Ex Parte Alderete

• Citation: 203 S.W. 763
• Decision Date: 10 April 1918
• Docket Number: (No. 4978.)
• Parties: Ex parte ALDERETE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 763

203 S.W. 763

Ex parte ALDERETE.

(No. 4978.)

Court of Criminal Appeals of Texas.

April 10, 1918.

On Motion for Rehearing, May 8, 1918.

Original application for writ of habeas corpus on behalf of Ike Alderete. Application granted, and relator ordered discharged.

Hudspeth & Harper and M. W. Stanton, all of El Paso, and C. C. McDonald, of Austin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

This is an original application for writ of habeas corpus seeking relief against judgment of the district court in El Paso county declaring relator in contempt of court.

The state suggests the want of jurisdiction of this court, citing Ex parte Zuccaro, 72 Tex. Cr. R. 214, 162 S. W. 844, and Ex parte Mussett, 72 Tex. Cr. R. 487, 162 S. W. 846. One of these cases, Ex parte Zuccaro, supra, indicates that the majority of the court rendering the opinion were of opinion that by reason of article 1529 of the Revised Civil Statutes this court would be without jurisdiction to grant a writ of habeas corpus to one restrained of his liberty by virtue of an order entered in a civil case. The Mussett Case follows the same line of reasoning, stating:

"To our mind, taking into consideration our Constitution and the amendment thereto, the act of the Legislature in pursuance of this amendment to the Constitution quoted above, it was the clear intent and purpose that in this character of case the application for a writ of habeas corpus should be addressed to the Supreme Court, and not to this court."

In the State ex rel. McNamara v. Clark, 79 Tex. Cr. R. 559, 187 S. W. 760, the majority of the court rendering the opinion held it is vested with the jurisdiction to give relief against an injunction ordered issued by a district court. This decision, it is claimed in the dissenting opinion, is in conflict with the cases of Zuccaro and Mussett, supra.

Whatever may be the scope or effect of the decisions mentioned, the writer is of the opinion that the Court of Criminal Appeals has jurisdiction to issue a writ of habeas corpus in any case where a person is illegally restrained of his liberty. See articles 69 and 160, C. C. P. Article 174 prescribes the requisites of a petition for a writ of habeas corpus, and article 175 is as follows:

"The writ of habeas corpus shall be granted without delay by the judge or court receiving the petition, unless it be manifest by the statements of the petition itself, or some documents annexed to it, that the party is entitled to no relief whatever."

See articles 181 to 183, C. C. P., also.

The Constitution contains the following:

"The Court of Criminal Appeals and the judges thereof shall have the power to issue the writ of habeas corpus, and, under such regulations as may be prescribed by law, issue such writs as may be necessary to enforce its own jurisdiction." Article 5, § 5.

The Supreme Court also has power to issue writs of habeas corpus in certain cases. Article 5, § 3, of the Constitution provides:

"The Supreme Court and the justices thereof shall have power to issue writs of habeas corpus, as may be prescribed by law."

And Acts 1905, p. 20 (Rev. Civil Statutes 1911, art. 1529), provides, in substance, that the Supreme Court or any justice thereof shall have power to issue writs of habeas corpus where a person is restrained of his liberty by virtue of any order of a court or judge issued in a civil cause. The effect of these constitutional and statutory provisions, as the writer understands them, is that the Court of Criminal Appeals is vested with authority to issue writs of habeas corpus in all cases where a person is illegally restrained of his liberty, and that the act of the Legislature vesting in the Supreme Court authority to issue such writs where restraint grows out of a civil case gives the Supreme Court concurrent jurisdiction with the Court of Criminal Appeals in such cases. This, we understand, is the construction placed upon the statute by the Supreme Court; at least such is the intimation in Ex parte Allison, 99 Tex. 464, 90 S. W. 870, 2 L. R. A. (N. S.) 1111, 122 Am. St. Rep. 653. It is also in harmony with the conclusion reached by this court in Ex parte Allison, 48 Tex. Cr. R. 635, 90 S. W. 492, 3 L. R. A. (N. S.) 622, 13 Ann. Cas. 684.

It does not follow that the Court of Criminal Appeals will exercise its jurisdiction by granting a writ in every application for writ of habeas corpus. The contrary policy has been declared and made necessary; and, generally speaking, it will not issue original writs of habeas corpus in cases where other courts have jurisdiction to do so. Ex parte McKay, 199 S. W. 637, and cases cited. This is because primarily the functions of the Court of Criminal Appeals are appellate, and it is much more expedient that habeas corpus questions be determined by the district courts where they have jurisdiction subject to review on appeal to this court. Upon the same principle this court will refrain from issuing writs of habeas corpus against restraint under orders in a civil case because it is more orderly and expedient that the Supreme Court should pass upon such habeas corpus proceedings as are placed within its jurisdiction by the statute mentioned above. So in a contempt proceeding where it appears that it grows out of an alleged failure to observe an order in a civil cause this court will refuse to grant the writ relegating the party to his remedy in the Supreme Court.

This procedure would have been followed in the instant case except for the fact that when the application was presented it did not contain a copy of the order or process under which the relator was held, but stated that it could not be obtained. This was in accord with article 174, C. C. P., which prescribes the requisites of a petition for a writ of habeas corpus. Since the record has been brought here it is apparent that it does grow out of an order in a civil cause, and it ought to have been presented to the Supreme Court, but the writ having been issued under the circumstances mentioned it appears to be the duty of this court to decide the question raised.

The facts show that the relator is an officer in a corporation known as La Union Fraternal, domiciled in El Paso county, Tex.; that it formerly operated at the town of Ysleta, in that county, but at the time the transaction involved in this proceeding occurred it was operating in the city of El Paso in the same county. On the 20th day of July, 1916, a suit was filed against it and against relator, who was one of its officers, which suit was prosecuted to judgment, from which we take the following excerpt:

"It is therefore ordered, adjudged, and decreed that the writ of injunction as prayed for in plaintiff's original petition filed herein the 20th day of July, A. D. 1916, be granted, and that the defendant, La Union Fraternal a corporation, and its officers, agents, servants, and employés, and Ike Alderete, be and are hereby perpetually enjoined and restrained from using the premises of said club, or any part thereof, for the purpose of selling spirituous, vinous, and malt liquors, or either of them, and from keeping for sale therein spirituous, vinous, or malt liquors, and from using the stock, means, assets, and property of the said La Union Fraternal, a corporation, for...