In the Court of Criminal 

Appeals of Texas

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No. PD-0184-22

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EX PARTE CHESTER SINCLAIR,

Appellant

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On State’s Petition for Discretionary Review

And Discretionary Review on Court’s Own Motion

From the Thirteenth Court of Appeals

Bexar County

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YEARY, J., announced the judgment of the Court and filed an 

opinion in which KELLER, P.J., and KEEL, J., joined. RICHARDSON and 

MCCLURE, JJ., concurred in the result. NEWELL, J., filed a dissenting 

opinion in which HERVEY, WALKER, and SLAUGHTER, J.J., joined.

This case arises out of actions taken by a Bexar County 

magistrate judge on an application for a writ of habeas corpus in a 

deferred-adjudication community supervision case. We granted the 
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State’s petition for review to decide whether the court of appeals had 

jurisdiction over Appellant’s attempted appeal from proceedings on that 

application. On the Court’s own motion, we also granted review to decide 

whether, in a habeas proceeding under Article 11.072 of the Texas Code 

of Criminal Procedure, a trial court has jurisdiction to rule on a motion 

to reconsider after the trial court has entered an appealable order 

granting or denying, in whole or part, an application under the statute. 

Because we conclude that the trial court failed to enter an 

appealable order granting or denying Appellant relief, we have no cause 

to reach the question on which we separately granted review. And for 

the same reason, we conclude that the court of appeals lacked 

jurisdiction over Appellant’s attempted appeal. Therefore, we vacate the 

judgment of the court of appeals, dismiss the appeal, and remand the 

case to the trial court with instructions to dismiss the appeal. 

I. BACKGROUND

A. Habeas Application

In 1998, Appellant pled nolo contendere to the offense of indecency 

with a child by sexual contact, alleged to have been committed in 1996.

See TEX. PENAL CODE § 21.11. The trial court placed him on deferred 

adjudication community supervision for a period of six years, which 

Appellant successfully completed in 2004. Nevertheless, in 2018, 

following a recantation by the child-victim, Appellant sought relief from 

the trial court’s order imposing community supervision through an 

application for a writ of habeas corpus, claiming actual innocence. TEX.

CODE CRIM. PROC. art. 11.072. 

On October 2, 2018, the presiding judge of the trial court—the 
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227th District Court in Bexar County—referred the matter to a criminal 

law magistrate in an order with instructions to “[i]ssue the writ of 

habeas corpus” and “conduct a hearing.” See TEX. GOV’T CODE § 54.908

(governing the scope of the powers of a criminal magistrate in Bexar 

County). The district court judge’s order of referral instructed the

magistrate judge to “[a]ct in accordance with Sec. 54.908, Gov’t Code, by 

virtue of which this matter is referred.” It further stated that “[a]ny 

action you [the magistrate judge] take will become a decree of this Court 

if not super[s]eded by an order entered by me within fifteen (15) days of 

your report of your action to me.”

The magistrate judge held an evidentiary hearing in March of

2019, at the conclusion of which he granted the parties a month to file 

proposed findings of fact and conclusions of law. On August 19, 2019,

the magistrate judge signed Appellant’s recommended findings of fact 

and conclusions of law. This document concludes with the sentence: 

“Based on these Findings of Fact and Conclusions of Law, the Court 

recommends that relief be granted based on actual innocence.” On the 

reporter’s record of the August 19th hearing, the magistrate judge also 

orally stated that “[t]his Court hereby enters written findings of fact and 

conclusions of law which will be placed in the court’s file.”

Twenty-four days later, on September 12, 2019, the State filed a 

motion, directed to the magistrate judge, requesting that he reconsider 

his recommended findings of fact and conclusions of law.1 The 

1 This motion to reconsider was directed to the 227th District Court. 

The fact that the State contemplated that the magistrate judge would rule on 

the motion, however, is evident from the proposed order the State attached to 
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magistrate judge granted the State’s motion on September 17, 2019, 

thereby agreeing to reconsider his initial recommended findings and 

conclusions and his recommendation that relief should be granted. 

Subsequently, at a brief, non-evidentiary hearing held on November 5, 

2019, the magistrate judge orally adopted the State’s proposed findings 

of fact and conclusions of law. He then purported also to orally deny

Appellant relief. This time, however, no contemporaneous written order 

was entered to memorialize this purported ruling.2

B. Appeal

On December 2, 2019, Appellant filed his notice of appeal from 

the magistrate judge’s November 5th ruling. Rather than address the 

appeal on the merits, however, the court of appeals initially notified the 

parties, by a letter dated February 7, 2020, that the appeal was in 

danger of being dismissed for lack of a “final, signed order.” See TEX. R.

APP. P. 37.1; State v. Sanavongxay, 407 S.W.3d 252, 258 (Tex. Crim. App. 

the motion. The signature line for the court’s ruling, as prepared by the State,

listed the magistrate judge’s name as the “Judge Presiding,” rather than the 

district court judge’s name.

2 At the November 5th hearing, the magistrate judge announced from 

the bench: “I now set aside my previous findings of fact and conclusions of law 

and I adopt the State’s proposed findings of fact and conclusions of law and 

they are hereby filed and entered of record in this cause.” But there is no 

version of the State’s proposed findings of fact and conclusions of law in the

clerk’s record that was signed by the magistrate judge. Moreover, the copy of 

the State’s proposed findings and conclusions that are in the clerk’s record—

unsigned by the magistrate judge—do not purport to deny relief, but only to 

recommend to the trial court that it deny relief. The magistrate judge 

continued: “To summarize, I am denying relief under the application for writ 

of habeas corpus.” But there is no written order from the magistrate judge in 

the clerk’s record reflecting such a purported denial of relief, as the court of 

appeals would soon notice.
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2012) (“precedent requires that an order be in writing”). The State—not 

Appellant—responded to this letter by seeking a written order from the 

magistrate judge, through what it called a “STATE’S MOTION TO 

ENTER,” to memorialize the magistrate judge’s November 5th ruling. 

On February 18, 2020, the magistrate judge signed the State’s proposed 

written order, purporting to “enter[] into the record the ruling of the 

habeas court [on November 5, 2019], finding that relief should be 

denied.” The court of appeals apparently accepted this as the written 

order of the trial court denying Appellant relief, as it thereafter 

proceeded on the assumption that it had acquired appellate jurisdiction.

On the merits, Appellant argued that the court of appeals should 

reinstate the magistrate judge’s August 19th recommendation that 

relief be granted because he had lacked jurisdiction to entertain the 

State’s September 17th motion for reconsideration. Ex parte Sinclair

(Sinclair I), 13-20-00065-CR, 2021 WL 5930728, at *2 (Tex. App.—

Corpus Christi–Edinburg Dec. 16, 2021) (mem. op., not designated for 

publication).3 In response, the State contended that its motion for 

reconsideration, like a motion for new trial, could be filed outside of the 

twenty-day window for filing a notice of appeal. Id.; see TEX. R. APP. P.

26.2(b) (“The [State’s] notice of appeal must be filed within 20 days after 

the day the trial court enters the order . . . to be appealed.”). Therefore, 

in the State’s view, the trial court had retained plenary jurisdiction to 

consider its motion for reconsideration and to alter its ruling. Sinclair I, 

2021 WL 5930728, at *2.

3 The appeal was transferred by order of the Supreme Court of Texas 

from the Fourth Court of Appeals to the Thirteenth Court of Appeals. See TEX.

GOV’T CODE § 73.001.
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On original submission, the court of appeals sided with Appellant, 

holding that: (1) the State’s motion to reconsider was not the functional 

equivalent of a motion for new trial and therefore did not extend the 

trial court’s jurisdiction; and (2) the State failed to appeal from the trial 

court’s original grant of relief within twenty days, as required by Article 

44.01 of the Code of Criminal Procedure and Texas Rule of Appellate 

Procedure 26.2. Id. at *3–4 (citing TEX. CODE CRIM. PROC. art. 44.01(d); 

TEX. R. APP. P. 26.2(b)). In the court of appeals’ view, the State’s only 

recourse to challenge the granting of relief under Article 11.072 was to 

appeal, not to seek reconsideration in the trial court. Id. Consequently, 

the court of appeals reversed the written order that was ultimately 

entered on February 18, 2020, and remanded the case to the trial court 

with instructions to vacate the order of September 17, 2019, which had 

purported to grant the State’s motion to reconsider. Id. at *4.4

Following the court of appeals’ decision on original submission, 

the State filed a motion for rehearing. In its motion, the State argued—

for the first time—that the magistrate judge had lacked “authority to 

4 On both original submission and rehearing, the court of appeals 

treated every action of the magistrate judge as if it had constituted a definitive 

ruling by “the trial court,” i.e., the district court judge—as if the district court 

judge had been the one to undertake the initial fact development. See, e.g., Ex 

parte Sinclair (Sinclair II), 13-20-00065-CR, 2022 WL 619146 at *1 (Tex. 

App.—Corpus Christi–Edinburg Mar. 3, 2022) (mem. op., not designated for 

publication) (“After this Court notified Sinclair his appeal would be dismissed 

because there was no written, final judgment, the State—not Sinclair—sought 

an appealable order from the trial court, a Bexar County Magistrate.”)

(emphasis added). This is so even though the district court judge never entered 

a written order following his original order of October 2, 2018, in which he

referred the case to the magistrate judge to do no more than simply: (1) issue 

the writ, and (2) conduct a hearing.
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issue a final order regarding a writ of habeas corpus” on the trial court’s 

behalf and that, therefore, the court of appeals lacked jurisdiction over 

the case for want of an appealable order. Ex parte Sinclair (Sinclair II), 

13-20-00065-CR, 2022 WL 619146 at *1 (Tex. App.—Corpus Christi–

Edinburg Mar. 3, 2022) (mem. op., not designated for publication). The 

court of appeals refused to entertain the merits of the State’s argument, 

however. Id. It reasoned that the State was precluded under the doctrine 

of invited error from challenging the basis for its exercise of appellate 

jurisdiction on original submission. Id. (citing Woodall v. State, 336 

S.W.3d 634, 644 (Tex. Crim. App. 2011)).5 Having solicited the written 

order of February 18th from the magistrate judge in response to the 

court of appeals’ February 7th letter threatening to dismiss the appeal—

and having expressly requested the court of appeals to entertain 

Appellant’s appeal based on that February 18th order—the State would 

not be heard to contest the appellate court’s jurisdiction on rehearing.

Id.

The court of appeals next reiterated that its disposition on 

original submission had been “merely” to remand the case with 

instructions to the trial court to vacate the magistrate judge’s 

September 17th order granting the State’s motion for reconsideration of 

its August 19th findings and conclusions and recommendation as to 

relief. Id. at *2. The court of appeals also then observed that its original 

opinion had been “limited to the trial court’s September 17 order.” Id. It 

5 The court of appeals did not expressly address whether the invitederror estoppel doctrine could operate to confer appellate jurisdiction that was 

otherwise lacking. We note that this Court’s opinion in Woodall did not involve 

invited-error estoppel that was deemed to confer jurisdiction.
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observed that it had “not address[ed] the merits or applicability of any 

of the trial court’s previous orders or whether any of those previous 

orders are final judgments.” Id. (emphasis added). It then appended a 

footnote in which it acknowledged—for the first time—that the trial 

court had referred this case to the magistrate judge, and that the 

referral order provided that the magistrate judge’s actions would 

become the decree of the trial court if not superseded within fifteen days 

of “reporting” its action to the trial court. Id. at *2 n.3. The footnote 

ended by quoting Sections 54.912(a) and (c) of the Government Code, 

which required the trial court to “enter a decree on the minutes adopting 

the actions of the magistrate of which the court approves[.]” Id. (citing 

TEX. GOV’T CODE § 54.912(a), (c)).

C. Discretionary Review

This Court granted the State’s petition for discretionary review, 

which raised a single ground: “Did the court of appeals have jurisdiction 

over [Appellant’s] appeal?”6 The State argues that the court of appeals 

lacked jurisdiction over this case because the trial court failed to enter 

an appealable order in the first instance. The State reasons that the 

6 As we observed at the outset, we also granted a second ground for 

review on our own motion, namely: “In a proceeding under Article 11.072 of 

the Code of Criminal Procedure, does a trial court have jurisdiction to rule on 

a motion to reconsider after the trial court has entered an appealable order 

denying or granting, in whole or part, an application under the statute?” Ex 

parte Sinclair, No. PD-1084-22, 2022 WL 4088314, at *1 (Tex. Crim. App. Sept. 

7, 2022) (order, not designated for publication). Of course, if the court of 

appeals lacked jurisdiction over the appeal, as the State’s ground for review 

contends, then the ground that this Court granted on its own motion would 

essentially prove moot: The court of appeals’ ruling with respect to whether 

Article 11.072 conferred authority on the magistrate judge to consider the 

State’s motion for reconsideration would be nullified.
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magistrate judge’s August 19th action did no more than recommend that 

the trial court grant Appellant relief—and neither the trial court’s 

referral order nor the statute delineating the scope of the magistrate

judge’s power, located in Chapter 54 of the Government Code,

authorized anything more. State’s Brief at 21–24; see TEX. GOV’T CODE § 

54.908 (explicitly authorizing a magistrate in Bexar County to 

ultimately “rule” only “on admissibility of evidence” and “on a pretrial 

motion”). Without an appealable order, the State contends, the court of 

appeals never acquired jurisdiction. Id. at 24.

Appellant responds that, under the trial court’s referral order and 

the statute governing such referrals, the trial court judge procedurally 

adopted the magistrate judge’s recommended findings and conclusions 

as its own decree, and thereby entered an appealable order, which the 

State failed to timely appeal. Appellant’s Brief at 13. Appellant also 

contends that the State, in having moved for reconsideration, 

acknowledged that the magistrate judge’s “original [o]rder granting 

relief was not a mere recommendation[,]” and that the State is therefore 

estopped from arguing otherwise before this Court. Id. (citing, as did the 

court of appeals, Woodall, 336 S.W.3d at 644).7

7 With respect to the ground for review that this Court granted on its 

own motion, the State argues that the magistrate judge retained plenary power 

for thirty days over its “order” of August 19, 2019, (which had merely 

recommended granting Appellant relief) and, therefore, he had “implied 

jurisdiction” to reconsider his recommended findings of fact and conclusions of 

law during that period. State’s Brief at 14, 19. Appellant responds that Section 

8 of Article 11.072, in explicitly providing a right to appeal a trial court’s order 

granting or denying relief, precludes other remedies, including a motion to 

reconsider. Appellant’s Brief at 7; TEX. CODE CRIM. PROC. art. 11.072 § 8.

Because our resolution of the State’s ground for review is sufficient to dispose 
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II. APPLICABLE STATUTES

We are compelled here to focus on and understand the operation 

of two separate statutes, one located in our Code of Criminal Procedure,

and another one located in our Government Code. First, Article 11.072

of our Code of Criminal Procedure “establishes the procedures for an 

application for a writ of habeas corpus in a felony or misdemeanor case 

in which the applicant seeks relief from an order or judgment of 

conviction ordering community supervision.” TEX. CODE CRIM. PROC. art. 

11.072 § 1 (emphasis added).8 Second, Subchapter N in Chapter 54 of 

our Government Code, which includes Sections 54.901 to 54.913 of that 

code, establishes criminal law magistrates in Bexar County to assist 

“[t]he judges of the district courts of Bexar County that give preference 

to criminal cases” by “perform[ing] the duties authorized by [that]

subchapter.” TEX. GOVT. CODE § 54.901(a). 

Section 6(a) of Article 11.072 provides that “the trial court shall 

enter a written order granting or denying the relief sought in the 

application” within sixty days from the date the State files its answer. 

Id. at § (6)(a). If the trial court concludes that an applicant is “manifestly 

entitled to no relief,” then the application may be dismissed as frivolous, 

of the case, however, we do not ultimately resolve the ground for review that 

we granted on our own motion.

8 On its face, Section 1 of Article 11.072 permits a defendant who is 

placed on deferred adjudication community supervision to pursue habeas 

relief. Section 2(b) also includes applicants like Appellant, who have completed 

their community supervision, by its requirement that, “[a]t the time the 

application is filed, the applicant must be, or have been, on community 

supervision[.]” Id. at § 2(b) (emphasis added).
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and the trial court “shall enter a written order denying the application 

as frivolous.” Id. at § 7(a). “In any other case, the [trial] court shall enter 

a written order including findings of fact and conclusions of law.” Id.

Thus, the statute pervasively contemplates that the writ must be 

disposed of by a written order from the trial court.

Article 11.072 also explicitly provides that, to assist in processing 

such writ applications, a trial court judge may enlist the services of a 

magistrate judge. Section 6(d) of Article 11.072 specifies that “[t]he court 

may appoint [a] . . . magistrate to hold a hearing ordered under this 

section and make findings of fact.” Id. at § (6)(d). But Article 11.072,

itself, enumerates no further duties a magistrate judge may perform 

with respect to an 11.072 application.

On the other hand, Texas Government Code Section 54.906, titled 

“Proceeding That May Be Referred[,]” specifies: “(a) A judge may 

refer to a magistrate any criminal case for proceedings involving . . . (3) 

a postconviction writ of habeas corpus[.]” TEX. GOV’T CODE §

54.906(a)(3). Because Appellant successfully completed deferred 

adjudication, his 11.072 writ is not a postconviction writ of habeas 

corpus application. See Ex parte White, 506 S.W.3d 39, 45 n.30 (Tex. 

Crim. App. 2016) (“Deferred adjudication . . . is not a conviction.”). 

However, Section 54.906 also includes a catch-all provision which 

permits a judge to refer to a magistrate “(8) any other matter the judge 

considers necessary and proper[.]” TEX. GOV’T CODE § 54.906(a)(8). 

Article 11.072 also clearly contemplates that habeas applications 

requesting relief from an order of deferred adjudication community 

supervision may be referred to a magistrate judge, at least for some 
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limited purposes. See TEX. CODE CRIM. PROC. art. 11.072 § 6(d) (“The 

trial court may appoint an attorney or magistrate to hold a hearing 

ordered under this section and make findings of fact.”).

Once such a referral has been made, the question of the scope of 

the magistrate judge’s authority to act is another question. Section 

54.908 of the Government Code (titled “Powers”) generally delineates 

the scope of that authority, and only explicitly authorizes magistrates to 

ultimately “rule” on a very limited number of matters—namely, 

“admissibility of evidence” and “a pretrial motion[.]” TEX. GOV’T CODE §

54.908(a)(4), (a)(10). There is, however, another catch-all provision in 

Section 54.908(a)(15), which also authorizes a magistrate judge to “do 

any act and take any measure necessary and proper for the efficient 

performance of the duties required by the order of referral.” TEX. GOV’T 

CODE § 54.908(a)(15) (emphasis added).9

Finally, Article 11.072, Section 6(d)’s provision for appointment 

of a magistrate specifically limits the magistrate judge’s power to 

“hold[ing] a hearing . . . and mak[ing] findings of fact”—nothing more.

In short, a magistrate judge’s authority to act in an Article 11.072 

proceeding is expressly circumscribed. It is thus up to the district court 

judge, under the express requirements of Article 11.072, to take the 

work product of a magistrate judge and convert it into the “written 

9 The district court judge’s order of referral in this case, however, 

limited the duties of the magistrate judge to “[i]ssu[ing] the writ” and to 

“conduct[ing] a hearing.” We note that Section 6(d) of Article 11.072 does not 

empower magistrate judges to issue writs of habeas corpus; however, in any 

event, under Section 4(a), “[w]hen an application is filed under this article, a 

writ of habeas corpus issues by operation of law.” TEX. CODE CRIM. PROC. art. 

11.072 §§ 6(d), 4(a).
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order” of the trial court granting or denying relief. So, how does the 

district court judge go about this?

Under the Texas Government Code, “[a] referring court may 

modify, correct, reject, reverse, or recommit for further information any 

action taken by the magistrate.” TEX. GOV’T CODE § 54.912(a). If the 

referring court does nothing, then “the [magistrate’s] action becomes the 

decree of the court.” Id. at § 54.912(b). Section 54.912 contains no 

provision, however, that expressly authorizes “the referring court” 

prospectively to declare that, if it should fail to “supersede” the 

magistrate’s “action” within a certain time to be specified by the referring 

court, that action will become the “decree” of the referring court. Instead, 

Section 54.912(c) explicitly provides: “At the conclusion of each term 

during which the services of a magistrate are used, the referring court 

shall enter a decree on the minutes adopting the actions of the 

magistrate of which the court approves.” Id. at § 54.912(c).

III. ANALYSIS: WAS THERE EVER AN APPEALABLE ORDER?

Appellate jurisdiction must be legislatively conferred. Ragston v. 

State, 424 S.W.3d 49, 52 (Tex. Crim. App. 2014). Under Article V, 

Section 6, of the Texas Constitution, “a statute must expressly give the 

courts of appeals jurisdiction.” Whitfield v. State, 430 S.W.3d 405, 

407−08 (Tex. Crim. App. 2014). Jurisdiction of the courts of appeals to 

entertain appeals from a trial court’s resolution of communitysupervision writ applications under Article 11.072 is expressly conferred 

by Section 8 thereof. TEX. CODE CRIM. PROC. art. 11.072 § 8. That 

provision authorizes the losing party to appeal. Specifically, it provides 

that the applicant may appeal “[i]f the application is denied in whole or 
SINCLAIR – 14

in part,” and the State may appeal “[i]f the application is granted in 

whole or in part[.]” Id.

This Court’s precedent requires that, generally, for an appeal 

from an order to proceed, that order must have been reduced to writing. 

Sanavongxay, 407 S.W.3d at 258−59;10 see also Guthrie-Nail v. State, 

543 S.W.3d 225, 227 (Tex. Crim. App. 2018) (recognizing that a nunc pro 

tunc judgment is an appealable order, but that a court of appeals cannot 

“assert jurisdiction over the case grounded on a docket entry and oral 

ratification of a pre-existing judgment”). Whether the court of appeals 

in this case acquired jurisdiction therefore depends upon whether the 

10 While Sanavongxay concerned a State’s appeal, that case stands for 

the general proposition that “our precedent requires that an [appealable] order 

be in writing.” 407 S.W.3d at 258–59. Although there are no published opinions 

on point, every court of appeals that has confronted the issue has applied the 

same rule to appeals taken by appellants. See Prince v. State, No. 01-17-00200-

CR, 2017 WL 1434271, at *2 (Tex. App.—Houston [1st Dist.] Apr. 20, 2017) 

(mem. op., not designated for publication); Awadalla v. State, No. 02-20-00102-

CR, 2020 WL 5949918, at *1 (Tex. App.—Fort Worth Oct. 8, 2020) (mem. op., 

not designated for publication); Holt v. State, No. 03-19-00468-CR, 2019 WL 

6870343, at *1 (Tex. App.—Austin Dec. 17, 2019) (mem. op., not designated for 

publication); Noble v. State, No. 05-23-01179-CR, 2023 WL 8519107, at *1 (Tex. 

App.—Dallas Nov. 22, 2023) (mem. op., not designated for publication); Harper

v. State, No. 08-22-00001-CR, 2022 WL 633389, at *1 (Tex. App.—El Paso Mar. 

4, 2022) (mem. op., not designated for publication); Nichols v. State, No. 09-14-

00048-CR, 2014 WL 1400809, at *1 (Tex. App.—Beaumont Apr. 9, 2014) (mem. 

op., not designated for publication); Kennedy v. State, No. 10-22-00026-CR, 

2022 WL 481070, at *1 (Tex. App.—Waco Feb. 16, 2022) (mem. op., not 

designated for publication); McCreary v. State, No. 12-20-00029-CR, 2020 WL 

827587, at *2 (Tex. App.—Tyler Feb. 19, 2020) (mem. op., not designated for 

publication); Amos v. State, No. 13-22-00458-CR, 2022 WL 17351779, at *1 

(Tex. App.—Corpus Christi–Edinburg Dec. 1, 2022) (mem. op., not designated 

for publication), reh’g denied (Dec. 27, 2022); Kossie v. State, No. 14-20-00671-

CR, 2021 WL 245236, at *1 (Tex. App.—Houston [14th Dist.] Jan. 26, 2021) 

(mem. op., not designated for publication).
SINCLAIR – 15

trial court “entered a written order . . . denying the relief sought” by 

Appellant, as required by Article 11.072. TEX. CODE CRIM. PROC. art. 

11.072 §§ 6(a), 7(a), 7(b). If the trial court did not, then no appealable 

order issued from the trial court and the court of appeals necessarily 

lacked jurisdiction over the case.

The record in this case includes no written order signed by the 

actual trial court judge that rules on the merits of Appellant’s Article 

11.072 writ application. The trial court judge signed nothing beyond the 

initial order of October 2, 2018, by which he referred the writ application 

to the magistrate judge to conduct fact development. Consequently, the 

question here is whether any action that the magistrate judge took 

during the ensuing proceedings ultimately counted as the “written 

order” of the trial court denying relief, capable of conferring jurisdiction 

over Appellant’s appeal on the court of appeals. For the following 

reasons, we conclude that none of the magistrate judge’s actions resulted 

in an appealable order of the trial court in this case.

A. Which Order (If Any) Could Be the Appealable Order?

We next review the actions of the trial court judge and the

magistrate judge, seriatim, to explain why nothing that occurred at the 

trial court level amounted to a written order of the trial court denying 

relief.

1. The Trial Court Judge’s Order of Referral: October 2, 2018

The district court judge’s order referring the Appellant’s writ 

application to the magistrate judge, though it was in writing, was not, 

itself, of course, an order granting or denying relief. On its face, it 

authorized no more specific involvement on the magistrate judge’s part 
SINCLAIR – 16

than to “conduct a hearing.” Beyond that, it instructed the magistrate 

judge to “[a]ct in accordance with Sec. 54.908, Gov’t Code, by virtue of 

which this matter is referred.” The referral order also declared that 

“[a]ny action you take will become the decree of this Court if not 

super[s]eded by an order entered by me within fifteen (15) days of your 

report of your action to me.” Pursuant to the referral order, the

magistrate judge conducted an evidentiary hearing on March 14, 2019, 

at the conclusion of which it solicited proposed findings of fact and 

conclusions of law from the parties. This much he was authorized to do 

under Section 54.908(a)(1) and (a)(2) of the Government Code.

2. The Magistrate’s Findings and Conclusions: August 19, 2019

The magistrate judge apparently took no further action until 

August 19, 2019. On that date, the magistrate judge announced on the 

record that he “hereby enters written findings of fact and conclusions of 

law which will be placed in the court’s file.” In the written “Findings of 

Fact and Conclusions of Law” that he filed, the magistrate judge

“ma[d]e” findings and “formulate[d]” conclusions, as expressly 

authorized under Subsections (a)(8) and (a)(9) of Section 54.908 of the 

Government Code. TEX. GOV’T CODE §§ 54.908(a)(8), (a)(9). Based on 

those findings and conclusions, the magistrate judge then 

“recommend[ed] that relief be granted based on actual innocence.”

(emphasis added).

Although in writing, this document did not purport to actually 

grant Appellant relief. Did it nevertheless become the decree of the trial 

court when, at least as far as the record reveals, the trial court judge did 

not supersede it within fifteen days, as per the original order of 
SINCLAIR – 17

referral?11 Even assuming for argument’s sake that it did, another

11 The dissent would hold that it did. Dissenting Opinion at 3 

(“Pursuant to statute and the trial court’s referral order, fifteen days after the 

magistrate entered the order, the magistrate’s written order became the final 

decree of the trial court because the trial court did not correct or modify it or 

enter an order superseding it.”). And it argues that the legislative history of 

Section 54.908 of the Government Code supports that conclusion. Id. at 3 n.5. 

Two notes in response. 

First, it is unclear that adopting by inaction an order which only 

recommends that the trial court grant relief results in a decree that actually 

grants relief. The courts of appeals, at least with respect to their civil 

jurisdiction, have held that language merely recommending granting or 

denying the remedy sought does not constitute a final appealable judgment. 

See, e.g., In re Wilmington Tr., Nat’l Ass’n, 524 S.W.3d 790, 793 (Tex. App.—

Houston [14th Dist.] 2017, orig. proceeding) (concluding that although the 

order at issue stated that the motions in question “should” be granted, it was 

“not a final judgment because it contain[ed] no decretal language that . . . 

finally dispose[d] of the action”).

Second, a careful reading of the legislative history of Section 54.908

shows that it does not lend the support to the dissent’s argument that the 

dissent suggests. The dissent notes that, prior to 2001, Section 54.908(b) 

stated: “A magistrate may not enter a ruling on any issue of law or fact if that 

ruling could result in dismissal or require dismissal of a pending criminal 

prosecution, but the magistrate may make findings, conclusions, and 

recommendations on those issues.” Acts 1989, 71st Leg., ch. 1068, § 1, p. 4322,

eff. Aug. 28, 1989. The dissent argues that, by removing this language from 

Section 54.908, “the Legislature clearly sought to improve the flow of the 

judicial process by providing more flexibility for trial courts in relying upon 

magistrates.” Dissenting Opinion at 3 n.5. 

But then, as now, Section 54.908 limited the matters a magistrate could

“rule” on to the admissibility of evidence and pretrial motions. Compare Acts 

2001, 77th Leg., ch. 680, § 1, p. 1286, eff., Sept. 1, 2001 (Section 54.908 as 

amended in 2001), with TEX. GOV’T CODE § 54.908(a) (the current statutory 

language, which still only allows a magistrate to “rule” on questions about 

admissibility of evidence and pretrial motions). Thus, when the Legislature 

removed the prohibition on magistrates issuing rulings which “could result in 

dismissal or require dismissal[,]” it merely removed what might have 

otherwise seemed like a prohibition against rulings on the admissibility of

evidence or on pretrial motions if those rulings could result in or require 

dismissal of a criminal prosecution. In other words, the Legislature’s removal 
SINCLAIR – 18

question remains: Would that decree constitute the written order 

necessary to dispose of Appellant’s Article 11.072 application?

In short, the answer is no. Appellant would not be authorized 

under Article 11.072, Section 8, to appeal, since an applicant may only 

appeal the denial of relief under that provision. TEX. CODE CRIM. PROC.

art. 11.072 § 8. The magistrate judge’s August 19, 2019, findings did not 

purport to deny relief. The court of appeals would therefore have lacked

jurisdiction to entertain such an appeal.

3. Motion to Reconsider: September 17 & November 5, 2019

On September 17, 2019, the magistrate judge signed a written 

order granting the State’s request to reconsider his August 19th findings 

of fact and conclusions of law and his recommendation that relief be 

granted. This written order did not come from the trial court judge, and 

it neither granted nor denied relief on the writ application itself. It was 

therefore not an appealable order under Article 11.072.

On November 5, 2019, in open court and on the record, the 

magistrate judge declared that he was setting aside his earlier findings 

and conclusions and adopting the State’s proposed findings and 

conclusions instead. He then stated: “To summarize, I am denying relief 

under the application for writ of habeas corpus.” He did not, at that time, 

of the prohibition on entering a ruling if that ruling could result in or require 

dismissal made it clear that it was indeed possible for a magistrate to rule on 

the admissibility of evidence or a pretrial motion even if that ruling might

ultimately result in the dismissal of a criminal case. It did not also thereby 

increase the number or type of issues upon which a magistrate could “rule,” as 

otherwise limited by the text of Subsection 54.908(a). And still conspicuously 

absent from the enumerated powers of magistrates is any express authority to 

rule on an application for writ of habeas corpus. See TEX. GOV’T CODE § 

54.908(a).
SINCLAIR – 19

however, memorialize this oral pronouncement with a written order. 

Nor did the magistrate judge himself have the authority to ultimately 

rule on the writ application—by written order or otherwise.

Making an ultimate ruling on the merits of an Article 11.072 writ 

application is not among the powers of a magistrate judge that are listed 

in Section 54.908(a) of the Government Code. While that provision

permits a magistrate judge to “rule on the admissibility of evidence” and

to “rule on a pretrial motion[,]” it does not empower him to rule on the 

merits of a habeas application. TEX. GOV’T CODE § 54.908(a)(4), (10). It 

is true that Subsection (a)(15) of Section 54.908 contains a kind of catchall provision, providing that a magistrate “may do any act and take any 

measure necessary and proper for the efficient performance of the duties 

required by the order of referral.” Id. at § (a)(15). But the referral order 

in this case authorized the magistrate judge to do nothing more than 

issue the writ of habeas corpus and simply “to hold a hearing.” That 

referral order, even when construed alongside the general powers 

enumerated in Section 54.908(a), cannot reasonably be read to have 

“required” the magistrate judge to rule on the merits of Appellant’s 

Article 11.072 writ application on the trial court’s behalf.

And in any event, this oral ruling on the merits could not serve to 

confer jurisdiction in the court of appeals. While it did at least purport 

to deny (not just recommend denying) relief for purposes of an 

applicant’s appeal under Section 8 of Article 11.072, this oral ruling did 

not constitute a “written order” that would trigger a right to appeal 

under Article 11.072. That seems to be the reason the court of appeals 

sent a letter to the parties on February 7, 2020, threatening to dismiss 
SINCLAIR – 20

Appellant’s appeal (presumably for want of appellate jurisdiction) if 

“this defect is not cured.”

4. The Magistrate Judge’s Order of February 18, 2020

This brings us to the magistrate judge’s written order of February 

18, 2020, which the State solicited in response to the court of appeals’ 

February 7th letter.12 Here, for the first time, the magistrate judge 

memorialized his recommendation that relief be denied, in writing: “This 

Court . . . now enters an order entering into the record the ruling of the 

habeas court, finding that relief should be denied.” (Emphasis added). It 

expressly ordered “that this Court’s previous oral pronouncement of this 

decision is ENTERED.” However, the oral pronouncement of November 

5, 2019, had seemed to do more than just enter “this decision” that “relief 

should be denied.” (Emphasis added.) In fact, the magistrate judge had 

orally pronounced on November 5th that “I am denying relief under the 

application for writ of habeas corpus.” (Emphasis added.)

So, what was the effect of the magistrate judge’s written order of 

February 18, 2020? On original submission, the court of appeals was 

apparently content to regard the magistrate judge’s February 18th order 

12 The body of the magistrate judge’s written order of February 18th 

reads, in its entirety:

On this date, the above Motion to Enter order of the court, 

asking this Court to enter the November 5, 2019, ruling of the 

habeas court, was presented. This Court, having considered the 

same, now enters an order entering into the record the ruling of 

the habeas court, finding that relief should be denied. The entry 

of this court shall serve as a final, written order for appellate 

purposes.

IT IS THEREBY ORDERED THAT THIS COURT’S 

PREVIOUS ORAL PRONOUNCEMENT OF THIS DECISION 

IS ENTERED.
SINCLAIR – 21

as an appealable order, proceeding to the merits of Appellant’s 

arguments on appeal. But the answer to the question boils down to 

whether the court of appeals was justified in regarding the magistrate 

judge’s written order of February 18th as sufficient to confer it with 

appellate jurisdiction.

B. Appealable Order Under Section 54.912, Government Code?

Did the magistrate judge’s written order of February 18th 

denying relief somehow become the written order of the trial court by 

virtue of the district court judge’s initial referral order? Or, at the very 

least, did the February 18th order become a written order of the trial 

court fifteen days after that action was taken, by reference to the express 

terms of the referral order itself.13 It is perhaps arguable that such a 

provision in a referral order is not inconsistent with the terms of Section 

13 Section 54.912, on its face, does not explicitly permit nor prohibit the 

referring court judge from imposing a specific temporal deadline on when the 

magistrate judge’s action should become the decree of the trial court. See note 

15, post. So, at what point in time, if ever, would the magistrate judge’s “action” 

become the decree of the trial court? Does that only happen “at the conclusion 

of” the term, or can the referring court prescribe an earlier date? If the 

referring court picks an earlier date, then does the magistrate judge’s written 

recommendation become the trial court’s written order on that date for 

purposes of disposing of an Article 11.072 writ application? Or does the 

magistrate judge’s recommendation only become the order of the trial court for 

Article 11.072 purposes on the date at the end of term when the trial court 

enters its official decree on its minutes adopting the magistrate judge’s 

recommendation? Indeed, this Court has said that an appealable order is 

“entered” when the trial court “signs” it. State v. Wachtendorf, 475 S.W.3d 895, 

899 (Tex. Crim. App. 2015) (plurality opinion). So, should the earlier date upon 

which the magistrate judge signed the recommendation serve as the launching 

point (as the court of appeals seems tacitly to have assumed), even though it

has not yet even become the decree of the trial court according to the timeline 

established by the referral order, much less a written order granting or denying 

relief for purposes of Article 11.072?
SINCLAIR – 22

54.912 of the Government Code.14

We do not ultimately believe, however, that Section 54.912 of the 

Government Code controls. The mere tacit acceptance of a magistrate 

judge’s recommended ruling as the decree of the court, under Section 

54.912(c) of the Government Code, does not result in an appealable order 

from an Article 11.072 proceeding. We conclude, instead, that Article 

11.072 itself requires, as a predicate to appellate jurisdiction, a discrete 

written order from the trial court judge that either grants or denies 

relief.15

C. Appealable Order Under Article 11.072?

Several provisions of Article 11.072 contemplate that the 

disposition of a writ application may be accomplished only by way of a 

14 Section 54.912(a) permits the trial court judge wide latitude with 

respect to the “action taken by the magistrate” following a referral order. If the 

trial court judge does not exercise the latitude afforded by Section 54.912(a)—

if he “does not modify, correct, reject, reverse, or recommit for further 

information”—then the magistrate’s “action becomes the decree of the court” 

by virtue of Section 54.912(b). But this subsection of the statute does not speak 

to when that occurs. Only Section 54.912(c) speaks to when: “At the conclusion 

of each term during which the services of a magistrate are used, the referring 

court shall enter a decree on the minutes adopting the actions of the magistrate 

of which the court approves.”

15 Indeed, entry of a decree on the minutes adopting the action of the 

magistrate, under Section 54.912(c), might constitute the written order of the 

trial court that Article 11.072 demands, depending upon how it might be 

phrased. A written decree, entered in the minutes of the court, expressly 

declaring that the trial court adopts the magistrate judge’s proposed findings 

of fact and conclusions of law and thereby does grant (or deny) relief, followed 

by the judge’s signature, would certainly seem to satisfy Article 11.072. TEX.

CODE CRIM. PROC. art. 11.072 §§ 6(a) (“the trial court shall enter a written 

order granting or denying the relief sought in the application.”), 7(a) (“the 

[trial] court shall enter a written order including findings of fact and 

conclusions of law.”).
SINCLAIR – 23

written order granting or denying relief—by the trial court. For instance, 

as we have observed, “the trial court shall enter a written order granting 

or denying relief sought” within sixty days of the filing of the State’s 

answer. TEX. CODE CRIM. PROC. art. 11.072 § 6(a) (emphasis added). If 

“the court” concludes that the writ application is frivolous, it “shall enter 

a written order denying the application as frivolous.” Id. § 7(a) 

(emphasis added). “In any other case, the court shall enter a written 

order including findings of fact and conclusions of law.” Id. (emphasis 

added).16

Nothing in Chapter 54, Subchapter N, of the Government Code, 

which regulates criminal law magistrates in Bexar County, authorizes 

a magistrate judge to whom an Article 11.072 writ application has been 

referred to render an order that ultimately disposes of the case.17 Only 

16 What is more, under Section 7(b) of Article 11.072, at the time the 

written order is entered, “the clerk of the court shall immediately . . . send a 

copy of the order” to the parties. TEX. CODE CRIM. PROC. art. 11.072 § 7(b). It 

is hard to imagine how the clerk of the court could send a copy of the entry of 

a decree that the district court has accepted the magistrate’s recommendation 

upon the minutes of the court to the parties.

17 At least one court of appeals has recognized as much, albeit in an 

unpublished opinion. In Ex parte 1993 Custom Van, No. 07-97-0254-CR, 1997 

WL 760554, at *1 (Tex. App.—Amarillo 1997) (not designated for publication), 

the same magistrate judge involved in this case orally pronounced judgment 

awarding a vehicle to the San Antonio Police Department for destruction. The 

court of appeals noted that, even assuming an oral pronouncement would have 

constituted a final judgment, “§ 54.908(a)(11) provides that a magistrate may 

‘recommend the rulings, orders, or judgment to be made in a case.’ It is 

noteworthy that nowhere in the statute does it provide that a criminal law 

magistrate may actually render a final ‘ruling, order or judgment.’” Id. at *2. 

Consequently, the court concluded that, “while a criminal law magistrate may 

be empowered to recommend rulings of law and fact, the magistrate is not 
SINCLAIR – 24

the trial court judge can sign the written order disposing of the case, and 

only a written order of the trial court judge, so disposing of the case, will 

serve as an appealable order. We conclude, then, that a trial court 

judge’s eventual entry of a decree on the minutes of the court, adopting

a magistrate judge’s recommended disposition of the case, does not 

constitute the signed written order necessary to confer appellate 

jurisdiction.18 The court of appeals did not acquire jurisdiction as a 

result of the magistrate judge’s written order of February 18, 2020—

regardless of whether that order purported to actually deny relief or 

whether the trial court judge may yet (the record does not reveal) have 

adopted that order on its minutes as the decree of the court.19

empowered to render a final decree or judgment. That being true, no final 

appealable judgment has been entered.” Id. at *3. 

18 Our conclusion that only a signed written order from the trial court 

judge constitutes an appealable order in an Article 11.072 case has the benefit 

of creating a fixed point from which the appellate timetable begins—the date 

the trial court judge signs an order granting or denying relief, whether or not 

based on the recommendations of a magistrate judge. “Establishing a definite 

starting date for calculating appellate timetables serves the interests of all 

parties.” State ex rel. Sutton v. Bage, 822 S.W.2d 55, 57 (Tex. Crim. App. 1992) 

(quoting State v. Rosenbaum, 818 S.W.2d 398, 402 (Tex. Crim. App. 1991)).

19 The court of appeals concluded that the State should be estopped from 

challenging its jurisdiction on the ground that, having induced the magistrate 

judge to sign what purported to “serve as a final, written order for appellate 

purposes[,]” the State should not be permitted to argue that the magistrate 

judge never had authority to enter such an order. Sinclair II, 2022 WL 619146

at *1. Appellant has not advanced that argument before this Court. (Appellant 

argues, instead, that the State is estopped from denying that the magistrate’s 

August 19, 2019, recommended findings and conclusions constituted a written 

order of the trial court granting Appellant relief because it later filed a motion 

to set aside those findings and recommendation.) And even if Appellant had

asserted the same estoppel argument embraced by the court of appeals, we 
SINCLAIR – 25

IV. CONCLUSION

We conclude that there is not yet an appealable order in this case, 

and that the court of appeals consequently never acquired jurisdiction 

to entertain Appellant’s appeal.20 Accordingly, we vacate the judgment 

note that the State obtained no benefit from its assistance to the defense when 

it requested that the magistrate judge reduce its otherwise oral-only order 

made on November 5, 2019, to writing. Also, as the court of appeals observed

with regard to the State’s motion for rehearing: “the State assert[ed] that [the 

court of appeals] lack[ed] jurisdiction over this appeal because the trial court 

did not enter an appealable order as Bexar County Magistrates have no 

authority to issue a final order regarding a writ of habeas corpus.” Id.

(emphasis added). But there is a difference between arguing that an order is 

not appealable because it is not in writing and arguing that an order is not 

appealable because it is not even a final order made by a proper judicial officer 

and therefore subject to appeal.

In any event, ordinarily, “estoppel does not apply when the trial court 

lacked jurisdiction.” See Ex parte Heilman, 456 S.W.3d 159, 167 (Tex. Crim. 

App. 2015). And “[a]lthough only subject matter jurisdiction is categorically 

immune from estoppel, Gutierrez v. State, 380 S.W.3d 167, 177 (Tex. Crim. 

App. 2012), demonstrating estoppel to challenge some other type of jurisdiction 

would seem to be an onerous task.” Ex parte Macias, 541 S.W.3d 782, 786 n. 

23 (Tex. Crim. App. 2017). The court of appeals was obligated to examine 

whether it had jurisdiction, regardless of the State’s arguments on rehearing. 

See State v. Martinez, 548 S.W.3d 751, 760 (Tex. App.—Corpus Christi–

Edinburg 2018) (“We first must determine whether we have jurisdiction over 

this . . . appeal.”). To now hold that this Court cannot consider the underlying 

issue in this case on the same grounds as the court of appeals did, would be, in 

effect, to hold that the court of appeals can be conferred jurisdiction by 

estoppel. This, we will not do. Cf. Daniel v. Dallas Indep. Sch. Dist., 351 S.W.2d 

356, 359 (Tex. App.—El Paso 1961, writ ref’d n.r.e.) (“[J]urisdiction of a court 

is so important and essential that it has long been held that it cannot be 

conferred by estoppel.”).

20 We therefore dismiss, as moot, the ground for review that we granted 

on our own motion.

As to the statutory “conflict” the dissent alleges this opinion “creates,”

Dissenting Opinion at 9, we make two observations. First, to the extent that 

Article 11.072’s requirement that “the trial court shall enter a written order 

granting or denying the relief sought” conflicts with Section 54.912(b)’s 
SINCLAIR – 26

of the court of appeals and remand the case to that court with 

instructions to dismiss the appeal. TEX. R. APP. P. 78.1(d). The case 

remains pending in the trial court.

FILED: July 31, 2024

PUBLISH

adoption-by-inaction provision, that conflict arises from the statutes’ plain 

language, not because this Court “creates” it. TEX. CODE CRIM. PROC. art. 

11.072 § 6(a); TEX. GOV’T CODE § 54.912(b). To “harmonize” the statutes so that 

the magistrate judge’s recommendation would become the written order of the 

trial court through inaction would require the Court to ignore: (1) the trial 

court judge’s referral order, which did not authorize the magistrate judge to 

rule on the merits of the application; (2) Article 11.072’s plain language, which 

limits what a magistrate judge may do to “hold[ing] a hearing” and “mak[ing] 

findings of fact”; and (3) Section 54.912(c), which requires the trial court judge 

to explicitly “adopt[] the actions of the magistrate of which it approves.” See

TEX. CODE CRIM. PROC. art. 11.072 § 6(d); TEX. GOV’T CODE § 54.912(c). Second, 

the dissent vastly overstates the extent and effect of what it deems to be the

“conflict.” It is true that in habeas cases seeking relief from an order of 

community supervision, Article 11.072 requires the trial court judge to do more 

than simply adopt a magistrate judge’s recommendation by utter inaction. But 

the burden on the trial court judge is no more onerous than issuing an order 

explicitly stating that it grants or denies relief as the magistrate judge

recommends.