From restraint by virtue of a capias pro fine duly issued to the sheriff of Lee County, out of the office of the county clerk of said county, relator seeks relief here by an original writ of habeas corpus.
Relator was first tried in a Justice Court upon a complaint sworn to before the county attorney of said county charging a violation of what is known as the Tick Eradication law, and a fine of $25 was assessed against him. On appeal to the County Court relator was again found guilty and fined $25, and being unable to further appeal his case because of the terms of Article 87 of our Code of Criminal Procedure, relator has sued out this writ asserting the invalidity of both of the procedure under which he was convicted and the law under which the conviction was had.
We do not agree with relator's contention that an information must be filed with the complaint in the Justice Court, when a prosecution in such court is based upon a complaint sworn to before the county attorney. Ex parte Nitsche, 75 Tex. Crim. 131, 170 S.W. Rep., 1101, seems decisive of the question.
We do not think that part of Sec. 7 of Chapter 60 of the Acts of the Regular Session of the Thirty-Fifth Legislature, wherein occurs the following language: "Said election shall be ordered and held not less than sixty days after the filing of the petition," should be construed by us to hold that both the order and the election must be of date not less than sixty days after the filing of the petition for such election. We think it the plain intent of the statute that the lapse of sixty days referred to means only the holding of the election and not the date of the order therefor.
From the agreed statement of facts herein it appears that Lee County was placed in zone No. 3 by the provisions of said Chapter 60 supra, wherein the various counties of this State were grouped into three groups or zones and different dates fixed for the taking effect therein of the said tick eradication law. It will be observed from the provisions of Sec. 9 of said chapter that said tick eradication law was not to be effective in the counties in zone No. 3 until January 1, 1922. However, under Sec. 7 of said chapter it was provided that any county in any of the zones might hold an election as provided for by said Act and by this method vote itself under the provisions of said law prior to the date fixed by the general statute for the taking effect therein of same. It appears in 1919 Lee County, in accordance with the provisions of said Act, held a local option election which carried and thereby said county placed itself under the operation of said law. The complaint under which this conviction was had was filed in October, 1921. As attacking the validity of the judgment herein and the sequent legality of the restraint of relator under same, it is now urged that subsequent to the holding of the local option election referred to, and prior to the date of the instant prosecution, the tick eradication law was materially changed by the Legislature, and that, therefore, a *Page 90 prosecution under the present law for acts committed prior to January 1, 1922, — when said law became effective in all of the counties in zone 3 regardless of the holding of any local election, — cannot be maintained. Under the uniform holdings of this court since Dawson v. State, 25 Texas Crim. App. 670, we are constrained to uphold the relator's contention. The principle discussed and the rule announced in the Dawson case is seemingly sound, and is to the effect that when by a vote of the people of a particular county they have enacted in such county a given statute, or put themselves under the operation of a general statute, they must be deemed to have voted upon themselves only the law as it then was, and that amendments or changes in such general law made by the Legislature thereafter, will not be effective in such county unless and until its people have voted upon themselves the law as so amended or changed.
In Ex parte Leslie, 87 Tex.Crim. Rep., 223 S.W. Rep., 227, this court held the tick eradication law as it was in 1919, this being the date of the local option election in Lee County, defective in various particulars; and in 1920, at a Called Session of the Thirty-Sixth Legislature, the said law was so amended as to correct the defects mentioned and set out in the opinion of this court in the Leslie case, supra. There has been no local option election in Lee County since the changes made by the Legislature in the tick eradication law. Under the opinions of this court upholding and following Dawson v. State, supra, it would appear, therefore, that relator could not be legally convicted under the law as it was when adopted by Lee County at the local option election in 1919, because said law was fatally defective as held in the Leslie case; and that he could not be prosecuted for acts committed subsequent to the adoption of the 1920 amendment to the statutes above referred to, because the then law had not been put in effect in said county by a new local option election; and therefore that he could not be prosecuted for any act of his in failing and refusing to dip his cattle as required by the tick eradication law before the general State law applicable to all counties in Zone 3, became effective January 1, 1922. Dawson v. State, 25 Texas Crim. App. 170; Robinson v. State, 26 Texas Crim. App. 82; Lawhon v. State, 26 Texas Crim. App. 101; Lewis v. State, 58 Tex.Crim. Rep., 127 S.W. Rep., 808; Doyle v. State, 59 Tex.Crim. Rep., 127 S.W. Rep., 816; McElroy v. State, 39 Tex.Crim. Rep..
From what we have said it follows that in our opinion the conviction herein was invalid, and the judgment and capias pro fine were without authority of law, and that the relief prayed for must be granted. The relator will be discharged.
Relator discharged. *Page 91
ON REHEARING December 13, 1922.