habeas corpus - tmcec · 2014-04-29 · privilege of the writ of habeas corpus shall not be...
TRANSCRIPT
Habeas Corpus
Presented by: Judge Pamela Harrell Liston
Texas Municipal Courts Education Center
2013-2014 Academic Year
Regional Judges Seminar
In Municipal Court
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By the end of the session participants will be able to:
1. Define habeas corpus; 2. Explain the difference between statutory and constitutional habeas corpus;
3. Describe instances where habeas corpus may be utilized in the context of Class C misdemeanors; and
4. Describe the potential responsibilities of the judge in habeas corpus matters.
Let's get started!
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What is habeas corpus?
Habeas corpus is translated to mean "You have the body."
A writ is an order issued by a court requiring that something be
done or giving authority to do a specified act.
A writ of habeas corpus is an order requiring a detention official
to bring a person ("a body") before a court to determine if the
person is lawfully imprisoned.
"Bring forth the body!"
Primary function of the writ of habeas corpus is to release from
unlawful imprisonment.
habeas corpus ad subjiciendum
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Constitutional Habeas Corpus
"The GREAT writ"
U.S. Constitution, Art. I, §9, cl.2
Under the U.S. Constitution, the right of writs of habeas corpus
are granted in Article I, Section 9, clause 2 which states, "The
Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety
may require it."
Texas Constitution, Art. 1,§12
Under the Texas Constitution, the right of writs of habeas
corpus are granted in Article 1, Section 2 which states, "The
writ of habeas corpus is a writ of right, and shall never be
suspended. The legislature shall enact laws to render the
remedy speedy and effectual."
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Statutory Habeas Corpus in Texas
Chapter 11 of the Texas Code of Criminal Procedure governs
Habeas Corpus
Article 11.01 explains what a writ is. It states:
The writ of habeas corpus is the remedy to be used
when any person is restrained in his liberty. It is an
order issued by a court or judge of competent
jurisdiction, directed to any on having a person in his
custody, or under his restraint, commanding him to
produce such person, at a time and place named in
the writ, and show why he is held in custody or under
restraint.
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Article 11.09 governs applications for writs of habeas corpus in
misdemeanor cases. It states:
If a person is confined on a charge of misdemeanor,
he may apply to the county judge of the county in
which the misdemeanor is charged to have been
committed, or if there be no county judge in said
county, then to the county judge whose residence is
nearest to the courthouse of the county in which the
applicant is held in custody.
Section 30.00006 of the Government Code adds a provision
applicable to judges of courts of record. It states in subsection
(e):
The municipal judge shall take judicial notice of state
law and the ordinances and corporate limits of the
municipality. The judge may grant writs of
mandamus, attachment, and other writs necessary to
the enforcement of the jurisdiction of the court and
may issue writs of habeas corpus in cases in which the
offense charged is within the jurisdiction of the court.
A municipal judge is a magistrate and may issue
administrative search warrants.
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Procedure for Misdemeanors
1. A petition is filed with the county judge pursuant to
Article 11.09 of the CCP. Article 11.12 says that either
party who is seeking relief or any person for him, may
present the petition. Article 11.13 says that the word
"applicant" applies to the person for whom relief is sought
but that any other person may sign and present the
petition. [Note: Article 11.16 allows a judge to issue a writ
on his/her own motion.]
2. There is no specific notice provision in the CCP.
3. A hearing on the motion is set on the earliest day which
the judge can devote to the hearing. Articles 11.10 and
11.11.
4. Writ of habeas corpus shall be granted "unless it be
manifest from the petition itself, or some documents
annexed to it, that the party is entitled to no relief
whatever."
5. If the petition is granted, the judge issues order releasing
the applicant from restraint in whatever form appropriate
to effect release.
6. Appeal can be taken to Court of Appeals.
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Petition Requisites
Article 11.14 provides the requisites of the petition. It states:
The petition must state substantially:
1. That the person for whose benefit the
application is made is illegally restrained in his liberty,
and by whom, naming both parties, if their names are
known, or if unknown, designating and describing
them;
2. When the party is confined or restrained by
virtue of any writ, order or process, or under color of
either, a copy shall be annexed to the petition, or it
shall be stated that a copy cannot be obtained;
3. When the confinement or restraint is not by
virtue of any writ, order or process, the petition may
state only that the party is illegally confined or
restrained in his liberty;
4. There must be a prayer in the petition for the
writ of habeas corpus, and
5. Oath must be made that the allegations of the
petition are true, according to the belief of the
petitioner.
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Constructive Custody: Confinement and Restraint
Article 11.21 and 11.22 define "confinement" and "restraint."
They state:
11.21. The words "confined," "imprisoned," "in
custody,""confinement," "imprisonment," refer not
only to the actual, corporeal and forcible detention of
a person, but likewise to any coercive measures by
threats, menaces or the fear of injury, whereby one
person exercises a control over the person of
another, and detains him within certain limits.
11.22. By "restraint" is meant the kind of control
which one person exercises over another, not to
confine him within certain limits, but to subject him
to the general authority and power of the person
claiming such right.
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How can habeas corpus be utilized
in Class C cases?
Ex Parte Rinkevich, 222 S.W.3d 900 (Tex. App. – Dallas 2007, no
pet.)
State v. Morales, 322. S.W.3d 297 (Tex. App. – Dallas 2010, no
pet.)
James v. Dallas County Criminal Court of Appeals Number 1,
2012 Tex. Crim. App. Unpub. LEXIS 876 (Tex. Crim. App., Sept.
12, 2012)
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Actual listserv scenario: A defendant was convicted and had
paid the fine. Six months later, he filed a writ of habeas corpus
claiming his lawyer didn't explain that the conviction would be
final if he paid the fine. The judge held an ex parte hearing
before the prosecutor arrived, and the judge granted the
motion as soon as the prosecutor arrived. Prosecutor did not
appeal for lack of city funds.
Actual municipal judge scenario: A defense attorney
threatened a municipal judge that if the judge ruled against
him he was going to file a writ of habeas corpus and have the
judge look foolish. The judge was rattled not knowing exactly
what a writ of habeas corpus was or how it operates, and he
feared looking like he didn't know what he was doing. The
judge ultimately ruled what he believed the facts and the law
required.
Actual practice scenario: Defense attorneys have been filing
petitions with county judges for release of a defendant before the
city judge acting in his/her capacity as magistrate has the
opportunity to provide magistrate's warnings. Defendant is
released on habeas corpus issued by county judge who has set the
defendant's bond without having seen magistrate.
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What is the judge to do?
1. Be ready to receive a petition. (Your prosecutor should file
a response.) Examine the petition to make sure that
every requisite is met.
2. Hold a hearing. Give both sides an opportunity to be
heard. Do not hold an ex parte hearing or conversation.
3. Make a ruling to either grant or deny the petition. If
granted, provide the appropriate remedy which may
include: reversing (i.e. acquitting), ordering new trial, or
providing other appropriate remedies.
4. Issue your ruling in the form of a written order.
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The End