EX PARTE OSCAR LOPEZ DELEON

REVERSE and REMAND; Opinion issued August 24, 2011
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-11-00594-CR
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EX PARTE OSCAR LOPEZ DELEON
 
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On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. WX11-90009-P
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OPINION
Before Justices Bridges, Lang-Miers, and Murphy
Opinion By Justice Bridges
        Oscar Lopez DeLeon filed an application for writ of habeas corpus seeking to avoid extradition to Colorado.   See Footnote 1  A magistrate judge conducted a hearing and denied appellant the relief requested. The district court judge entered an order adopting the findings and recommendations of the magistrate and denying relief. In two issues, appellant contends the magistrate judge lacked authority to act and the record contains no judgment signed by the district court judge. We reverse the trial court's order and remand the case to the trial court for further proceedings.
        In his first issue, appellant argues the magistrate lacked authority to act because there is no order referring the case to the magistrate judge, as required by article 54.307 of the Texas Government Code. Thus, appellant contends, the order denying relief should be reversed and the case remanded to the trial court. The State responds that appellant did not preserve his complaint for review because he did not object to the lack of a referral order at the hearing.
        To refer a case to a magistrate, a district court judge must issue an order of referral specifying the magistrate's duties. See Tex. Gov't Code Ann. § 54.307(a) (West 2005). An order of referral may limit the powers of the magistrate, direct the magistrate to report only on specific issues, and set forth general powers and limitations of authority of the magistrate. Id. § 54.307(b). Once a case is referred to the magistrate judge, the actions taken by the magistrate become the decree of the referring court if the court does not modify, correct, reject, reverse, or recommit an action of the magistrate. See id. § 54.312.
        The general requirement for preservation of error is set forth in Rule 33.1(a) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 33.1(a). Rule 33.1(a) requires “a timely, specific objection and a ruling by the trial court” to preserve a complaint for appellate review. See Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). The Texas Court of Criminal Appeals has identified three categories of rules or rights: (1) systemic (or absolute) requirements or rights; (2) waivable rights; and (3) forfeitable rights. See id. at 340. Rule 33.1(a) does not apply to a violation of the first two categories of rules or rights, and a violation of those rules or rights may be raised for the first time on appeal. See id. at 341.
        A systemic right is “a law that the trial court has a duty to follow even if the parties wish otherwise.” Id. at 340. Systemic rights include those that are statutorily or constitutionally mandated, or are otherwise not optional, waivable, or forfeitable by either party. See Sanchez v. State, 120 S.W.3d 359, 365-66 (Tex. Crim. App. 2003) (en banc). The implementation of systemic rights is not optional and nor waivable or forfeitable by any party. See Sanchez, 120 S.W.3d at 365-66.         Waivable rights are those a judge has an independent duty to implement absent an effective waiver by the defendant. Mendez, 138 S.W.3d at 341. It is well-established that waiver ordinarily requires “voluntary relinquishment or abandonment of a known right.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). In the criminal context, a defendant is never deemed to have given up a waivable right unless he does not complaint about it at trial. Mendez, 138 S.W.3d at 341; Goffney v. State, 843 S.W.2d 583, 585 (Tex. Crim. App. 1992).
        Finally, forfeitable rights are rights which are implemented at the request of a defendant. Mendez, 138 S.W.3d at 341. Rule 33.1 applies to these rights. “Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only . . . all other complaints, whether constitutional, statutory or otherwise, are forfeited by failure to comply with Rule 33.1(a).” Mendez, 138 S.W.3d at 342.
        Section 54.307 clearly imposes a duty on the district court judge to issue an order of referral to a magistrate judge giving authority to act in a case that operates independent from a defendant's request for that right. See Tex. Gov't Code Ann. § 54.307(a). Because this duty is not optional, it is a “systemic right,” which cannot be waived or forfeited. See Mendez, 138 S.W.3d at 342.
        The record in this case contains no order referring the case from the district court judge to the magistrate judge to hear, nor does the State contend such an order exists. The docket sheet shows only the hearing and ruling by the magistrate. Because there is no order referring the case to the magistrate judge, the magistrate did not have authority to act. See Ex parte Pardun, 727 S.W.2d 131, 132-33 (Tex. App.-Dallas 1987, no pet.) (per curiam). We sustain appellant's first issue.   See Footnote 2 
        We reverse the trial court's order and remand the case to the trial court for further proceedings.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
110594F.U05
 
Footnote 1 See generally Tex. Code Crim. Proc. Ann. art. 51.13 (West 2006).
Footnote 2 Appellant's second issue raises the lack of a judgment by the district court judge. We have received the district court judge's order adopting the magistrate's findings and recommendations, so issue two is now moot.