Ex Parte Bennett , 85 Tex. Crim. 315 ( 1919 )

Relator is before us on her motion for rehearing supported by an able and ingenious argument and citation of authorities. It is strongly urged that we were in error in our original opinion in holding that the Legislature may deprive one accused of crime in any case of what is called his "right of appeal." There is no such thing as right of appeal except as the same may be conferred by the body of our laws made up of our Constitution and legislative enactments; and being wholly derived therefrom such right of appeal moves only in channels fixed by such legal direction. "The remedy by appeal in actions at law is purely of constitutional or statutory origin, and exists only when given by some constitutional or statutory provision." 2 Cyc., p. 517. In Bishop's New Criminal Procedure, vol. 2, sec. 1264, it is said that an appeal in criminal cases is known only under statute.

If the relator has any right of appeal same must be found in our Constitution or other laws. In view of the earnest contentions made we have again carefully examined the provisions of our statutes and Constitution bearing upon the points raised, but are only more strongly confirmed in the correctness of our conclusions in the original opinion. The Constitution of Texas, as set out in our original opinion, gives to the Court of Criminal Appeals appellate jurisdiction co-extensive with the limits of the State "with such exceptions and under such regulations as may be prescribed by law." Section 5, article 5 of the Constitution. This clause of the Constitution provides that the Legislature may make regulations which, if not followed, may prevent successful appeal; and that the Legislature may make exceptions to the general rule authorizing appeals to this court. Such exceptions would necessarily be reasonable. Under this clause many statutory regulations have been enacted hedging in the appellate route here, the disregard of which have been held to render such attempted appeals nugatory. Various acts, which have run the guantlet of the Constitution, have also been passed which denied one convicted of crime the right to bring his case here on appeal in certain cases. So much for the statutory and constitutional matter of appeal where this court is concerned. As to County Courts, section 16, article 5 of the Constitution contains the following: "They shall have appellate jurisdiction in cases, civil and criminal, of which Justice's Courts have original jurisdiction." Also, it is further provided: "In all appeals from Justice's Courts there shall be a trial de nevo in the County Court, and appeals may be prosecuted from the final judgment rendered in such cases by the County Court, as well as all cases civil and criminal of which the County Court has exclusive or concurrent or original jurisdiction of civil appeals in civil cases to the Court of Civil Appeals and in such criminal cases to the Court of Criminal Appeals, with such exceptions and under such regulations as may be prescribed by law." We find nothing further in the Constitution regulating appeals from County Courts in criminal matters. Under the apparent power given by this provision, the Legislature saw fit to pass article 87 of our C.C.P., limiting appeals from the County Court to this court in cases appealed originally from Justices' Courts, and its constitutionality has often been upheld. If the Legislature should see fit to limit appeals from cases originally filed and tried in the County Court in the same manner, there would seem to be no constitutional reason why the same may not be done, as the legislative power to limit appeals in both instances would arise, as far as the Constitution is concerned, under the language above quoted from section 16, article 5; which language specifically mentions all cases, civil and criminal of which the County Court has exclusive or concurrent or original jurisdiction.

If the Legislature may deny the right of appeal from the County Court to this court, under the granted authority named, when the fine is not more than $100, we see no reason why it may not do so when the fine is less than $25, which is the limitation fixed in the Act creating the Texarkana Corporation Court. Nor can the position be assailed, that if the Legislature may limit appeals from County Courts, it may also limit appeals from Corporation Courts.

We think the constitutional power to limit such appeals undeniable; subject, however, always to a determination by the courts as to whether the same is reasonable.

As to Justices' Courts, section, 19, article 5 of the Constitution says: "Appeals to the County Courts shall be allowed in all cases decided in Justices' Courts where the judgment is for more than twenty dollars exclusive of costs; and in all criminal cases under such regulations as may be prescribed by law." This necessarily means criminal cases tried in Justices' Courts; and construed with that part of section 16 referring to County Courts, which is as follows: "They shall have appellate jurisdiction in cases civil and criminal of which Justices' Courts have original jurisdiction," it seems clear that the meaning and reference throughout is to cases of which a Justice Court has actual and not theoretical jurisdiction; that is, to cases actually filed and tried in Justices' Courts. Nor will it be claimed that the law creating the Corporation Court of Texarkana makes any change in the power or right of any person whose case is actually tried in the Justice's Court of Precinct No. 1 of Bowie County, to have the same appealed to the County Court of said county and there tried, and if fined more than $100 to again appeal the case to this court. The fact that in a given case one accused of a misdemeanor may not have any right of appeal because of the small fine, is no more an argument against the law so directing, or the court so holding, than to inveigh against the injustice of giving one man one appeal while another for the same offense may have two, dependent entirely on the amount of his fine, and whether his case was originally filed in the Justice Court or the County Court.

Relator also contends that our opinion strikes down articles 873 and 874, Vernon's C.C.P., relating to appeals in general. These are general statutes and would not control the provisions of the special law relating to appeals from one particular court. We also observe that since the passage of said general laws not only has the special Act creating the Texarkana Court and fixing its jurisdiction, been passed, but also the Constitution has been amended under which the creation of such courts and the fixing of their jurisdiction and conforming the jurisdictions of other inferior courts thereto, is authorized.

We have carefully considered the matters raised in relator's motion for rehearing but being unable to agree therewith the same is overruled.

Overruled.