Ex Parte Mittelstaedt

297 S.W.2d 153, 164 Tex. Crim. 115, 1956 Tex. Crim. App. LEXIS 922

• Court: Court of Criminal Appeals of Texas
• Decided: November 7, 1956
• Docket: 28501
• Status: Published

Opinions

DAVIDSON, Judge.

An ordinance of the city of Corpus Christi reads as follows:

“It shall be unlawful for any person to loaf or loiter within 250 feet of any school, public or private, or within 250 feet of any public building * * * .”

The punishment fixed for a violation of that ordinance is a fine not exceeding $200.

Appellant stands charged by complaint in the corporation court of the city of Corpus Christi with a violation of that ordinance, it being alleged that he did then and there “unlawfully loaf and loiter within a distance of two hundred fifty feet of a public building, to wit, a public building located in the 800 block of Buffalo street, then and there occupied by the Texas Employment Commission.”

Before the 94th District Court of Nueces County, appellant, as relator, sought by writ of habeas corpus to be discharged from arrest and custody under said accusation, insisting that the ordinance was void and of no force and effect.

The relief prayed for was denied, and notice of appeal to this court followed.

Let it be understood at the outset that, under the circumstances here presented, jurisdiction of this court, as well as of the trial court, is limited to a determination as to whether the ordinance is void. Ex parte Halsted, 147 Texas Cr. Rep. 453, 182 S.W. 2d 479; Ex parte George, 152 Texas Cr. Rep. 465, 215 S.W. 2d 170.

So then, the sole question for our determination, here, is whether the city of Corpus Christi has the power and authority to say that it is “unlawful for any person to loaf or loiter within 250 feet of any school, public or private, or within 250 feet of any public building,” and provide a punishment therefor.

The ordinance gives no definition of the terms “loaf” and “loiter,” as used therein, nor is there any special designation given to the term “public building” or the use made thereof.

By Art. 860, P.C., the legislature has defined a public building as, among other things, all buildings “held for public use by any department or branch of government, State, county or municipal.” Other than those buildings which are specifically named in that statute as being public buildings, a building in order to be a public building must be “held for public use” by a department or branch of government.

It is apparent, therefore, that any building “held for public use” by any department of the state, county, or municipal government is within and covered by the ordinance.

The legislature has legislated upon the subject of loafing and loitering in a city of this state by the passage of the vagrancy statute: Art. 607, Sec. 4, P.C., where it is made unlawful for one, under certain conditions, to loaf and loiter within the city.

In the case of Brewer v. State, 113 Texas Cr. Rep. 522, 24 S.W. 2d 409, there was before this court the question as to the validity of an ordinance of the city of Wichita Falls which made it unlawful “ ‘for a male person over the age of fourteen years to have sexual intercourse with a female person eighteen years of age or over, other than his lawful wife, within the corporate limits of Wichita Falls, Texas.’ ” The ordinance was held to be void as being in conflict with the statute, Art. 499, P.C., defining and making unlawful the crime of adultery, and Art. 503, P.C., defining and making unlawful the crime of fornication. The conclusion was reached that the ordinance was void because “The same subject — that is, unlawful sexual intercourse —is covered by both the ordinance and state statutes.”

The same is true of the instant ordinance and state statutes, because both make loafing and loitering, under certain conditions, unlawful in a city and in a public place.

For the reasons stated, the conclusion is reached that the ordinance under which appellant stands charged is void and that he should be discharged from any further restraint thereunder.

It is so ordered.