
    Ex parte ANDRUS.
    (Court of Criminal Appeals of Texas.
    Jan. 22, 1913.
    Rehearing Denied Feb. 19, 1913.)
    1. Habeas Corpus (§ 90*) — Proceedings— Hearing on Writ — Peace.
    Petitioner having been indicted for murder in Ft. Bend county, the venue was changed to Harris county. He applied to the district judge of Ft. Bend county for a writ of habeas corpus sur bail, but the judge refused to grant the writ because of alleged disqualification, whereupon petitioner applied to the district judge of Fayette county, who granted the writ and made it returnable in Fayette county. Held that, under the rule that a writ of habeas corpus may be granted by any district judge, but must be heard in the county where the indictment was found, the judge granting the writ had no jurisdiction to hear it in Fayette county.
    [Ed. Note. — For other eases, see Habeas Corpus, Cent. Dig. § 80; Dec. Dig. § 90.*]
    2. Habeas Corpus (§ 44*) — Courts—Appeal —Hearing.
    Where petitioner was entitled to a writ of habeas corpus and to a hearing thereon, but the judge of the district court of the county where he was indicted was disqualified, and an appeal was taken from an order of a judge of another county dismissing a writ granted by him and erroneously made returnable for hearing in his' own county, the Court of Criminal Appeals would hear the application as an original proceeding.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 35; Dec. Dig. § 44.*]
    Appeal from District Court, Fayette County; B’rank S. Roberts, Judge.
    
      Habeas corpus by W. M. Andrus. Prom an order denying tbe writ, petitioner appeals.
    Affirmed, and relator remanded.
    Lane, Wolters & Storey and Brockman, Kahn & Williams, all of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for tbe State.
   HARPER, J.

Applicant was indicted by tbe grand jury of Pt. Bend county, charged with murder. Tbe venue of tbe case was changed to Harris county, when applicant applied to tbe district judge of Pt. Bend county for a writ of habeas corpus, wherein be prayed that be be granted bail. Hon. Wells Thompson, judge of tbe district court of Pt. Bend county, declined to grant tbe writ. It being made to appear that tbe judge-elect of that court was disqualified, having been of counsel for tbe state in this case, application was made to Hon. Prank S. Roberts, judge of tbe district court of Payette county, who granted tbe writ as prayed for and made it returnable to Pay-ette county.

When tbe cause came on for trial, tbe state, by her district attorney, filed a plea to tbe jurisdiction of the district court of Fayette county to bear and determine tbe matter, and this plea must be sustained. In Ex parte Overcash, 61 Tex. Cr. R. 68, 134 S. W. 700, this question is discussed, and tbe statute and decisions of this court are quoted.

However, relator filed an application in this court, asking that, in tbe event we should bold that tbe district court of Payette county had no jurisdiction in tbe premises, inasmuch as tbe district judge of Pt. Bend county is disqualified, this court grant the writ and bear and determine same. Under our Constitution and laws, relator is entitled to have tbe writ granted and a bearing had; and as tbe district judge of Pt. Bend county is disqualified, we have concluded to do so.

It further appearing from tbe record that counsel for relator and tbe state have waived tbe issuance of tbe writ, and agreed that tbe case might be beard on tbe agreed statement of facts now on file, we have carefully read same, and are of the opinion, under tbe evidence before us, tbe relator is not entitled to bail, and be is remanded to tbe custody of tbe sheriff of Harris county.  