Ex Parte Kearby and Hawkins
34 S.W. 635
Tex. Crim. App.
1896
Check Treatment
HENDERSON, Judge.

Applicants in this case applied for writs of habeas corpus, and one of the judges of this court granted the same, making the writs returnable before the full court, which is now in ses *538 sion at this place. The applicants allege that the matter about which the judge of the Criminal District Court assumed to imprison them for contempt occurred during the trial of a cause in said District Court. It is averred in the application that the parties did no unlawful act in said court, and were guilty of no contempt of said court in any respect whatsoever, and that the said District Judge, unlawfully and without cause therefor, remanded them to jail, until they should purge themselves of said contempt before said court and jury; that no order of the court was entered, and no writ of commitment issued from said court. Applicants claim that the order of imprisonment is for an indefinite time, and is therefore void; and that it is also void, because no judgment of the court was entered against them, and no writ of commitment was issued as against them. The applicant, Hawkins, further shows that he made an effort to purge himself of contempt of said court by either a written or verbal explanation or apology, which was refused by the judge. The Attorney General has moved to dismiss the writ and remand the relators to jail, because this court has no jurisdiction to inquire into the matter of their detention. This question involves the power of this .court to-inquire, by an original proceeding, into the legality of a detention by a court of subordinate jurisdiction for an alleged contempt. It is admitted that this presents a question of.some delicacy, for in the power of courts to preserve order and decorum in their presence is involved, to a great extent, the authority and dignity of the court itself; and therefore any court that should undertake to interfere with such jurisdiction ought to act with due care and caution to ascertain whether or not it has jurisdiction to entertain the writ. Although this is not a new question in this-State (see, Ex Parte Degener, 30 Tex. Crim. App., 566), yet we have-undertaken to carefully investigate our right to interfere in the present instance. Art. 155, Code Grim. Proc., provides “that the Court of Appeals, or either of the judges thereof, the District Courts or any of the judges thereof; the County Court or any of the judges thereof, have-power to issue the writ of habeas corpus, and it is their duty upon proper application to grant the writ, under the rules herein prescribed.” Article-154 says: “That every provision relating to the writ of habeas corpus shall be most favorably construed, in order to give effect to the remedy and protect the rights of the person seeking relief under it.” Article 173 reads as follows: “The writ of habeas corpus is intended to be applicable to all such cases of confinement and restraint where there is no lawful right in the person exercising the power, or where, though the power in fact exists, it is exercised in a manner or degree not sanctioned by law.” Article-165 also provides: “The writ of habeas corpus shall be granted without delay by the judge or court receiving the petition, unless it be manifest by the statements of the petition itself, or some document annexed to it, that the party is entitled to no relief whatever.” These statutes would appear to clothe this court with ample authority to, at least, issue the writ in almost any conceivable case. The case here charged is a contempt of court. At the granting of the writ, no judgment was entered,, *539 but the officer was directed to coniine the parties in jail for an indefinite period of time. ‘Furthermore, no writ of commitment was issued. Both of these steps should have been taken. As" we understand it, the weight of authority requires, on the ¡3art of the court, that it should find the factum of contempt. See, 4 Enc. PI. & Prac., p. 798; Ex parte O’Brien (Mo.), 30 S. W. Rep., 158; Ex parte Robertson, 27 Tex. Crim. App., 634. And, following this in regularity, there should be an order of commitment. See Ex parte Robertson, 27 Tex. Crim. App., 634; citing, Ex parte Burford, 1 Cranch, C. C., 456, Fed.Cas. No. 2149. Both by reason and authority, we hold that no court, under our system of government, should be authorized to imprison a citizen for a contempt, unless, at the very time he is so committed, the proper order is made and entered, and the writ of commitment issued for the purpose of his detention. This we understand, in this resjiect, to be due course of law. Nor, in our opinion, is it competent for any court, unless such steps are taken, for it, after a party detained under its verbal orders has sued out a writ of habeas corpus, to then make its judgment, and have the same entered, and in this manner supersede .the jurisdiction of the court granting the writ. See, Art. 182, Rev. Code Crim. Proc., which provides: “When the return of the writ has been made, and the applicant brought before the court, he is no longer detained on the original warrant of process, but under the authority of the habeas corpus; and the safe keeping of the prisoner, pending the examination or hearing, is entirely under the direction and authority of the judge or court issuing the writ, or to which the return is made.” But concede, in this case, that the District Judge had authority by mere verbal order to cause the imprisonment of the applicants, still it was his duty, in the sentence imposed, not to exceed the bounds authorized by law for the punishment of parties in contempt. Art. 262, Rev. Civ. Stat., authorizes courts to punish “attomeys-at-law for misbehavior or contempt, by fine or imprisonment.” It is true there is no limitation in this article, but Article 1101 limits the extent of the power of the District Judge in this respect, and says, “that he shall be authorized to punish persons guilty of contempt by fine not exceeding one hundred dollars, and by imprisonment not exceeding three days.” This clearly applies to all persons, and creates a limitation upon the District Court to punish any one to a greater extent. The verbal order, as it comes before us on the face of the writs, is without limitation as to time. The order above referred to, which was entered subsequently (after the verbal order), undertakes to confine them until they purge themselves. What the judge meant by this expression we are not informed. The answer of one of the applicants, however, shows that he endeavored to make explanation and apologize to the court either verbally or in writing, which was refused by the court. What submission, what apology, what abjection, on the part of the applicants, is not indicated in the order entered, after this court acquired jurisdiction; and standing, as it does, in this condition, it adds force to the contention that the order made was without limitation, sub *540 ject only to the will and pleasure of the judge making it. By all of the authorities, as we understand them, such an order no court has authority to make. See, 4 Enc. PL & Prac., p. 802, note 1. We have only considered the questions arising on the face of the applications which the motion to dismiss calls in question; and we hold that this court, on the face of the petitions, has jurisdiction, and the writ was properly issued. The motion is accordingly overruled.

Motion Overruled.