DISSENTING OPINION ON STATE’S MOTION FOR REHEARING
ODOM, Judge.The majority wholly misstate the issue before this Court. According to the majority:
“On rehearing the State vigorously urges that the sentence was voidable only, not void, and hence not subject to collateral attack. We agree and grant the State’s motion for rehearing.”
Later the majority state, “The untimely pronounced sentence is now attacked collaterally for the first time.” That is simply not the posture of the case before us. Petitioner, in his succinct reply to the State’s motion for rehearing, points with clarity to the error in the State’s argument that has been accepted by the majority:
“The basic fallacy in State’s argument is that it has confused the jurisdiction between the appellate court and the trial court. . . . What this Honorable Court said in its Opinion of December 22, 1976, is that it, the Appellate Court, did not have appellate jurisdiction and thus no authority to affirm the conviction in the first instance. Most obviously, the State’s Attorney is confusing the jurisdiction of the trial court with the jurisdiction of the appellate court, and, to use an old phrase, is ‘trying to mix apples and oranges’ . . . ”
Likewise, the majority is most obviously confusing the jurisdiction of this Court with the jurisdiction of the trial court.
The issue is not whether the judgment of conviction of the district court is void; it is whether this Court’s judgment of affirmance is void. As stated on original submission:
“Our affirmance of petitioner’s conviction was incorrect because we did not have jurisdiction to entertain the appeal due to the premature imposition of sentence by the trial court. Middleton v. State, Tex.Cr.App., 537 S.W.2d 25; Mendez v. State, Tex.Cr.App., 535 S.W.2d 365; Woods v. State, Tex.Cr.App., 532 S.W.2d 608. Our only proper action in such a situation is to dismiss the appeal.”
The majority have advanced no reasoning that even addresses this issue.1
The majority, despite their failure to address the issue, do, at one point, correctly state the issue:
“The issue presented by the instant case is whether an untimely pronounced sentence will always deprive this court of jurisdiction on appeal, regardless of whether that issue is called to the attention of this court.” (Emphasis added.)
*678Judge Woodley, speaking for the Court in Ex parte Caldwell, Tex.Cr.App., 383 S.W.2d 587, 589, answered the matter thusly: “Jurisdiction of a court must be legally invoked, and when not legally invoked, the power of the court to act is as absent as if it did not exist.” (Emphasis added.) Accord, Newton v. State, Tex.Cr.App., 509 S.W.2d 610; State v. Olsen, Tex., 360 S.W.2d 398.
The duty to determine whether the Court has jurisdiction of a case is a duty of the Court itself, and not dependent on assertion by a party:
“It is a matter of first consideration of any court to determine its own jurisdiction of a case, and, if lack of jurisdiction appears, as a matter of law, the court should dismiss the case without passing upon any other issue presented, whether of law or fact.” Lone Star Finance Corp. v. Davis, 77 S.W.2d 711 (Tex.Civ.App.—Eastland, 1934). See also Gibbs v. Melton, 354 S.W.2d 426 (Tex.Civ.App.—Dallas, 1962).
The consequences of this Court taking action other than dismissal of any appeal in which we lack jurisdiction are the same as the consequences in such circumstances of action by any other court:
“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, 55 S.W .2d 797.
“[Jjudieial action without jurisdiction is void.” Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926).
This Court lacked jurisdiction when petitioner’s conviction was appealed. This Court only had authority to dismiss that appeal. This Court’s judgment of affirmance is void. “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.
Finally, I urge the majority to re-examine Lewis v. State, 501 S.W.2d 88, which is cited in today’s majority. In Lewis the defendant challenged the validity of a prior conviction on grounds of an untimely sentence. Presiding Judge Onion, speaking for the Court, wrote:
“We observe that County Attorney Guillet testified that no notice of appeal was given from the prior misdemeanor conviction and that the conviction had become final prior to the commission of the primary offense.
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“Appellant relies upon such cases as Payne v. State, 471 S.W.2d 815 (Tex.Cr.App.1971); Adams v. State, 440 S.W.2d 844 (Tex.Cr.App.1969); Payne v. State, 477 S.W.2d 581 (Tex.Cr.App.1972), and Matheson v. State, 492 S.W.2d 273 (Tex.Cr.App.1973), holding that an appeal from a conviction will be dismissed where the appellate record shows that the sentence was improperly and untimely entered in violation of Articles 40.05 and 42.03, Vernon’s Ann.C.C.P.
“The authorities relied upon by appellant deal with a direct appeal, whereas the instant case involves an attempt to make a collateral attack on the finality of the prior conviction alleged for jurisdictional purposes.”
The conviction challenged in Lewis was final in the trial court because no appeal was taken from the judgment of conviction. The Court distinguished that situation from the cited cases holding this Court lacked appellate jurisdiction where sentence is untimely pronounced. The case at bar challenges our prior exercise of appellate jurisdiction and our subsequent judgment of affirmance; it is not an attack on a judgment of conviction, nor is it an attack on a case that was final in the trial court because no appeal was taken. Lewis v. State, supra, is no bar to petitioner’s attack, but, to the contrary, acknowledges the authorities that support the instant attack and distinguishes Lewis’ unsuccessful challenge from petitioner’s meritorious attack.
*679The State’s motion for rehearing should be overruled without written opinion.
. Furthermore, this Court on original submission did not even address the issue of whether the district court’s judgment of conviction was subject to collateral attack, nor did we hold that judgment void.