Ex Parte Bessie Calvin

48 S.W. 518, 40 Tex. Crim. 84, 1898 Tex. Crim. App. LEXIS 221

• Court: Court of Criminal Appeals of Texas
• Decided: December 21, 1898
• Docket: No. 1948.
• Status: Published

Opinion

DAVIDSON, Judge.

This is a habeas corpus proceeding with reference to the possession of a minor. The Assistant Attorney-General moves to dismiss the appeal, because the record is not certified by the judge who granted the writ and tried the cause. The whole proceeding occurred in vacation. When this is the case the record must be certified by the judge. It is not sufficient that the clerk certify to the correctness of the transcript. Ex Parte Malone, 35 Texas Crim. Rep., 297, which has been followed in subsequent decisions.

There is another question in the case, had the record been properly certified, which would have been fatal to the appeal to this court. (We mention this because a proper record can be easily made out, and again brought before us.) Where the right of possession of a child is the is sue in the habeas corpus proceeding, it is not a criminal case; therefore this court would have no jurisdiction of the appeal. Ex Parte Reed, 34 Texas Crim. Rep., 9; Ex Parte Berry, 34 Texas Crim. Rep., 36; Legate v. Legate, 87 Texas, 248. We call attention to this question of jurisT diction, so the parties interested may carry the appeal to a court which has authority to try it. The appeal is accordingly dismissed.

Dismissed.