Ex Parte Wolf , 116 Tex. Crim. 127 ( 1930 )

Upon three propositions set forth, relator moves to reinstate. It is necessary to discuss but one proposition, which is that this court should hear and determine the issues involved herein because of the fact that it received a petition, and also granted bail to relator, — it being insisted that by such action this court asserted and exercised jurisdiction of this proceeding, and having gone thus far should proceed in line with what we said and did in the case of Ex parte Alderete, 83 Tex.Crim. Rep.. Analogy of what was said and done in the case mentioned, is not perceived. In that case a petition for habeas corpus was here presented from whose averment of restraint we were unable to tell if same resulted from or grew out of a civil proceeding or otherwise. The writ therein sought was granted. Thereafter, and when informed by further development that the restraint was incident to a civil proceeding, while we said that the petition should have been presented to the Supreme Court originally, still this court having issued its writ under such circumstances, would and did proceed to a decision of the issues.

Since its organization this court, by express direction of the Constitution, has had the right and power in all cases to issue writs of habeas corpus, but since 1905 when a law was enacted, which is now Art. 1737, Revised Civil Statutes, 1925, which conferred upon the Supreme Court and its members authority to issue such writ in cases when any person is restrained of his liberty by virtue of any order, etc., made in civil cases, — this court, while not doubting our power in such causes, has believed propriety and comity better served, and possible clashing of conclusions and views better prevented by our declining to issue such writs in cases arising out of or incident to civil proceedings.

In the case before us no writ was by us issued, as was done in the Alderete case, supra. The mere filing of a petition for the writ of habeas corpus, and the granting by one member of this court of bail pending a hearing before the whole court, the purpose of which would not be to determine the merits of the petition but to ascertain if in fact such writ should be granted by us, was not, in our opinion, the assertion or exercise of jurisdiction over the particular case by the court. There is no question but that from the averments of the petition in this case, it appears to pertain to a civil proceeding.

Entertaining convictions regarding the interesting questions raised by the petition, may have induced utterances regarding the issues involved from the writer of the opinion, beyond what was necessary to a mere announcement of refusal to assume jurisdiction, but we feel ourselves committed to the doctrine of the original opinion, and to that announced by our Presiding Judge in the Alderete case, supra, in the following language:

"This court will refrain from issuing writs of habeas corpus against restraint under orders in a civil case because it is more orderly and expedient that the Supreme Court should pass upon such habeas corpus proceedings as are placed within its jurisdiction by the statute mentioned above. So in a contempt proceeding where it appears that it grows out of an alleged failure to observe an order in a civil cause this court will refuse to grant the writ relegating the party to his remedy in the Supreme Court."

The relator's motion to reinstate will be denied.

Denied.