
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-97-00403-CR

NO. 03-97 00404-CR



Ex Parte:  Jack Dobbs, Appellant








FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NOS. 0970635 & 0970636, HONORABLE MICHAEL LYNCH JUDGE PRESIDING







		These appeals are from a pretrial habeas corpus proceeding.  Appellant contends that the
trial court committed reversible error by not dismissing with prejudice two indictments that had been
returned against him, because these indictments were not timely returned by the grand jury.


	When a defendant has been detained in custody or held to bail for his appearance to
answer any criminal accusation before the district court, the prosecution, unless otherwise
ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and
the bail discharged, if indictment or information be not presented against such defendant
at the next term of the court which is held after his commitment or admission to bail.


Act of May 1965, 59th Leg., R.S., ch. 722, art. 32.01, 1965 Tex. Gen. Laws, Vol. 2, 317, 441 (Tex.
Code Crim. Proc. Ann. art. 32.01, since amended).
	If a motion to set aside an indictment, information, or complaint for failure to provide a
speedy trial is sustained, the court shall discharge the defendant.  A discharge under this
article or Article 32.01 of this code is a bar to any further prosecution for the offense
discharged and for any other offense arising out of the same transaction, other than an
offense of a higher grade that the attorney representing the state and prosecuting the
offense that was discharged does not have the primary duty to prosecute.


Act of May 22, 1987, 70th Leg., R.S., ch. 383, § 1, 1987 Tex. Gen. Laws, 1885 (Tex. Code. Crim. Proc.
Ann. art. 28.061, since amended).
		In a three-count indictment appellant is charged with committing offenses against a child
of aggravated sexual assault and indecency both by contact and exposure.  Tex. Penal Code Ann. §§
22.021, 21.11 (West 1994 & Supp. 1998).  In another two-count indictment appellant is charged with
committing offenses against another child of indecency both by contact and exposure.  See Tex. Penal
Code Ann. § 21.11 (West 1994).
		At the habeas corpus hearing, appellant and the State entered into the following stipulated
statement of facts:


STIPULATION OF EVIDENCE


The State and the Accused stipulate to the following factual basis:


THE FACTUAL BASIS


	A.	Accused was arrested on September 30, 1996 and made bond
on the same day returnable to the 147th District Court.
 
	B.	An indictment was returned by the grand jury of the 299th District Court
and filed with the District Clerk on February 19, 1997.

	C.	The terms of the 147th District Court are three month grand jury terms
beginning on the first Monday in January, April, July, and October. 
Empaneling a grand  jury is statutorily required.  [See Tex. Gov't Code
Ann. § 24.248(b), (c), (West 1988)].


D.	There is no order transferring the matter from the 147th District Court to
the 299th.

	E.	There is no motion or other request from the State for additional time in
which to return an indictment of the Accused.

	F.	The terms of the 299th District Court are six month grand jury terms
beginning on 1st Monday in January and July. [See Tex. Gov't Code Ann
§§ 24.476, 24.302, 74.96 (West 1988)].  Empaneling a grand jury is
optional.

	G.	There is an order transferring the return indictment from the 299th District
Court to the 167th District Court.

		Appellant argues that the terms of the 147th District Court control because the appellant
made an appearance bond returnable to the 147th District Court and there is no signed order transferring
the case from the 147th District Court.  We disagree with appellant.  Appellant was charged with the
offenses of aggravated assault of a child and indecency with another child by contact, by sworn complaints
filed in a Municipal Court of the City of Austin.   Appellant was arrested and made an appearance bond
in the municipal court conditioned on his appearance instanter before the 147th District Court or "before
any court or magistrate before whom this cause may hereafter be pending at any time and place as may be
required."  See Tex. Code Crim. Proc. Ann. arts. 17.04, 17.08, 17.09, § 1 (West 1977 & Supp. 1998). 
When the complaint was filed in the municipal court where the judge was sitting as a magistrate, that court
had "sole jurisdiction over the complaint . . . to the exclusion of all other courts, until the time the complaint
was either dismissed by the court or superseded by the action of the grand jury."  Ex parte Clear, 573
S.W.2d 224, 229 (Tex. Crim. App. 1978); Ex parte Mitchell, 601 S.W.2d 376, 377 (Tex. Crim. App.
1980).  The making of the appearance bond returnable to the 147th District Court did not vest felony
jurisdiction in that court.
		"The presentment of an indictment invests the court with jurisdiction of the cause."  Tex.
Const. art. V, § 12(b).  The filing of an indictment is essential to vest the trial court with jurisdiction over
a felony offense.  See Cook v. State, 902 S.W.2d 471, 475 (Tex. Crim. App. 1995); Ex parte Port, 674
S.W.2d 772, 779 (Tex. Crim. App. 1984); Miller v. State, 909 S.W.2d 586, 592 (Tex. App.--Austin
1995, no pet.).  Here the grand jury for the 299th District Court returned the indictments against appellant
charging him with the offenses with which he had been charged by complaint in the municipal court.  No
indictment against appellant in these cases was ever returned by a grand jury of the 147th District Court. 
Therefore the 147th District Court never had jurisdiction of these cases and no transfer order from that
court was necessary.  The indictments were returned by a grand jury empaneled by the 299th District
Court within the next term of that court after appellant's admission to bail.  Therefore the indictments were
timely returned.
		Appellant relies on Norton v. State, 918 S.W.2d 25 (Tex. App.--Houston [14th Dist]
1996, pet. granted).  Appellant's reliance on that case is misplaced because of a material difference in the
facts.  In that case, after Norton's arrest and before he was indicted, the next term of the court in which
he was indicted had elapsed.
		In this case the trial court properly refused to dismiss the indictments and the charges
against the appellant.  We overrule appellant's points of error and affirm the district court's order denying
relief.


  
 Carl E. F. Dally, Justice
Before Chief Justice Carroll, Justices  Kidd and Dally*
Affirmed
Filed:  December 11, 1997
Publish
















*	Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment.  See Tex.
Gov't Code Ann. § 74.003(b) (West 1988).

nt-family: CG Times Regular">	G.	There is an order transferring the return indictment from the 299th District
Court to the 167th District Court.

		Appellant argues that the terms of the 147th District Court control because the appellant
made an appearance bond returnable to the 147th District Court and there is no signed order transferring
the case from the 147th District Court.  We disagree with appellant.  Appellant was charged with the
offenses of aggravated assault of a child and indecency with another child by contact, by sworn complaints
filed in a Municipal Court of the City of Austin.   Appellant was arrested and made an appearance bond
in the municipal court conditioned on his appearance instanter before the 147th District Court or "before
any court or magistrate before whom this cause may hereafter be pending at any time and place as may be
required."  See Tex. Code Crim. Proc. Ann. arts. 17.04, 17.08, 17.09, § 1 (West 1977 & Supp. 1998). 
When the complaint was filed in the municipal court where the judge was sitting as a magistrate, that court
had "sole jurisdiction over the complaint . . . to the exclusion of all other courts, until the time the complaint
was either dismissed by the court or superseded by the action of the grand jury."  Ex parte Clear, 573
S.W.2d 224, 229 (Tex. Crim. App. 1978); Ex parte Mitchell, 601 S.W.2d 376, 377 (Tex. Crim. App.
1980).  The making of the appearance bond returnable to the 147th District Court did not vest felony
jurisdiction in that court.
		"The presentment of an indictment invests the court with jurisdiction of the cause."  Tex.
Const. art. V, § 12(b).  The filing of an indictment is essential to vest the trial court with jurisdiction over
a felony offense.  See Cook v. State, 902 S.W.2d 471, 475 (Tex. Crim. App. 1995); Ex parte Port, 674
S.W.2d 772, 779 (Tex. Crim. App. 1984); Miller v. State, 909 S.W.2d 586, 592 (Tex. App.--Austin
1995, no pet.).  Here the grand jury for the 299th District Court returned the indictments against appellant
charging him with the offenses with which he had been charged by complaint in the municipal court.  No
indictment against appellant in these cases was ever returned by a grand jury of the 147th District Court. 
Therefore the 147th District Court never had jurisdiction of these cases and no transfer order from that
court was necessary.  The indictments were returned by a grand jury empaneled by the 299th District
Court within the next term of that court after appellant's admission to bail.  Therefore the indictments were
timely returned.
		Appellant relies on Norton v. State, 918 S.W.2d 25 (Tex. App.--Houston [14th Dist]
1996, pet. granted).  Appellant's reliance on that case is misplaced because of a material difference in the
facts.  In that case, after Norton's arrest and before he was indicted, the next term of the court in which
he was indicted had elapsed.
		In this case the trial court properly refused to dismiss the indictments and the charges
against the appellant.  We overrule appellant's points of error and affirm the district court's ord