                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-10-00144-CR
        ______________________________


           CURTIS ROBERTS, Appellant

                         V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 217th Judicial District Court
              Angelina County, Texas
           Trial Court No. CR-21165-A




    Before Morriss, C.J., Carter and Moseley, JJ.
   Memorandum Opinion by Chief Justice Morriss
                                       MEMORANDUM OPINION

        Curtis Roberts’ hopes to obtain DNA testing were dashed even before Roberts asked for

the testing. On May 7, 2010, Roberts filed in the 217th Judicial District Court in Angelina

County1 a document titled ―Request for Appointment of Legal Counsel Pursuant to Article 64

Code of Criminal Procedure.‖ In that motion, Roberts claimed indigence and asked the court to

appoint an attorney to assist Roberts in seeking an order for DNA testing. To be clear, we note

that the motion asked only for appointment of counsel because Roberts ―wishes to submit a

motion‖ for DNA testing. Roberts also attached a proposed order which, if granted, would have

appointed counsel to assist Roberts in seeking DNA testing.                    The motion and documents

submitted with it seek to meet none of the requirements of Chapter 64 of the Texas Code of

Criminal Procedure to constitute a request for DNA testing.

        The trial court did not use Roberts’ proposed order, but signed an order dated June 25,

2010, denying DNA testing. As no request had been made for DNA testing, the trial court

prematurely entered an order on a presumed request not yet presented to it.2

        A district court is empowered to hear controversies and render decisions thereon, under the

procedures authorized by statute or by rule. See TEX. CONST. art. V, § 8; TEX. GOV’T CODE ANN.

1
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Vernon 2005). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
2
The record also shows there were no hearings and no response filed by the State; indeed, it shows that nothing
whatsoever except the request for appointment of counsel occurred before this order was signed.


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§ 24.007 (Vernon 2004). Although the trial court had jurisdiction over the proceeding,3 the issue

on which it ruled had not been placed before it. See Ex parte Seidel, 39 S.W.3d 221, 224 (Tex.

Crim. App. 2001).

           A court’s ruling on a matter not yet presented to the court is an advisory opinion. ―Texas

courts have no authority to render advisory opinions.‖ McAllen Med. Ctr., Inc. v. Cortez, 66

S.W.3d 227, 232 (Tex. 2001); Perez v. State, 938 S.W.2d 761, 764 (Tex. App.—Austin 1997, pet.

ref’d).      ―This prohibition encompasses‖ the ripeness doctrine, 4 which ―avoids premature

adjudication on a hypothetical set of facts.‖ Cortez, 66 S.W.3d at 232; see Perez, 938 S.W.2d at

764. ―A case is not ripe when its resolution depends on contingent or hypothetical facts, or upon

events that have not yet come to pass.‖ Patterson v. Planned Parenthood of Houston & Se. Tex.,

Inc., 971 S.W.2d 439, 443 (Tex. 1998).




3
    See TEX. CODE CRIM. PROC. ANN. art. 64.01(a) (Vernon Supp. 2010).
4
 Ripeness is an element of subject-matter jurisdiction. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.
1998). As a general proposition, before a court may address the merits of any case, the court must have jurisdiction
over the party or the property subject to the suit, jurisdiction over the subject matter, jurisdiction to enter the particular
judgment, and capacity to act as a court. See Austin Indep. Sch. Dist. v. Sierra Club, 495 S.W.2d 878, 881 (Tex.
1973). Subject-matter jurisdiction requires that the party bringing the suit have standing, that there be a live
controversy between the parties, and that the case be justiciable. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 443–46 (Tex. 1993). If the district court lacks jurisdiction, in any of these senses, then its decision
would not bind the parties. See Austin Indep. Sch. Dist., 495 S.W.2d at 881 (noting collateral attacks on judgments
are allowed when court lacked jurisdiction). And, a decision that does not bind the parties is, by definition, an
advisory opinion prohibited by Texas law. State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994). At this
point, this is not a justiciable issue. It is nothing more than a possible future claim, one that courts may not decide.
See DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299 (Tex. 2008).

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         In ruling on a matter that had not yet been placed before it for decision, the trial court

lacked subject-matter jurisdiction to enter the order. 5 Therefore, we return the parties to the

positions they occupied before the trial court’s action. We vacate the order of June 25, 2010, and

dismiss the appeal.



                                                                   Josh R. Morriss, III
                                                                   Chief Justice

Date Submitted:              September 14, 2010
Date Decided:                September 15, 2010

Do Not Publish




5
 In an alternative analysis, this is clearly an action that is unauthorized by law, and under these circumstances, issuance
of this order lies outside the scope of the authority of the court. In analyzing the nature of the error as void or
voidable, this ruling therefore fits within the definition of an ―illegal‖ act, and is thus the type of error that renders the
order void. See Seidel, 39 S.W.3d at 224; Hardy v. State, 297 S.W.3d 785, 791 (Tex. App.—Texarkana 2009, pet.
ref’d). Although this analysis of the error differs from our main analysis, the result is the same.

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