Opinion
No. 05-04-00533-CR
Opinion issued June 22, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F82-77161-Q. Vacated and Dismissed.
Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.
MEMORANDUM OPINION
Steven C. Phillips appeals the trial court's March 9, 2004 order denying his motion for DNA testing. In a single issue, appellant claims the trial court's order is void because the court lacked jurisdiction to rule on the motion. The State agrees the trial court lacked jurisdiction to enter the order. Whether a court has jurisdiction is a fundamental question that cannot be ignored. State v. Roberts, 940 S.W.2d 655, 657 (Tex.Crim.App. 1996), overruled on other grounds by State v. Medrano, 67 S.W.3d 892, 894 (Tex.Crim.App. 2002). Only the Legislature can give a court authority to hear a case. See Wolfe v. State, 120 S.W.3d 368, 372 (Tex.Crim.App. 2003) (holding only legislature gives court authority to hear appeals); State v. Patrick, 86 S.W.3d 592, 602 (Tex.Crim.App. 2002) ("Chapter 64 was intended to increase a trial court's post-conviction jurisdiction and increase that judge's authority to order DNA testing."); see also Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex. 1979) (holding jurisdiction of particular court is that portion of judicial power which it has been expressly authorized to exercise by constitution or statutes). Chapter 64 of the code of criminal procedure authorizes only "the convicting court" to order DNA testing. Wolfe, 120 S.W.3d at 372; see Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2004-05). In this case, the record shows appellant was convicted in the 194th Judicial District Court on October 22, 1982. Appellant filed his motion for DNA testing in the 204th Judicial District Court. Because the 204th Judicial District Court was not the convicting court, it did not have jurisdiction to consider appellant's motion, and the March 9, 2004 order denying appellant's motion for DNA testing is void. We sustain appellant's sole issue. We vacate the trial court's order and dismiss this case. See Tex.R.App.P. 43.2(e).