Opinion
Rehearing Denied Oct. 12, 1966.
W. C. Wiebusch, Houston, for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and Richard DeGuerin, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
OPINION
MORRISON, Judge.
This is an appeal from an order in a habeas corpus proceeding in which appellant was remanded to the custody of the Chief of Police of the City of Houston.
The avowed purpose of this proceeding is to test the sufficiency of the complaint upon which appellant has not yet been tried and to test the form of the bail bonds required by the City of Houston.
In Ex parte Jarvis, 109 Tex.Cr.R. 52, 3 S.W.2d 84, 57 A.L.R. 82, Judge Hawkins speaking for the Court said:
'In the present case the effort is to have this court declare in a habeas corpus proceeding that a particular information fails to charge the violation of a law, the existence of which is not questioned.
Whatever may be the rule in other jurisdictions it seems to be the settled policy in this state not to permit resort to habeas corpus proceedings primarily for the purpose of testing the sufficiency of a complaint or indictment in advance of a trial in the lower court.'
Later in Ex parte Drenner, 125 Tex.Cr.R. 331, 67 S.W.2d 870, this Court said:
'This court is not a jury, nor is it a nisi prius court. Every question that is here presented could and should be first presented to a trial court upon the support of competent testimony, and from the decision of such trial court, if unsatisfactory, an appeal could be had to this court, which could then pass upon the law and the testimony heard by the trial court.'
See also Article 11.45, Vernon's Ann.C.C.P.
The judgment remanding appellant is affirmed.