decided: May 22, 1961.
ELLIS, CORRECTIONS DIRECTOR
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS.
Warren, Black, Frankfurter, Douglas, Clark, Harlan, Brennan, Whittaker, Stewart
Author: Per Curiam
[ 366 U.S. Page 418]
The judgment of the Court of Criminal Appeals of Texas is reversed and the cause is remanded to that court with directions to grant petitioner a hearing upon his petition for a writ of habeas corpus. Uveges v. Pennsylvania, 335 U.S. 437; Cash v. Culver, 358 U.S. 633; McNeal v. Culver, 365 U.S. 109.
MR. JUSTICE STEWART took no part in the consideration or decision of this case.
MR. JUSTICE CLARK, with whom MR. JUSTICE FRANKFURTER and MR. JUSTICE HARLAN join, dissenting.
This application for the issuance of a writ of habeas corpus was filed as an original action in the Court of Criminal Appeals of Texas. Neither the record, the briefs, nor argument of counsel indicates that such an action has ever been filed in a District Court of Texas as appears to be required by Texas procedure. See Ex parte Rodriguez,
[ 366 U.S. Page 419169]
Tex. Cr. R. -- , 334 S. W. 2d 294 (1960); Ex parte Fitzpatrick, 167 Tex. Cr. R. 376, 320 S. W. 2d 683 (1959); Ex parte Brooks, 85 Tex. Cr. R. 397, 212 S. W. 956 (1919). The judgment of the Court of Criminal Appeals might, therefore, have been based upon an independent state ground. In this condition of the record, I would affirm the judgment without prejudice to the petitioner's filing in any appropriate Texas District Court an application for a writ of habeas corpus to test out the validity of his detention. See Vernon's Tex. Code Crim. Proc., Art. 119.
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