The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1897-11-04

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OF sald courts of witnesses resd;nn n,f
nar die county wherein the prosecution 10
pending. Since so repealipe saia 'o a,. y
fles the legislature has passed no law,
VEIN No. enforcing the attendance of sucb wit.
tb erefouwN nich apply to county courts.
mepts fe mere are no legislative enact,
inc ~ ieast Approximation enforc-
nai caso at.enuance of witnesses in crimi-
t taa cases pending in county courts when
t those witnesses reside in a county other
;s nar ,He county wherein the prosecution
d;,ti" enullg' If this is true a serious con-
hhi.io1 OF affairs is presented: n great
ottn,, mas been committed; an apparent
st;tnt;ppt 70 deny county courts their con-
naouaI prerogative to issue all writs
n nuSSessary TO enforce their jurisdiction
Sa;d ~ ueny to every person prosecuted in
r;nh+ courts iI Tor crimes his constitutional
.gnt 10 have compulsory process fog OBJ /
aiming witnesses in his favor"
In section 16, article 5, of the constitu- |
ton, it is provided: "And the comfy |
court or judge thereof shall have power
~ issue writs of injunction, mandamus
anu all Wrlts necessary to the enforce
Inent OF the jurisdiction of said court"
III TINS connection nice questions are pre-
scented. Is this provision of the consti-
luton sef-acting? If there never had
eeeli any statutory laws providing for en-
! forcing the attendance of witnesses in
Eases pending in the county court, would
saia court have power under this consti-
tutional provision to issue writs to COM
pei the attendance of witnesses? l will
not enter upon discussion of the above
question nor attempt to solve it, though
would be inclined to the view that the
sad constitutional provision would be
self-acting, and that the said court, in
the absence, of any statutory provisions
regulating the issuance of writs for en-
forcing the attendance of witnesses wonld
nave nave the power to issue writs to compel
the attendance of witnesses, etc. The
legislature could not pass a valid act de-
hying the courts the power to issue such
writs, because such an act would be un-
constitutional. The legislature may pass
laws regulating and restricting the is
suance of such writs, but could not de-
stroy the constitutional power of the
courts to isue said writs. The following
authorities may be cited as sustaining the
proposition that this provision in the con-
stitution is self-acting
u Fla. Rept.,. 100.
3 Mo. Rept., 1875.
l Brock.
However, having reached a conclusion
upon other grounds, l deem it unneces-
sary to further discuss this question. By
section 10, article 1 (Bill of Rights of
the state constitution it is provided that
in all criminal prosecutions the accused
| shall have compulsory process for OBJ
tanning witnesses in his favor. This con-
| stitutiGnal provision evidently applies to
all criminal prosecutions, without re-
spect to grade of the crime of which the
accused stands charged. Ex Parte f.
NJ. Thurman, % Texas Reporter, :0S).
| The legislature, in obedience to this
constitutional provision, enacted laws
granting process for compelling the at
tendance of witnesses upon criminal
trials in the county courts. Such process
is denominated subpoena and an at.
tachment. The issuance of each was
duly regulated by statute. The power OF
the legislature to pass such laws can moi
be questioned; nay, more; it was the duty
of the legislature to do so. The consti
tuition says the defendant shall have com
pulsory process to enforce the attend
ance of witnesses; the legislature ha,
passed laws providing for sucf
process. Would it be constitutional TO
the legislature to repeal all laws pro
viding for the issuance of such process
without replacing such repealed law
with other enactments providing TO
such process? Would not such a repeal
ing act be unconstitutional for the rea
son that it would destroy or abridg'
the right of person accused of crime
to have compulsory process to enforce
the attendance of witnesses? The con
stitution says he shall have compulsor.
process To annul all laws providinl
for the issuance of such process would
have the effect of repeating or modify
ing the provision of the constitution
An act of the legislature can not dc
this. The act must conform to the con
stitution and be tested by that instru
ment, therefore an act of the legislature
rendering nugatory any provision of the
constitution would be void. Any act
denying to persons rights guaranteed to
them by the constitution is void. Now
it has been pointed out that by an act
of the special session of the Twenty
fifth legislature Subpoena bill, chap. ~,
page 5S). all existing laws providing for
The issuance of process for witnesses re-
siding in n county other than the one
in which the prosecution is pending. are
repealed, and that said act, with r"'er-
ence to county courts makes no provi-
siops for issuance by said courts of other
compulsory process in lieu o. that PRO
vided for in the repealed laws. In other
words, giving the repeating clause OF
this act full force and effect, the result
would be that there would exist
NO "o' laws providing for the issuance
of subpoenas by county courts OF
comnulsory process for witnesses
residing out of the county of the
prosecution. In criminal prosecutions IN
the county courts the accused would be
denied compulsory process for ms Wit
nesses-a right given him by the su,
preme law of this state. To give full
effect to the repeating clause OF the act
would be to annul a constitutional pro-
vision. Such result can not be per-
mitted, even though to avoid It the act
itself must he held Unconstitutional
(S3 Tex. 66Io ,so
To the giving of the repeating Clause
of this act full effect another constltu-
tional objection may be successfully
urged. 1t would be an attempt upon
the part of the legislature to restrlcl
the jurisdiction of the county courts: III
that it would be an attempt to curta III
| their constitutional power of issuing aii
necessary writs to enforce their Jurishlc
| ton. This objection applies with equal
| force to process for state witnesses as
we'll as for defendants witnesses.
Having held that the repeating clause
of this act is unconstitutional in so iar
as If repeals the attachment law as APP
nIied to county courts. it only remains
TO determine the effect of such hoiuihs
will have upon the said act as whoie.
Is it void in whole or only IN part:
The rule is that where the provisions
are so interdependent that one may no5
onerate without the other or so related
Ia suhstance and object that 1T Is I'M