821 SW2D 609 - State v. Johnson

CLINTON, Judge,

¶1concurring.

¶2To amplify what occurred in case number 52,366 after those preliminary incidents recounted by the majority in note 1 of its opinion, let us resort to the statement of facts, viz:

THE COURT: All right. I’ll call the case again, State of Texas vs. Leatha Dry Johnson.

[DEFENSE]: Defendant is ready and present and ready to go to trial.

THE COURT: All right. There is no announcement from the State. Is there anyone here on behalf of the State of Texas?

All right. [Defense counsel], do you want to move for dismissal?

[DEFENSE]: I move the charges against Ms. Johnson be dismissed with prejudice, Your Honor.

THE COURT: All right. Motion for dismissal will be granted. Charges dismissed.

[DEFENSE]: Thank you very much.

¶3S.F. August 17, 1989 proceedings, at 4.1 There are a docket entry to the same effect, Tr. 15, and a written “Order of Dismissal” signed by the trial judge of even date, reciting in more detail facts and circumstances, particularly the motion for “Dismissal of Charges with Prejudice,” leading to the action taken by the trial court; it concludes:

After due consideration by the Court, IT IS ORDERED that the above numbered and styled case against the Defendant, LEATHA DRY JOHNSON, is hereby DISMISSED.

¶4Tr. 16.2

¶5That purported dismissal with prejudice generated the contretemps which thus far *615has consumed time and energy of another county court at law, a court of appeals and now this Court. We are confronted with the paradox of a prosecutor disdaining his coveted right to appeal from the first “dismissal,” initiating the same criminal action in another court, and then taking an appeal from a second “dismissal” to claim that the latter court “was without authority to dismiss the valid information.” State v. Johnson, 795 S.W.2d 329, at 330 (Tex.App.—Amarillo 1990). Such is the stuff of which public despair of the judicial part of our criminal justice system is made.

¶6While it possessed jurisdiction of the criminal offense, the County Court at Law No. 1 was utterly without authority to dismiss the information and underlying complaint and thus the criminal action in case number 52,336 — with or without prejudice — and to discharge appellant from the obligation of her appearance bond. Article 32.02, V.A.C.C.P.; State v. Eaves, 800 S.W.2d 220, at 223 (Tex.Cr.App.1990); Malley v. State, 125 Tex.Cr.R. 625, 69 S.W.2d 765, at 776 (1934); State v. Anderson, 119 Tex. 110, 26 S.W.2d 174, at 178-179 (1930). Today the Court so concludes. Slip Opinion, at 613.

¶7Furthermore, that the purported dismissal was “a voluntary relinquishment of.... jurisdiction to hear and determine the case” is not supported by decisions relied on by the court of appeals, Johnson, supra, at 331-332, since none involves an unauthorized dismissal.3 Where a judge properly empowered and authorized to do so on motion of the prosecutor causes the trial court to dismiss a charging instrument in favor of prosecution pending in another court, to say that dismissal amounts to “voluntary relinquishment of jurisdiction” may be logically correct. But when a judge without power and authority to do so on motion of defendant purposefully undertakes to cause the trial court to “dismiss” a charging instrument with prejudice and to discharge the accused, it is a non sequitur to say by rote that such an unauthorized dismissal constitutes “voluntary relinquishment of jurisdiction.” More to the point, the latter judge purports to cause the trial court to “exhaust” all jurisdiction over the criminal action and the person of the accused. See Garcia v. Dial, 596 S.W.2d 524, at 528 (Tex.Cr.App.1980) (after authorized dismissal of charging instrument, jurisdiction of trial court over cause is “exhausted”).

¶8“[T]he action of the [county court at law] in summarily dismissing the criminal case[ ] on the motion[ ] of the defendant ] was void[.]” State v. Anderson, supra, 26 S.W.2d at 179. Therefore, it is a nullity and could not be in law a proper relinquishment of jurisdiction over the subject matter and person of defendant. Since County Court at Law No. 1 retained actual jurisdiction over case number 52,336, County Court of Law No. 2 never acquired jurisdiction of the same offense or person of appellant. Article 4.16, V.A.C.C.P. Therefore, the judge of County Court at Law No. 2 was justified in rendering and causing to *616be entered the order at issue, which may be construed as declining to exercise further jurisdiction over the subject matter and person of appellee. Ringer v. State, 135 Tex.Cr.R. 573, 121 S.W.2d 364, at 366 (1938); cf. Ex parte Lohse, 157 Tex.Cr.R. 488, 250 S.W.2d 215 (1952) (motion for rehearing 250 S.W.2d at 217) (where defendant raised question of jurisdiction of his person, plea should be sustained).

¶9With those observations and reasons, and because the Court reaches substantially the same result, I join its judgment.

¶10. All emphasis throughout this opinion is mine unless otherwise indicated.

¶11. The "charges” alluded to are a complaint and information in case number 52,366 in the County Court at Law No. 1. Tr. 13, 14. The docket sheet in that case reflects that bail was fixed at $500, and it is stipulated by the patties in this cause that after rendering its order of dismissal in case number 52,336 the' court "discharged Ms. Johnson from her bond and allowed her to leave." Tr. 11.

¶12. At common law the power to enter a nolle prosequi rests solely in the prosecuting attorney; in 1876 the Legislature restricted exercise of that power by requiring the prosecutor to obtain permission of the court to dismiss a criminal action; however, it did not authorize the court to dismiss a criminal action on motion of defendant or sua sponte. State v. Anderson, supra. Such is still the law. Article 32.02, supra, and we must presume courts followed it unless shown otherwise.

¶13In Epps v. State, 130 Tex.Cr.R. 398, 94 S.W.2d 441 (1936), Judge Lattimore did comment on the purpose of the statute; he did not reveal the basis for dismissing the Navarro County indictment, but on rehearing Presiding Judge Morrow took pains to note that a “proper order dismissing the indictment" had been entered in the minutes of the court. Id.,94 S.W.2d at 442.

¶14In Flores v. State, 487 S.W.2d 122 (Tex.Cr.App. 1972), on the day set for trial of the first indictment the State announced its intention to dismiss the indictment in order to seek another one on a different theory; the court indicated its willingness to dismiss and instructed that a proper motion be prepared and presented, id., at 124. “The [judge] could not, however, dismiss the cause until the State's written motion was presented to him. See Article 32.02, [supra],” Id., at 125; that was done and the motion was granted “prior to conclusion of the instant trial [on the second indictment] and the entry of judgment,” Id., at 125-126.

¶15Compare Ringer v. State, 135 Tex.Cr.R. 573, 121 S.W.2d 364, at 366 (1938) (State sought to dismiss prior indictment but apparently motion never granted).

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