
    STATE ex rel. SPENCER, Co. Atty., et al., v. NABERS, District Judge, et al.
    (No. 4129.)
    (Court of Criminal Appeals of Texas.
    June 23, 1916.)
    Prohibition by the State, on the relation of F. M. Spencer, County Attorney, and another, against J. A. Nabers, District Judge, in the case of Dave Barnes against B. F. Walker and F. M. Spencer.
    Ordered that the writ issue as prayed.
    C. C. McDonald, Asst. Atty. Gen., for the State. D. E. Decker, of Quanah, for respondents.
   PRENDERGAST, P. J.

This cause is on all fours with No. 3721, State of Texas ex rel. John B. McNamara, County Attorney, v. Erwin J. Clark, District Judge, et al., 187 S. W. 760, from McLennan county, which was fully discussed and decided by this court on December 15, 1915, in an opinion rendered and judgment entered on that date.

It is entirely unnecessary to herein again discuss the question. Among other things, it is conclusively shown in this cause that Dave Barnes, the party at whose instance J. A. Nabers, judge of the Forty-Sixth judicial district of Texas, including Hardeman county, granted a writ of injunction against B. F. Walker, sheriff of Hardeman county, Tex., and F. M. Spencer, county attorney of said county, has, and had, no vested property right whatever, and had none at the time he applied for and obtained from said judge a writ of injunction against said sheriff and county attorney; and that the said district judge had no power, authority, or jurisdiction to grant said order of injunction; and that his protended order therein to that effect is a nullity and absolutely void; and that he had, and has, no authority, power, or jurisdiction whatever to attempt to enforce the same against the said Walker, sheriff, and Spencer, county attorney. Said sheriff and county attorney be, and they are hereby, released and relieved from any and all restraint sought to be placed upon them, or either of them, in the performance of their official duties by virtue of said void order and pretended writ of injunction.

It is therefore the order of this court that the clerk of this court at once issue a writ of prohibition, directed to said J. A. Nabers, judge as aforesaid, requiring that he desist from any further interference whatever with or hindrance of said sheriff and county attorney, or either of them, or the successors of them, or either of them, from instituting and prosecuting any and all criminal proceedings they, or either of them, deem it necessary or proper as such officers under their official oaths against said Dave Barnes for the violation, or alleged violation, of the pool hall law of this state. And the clerk of this court is further directed and required to at once issue to said Dave Barnes and his attorney, D. E. Decker, a writ, prohibiting them, and each of them, from taking any further action or proceeding whatever in cause No. 1247 on the docket of the district court of said Hardeman county, Tex., wherein said Dave Barnes, acting by and through his said attorney, filed in said district court against said sheriff and county attorney and obtained an order of injunction and writ thereunder, prohibiting said sheriff and county attorney from proceeding to prosecute the said Dave Barnes for a violation, or an alleged violation, of said pool hall law, as they, the said sheriff and said county attorney, their successors, or the successor of either of them, may deem it their duty as officials to so prosecute.

It is hereby further ordered that any. and all other writs necessary or proper to enforce this judgment are ordered to be issued by the clerk of this court.

DAVIDSON, J., dissents.  