author: DANIEL, Justice. REAVLEY, Justice, YARBROUGH, Justice,

text:
    Robert Alton GAMMAGE, Relator, v. The Honorable John L. COMPTON et al., Respondents.
    No. B-6542.
    Supreme Court of Texas.
    March 2, 1977.
    Kronzer, Abraham & Watkins, Michol O’Connor and W. James Kronzer, Burnett & Jones, O’Rourke & Lawler, Terence L. O’Rourke, Houston, for relator.
    Austin & Arnett, Fitzhugh H. Pannill, Jr., and Bertrand C. Moser; Hastings Pan-nill, Houston, for respondents.
   DANIEL, Justice.

This is a mandamus proceeding which arises out of a suit filed by Ron Paul against Robert Alton Gammage in the 151st Judicial District Court seeking to contest the election in which Gammage has been declared to be the winner over Paul for Congressman for the 22nd Congressional District of Texas.

Relator Gammage seeks to have this Court mandamus the Respondent, Honorable John L. Compton, Judge of said Court, to vacate certain orders relating to further deposing of Gammage by counsel for Respondent Paul, to grant such further relief as the Court deems requisite and proper, and to direct the Respondent Paul to cease and desist from pursuit of this election contest under State court procedures. The principal question is whether the district court has jurisdiction over the contest under Article 9.01 of the Texas Election Code.

At the general election on November 2, 1976, Gammage was declared winner over the incumbent, Paul. A recount was requested by Respondent Paul and it was conducted under the general observation of inspectors from the office of the Texas Secretary of State and counsel from the Privileges and Elections Subcommittee of the United States House of Representatives. The recount showed Gammage to be the winner by 268 votes, and on November 22, 1976, Gammage was certified by the Governor as having won the election. Thereafter, Paul filed this contest in the District Court of Harris County as well as a notice of contest with the United States House of Representatives under the Contested Elections Act, 2 U.S.C. § 381, et seq.

On January 4, 1977, Gammage was unconditionally sworn in as a member of the House. He then filed a motion to dismiss this court proceeding, and it was denied on January 12, 1977. On January 25th, this Court refused Gammage’s motion for leave to file a petition for writ of mandamus to order a dismissal of the suit. Thereafter the trial court ordered Gammage to appear on February 12,1977, to be further deposed by counsel for Paul. Whereupon, Gam-mage sought and was granted permission to file this petition for writ of mandamus and writ of prohibition.

Relator’s principal contention is that Article 9.01, if interpreted as applying to members of Congress, is violative of Article I, § 5, of the Constitution of the United States. The pertinent portion of Article 9.01 reads:

“The district court shall have original and exclusive jurisdiction of all contests of elections, general or special, for all school, municipal, precinct, county, district, state offices, or federal offices, except elections for the offices of Governor, Lieutenant Governor, Comptroller of Public Accounts, Treasurer, Commissioner of the General Land Office, Attorney General, and Members of the Legislature.” (Emphasis supplied.)

Respondent Paul insists that “federal offices,” as used in the foregoing quotation from Article 9.01, includes members of Congress. His interpretation is as though the Article read:

“The district court shall have original and exclusive jurisdiction of all contests of elections, general or special, for all school, municipal, precinct, county, district, state offices, or federal offices, including members of each House of the United States Congress . . . (Emphasis supplied.)

Article I, § 5, of the Constitution of the United States, on the other hand, provides that:

“Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . .”

Both federal and state courts have recognized that the foregoing provision gives final and exclusive jurisdiction to each House of Congress to determine election contests relating to its members. Roudebush v. Hartke, 405 U.S. 15, 92 S.Ct. 804, 31 L.Ed.2d 1 (1972); Barry v. United States ex rel. Cunningham, 279 U.S. 597, 49 S.Ct. 452, 73 L.Ed. 867 (1929); Manion v. Holzman, 379 F.2d 843 (7th Cir. 1967); Rogers v. Barnes, 172 Colo. 550, 474 P.2d 610 (1970); Burchell v. State Board of Election Commissioners, 252 Ky. 823, 68 S.W.2d 427 (1934); Belknap v. Board of Canvassers of Ionia County, 94 Mich. 516, 54 N.W. 376 (1893); McLeod v. Kelly, 304 Mich. 120, 7 N.W.2d 240 (1942); In re Williams’ Contest, 198 Minn. 516, 270 N.W. 586 (1936); Odegard v. Olson, 264 Minn. 439, 119 N.W.2d 717 (1963); Laxalt v. Cannon, 80 Nev. 588, 397 P.2d 466 (1964); Smith v. Polk, 135 Ohio St. 70, 19 N.E.2d 281 (1939).

In Barry v. Cunningham, supra, the Supreme Court of the United States referred to this power of each House of Congress as “sole authority under the Constitution to judge of the elections, returns and qualifications of its members . . . 279 U.S. at 619, 49 S.Ct. at 457. In Rogers v. Barnes, supra, the Colorado Supreme Court, speaking of the jurisdiction of the House and Senate in such contests, stated:

“Such jurisdiction being exclusive, no other body, including this Court, has the jurisdiction to hear and determine an election contest arising out of a general election for those two national offices.” 474 P.2d at 612.

In Odegard v. Olson, 264 Minn. 439, 119 N.W.2d 717 (1963), the contestant in an election for the United States House of Representatives sought to enjoin the Secretary of State of the State of Minnesota from issuing a certificate of election to the contestee. The court denied such petition, stating:

. “While the state legislature may regulate the conduct of elections subject to the limitations expressed in the U.S. Const., art. I, § 4, it should be conceded that under the provisions of art. I, § 5, each house of Congress is the sole judge of the election returns and qualifications of its members, exclusive of every other tribunal, including the courts.” 119 N.W.2d at 719.

Article 9.01 of the Texas Election Code, as interpreted by Respondent Paul, is in diametrical conflict with and contrary to Article I, § 5, of the United States Constitution. Because of this clear and obvious conflict, it is reasonable to believe that the Legislature did not intend for the term “federal offices” to apply to members of Congress. Predecessor election contest statutes did not include federal offices. The term was first used in the election contest statute enacted in 1951 as part of a 95 page revision of the entire election code. The revised election code was drafted by a commission of nine persons appointed under authority of the Fifty-first Legislature in 1950, with Judge Abner McCall as chairman and Dr. A. P. Cagle as counsel. It was introduced as House Bill 6 of the Fifty-second Legislature in 1951. However, the inclusion of “federal offices” in Section 129 (now Art. 9.01) was not a recommendation of the revision commission and neither was the term included in House Bill 6 as introduced. The term “federal offices” was inserted in Sec. 129 of the committee substitute for H.B. 6 when the substitute was adopted by the House Committee on Privileges, Suffrage, and Elections. The committee substitute was enacted in both Houses without a separate vote of any nature relating to the term “federal offices.” None of this legislative history is helpful in determining the meaning and intent of the term, but it does reveal that its inclusion was not a studied recommendation of the revision commission and that it was not one of the major items of consideration by the Legislature in adopting the revised election code.

In any event, as to members of Congress, Article 9.01 is unconstitutional and inapplicable. In this connection, it is significant that since 1951 there is no other reported case in which a party sought to contest a general or special election for the House or Senate of the United States under the terms of this statute.

Respondent Paul argues that the Supreme Court’s decision in Roudebush v. Hartke, supra, sanctions this type of election contest in a State court so long as it does not interfere in any manner with a final determination of the contest by the United States House of Representatives. There are many differences between this case and the Hartke case. In the first place, Indiana’s recount statute and procedure was all that was involved in Hartke. Indiana was not operating under a statute which attempted to vest in its courts “original and exclusive jurisdiction of all contests of elections” to the House and Senate of the United States Congress. Furthermore, Hartke had been conditionally seated by the Senate “without prejudice to the outcome of an appeal pending in the Supreme Court of the United States, and without prejudice to the outcome of any recount that the Supreme Court might order. . . . ” Gammage had already been through a somewhat similar recount in accordance with Texas law before he was certified as the duly elected Congressman, and he was seated by the House unconditionally.

A portion of the Indiana election process (the statutory recount) was not finished when Hartke was conditionally seated in the Senate, while the election process, including the recount, had been completed in Texas before Gammage was unconditionally seated in the House. This is important because the Constitution of the United States leaves the manner of holding elections for United States Senators and Representatives up to the States, subject to change by Congress. The Supreme Court made it quite clear that the question in Hartke was not to which of the candidates the office belonged. The Court said:

“. . . Which candidate is entitled to be seated in the Senate is, to be sure, a non justiciable political question — a question that would not have been the business of this Court even before the Senate acted. The actual question before us, however, is a different one. It is whether an Indiana recount of the votes in the 1970 election is a valid exercise of the State’s power, under Art. I, § 4, to prescribe the times, places, and manner of holding elections, or is a forbidden infringement upon the Senate’s power under Art. I, § 5.” 405 U.S. at 19, 92 S.Ct. at 808.

The Court then held that “a recount is an integral part of the Indiana electoral process and is within the ambit of the broad powers delegated to the States by Art. I, § 4,” but it hastened to recognize the Senate’s power to make a final decision by adding: A recount does not prevent the Senate from independently evaluating the election any more than the initial count does. The Senate is free to accept or reject the apparent winner in either count, and, if it chooses, to conduct its own recount.” 405 U.S. at 25-26, 92 S.Ct. at 810-811. The Court had previously said that the limited responsibilities involved in the recount did not constitute a “court proceeding” within the meaning of Title 28 U.S.C. § 2283, stating with reference to the Indiana procedure:

“When it grants a petition [for recount if correct in form], the court is required to appoint three commissioners to carry out the recount. Once these appointments are made, the Indiana Court has no other responsibilities or powers.” 405 U.S. at 21, 92 S.Ct. at 808.

Thus the Hartke case lends no support to the validity of Article 9.01 or to the all-out election contest which Respondent Paul seeks to wage thereunder for a determination of “to whom the office belongs.” This does not mean that Paul is without an adequate and constitutional remedy to press his contest. Congress has enacted a comprehensive procedure in 2 U.S.C.A. § 381 et seq., by which he can obtain evidence, depose witnesses, and have every allegation heard by the House of Representatives. Although termed the “federal Contested Elections Act,” the procedures apply only to contests of elections to the House of Representatives. Respondent Paul has filed his contest under this Act and it is now pending in a House Committee. He concedes that the House will make the final decision of the contest even if the State court had jurisdiction to try the contest.

We hold that Article 9.01 of the Texas Election Code is inapplicable to contests of elections of members of Congress, and any attempt to apply it to congressional elections would be in violation of Article I § 5 of the Constitution of the United States.

Accordingly, it is the judgment of this Court that the Judge of the 151st District Court of Harris County should dismiss the election contest pending in Cause No. 1,103,064 between Ron Paul and Robert Alton Gammage, and the Respondent, Ron Paul, should be prohibited from pursuing this election contest in the courts of this State under Article 9.01 et seq. of the Texas Election Code. The clerk of this Court will issue a writ of mandamus to the Honorable John L. Compton and a writ of prohibition to Ron Paul, if, and only if, either should be necessary to enforce the judgment of this Court. Because of the time element involved, no motion for rehearing will be entertained.

Dissenting opinion by REAVLEY, J., in which DENTON, J., joins.

Dissenting opinion by YARBROUGH, J., in which STEAKLEY, J., joins.

REAVLEY, Justice,

dissenting.

I do not agree that Article 9.01 of the Texas Election Code is in conflict with and contrary to Article I, § 5, of the United States Constitution. There is no reason why the State of Texas may not protect and enforce its election procedures by permitting election contest actions in court— just so long as these actions do not impede an independent determination of the election result by the United States Congress. In the event Congress decides to make its own investigation and/or determination apart from the judgment of the Texas courts according to Texas statutes, Congress may do so. That possibility and the final authority of Congress do not bar Texas entirely from a role in insuring the legal outcome of its elections. This is the construction which I understand the federal courts now give to this section of the United States Constitution. Roudebush v. Hartke, 405 U.S. 15, 92 S.Ct. 804, 31 L.Ed.2d 1 (1972); Durkin v. Snow, 403 F.Supp. 18 (D.N.H.1974).

DENTON, J., joins in this dissent.

YARBROUGH, Justice,

dissenting.

I respectfully dissent.

This action for mandamus arises out of an election contest filed against Relator Gammage by Respondent Paul seeking to contest in state court the election of Robert Alton Gammage to the office of the United States House of Representatives for the 22nd Congressional District of Texas.

On November 2,1976, Gammage defeated the incumbent Paul in the race for Representative for the 22nd Congressional District of Texas. Under the provisions of the Texas Election Code, article 7.15, § 23, a recount was conducted under the general observation of counsel from the Privileges and Elections Subcommittee of the United States House of Representatives Administration Committee. The recount showed Gammage the winner by 268 votes. He was thereafter certified as having won the election by the Secretary of the State of Texas.

Paul filed a notice of contest in state district court under the provisions of article 9.03 of the Texas Election Code. That cause, number 1,103,064, is now pending in the 151st District, Respondent the Honorable John L. Compton, presiding. Pursuant to 2 U.S.C. § 381 et seq. (1970), Paul also filed a notice to contest the election in the House of Representatives. The matter is pending before the United States House of Representatives Administration Committee.

On January 4, 1977, Gammage was sworn in as the Representative for the 22nd Congressional District of Texas. Immediately afterward, Gammage filed a motion to dismiss the state court action for lack of jurisdiction over the contest. The motion was denied on January 12, 1977 and Paul proceeded with discovery in cause number 1,103,064.

At a hearing on February 7, 1977, Paul presented to the trial court his Motion to Compel the Oral Deposition of Gammage. The trial court granted the motion, but, at the instance of Gammage, scheduled the deposition for Saturday, February 12, 1977, and ordered that it be taken in Gammage's office in Washington, D.C.

On February 9, 1977, this Court granted Gammage leave to file his Petition for Writ of Mandamus, which sought to have the order compelling his oral deposition set aside and/or the action dismissed in the trial court. All proceedings in the trial court have been stayed. Paul has requested that this court immediately dissolve or modify its stay order so that he can prepare for and proceed to trial.

In argument before this Court, Paul claimed knowledge of at least 500 persons who illegally voted for Gammage in the November 2, 1976, election; of over 300 ballots that were miscounted for Relator from Fort Bend County alone; of at least 300 persons who supposedly voted but who cannot now be found, and of a number of voters who allegedly were either residents of other states or not physically present within the state on election day. Additionally, it is alleged that in 20 Harris County precincts originally carried for Gammage by very substantial margins, 149 more votes were counted than there were persons voting. Paul also complains of irregularity in the counting of absentee ballots, asserting that the election judge involved in the initial handling and counting of the absentee ballots was a paid employee of Gammage.

In his petition for writ of mandamus Gammage contends:

1.Article I, § 5, of the United States Constitution, places sole and exclusive jurisdiction in each House of Congress to determine the elections, returns, and qualifications of its own members, and therefore an election contest conducted in a state court infringes on the powers of Congress.

2. Because the House of Representatives will make the final decision of which candidate will be seated, any decision by a state court on this issue would be advisory only. Since the Texas Constitution prohibits “advisory opinions,” the district court is without jurisdiction.

3. The Federal Contested Election Act, 2 U.S.C. § 381 et seq. (1970), preempts consideration by a state court of any contest of an election for the United States House of Representatives.

4. The state statutes relating to “election contests” fail to specify the relief to be granted by the district court upon the determination of the contest.

5. The Rules of Civil Procedure do not authorize the pretrial discovery deposition of Gammage in an election contest.

1

Article I, § 5 of the United States Constitution provides that each House shall be the judge of the elections, returns and qualifications of its own members. Article I, section 4 provides that “[t]he Times, Places and Manner of holding Elections for . Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . .”

In this controversy, we are called upon to determine whether the “’proceeding contemplated by Judge Compton, as presiding judge of the 151st Judicial District Court is a forbidden infringement on the power of the House of Representatives under article I, § 5, or the valid exercise of the state’s power under article I, § 4, to describe the times, places and manner of holding elections.

To be sure, the power of the House of Representatives to seat a candidate is a non-justiciable political question — a question that would not have been the business of this or any other court. See Roudebush v. Hartke, 405 U.S. 15, 19, 92 S.Ct. 804, 807, 31 L.Ed.2d 1, 8 (1972).

As I understand it, however, the question of who is or who is not to be seated by the Congress of the United States is not before Judge Compton. Rather he is requested to decide those certain questions and issues which have come to typify and characterize an “election contest,” namely: how many votes were lawfully cast in a state supervised and sanctioned election, and how many votes were illegally cast; how many votes were lawfully counted by and for whom, and similarly, how many votes were illegally counted, if any. Such an inquiry may ultimately address substantive questions and issues regarding the registration of those within the district who purported to vote, the integrity and accuracy of the vote inspectors and canvassers in the procedural discharge of their duties in both the counting and recounting of votes, and in the making and publication of a proper return. While the answers to these issues may be of interest to the Congress in its ultimate determination of who shall be seated, Congress is not bound by the answer to any of them. But these inquiries are clearly of direct concern and interest to the state in the administration and enforcement of the election laws pursuant to which the voters of District 22 were to select, in democratic fashion, their own congressional spokesman.

Chief Justice Hughes, writing in Smiley v. Holm, 285 U.S. 355, 366, 52 S.Ct. 397, 399, 76 L.Ed. 795, 800 (1932), both recognized and defined the breadth of the permissible state powers under article I, § 4:

It cannot be doubted that these comprehensive words embrace authority to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns; in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved.

This writing of Justice Hughes enumerates those functions which are the subject of the election contest proceeding now pending before Judge Compton.

Texas has found, along with many other states, that among the procedures necessary to guard against irregularity and error in the determination of election results is the availability of both a recount and, if necessary, an election contest. Despite the fact that a certification of election may be issued to the leading candidate within 17 days after the election, the results are not final if a candidate’s option to initiate a contest is exercised.

It is true that a state’s verification of the accuracy of election results pursuant to its article I, § 4 powers is not totally severable from the power of the House of Representatives to judge elections and returns. But a recount or an election contest can be said to “usurp” the function of the House only if it frustrates the ability of the House to make an independent final judgment. An election contest does not prevent the House of Representatives from independently evaluating the election any more than does the initially announced election result. The House is free to accept or reject the apparent winner in either count, and if it chooses, to conduct its own inquiry into the substantive issues of the contest. Such were the principles announced by the Supreme Court of the United States in Roudebush v. Hartke, 405 U.S. 15, 92 S.Ct. 804, 31 L.Ed.2d 1 (1972), when that court considered the question of whether an Indiana recount of the votes in a 1970 senatorial election was a valid exercise of the state’s power under article I, § 4, or an infringement upon the Senate’s power under article I, § 5. That Court held that such recount was the province of the state pursuant to article I, § 4. I see little reason for distinguishing between an exhaustive election contest concerned with the substantive procedures of the election, and a mere cursory recount; their objectives are identical, i. e. to determine and designate the most popular candidate.

An election contest is an integral part of the Texas electoral process and is within the ambit of the broad powers delegated to the state by article I, § 4 of the United States Constitution.

2

Gammage also attacks article 9.01 of the Texas Election Code, categorizing that provision as an invalid attempt by the legislature to authorize an advisory opinion. The district court cannot finally determine who should represent the 22nd District because Congress has final authority to judge elections, qualifications, and returns of its members. Therefore, so the argument goes, any ruling by the district court in a Congressional contest would be an advisory opinion beyond the constitutional power of the court.

This argument misconstrues the nature and purpose of an election contest, the constitutional provision authorizing same, and the basis for the prior decisions of this Court invalidating advisory opinions.

At least in a democracy, an election is more than a periodic inconvenience to both the electorate and to those who would continue to hold political office. All recognize that it provides the mechanism for popular choice of both candidates and parties, but it also registers the philosophical viewpoint supported by a plurality of those who vote, as well as the degree of support enjoyed by minority interests. It provides a forum for public participation in politics, and thereby affords an educational opportunity for both those who become active partisans and those who are affected by such partisan activity. And it serves to peacefully resolve social conflicts: majority and minority groups alike are more willing to accept exercises of the state’s coercive powers and to obey state laws when the state officials have been chosen by the People in a fair process. While the objective of an election may be to select the most popular candidate, its vital function is to legitimize governmental authority. An election is the means by which the rudder of the Ship of State is altered, if ever so slightly, and the philosophical course of our government is thereby determined. Without such legitimization, there is no duly constituted government, and the inherent right of the People to open revolution has historically been the inevitable alternative.

Those persons who participated in the election are entitled to an orderly declaration of the final results of that political event, without regard to the question of which candidate shall be seated by Congress.

Paul paid a filing fee, or otherwise qualified himself, in order to stand for election on the basis of philosophical and personal views in contrast to those of his opponent, Gammage. He did so with considerable support from a large contingent of the eligible voters of the 22nd Congressional District, who collectively appear to have exerted themselves, both physically and financially, all in confident reliance upon an implied assurance from the State of Texas that the election, to which they sought to dedicate themselves, would be conducted in an honest, fair and otherwise impartial manner, and in accordance with the law, as codified, in part, by the Texas Election Code. There is now a concomitant duty, on the part of the State, to determine the integrity of that election process, and thereby reassure all citizens, including Respondent Paul and his supporters, that their confidence is well placed. And that duty is independent of anything that the Congress does, or does not do.

In this regard, an election contest is an end in-and-of itself, which is accomplished when the results of the election, and the right to the certificate of election, are declared by the district court. Congress cannot decide how this state declares an election or to whom the Texas certificate is to be delivered. These decisions are accomplished — not recommended or advised — by the Texas election contest proceeding.

The reasoning of the prior cases invalidating advisory opinions is clear and consistent: a court cannot give advice because the constitutional provisions granting its jurisdiction do not permit it. They are restricted to the exercise of “judicial power,” which “is the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for a decision.” Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, 644 (1933). In every instance, however, the restriction of the courts to cases, controversies, parties, and judgments — to the judicial functions — results from the intention of the framers expressed in the provisions of the Texas Constitution.

I believe that the legislative history of both the constitutional and statutory provisions relating to election contests conclusively indicates that an election contest is an exception to the general rule that the district court is restricted to judicial functions, and to the necessity of parties, binding judgments, or controversies.

Originally, this Court held that the contest of an election is not within the judicial power granted to the courts of this state by the Texas Constitution. Ex Parte Towles, 48 Tex. 413 (1878); Williamson v. Lane, 52 Tex. 335 (1879); Ex Parte Whitlow, 59 Tex. 273 (1883). In Williamson v. Lane, supra, this Court construed the predecessor of the current election contest provisions of our election code. Tex.Laws 1873, ch. 50, at 67, 7 H. Gammel, Laws of Texas 519 (1871), as amended, Tex.Laws 1876, ch. 65, at 70, 8 H.Gammel, Laws of Texas 906 (1874). The statute there construed is remarkably similar to our current contest provisions.

Article 5, § 8 of the Constitution of 1876, which granted jurisdiction to the district court, was also much the same as the same numbered provision of the present Constitution. The 1876 Constitution contains the same general grant of the judicial power:

The District Court shall have original jurisdiction ... of all suits, complaints or pleas whatever, without regard to any distinction between law and equity, when the matter in controversy shall be valued at or amount to five hundred dollars exclusive of interest; and the said courts and the judges thereof shall have power to issue writs of habeas corpus in felony cases, mandamus, injunction, cer-tiorari, and all writs necessary to enforce their jurisdiction.

Tex.Const., art. 5, § 8 (1976) (emphasis in original).

This Court held in Williamson v. Lane, supra, that the general grant of judicial power as contained in the 1876 Constitution Proviso, did not confer jurisdiction over the “election contests” provided in the predecessor statute:

This leads us to the inquiry, whether the contest of an election authorized by the act of May 8, 1873, regulating contested elections, and the act to amend the same, approved July 20, 1876 (Gen.Laws, 13th Leg., p. 67; Gen.Laws, 15th Leg., p. 70) under and by virtue of which this proceeding was instituted and conducted, can be held to be either a suit, complaint, or plea in the sense in which these words are evidently used in the Constitution? These acts themselves, in my opinion, plainly answer this question in the negative.
That the right to an office may be, and has often been, the subject of a suit, cannot be questioned; but that the declared result of an election by the officer to whom this duty is intrusted, and the resultant right to the certificate of election, may be contested otherwise than by an action, or suit, or proceeding before a judicial officer or tribunal, is certainly as equally well established.
The right to an elective office, as every one will admit, results from the legally-expressed choice of a majority of the electors; but how this choice is to be legally expressed and ascertained is a matter of legislative discretion and determination. If the Legislature should see fit to do so, unless restrained by some constitutional provision, it may make the declared result by the officer by whom the election is conducted final and conclusive upon all parties, or may authorize a review of the action of this officer by some other executive officer or commission, or intrust its determination to an existing judicial tribunal, if its constitutional jurisdiction will warrant its taking cognizance of it, and if not, it may, under our present Constitution, create one for this purpose. (Const., art. 5, sec. 1.)
In the case of Rogers v. Johns, 42 Tex. 339, the court again held that the determination of the result of an election is not a matter pertaining to the ordinary jurisdiction of the law in courts of justice. It is in the nature of a political question, to be regulated, under the Constitution, by the political authority of the State. (Emphasis added)

Williamson v. Lane, supra, 52 Tex. at 344-346 (emphasis added).

In Ex Parte Whitlow, 59 Tex. 273 (1883), this Court relied upon the Williamson case to hold invalid a provision for contesting an election for county seat.

When the Constitution was subsequently revised in 1891, however, the courts were given jurisdiction over contested elections regardless of their non-judicial nature:

The District Court shall have original jurisdiction ... of all suits, complaints or pleas whatever, without regard to any distinction between law and equity, when the matter in controversy shall be valued at, or amount to five hundred dollars exclusive of interest; of contested elections, and said court and the judges thereof, shall have power to issue writs of habeas corpus, mandamus, injunction and certiorari, and all writs necessary to enforce their jurisdiction.
Tex.Const. art. 5, § 8 (emphasis added).

Pursuant to the above provision, the Texas Legislature has enacted and reenacted a comprehensive election code. Section 9.01 of this code grants the district court the power and entrusts it with the duty to hear election contests involving “federal offices,” which term, by its plain and ordinary meaning, includes United States Congressional elections held within this state:

The district court shall have original and exclusive jurisdiction of all contests of elections, general or special, for all school, municipal, precinct, county, district, state offices, or federal offices, except elections for the offices of Governor, Lieutenant Governor, Comptroller of Public Accounts, Treasurer, Commissioner of the General Land Office, Attorney General, and Members of the Legislature.

Tex.Election Code Ann. art. 9.01 (1967) (emphasis added).

In light of the language of Williamson, supra, the subsequent amendment of article 5, § 8, to include election contests seems to have been clearly intended to grant a nonjudicial, political, and declaratory power to the district court. This is further evidenced by the fact that the amendment does not refer to cases arising out of elections, or controversies involving them, but merely grants jurisdiction “of contested elections.” We must presume that the amendment of section 8 in 1891 was made with knowledge of this Court’s holding as to the nature, purpose, and effect of “contested elections” as expressed in Williamson. The district court was given power to determine election contests as defined by this Court at the time: as non-judicial, declaratory, and not necessarily creating any immediate right to office.

The jurisdiction of the district court is unaffected by whether or not the election contest proceeding will determine the right to a congressional office. That is not the purpose of this proceeding. And if an act requires the district court to perform nonjudicial functions, that act is clearly valid because the district court has also been entrusted with non-judicial powers.

3

Relator argues that Congress, by enacting the Federal Contested Elections Act, 2 U.S.C. § 381 et seq. (1970), has preempted contests of federal elections in state courts. If such preemption has occurred, the supremacy clause of the United States Constitution restrains any action by the courts of this state. Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941). In my opinion, however, the federal statute presents no impediment to an election contest in a state court.

In order for preemption to occur, either the federal statute must express a Congressional design to “occupy the field,” or there must be an actual conflict between the federal and state statutory schemes such that both cannot stand in the same area. Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 141, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248, 256 (1963). The case before us is not one in which the federal statute by its terms expresses an intent to occupy exclusively an area. See, e. g., Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). The question, then, is whether we should imply such an intent on the part of Congress.

The Federal Contested Elections Act revises the procedures followed by the parties to an election contest in the House of Representatives. The Act establishes a comprehensive framework patterned after the Federal Rules of Evidence with the intention of instituting “modern procedures which provide efficient, expeditious processing of the [contested] cases and a full opportunity for both parties to be heard.” 1969 U.S.Code Cong. & Adm.News, pp. 1456, 1458-59. Section 382 provides for the filing of notice by the contestant with the clerk of the House. Section 383 sets out the requirements for the contestee’s response. Sections 386 to 390 make depositions available to both parties as a discovery tool, as well as establishing sanctions for failure to attend. The Act was not intended to make any changes in the substantive bases for election contests. 115 Cong.Rec. 30510 (1969).

I detect no support for the proposition that the Congress intended to preempt this area in either the language of the statute or its legislative history. The comprehensive nature of the House contest procedures is an insufficient basis for such an inference. Congress, being the final judge of the elections of its members, would have created a comprehensive procedure for handling election contests completely apart from any question of preemptive intent. Only in this way could the contest be streamlined, which would enable the House to resolve the matter and turn to legislative questions. Additionally, the federal statute had to be sufficiently comprehensive to provide discovery techniques. Otherwise, contesting parties from states that, unlike Texas, had no provision for election contest discovery would be unable to secure facts necessary to conduct the contest.

I would decline to adopt a stricter standard for ascertaining Congressional intent to preempt than that promulgated by the United States Supreme Court:

If Congress is authorized to act in a field, it should manifest its intention clearly. It will not be presumed that a federal statute was intended to supercede the exercise of the power of the state unless there is a clear manifestation of intention to do so. The exercise of federal supremacy is not lightly to be presumed.

The second basis for preemption lies in a conflict between federal and state legislation. The case before us does not involve a state standard of action that is more stringent than that of federal law. See, e. g., Florida Lime and Avocado Growers, Inc. v. Paul, supra; Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960). Rather, our case involves parallel but separate proceedings: the state court will determine which party is entitled to receive the certificate, while the House of Representatives will decide who is to be seated. The problem arises because the prevailing party in one of these proceedings will not necessarily also succeed in the other. I do not believe that this is a conflict that stands “as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Perez v. Campbell, 402 U.S. 637, 649; 91 S.Ct. 1704, 1711, 29 L.Ed.2d 233, 242 (1971); Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581, 587 (1941). Conflicting state laws, absent repealing or exclusivity provisions in the federal statute, should be preempted only to the extent necessary to achieve the aims of the federal statute. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 414 U.S. 117, 94 S.Ct. 383, 38 L.Ed.2d 348 (1973).

The objectives of the Federal Contested Election Act are limited to providing an efficient procedure for contests in the House. The existence of an election contest suit in a state court will not hamper the House in applying these procedures to its contest. Nor do articles 9.01-9.38a impinge on the ability of the House to conduct its own contest. The House, having the last word on its membership, will not be bound by any Texas court award of the certificate, although the adjudication made by a state court may actually aid the House in its inquiry. See 1969 U.S.Code Cong. & Adm. News, pp. 1456, 1457. In my opinion, both statutory schemes can stand in the same area.

4

Gammage argues that the state statutes relating to “election contests” as embodied within chapter 9 of the Texas Election Code, are deficient in that such statutes fail to specify the relief to be accorded by the district court upon the determination of the contest. Gammage contends that while the pertinent “contest statutes” may contemplate a final decision, there is no provision in the entirety of chapter 9 of the Texas Election Code suggesting (i. e. authorizing) that the court may determine or declare that the certificate of election issued by the Secretary of State should be withdrawn, or that the contestee had been wrongly certified.

It is apparent that the general statutory scheme of the Texas Election Code contemplates that when there is doubt about the results of a contested election, the final authority for declaring same rests with the district court, subject to appellate review.

The district court may order the contestant to implead the Secretary of State, the chief elections officer of the state, as a party defendant in accordance with Rule 39, Texas Rules of Civil Procedure. Thereafter, the Secretary of State shall be subject to such orders as the court may enter in enforcing its jurisdiction and resolving the contest, including an order for the issuance of a valid certificate of election to the candidate determined by the court to have received the greatest number of legally cast votes.

5

Gammage contends that, even if the district court may entertain this action, the court has no authority to order a deposition to be taken because the discovery provisions of the Texas Rules of Civil Procedure are inapplicable to an “election contest.” The basis for this contention is Rule 2, which provides in pertinent part:

These rules shall govern the procedure in the justice, county, district, and appellate courts of the State of Texas in all actions of a civil nature, with such exceptions as may be hereinafter stated.

Gammage argues that “actions of a civil nature” do not include election contests.

It is undisputed that the legislature has the power to make the Rules of Civil Procedure apply to election contests. See Odell v. Wharton, 87 Tex. 173, 27 S.W. 123 (1894). I believe that they have done so. Both Odell v. Wharton, supra, and DeShazo v. Webb, 131 Tex. 108, 113 S.W.2d 519 (1938), which hold that an election contest is not governed by the procedures of a civil suit, were decided prior to the effective date of the Rules of Civil Procedure. Therefore neither case binds our interpretation of the applicability of the Rules. I do not equate the phrase “actions of a civil nature” with “civil suit.” Although an election contest is not a civil suit, Odel v. Wharton, supra, such a contest is an action of a civil nature. 1 believe that the use of this phrase in Rule 2 was intended to draw a line between criminal proceedings, which would be governed by the Code of Criminal Procedure, and civil proceedings. Gonzalez v. Rodriquez, 250 S.W.2d 253 (Tex.Civ.App.—San Antonio 1952, no writ). Therefore, to the extent that specific procedural provisions are not established elsewhere in the Election Code, an election contest, although not a “civil suit,” should be governed by discovery procedures in the Rules.

Accordingly, I would not grant the writ of mandamus or the writ of prohibition, and I would allow the deposition of Relator Gammage to proceed under the applicable Rules.

STEAKLEY, J., joins in this dissent.

      . All statutory references are to Vernon’s Annotated Texas Election Code, unless otherwise noted.

      . See Acts 1895, p. 58; R.S.1911, Art. 3046; R.S.1925, Art. 3041.

      . Acts 1951, 52nd Leg., ch. 492, pp. 1097-1194. Article 9.01 was enacted as Section 129 of the Act.

      .See McCall, “History of Texas Election Laws,” 9 Vernon’s Annotated Texas Election Code (1952), XVII, XXVIII-XXXVI, for an explanation of the background of the commission’s appointment, its activities, and major changes recommended and enacted.

      . U.S. Const., Art. I, § 4, provides in pertinent part:
      “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

      . In the present case Respondent Paul seeks such an election contest decision under Article 9.01 et seq. after the election process was over. Art. 9.14, for instance, directs the trial judge, after hearing the contest, to “decide to which of the contesting parties the office belongs.”

      . Tex. Election Code Ann. art. 8.38 (1967), requires the Secretary of State to open and count the returns of the election on the seventeenth day after the election, the day of election excluded, in the presence of the Governor and one other citizen.
      Tex. Election Code Ann. art. 8.39 (1967), provides:
      “When the returns have been counted, the governor shall immediately make out, sign and deliver a certificate of election, with the seal of the State thereto affixed, to the person or persons who shall have received the highest number of votes for each or any of said offices.” Tex. Election Code Ann. art. 9.03 (1967), provides:
      “Any person intending to contest the election of any one holding a certificate of election for any office mentioned in this law, shall, within thirty (30) days after the return day of election, give him a notice thereof in writing and deliver to him, his agent or attorney, a written statement of the ground on which such contestant relies to sustain such contest. By the “return day” is meant the day on which the votes cast in said election are counted and the official result thereof declared.”

      . Tex. Election Code Ann. art. 9.14 (1967), provides:
      “If any vote or votes are found upon the trial of any contested election to be illegal or fraudulent, the trial court shall subtract such vote or votes from the poll of the candidate who received the same . .”
      Tex. Election Code Ann. art. 9.15 (1967), provides:
      “If it appears on the trial of any contest [for any district office] that it is impossible to ascertain the true result of the election as to the office about which the contest is made, either from the returns of the election or from any evidence within reach or from the returns considered in connection with other evidence, or should it appear from the evidence that such a number of legal voters were, by the officers or managers of the election, denied the privilege of voting as, had they been allowed to vote, would have materially changed the result, the court shall adjudge such election void, and direct the proper officers to order another election to fill said office; which election shall be ordered and held and returns thereof made in all respects as required by the general election laws of the State.”


source: Caselaw Access Project

author: ONION, Presiding Judge. PHILLIPS, Judge,

license: Public Domain

text:
    Charles Edwin BULLARD, Appellant, v. The STATE of Texas, Appellee.
    No. 51025.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1977.
    Rehearing Denied March 9, 1977.

      Pat McDowell, Dallas, for appellant.
    Henry Wade, Dist. Atty., Steve Wilensky and Thomas F. Lillard, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

In Bullard v. State, 533 S.W.2d 812 (Tex.Cr.App.1976), the conviction for felony theft was affirmed. Life imprisonment was assessed as punishment under the provisions of V.T.C.A., Penal Code, § 12.42(d). Although the conviction was affirmed, the cause was remanded for a new penalty hearing since one of the two prior convictions alleged for enhancement was not properly proven though utilized by the trial court in assessing punishment.

This appeal then is taken from the new penalty hearing ordered by this court where the trial court found the allegations in the indictment as to the prior convictions to be “true” and again assessed life imprisonment as punishment.

At the outset we shall consider appellant’s contention that the trial court erred in denying appellant a jury trial at the new penalty hearing following remand.

Prior to such penalty hearing the appellant filed a motion requesting the withdrawal of his election under Article 37.07, Vernon’s Ann.C.C.P., to have the judge assess punishment made at the original trial and requested the same jury at the guilt stage of the trial be empaneled to pass on punishment, or in alternative, that a new jury be empaneled for the purpose of the penalty hearing. The motion was overruled.

Appellant contends there were fact issues to be determined — that is, the truth of the allegations as to the prior convictions alleged for the enhancement of punishment, and under the constitutional and statutory provisions of this State he was entitled to a jury trial following the remand. He acknowledges that Article 37.07, supra, provides for a bifurcated trial procedure, but questions its validity in light of State constitutional provisions.

Article I, § 15, of the Texas Constitution provides in part:

“The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency. . . . ”

Article 1.12, Vernon’s Ann.C.C.P., also provides that the right of trial by jury shall remain inviolate.

Article V, § 10, of the Texas Constitution provides:

“In the trial of all causes in the District Courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury; but no jury shall be empaneled in any civil ease unless demanded by a party to the ease, a jury fee be paid by the party demanding a jury, for such sum, and with such exceptions as may be prescribed by the Leg- . islature.” (Emphasis supplied.)

The foregoing State constitutional provisions have been held to only guarantee a trial by jury where one was provided for by common law or by a statute in effect when the Constitution was adopted in 1876. See Ex parte Garner, 93 Tex.Cr.R. 179, 246 S.W. 371 (1922); White v. White, 108 Tex. 570, 196 S.W. 508 (1917); Johnson v. State, 267 S.W. 1057 (Tex.Civ.App.1924), err. ref.; Walsh v. Spencer, 275 S.W.2d 220 (Tex.Civ.App.1955), reh. den.; Hickman v. Smith, 238 S.W.2d 838 (Tex.Civ.App.1951), err. ref.; Huguley v. Board of Adjustment of City of Dallas, 341 S.W.2d 212 (Tex.Civ.App.1960), reh. den.; Welch v. Welch, 369 S.W.2d 434 (Tex.Civ.App.1963); Hatten v. City of Houston, 373 S.W.2d 525 (Tex.Civ.App.1963), ref. n. r. e.; Swinford v. Logue, 313 S.W.2d 547 (Tex.Civ.App.1958); Smallwood v. Swarner, 510 S.W.2d 156 (Tex.Civ.App.1974), ref. n. r. e.; 35 Tex.Jur.2d, § 18, p. 53. See also 47 Am.Jur.2d, Jury, § 17, p. 639.

It has long been consistently held that the right to have the jury assess punishment was not part of the right to trial by jury at common law. Ex parte Marshall, 72 Tex.Cr.R. 83, 161 S.W. 112 (1913); Fogg v. Com., 215 Va. 164, 207 S.E.2d 847, 849 (1974); Hunter v. State, 496 S.W.2d 900 (Tenn.1972); Corlew v. State, 181 Tenn. 220, 180 S.W.2d 900 (1944); State v. Morton, 338 S.W.2d 858 (Mo.1960); State v. Hamey, 168 Mo. 167, 67 S.W. 620 (1902); Woods v. State, 130 Tenn. 100, 169 S.W. 558 (1914); Lee v. Buchanan, 264 S.W.2d 661 (Ky.1954); Ward v. Hurst, 300 Ky. 464, 189 S.W.2d 594 (1945); 47 Am.Jur.2d, Jury, § 50, p. 667.

It is clear that a defendant in a criminal case in Texas is not entitled to have a jury assess punishment because of any common law right derived through the Constitution of 1876.

The statute in effect at the time of the adoption of such Constitution relating to the assessment of punishment by a jury reads as follows (Article 626, C.C.P., 1859):

“The verdict in every criminal action, must be general; when there are special pleas upon which the jury are to find, they must say in their verdict that the matters alledged (sic) in such pleas are either true or untrue; where the plea is not guilty, they must find that the defendant is either ‘guilty’ or ‘not guilty;’ and in addition thereto they shall assess the punishment in all cases where the same is not absolutely fixed by law, to some particular penalty.”

In 1876 there existed a unitary trial in criminal cases where the jury in its deliberations first passed on the issue of guilt or innocence, and if the accused was found guilty the jury then assessed punishment. Such unitary type jury trials continued in Texas until the effective date of the 1965 Code of Criminal Procedure (January 1, 1966), which included Article 37.07, Vernon’s Ann.C.C.P. Such latter statute provided for the first time a bifurcated trial in criminal cases in Texas.

The question remaining is whether the statute in effect at the time of the adoption of the 1876 Constitution preserved the right to have the jury assess punishment in a criminal case.

In 47 Am.Jur.2d, Jury, § 50, p. 667, it is written:

“The constitutional right of trial by jury does not encompass the right to have the jury assess the punishment. The right is limited to the question of guilt or innocence, and does not extend to the determination of the term of imprisonment or punishment. This follows, since it was no essential part of a jury trial at common law that the jury should also fix the punishment if they convicted an accused.
“The adoption of a new Constitution preserving the right of trial by jury ‘as heretofore enjoyed’ has been construed not to include the right, which has existed by statute for many years, of having the jury assess the punishment in criminal cases whenever there is an alternative or discretion in regard to it. . . . ”

In re Moynihan, 332 Mo. 1022, 62 S.W.2d 410, 91 A.L.R. 74 (1933), held that a constitutional provision that the right of trial by jury “as heretofore enjoyed” shall remain inviolate is to be construed as preserving the right to jury trial as that right came from the common law and from the territorial statutes, in exactly the same status as was guaranteed under the preceding constitutions, with the observation that it was not the particular statutory method of procedure in force at the time of the adoption of the present constitution that is guaranteed.

This is better explained in 47 Am.Jur.2d, Jury, § 18, p. 640, where it is pointed out that, generally speaking, the object of the constitutional provisions guaranteeing the right of trial by jury is to preserve the substance of the right rather than to prescribe the details of the methods by which it shall be exercised and enjoyed, and is not so inelastic as to render unchangeable every characteristic and detail of the common law system or statutory scheme in existence at the time of the adoption of the Constitution. The preservation of the right to trial by jury does not require that the old forms of practice and procedure be retained. “So long as the substance of the right to jury trial is maintained, the procedure by which this result is reached is wholly within the discretion of the legislature . . . .”

Long prior to the adoption of the bifurcated trial procedure in criminal cases (Article 37.07, supra), this court held that Article I, § 15, of the Texas Constitution did not preclude the Legislature from providing that the jury shall only pass on the question of guilt or innocence and that punishment shall be assessed by the court. See Ex parte Marshall, 72 Tex.Cr.R. 83, 161 S.W. 112 (1913).

Although the procedure in Article 37.07, supra, differs from that in 1876, we must determine if the substance of the right to trial by jury has been maintained.

Article 37.07, § 2, Vernon’s Ann.C.C.P., as amended, in effect at the time of appellant’s trial, provides:

“Sec. 2. (a) In all criminal cases, other than misdemeanor cases of which the justice court or municipal court has jurisdiction, which are tried before a jury on a plea of not guilty, the judge shall, before argument begins, first submit to the jury the issue of guilt or innocence of the defendant of the offense or offenses charged, without authorizing the jury to pass upon the punishment to be imposed. “(b) Except as provided in Article 37.071 (Capital Murder), if a finding of guilty is returned, it shall then be the responsibility of the judge to assess the punishment applicable to the offense; provided, however, that (1) in any criminal action where the jury may recommend probation and the defendant filed his sworn motion for probation before the trial began, and (2) in other cases where the defendant so elects in writing at the time he enters his plea in open court, the punishment shall be assessed by the same jury. If a finding of guilty is returned, the defendant may, with the consent of the attorney for the state, change his election of one who assesses the punishment.
“(c) Punishment shall be assessed on each count on which a finding of guilty has been returned.”

Under this statutory scheme there must nearly always be a jury at the penalty stage of every capital murder ease. See Article 37.071, Vernon’s Ann.C.C.P. It is a right that cannot be waived. See Article 1.14, Vernon’s Ann.C.C.P.; Houston v. State, 162 Tex.Cr.R. 551, 287 S.W.2d 643 (1956), cert. den. 351 U.S. 975, 76 S.Ct. 1042, 100 L.Ed. 1492 (1956). Further, in non-capital cases if the defendant files a motion requesting the jury to give him probation or if he elects in writing as provided by statute to have the jury pass on the issue of punishment, then a jury will determine the penalty to be assessed. Thus, it is only in non-capital cases where the defendant has not elected to have the jury assess punishment or has not filed the described motion for probation that the trial judge assesses punishment.

By virtue of § 3(c) of Article 37.-07, supra, it is true that where the jury is selected to assess punishment and fails to agree on penalty, a mistrial shall be declared as to the entire case. Galloway v. State, 420 S.W.2d 721 (Tex.Cr.App.1967); Longs v. State, 429 S.W.2d 157 (Tex.Cr.App. 1968); Brumfield v. State, 445 S.W.2d 732 (Tex.Cr.App.1969). And if on appeal it is determined that reversible error occurred at the hearing on punishment before a jury, the Court of Criminal Appeals is without authority to direct a new trial or penalty hearing before a different jury on the issue of punishment alone. Ellison v. State, 432 S.W.2d 955 (Tex.Cr.App.1968); Ex parte Bryan, 434 S.W.2d 123 (Tex.Cr.App.1968); Brumfield v. State, supra; Grider v. State, 468 S.W.2d 393 (Tex.Cr.App.1971); Turner v. State, 485 S.W.2d 282 (Tex.Cr.App.1972); Harris v. State, 485 S.W.2d 284 (Tex.Cr.App.1972); Ex parte Olvera, 489 S.W.2d 586 (Tex.Cr.App.1973); Acosta v. State, 522 S.W.2d 528 (Tex.Cr.App.1975). This is so as explained in Ellison because under Article 37.07, § 3(c), supra, the verdict of the jury is not complete until a verdict upon both guilt and punishment has been returned, and a mistrial is to be declared if the jury fails to agree. See also Articles 44.24 and 44.29, Vernon’s Ann.C.C.P.

If, however, under our bifurcated trial system a reversible error occurs at the penalty hearing before the trial judge alone, the case on appeal may be remanded to the trial court for the proper assessment of punishment. See Johnson v. State, 436 S.W.2d 906 (Tex.Cr.App.1968); Baker v. State, 437 S.W.2d 825 (Tex.Cr.App.1969); Wheat v. State, 442 S.W.2d 363, 368 (Tex.Cr.App.1969); White v. State, 444 S.W.2d 921 (Tex.Cr.App.1969) (Concurring Opinion); Brumfield v. State, 445 S.W.2d 732, 740 (Tex.Cr.App.1969); Bradley v. State, 456 S.W.2d 923 (Tex.Cr.App.1970); Marrero v. State, 500 S.W.2d 818 (Tex.Cr.App.1973); Ex parte Hill, 528 S.W.2d 125 (Tex.Cr.App.1975); Hogan v. State, 529 S.W.2d 515 (Tex.Cr.App.1975).

And since the enactment of Article 37.07, supra, providing for the above described bifurcated trial system, it has been held that the statute is within the province of the Legislature under Article I, § 15, of the State Constitution providing that the right to jury trial shall remain inviolate but further granting to the Legislature the power to regulate trial by jury. Ashworth v. State, 418 S.W.2d 668 (Tex.Cr.App.1967); Green v. State, 433 S.W.2d 435 (Tex.Cr.App.1968). See also Ojeda v. State, 428 S.W.2d 811 (Tex.Cr.App.1968).

And since the enactment of Article 37.07, Vernon’s Ann.C.C.P., this court has frequently held that the constitutional right of trial by jury does not encompass the right to have the jury assess punishment. Jones v. State, 416 S.W.2d 412 (Tex.Cr.App.1967); Johnson v. State, 436 S.W.2d 906 (Tex.Cr.App.1968); Martin v. State, 452 S.W.2d 481 (Tex.Cr.App.1970); Green v. State, 474 S.W.2d 212 (Tex.Cr.App.1971); Hall v. State, 475 S.W.2d 778 (Tex.Cr.App.1972); Emerson v. State, 476 S.W.2d 686 (Tex.Cr.App.1972); Johnson v. State, 492 S.W.2d 505 (Tex.Cr.App.1973); Hill v. State, 493 S.W.2d 847 (Tex.Cr.App.1973); Jones v. State, 502 S.W.2d 771 (Tex.Cr.App.1973); Ex parte Giles, 502 S.W.2d 774 (Tex.Cr.App.1973). See also Williams v. Jones, 338 S.W.2d 693 (Ky.1960), cert. den. 365 U.S. 847, 81 S.Ct. 808, 5 L.Ed.2d 811 (1961); 50 C.J.S. Juries § 78, p. 784.

We cannot conclude that Article 37.-07, supra, infringes upon the substance of the right of trial by jury as protected by the State Constitution.

Although not raised by appellant, would the federal Constitution compel a different result? It is true that the right to trial by jury guaranteed defendants in criminal cases in federal court by Article III of the United States Constitution and by the Sixth Amendment is also guaranteed by the Fourteenth Amendment to the defendants tried in State courts. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); De Stefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968). See also Frank v. United States, 395 U.S. 147, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969); Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970); Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974); Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974). It has been held that where the State is permitted to exact a punishment against an accused in excess of six months, a defendant must be accorded a jury trial. Duncan v. Louisiana, supra. Nothing in these cases holds that by virtue of such requirement an accused is entitled as a matter of constitutional right to have a jury assess punishment after a finding of guilt.

It is observed that a State defendant is given no greater right to trial by jury than a federal defendant because of the application of the Sixth Amendment to the states by virtue of the Fourteenth Amendment. It is well established that federal constitutional right to trial by jury was to preserve the right to trial by jury as known at common law. See 47 Am.Jur.2d, Jury, § 17, p. 639. As earlier noted, there was no right at common law to have a jury assess punishment. In James v. Twomey, 466 F.2d 718 (7th Cir.1972), it was held that a State defendant in a criminal case has no federally guaranteed right to have a jury assess punishment. See also Payne v. Nash, 327 F.2d 197 (8th Cir.1964); Parrish v. Beto, 414 F.2d 770 (5th Cir.1969), cert. den. 396 U.S. 1026, 90 S.Ct. 606, 24 L.Ed.2d 522 (1970).

In Fogg v. Com., 215 Va. 164, 207 S.E.2d 847 (1974), the Virginia Supreme Court wrote:

“Under federal law the court, and not the jury, fixes punishment. There is nothing in the Constitution of the United States which gives the defendant the right to have his punishment fixed by a jury. Williams v. People of State of New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); Fed.R.Crim.P. 32, 18 U.S.C. 4506.”

In Ex parte Marshall, 72 Tex.Cr.R. 83, 85, 161 S.W. 112, 113 (1913), this court wrote:

“The right of trial by jury was a right guaranteed to our English ancestors and brought with them to this country, and when we were declared a free and independent people, the right was incorporated in our Constitution, and without a change in the Constitution this right cannot be taken away nor abridged by legislative act. But we do not think the fixing of the penalty by a jury is either implied or guaranteed by the Constitution. It was not so considered by our English ancestors, for, when the right to be tried by a jury was accorded to them, the jury was only called on and permitted to try the guilt or innocence of the accused, and the judge assessed the penalty. This was so during our colonial days, and when this right to be tried by jury was placed in the federal Constitution in 1776, down to the present time, it has never been construed to embrace the right to have the jury assess the punishment. In our federal courts, operating under this Constitution, to this day, the jury passes simply on the guilt or innocence of the accused, and, if found guilty, the judge assesses the penalty, and this is the rule in many states of this Union . . ..”

It is clear that the federal Constitution does not give the appellant the right to have a jury in a State court assess punishment. Thus, we uphold the validity of Article 37.07, supra, in light of both State and federal Constitutions.

While there were indeed fact questions to be determined at the new penalty hearing, we do not conclude that the constitutional provisions would call for a jury to determine such questions as the questions related to the penalty to be assessed and were properly for the trial court, who was to assess punishment.

We examine another reason why we do not conclude appellant was entitled to a jury trial upon remand. At the original trial appellant did not seek to bring himself within the provisions of Article 37.07, supra, which would have entitled him to a jury at the penalty stage of the trial. In fact, he filed a written motion, personally signed by him and his counsel, expressly requesting that the trial judge assess punishment in the event a verdict of guilty was returned by the jury at the guilt stage of the trial. It has been held that permitting the waiver of trial by jury in criminal cases is not violative of the constitutional right of trial by jury and a statute permitting such waiver is valid. McMillan v. State, 122 Tex.Cr.R. 583, 57 S.W.2d 125 (1933); Dabney v. State, 124 Tex.Cr.R. 21, 60 S.W.2d 451 (1933); Ex parte Padgett, 161 Tex.Cr.R. 498, 278 S.W.2d 865 (1955); Short v. State, 511 S.W.2d 288 (Tex.Cr.App.1974), cert. den. 420 U.S. 930, 95 S.Ct. 1132, 43 L.Ed.2d 402 (1975). See and cf. Article 1.13, Vernon’s Ann.C.C.P. See also 50 C.J.S. Juries § 86, p. 792, 47 Am.Jur.2d, Jury, § 61, p. 346. And in Ex parte Ross, 522 S.W.2d 214, 222 (Tex.Cr.App.1975), it was pointed out there exists no federal constitutional provision which prohibits an accused from knowingly and intelligently waiving his right to trial by jury in a felony prosecution. See Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930); Adams v. United States, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942).

A question remains, however. Is the appellant bound by his waiver of a jury at the penalty stage of the original trial upon remand for another penalty hearing?

The waiver of a jury on one trial generally does not affect the right of either of the parties to demand a jury on the second trial, and this is particularly true where the entire case has been reversed on appeal. 50 C.J.S. Juries § 111, p. 824; 47 Am.Jur.2d, Jury, § 66, p. 683; Harding v. Harding, 485 S.W.2d 297, 299 (Tex.Civ.App.1972), and cases there cited. See also “The Effect of a Waiver to the Right to Trial by Jury on a Subsequent Trial,” 9 S.W. Law Journal 133 (1955).

The minority view is to the effect that once a party has waived a right to a jury trial he cannot retract such after reversal of the trial court by the appellate court as the waiver remains good for the life of the litigation. Laventhall v. Fireman’s Ins. Co. of Newark, 266 App.Div. 756, 41 N.Y.S.2d 302 (1943).

It appears that the majority rule discussed above has long been used in criminal cases in Texas where there has been a reversal of the entire case. There are cases, however, which indicate that the rule is otherwise as to partial remands.

In Spaulding v. Cameron, 127 Cal.App.2d 698, 274 P.2d 177 (1954), it was observed that if the Supreme Court had reversed the entire case then the parties would have stood as if no trial had taken place and they would not be bound on a subsequent trial by a prior waiver of jury. However, it was held that where, on remand, the trial court’s only duty was to determine type and amount of damages which should have been determined originally the defendant would be bound by a prior waiver of jury at the original trial.

Park v. Mighell, 7 Wash. 304, 35 P. 63 (1893), held a party waiving jury trial at the first trial cannot demand a jury at a subsequent trial when the judgment on the report had been reversed for failure of the referee to state items disallowed, and the case was re-referred for that purpose only.

In Raleigh Banking and Trust Co. v. Safety Transit Lines, Inc., 200 N.C. 415, 157 S.E. 62 (1931), the court said:

“The hearing by Judge Daniels was for the purpose of finding additional facts, in accordance with the direction of this court. The waiver of a jury trial at the first hearing continued in force until the final determination of all matters involved in the proceeding.”

In 47 Am.Jur.2d, Jury, § 66, p. 684, it is written:

“ . . . A waiver of the right to jury trial has been operative with respect to the remanding of a case for the finding of additional facts or for a limited purpose, and express statutory provisions have sometimes affected the question. In cases in which a cause has been remanded to the trial court for further proceedings not amounting to a complete trial de novo, it has been held that the trial court properly denied a trial by jury on such limited retrial to a party who had waived a jury on the first trial.”

After much concern and deliberation, we hold that for the purpose of the limited remand in the case for an error committed at the penalty stage before the judge the appellant is bound by his waiver of a jury on the issue of punishment made at the original trial.

We recognized that this is contrary to the holding in Harding v. Harding, supra, which, in an apparent case of first impression, held the appellant in a divorce suit was entitled to a trial by jury upon partial remand as to attorney fees only. In light of the fact that neither the State nor federal Constitution gives an accused the right to have a jury on the issue of punishment, the provisions of Article 37.07, supra, and the original waiver of jury as to punishment, we reach the opposite conclusion. We have already noted that because of the provisions of Article 37.07, supra, there cannot be one jury at the guilt stage and another at the penalty stage. See Acosta v. State, 522 S.W.2d 528 (Tex.Cr.App.1975). Therefore, appellant’s request upon remand to have a new jury empaneled for the penalty stage only was not permissible. The only recourse to the conclusion we have reached would be that although the jury verdict was complete at the guilt stage of the trial and the only error occurred at the penalty stage before the court alone, an entirely new trial as to guilt or innocence and punishment, if any, must be accorded the appellant. There would be no reason to duplicate that which has already been tried without error.

Appellant also contends that his prior convictions were void and should not have been used for enhancement since the guilty pleas entered in those cases were involuntary. The appellant testified that he pled guilty to the prior offense of burglary because he had been indicted under the habitual criminal statute and pleaded to the primary offense alone upon his lawyer’s advice and to avoid the greater punishment. He received six years’ confinement as punishment. He also related he pled guilty upon counsel’s advice to the other prior offense in order to avoid prosecution as a repeater. He received two years’ confinement as punishment. Such testimony reflects a voluntary and intelligent choice between the alternatives confronted by the appellant and he acted upon his counsel’s advice. Such action was not violative of any constitutional safeguard or right. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Arch v. State, 526 S.W.2d 817 (Tex.Cr.App.1975); Garza v. State, 502 S.W.2d 155 (Tex.Cr.App.1973). Furthermore, while his testimony was uncontradicted, it was not corroborated and could have only raised a fact issue and such was resolved against him. Washington v. State, 434 S.W.2d 138 (Tex.Cr.App.1968). This is particularly true where the testimony is as to an accused’s mental processes. Appellant’s claim he was denied effective assistance of counsel since counsel advised him to plead guilty in the prior cases is without merit. See McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) [Not necessary that advice be free from error.]; Stutes v. State, 530 S.W.2d 309 (Tex.Cr.App.1975); Rockwood v. State, 524 S.W.2d 292 (Tex.Cr.App.1975); Curtis v. State, 500 S.W.2d 478 (Tex.Cr.App.1973). It appears that counsel’s advice was sound advice in both cases under the circumstances and the penalties assessed.

Appellant also challenges the sufficiency of the evidence to prove the prior convictions as alleged in the indictment. Appellant took the stand and admitted he was the same person who was previously convicted as alleged. The State also offered the testimony of deputy sheriff Cron, a fingerprint expert. He related prints of the appellant he had taken that day matched with sets of fingerprints on file in the Dallas County sheriff’s office in connection with the cause numbers relating to the prior convictions alleged. We deem the evidence sufficient.

If appellant’s contention as to a jury trial on penalty had been upheld and the cause again remanded for still another penalty hearing, the appellant’s testimony that he was the same person so previously convicted could be used against him at the new hearing. See Richardson v. State, 458 S.W.2d 665 (Tex.Cr.App.1970); Boothe v. State, 474 S.W.2d 219 (Tex.Cr.App.1971); Garcia v. State, 522 S.W.2d 203 (Tex.Cr.App.1975); Jones v. State, 532 S.W.2d 596 (Tex.Cr.App.1976).

Appellant also contends that his constitutional rights were violated when his fingerprints were taken the day of the trial. He acknowledges the case law is against his position. He is correct. See, e. g., Byrd v. State, 495 S.W.2d 226 (Tex.Cr.App.1973); Ballard v. State, 487 S.W.2d 724 (Tex.Cr.App.1972); Schoier v. State, 480 S.W.2d 657 (Tex.Cr.App.1972); Villareal v. State, 468 S.W.2d 837 (Tex.Cr.App.1971); Gage v. State, 387 S.W.2d 679 (Tex.Cr.App.1964).

Appellant also asserts that the sets of fingerprints from the sheriff’s office were improperly admitted into evidence since they were not properly proven to be business records. He contends that there was no evidence to prove the person who made such entries had personal knowledge of the contents as required by Article 3737e, Vernon’s Ann.C.S. We conclude that Jones v. State, 500 S.W.2d 661 (Tex.Cr.App.1973), is dispositive of appellant’s contention. We observe further that this was not the objection made when the prints were offered into evidence and presents nothing for review. As earlier observed, appellant also admitted he had been previously convicted as alleged.

Finding no reversible error, the judgment is affirmed.

PHILLIPS, Judge,

dissenting.

I dissent to the majority’s disposition of the issue of whether a defendant is entitled to a trial by jury when demanded by him upon a reversal and remand for trial on the two issues of fact determinative of the range of punishment, (1) whether the first allegation in the indictment of a prior felony conviction of defendant was true, and (2) whether the second allegation in the indictment of a prior felony conviction of defendant was true.

The finding of true or false as to whether a defendant has been convicted of a prior felony as alleged by the indictment clearly requires a determination of an issue of fact, upon which hinges the range of punishment within which a defendant’s punishment may be assessed. If under statutory law the State is specifically and expressly permitted to exact a punishment against a defendant that is serious and not petty, that is, in excess of six months, then the Sixth Amendment to the Constitution of the United States which is applied to State action through the Fourteenth Amendment requires that the defendant be accorded the right of jury trial on issues of fact. Duncan v. State of Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491; Frank v. U. S., 395 U.S. 147, 89 S.Ct. 1503, 23 L.Ed.2d 162; Dyke v. Taylor, etc., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538; Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897; Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912. Also, Article 1, Sec. 15 of the Texas Constitution and Article 1.12, V.A.C.C.P., provide that the right of trial by jury shall remain inviolate. A demand for a jury trial raises said fundamental constitutional right even though the Constitution is not expressly stated as the basis for said demand. By virtue of said mandates of the Federal Constitution and Article 1, Sec. 15 of the Texas Constitution, upon remand by reason of the insufficiency of competent evidence to support a finding of truth as to the allegation of a prior conviction for enhancement purposes, the appellant should be entitled to a trial by jury on said new trial of said issues of fact. The Legislature has also evidenced its intent that in any criminal trial of an issue of fact it must be submitted to a jury unless waived.

Article 36.13 V.A.C.C.P. provides:
“Unless otherwise provided in this Code, the jury is the exclusive judge of the facts, but it is bound to receive the law from the court and be governed thereby.
Article 38.04 V.A.C.C.P. provides:
“The jury, in all cases, is the exclusive judge of the facts proved, and the weight to be given to the testimony . . . ”
Article 38.23, V.A.C.C.P. provides:
“In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.”

The majority opinion admits “there were indeed fact questions to be determined at the new penalty hearing”, but concludes that the defendant was not entitled to a jury decision thereon because they “related to the penalty to be assessed ’’. Do not the questions of fact as to whether a defendant is guilty of the offense alleged or a lesser included offense, whether the value of stolen property is over $200.00, and whether a murder committed prior to the new Code was actuated by malice aforethought, relate to the penalty to be assessed? For such reason, would the majority hold that a defendant is not constitutionally entitled to trial by jury on said fact issues? This Court has held that said issues of fact as to value and malice are properly submitted to the trier of fact at the trial on punishment. Ruiz v. State, Tex.Cr.App., 523 S.W.2d 691. But it should be obvious to all that even had the Legislature specifically provided that such issues of fact should be submitted at the trial on punishment, such would not and could not diminish a defendant’s right to jury trial on such issues of fact. Where value in excess of a certain figure is not an element of the crime, but a fact issue only to fix the range of punishment, it has been specifically held that the Sixth and Fourteenth Amendments entitle a defendant to have the fact determined by the jury rather than the sentencing judge. U. S. v. Kramer, 2 Cir., 289 F.2d 909.

The crossroads where my brethren and I have parted in our path of reasoning is that they make no distinction between (1) a question of fact that fixes the range of punishment within which punishment may be assessed, and (2) the discretionary assessment of punishment within that range. The right of trial by jury is an absolute Federal and State Constitutional right as to the first but not as to the second. My brethren’s failure to draw said distinction is apparent from their focusing on and repeatedly stating the issue herein to be whether there is a constitutional right to have a jury assess punishment. That such constitutional right does not exist is evident from all decisions and the function for two hundred years of the Federal Judiciary system. James v. Twomey, 7 Cir., 466 F.2d 718; Parrish v. Beto, 5 Cir., 414 F.2d 770. But such is simply not the question here.

My brethren next assert that the defendant irrevocably waived any right he may have had to a jury trial of said issues of fact by electing at the beginning of the prior trial to have the court assess his punishment. When a defendant elects, prior to impanelment of his jury at his initial trial, to submit the question of punishment to the court, he does so faced with circumstances and conditions which might be altogether different from that facing him upon retrial of the issue of fact as to the truth or falsity of enhancement allegations. For example, he may have initially waived a jury on said issue of fact by reason of the composition of the jury panel he faced that particúlar morning, or a witness whom he deemed effective before the jury but not before the court might have been unavailable at that time but available at his later retrial on said issue. There is a strong presumption against the waiver of a constitutional right and to be effective it must be knowledgeable, affirmative and clear. Austin v. Erickson, 8 Cir., 477 F.2d 620; U. S. v. David, 167 U.S.App.D.C. 117, 511 F.2d 355; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Sullins v. U. S., 10 Cir., 389 F.2d 985. The recent decision of U. S. v. Lee, 6 Cir., 539 F.2d 606 (1976) specifically answers the theory of some implied, but actually imaginary, waiver that is advanced by the majority opinion, as is shown by the following extracts from said decision:

“. . . Unless the language of a waiver unambiguously states that it will apply in all retrials should they be ordered, a waiver should not continue in effect after the jurisdiction of the court to which it was tendered terminates upon the taking of an appeal.
The general rule to be applied where a judgment of a trial court is reversed after a bench trial was stated in Burnham v. N. Chicago St. Ry. Co., 88 F. 627, 629-630 (7th Cir. 1898):
2. The stipulation to waive a jury, and to try the case before the court, only had relation to the first trial. There could be no presumption then that there would ever be a second trial; and therefore it should not be presumed that the parties, in making the stipulation, had in mind any possible subsequent trial after the first, to which the stipulation could refer. The right of trial by jury in cases at law, whether in a civil or criminal case, is a high and sacred constitutional right in Anglo-Saxon jurisprudence, and is expressly guaranteed by the United States constitution. A stipulation for the waiver of such right should therefore be strictly construed in favor of the preservation of the right.
The rule and the reason for it are fairly laid down by the supreme court of Alabama in Cross v. State, 78 Ala. 430, as follows:
‘All we decide is that the agreement to waive the right of trial by jury must ordinarily be construed to apply only to the particular trial at which it is made. Such a waiver is a renunciation of a valuable constitutional right, and must be strictly construed. It may well be supposed that a defendant would be perfectly willing for a particular judge to try him, when he would not risk his successor, or that he would be willing to be tried the first time by a judge, when he would not submit to a second trial by the same judge after such officer had convicted him one or more times, so that the judicial mind might not afterwards be perfectly free from the influence of a bias created by the circumstances of such previous conviction. This would be sufficient ground for the challenge of a juror, and ought not to be considered as waived in the case of a judge, — at least on doubtful implication.’
. As the Burnham court noted, the right to a jury trial is a fundamental right, and a waiver should not be presumed . . . even though a defendant has consented once to a bench trial, he could reasonably be expected to object to retrial without a jury before the same judge who had previously convicted him of the same offense Nevertheless, Lee was not permitted to withdraw his consent in order to have the issue of his knowledge tried before an impartial jury in the district court . ‘ “courts indulge every reasonable presumption against waiver” of fundamental constitutional rights,’ and that they require a showing of ‘an intentional relinquishment or abandonment of a known right or privilege.’ Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).”

Any argument that appellant waived said right when he failed to demand same as required by Art. 37.07, V.A.C.C.P., prior to the initial trial of innocence or guilt of the primary offense, fails to properly evaluate the fact that the procedure argued for would mandatorily require this appellant to accept as the trier of fact for the retrial of an issue of fact one who has already determined said issue adversely to the appellant. It would amount to the same obvious judicial impropriety, to say the least, as requiring a defendant, upon reversal of his conviction for insufficient evidence, to retry the issues of fact involved before the same jury that had already decided said issue of fact against him, though on insufficient evidence, or to hold that a defendant who waived a jury for trial of the issue of innocence or guilt could not demand a jury if his conviction by the court was reversed and remanded for a new trial.

My brethren further state that Article 37.07 V.A.C.C.P. prohibits one jury at the guilt stage of the bifurcated trial and another at the penalty stage. Said statute simply does not so provide, and if it were so construed it would be unconstitutional. Said Article merely provides that “in cases where the matter of punishment is referred to the jury, the verdict shall not be complete until the jury has rendered a verdict both on the guilt or innocence of the defendant and the amount of punishment, where the jury finds the defendant guilty”. Therefore, it is obviously intended by the Legislature that where the matter of punishment is not referred to the jury a verdict rendered on the issue of guilt or innocence shall be a complete verdict. By reason of the fact that the finding of guilt or innocence at the prior trial was a complete verdict, appellant is not entitled to a new trial as to his innocence or guilt of the primary offense. Article 37.07, V.A.C.C.P. also provides that the judge shall assess the punishment in every criminal action. It then goes further and provides that upon affirmative performance of a special condition by the defendant, the filing of an election in writing at the time he enters his plea in open court, the defendant may have the jury assess his punishment. Said statute is silent as to trial of issues of fact that fix the range of punishment. As heretofore stated, assessment of punishment by a jury is not a constitutional right, but is a statutory right to be acquired only through an affirmative act by the defendant. Such right to jury assessment of punishment is not a right that must be almost conclusively shown to have been knowingly and intentionally waived, as is the constitutional right to trial by jury on issues of fact, but is a right that does not exist unless and until the defendant affirmatively performs a required act at a prescribed time. These are the reasons I conclude that the appellant has not waived his constitutional right to trial by jury on the issues of fact that fix the range of punishment within which the assessor of punishment may act, but that the appellant could not upon remand in this instance complain of the assessment of his punishment by the court.

Lastly, my brethren point out that appellant, after denial of his right to a jury trial as to the truth of the allegations of valid prior convictions, took the stand before the judge and admitted that he was the person convicted in the alleged cause numbers, and that since such admission would be admissible at any future trial of said fact issues, to grant him the right of jury trial thereon would avail him nothing. The truth of said allegations of valid prior convictions of a defendant can depend on many issues of fact other than merely identifying the defendant on trial as the defendant in said prior convictions. For instance, issues of fact on directly controverted testimony may exist as to whether the defendant had any counsel at the trial of a remote prior conviction, as to whether his attorney misrepresented the effect of his plea, whether said prior plea was induced by fraud, whether any jury waiver was in fact executed, whether any admonishment as to the range of punishment was actually given and a myriad of other factual questions that would turn solely on the credibility of the witnesses. Furthermore, as to so fundamental a right as trial by jury on an issue of fact, harmless error tests are not applicable. U. S. v. Goodwin, 6 Cir., 531 F.2d 347.

I cannot concede to the excepting out from the protection of the cherished right of jury trial even one single issue of fact. For, if it is only one today, it will be two or more tomorrow until said sacred right is finally whittled away. It is for these reasons that I am compelled to respectfully dissent from the considered views of my brethren.

ROBERTS, Judge, joins.

      . The term “cause” has been defined as including any question, civil or criminal. Tolle v. Tolle, 101 Tex. 33, 104 S.W. 1049, 1050 (1907); Walsh v. Spencer, 275 S.W.2d 220, 223 (Tex.Civ.App.1955).

      . See State v. Hamey, supra.

      . Said Section 3(c) reads:
      “(c) In cases where the matter of punishment is referred to the jury, the verdict shall not be complete until the jury has rendered a verdict both on the guilt or innocence of the defendant and the amount of punishment, where the jury finds the defendant guilty. In the event the jury shall fail to agree, a mistrial shall be declared, the jury shall be discharged, and no jeopardy shall attach.”

      . Cf. Galloway v. Beto, 296 F.Supp. 230 (D.C.1969), affirmed 5 Cir., 421 F.2d 284, cert. den., 400 U.S. 912, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970).