July-August 2011

Expediting pretrial habeas writs

John Stride

TDCAA Senior Appellate Attorney

The courthouse is open. As usual, you are juggling court appearances, plea negotiations, telephone calls, research, witness interviews, coordinating with investigators, and preparing for upcoming cases. You are busy. A staff member approaches to hand you a document. The document is freshly filed and labeled “Writ,” “Pretrial Writ,” “Pretrial Writ of Habeas Corpus,” or some variant of these titles. Mentally you run through some especially scurrilous words that come to mind on such occasions, but you move past the internal outburst and ask yourself, “What to do?”

    This article aims to provide a solid foundation for dealing with pretrial writs of habeas corpus. It lays out when a pretrial writ is appropriate, the issues that are entertained, the requirements of the petition, how to respond, the nature of hearings, and appellate remedies.

When a writ is appropriate

A pretrial habeas proceeding is considered a separate criminal action from the primary criminal proceeding.#1 An important consequence is that, in contrast to a challenge to an order denying a motion to dismiss—which would be addressed only on appeal after conviction and sentencing—an order denying pretrial habeas relief on the merits is immediately appealable—before trial begins.2#

        By providing an avenue of relief before trial, some rights, such as those against double jeopardy and excessive bail, are best protected. At the same time, the courts have been careful to circumscribe pretrial habeas so as to prevent the procedure from becoming a method to secure review of matters that should reach the appellate courts only after trial. Thus, a pretrial writ is not available if there is another adequate remedy at law, for instance, an appeal.3# Fundamentally, the Court of Criminal Appeals has announced, “Pretrial habeas should be reserved for situations in which the protections of [the] applicant’s substantive rights or the conservation of judicial resources would be better served by interlocutory appeal.”#4 Simply, pretrial habeas is an “extraordinary” remedy.#5

The issues that are ­entertained

As a preliminary matter, even before considering the merits of the claims made, prosecutors should determine whether the claims are permitted. Should the claims be outside the scope of those allowed in a pretrial writ—and, therefore, not cognizable—and relief granted, the writ has been misused and the State should appeal to correct the abuse.6# It also bears remembering that it is the substance of, rather than the label attached to, the document that controls how it is treated.7# Therefore, the nature of a document labeled as a writ may reveal that it is no more than a motion to dismiss.#8 If so, the writ should be dismissed.

    Permissible—or cognizable—pretrial claims are few.9# Over the years, the courts have rejected many pretrial challenges. Generally, a claim is addressed in a pretrial writ of habeas corpus only if, resolved in the defendant’s favor, it would deprive the trial court of the power to proceed and result in the defendant’s immediate release.#10 Accordingly, “First, the accused may challenge the State’s power to restrain him at all. Second, the accused may challenge the manner of his pretrial restraint, i.e., the denial of bail or conditions attached to bail. Third, the accused may raise certain issues which, if meritorious, would bar prosecution or conviction.”#11 Broken down further, those claims that may be challenged in a pretrial writ include (because some claims are superficially alike, it is advisable to check both lists below):

  • failure to timely charge after arrest (i.e., pre-indictment delay);#12
  • failure to allege any tolling language in the indictment;#13
  • facial challenges to a statute (i.e., claims that a statute is unconstitutionally vague in all applications);#14
  • extradition;#15
  • pretrial bond (i.e., the amount, conditions, and reinstatement of personal bond);16#
  • double jeopardy challenges (i.e., asserting a prior conviction or acquittal);#17
  • collateral estoppel;#18
  • selective prosecution;19#
  • the existence of probable cause to believe that a person is guilty of an offense;20# and
  • affliction with disease.21#

Rejected pretrial claims include:

  • speedy trial claims (i.e., post-indictment delay—constitutional and statutory);#22
  • Interstate Agreement on Detainers claims;#23
  • “as applied” constitutional challenges to a statute (i.e., a claim that a statute is unconstitutional as applied to a defendant’s particular facts and circumstances);#24
  • sufficiency of pleading language;#25
  • sufficiency of tolling language;#26
  • in pari materia claims (i.e., when statutes cover similar subjects—the specific controls over the general);#27
  • disqualification of the elected attorney;28#
  • request for a court-appointed attorney;#29
  • separate jury determination of retardation;30#
  • denial of motion to suppress;31# and
  • double jeopardy claims asserting multiple punishments.32#

Requirements of the ­petition

Chapter 11 of the Code of Criminal Procedure governs all pretrial habeas proceedings.33# In the event of your receiving a petition, it is worth reviewing this chapter because most prosecutors are not familiar with its 60-plus provisions. Disappointing as it is, I’m sure, in this article we can hit only the highlights.

    Unlike an application for a state writ of habeas corpus after a felony conviction becomes final, there is no particular form that must be used to generate a petition for a pretrial writ.34# Nevertheless, a petition should conform to certain procedural requirements.#35 Most importantly, an oath must be made that “the allegations of the petition are true, according to the belief of the petitioner.” A prayer for specific relief is also required. Although these statutory requirements are not jurisdictional, a court may dismiss the petition for non-compliance.#36

    The petition should be filed in a court having jurisdiction over an original petition for writ of habeas corpus, usually a county or district court. Courts of appeal do not have original jurisdiction to issue writs of habeas corpus in criminal law matters.#37 The person on whom the writ is served must make a “return.”#38

    If a defendant has already sought a writ, he may seek a second if he states in a motion that, since the hearing on his first motion, he has obtained further “important testimony which … was not in his power to produce at the former hearing.”39# Additionally, he needs to set forth the “newly discovered” evidence and, if it be a witness’ testimony, include the witness’ affidavit.

    Once the return of the writ has been made and the applicant has been brought before the court, he is no longer detained on the original warrant or process but rather under authority of the habeas corpus.#40

How to respond

Although there is no statutory duty on the State to respond as there is for an art. 11.07 writ, most trial courts probably expect a response, and a prosecutor is wise to file one.41# Given the opportunity to do so, if prosecutors do not file a reply, we cannot expect the trial court to consider all our arguments or an appellate court to give us the benefit of the doubt should we attempt to appeal the trial court’s ruling.

    As with a written reply to most defensive pleadings, prosecutors should prepare a comprehensive (but succinct) response, laying out the pertinent facts and relevant law, in addition to raising any alternative arguments. Remember a couple of important appellate rules: If a trial court’s ruling is correct under any theory applicable to the case, it will be upheld.42# Also, if a theory was not presented to the trial court to consider, an appellate court will hold the theory forfeited on appeal.#43 Thus, if a dismissal is appropriate, seek it. If relief should be denied, assert it. If a hearing should not be held, argue it. Likewise, remembering our duty to “see that justice is done,” if a hearing is necessary or relief appropriate, request them.44# On occasion it may even be necessary to agree to some relief but not all. Employ lots of headings to assist the trial court in scanning through and understanding the State’s position.

    Subsequent events can render a claim moot, and the State should be ready to put to sleep such a claim. The usual example is where a person not yet indicted files a writ complaining about the absence of an indictment. Meanwhile, an indictment is returned. If this occurs, the appellate court should dismiss the claim raised in the writ as moot.45#

    Because there is no briefing schedule applicable to pretrial writs—except that imposed by the trial court, if any—a response should be promptly prepared, filed, and served. Statute requires that a writ be granted “without delay,” unless it is clear that no relief is appropriate.46# Besides the risk of incurring the wrath of the trial judge, there are statutory penalties, both criminal and civil, for disobeying a writ.#47 Most trial judges are acutely aware of any pending pretrial writs, so it is incumbent on prosecutors to act and act promptly.

The nature of hearings

Once a petition for pretrial habeas corpus relief has been filed, the trial court must schedule a hearing on the application for the “earliest day” that the trial court can devote to such a hearing.48# Hearings can be live, in open court with the arguments of counsel and even the testimony of witnesses, or simply conducted on the paper pleadings and attached documentation.#49 In the face of any contradictory affidavits, however, a live hearing is the better practice to permit a proper evaluation of credibility and demeanor and the use of cross-examination to assist in exposing the truth.#50

    The trial court has an obligation to: 1) examine the return and all documents attached and 2) hear the testimony of both parties before remanding the defendant to custody, admitting him to bail, or discharging him.51# But if the defendant has been indicted, the trial court cannot discharge him without bail.#52 The burden of proof is upon the petitioner, and the decision of the trial court to grant or deny relief is a matter of discretion.#53

Appellate remedies

As is usually the case, an appeal from a trial court’s ruling will lie in the court of appeals’ district in which the trial court is located. But a defendant’s appeal is restricted to situations where the trial court held a hearing on the merits and denied relief. No appeal can be taken from the trial court’s refusal to issue a writ or grant a hearing, even after a hearing.54# The appellant must have a written ruling from the trial court. If the trial court states something orally but does not reduce it to writing so “that [it] memorializes the judge’s intent to authenticate the action taken,” it is likely that the purported appeal will be dismissed because there has been no ruling on the merits.#55

    If a defendant is unable to appeal, remedies may include seeking either a petition for another writ before a different judge with jurisdiction or, in the proper circumstances, a writ of mandamus against the initial judge.#56

    The State, as well as the defense, can appeal from a ruling adverse to its position.#57 The State, however, may be limited to appealing only those issues laid out under its general right to appeal.#58 Accordingly, the State would be foreclosed from appealing some of the issues the defendant may raise. When an appeal is permitted and after the court of appeals has issued its opinion, a petition for discretionary review may also be sought by the losing party in the Court of Criminal Appeals.#59

    Just as for the defense, when an appeal will not lie, the State should contemplate a writ of mandamus.60# The burden is tough but, with the proper circumstances, not always insurmountable.#61 By the way, the remedy from an adverse ruling on a writ of mandamus in the intermediate courts is to seek a writ of mandamus—not a petition for discretionary review—in the Court of Criminal Appeals.62# Both writ filings are original proceedings.

    One last but critical matter on appeals: A trial court’s decision on a writ will not be disturbed on appeal unless the trial court acted without reference to any guiding principles.63#


Pretrial writs are not especially common and, when preparing for trial, they can certainly throw a wrench in the works. Knowing how to handle them quickly and efficiently affords prosecutors more time and confidence when under pressure. Of course, if the appellate process is engaged, trial will be delayed but, otherwise, prompt action on our part may dispose of some writs and claims with alacrity allowing us to declare all the sooner, “The State is ready, Your Honor.”


1 See, e.g., Green v. State, 999 S.W.2d 474, 477 (Tex. App.—Fort Worth 1999, pet. ref’d).
2 See Greenwell v. Court of Appeals for the Thirteenth Judicial District, 159 S.W.3d 645, 650 (Tex. Crim. App. 2005) (orig. proceeding).
3 Ex parte Hopkins, 610 S.W.2d 479 (Tex. Crim. App. 1980); Ex parte Lamar, 184 S.W.3d 322, 324 (Tex. App.—Fort Worth 2005, pet. ref’d) (direct appeal available for speedy trial claim).
4 Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001).
5 Ex parte Ellis, 309 S.W.3d 71, 79 (Tex Crim. App. 2010). Indeed, this placed habeas writs in the same category as mandamus writs.
6 Id.
7 See Ex parte Caldwell, 58 S.W.3d 127, 130 (Tex. Crim. App. 2000); In re Baugh, No. 12-09-00121-CR, 2009 Tex. App. Lexis 4525 (Tex. App.—Tyler, June 17, 2009, no pet.) (not designated for publication).
8 See, e.g., Ex parte Ahmad, No. 02-05-338-CR, 2007 Tex. App. LEXIS 209 (Tex. App.—Fort Worth, Jan. 11, 2007, pet. ref’d) (not designated for publication).
9 See Ex parte Weise, 55 S.W.3d at 619-20.
10 See Ex parte Smith, 185 S.W.3d 887, 892 (Tex. Crim. App. 2006).
11 Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005), op. withdrawn May 2, 2011.
12 Ex parte Martin, 6 S.W.3d 524 (Tex. Crim. App. 1999).
13 Ex parte Brooks, 312 S.W.3d 30, 32 (Tex. Crim. App. 2010).
14 Ex parte Ellis, 309 S.W.3d at 79.
15 Ex parte Chapman, 601 S.W.2d 380, 382-83 (Tex. Crim. App. 1980);
16 See Tex. Code. Crim. Proc. arts. 11.24, 11.64; Tex. R. App. P. 31.1 through 31.7; Ex parte Castellano, 321 S.W.3d 760, 763 (Tex. App—Fort Worth 2010, no pet.).
17 See, e.g., Ex parte Amador, 326 S.W.3d 202 (Tex. Crim. App. 2010) ( “claim preclusion”).
18 Ex parte Watkins, 73 S.W.3d 264, 272 (Tex. Crim. App. 2002) (“issue preclusion”).
19 Ex parte Quintana, No. 08-08-00227-CR, 2009 Tex. App. LEXIS 7883 (Tex. App.—El Paso Oct. 8, 2009, pet. ref’d) (not designated for publication) (although the validity of using the writ process was not addressed).
20 Tex. Code Crim. Proc. art. 11.46; Ex parte Smith, 178 S.W.3d at 801, referencing 43B George E. Dix & Robert O. Dawson, Texas Practice; Criminal Practice and Procedure §47.01, at 197 (2d ed. 2001).
21 See Tex. Code Crim. Proc. art. 11.25.
22 Ex parte Doster, 303 S.W.3d 720, 721 (Tex. Crim. App. 2010).
23 Ex parte Weise, 55 S.W.3d at 619 (pretrial habeas cannot be used to assert constitutional right to a speedy trial); Ex parte Delbert, 582 S.W.2d 145, 145-46 (Tex. Crim. App. 1979) (no interlocutory review, by mandamus or habeas, of ruling on statutory right to speedy trial).
24 Ex parte Weise, 55 S.W.3d at 620-21.
25 Ex parte Tamez, 38 S.W.3d 159, 160 (Tex. Crim. App. 2001), and cases cited therein.
26 Ex parte Smith, 178 S.W.3d at 799.
27 Ex parte Smith, 185 S.W.3d at 893.
28 Miller v. State, No. 11-07-00369-CR, 2008 Tex. App. LEXIS 1698 (Tex. App.—Eastland, March 3, 2008, no pet.) (not designated for publication). Judge Onion provide a useful discussion of the in pari materia doctrine in Ex parte Wilkinson, 641 S.W.2d 927 (Tex. Crim. App. 1982).
29 See Ex parte Conger, No. 05-10-00938-CR, 2010 Tex. App. LEXIS 6440 (Tex. App.—Dallas, Aug. 9, 2010, no pet.) (not designated for publication).
30 Ex parte Lizcano, No. 05-07-00720-CR, 2007 Tex. App. LEXIS 6893 (Tex. App.—Dallas, Aug. 28, 2007, pet. ref’d) (not designated for publication).
31 Ex parte Conner, 439 S.W.2d 350 (Tex. Crim. App. 1969).
32 Kelson v. State, 167 S.W.3d 587, 591 (Tex. App.—Beaumont 2009, no pet).
33 See Tex. Code Crim. Proc. art. 11.64.
34 See Tex. R. App. P. 73.1.
35 See Tex. Code Crim. Proc. art. 11.14.
36 See Ex parte Golden, 991 S.W.2d 859, 861-62 (Tex. Crim. App. 1999); Ex parte Skinner, No. 13-08-00282-CR, 2009 Tex. App. LEXIS 6340 (Tex. App.—Corpus Christi Aug 13, 2009, no pet.) (not designated for publication).
37 See Dodson v. State, 988 S.W.2d 833, 835 (Tex. App.—San Antonio 1999, no pet.); Ex parte Hawkins, 885 S.W.2d 586, 588 (Tex. App.—El Paso 1994, no pet).
38 See Tex. Code Crim. Proc. arts. 11.27, 11.28, 11.29, 11.30 & 11.37.
39 See Tex. Code Crim. Proc. art. 11.59.
40 See Tex. Code Crim. Proc. art. 11.32; Saucedo v. State, 795 S.W.2d 8 (Tex. App.—Houston [14th Dist.] 1990, no pet.).
41 See Tex. Code Crim. Proc. arts. 11.39 & 11.44 (anticipating action by the State).
42 See, e.g., Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990) (suppression rulings).
43 See Tex R. App. P. 33.1.
44 Tex. Code Crim. Proc. art. 2.01.
45 See Ex parte Countryman, 226 S.W.3d 435 (Tex. Crim. App. 2007); but see Ex parte Martin, 6 S.W.3d 524 (dismissal with prejudice).
46 See Tex. Code Crim. Proc. art. 11.15.
47 See Tex. Code Crim. Proc. arts. 11.17, 11.34, 11.35 & 11.36.
48 See Tex. Code Crim. Proc. arts. 11.10 & 11.11; Ex parte Werne, 118 S.W.3d 833, 836 n.1 (Tex. App.—Texarkana 2003, no pet.).
49 In considering the options, a trial court might seek guidance from art. 11.07, §3(d).
50 See Manzi v. State, 88 S.W.3d 240, 251-53 (Tex. Crim. App. 2001) (Cochran, J., concurring).
51 See Tex. Code Crim. Proc. art. 11.44.
52 Id.
53 Ex parte Alt, 958 S.W.2d 948, 950 (Tex. App.—Austin 1998, no pet.).
54 Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991).
55 See Ex parte Lewis, 196 S.W.3d. 404, 405 (Tex. App.—Fort Worth 2006, no pet.).
56 Id.
57 See, e.g., Ex parte Rhodes, 974 S.W.2d 735 (Tex. Crim. App. 1998) (State appealed grant of habeas relief on grounds of double jeopardy).
58 See Tex. Code Crim. Proc. art. 42.01; State v. Fowler, 97 S.W.3d 721 (Tex. App.—Waco 2003, no pet.) (dismissing State’s appeal from pretrial habeas ruling grating relief on grounds of no probable cause).
59 See, e.g., Ex parte Ellis, 309 S.W3d at 71; Ex parte Rhodes, 974 S.W.2d at 866.
60 TDCAA’s State’s Appellate Manual includes a very useful chapter on writs of mandamus written by Tarrant County Appellate Chief Chuck Mallin. It is available at www.tdcaa.com/publications.
61 See, e.g., State ex rel Vance v. Routt, 571 S.W.2d 903, 907-908 (Tex Crim. App. 1978) (requiring that no other adequate remedy at law be available and the act that the realtor seeks to compel be ministerial, rather than discretionary, in nature).
62 Padilla v. McDaniel, 122 S.W.3d 805, 808 (Tex Crim. App. 2003).
63 Ex parte Alt, 958 S.W.2d at 950.