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-&s three 

sumthe and four%aon Cay6 hs 

i+Sll owes on tfa iour-usax 

sentenoe, even thotyh ho Y(IB 

diattharged IA aaaorderbe with 

inetructfws rron the !Xstri&i 

Ccilrt id :Wlker County? 

a&J Bet out IA your Opinlol¶ NOi 0-3640 

?&e Stattwi4w.a of Fat+s Suralahed you by ifonor: 

nble Mao L. aeanstt, Jr.j Dbtrlot AtSorn5y, 

#oraannger, T&as, -Virgil Bounds wm mdersd 

diaohorgod by th8 abistriaa conra 0r %alker 

cot&y ror aho roama the overtine nnd ooamafiaA ain0 rorreifh#d whoa ha r8tUrnd. %Q 

prlaon roAl.0 wzlplaw'hill ori&ial 'PQdtBtlOo. 

"Tour 09iAiOA !vo. o-w4a, however, eatelI 

thatr 

*While the relator may not hare torr8itti the extra alai0 ror good oonbuaa 

aa ovartixw work allmod w.hioR ho had 

82UAsd A&to hi8 rOlea&@ O& the OoAdittortnl pardoa, he is not antitled to reoelve es'e oralit oa his rour-par s&ntenoe , the one yefdr, oae aonth and airtoen days thst he ia@ et larz,o on the 

oonditional pardon. The aaae ltm&h or 

time renaalne0 to be some6 by.raletor en 

June 83, 1940 88 on k&ky 4, 1939. 
/’ 

". . . Xowevor, we hciva now 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 motiths azd 

si:xteen days. Consequently, there.18 ror;riluing 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 egpreolete youzr 

opinion ea to whether or not there is any legal 

aotion at‘th1.e time th.%t aan 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 aaaordanae with instruotion8 rXW the DIetriot court of Salksr 

ccwlty.” 

Aa we uaderattmd the facets upon which your puestion Lo predlaated, the said Virgil 3ounde was ordered dlsohargdl.rroaa the paltentiery by the judge or the Distrlot 

Court of 'cpalkex Couuty, Texas, after habeas oorpus proasedlags hmd been had in said aourt. 

z&cm t&e Statstnsnt of mot8 mentioned In your 

letter, it eppaers that 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 subsequently convioted 

xii&& oo&. 

Arti ll9 of'Yernon*s ¬ated 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, ‘tab0 court 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 relator we& lndloted and 

ralator'a eppLloatlon for 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, i3 2.X. SSS; ?2c part% Alnmorth, 

27 9+x, 731; XX mrte SprLn@.old, 11 G.3. f377; .ZX parte 

Gveroash, 134 2.:;. 700; ZX pXt4 AQdlY4Sl 153 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%inabove mentioned, 

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~GtiOn to 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'iioinl bond for 

damages ror raise lqmleonment. Ths Qlaintllf was 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~trlal wherein 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~rrom GUet&y. The sherirr, 

denying the authority and $lrisdlotion 0r the eo30tyy&tia$z4 

or oounty oourt to diaaherge plalatlff, reamb 

hewasleaving the oourthoum. The sherfil jwtiiledthe 

arrest and~pr$.eonamn +. by the 033&U aommltment or 

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 oontestlon and 

held thnt under E\rtlole 5, Yeotion 16 of the Texas Conatltution, providing that8 *The oounty court, or judge thereof, shall have power to issue . . . writs or habens corpus 

In oases where the offense is with111 the jU?iSdiGtioG ot 

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 ;losson GhZSQ3d 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;tpear that .the legiela~' 

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 jurlsdiotion of the 

oouaty judge to Issue the writ mat be.determined by the provision of the oonetltutlon 

above quoted, andthnt the oounty jud&e In 

this oaao had no'pwer to dlsoharge the de- . 

fendant iti error and oonmquontly his order 

wa8 null and vol&, and, being void for want 

3 power to legally mks it, the sheriff 

was3 not only justifiable in 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 

tlrs aot8 aouLd not ooafer jurisdiction, 

ihere wae is ~lven bu I. The undisputed 

s~ihnoe in this 0884 pr3& that the defendant 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 authority was 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 ocmmitted by the 

justloe of the p6aoe. aad the oau8e then&, 

and .he ams thsr4tore lntornmd on the aubjeot 

of MS rearrest. . . .- (Underaoorln(f ogre) 
Vie are 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 eaoape, 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'prleoner 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.) '49 A. L. 8, m% 

You are reepeotfully advised that ii la ~wle opinion of this departzient that, under the ikicts stated, the 

said Vl~&l Bounds, having seaured hia liberty frosi'the 

State Penitentiary of Texas by virtue of a void order 

f+rom ths 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 Barn6 i3lanner 

as in the aase of an escaped pz%oner, and acwelled to 

serve out.the balanae of hlsi sentence remaining unserved 

on the date of his release oa sold void order. 

Very tmly yours