
    Ex parte SMALLWOOD.
    (No. 5813.)
    (Court of Criminal Appeals of Texas.
    April 28, 1920.)
    1. Habeas corpus @=>47(1) — Applications in misdemeanor cases should be made to county judge.
    Under the express provisions of Vernon’s Ann. Code Cr. Proc. 1916, art. 169, applications for writs of habeas corpus in misdemeanor cases should be made to the county judge.
    2. Habeas corpus @=>62 — Record consisting only of application and capias held not to raise constitutional question.
    A record consisting only of the application for habeas corpus with a copy of the capias attached, and containing no complaint, statement of facts, or other proof showing the prosecution against relator, and accompanied by no brief, so that it cannot be determined under which section of Acts 35th Leg. (1917) c. 60 (Vernon’s Ann. Oiv. St. Supp. 1918, arts. 7314-7314q), the prosecution was brought, does not raise the question of the constitutionality of any of the sections of that act, and application will be dismissed for insufficiency of the record.
    Original application by W. G. Smallwood
    for writ of habeas corpus.
    Application- dismissed for insufficiency of the record.
    E. B. Martin, of Longview, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Relator presents his original application for a writ of habeas corpus, alleging that he is illegally restrained by the sheriff of Gregg county, by virtue of a capias issued out of the justice’s court of precinct No. 1 of said county, a copy of which capias is attached to and made a part of the application. The ground of said application, as stated therein, is that Senate Bill No. 108, of the Thirty-Eifth Legislature (Acts 35th Leg. [1917] c. 60 [Vernon’s Ann. Civ. St. Supp. 1918, arts. 7314-7314q]), is unconstitutional, void, and inoperative. Under our procedure, applications for writs of habeas corpus in misdemeanor cases should be made to the county judge of the county in which the applicant resides. Vernon’s O. G. P. art. 169; Ex parte Lynn, 19 Tex. App. 128; Ex parte Japan, 36 Tex. Cr. R. 482, 38 S. W. 43; Ex parte Lambert, 37 Tex. Cr. R. 435, 36 S. W. 81.

The record in this ease consists of the application with a copy of the capias attached. No complaint, or statement of facts, or other proof, documentary or otherwise, accompany said application, and, in the absence of some showing, we are unable to know that any prosecution is pending against relator, or that our judgment is properly called into action upon the legality or illegality of his restraint. No brief or presentation of the matter is on file with the clerk of this court, and we are unable to pass upon the facts of the pendency of any prosecution against relator. In this condition of the record we would be unwilling to discuss any question of the constitutionality of Senate Bill No. 108 (Acts of the ThirtyEifth Legislature), against which relator directs his attack. In the absence of some showing as to the character of the prosecution, we would not feel called upon to attempt to discuss whether various sections of said act are constitutional or not, as he might be prosecuted under one or another section of said act, and one section thereof might be held constitutional, and another section unconstitutional.

The application will be dismissed for the insufficiency of the record.  