Ex Parte Villafranca

• Decision Date: 11 October 1944
• Docket Number: No. 22966.,22966.
• Citation: 183 S.W.2d 461
• Parties: Ex parte VILLAFRANCA.
• Court: Texas Court of Criminal Appeals

183 S.W.2d 461

Ex parte VILLAFRANCA.

No. 22966.

Court of Criminal Appeals of Texas.

October 11, 1944.

Rehearing Denied November 22, 1944.

Commissioners' Decision.

Appeal from County Court at Law, Cameron County; Bascom Cox, Judge.

Habeas corpus proceeding by Emma Cavazos Villafranca for discharge from restraint and arrest under an order of a justice of the peace. From an order denying the relief prayed and remanding relator to the justice's custody, relator appeals.

Reversed, and relator ordered discharged.

Ronald Smallwood, of Harlingen, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

On July 27, 1944, and after hearing, a Justice of the Peace of Cameron County placed relator under a peace bond by the following order:

"It is therefore ordered that the said Emma Cavazos is hereby ordered to make a peace bond in the sum of One Hundred Dollars, conditioned as according to law, and that she will keep the peace for one year and in lieu of said bond, that the said Emma Cavazos be committed to jail."

On the same day, relator executed the required peace bond, with Ernesto Villafranca and S. Longoria as sureties.

Three days thereafter, or on the 30th day of July, 1944, the justice of the peace entered the following order:

"This day Ernesto Villafranca and S. Longoria, bondsmen, brought Emma Cavazos into Court and surrendered her and asked to be taken off of her bond. She is however put under arrest and permitted to go at liberty in Harlingen, Texas, under control of the Court from day to day until another bond is made and approved of." (Emphasis ours)

By writ of habeas corpus before the County Judge of Cameron County, relator sought her discharge from the "restraint and arrest under which she is now held by said Justice of the Peace" under said order.

After hearing, the relief prayed for was denied and relator was remanded to the custody of the justice of the peace. From this order, she appeals. The record does not reflect that relator has made another bond.

Relator takes the position that the order of the justice of the peace constitutes constructive restraint and custody from which she was entitled to be discharged because the facts were insufficient to require the giving of a peace bond.

It is true that one may, by writ of habeas corpus, be released from constructive, as well as actual, custody, arrest, or restraint (Branch's P.C., Sec. 240; Ex parte Snodgrass, 43 Tex.Cr.R. 359, 65 S.W. 1061; Ex parte Foster, 44 Tex.Cr.R. 423, 71 S.W. 593, 60 L.R.A. 631, 100 Am.St.Rep. 871; Ex parte Calhoun, 127 Tex. 54, 91 S. W.2d...