Legate v. Legate

• Court: Texas Supreme Court
• Writing for the Court: Denman
• Citation: Legate v. Legate, 28 S.W. 281, 87 Tex. 248 (Tex. 1894)
• Decision Date: 29 October 1894
• Parties: LEGATE v. LEGATE.

28 S.W. 281

LEGATE v. LEGATE.

Supreme Court of Texas.

October 29, 1894.

Certified questions from court of civil appeals of Fifth supreme judicial district.

Habeas corpus by Hattie Legate, by her next friend, against R. S. Legate, for the custody of plaintiff's minor child. Judgment for defendant, and plaintiff appealed to the court of civil appeals, which certified certain questions to the supreme court.

H. P. Teague, for appellant. Decker & Harris, for appellee.

DENMAN, J.

In this cause the court of civil appeals, Fifth supreme judicial district, has certified to this court for decision the following questions, to wit: (1) "Where the father and mother have voluntarily relinquished the custody of their infant daughter to another, and desire to resume the custody of the child, has the district court, under our amended constitution, upon the application of the father, as next friend of the child, jurisdiction to issue the writ of habeas corpus, and to determine in that proceeding to whom the custody of the child rightfully belongs?" (2) "Is such proceeding by habeas corpus a civil case, within the meaning of the constitution and statute conferring jurisdiction upon this court, of which this court can take jurisdiction on appeal?" (3) "Where the father and mother have, by written agreement, fully and finally relinquished their right to the custody of their infant daughter, three months old, in favor of another, at a time when the mother was unable to give proper attention to the child, on account of illness from which she was expected to die, and the child has been formally adopted by the person to whom such custody was given, and where, on habeas corpus trial, it is shown that the person having custody of the child is in every respect qualified to care for the child and provide for it, and it is also shown that the father and mother are also qualified in every way to care for and raise the child, should the child, after it had been cared for tenderly and lovingly for nearly two years by its foster parents, be taken from their custody, and given over to the custody of the natural father and mother?"

The constitution of 1876, art. 5, § 8, declared that the district "courts and the judges thereof shall have power to issue writs of habeas corpus in felony cases, mandamus, injunction, certiorari and all other writs necessary to enforce their jurisdiction." This clause expressly conferred and impliedly limited the jurisdiction of the district court, in the issuance of original writs of habeas corpus, to felony cases, such limitation resulting from the use of the words "in felony cases." Said section of the constitution, as amended and now in force, uses the exact language above quoted, with the exception of the words "in felony cases," which are omitted. This omission evidences a purpose of conferring upon the district court jurisdiction to issue original writs of habeas corpus in all cases where such writs are proper remedies under the established rules of law, whether such cases be of a civil or criminal nature. The writ of habeas corpus has long been resorted to as the proper proceeding in order to determine whether a minor is unlawfully restrained of his liberty; and when, by means of such writ, a minor of such tender years as to be lacking in discretion has been brought before the court, it has not only inquired into and relieved against the unlawful restraint, if any, but has, in addition, or perhaps as a necessary incident, determined to whom the custody of the minor rightfully belonged. We therefore answer in the affirmative both propositions involved in the first question above.

Under the present constitution and laws, appeals from the district court lie, in civil cases, to the court of civil appeals, and in criminal cases to the court of criminal appeals. It is therefore important, in case of appeal from a judgment of a district court in a habeas corpus proceeding, to determine whether the case be of a criminal or civil nature, in order to make the appeal returnable to the proper court. The purpose of the writ of habeas corpus is to inquire into and remove any unlawful restraint upon the liberty of a person. If, in this proceeding, it appears that such person is restrained by reason of his supposed violation of some criminal law or quasi criminal law, as an offense against the person, or contempt of court, then the proceeding must be classed as a criminal case, although upon the whole case the court should be of opinion that the act for which such person is detained does not constitute a violation of such law, or that the evidence is totally insufficient to establish the act, or that the supposed law does not exist, or is void; but, if such person is not restrained by reason of some supposed...