Ex parte Jimenez

• Decision Date: 22 October 1958
• Docket Number: No. A-6919,A-6919
• Parties: Ex parte A. H. JIMENEZ and Juan M. Puente.
• Court: Texas Supreme Court

Page 189

317 S.W.2d 189

159 Tex. 183

Ex parte A. H. JIMENEZ and Juan M. Puente.

No. A-6919.

Supreme Court of Texas.

Oct. 22, 1958.

Rehearing Denied Nov. 19, 1958.

John G. Hornberger, J. E. Fitzgibbons, Gordon Gibson, Laredo, Josh H. Groce, San Antonio, for relators.

E. James Kazen, Dist. Atty., Laredo, for respondent.

GARWOOD, Justice.

The relators, A. H. Jimenez, who is the Chief of Detectives of the City of Laredo police force, and Juan M. Puente, a detective on said force, seek relief by original habeas corpus in this Court, alleging that they are illegally restrained by the sheriff of Webb County. The restraint is due to an allegedly void contempt judgment of the acting judge of the 49th Judicial District Court purportedly rendered pursuant to Art. 9.02 of the Texas Election Code (Vol. 9, Vernon's Tex.Civ.Stats.) on account of the refusal of relators to testify in a Court of Enquiry held before said judge in said county under said statute.

The application followed an unsuccessful one made to the Court of Criminal Appeals, which released the relators on bail but later remanded them to custody on various grounds not here relevant. We also granted bail pending our final action on the writ (order to the sheriff to show cause), and there has now been held a full hearing upon briefs, oral argument, the record of the Court of Enquiry and sundry jurisdictional affidavits.

The proceeding has developed to be somewhat unusual. The District Attorney of Webb County, who initiated the Court of Enquiry, subpoenaed and sought to question the relators, moved the judge to commit them for contempt, and is the only party besides the relators to appear in the instant proceeding, has himself asserted in oral argument and briefs that the relators, if restrained at all when we issued the writ (which he seeks to show by affidavits filed in this Court that they were not), were, indeed, unlawfully restrained at that time, and should be released, because the commitment order or capias of the District Clerk, issued pursuant to the contempt judgment, became functus officio after the relators were first 'released' on bail by the Court of Criminal Appeals. In other words, he openly concedes that the relators should be released. On the other hand, counsel for the relators, while necessarily agreeing that relators should be released, yet appear to oppose their release unless it be granted on one or more of the grounds advanced by themselves. The situation is somewhat reminiscent of the celebrated case of Ex parte Rodriguez, 39 Tex. 705.

Although a primary ground presented to the Court of Criminal Appeals was that the contempt judgment violated the privilege of relators against self incrimination (Art. I, Sec. 10, State Const., Vernon's Ann.St.), that ground was not even urged upon the formal oral argument before this Supreme Court and, indeed, counsel for relators have in a 'foreword' to one of their briefs intimated that the point is not well taken. Considering this, and the fact that, on the record, it is at least quite doubtful that relators claimed and, if claiming, did not waive, their privilege, we consider that this question is not in the case and will therefore not discuss it further. Relators have, however, at all times urged that Art. 9.02, supra, is unconstitutional and inoperative because of insufficiency of the caption of the bill enacting the Election Code and sundry other reasons; that the Court of Enquiry was in no event validly constituted, that (wholly aside from the matter of self incrimination) the general refusal of the relators to testify was inadequate as a basis for adjudging them to be in contempt, and that two separate statutes with conflicting penalty provisions purport to govern the situation of the relators, with the result that no penalty at all is provided for their alleged contempt.

The Attorney General of Texas has filed an amicus curiae brief upholding the validity of Art. 9.02, supra.

At the outset, the mere fact that the District Attorney himself agrees that the relators should be released, does not, in our opinion, justify us in releasing them. In other words, the District Attorney has no more authority to concede away a judgment of contempt than he would have had to render one in the first place. Of course, if the reason for his consent were sound in law, we ourselves would release them; but we would do so because of the reason rather than the consent, and we do not consider the reason to be sound.

The question about the capias or commitment order is not the same as that of whether the relators were under actual restraint at the time our show cause order issued. The fact that the document had become functus officio, if it had, does not mean that they were not under restraint in fact; and, as hereinafter explained, we think we must assume that they were. So assuming, we do not consider, and are cited to no authority requiring us to hold, that the restraint was illegal in the absence of a new capias. The release of the relators on bail by the Court of Criminal Appeals was a mere temporary or conditional release; and in such a situation no statutory or constitutional provision that we know of requires new formalities as prerequisite to valid restraint. The ultimate judgment of that court denying them relief adequately evidenced a judicial requirement that they be returned to custody; and it, together with the original capias, constituted sufficient formality for again restraining their liberty either by keeping them in confinement upon a voluntary surrender of their persons or forcibly seizing and confining them.

As to whether the relators were in actual custody when we issued our writ, a confusing mass of affidavits pro and con has been filed. However, it being beyond question that relators were adjudged to be in contempt, were originally taken into actual custody under a commitment issued pursuant to the judgment, and would normally have been taken back into custody following dismissal of their first habeas corpus proceeding, we conclude that we must honor their sworn statement and that of the sheriff to the effect that they were under actual restraint when our writ issued.

The contention that Art. 9.02 is invalid under Art. III, Sec. 35 of the State Constitution for deficiency of the caption of the corresponding act is without merit. The act was adopted in 1951 and self-styled in the enacting clause as 'the Election Code of the State of Texas'. See Gen. and Spec. Laws, 52nd Legis., Reg.Sess., 1951, Chap. 492; Vernon's, Vol. 9, supra. Its approximately 100 printed pages and 250 separate sections supplant nearly all of the complicated mass of statutes theretofore governing the election process and, like the bride's wedding raiment, almost necessarily include 'something old, something new, something borrowed, something blue'. In writing the caption, the authors pursued the sensible, if not the only possible, course, making it brief and general rather than extensive and particularized. Even so, it is more elaborate than the caption of the similar and far larger enactment known as the Revised Civil Statutes of 1925, which read merely, 'A Bill to be entitled 'An Act to Adopt and Establish the 'Revised Civil Statutes of the State of Texas".' The instant caption reads:

'An Act to adopt and establish an election code for the State of Texas, to revise and recodify Title 50 of the Revised Civil Statutes of 1925 of Texas, and all amendments thereto, to repeal all Acts in conflict herewith, provided, however, that nothing in this Act shall be construed as repealing or in any way affecting the legality of any penal provision of the existing law, and further provided that nothing in this Act shall in anywise alter, amend, or repeal House Bill No. 43, Acts, Regular Session, Fifty-second Legislature; providing a saving clause; providing an appropriation; providing the effective date; and declaring an emergency.'

The alleged deficiency in the foregoing is that, unlike the caption involved in our recent decision in Shannon v. Rogers, Tex., 314 S.W.2d 810, it makes no specific reference to the provision in question contained in the act itself, and that provision being nongermane to the general subject stated in the caption, the latter does not adequately inform the caption reader as to the contents of the act or bill.

The question is somewhat similar to that involved in Board of Water Engineers v. City of San Antonio, 155 Tex. 111, 283 S.W.2d 722, 725, in which we held that a general caption reference, Acts 1941, c. 407 to 'An Act amending Sections 1 and 2' of an existing law, while sufficient as to any provision in the amendatory act that could be considered germane to the subject matter of the old sections said to be amended, was inadequate in the particular case, because the provision of the amendatory act was not so germane. The sections of the original law dealt with the general subject of organization and corporate powers of water supply corporations, while the provision of the amendatory act held invalid prohibited the withdrawal of 'any water from the Guadalupe River or Comal River * * * for the purpose of transporting such water to any point or points located outside of the natural watersheds of such rivers'. Vernon's Ann.Civ.St. art. 1434a, § 1-a. Actually, in such cases, the real question is often not whether the caption adequately refers to the provision of the act under attack, but whether the act itself, even with a perfect caption, does not violate the first requirement of the same constitutional section that 'No bill * * * shall contain more than one subject'.

But Art. 9.02, supra, does not violate either the latter provision nor the one requiring that the subject be 'expressed in its title'. Since the legislature undoubtedly has as much power to enact a code as it does a single law of narrowest scope, and since any sort of 'code' necessarily involves many different kinds of...