dissenting.
I respectfully dissent in part and concur in part. In my view, appellant’s conviction of solicitation is void because it is based upon a fundamentally defective indictment that fails to charge an offense under section 15.03(a) of the Texas Penal Code. Therefore, I would sustain appellant’s second point of error, reverse the trial court’s judgment of conviction of solicitation of capital murder in cause number 05-87-01281-CR and order the indictment in that cause dismissed. I concur that the trial court’s judgment of conviction for arson in number 05-87-01282-CR be affirmed.
As to my dissent, I point out that the majority’s reliance upon Hobbs v. State, 548 S.W.2d 884 (Tex.Crim.App.1977) is misplaced. The issue in Hobbs was different from the issue in the present case. In Hobbs, appellant was convicted of attempted capital murder. The issue was whether the indictment alleged facts which would lead to the legal conclusion that appellant did more than mere preparation in committing the offense. Hobbs, 548 S.W.2d at 886. Thus, the majority in the present case relies on dicta found in Hobbs to the effect that the indictment in Hobbs substantially alleged all of the elements of criminal solicitation. Hobbs, 548 S.W.2d at 887. We know the language from Hobbs relied on by the majority is dicta because the Court of Criminal Appeals indicates as much in its subsequent opinion in Schwenk v. State, 733 S.W.2d 142, 148 (Tex.Crim.App.1987) (op. on reh’g). Thus, Schwenk, referring to Hobbs, affirms that on rehearing in Hobbs, the State argued that while the indictment did not properly allege the offense of attempted capital murder, it did allege criminal solicitation. Schwenk, 733 S.W.2d at 148. Indeed, I conclude that the Collin County District Attorney considers Hobbs ’ language to be dicta. I reach this conclusion because in both the present case and in the case of Welch v. State, No. 05-87-00047-CR (Tex.App. — Dallas Dec. 18,1987, pet. ref’d) (unpublished) the Collin County District Attorney opted for the present form of indictment rather than the form approved in Hobbs. I reason that if the Collin County District Attorney considered Hobbs to be the law on how to allege the offense of criminal solicitation, this court would not have before it the issue here raised in appellant’s second point of error or faced by this court in Welch.
In Welch, another panel of this court reversed a conviction for solicitation of capital murder where the indictment was virtually identical to that in the present case.
*375In Welch, we cited Hobbs. In Welch, we held that the indictment did not charge a crime and was fundamentally defective, and that the conviction based thereon was void. Welch, slip op. at 5. In this connection, I recognize that an unpublished opinion should not be cited as authority by a court. TEX.R.APP.P. 90(i). Thus, I do not cite Welch as authority. I do, however, urge upon the reader that the Court of Criminal Appeals, in refusing the petition for discretionary review, passed up the opportunity to tell us that we were wrong in Welch. For the reasons that follow, I am still of the opinion that we were right.
Section 15.03 of the Texas Penal Code defines criminal solicitation as follows:
(a) A person commits an offense if, with intent that a capital felony or felony of the first degree be committed, he requests, commands, or attempts to induce another to engage in specific conduct that, under the circumstances surrounding his conduct as the actor believes them to be, would constitute the felony or make the other a party to its commission.
TEX.PENAL CODE ANN. § 15.03(a) (Vernon 1974) (emphasis added). The indictment charges the offense of solicitation of capital murder in these words:
[On or about October 23, 1986, Marshall Leon Robinson did then and there] with intent that a capital felony be committed, namely: intentionally and knowingly cause the death of an individual, namely: Sammy Michael Hoelscher, by employing another, namely: Donald Ray Spivey, to commit said murder for remuneration and the promise of remuneration, namely: lawful United States currency, and the defendant intentionally and knowingly requested, commanded and attempted to induce another, namely: Donald Ray Spivey, to engage in specific conduct, namely: the murder of Sammy Michael Hoelscher, that, under the circumstances surrounding the defendant’s conduct as the defendant believed them to be, would constitute the aforesaid capital felony and make the said Donald Ray Spivey a party to its commission....
(Emphasis added.) Appellant argues that the words “his conduct” in the solicitation statute refer to the circumstances surrounding the solicitee’s conduct as the defendant believes them to be. The indictment, however, refers to the circumstances surrounding the defendant’s conduct as the defendant believes them to be. I agree with appellant's assertion.
In Hobbs, the Court of Criminal Appeals approved an indictment that did not include the language found in the statute “under the circumstances surrounding his conduct as the actor believes them to be, would constitute the felony or make the other a party to its commission.” In the present case, as in Welch, the State chose to allege the offense in the terms encompassed in the entire statute but erroneously alleged the offense in terms of the circumstances surrounding the defendant’s conduct as the defendant believed them to be. Hence, the indictment fails to allege that the circumstances surrounding the solicitee’s conduct, as believed by the defendant, should be considered. See Majid v. State, 713 S.W.2d 405, 407 (Tex.App. — El Paso 1986, pet ref d). In Majid, the indictment correctly named the solicitee, Harrison, in the included “under the circumstances” clause of the indictment. Majid, 713 S.W.2d at 407. I also note that the Midland County District Attorney must have considered the Hobbs language to be dicta. That District Attorney also opted for a form of indictment similar to that of the present case and Welch rather than the form approved in Hobbs. I note too that Majid does not cite Hobbs and that the petition for discretionary review was denied in Majid.
One of the purposes of an indictment is to invoke the jurisdiction of the trial court. In order to do so, the charging instrument must allege an offense against the defendant; otherwise, the trial court never acquires jurisdiction, and any conviction based on the indictment is null and void. Thompson v. State, 697 S.W.2d 413, 415 (Tex.Crim.App.1985). In the present case, the State has affirmatively alleged conduct that does not constitute an offense under the statute. I would hold that the indictment does not charge conduct that consti*376tutes an offense under the Texas Penal Code. See TEX.PENAL CODE ANN. § 1.03(a) (Vernon 1974). Thus, I would hold further that the indictment is fundamentally defective, and the conviction of solicitation of capital murder is void. See American Plant Food Corp. ¶. State, 508 S.W.2d 598, 603 (Tex.Crim.App.1974), appeal dismissed, 419 U.S. 1098, 95 S.Ct. 767, 42 L.Ed.2d 795 (1975). Consequently, I would sustain appellant’s second point of error, reverse the trial court’s judgment of conviction of solicitation of capital murder in cause number 05-87-01281-CR and order the indictment in that cause dismissed.