Ex Parte Benson, 24639.

• Decision Date: 02 November 1949
• Docket Number: No. 24639.,24639.
• Citation: 223 S.W.2d 934
• Parties: Ex parte BENSON.
• Court: Texas Court of Criminal Appeals

Page 934

223 S.W.2d 934

Ex parte BENSON.

No. 24639.

Court of Criminal Appeals of Texas.

November 2, 1949.

None on appeal.

George P. Blackburn, State's Atty., Austin, for the State.

BEAUCHAMP, Judge.

Appellant, a convict in the State Penitentiary, brought this proceeding in the District Court of Denton County to secure his release. Upon considering the application the District Judge granted the writ and then issued his order certifying the same to the Court of Criminal Appeals for further procedure. Had the application been in compliance with the statutory requirements, this would have been the proper order and his sole authority under Article 119, C.C.P., Vernon's Ann.C.C.P. art. 119, next to the closing paragraph of which reads, "After conviction the procedure outlined in this Act shall be exclusive and any other proceeding shall be void and of no force and effect in discharging the prisoner."

In the same order in which he granted the writ and directed that the matter be certified to the Court of Criminal Appeals, the judge also set out that the conviction was in Bexar County; that all of the witnesses resided there; and he further ordered the matter transferred to Bexar County for the purpose of hearing the evidence. The papers were sent to that court, the evidence taken, and the district judge hearing the same then issued his order of date September 29, 1949, in which he said: "The court is of the opinion that the said application should be refused." The notice of appeal was recorded and Benson was remanded to the custody of the authorities of the State Penitentiary pending the appeal.

Under his general powers, a district judge may issue a writ of habeas corpus or decline to do so, and it is largely a matter within his discretion, even when the application complies with the statute. In cases like the one before us, coming after conviction, the law as to the power of the district judge to grant the writ may not be different but the procedure thereafter is.

The District Judge of Denton County was evidently attempting to follow Ex parte Massey, 149 Tex.Cr.R. 172, 191 S.W.2d 877, in which a very similar procedure was taken and the matter was considered by this court. We call attention to the following excerpt from that opinion, 191 S.W.2d at page 878: "The writ having already been granted, (by the Judge of Walker County) the proper proceeding would have been for the District Judge in San Jacinto County to have ascertained the facts and certified them to this court with the application in compliance with the Act of the 48th Legislature, Ch. 233, p. 354, Vernon's Ann.C.C.P. Art. 119, requiring the writ to be made returnable to the Court of Criminal Appeals after conviction in felony cases." (The statement that the proper procedure would have been for the District Judge of San Jacinto County to have ascertained the facts and certified them to this court is not always correct. It is correct if this court directs him to take the evidence, or if the petition has been filed with him originally.)

It was there considered that the order of of the District Judge of Walker County brought the matter to this court....