In this article, former prosecutor and award-winning criminal appeals attorney Aaron Spolin explains how to file a Texas Writ of Habeas Corpus.
To learn how Spolin Law P.C. can handle your Writ of Habeas Corpus, call us at (866)-716-2805.
What is a Texas Writ of Habeas Corpus?
A Writ of Habeas Corpus (Latin for “that you have the body”) may be filed on behalf of a person who is unlawfully imprisoned. A writ “is the remedy to be used when any person is restrained in his liberty.” Texas Code of Criminal Procedure Article 11.01. The purpose of a Writ of Habeas Corpus is for the court to determine whether it has lawfully convicted and sentenced a person.
In a writ of habeas corpus, a defendant seeks to establish that his or her prison sentence is illegal. This can be done in two ways. First, a person may claim that the entirety of the confinement is unlawful- this means that the person was unlawfully convicted of a crime. Second, a person may claim that the length of confinement is unlawful- this means that the prison sentence is too long.
You can read more about potential arguments that can be made in a writ of habeas corpus here.
You may be eligible for release, a sentence modification, or a new trial. To learn about whether a Writ of Habeas Corpus can help you or a loved one, contact Spolin Law P.C. at (866)-716-2805 for a free consultation.
- What is a Writ of Habeas Corpus?
- The Petition
- The Procedure for Filing a Petition
- How an Attorney Can Help
The Petition
Texas Code of Criminal Conduct Article 11.07 is titled “Procedure for conviction without death penalty,” and is the statute that addresses the filing of a writ of habeas corpus for non-death penalty cases. Article 11.071 addresses the filing of a writ of habeas corpus in a death penalty case.
The code makes clear that a petition for writ of habeas corpus may only be filed when there is a “final” conviction. If there is still an appeal pending, post-conviction writ of habeas corpus will be denied.
A petition for writ of habeas corpus must identify the applicant, and the person who is restraining the applicant- often the warden of the prison. The petition must identify all arguments as to why the incarceration is unlawful. Since an applicant cannot file a second writ (unless the issue could not have been raised in a first writ), an applicant must take care to include all potential arguments in his or her first writ of habeas corpus. A petition must be signed.
The petition must include a set of facts. A coherent and compelling set of facts is vital to a writ of habeas corpus. An applicant must ensure that all vital facts are persuasively presented to the court, in support of the writ.
A separate memorandum of law may be included with a petition for a writ of habeas corpus. In this memorandum, the applicant may identify various legal authorities in support of the petition. The facts, however, must be set forth in the petition. For example, if a petition alleges that the applicant received ineffective assistance of counsel, an applicant may want to locate case law with a similar fact pattern, and submit the case law in a memorandum of law. A memorandum of law may not exceed 15,000 words if typed, or 50 pages if handwritten.
The Texas Court of Criminal Appeals has issued a prescribed form to use for a petition filed pursuant to Article 11.07. The petition must be filed with the form that is issued by the Court of Criminal Appeals. Texas Rule of Appellate Procedure 73.1(a).
If a petition does not comply with the rules, it may be dismissed. Texas Rule of Appellate Procedure 73.2.
- What is a Writ of Habeas Corpus?
- The Petition
- The Procedure for Filing a Petition
- How an Attorney Can Help
The Procedure for filing a petition
A post-conviction petition for writ of habeas corpus is returnable in the Court of Criminal Appeals. This means that the Court of Criminal Appeals will ultimately decide whether to grant the petition for a writ of habeas corpus.
A writ of habeas corpus is filed in the court that convicted the applicant. The court will then forward the writ to the State, which has 15 days to file an answer. If the State does not respond, the Court assumes that the State denies the allegations in the petition.
After the State files its answer, the court has 20 days “decide whether there are controverted, previously unresolved facts material to the legality of the applicant’s confinement.” Article 11.07(3)(c). If there are no issues, the trial court will forward the file to the Court of Criminal Appeals.
If the court decides that there are controverted, previously unresolved facts material to the legality of the applicant’s confinement,” then, within 20 days of receipt of the State’s answer, the Court will designate the issues to be resolved and order the State to reply. The court is permitted to “order affidavits, depositions, interrogatories, additional forensic testing, and hearings, as well as using personal recollection.” Article 11.07(3)(d). A hearing may be held.
After gathering evidence and/or holding a hearing, the trial court will make findings of fact and conclude whether to award habeas relief or not. The trial court then forwards the file, along with the findings of fact and conclusions of law, to the Court of Criminal Appeals, which will ultimately determine whether to award habeas relief.
- What is a Writ of Habeas Corpus?
- The Petition
- The Procedure for Filing a Petition
- How an Attorney Can Help
How an Attorney Can Help
Writing a successful petition for writ of habeas corpus requires skillful representation. An excellent attorney can make a difference. The more thoroughly the attorney reviews the record and considers the facts and issues that were both raised and not raised at trial, the more bases the attorney can find to support the Writ of Habeas Corpus. We investigate the entire trial and pre-trial record to find every legal basis to support your Writ of Habeas Corpus, and draft a persuasive and compelling petition for writ of habeas corpus.
Spolin Law P.C.’s success rate is based on our strong desire to win each case we handle. Call us at (866)-716-2805, or reach out online to learn how we can handle your Texas or Federal Writ of Habeas Corpus.