Ex parte Hawthorne , 151 Tex. Crim. 283 ( 1948 )

HAWKINS, Presiding Judge.

This is an appeal from an order of the Hon. Frank Williford, Jr., Judge of the Criminal District Court of Harris County, Texas, remanding relator in an extradition proceeding.

On June 2, 1947, the said judge granted a writ of habeas corpus and set same down for hearing. At relator’s request final action by the court was postponed until the 3d day of October, 1947, and the appearance bond of relator before said court was fixed at $300.00, which was executed and approved. When the order remanding relator was finally made, the judgment recited as follows: “* * * But as no officer appears to take the Relator into custody, Relator is ordered released on original bond in the sum of $300.00. To which action of the Court Relator excepts and gives notice of appeal in open Court to the Court of Criminal Appeals of the State of Texas, at Austin. * * *”

It is made known to this court that relator is not in jail in Harris County, Texas, nor in the custody of the sheriff of said county, but was released on an appearance bond, and has not been in the custody of the sheriff since released on said appearance bond, and is not under an appeal bond to this court.

It has been the holding of this court that under the Acts of the 40th Legislature, p. 66, Ch. 43, (1927), Vernon’s Ann. Tex. C. C. P., Art. 857a, relator may be released upon bail fixed by the trial court pending appeal from an order in habeas corpus remanding relator in extradition cases. Ex parte Anderson, 133 Tex. Cr. R. 589, 113 S. W. (2d) 551.

. It appearing that relator is not in custody, and not under an appeal bond binding him to abide the result of his appeal, this court is without jurisdiction to entertain said appeal, and same is dismissed.