             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                       NO. PD-0713-07



                     CHARLES DAVID WHITEHEAD, Appellant

                                               v.

                                 THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
              FROM THE ELEVENTH COURT OF APPEALS
                        EASTLAND COUNTY

       J OHNSON, J., filed a concurring opinion in which C OCHRAN, J., joined.

                          CONCURRING OPINION


       I join the majority opinion because the view it expresses appears to conform to the current

state of the law. However, the current state of the law may not represent an accurate reading of

precedent.

        Our case law has long said that an issue of the disqualification of the trial judge was
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jurisdictional and could be raised for the first time on appeal.1 It has also been long true that the

actions of a judge who is statutorily disqualified, and therefore without authority to act, are void.2

The difficulty is that the case law seems to confound authority and jurisdiction. In Davis v. State,

956 S.W.2d 555 (Tex. Crim. App. 1997), this Court addressed that difficulty.

          “Jurisdiction in its narrow sense, is something possessed by courts, not by judges.
        The judge is merely an officer of the court, like the lawyers, the bailiff and the court
        reporter. He is not the court itself.” Ex parte George, 913 S.W.2d 523 (Tex. Crim.
        App. 1995). “The authority and powers of a judge are incident to, and grow out of,
        the jurisdiction of the court itself.” 48A C.J.S. Judges Section 54 (1981). Strictly
        speaking then, jurisdiction encompasses only the power of the tribunal over the
        subject matter and the person. . . .

           Similar to the tendency to confuse jurisdiction with authority is the practice in
        legal vernacular of referring to both the institution and the person presiding over it
        as the “court.” Either or both of these common misconceptions led the Spindler [v.
        State, 740 S.W.2d 789 (Tex. Crim. App. 1987)] plurality to reason “The question of
        the jurisdiction of the convicting court, or in this instance the jurisdiction or
        authority of the magistrate to act, may be raised at any time because judicial action
        without jurisdiction is void.” Spindler, 740 S.W.2d at 791 (emphasis added).
        Spindler was relying on Gallagher [v. State, 690 S.W.2d 857 (Tex. Crim. App.
        1985)], which held, “The question of the jurisdiction of the convicting court may be
        raised at any time.” However, Gallagher was a true jurisdictional issue. It dealt with
        the subject matter jurisdiction of the tribunal, which is constitutionally mandated.
        Spindler, on the other hand, dealt neither with the tribunal nor its constitutional
        jurisdiction. It dealt with the authority of a magistrate. Therefore, Spindler failed to
        perceive a difference between jurisdiction and authority and between the institution
        of the court and person acting for it.
            In addition to equating these distinct concepts without analysis, Spindler’s
        extension of Gallagher is wrong because a judge’s lack of power or authority to act
        over a case has not always been held to be a question of jurisdiction, or mote
        precisely, has not always resulted in a holding that the conviction was void and
        subject to collateral attack. . . .

        1
          See, e.g., Johnson v. State, 869 S.W . 2d 347, 348-49 (Tex. Crim. App. 1994); Gamez v. State,737 S.W .2d
315, 318(Tex. Crim. App. 1987); Lee v. State, 555 S.W .2d 121, 124 (Tex. Crim. App. 1977); Ex parte Washington,
442 S.W .2d 391, 393 (Tex. Crim. App. 1969).

        2
            See, e.g., Johnson v. State, 869 S.W . 2d 347, 348-49 (Tex. Crim. App. 1994); Ex Parte Vivier, 699
S.W .2d 862,863 (Tex. Crim. App. 1985); Lee v. State, 555 S.W .2d 121, 124 (Tex. Crim. App. 1977); January v.
State, 38 S.W. 179, 180 (Tex. Crim. App. 1896).
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           While our case law has called the authority of the judge to preside a jurisdictional
        issue, we now disavow that characterization, because as we have explained,
        jurisdiction or judicial power is vested in courts, not individuals.

        Id. at 557-59.

        It appears to me that, after Davis, the authority of a judge to act, as opposed to the jurisdiction

of the court, is not a jurisdictional question and must therefore be raised in the court; it may not be

raised for the first time on appeal. The issue in this case revolves around the authority of a judge to

act when he is statutorily disqualified. Perhaps it is time to reconsider this issue and hold that Davis

overruled a claim of statutory disqualification of the presiding judge as a jurisdictional issue that may

be raised for the first time on appeal. Alas, the parties have not raised this issue.



Filed: June 25, 2008
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