     OFFlCE OF THE AITORNEY                       GENERAL         OF -           c,-;:p
                                        AUSTIN




Xonorable 0. J. 5. Ellfngpm
Semrral &kmai;er
Tepaa iW.son           Syolxsa
IiuntsVills,          Texas
                                               opinion XO.~'O-3793
Dear Sirr                                      Bet Whether er not there is nny.
                                                    Laga aatlon as this time tnat
                                                    oan bo takal to .erES8t Virgil
                                                    Bwa0e and return hbto the
                                                    penitentiary to serve t-&sthree
                                                    sumthe and four%aon Cay6 hs
                                                    i+Sll owes on tfa iour-usax
                                                    sentenoe, even thotyh ho Y(IB
                                                    diatthargedIA aaaorderbewith
                                                    inetructfws rron the !Xstri&i
                                                      Ccilrt id :Wlker County?




                a&J   Bet   out    IA   your     Opinlol¶   NOi   0-3640
       ?&e Stattwi4w.aof Fat+s   Suralahed you by ifonor:
       nble Mao L. aeanstt,    Jr.j Dbtrlot AtSorn5y,
       #oraannger, T&as, -VirgilBounds wm mdersd
       diaohorgod by th8 abistriaa conra 0r %alker
       cot&y  ror aho roama the overtine nnd ooa-
       mafiaA           ain0      rorreifh#d      whoa ha r8tUrnd.         %Q
       prlaon roAl.0wzlplaw'hillori&ial 'PQdtBtlOo.
                "Tour 09iAiOA           !vo.o-w4a, however, eatelI
       thatr
           *While the relator may not hare tor-
       r8itti  the extra alai0ror good oonbuaa
       aa ovartixw work allmod w.hioRho had
       82UAsd  A&to  hi8 rOlea&@ O& the OoAdi-
       ttortnlpardoa, he is not antitled to re-
       oelve es'e oralit oa his rour-par s&n-
       tenoe, the one yefdr,oae aonth and air-
       toen days thst he ia@ et larz,oon the
       oonditionalpardon. The aaae ltm&h or
       time renaalne0to be some6 by.raletor en
       June 83, 1940 88 on k&ky4, 1939.
                ". . . Xowevor, we hcivanow IQgm3C his
           tS.m In naaordanao with Opinicn No. O-3640, and
           iind that he now hae to his aredit on a four
           year sontenae, three yams, eight motithsazd
           si:xteendays. Consequently,there.18 ror;rilu-
           ing to be srmved on his four-year s%ntance,
           th,me montha and fourteen daye.
     ~~
                  n      . EIowe~ex,AOW that the laots ere ual
           Oumt&*bOr0rO you, us will egpreoleteyouzr
           opinion ea to whether or not there is any legal
           aotion at‘th1.etime th.%taan be teken to arrest
           Virgil Bounds and return him to the penitentiary
           to 8enW the three mud&B end fourteen   day6 he
           atill owe@ on hls row yeas sentanoe, 6ven
           tkmgh he was dlsoharged in aaaordanaewith in-
           struotion8 rXW the DIetriot court of Salksr
           ccwlty.”
               Aa we uaderattmd the facetsupon which your pues-
     tion Lo predlaated, the said Virgil 3ounde was ordered dls-
     ohargdl.rroaathe paltentiery by the judge or the Distrlot
     Court of 'cpalkex
                     Couuty, Texas, after habeas oorpus proased-
     lags hmd been had in said aourt.
                  z&cm t&e Statstnsntof mot8         mentioned    In your
     letter,it eppaersthat the aaid V&gil Bounds wee plervlng
     a   r0ua--par    sentems   in,tha   S;tate Panitentlery     of Texas
     by rfrtue or a0 lndiatment round against bLc ia Jerreruan
     Count Texas upon whiah he was subsequentlyconvioted
     xii&&   oo&.
              Arti    ll9 of'Yernon*s&notated Code or Cri3b
     lnal l?roaed~, provides QLI r0iicwta:
                "hrter lAdiotmeAt rounb, thswrit must
           be made returrqble la the aounty where the
           ~rfenee has been 00rmDftt&,on aoaount 0r
/’         whloh the applioant stnnda fndloted."
                  la the oaae of Ex Pnrta #attamoni 143.6.3. (I?4
                                                                I
     319, ‘tab0court 0r 0rirPLaal~jpu   0r TALKS,in a5 opinion
     by Judge Graves, hold that, while a jtiga OS a distrlot sot
     inoludlng the county in whiah the relatorwe& lndlotedand
                               ralator'aeppLloatlonfor e writ
                                  could not tre the matters pra-~
                                 tho.writ returnable to the
oounty in which the relator WRS inCict%d and COQViGt%d,
citiw fiArticl%   119, quoted uu?ra. AGO nlso'tila PollowiIlg
oasas :   Ex gerte TrGdor, i32.X. SSS; ?2cpart% Alnmorth,
27 9+x, 731; XX mrte SprLn@.old, 11 G.3. f377;.ZXparte
Gveroash,   134 2.:;. 700; ZX pXt4 AQdlY4Sl153 3.X. C!l.
          In the lnotsnt ortae,we are anar% of'th% .fa’ot
that J4ffarson County, Texas, where said Virgil Sounds
was indicted andoonvloted, is not within the Gistriot
presided ov4r by the dfetrfot oourt or Wal&er County.
          Under the authorltlos her%inabovementioned,
we am oi.the opinion that while the jud54'of the distriot
oourt of m.Ucer County had the right to grant the writ 0r
habeas ooxpus allpied ror by Vlr&fl Bounds, hB had no
fU.dSd~GtiOnto try the matters prusentod thereby, and
should have -de the writ returnab~o to Jefferson County.
              In th%oase of Letoher, .et al v. Crandell, (Civ.
App.j 44 33. 197, Crandsll sued Lstoher, the sheriff of
Jones Couuty and the sumties on his of'iioinlbond for
damages ror raise lqmleonment. Ths Qlaintllfwas being
held by the sheriff on a tittlms rroa the justloe or the
peaoe or Jones County Gn a rap% charge, issued by the said
justice in ax&eraminigg~trlalwherein he had uaived an
ekamination       and was renaruled to the custody of the eherili
without     bail.    Yubsequently,a writ of habeas oorpus was,
upon plalntlff*e       ap4ioation.    issued by the oounty judge
of Jones County and upon tho hearing of whloh the oounty
Jud+ ordered him disoherged~rromGUet&y.             The sherirr,
denying the authority        and $lrisdlotion0r the eo30tyy&tia$z4
or oounty oourt to diaaherge plalatlff, reamb
hewasleaving the oourthoum. The sherfil jwtiiledthe
arrest and~pr$.eonamn +. by the 033&U aommltmentor
nittlninfs,   oontendlng that the order of the oounty judge
dlsoharging plaintiff was void, for want of jurlsdiotlon
fo makssuoh order, lmtxuuoh as glnlntltr was held under
a oharlp of felony.
          The oourt upheld the aheriSf*e oontestlonand
held thnt under E\rtlole5, Yeotion 16 of the Texas Conatl-
tution, providing that8 *The oounty court, or judge there-
of, shall have power to issue . . . writs or habens corpus
In oases where the offense is with111the jU?iSdiGtioGot
th4 OOUnty GOUt, or any other court or tribunal inferior
to snld oourt," the county judge htd no qow%r to discharge
i%anqxxstody, Gn habeas Gor~uu, e ;lossonGhZSQ3d  with a
oapltal felony, aa ouch oo~rt hoe no jurisdiction  to try   I
r6tlonles.
         We qi+e fran the court's o$nion, a? pnge 197,
4s.follcmsI
           *It would then a;tpearthat .thelegiela~'
     tuy has not 8naOt%d that in SUGh n oaa4 ths
     oOunty judge should have jurlsdiotion,end
     wu therefore OODabAd8, In CR% absenoe 0r ~suoh
     leglslat.&mn, that the jurlsdiotionof the
     oouaty judge to Issue the writ mat be.deter-
     mined by the provision of the oonetltutlon
     above quoted, andthnt the oounty jud&e In
     this oaao had no'pwer to dlsoharge the de- .
     fendant itierror and oonmquontly his order
     wa8 null and vol&, and, being void for want
     3 power to legally mks it, the sheriff
     was3not only justifiablein disr&gard~
     ltS but It was hla duty to Co so. It would
     have been no more protection to hl~ for
     mieatrlng the defendant in 4rror from
     oustody then If the orCar,had baen nade by
     a private Gitizlzsn. ThU iaCt that the
     sheriff produoad th4 prisoner in response
     to the writ would m&e no ClXferenoe,s
     tlrsaot8 aouLd not ooafer jurisdiction,
     ihere wae is ~lven bu I.      The undisputed
     s~ihnoe in this 0884 pr3& that the defen-
     dant ln.arrbr was baia& h&M by th4 sheriff
     under a vaL/d uokaltmnt on a oharm of
     felony, and, apon the atznouncezent Of the
     oounty judgers deoldlon Clsohrtrglng him
     from custody, he was leaving the oourt houss,
     when the sheriff detained hkn and r4tWL4d
     him to jell. True, ha dfd not 4xhIbft &la      -
     mlttlauo when his authoritywas demnded by
     defendant in error, but hetolC hi&l.?&
     effeat, that he oould not let him go on the
     O~rdW or the oounty judge. HO knew; than,
     that he had already  been ocmmittedby the
      justloe of the p6aoe. aad the oau8e then&,
      and .heams thsr4tore lntornmd on the aubjeot
      of MS rearrest. . . .- (Underaoorln(f   ogre)
          Vieare of the opl~ion, thafsi'ore,  tW,t the order
Of the diStriOt COUd Of ‘i:tdkEiT County dischnr@ng
                                                \    the said
Virgil 3xmds was void.
          Khere anprisoner secures his libe?ty t>xough
some IlLegal or void order It ie to be treated as an ea-
oape, and he oan be retaken and ctipelleh to serve out
hls seatahoe, even though,the i&m in wbioh the original
ii&it-egos
         should have been served ha5 expired. Suah'prl-
eoner May be rstaker~uudar the mum prqoeas under Qhlah
yawa; o~:i&.nally comiitted. Letaher v.,Craudell, auprq
   . . 9. 63?g HO~km3 Y. !?Orth,(=a.) '49A. L. 8, m%
          You are reepeotfullyadvised that ii la ~wleopin-
ion of this departzientthat, under the ikictsstated, the
said Vl~&l Bounds, having seaured hia liberty frosi'the
State Penitentiary of Texas by virtue of a void order
f+romths distrLct court of Yaalker County, ia fn the am6
position as it he had'esaaped, and aonse uentl;y,mq be
ret&en by the .peaitentiary authorltfes In the Barn6i3lanner
as in the aase of an escaped pz%oner, and acwelled to
serve out.the balanae of hlsisentence remaining unserved
on the date of his release oa sold void order.
                                    Very tmly yours
