Relators were taken into custody under a capias pro fine alleged to have been issued out of the justice court of Gillespie County, Texas. A writ of habeas corpus was awarded, and, after a hearing, they were remanded to custody. Hence this appeal.
No certified judgments of conviction in the justice court appear to have been introduced in evidence. On the contrary, the record affirmatively shows that at the time relators were remanded to custody such judgments were not before the court and that relators were held solely by virtue of a capias pro fine. There are in the transcript two judgments of conviction in the justice court of Gillespie County which appear to have been filed with the papers of this cause more than a week after relators were remanded to custody. These instruments have no place in the transcript and are not entitled to consideration. They were not before the trial judge.
Concluding as we must, under the record presented, that relators were held solely by virtue of the capias pro fine, we look to such instrument to determine whether it was sufficient to authorize the detention of relators. It is defective in several particulars. It is not signed by the justice of the peace. The amount due or unpaid on the fine is not shown. The capias was returnable January 10, 1939. It was executed four days thereafter. Referring to a capias pro fine, Art. 789, C. C. P., reads as follows: "Where such capias issues, it shall state the *Page 310 rendition and amount of the judgment and the amount unpaid thereon, and command the sheriff to take the defendant and place him in jail until the amount due upon such judgment and the further costs of collecting the same are paid, or until the defendant is otherwise legally discharged."
We are constrained to hold that relators are illegally restrained.
The judgment is reversed and the relators ordered discharged.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.