Ex Parte Genecov

• Decision Date: 14 March 1945
• Docket Number: No. A-462.,A-462.
• Citation: 186 S.W.2d 225
• Parties: Ex parte GENECOV.
• Court: Texas Supreme Court

Page 225

186 S.W.2d 225

Ex parte GENECOV.

No. A-462.

Supreme Court of Texas.

March 14, 1945.

Rehearing Denied April 11, 1945.

Original proceeding in habeas corpus on the relation of A. S. Genecov to obtain release from custody under an order of the district court adjudging relator to be in contempt of court and a commitment issued in pursuance thereof.

Relator ordered remanded to custody.

Manuel Hoppenstein, R. D. Hardy, and Gabe P. Allen, all of Dallas, for petitioner.

Grover Sellers, Atty. Gen., and Holman Jenkins and Benjamin Woodall, Asst. Attys. Gen., for respondent.

HICKMAN, Commissioner.

By this original habeas corpus proceeding A. S. Genecov seeks release from an order of the District Court of the 116th district, Dallas County, adjudging him to be in contempt of court and a commitment issued in pursuance thereof. Upon a motion in contempt charging thirty-six separate, distinct and specific violations of an injunction theretofore issued by the court forbidding the relator and others from discharging or depositing salt water or other polluting substances produced or flowing from oil wells into the Neches or Angelina rivers or any of their tributaries, the trial judge found relator guilty of thirty of such violations extending over a period of about nine months and fixed his punishment at a fine of $50.00 and one day's imprisonment for each violation, aggregating a total punishment of a fine of $1500 and imprisonment for thirty days.

In this opinion only those points relied upon which bring into question the jurisdiction of the court to enter the order will be considered. Those points questioning the evidence or the motives and purposes back of the proceeding will not be dealt with. This for the reason that a writ of habeas corpus is not a writ of review. It is but a collateral attack upon the judgment from which relief is sought and cannot be made to take the place of an appeal or writ of error. Our function is to determine whether, in the issuance of the contempt order, the principles of due process were observed, which includes the question of jurisdiction of the trial court to enter the order. As stated in Ex parte Duncan, 127 Tex. 507, 95 S.W.2d 675, 679:

"* * * In order to obtain relief from the order of contempt entered herein, it must be shown that the order or writ of commitment is absolutely void, and such voidness must rest solely on the lack of jurisdiction. Ex parte Lee , 93 S.W.2d 720; Ex parte Kimberlin , 86 S.W.2d 717; Ex parte Testard, 101 Tex. 250, 106 S.W. 319 . See, also, 29 C.J., pp. 24 to 29, §§ 18 and 19, and cases cited in notes."

In Ex parte Lipscomb, 111 Tex. 409, 239 S.W. 1101, 1104, the functions and powers of this court in a habeas corpus proceeding are summed up in this language:

"* * * We are in no sense exercising an appellate jurisdiction, but are simply determining, in the exercise of our original jurisdiction, whether or not a citizen is restrained of his liberty without due process; by which is meant whether or not his restraint is the result of a hearing before a competent tribunal, having jurisdiction of the subject-matter, after notice, and an opportunity to be heard. If the elements of due process are not present, then our jurisdiction attaches and the relator may be released from custody. If all are present, then our inquiry ends. * * *."

In the light of these limitations upon our authority we consider the points relied upon. The first two of such points will be considered together. They are as follows:

"1. Because the 116th District Court did not have jurisdiction to render the judgment in contempt in question, in that the fine of $1,500.00 and thirty days in jail as assessed against the relator were beyond the jurisdiction and power of the court to impose."

"2. Because the 116th District Court did not have the authority to divide one contempt, if one were shown, into thirty separate and distinct contempts under one motion for contempt and on one affidavit."

The power of a district court to punish for contempt is regulated by Article 1911, R.S.1925, which reads as follows:

"The district court may punish any person guilty of contempt of such court by fine not exceeding one hundred dollars, and by imprisonment not exceeding three days."

It would hardly be contended that after a court has punished a party to the limit of the statute for a violation of its injunction and such party has paid the penalty imposed upon him, he could thereafter violate the injunction with impunity and the court would be powerless to punish him therefor. Obviously, the statute places no such limitation upon the power of a district court. Neither could it reasonably be contended that the trial court could divide one contemptuous act into thirty separate acts and assess the maximum punishment provided by statute for each of such acts. Had the relator been charged with but one continuous act of polluting the streams, and had the court concluded that each day or each hour of his violation constituted a separate and distinct contemptuous act, relator's points would be well taken. But that is not the case presented. The motion upon which the contempt order was entered charged the relator, along with others, with thirty-six separate, distinct and independent violations of the injunction in the operation of several leases and the trial court, after a hearing, sustained thirty of such charges, finding in favor of relator on the other six. With particularity the order describes each and every act of which relator was found to be guilty and the punishment assessed against him was a fine of $50...