Ex Parte Joe Day , 125 Tex. Crim. 8 ( 1933 )

Applicant presents an original application for a writ of habeas corpus to this court asking discharge from custody of the Constable of Precinct No. 3 of Travis County, because of the unconstitutionality of section 23 of chapter 212, Acts of Regular Session of 42nd Legislature, as amended by section 11-a of House Bill 154, being chapter 162, Acts of Regular Session of 43rd Legislature. An inspection of the affidavit to the complaint upon which applicant bases his illegal arrest, discloses the fact it is signed by one J. A. Woody, and apparently sworn to and subscribed before one T. E. Johnson, Justice of the Peace of Precinct No. 3 of Travis County, Texas. Neither the affidavit nor the jurat bear any date. They are fatally defective, and can not furnish any proper basis for an arrest, and certainly none for an application for a writ of habeas corpus. We might observe that in Ex parte Turner,55 S.W.2d 833, this court held that the first statute referred to in applicant's application, to-wit: that contained in section 23 of chapter 212, Acts of Regular Session of 42nd Legislature, was unconstitutional. If the matter was properly before us for consideration we would call attention to the further fact that the caption of House Bill 154, which is chapter 162, Acts of Regular Session of 43rd Legislature, contains nothing in any way relating to or comprehending the enactment of what is section 11-a of said chapter. The caption sets out and comprehends the enactment of certain statutes. Section 11-a is manifestly an amendment to a statute not referred to or comprehended by the caption. We would further observe, however, that the question of the constitutionality of the law herein attacked seems to be a moot question inasmuch as at the First Called Session of the 43rd Legislature an original act was passed which if valid, regulates and controls the occupation tax upon the very matters that are embraced in section 11-a, supra, which latter act would appear to supersede prior acts and to be the existing law on the subject.

The application for the writ of habeas corpus will be dismissed at the cost of the applicant.

Dismissed.