Ex parte Murphy , 27 Tex. Ct. App. 492 ( 1889 )

Willson, Judge.

On the fifth Monday after the first Monday in March, 1889, being the eig'hth day of April, a term of the district court for Karnes county was begun and held in said county, and at said term the applicant Joe Murphy Was convicted and sentenced for the felony of incest. He applied to the Hon. H. 0. Pleasants, judge of said court, for the writ of habeas corpus, which was granted, and upon a hearing of said writ he was remanded to the custody of the sheriff of said county, that said' sentence might be executed. He has appealed to this court, insisting that said conviction is illegal and void, because obtained and rendered at a time when a legal term of the district court of Karnes county could not be held.

The facts are that the said term, of court was ’ held at the time fixed by the act of 1885 (Laws, 1885, p. 8); that is, commencing on the fifth after the first Monday in March. On April 2, 1889, six days prior to the convening of said term on April 8, an act was passed by the legislature changing the time of holding said court in said county to the fourth Monday in March. This act contains an emergency clause, and declares that it shall take effect from its passage. Applicant contends that after the passage of said act of April 2, 1889, a legal term of the district court for Karnes county could not be held except at the times prescribed by said act.

Opinion delivered April 24, 1889.

We are of the opinion that the term of said court at which the conviction was had was a legal term. If it were held otherwise, the effect would be to deprive Karnes county of one term of said court for the present year, when the Constitution declares that two terms of the district court shall be held each year in each county. (Const., art. 5, sec. 7.) In construing an act of the legislature, it is the duty of a court to so interpret the legislative intent as to harmonize the provisions of the act with the Constitution, if this can be done reasonably. It must be presumed that the Legislature did not intend to disregard the above cited provision of the Constitution by depriving Karnes, or any other county in the district, of the constitutional right to have two terms of the district court each year. If such was the intent, the act would be void, and the courts in that district would have to continue to be held at the times fixed by the old law.

notwithstanding the emergency clause in said act of April 2, we feel justified in holding that it was not the legislative intent that said act should immediately take effect, but that it should become operative only at a time when it would not deprive any county in the district of its two terms of court. In this view we are sustained by Womack v. Womack, 17 Texas, 1, and by Graves v. The State, 6 Texas Court of Appeals, 228, which decisions are in point, and, we think, are conclusive-of the question in this case. We therefore conclude that the act of April 2, 1889, is constitutional, but that it does not take effect so as to interfere with the holding of the district courts in said district, until said courts can be held at the dates there in fixed, without depriving any county in said district of two terms of said court during the present year.

The judgment remanding appellant to the custody of the sheriff is affirmed.

Affirmed.