Ex parte Swift

358 S.W.2d 629, 172 Tex. Crim. 460, 1962 Tex. Crim. App. LEXIS 1043

• Court: Court of Criminal Appeals of Texas
• Decided: June 20, 1962
• Docket: No. 34,715
• Status: Published

Opinion

MORRISON, Judge.

Relator sought his discharge by writ of habeas corpus filed in the County Court of Hays County, Texas, alleging in his application that he was illegally restrained of his liberty and was confined by virtue of a certain writ of capias pro fine.

Relator, upon his plea of guilty, was convicted in the Justice Court, Precinct No. 3 of Bexar County, Texas, for “speeding” and assessed a fine of $50.00. Relator gave notice of appeal and filed an appeal bond which was approved by the Justice of the Peace, and a transcript of the proceedings and appeal bond were transmitted to the County Court at Law No. 2 of Bexar County.

After notice to relator that the case was set for trial in the County Court on November 19, 1960, at 9:00 A.M., the appeal was dismissed at 9:05 A.M. because lie failed to appear. Following the dismissal, the County Court at Law No. 2 issued its writ of procedendo to the Justice Court. Thereafter, on August 31, 1961, a capias pro fine was issued out of the Justice Court, under which process relator was arrested, and it is from such restraint that relator seeks his release by habeas corpus.

The proper action for the County Court to have taken would be to have entered an order forfeiting relator’s bond.

Having concluded that the court erred in issuing the writ of procedendo, it naturally follows that jurisdiction is still in the County Court at Law No. 2 and the Justice Court had no authority to issue the capias pro fine.

Relator is ordered discharged from confinement under such capias.