Writs of Habeas Corpus, Paige Massey Attorney at Law

Writs of Habeas Corpus

The law regarding post conviction writs of habeas corpus is found in the Texas Code of Criminal Procedure under the section “11.07”. Article 11.07 provides the exclusive post conviction remedy in felony cases where the conviction is not final (such as in a probation) and is available only to review jurisdictional defects or denials of fundamental or federal constitutional rights. Writs should not be used in place of direct appeals. Many issues which would have won on appeal are sure losers when brought to the attention of the Court of Criminal Appeals for the first time by way of an application for writ of habeas corpus. However, a defect which renders a sentence void, instead of merely voidable, can be raised at any time.

It should be noted that claims cognizable based solely on the Texas Constitution cannot be raised for the first time on habeas. The burden of pleading and proof is plainly on the Applicant. In any habeas proceeding, the Applicant (his attorney) must raise facts; which if true, would entitle the Applicant to relief. The key here is to avoid stating conclusions rather than facts.

The Court of Criminal Appeals now has a form which now must be used for all applications for writs of habeas corpus. The Application is filed with the District Clerk in the county of conviction and the District Clerk assembles the file and directs it to the Court of Criminal Appeals.

To my horror, I have seen many people have a “writ writer”, “jail house lawyer”, or inexperienced attorney file a writ for them soon after they get to prison hoping to hurriedly luck into something which will speed their release from TDC. Once in a great while one of these hurried attempts will succeed, but the great danger is that for most purposes, and with very few exceptions you get one shot at a writ of habeas corpus and once that is gone, an issue found later which would be a sure winner won’t be brought before the Court. Only use experienced attorneys to draft and file writs for you.

The Court of Criminal Appeals has directed TDC and the Parole Board to resolve some routine matters to divert filings from the Court. Improperly stacked cases, improper findings of deadly weapon use, and time credit issues are examples of a few of those issues which the Court has given authority to TDC and the Parole Board to resolve.