Case Information
*1 c,-;:p OFFlCE OF THE AITORNEY GENERAL OF - AUSTIN
Xonorable 0. J. 5. Ellfngpm
Semrral &kmai;er
Tepaa iW.son Syolxsa IiuntsVills, Texas opinion XO.~'O-3793 Bet Whether er not there is nny.
Dear Sirr
Laga aatlon as this time tnat oan bo takal to .erES8t Virgil Bwa0e and return hbto the penitentiary to serve t-&s three sumthe and four%aon Cay6 hs i+Sll owes on tfa iour-usax sentenoe, even thotyh ho Y(IB diattharged IA aaaorderbe with inetructfws rron the !Xstri&i Ccilrt id :Wlker County? a&J Bet out IA your Opinlol¶ NOi 0-3640 ?&e Stattwi4w.a of Fat+s Suralahed you by ifonor: nble Mao L. aeanstt, Jr.j Dbtrlot AtSorn5y, #oraannger, T&as, -Virgil Bounds wm mdersd diaohorgod by th8 abistriaa conra 0r %alker cot&y ror aho roama the overtine nnd ooa- ain0 rorreifh#d whoa ha r8tUrnd. %Q mafiaA prlaon roAl.0 wzlplaw'hill ori&ial 'PQdtBtlOo.
"Tour 09iAiOA !vo. o-w4a, however, eatelI thatr
*While relator may not hare tor- the extra alai0 ror good oonbuaa r8itti aa ovartixw work allmod w.hioR ho had
82UAsd A&to hi8 rOlea&@ O& the OoAdi-
ttortnl pardoa, he is not antitled to re- oelve es'e oralit oa his rour-par s&n- tenoe , the one yefdr, oae aonth and air- toen days thst he ia@ et larz,o on the oonditional pardon. The aaae ltm&h or
time renaalne0 to be some6 by.raletor en June 83, 1940 88 on k&ky 4, 1939.
". . . Xowevor, we hciva now IQgm3C his In naaordanao with Opinicn No. O-3640, and tS.m iind that he now hae to his aredit on a four year sontenae, three yams, eight motiths azd si:xteen days. Consequently, there.18 ror;rilu- ing to be srmved on his four-year s%ntance, th,me montha and fourteen daye.
~~ n . EIowe~ex, AOW that the laots ere ual Oumt&*bOr0rO you, us will egpreolete youzr
opinion ea to whether or not there is any legal aotion at‘th1.e time th.%t aan be teken to arrest Virgil Bounds and return him to the penitentiary to 8enW the three mud&B end fourteen day6 he atill owe@ on hls row yeas sentanoe, 6ven tkmgh he was dlsoharged in aaaordanae with in- struotion8 rXW the DIetriot court of Salksr ccwlty.”
Aa we uaderattmd the facets upon which your pues- tion Lo predlaated, the said Virgil 3ounde was ordered dls- ohargdl.rroaa the paltentiery by the judge or the Distrlot Court of 'cpalkex Couuty, Texas, after habeas oorpus proased- lags hmd been had in said aourt. z&cm t&e Statstnsnt of mot8 mentioned In your
letter, it eppaers that the aaid V&gil Bounds wee plervlng a r0ua--par sentems S;tate Panitentlery of Texas in,tha by rfrtue or a0 lndiatment round against bLc ia Jerreruan Count Texas upon whiah he was subsequently convioted xii&& oo&.
Arti ll9 of'Yernon*s ¬ated Code or Cri3b lnal l?roaed~, provides QLI r0iicwta:
"hrter lAdiotmeAt rounb, thswrit must be made returrqble la the aounty where the /’ ~rfenee has been 00rmDftt&, on aoaount 0r
whloh the applioant stnnda fndloted."
la the oaae of Ex Pnrta #attamoni 143. 6.3. (I?4 I 319, ‘tab0 court 0r 0rirPLaal ~jpu 0r TALKS, in a5 opinion by Judge Graves, hold that, while a jtiga OS a distrlot sot inoludlng the county in whiah the relator we& lndloted and
ralator'a eppLloatlon for e writ could not tre the matters pra-~ tho.writ returnable to the *3 oounty in which the relator WRS inCict%d and COQViGt%d, citiw fiArticl% 119, quoted uu?ra. AGO nlso'tila PollowiIlg oasas : Ex gerte TrGdor, i3 2.X. SSS; ?2c part% Alnmorth, 27 9+x, 731; XX mrte SprLn@.old, 11 G.3. f377; .ZX parte 134 2.:;. 700; ZX pXt4 AQdlY4Sl 153 3.X. Gveroash, C!l.
In the lnotsnt ortae, we are anar% of' th% .fa’ot that J4ffarson County, Texas, where said Virgil Sounds was indicted andoonvloted, is not within the Gistriot presided ov4r by the dfetrfot oourt or Wal&er County.
Under the authorltlos her%inabove mentioned, we am oi. the opinion that while the jud54'of the distriot oourt of m.Ucer County had the right to grant the writ 0r habeas ooxpus allpied ror by Vlr&fl Bounds, hB had no fU.dSd~GtiOn to try the matters prusentod thereby, and should have -de the writ returnab~o to Jefferson County.
In th%oase of Letoher, .et al v. Crandell, (Civ. App.j 44 33. 197, Crandsll sued Lstoher, the sheriff of Jones Couuty and the sumties on his of'iioinl bond for damages ror raise lqmleonment. Ths Qlaintllf was being held by the sheriff on a tittlms rroa the justloe or the peaoe or Jones County Gn a rap% charge, issued by the said justice in ax& eraminigg~trlal wherein he had uaived an the custody of the eherili ekamination and was renaruled to Yubsequently, a writ of habeas oorpus was, without bail. issued by the oounty judge upon plalntlff*e ap4ioation. of Jones County and upon tho hearing of whloh the oounty Jud+ ordered him disoherged~rrom GUet&y. The sherirr, denying the authority and $lrisdlotion 0r the eo30tyy&tia$z4 or oounty oourt to diaaherge plalatlff, reamb hewasleaving the oourthoum. The sherfil jwtiiledthe arrest and~pr$.eonamn +. by the 033&U aommltment or oontendlng that the order of the oounty judge nittlninfs, dlsoharging plaintiff was void, for want of jurlsdiotlon fo makssuoh order, lmtxuuoh as glnlntltr was held under a oharlp of felony.
The oourt upheld aheriSf*e oontestlon and held thnt under E\rtlole 5, Yeotion 16 of the Texas Conatl- tution, providing that8 *The oounty court, or judge there- of, shall have power to issue . . . writs or habens corpus In oases where the offense is with111 the jU?iSdiGtioG ot th4 OOUnty GOUt, or any other court or tribunal inferior to snld oourt," the county judge htd no qow%r to discharge *4 Gn habeas Gor~uu, e ;losson GhZSQ3d with a
i%anqxxstody, oapltal felony, aa ouch oo~rt hoe no jurisdiction to try I r6tlonles. We qi+e fran the court's o$nion, a? pnge 197, 4s.follcmsI
*It would then a;tpear that .the legiela~' tuy has not 8naOt%d that in SUGh n oaa4 ths oOunty judge should have jurlsdiotion, end wu therefore OODabAd8, In CR% absenoe 0r ~suoh leglslat.&mn, that the jurlsdiotion of the oouaty judge to Issue the writ mat be.deter- mined by the provision of the oonetltutlon above quoted, andthnt the oounty jud&e In this oaao had no'pwer to dlsoharge the de- .
fendant iti error and oonmquontly his order wa8 null and vol&, and, being void for want 3 power to legally mks it, the sheriff was3 not only justifiable in disr&gard~ ltS but It was hla duty to Co so. It would have been no more protection to hl~ for mieatrlng the defendant in 4rror from
oustody then If the orCar,had baen nade by a private Gitizlzsn. ThU iaCt that the
sheriff produoad th4 prisoner in response to the writ would m&e no ClXferenoe, s tlrs aot8 aouLd not ooafer jurisdiction, ihere wae The undisputed is ~lven bu I. s~ihnoe in this 0884 pr3& that the defen- dant ln.arrbr was baia& h&M by th4 sheriff under a vaL/d uokaltmnt on a oharm of felony, and, apon the atznouncezent Of the oounty judgers deoldlon Clsohrtrglng him from custody, he was leaving the oourt houss, when sheriff detained hkn and r4tWL4d him to jell. True, ha dfd not 4xhIbft &la - mlttlauo when his authority was demnded by defendant in error, but hetolC hi&l.?& effeat, that he oould not let him go on the O~rdW or the oounty judge. HO knew; than, that he had already been ocmmitted by the justloe of the p6aoe. aad the oau8e then&, and .he ams thsr4tore lntornmd on the aubjeot of MS rearrest. . . .- (Underaoorln(f ogre)
Vie are of the opl~ion, thafsi'ore, tW,t the order Of ‘i:tdkEiT County dischnr@ng the said Of the diStriOt COUd \ 3xmds was void. Virgil Khere anprisoner secures his libe?ty t>xough some IlLegal or void order It ie to be treated as an ea- oape, and he oan be retaken and ctipelleh to serve out hls seatahoe, even though,the i&m in wbioh the original ii&it-egos should have been served ha5 expired. Suah'prl- eoner May be rstaker~uudar the mum prqoeas under Qhlah yawa; o~:i&.nally comiitted. Letaher v.,Craudell, auprq
. . 9. 63?g HO~km3 Y. !?Orth, (=a.) '49 A. L. 8, m%
You are reepeotfully advised that ii la ~wle opin- ion of this departzient that, under the ikicts stated, the said Vl~&l Bounds, having seaured hia liberty frosi'the State Penitentiary of Texas by virtue of a void order f+rom ths distrLct court of Yaalker County, ia fn the am6 position as it he had'esaaped, and aonse uentl;y,mq be ret&en by the .peaitentiary authorltfes In the Barn6 i3lanner as in the aase of an escaped pz%oner, and acwelled to serve out.the balanae of hlsi sentence remaining unserved on the date of his release oa sold void order.
Very tmly yours