Ex Parte Jonischkies

224 S.W. 1092, 88 Tex. Crim. 129, 1920 Tex. Crim. App. LEXIS 369

Opinions

LATTIMORE, Judge.

At a former day ‘ applicant presented his application for a writ of habeas corpus, setting up therein that he was illegally restrained of bis liberty by the sheriff of De Witt County, Texas. The request of applicant was granted, and a writ issued, returnable to this term of this Court. Our Assistant Attorney General has filed a motion to dismiss relator’s application, accompanying said motion with the affidavit of the sheriff of DeWitt County that he has never had applicant in his custody either by virtue of any writ or commitment or in any way whatsoever. There is also attached to said motion of the Assistant Attorney General, the official certificate of the County Clerk of DeWitt County, that no commitment or warrant of any kind has ever issued for applicant. Inasmuch as a writ of habeas corpus will not be issued unless the party applying therefor appears to be in some manner illegally restrained, this writ will be denied and the application dismissed. Numerous authorities might be cited, in which this Court has declined to take jurisdiction of petitions for writs where it is made to appear that the applicant is not actually in custody, nor in any manner restrained of his liberty. In the light of these authorities, and upon the affidavit of the said sheriff and the certificate of the said clerk, the application will be dismissed.

Dismissed.