Ex Parte Zuccaro

• Decision Date: 28 January 1914
• Citation: 163 S.W. 579
• Parties: Ex parte ZUCCARO.
• Court: Texas Supreme Court

163 S.W. 579

Ex parte ZUCCARO.

Supreme Court of Texas.

January 28, 1914.

Original proceedings on habeas corpus by Andrew Zuccaro against W. M. Rea, Sheriff of Tarrant County. Relator discharged.

See, also, 162 S. W. 844.

Wray & Mayer and Baskin, Dodge & Eastus, all of Ft. Worth, for relator.

PHILLIPS, J.

The writ of habeas corpus was issued in this proceeding upon the application of the relator complaining that he was restrained of his liberty by the sheriff of Tarrant county in virtue of a commitment issued out of the district court of that county upon a judgment convicting him of contempt of court in disobeying an injunction previously issued.

On January 27, 1912, the county attorney of Tarrant county instituted in the Sixty-Seventh district court of that county an injunction suit in behalf of the state of Texas against the relator and others, praying for the issuance of a temporary restraining order enjoining the defendants from opening, or permitting to be opened, for amusement their theaters and moving picture shows on Sunday; that the cause be set down for hearing; and that upon final hearing the temporary restraining order be made permanent. The petition was presented on the same day to the Honorable W. T. Simmons, judge of the court, who thereupon indorsed thereon the following fiat: "Petition granted and clerk of district court of Tarrant county, Tex., directed to issue and direct to each and every defendant named in this petition an order enjoining, restraining, and prohibiting them and each of them from opening or permitting to be open their theaters and moving picture shows, respectively, on Sunday, for public amusement, from giving therein any performances for public amusement, and from charging a fee for admission thereto or from doing any of said acts until further orders of this court. This cause set down for hearing Saturday, February 3, 1912, at 2 o'clock p. m., and clerk directed to issue notice hereof to defendants and each of them." A notice as provided in the fiat was issued and served upon the relator but it appears that no other process has ever been issued in the cause.

On November 24, 1913, the Honorable Marvin H. Brown, judge of the court referred to, without any motion or complaint charging the relator with a violation of the alleged injunction, issued an order to the clerk of the court to cite the relator, among others, for contempt of the court for violation of this injunction. Upon hearing, the relator was adjudged in contempt, a fine assessed against him, together with imprisonment in the county jail for three days and until the fine should be paid. The relator has previously presented his petition for the writ to the honorable Court of Criminal Appeals, which declined to entertain it upon jurisdictional grounds, whereupon, on application to this court, our...