Bushnell v. Ellis/Dissent Clark

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 indicate 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, 1960, 169 Tex.Cr.R. --, 334 S.W.2d 294; Ex parte Fitzpatrick, 1959, 167 Tex.Cr.R. 376, 320 S.W.2d 683; Ex parte Brooks, 1919, 85 Tex.Cr.R. 397, 212 S.W. 956. 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 filing in any appropriate Texas District Court an application for a writ of habeas corpus to test out the validity of his detention. See Vernor's Tex.Code Crim.Proc. Art. 119.

Mr. Justice STEWART took no part in the consideration or decision of this case.