Keller, P.J., filed a concurring opinion in which HOLCOMB, J. joined.

Applicant received probation as part of a plea agreement. He challenged the validity of the plea agreement only after his probation was revoked for violating its terms. I would hold that he is estopped from doing so.

We most recently articulated the doctrine of estoppel in Prystash v. State.¹ In that case, upon the defendant’s request, the trial court did not submit the anti-parties special issue to the jury at the punishment phase of trial.² On appeal, the defendant contended that an answer to the issue was required, under the facts of the case, to authorize a death sentence.³ We held that, because the defendant requested the deletion of the issue from the jury charge, he was estopped from complaining about its absence on appeal.⁴ We explained that estoppel was distinct from waiver and “is part of the definition of what can constitute error, and quite reasonably defines error of which a party may complain as excluding those actions of the trial court actually sought by the party to the tribunal.”⁵

The question is whether an error capable of rendering a judgment or sentence void can be subject to estoppel. Subject matter jurisdiction is immune to estoppel considerations,⁶ but there are several other types of errors that render a judgment or sentence “void,” based on lack of jurisdiction⁷ or authority,⁸ and the Texas Supreme Court has recognized that at least one of these types of errors, lack of personal jurisdiction, can be obviated by consent or waiver.⁹ Given the dearth of Texas caselaw on the relationship between estoppel and these kinds of errors, I look to other jurisdictions for guidance. After reviewing both Texas and out-of-state cases, I conclude that lack of subject matter jurisdiction is the only error that is not subject to estoppel.

California has recognized a difference between subject matter jurisdiction and “excess of jurisdiction,” holding that the latter is subject to the rule of estoppel: “When, as here, the court has jurisdiction of the subject, a party who seeks or consents to action beyond the court’s power as defined by statute or decisional rule may be estopped to complain of the ensuing action in excess of jurisdiction.”¹⁰ In an earlier decision, the California Supreme Court expressly had held that only subject matter jurisdiction was immune from estoppel considerations: “It has been said that ‘Jurisdiction of the subject matter cannot be conferred by estoppel, but one who invokes or consents to a court’s jurisdiction is estopped to question it on any other ground other than that the court lacks jurisdiction of the subject matter.”¹¹ In Griffin, the California Supreme Court cited its earlier precedent with approval and applied the doctrine of estoppel in a probation revocation situation.¹² Under the law in California at the time, a revocation of probation had to occur within the probationary term, but the defendant asked for, and received, a continuance of the revocation hearing to a time that was after the expiration of his probationary term.¹³ The Court held that the defendant was estopped from challenging the trial court’s continuing jurisdiction to revoke.¹⁴ Recently recognizing the continuing viability of Griffin, the California court observed: “The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process.”¹⁵

In Commonwealth v. Griffin, the Kentucky Supreme Court addressed a similar issue.¹⁶ The Commonwealth filed a motion to revoke the defendant’s five-year probation on the ground that he had failed to make restitution payments.¹⁷ The defendant asked the trial court to extend his probation by five years instead of revoking probation and incarcerating him.¹⁸ The trial court agreed, but the defendant again violated his probation, and this time, the trial court revoked.¹⁹ On appeal, the defendant argued that the trial court lacked jurisdiction to revoke because it had no authority to extend his probation to a period longer than five years total; since appellant was already on probation for five years, a five year extension would be invalid.²⁰ The Kentucky court held that the defendant was precluded, by the doctrine of estoppel, from attacking the trial court’s jurisdiction to revoke his probation.²¹ The court observed that the defendant’s attack challenged jurisdiction over the particular case but was not a challenge to subject matter jurisdiction, which the court acknowledged would not be subject to estoppel.²²

The Iowa Supreme Court has distinguished subject matter jurisdiction from authority.²³ In State v. Mandicino, the court held that (1) a trial court’s lack of authority to extend the term of a defendant’s probation did not constitute a lack subject matter jurisdiction, and (2) this lack of authority was waived by the defendant’s conduct expressly seeking the extension of his probation.²⁴

The present case involves a trial judge’s lack of authority to grant probation. This lack of authority is not a subject matter jurisdiction defect; the trial court had subject matter jurisdiction to hear and decide the class of criminal cases into which appellant’s case falls.²⁵ By accepting the plea agreement, appellant gained a bargained-for benefit that should now estop him from challenging the trial court’s authority. If appellant had challenged the plea agreement on direct appeal from the original plea, he could have perhaps reasonably argued that he was not estopped because he had not yet accepted the benefits of probation. At this point in time, however, it is clear that appellant did accept the benefits of probation and he should be estopped from challenging the trial court’s authority on this matter.

For these reasons, I concur in the Court’s judgment.

KELLER, Presiding Judge

Date filed: April 11, 2001
¹ 3 S.W.3d 522 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1102 (2000).
² Id. at 532.
³ Id. at 530.
⁴ Id. at 531.
⁵ Id.
⁶ Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000).
⁷ American General Fire and Cas. Co. v. Vandewater, 907 S.W.2d 491, 492 (Tex. 1995).
⁸ Davis v. State, 956 S.W.2d 555, 559 (Tex. Crim. App. 1997).
⁹ Drake v. Trinity Universal Ins. Co., 600 S.W.2d 768, 772 (Tex. 1980).
¹⁰ In re Griffin, 431 P.2d 625, 628 (Cal. 1967).
¹¹ City of Los Angeles v. Cole, 170 P.2d 928, 932 (Cal. 1946), overruled on other grounds, County of Los Angeles v. Faus, 312 P.2d 680 (Cal. 1957).
¹² Griffin, 431 P.2d at 628-629 (citing Cole).
¹³ Id. at 629.
¹⁴ Id.
¹⁵ People v. Hester, 992 P.2d 569, 572 (citing Griffin, among other cases).
¹⁶ 942 S.W.2d 289 (Ky 1997),
¹⁷ Id. at 290.
¹⁸ Id.
¹⁹ Id.
²⁰ Id.
²¹ Id. at 291-292.
²² Id.
²³ State v. Mandicino, 509 N.W.2d 481, 482 (Iowa 1993); see also State v. Yodprasit, 564 N.W.2d 383, 385-386 (Iowa 1997).
²⁴ Yodprasit, 564 N.W.2d at 386 (citing Mandicino, 509 N.W.2d at 482).
²⁵ And in fact, the trial court would have had authority if it had simply declined to enter a deadly weapon finding.