Wilson v. State , 1985 Tex. Crim. App. LEXIS 1711 ( 1985 )

CLINTON, Judge,

concurring in part and dissenting in part.

While I agree with the conclusion that actions by the trial court “clearly revoked all prior proceedings before the magistrate,” I am not content to defer until another day discussion of the issue which the Court decided on its own motion to consider, viz: authority of the magistrate in the premises. It is a recurring matter of such great importance to proper disposition of criminal actions in Dallas County pursuant to Article 1918c, V.A.C.S., that even obiter dictum will have some remedial impact. See, e.g., Kelley v. State, 676 S.W.2d 104, n. 5 at 108 (Tex.Cr.App.1984); Howard v. State, 690 S.W.2d 252 (Tex.Cr.App.1985); Scott v. State, 690 S.W.2d 256 (Tex.Cr.App.1985). Dissenting to refusal of the majority to address it, I turn directly to confront that issue.

Article 1.13, V.A.C.C.P., provides that such a waiver must be made in open court “with the consent and approval of the court.”¹ Our initial concern was that nothing in the record appeared to authorize the magistrate in this cause to approve a waiver of trial by jury executed by appellant pursuant to the statute. Since there is no indication the trial judge did, the matter of authority of a magistrate to consent to and approve waiver of trial by jury is, of course, implicated in an issue of validity of the waiver executed by appellant in this cause.

Anticipating our interest in the matter, the State moved and this Court granted leave to supplement the transcript. It has been supplemented to reveal an order under a caption styled “In Re Appointment of Magistrates and Fixation of Salaries,” dated September 28,1981, signed by all judges whose district courts give preference to criminal cases and judges of criminal district courts — except Judge Ron Chapman. However, it is neither a “general” order of referral contemplated by § 5(b) of Article 1918c, nor a “specific” order of referral mandated by § 4(c), id.² After separately reciting a few “whereas” clauses, it respectively orders that John Ellis and Howard G. Wilson be appointed “magistrate to serve said courts” and be compensated at a prescribed figure; the sole authority delegated to them is “to designate and appoint one court reporter each ... and make such arrangements as are reasonably necessary to properly administer said offices ...” It refers nothing.

Yet we learned in Kelley, that at least Judge Ron Chapman of the Criminal District Court contemporaneously did prepare and enter a “general” order of referral effective October 1, 1981, purporting to refer to Magistrate Wilson “all cases which have been indicted, or have had such indictment duly waived by the defendant ... for the following proceedings” thereafter identified. See Kelley, at 111-112 and 113-114. However, we are not informed by the record now before this Court that a similar order was ever entered by the judge of Criminal District Court No. 3. Silence of the record in this particular respect is what concerns some of us. See Kelley, at 112 and 114.

The State’s theory is that Criminal District Court No. 3 acquired jurisdiction over this cause when the indictment was filed and, since magistrates are “only agents of the district court, Kelley, supra, ... their ‘jurisdiction’ is transferred to them by the court, and their power is limited to actions approved by the court;” therefore, “[any] improper exercise of [the judge’s] power to refer appellant’s case to [the magistrate without a specific order of referral] could not thus be characterized as a jurisdictional defect which need not be objected to in order to preserve error.” In other words, the State would have it that Article 1918c is merely directory and its procedural requirements are available only upon demand by an accused.

The theory is at once innovative and untenable. Section 4(a) deals with referral of “any criminal case for proceedings involving [those described in (1) through (6)],” subject to the restriction in (b) that a magistrate may not “preside over a trial on the merits.” And, as already pointed out ante, § 4(c) mandates: “To refer a case to a magistrate, the judge shall issue an order of referral specifying the duties of the magistrate.” Assuming an order of referral to a magistrate to conduct one or more “proceedings ” prescribed in the order, Section 5(a) lists powers statutorily granted a magistrate to whom a ease has been referred and implied incidental authority to perform duties “required in the order of referral,” subject though to limitations prescribed in that order pursuant to § 5(b), and statutorily by § 5(c). All such provisions contemplate a “specific” order in a given case, and the State concedes there is none here.

Only § 5(d) permits a more “general” order of referral like that issued by Judge Ron Chapman in Kelley, and there is none here.

The record thus shows a failure of compliance with material provisions of Article 1918c including one mandatory in nature, and on that account does not affirmatively demonstrate that the magistrate had any authority to take any action in appellant’s case. Similarly, according to the record the judge of the trial court did not himself comply with Article 1.13 (perhaps because he refused to accept appellant’s plea of nolo contendere). “No act of the magistrate is legally binding unless and until the magistrate’s actions are adopted by the referring court.” Kelley, at 107. In these circumstances, therefore, the purported waiver by appellant of his right to trial by jury could not serve to foreclose his subsequent demand for trial by jury.

1 . All emphasis is mine throughout unless otherwise indicated.

2 . Since proceedings on the indictment in this cause began November 8, 1982, when appellant appeared before the magistrate, all references to Article 1918c, supra, are as it was enacted by Acts 1981, 67th Leg., Ch. 678, p. 2546, effective August 31, 1981. For a summary of later legislative developments see Kelley v. State, supra, at 110.