Coleman v. State

¶1dissenting.

¶2I respectfully dissent from the majority’s opinion to dismiss the appeal for want of jurisdiction. Admittedly, our jurisdiction to hear issues emanating from a plea agreement is somewhat curtailed. Yet, Rule 40(b)(1) of the Texas Rules of Appellate Procedure does not preclude us from entertaining jurisdictional issues; we retain the undisputed authority to consider them. Lyon v. State, 872 S.W.2d 732, 736 (Tex.Crim.App.), cert. denied; 512 U.S. 1209, 114 S.Ct. 2684, 129 L.Ed.2d 816 (1994). And, the question of whether the punishment assessed exceeded that provided by law is a jurisdictional issue.1

¶3In determining whether a particular controversy encompasses a jurisdictional matter, one need only consider the definition of the term “jurisdiction.” According to the Texas Court of Criminal Appeals, it not only means “the power to hear and determine the particular matter and to render some judgment thereon” but also “the power to render the particular judgment which was rendered.” Ex parte McKenzie, 115 Tex.Crim. 315, 29 S.W.2d 771, 772 (1930) (emphasis added). In other words, if the court does not have the power to render the particular judgment, then it lacks jurisdiction and the dispute is jurisdictional.

¶4Additionally, the boundaries of a court’s jurisdiction or authority are defined by constitutional provision, statute, or the common law. State v. Johnson, 821 S.W.2d 609, 612 (Tex.Crim.App.1991). Stated differently, a court may take a particular action only if authorized by law. Id.If the court exceeds those boundaries by taking a particular act which no law permits, then it acts without jurisdiction. See id.(holding that because neither the constitution, statute, or the common law authorized the trial court to dismiss the criminal prosecution without consent from the State, the court lacked jurisdiction to so dismiss the prosecution). For example, in Lyon v. State, the Court of Criminal Appeals was confronted with, among other things, determining whether the purported disqualification of the trial judge from presiding over the criminal prosecution constituted *364a jurisdictional issue under the auspices of Rule 40(b)(1). The court held that it was. Lyon v. State, 872 S.W.2d at 736, citing Ex parte Vivier, 699 S.W.2d 862 (Tex.Crim.App.1985). Even though the disqualification of a judge to hear a proceeding would not effect the power of the court to entertain suits involving criminal subject matter, the act of presiding when disqualified not only violates both statute and the constitutional provision but also renders the judgment void. Ex parte Vivier, 699 S.W.2d 862 (Tex.Crim.App.1985). In other words, it exceeds the authority granted by statute and constitution, and because of that, it is jurisdictional and not subject to waiver. Ex parte Washington, 442 S.W.2d 391, 393 (Tex.Crim.App.1969).

¶5Here, appellant contends that the punishment assessed exceeds that permitted by statute. If correct (something which we do not now decide), then the sentence is void because the punishment “is not authorized by law.” Heath v. State, 817 S.W.2d 335, 336 (Tex.Crim.App.1991). Moreover, any judgment which incorporates that unauthorized punishment and void sentence cannot logically fall within the power of the court to render. Indeed, like the situation of a disqualified judge and of jurisdictional questions in general, the defect cannot be waived. Ex parte Sims, 868 S.W.2d 803, 804 (Tex.Crim.App.1993). Thus, since the dispute at bar has the attributes of a jurisdictional matter as defined in McKenzie and also results in a void judgment like the situation addressed in Lyon, I cannot but conclude that it is jurisdictional and within our authority to entertain under Rule 40(b)(1).2