Jerre-Graham: Kneip v. State of Texas--Appeal from County Court at Law of Kerr County

Nos. 04-01-00021-CR & 04-01-00022-CR
Jerre KNEIP,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law, Kerr County, Texas
Trial Court Nos. CR-00-0982 & CR-00-0983
Honorable Charles Sherrill, Judge Presiding (1)

Opinion by: Paul W. Green, Justice

Sitting: Phil Hardberger, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: August 8, 2001

DISMISSED IN PART FOR LACK OF JURISDICTION; AFFIRMED

Jerre Kneip appeals the judgments of the county court dismissing his appeals of two municipal court convictions and forfeiting his bail bonds for failure to appear for trial. He contends the orders of the county court are void and further claims the trial judges' failure to comply with constitutional requirements is a violation of criminal laws. We affirm the trial court's orders and dismiss the appeal in part for lack of jurisdiction.

Kneip pled nolo contendere in the municipal court and was convicted for driving without a license and operating a vehicle without a valid registration sticker. He appealed the convictions to the county court at law but the trial court dismissed the appeals when Kneip failed to appear for his trial de novo. Thereafter, the trial court entered judgments nisi and orders forfeiting Kneip's bail bonds.

Validity of the County Court Orders

In his first issue, Kneip contends the actions of the county court are void because the judges did not comply with article XVI, section 1 of the Texas Constitution which requires a trial judge to file an "anti-bribery" oath with the Secretary of State before taking the oath of office. See Tex. Const. art. XVI, 1(b), (e). Sections (a) and (c) of that provision require all elected and appointed officers to take an oath of office before entering upon the duties of their offices. Sections (b) and (d) require elected and appointed officers to subscribe to an anti-bribery statement before taking the oath of office. Finally, sections (e) and (f) require elected and appointed officers to "file the signed [anti-bribery] statement . . . with the Secretary of State before taking the Oath" of office. Tex. Const. art XVI, 1.

A judge is constitutionally disqualified if he has not taken the required oaths. Prieto Bail Bonds v. State, 994 S.W.2d 316, 321 (Tex. App.-El Paso 1999, pet. filed) (citing French v. State, 572 S.W.2d 934, 939 (Tex. Crim. App. 1977)). The acts of a judge who is constitutionally disqualified are void, and a defendant may challenge the judge's authority to act for the first time on appeal. See Wilson v. State, 977 S.W.2d 379, 380 n.3 (Tex. Crim. App. 1998); Davis v. State, 956 S.W.2d 555, 559 (Tex. Crim. App. 1997). However, the acts of a judge who is qualified and not constitutionally or statutorily disqualified are not void because of procedural irregularities. See Davis, 956 S.W.2d at 559. A defendant who challenges the authority of an otherwise qualified judge because of procedural irregularities must "object pretrial; if he does not, he may not object later or for the first time on appeal." Wilson, 977 S.W.2d at 380. Kneip did not raise the issue of anti-bribery oaths in the trial court.

Judge Sherrill signed the judgments dismissing Kneip's county court appeals on November 9, 2000. The document Kneip filed with this court shows only that the Secretary of State's office found no article XVI filing for Judge Sherrill as of July 10, 1998, over two years prior to the judgments in Kneip's cases. Kneip has failed to make a prima facie showing of any substantive or procedural irregularity existing at the time Judge Sherrill acted in the cases at issue. (2)

Judge Brown signed the orders forfeiting bond and judgments nisi on December 27, 2000 and January 2, 2001. Kneip filed documents showing Judge Brown signed his oath of office on January 1, 1999 and the Secretary of State found article XVI filings for Judge Brown filed December 29, 1994 and January 4, 1999. These documents show only that an anti-bribery statement was not marked as filed with Secretary of State until three days after the oath was taken. We decline to hold this renders Judge Brown constitutionally disqualified from acting as a judicial officer. Because Kneip raises only a procedural irregularity, he must have objected pretrial. Wilson, 977 S.W.2d at 380; but see Prieto Bail Bonds, 994 S.W.2d at 318 (Tex. App.-El Paso 1999, pet. filed) (objection to oath of judge signing judgment nisi may be made by motion for new trial). By failing to complain in the trial court, Kneip waived his objection to Judge Brown. We overrule Kneip's first issue.

Criminal Violation

In his second, third and fourth issues, Kneip suggests the judges have violated sections of the Texas Penal Code by acting without authority and accepting salaries without complying with the constitutional requirements. We have no jurisdiction to consider original criminal charges. Tex. Gov't Code Ann. 22.001 (Vernon 1988). We dismiss issues two, three and four for lack of jurisdiction.

Conclusion Because Kneip failed to establish a prima facie case of disqualification against Judge Sherrill and waived objection to Judge Brown, we affirm the judgments of the trial court. The appeal is dismissed for lack of jurisdiction as to issues two, three and four.

Paul W. Green, Justice

DO NOT PUBLISH

1. Judge Charles Sherrill, Senior Judge Sitting by Assignment, signed the judgments dismissing appellant's appeals in the county court at law and remanding the cases to the municipal court. Judge Spencer Brown signed the subsequent orders forfeiting appellant's bail bonds for failure to appear for trial.

2. See Murphy v. State, 2001 WL 170967, at *1 & n.1 (Tex. App.-Houston [1st Dist.] Feb. 22, 2001, no pet. h.) (appellant must make some prima facie showing of irregularity).