Ex parte McKay (82 Tex. Crim. 221, 1917)

MORROW, Judge.

Belator, in an original application for writ of habeas corpus, seeks his discharge from the custody of the sheriff of Travis County, who holds him under process purporting to issue from the Criminal District Court under an indictment for a felony.

Belator insists that the indictment is void and his restraint, therefore, illegal. The charged invalidity of the indictment is based in part upon the assertion that it was not found during or returned in a court in session. The indictment purports to have been returned into the Criminal District Court of Travis County. This court was created by chapter 17, page 27, of the Acts of the Thirty-fourth Legislature. It reorganized the Twenty-sixth and Pifty-third Judicial Districts composed of Travis and Williamson Counties, assigning to them the greater part of the civil litigation, and created in said counties the Criminal District Court, giving it jurisdiction of criminal matters and divorce proceedings. In section 4 of the Act the judge of said, court is given the same powers that are vested in other district judges, and in the same section, subdivision (d), the terms of court are designated in the following language:

"The terms of said Criminal District Court shall be held each year as follows: In the County of Williamson on the first Monday in January, May and September, and continue in session for four weeks, unless continued longer by the judge thereof by an order duly entered; in Travis County on the first Monday in February, and may continue in session to and including the last Saturday before the first Monday in April; on the first Monday in June, and may continue to and including the first Saturday after the third Monday in July; and on the first Monday in October, and may continue in session to and including the last Saturday before the twenty-fifth of December, unless continued longer by the judge of said court by an order duly entered.”

The minutes of the Criminal District Court contain the following entry:

“Order Extending Term of Court.

“And now on this the 21st day of July, A. D. 1917, it appearing to the court that a necessity exists for the extending of this, the June term, A. D. 1917, of the Criminal District Court of Travis County, Texas, on account of very important unfinished business of this court and for such reason:

“It is hereby ordered, adjudged and decreed by the court that this, the June term, A. D. 1917, of the Criminal District Court of Travis ■County, Texas, be and the same is hereby extended until and including Saturday, July 28th, A. D. 1917.

“James B. Hamilton,

“Judge Criminal District Court, Travis County, Texas.”

The grand jury, regularly organized at the beginning of the term, continued in session until the 27th day of July, 1917, on which day the indictment in question was returned by them.

The general law of the State, Vernon’s Civil Statutes, article 1726, contains the following provision:

“Whenever any District Court shall be in the midst of the trial of any cause when the time for the expiration of the term of said court, ns fixed by law, shall arrive, the judge presiding shall have the power :and may, if he deems it expedient, extend the term of said court until the conclusion of such pending trial. In such case, the extension of such term shall be shown in the minutes of the court before they are signed.”

If when the indictment was returned the term of the court had ■expired, the indictment is void. Art. 445, C. C. P. The question as to the invalidity of the indictment, therefore, turns upon the question as to whether or not on the 27th day of July, 1917, when it was presented, the term of court at which the grand jury was organized was still in session. The court having undertaken to extend the term by the order quoted pbove, made and entered on the minutes on the 21st day of July, 1917, it follows that unless this order was void the court was still in session.

The position of the relator is, that the order mentioned was void. His contention is that it can not rest upon the special statute creating the Criminal District Court of Travis County for the reason that by the terms of that statute any special power that was given the court to extend its term was limited to the October term of said court; and that it can not rest- upon the general statute giving the District Courts the authority to extend their terms, because the facts or conditions, under which District Courts are given such power, did not m this instance exist. Supporting this last named contention, it is shown by the agreed statement of facts that on the 21st day of July, 1917, when 'the court made its order extending the July term, “that the court was not in the midst of the trial of any case.” Assuming that the power to extend the term rests alone upon the general statute, the question arises, first, can the relator in a habeas corpus proceeding attack the order of the court extending the term by making proof that the facts, which authorizes the court to extend its term, did not exist? A habeas corpus proceeding is a collateral and not a direct proceeding, and is available against an order of court only in the event the order is void. Ex parte Dickerson, 30 Texas Crim. App., 448; Ex parte Boland, 11 Texas Crim. App., 159; Ex parte Japan, 36 Texas Crim. Rep., 482; Ex parte Ezell, 40 Texas, 451; Perry v. State, 41 Texas, 488; Ex parte Schwartz, 2 Texas Crim. App., 74, and numerous cases cited in Michie’s Crim. Digest, p. 441; Ex parte Degener, 30 Texas Crim. App., 566.

It is a general and well established rule that when a court has jurisdiction to enter a particular order or render a given judgment, and in the exercise of this jurisdiction enters an order or judgment, regular on its face, its validity is conclusively presumed unless set aside or annulled in a direct proceeding. 23 Cyc., 1055; Sutherland v. DeLeon, 1 Texas, 250; Martin v. Burns, 80 Texas, 676; Murchison v. White, 54 Texas, 78; Michie’s Digest of Texas Reports (Civil Cases), vol. 11, p. 133, subdiv. 9, and cases there cited.

The Supreme Court, in the case of Crawford v. McDonald, 88 Texas, 630, laid down the rule in the following language: “There is, however, another rule of law equally well settled upon principles of public policy, which precludes inquiry by evidence aliunde the record, in a collateral attack upon a judgment of a domestic court of general jurisdiction, regular on its face, into any fact which the court rendering such judgment must have passed upon in proceeding to its rendition.” This principle is of universal application, and has been applied in' courts of Texas throughout their history. Williams v. Ball, 52 Texas, 603, 36 Am. Rep., 730; Brown v. Christie, 27 Texas, 73, 84 Am. Dec., 607; Heck v. Martin, 75 Texas, 469, 17, Am. St. Rep., 915; Fowler v. Simpson, 79 Texas, 611, 23 Am. St. Rep., 370; Hardy v. Beaty, 84 Texas, 562, 31 Am. St. Rep., 80.

This court, in Ex parte Tinsley, 37 Texas Crim. Rep., 527, recognized the principle in the following language: “This brings before us the question whether or not the matters and things contained in the application show a void judgment, or one which is merely erroneous; the rule being that where a court has jurisdiction over the subject matter, although its judgment may be erroneous, it is not void, and in such case it can not be reviewed on habeas corpus.” Ex parte Branch, 36 Texas Crim. Rep., 384; Ex parte Morgan, 57 Texas Crim. Rep., 551, and Ex parte Call, 2 Texas Crim. App., 497, in terms, support the rule. Exceptions to this rule will be found generally to embrace cases in which no appeal lies, such as- contempt. Ex parte Degener, 30 Texas Crim. App., 566. And such as are founded on an unconstitutional law. Ex parte Keeling, 54 Texas Crim. Rep., 118; Ex parte Coleman, 53 Texas Crim. Rep., 93; Ex parte Cain, 56 Texas Crim. Rep., 538; Michie’s Crim. Digest, vol. 3, pp. 436-441.

To determine whether or not the Criminal District Court of Travis County had jurisdiction to enter the order extending its terms which it did enter on the 21st of July, 1917, quoted above, the inquiry is, did the court have the power, that is, did the law give it the power to do so? “Jurisdiction is simply power.” Yan Meet on Collateral Attack on Judicial Proceedings, sec. 58, p. 70. Another definition is: “The power to adhere and determine and give the judgment rendered.” Ex parte Reed, 100 U. S., 13. One test of jurisdiction is as follows: “Had the court the power under any circumstances to make the order or perform the act? If this be answered in the affirmativve, then its decision upon those circumstances becomes final and conclusive until revised by a direct proceeding for that purpose.” Van Fleet on Collateral Attack, p. 83; Tallman v. McCarty, 11 Wis., 420. “Where jurisdiction depends upon the finding of a particular fact, the exercise of jurisdiction implies the finding of that fact.” Van Fleet on Collateral Attack, sec. 62; Thornton v. Baker, 10 Atl. Rep., 617. In Stuart v. Anderson, 70 Texas, 588, jurisdiction is defined as “the power to hear and determine the matter.”

The Criminal District Court of Travis County was on July 21st a. court duly organized and in session. The Act of the Legislature vested in it the power to extend its term. It exercised that power and entered an order upon its minutes stating that the term was extended. It determined that the facts existed which authorized it to make this extension. Its recorded order recites that the necessity therefor existed, and fails by any recital to show