Habeas Corpus. In Municipal Court. Presented by: Judge Pamela Harrell Liston

Transcription

1 Habeas Corpus In Municipal Court Presented by: Judge Pamela Harrell Liston Texas Municipal Courts Education Center Academic Year Regional Judges Seminar

2 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! 2

3 1 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 3

4 2 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." 4

5 Statutory Habeas Corpus in Texas Chapter 11 of the Texas Code of Criminal Procedure governs Habeas Corpus Article 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. 5

6 Article 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 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. 6

7 Procedure for Misdemeanors 1. A petition is filed with the county judge pursuant to Article of the CCP. Article says that either party who is seeking relief or any person for him, may present the petition. Article 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 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 and 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. 7

8 Petition Requisites Article 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. 8

9 Constructive Custody: Confinement and Restraint Article and define "confinement" and "restraint." They state: 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 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. 9

10 3 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) 10

11 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. 11

12 4 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. 12

13 The End 13