions for writs of habeas corpus all around the State?
By acting as a legislature, the majority places an undue and unnecessary burden on the district clerks of this State. Such judicial activism should not be tolerated, and I am sure the counties adversely affected by such holding will be before the proper legislature at its next session to undo this Court’s handiwork.
For the foregoing reasons, I would dismiss the habeas corpus petition for lack of jurisdiction in the trial court.