
    Ex parte SIMMONS.
    (No. 9122.)
    (Court of Criminal Appeals of Texas.
    Nov. 25, 1925.)
    Animals <&wkey;5(J(2) — Stock law election invalid for variance in description of precinct in petition and order for election.
    In prosecution for violation of Pen. Code 1911, art. 1245, variance in description of precinct, contained in petition for election, to put stock law in force, from the description in the order of election, held, fatal to validity of election.
    Commissioners’ Decision.
    Appeal from Sherman County Court; E. G. Pendleton, Judge.
    Application for habeas corpus on the relation of Jack Simmons, charged with violation of the Stock Law, was refused, and de-lator appeals.
    Reversed, and relator discharged.
    R. E. Stalcup, of Dalhart, for appeHant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty.', of Tyler, for the State.
   BERRY, J.

Relator was charged by a complaint in the justice court of precinct No. 3 of Sherman county, Tex., with violation of article 1241 of the Penal Code, in that he knowingly and willfully permitted his stock to run at large in said precinct No. 3 in violation of the stock law. He sued out a writ of habeas corpus before the county judge of said county, who, after hearing the facts, remanded relator.

Relator contends that the election seeking to put the stock law in force in said precinct in Sherman county was void, among other things, for the reason that there is a fatal variance between the description of the territory contained in the petition for the stock election and that described in the order of the commissioners’ court ordering the election and the notice of the election. The field notes in the petition calling for the election in seeking to describe justice precinct No. 3 designate the beginning corner of said precinct as being at the comer of section 54 in block 2B of the G. H. & H. Railway survey, while the order of the commissioners’ court calling said election describes the beginning comer of said justice prepinet No. 3 as being located in section 54, block 3B of the G. H. & H. Railway survey in said county. The agreed statement of facts shows that the beginning corner described in the petition for the election is eight miles from the beginning comer contained in the order for the election. Entirely different territory is necessarily described in the petition from that described in the order. We think this variance is fatal to the validity of the election. The article of the statute under which the election was called provides that, if the petition be from the freeholders of a subdivision of a county, such subdivision shall be particularly described and the boundaries thereof designated, and this provision of the statute has been held by this court to be mandatory. Ex parte Gulledge, 57 Tex. Cr. R. 156, 122 S. W. 21; Alsobrook v. State, 86 Tex. Cr. R. 271, 216 S. W. 167; Railway v. Tolbert, 100 Tex. 483, 101 S. W. 206.

It is clear, under the decisions of this court, that, under the Stock Election Law, no election can be ordered by a commissioners’ court of its own motion; it must be upon a petition such as is mentioned in the statute. Ex parte Kimbrell, 47 Tex. Cr. R. 333, 83 S. W. 382. This being true, it occurs to us that it logically follows that the order of the commissioners’ court for the election must follow the petition therefor, which has been filed, with respect to the description of the territory to be affected by such election. We accordingly hold that the variance between the , description of tlie territory embraced in tbe petition for tbe election and that described in tbe order for tbe election is fatal to its validity.

Relator also contends that tbe election was void for the reason that at the time of filing the petition and the order of the commissioners’ court, and the holding of the election, there existed in the proposed stock law district an incorporated town, duly incorporated under the general laws of the state. It is sufficient to say that in our opinion tbe facts agreed tyx in this ease are not sufficiently certain to enable us to determine that an incorporated 'town is situated in the district within which the election was held.

There are many other questions .raised by the record in this case, but we do not deem it necessary to discuss them.

Because of the fatal variance between the description contained in the petition for the election and the order of the commissioners’ court for the election, it is our opinion that the election was void, and that the relator should therefore be discharged.

PEE OURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Ap>-peals and approved by the court. 
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