Opinion
No. 1948.
Decided December 21, 1898.
1. Habeas Corpus — Proceedings in Vacation — Certificate to.
Where a habeas corpus is heard by a judge in vacation, the transcript of the record must be certified to by the judge. The certificate of the clerk is not sufficient. Following Ex Parte Malone, 35 Texas Criminal Reports, 297.
2. Same — As to the Right of Possession of a Child — Jurisdiction.
Where the right of possession to a child is the issue in a habeas corpus proceeding it is not a criminal case, and the Court of Criminal Appeals has no jurisdiction of an appeal in such case.
APPEAL from the County Court of Ellis. Tried below before Hon. J.E. LANCASTER, County Judge.
Appeal in a habeas corpus proceeding for the custody of a minor.
No brief on file for relator.
Mann Trice, Assistant Attorney-General, for respondent.
This is a habeas corpus proceeding with reference to the possession of a minor. The Assistant Attorney-General moves to dismiss the appeal, because the record is not certified by the judge who granted the writ and tried the cause. The whole proceeding occurred in vacation. When this is the case the record must be certified by the judge. It is not sufficient that the clerk certify to the correctness of the transcript. Ex Parte Malone, 35 Tex.Crim. Rep., which has been followed in subsequent decisions.
There is another question in the case, had the record been properly certified, which would have been fatal to the appeal to this court. (We mention this because a proper record can be easily made out, and again brought before us.) Where the right of possession of a child is the issue in the habeas corpus proceeding, it is not a criminal case; therefore this court would have no jurisdiction of the appeal. Ex Parte Reed, 34 Tex. Crim. 9; Ex Parte Berry, 34 Tex.Crim. Rep.; Legate v. Legate, 87 Tex. 248. We call attention to this question of jurisdiction, so the parties interested way carry the appeal to a court which has authority to try it. The appeal is accordingly dismissed.
Dismissed.