436 F2d 1382 Jones v. Wade

436 F.2d 1382

Robert Alan JONES, Petitioner-Appellant,
v.
Henry WADE, etc., and Frank Dyson, etc., Respondents-Appellees.

No. 30509.

United States Court of Appeals, Fifth Circuit.

Feb. 12, 1971.

Bill Barbisch, Sylvia M. Demarest, Dallas Legal Services Project, Dallas, Tex., for appellant.

N. Alex Bickley, City Atty., Thomas B. Thorpe, Joseph G. Werner, Asst. City Attys., Edgar A. Mason, Asst. Dist. Atty., Dallas, Tex., Henry Wade, Criminal Dist. Atty., Dallas County, Tex., for appellee Henry Wade.

Before JONES, BELL, and SIMPSON, Circuit Judges.

PER CURIAM:

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1

The civil rights suit underlying this appeal was truncated by dismissal without an evidentiary hearing and without findings of fact. Under notice pleading concepts, the complaint is sufficient to create a conflict between the First Amendment and a Texas statute regulating conduct concerning the flag of the United States. Article 152, Vernon's Ann. Texas Penal Code. A question is also presented as to plaintiff's standing to assert the First Amendment question.

2

We are without a settled record as to the facts relating to plaintiff's arrest and the state charges which were pending, if any, at the time the federal suit was filed. In sum, we are not able to consider the questions presented in the absence of the basic facts surrounding the claimed events. On remand, the district court is directed to take such action as may be necessary to result in findings of fact having to do with those matters relating to standing, the anti-injunction statute, 28 USCA 2283, and the constitutional question presented.

3

Vacated and remanded for further proceedings not inconsistent herewith.

JONES, Circuit Judge (dissenting):

4

I do not find as does the majority any conflict between the Texas statute and any provision of the United States Constitution. I would leave the appellant where the district court truncated him.