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433 S.W.2d 897

Ex Parte Phelper

Court of Criminal Appeals of Texas

Decided October 30, 1968

Court of Criminal Appeals of Texas · decided 1968-10-30

Key passage — most relied on by later courts

““Both county and district courts have original jurisdiction in habeas corpus proceedings when attacks are made upon the validity of misdemeanor convictions; see Article 5, Section 8 of the Constitution of Texas; Article 11.05 and 11.09, V.A.C.C.P., and petitioners have a right of appeal from an order denying relief. ****** * * * * Even though the applicant may have been discharged from confinement, collateral legal consequences of his conviction may entitle him to relief, [citations omitted]. The applicant is entitled to have a hearing on the allegations which he has made.””

quoted by 1 later decision, including Ex Parte Renier

Relies on Phelper v. Decker · Phelper v. State · 85 Tex. Crim. 115 - Ex Parte Gregory v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1968-10-30

How this case has been cited

Cited by 10 later decisions — most recently January 2008

9 state decisions

5019681970198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1 OPINION

BELCHER, Judge.

¶2 This is an original application for writ of habeas corpus brought by the relator, Ben Herbert Phelper, seeking his release from custody resulting from a conviction in County Criminal Court No. 2 of Dallas County. Phelper v. State, Tex.Cr.App., 396 S.W.2d 396.

¶3 The relator alleges that he is restrained of his liberty by virtue of a judgment adjudging him guilty of violating Art. 527, P.C. Relator contends that his conviction is invalid on the ground that Art. 527, supra, is void and unconstitutional. Also, that an unconstitutional instruction on community standards was given by the court at the trial in which relator was convicted.

¶4 This court has consistently declined to exercise its original jurisdiction in *898 habeas corpus attacks upon the validity of a misdemeanor conviction, the county court, district court, or a judge of said court having jurisdiction to grant relief, and the petitioner having the right of appeal from an order denying relief. See Arts. 11.09 et seq., Vernon’s Ann.C.C.P.; Ex parte Lynn, 19 Tex.App. 120; Ex parte Gregory, 85 Tex.Cr.R. 115, 210 S.W. 204; Ex parte Smallwood, 87 Tex.Cr.R. 268, 221 S.W. 293.

¶5 In remanding to the federal district court with directions to dismiss the petition without prejudice to Phelper’s right to present to the state courts the issue of whether an unconstitutional instruction on community standards was given to the jury and whether mere possession of obscenity cannot constitutionally be a crime (Phelper v. Decker, 401 F.2d 232), the U. S. Court of Appeals, Fifth Circuit, appears to have overlooked the fact that the post conviction procedure provided in Art. 11.07 of the Texas Code of Criminal Procedure as amended in 1967 does not apply to misdemeanor convictions.

¶6 The petition for writ of habeas corpus is dismissed.

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