This is an application for the writ of habeas corpus, under the following facts. Applicant was prosecuted in the District Court of Williamson County under an indictment charging him with murder; and upon the trial was convicted and his punishment assessed at death. He appealed to this court, and the judgment was affirmed at the present term, and a motion for rehearing overruled. See Young v. State, decided at present term. The mandate was issued, but was not delivered to the clerk of the District Court of Williamson County, until the regular term had expired. Thereupon the judge of said district court called a special term of said court, under the provisions of chapter 83, page 116 of the Acts of the Twenty-ninth *Page 537 Legislature, for the sole purpose of sentencing applicant to death. He applies to this court for the writ of habeas corpus because the district judge of Williamson County cannot call a special term for the sole purpose of sentencing relator.
Article 1113, chapter 4 of the Revised Civil Statute reads: "In any county in this State where it may become necessary in the opinion of the district judge of the district in which said county is situated, on account of an accumulation of business, which cannot be disposed of in the time provided for the regular term of the district court, there may be held a special term or terms of the district court for the transaction and disposition of the accumulated business undisposed of as hereinafter provided for." Article 1115 provides, that the clerk shall make up six notices containing the name, style and number of each case appearing upon the docket of said court. Article 1116 provides, that the sheriff shall post the copy of said notices at six public places, etc. A careful reading of chapter 4 leads to the irresistible conclusion that it does not provide for the holding of a special term for any business save and except undisposed of business. However, applicant insists that chapter 83, page 116, of the Acts of the Twenty-ninth Legislature does not change chapter 4 of the Revised Civil Statutes in reference to the cases that can be tried at the special term. This is not correct. The Acts of the Twenty-ninth Legislature provide for the organization of a grand jury and the trial of new cases. This being true, we take it, that the district judge could call a special session of the district court for the specific purpose of sentencing applicant. The Act of the Twenty-ninth Legislature provides, that nothing herein contained shall be held to repeal any part of the provisions of chapter 4, title 28, of the Revised Civil Statutes of Texas, except so far as the same may be inconsistent with the provisions of this act. Section 1 of the Act of the Twenty-ninth Legislature provides, "When it may become advisable in the opinion of the judge of the district in which any county in the State of Texas may be situated, to hold a special term or terms of the district court therein, such special term or terms may be held." No clause in said act indicates that nothing but old business shall be disposed of at the special term; but every provision of the Act of the Twenty-ninth Legislature shows that any and all matters can be tried at said special term that could be tried at the regular term. The act of 1895 authorizing the special term of the district court of Travis and Williamson Counties, has no application to the question here considered. Nor do we think the act of 1905 is unconstitutional on the ground that the same is ex post facto. We do not see fit to discuss the matter further, but hold that it was clearly within the power granted by the Twenty-ninth Legislature, for the judge to call the special session of the District Court in Williamson County for the specific purpose of sentencing applicant. The application for the writ of habeas corpus is accordingly refused.
Writ refused. *Page 538