Ex Parte Houston

• Decision Date: 25 February 1920
• Docket Number: (No. 5734.)
• Citation: 219 S.W. 826
• Parties: Ex parte HOUSTON.
• Court: Texas Court of Criminal Appeals

Page 826

219 S.W. 826

Ex parte HOUSTON.

(No. 5734.)

Court of Criminal Appeals of Texas.

February 25, 1920.

Rehearing Denied, March 24, 1920.

Original proceedings by Lucile Houston for writ of habeas corpus. Application dismissed.

W. C. Linden, of San Antonio, for appellant.

W. S. Anthony, Asst. Dist. Atty., of San Antonio, and Alvin M. Owsley, Asst. Atty. Gen., for the State.

MORROW, J.

In an injunction suit filed in the district court, Thirty-seventh judicial district, the relator in this case was enjoined from knowingly permitting to be used, aiding, abetting, or assisting, directly or indirectly, the use, operation, or conduct of certain premises described in the judgment as a bawdy or disorderly house, or being interested in the operation or keeping of same.

It appears that preliminary to granting the injunction, a jury was impaneled, and to this jury there was submitted the question whether the allegations of the plaintiff in the injunction suit had been sustained, and upon their affirmative answer the judgment was rendered. Subsequently, a motion was made to hold the relator for a violation of the injunction. On the hearing of the contempt proceedings, after the state had finished its testimony, the relator demanded a jury, she having not previously expressly waived one. This request was denied by the trial judge, and judgment entered, finding the relator guilty of contempt, and assessing a penalty of a fine of $100 and imprisonment for three days in the county jail. Discharge from the process issued on this order is sought on the ground that the judgment of contempt is void, in that it was rendered by the court in a proceeding in which the relator had demanded and been denied a trial by jury.

The writ under which relator is restrained is one issued by virtue of an order of the district court of the Thirty-Seventh judicial district of the state in a civil case, a case in which the state of Texas sought and obtained, after trial by jury, a judgment in injunction proceedings, commanding the relator to abstain from doing certain things. She, it appears, disobeyed the order, and was cited and held in contempt. To obtain relief by habeas corpus from an order of this nature, application should be made to the Supreme Court. This subject was discussed by us in Ex parte Alderete, 203 S. W. 764, as follows:

"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. ...