Ex Parte Edwin Burkhart , 94 Tex. Crim. 583 ( 1923 )

No occasion is found for a modification of the views expressed in the original opinion touching the matters then before the court.

In the motion for rehearing, however, there is contained an averment not embraced in the original application, namely, that the judgment was entered without notice to the parents of the relator. This is supported by appellant's father. Such notice is necessary. The court is without jurisdiction to enter a judgment of this kind against an infant in the absence of this notice. Ex parte Cain, 86 Tex. Crim. 509, 217 S.W. Rep. 386; Ex parte Gordon, 89 Tex. Crim. 125, 232 S.W. Rep. 522. The judgment in this case contains no recital of notice as was done in Ex parte Guinn,88 Tex. Crim. 509, 228 S.W. Rep. 233. However, there is no authentic evidence before this court that the notice was not given. The application and the motion for rehearing can be treated as nothing more than a pleading. If it be true, however, that the judgment condemning the relator was rendered without notice to the father of relator, as is required by Article 122 of the C.C.P., then the judgment is void. See Ex parte Cain,86 Tex. Crim. 509, 217 S.W. Rep. 387; Ex parte Gordon,89 Tex. Crim. 125, 232 S.W. Rep. 520; Ex parte Guinn,88 Tex. Crim. 509, 228 S.W. Rep. 233.

It is therefore ordered that the motion for rehearing be granted, and the judgment denying the writ of habeas corpus be set aside and in lieu thereof it is ordered that the writ of habeas corpus be granted and that it be made returnable before the Judge of the County Court of Tarrant County.

The Clerk of this Court is directed to issue notice of this order to Carl Smith, Sheriff of Tarrant County, and to E.C. Baker, Juvenile Court officer of Tarrant County, directing them to appear and bring the body of the relator, Edwin Burkhart, before the said County Judge at the courthouse of Tarrant County, on the 20th day of June, 1923, or at such other time as the said judge may direct, and that they there show cause, if any, why the relator should not be discharged.

Rehearing granted.