Ex Parte Kelly
| Decision Date | 07 November 1928 |
| Docket Number | (No. 11814.) |
| Citation | 10 S.W.2d 728 |
| Parties | Ex parte KELLY. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
Habeas corpus proceeding by A. R. Kelly. From a judgment remanding relator to the custody of the sheriff of Nueces county until a certain fine and costs were paid, relator appeals. Reversed, and relator ordered discharged.
E. B. Ward and S. Eldon Dyer, both of Corpus Christi, for appellant.
A. A. Dawson, State's Atty., of Austin, for the State.
This is an appeal from a judgment of the district court of Nueces county, remanding relator to the custody of the sheriff of Nueces county until the fine and costs assessed against him in justice court of said county were fully paid.
From the record it appears that relator was tried in the justice court of Nueces county, and a judgment of conviction entered against him, assessing a fine of $1 and all costs, the total of which amounted to $23.35. Included among the costs was an item of $3.85 for the justice of the peace before whom relator was tried, and who found him guilty and entered the judgment aforesaid. Relator refused to pay such fine and costs, claiming that the justice of the peace before whom he was tried was disqualified, and that his conviction was in violation of both the United States Constitution and our state Constitution. This question he presented to the district court of Nueces county on the habeas corpus hearing, with the result aforesaid.
This record presents the question pointedly as to whether or not a justice of the peace in Texas, who receives fees if a judgment of conviction is entered, but none otherwise, is disqualified under article 5, § 11, of our state Constitution, which contains the provision: "No judge shall sit in any case wherein he may be interested."
The further question is presented as to whether relator has been unconstitutionally deprived of "due process of law," as expressed in the Fourteenth Amendment to the United States Constitution, by being subjected to a judgment depriving him of his liberty by a judicial officer who receives remuneration for his services only if a judgment of conviction is entered. Article 552, C. C. P., provides:
"No judge or justice of the peace shall sit in any case where he may be the party injured, or where he has been of counsel for the state or the accused, or where the accused or the party injured may be connected with him by consanguinity or affinity within the third degree."
The quoted portion of article 5, § 11, of our state Constitution is not included within the terms of article 552, C. C. P. It hardly seems necessary to state that the provisions of the Constitution control. Justices of the peace, under the terms of article 1066, C. C. P., are allowed the fees therein specified in criminal actions tried before them, to be collected of the defendant in case of his conviction. The statute makes no other provision for his compensation. Title 11, arts. 879 to 920, C. C. P., inclusive, relate to the duties of justices of the peace and the trial of cases in their courts. Among these we note the following: That the justice of the peace shall examine the witnesses if the state is not represented by counsel, that the rules of evidence which govern in the trial of cases in the district court shall apply to actions in justice courts, and that the justice may grant only one new trial to the accused. Other provisions of the Code of Criminal Procedure authorize an appeal to the county court from convictions in justice court, but limit the further appeal to the Court of Criminal Appeals to those cases where the fine imposed exceeds $100. Article 53, C. C. P.
It thus appears that the liberty of our citizens is subjected to the judgment of a court who is paid only if they are found guilty, who may take the place of the public prosecutor in the development of the evidence, who is inhibited from righting over one miscarriage of justice in his court, and whose judgments are not subject to review by this court unless the fine imposed in the county court upon appeal exceeds $100. While the statute allows a jury trial, it places in the power of the justice of the peace the right to control the introduction of evidence, including the right to rule on the relevancy and materiality of...
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Borchert, Application of
...said that none of the circumstances present in the Tumey case were then before the court. But nine months later, in Ex parte Kelly, 111 Tex.Cr.R. 54, 10 S.W.2d 728, 729, when the question was presented, the court held the fee justice court system of that state unconstitutional and said of t......
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Ex Parte Largent
...case or matter to be adjudicated so that the result must, necessarily, affect his personal or pecuniary loss or gain. Ex parte Kelly, 111 Tex.Cr.R. 54, 10 S.W.2d 728; Hubbard v. Hamilton County, 113 Tex. 547, 261 S.W. 990; Richardson v. State, 109 Tex.Cr.R. 148, 4 S.W. 2d 79; Tumey v. Ohio,......
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Roberts v. Noel
...the West Virginia 'statutory system of compensating justices.' Similar holdings have been made in Texas and in Oklahoma. Ex parte Kelly, 111 Tex.Cr.R. 54, 10 S.W.2d 728; State ex rel. Dabney v. Ledbetter, 156 Okl. 23, 9 P.2d 728. There are federal court decisions to the same effect. Ex part......
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Chamberlain v. State
...case or matter to be adjudicated so that the result must, necessarily, affect his personal or pecuniary loss or gain. Ex parte Kelly, 111 Tex.Cr.R. 54, 10 S.W.2d 728; Hubbard v. Hamilton County, 113 Tex. 547, 261 S.W. 990; Richardson v. State, 109 Tex.Cr.R. 148, 4 S.W.2d 79; Tumey v. Ohio, ......