# Ex Parte Jimenez > Texas Supreme Court · October 22, 1958 · 159 Tex. 183 URL: https://www.frixlaw.com/law-library/cases/9766121 ## Case - **Full name:** Ex Parte A. H. Jimenez and Juan M. Puente - **Court:** Texas Supreme Court - **Decided:** October 22, 1958 - **Citations:** 159 Tex. 183; 2 Tex. Sup. Ct. J. 35; 317 S.W.2d 189; 1958 Tex. LEXIS 613 - **Precedential status:** Published - **Opinion:** Dissent by Smith - **Judges:** Garwood, Smith - **Cited by:** 25 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9766121 ## Opinion text Mr. Justice Smith joined by Justice Griffin, dissenting. I respectfully dissent. The trial court’s judgment of contempt purportedly rendered pursuant to Article 9.02 of the Texas Election Code, Volume 9, Vernon’s Texas Civil Statutes, is absolutely void. A reading of the warning given each witness, Jimenez and Puente, should be sufficient to satisfy any court that the witnesses were not in contempt of court in declining to testify. The majority relies very strongly on the action of the attorneys for the Relators in assigning as a reason for the refusal that Article 9.02, supra, was unconstitutional. The majority construes such reason to be the only reason assigned, and that such reason could be valid only in the event the Act should be held to be unconstitutional as contended by the attorneys for the Relators. Under my view of this case, we do not reach the constitutional question. This Court should not permit itself to be in a position of rendering an advisory opinion on the constitutionality of the Act involved. A holding on its constitutionality should only be made where it is necessary to a decision of the law question involved. See San Antonio General Drivers & Helpers Local No. 657 et al v. W. L. (Jack) Thornton, 156 Texas 641 , 299 S.W. 2d 911 . My purpose shall be to show the real reason why the Relators failed to testify and why they are not guilty of contempt. At the same time, it shall be my hope that the majority will become convinced that the legal reason which prompted the District Attorney to suggest in oral argument a dismissal of the proceedings was that in view of the warning given there was no lawful basis for contempt char^" against either of the Relators. *195 Mr. Jimenez, Chief of the City Detectives, after being sworn, was warned by the District Attorney: “Q. It is my duty to warn you that certain charges have been made here before the Court of Inquiry that may incriminate you, and that if charges are preferred against you, that you will be prosecuted. The law does not compel you to make any statement whatsoever, but if you would like to you may make any voluntary statement you desire to, but any statement that you make can be used in evidence when you are tried on these charges. Do you want to make a statement? “A. I refuse to testify; I have to consult to my attorney. “Q. Just a second— “A. Your Honor, I refuse to testify, but I want to talk to my attorney.” Mr. Puente, a City Detective, was given the following warning: “Q. It is my duty to warn you that certain evidence has been adduced at this Court of Inquiry that tends to incriminate you, and that you have a Constitutional privilege not to testify on the ground that anything that you might say may incriminate you. Do you want to testify before this Court of Inquiry? “A. I decline to answer under the Provision of the Bill of Rights until I confer with my lawyer.” The record clearly reflects that before either of these Relators were called as witnesses, in fact, in the very beginning of the Court of Inquiry, the attorneys raised the question of the constitutionality of Article 9.02, supra, and in that connection made the following preliminary statement: “MR. HORNBERGER: I believe you wanted me to address the Court * * * it is my understanding, Your Honor, that Mr. Hall, and Mr. Fitzgibbon, and myself are being permitted to present to the Court two point, and two points only at this time in view of the fact that at this particular time we have no official standing in this hearing.” Then the attorney stated that the two points were, first, the constitutionality of Article 9.02 of the Texas Election Code, and (2) the duplication of effort in- *196 a'smuch as the evidence would necessarily be presented' to a Grand Jury which would convene the following Monday. My position is simply that attorneys who have no purpose other than the two mentioned, or, for that matter, regardless of théir motives, cannot waive the rights Of the Relators. Each of these Relators gave a sufficient reason for refusing to make a statement, or, as stated by both of them, for refusing to testify. In view of the warning regardless of whether it was the duty of the District Attorney to give one, the witnesses were given a choice to make a statement or not. They chose not to make one. How can they be held in contempt? The witnesses were told in one breath that the law does not compel a statement, and in the next they would be sent to jail if they refused. Permit me to point out that the order of June 11, 1958, holding both Relators in contempt, is not in keeping with what actually transpired. The order does not reflect that when the Relators were brought before the Court of Inquiry they were each given the warning herein set out. It merely says that the Relators were subpoenaed as witnesses and brought before “this Court of Special Inquiry” and having been sworn, etc., refused to testify * * The witnesses after the warning said they refused to testify. In the case of Quinn v. United States, 349 U.S. 155 , 75 Sup. Ct. 668, 99 L. Ed. 964 , 51 A.L.R. 2d 1157 , it was said: “The privilege against self-incrimination is a right that was hard-earned by our forefathers. The reasons for its inclusion in the Constitution * * * are to be found in the lessons of history * * *.” The court went on to say that no ritualistic formula is necessary in order to invoke the privilege. In Our base the Relators perhaps did not use the precise language that others have been known to use in claiming the privilege, yet, when they answered that the refusal was because of “my civil rights,” it seems to me that the court should have proceeded no further in the examination of these witnesses. These Relators were under no duty to assign any reason for refusal in view of the form of the warning. The answers of each of the Relators to the warning were sufficient regardless of the subsequent statements of the attorneys. The warning given makes no hint of a promise of immunity to the Relators. It was obvious to both Relators that an attempt through the Court of Inquiry was being made to secure information from the Relators upon which criminal charges against each of them could be based. *197 Under such circumstances no man should be deprived of his liberty for one moment. The mere fact that some of the attorneys wanted the constitutional question determined and, therefore, added the reason that the Act was unconstitutional does not alter the rights of these Relators. They were acting within their legal right when they refused to testify. Without aid from their attorneys they invoked their constitutional privilege against self-incrimination. I would discharge each of the Relators. The District Attorney is of the same view. The fact that he reached such decision through reasoning conceived to be erroneous by the majority becomes immaterial. The fact remains that there was a good and sufficient reason for the dismissal of the charges. Opinion delivered October 22, 1958. Rehearing overruled November 19, 1958. Note: Writ of certiorari to Supreme Court of United States denied April 20, 1959. 359 U.S. 968 , 79 Sup. Ct. 881, 3 L. Ed. 2d 836 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9766121. Public record. Not legal advice.