As the judges saw it, cover story, cognizability
January-February 2024

What every trial prosecutor should know about cognizability

By Clinton Morgan
Assistant District Attorney in Harris County

Cognizability is a big, ugly word. Microsoft Word’s spellcheck doesn’t recognize it, and if you don’t do criminal appeals for a living, you probably don’t either. But the Court of Criminal Appeals has been wrestling with the concept for a few decades, and recent developments in the caselaw make cognizability an important concept for every trial prosecutor; knowing what claims can and can’t be raised in pretrial habeas can save the State a lot of time on inappropriate appeals.

What is cognizability?

“Cognizability” is simply the word for determining what sorts of claims can be raised in a habeas corpus hearing. Cognizable claims can be raised; noncognizable claims cannot.

            A writ of habeas corpus is an extraordinary remedy. If a defendant gets a trial court to hold a hearing on his pretrial writ and the trial court does not give the defendant what he asks for, the defendant may appeal before trial. Because pretrial appeals disrupt the system, the law limits the claims defendants can raise in a pretrial writ.

            Arguing cognizability is how one avoids pretrial appeals. If the defendant raises a legitimate claim, a pretrial appeal is fine, even if the delay is frustrating. But—and this may come as a shock—sometimes criminal defendants raise illegitimate claims. A pretrial appeal will take at least six months, but most take a year or more. It’s not unheard of for a defendant to want to delay his trial, and a pretrial habeas appeal is one way to do it.

            This article explains the concept of cognizability so prosecutors can distinguish legitimate pretrial habeas claims from illegitimate ones and fight off the illegitimate claims in a way that keeps us out of the appellate courts. First, I’ll walk through some peculiar habeas terminology. Then I’ll show the basic principles about cognizability. Finally, I’ll go through some fairly recent cases showing examples of cognizable and noncognizable claims.

Olde tyme lingo

Habeas law has its own language, and it’s not intuitive if you don’t understand the history of the writ. A writ of habeas corpus “is an order issued by a court or judge of competent jurisdiction, directed to anyone 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.”[1] In a modern context, the writ will look something like a capias, instructing the sheriff to bring a defendant to court. That may seem unnecessary—sheriffs bring defendants to court on a regular basis these days, and many defendants who apply for habeas writs are actually on bail and bring themselves to court—but the writ is an ancient procedure. It has roots in the distant past, where some earl or sheriff might have improperly imprisoned someone, and the writ of habeas corpus forced the local official to show up to court with the restrained individual to justify the continued restraint.

            There are “applicants” and “petitioners.” The “applicant” is the person who’s being restrained and whose release is sought.[2] A “petitioner” is a non-party who files an application on an applicant’s behalf. This distinction may seem odd in the modern world, but again it harkens back to medieval times. If the shire reeve shackled you in the gaol for no good reason, he might not be willing to forward your legal correspondence. You’d need someone else petitioning on your behalf. In 21st Century Texas, this won’t happen often. It’s almost certain the person seeking pretrial habeas relief in a case will be the “applicant.”

            In habeas law, “restraint” is the thing the applicant wants to get rid of. Restraint can be either literal, i.e., jail, or figurative, i.e., a felony conviction where the defendant has already served his sentence but his criminal record is keeping him out of Harvard. While there are interesting ways to litigate “restraint” in post-conviction habeas applications, for pretrial habeas anyone with a pending charge is considered restrained.

Starting or stopping the writ process

The applicant must begin the process by making a legal claim in an application for a writ. Then the judge must determine whether to issue a writ.

            This is the point where the prosecutor and the judge must look at cognizability. If the State can show the claim is not cognizable and get the judge to refuse to issue a writ, there is nothing to appeal. The defendant’s remedy is to apply to a different district judge with geographical jurisdiction over the case.[3] For felonies it must be a district court judge, but for misdemeanors either a district judge or another county-level judge with jurisdiction over the case will do. If the defendant tries that and fails, or if that is somehow impossible—many places will have only one judge with appropriate jurisdiction—he can try for a writ of mandamus from an appellate court ordering the trial court to issue the writ. Both of those methods are uncommon, and if prosecutors have gotten one judge to believe the claim is not cognizable, that argument will likely work on the others.

            If the trial judge issues the writ, the fun starts. The writ creates a new case with its own docket and timeline.[4] The habeas case gets a separate cause number and the name Ex parte [Applicant].[5] “Ex parte” is a throwback to when habeas applications were filed without the involvement of the person in jail; in state court we are unlikely to litigate an ex parte case ex parte.

            The next relevant word is “relief.” Relief is whatever the applicant wants. If a judge denies relief in whole or in part, the applicant may appeal immediately. That’s true whether or not the claim was cognizable.[6] If a judge denies relief on the merits of a noncognizable claim, the State can use noncognizability as a basis to get the court of appeals to affirm, but that’s going to take a while. (Ask me how I know.[7]) While a trial court can choose to proceed with trial while the habeas appeal is pending[8]—and I encourage you to try that if a defendant is appealing a noncognizable claim—my observation is that a judge who has issued a writ for a noncognizable claim will want to wait for the appeal to resolve.

            What that means is that if prosecutors want to avoid a time-consuming interlocutory appeal, they will need to litigate cognizability before the judge issues the writ.[9] Bringing it up at the writ hearing, even if the State is right, won’t head off an appeal if the applicant wants delay.

Cognizability concepts

Now that you know why you want to litigate cognizability, what is it? This section of the article isn’t meant to list every situation ever held cognizable or not. Instead, I’m going to give some basic principles and examples so you’ll know what to look for when assessing a writ application.

            Broadly speaking, a claim is cognizable if it asserts a right that would be “effectively undermined if not vindicated before trial.”[10] However, if the defendant’s claim could be better litigated through a trial and on appeal—what the courts call “an adequate remedy at law”—then it is not cognizable.

            A second principle is that a claim is cognizable only if it could result in the defendant’s immediate release.[11] If a claim would merely influence a trial—such as a motion to suppress—it is not cognizable.[12]

            A third principle is that most claims are not cognizable if they require factual development.[13] If a claim requires factual development, it probably should be litigated through ordinary pretrial and trial motions. The main exceptions to this principle are bail cases—which are cognizable, but the applicant must adduce evidence that bail is excessive—and Double Jeopardy claims, which are cognizable, but the applicant must prove his prior jeopardy.

Cognizable and noncognizable claims

In light of these background principles, in Smith, the Court of Criminal Appeals explained there are three broad categories of cases that are cognizable on pretrial habeas: “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.”[14]

            Smith’s first category includes facial challenges to statutes.[15] A facial challenge is a claim that the statute is void because it is unconstitutional in all situations.[16] That type of claim comports with the three background principles: Forcing an applicant to be tried on a facially unconstitutional statute would vitiate the right, declaring the statute unconstitutional would result in the applicant’s immediate release from restraint, and litigating the claim requires no factual development.

            But a facial challenge to a statute is cognizable only if resolution in the applicant’s favor would result in immediate release from restraint. The court discussed two variations on this idea in Ex parte Couch.[17] In one variation, the indictment alleged four manners of committing a single offense. That applicant alleged two of those manners were based on an unconstitutional statute. That wasn’t cognizable, the court held, because even if she prevailed on that claim, she would still be facing the charged offense. However, in the other variation in Couch, an applicant facing three separate charges raised facial challenges to two of them. The court held that was cognizable because if she was successful, she would be immediately released from the restraint of those two charges. It did not matter that she would still have one charge pending; the claim was cognizable because it could finally dispose of a criminal charge.

            An as-applied challenge to a statute—a claim that a generally constitutional statute is being applied unconstitutionally in a particular situation—is not cognizable on habeas because it does not attack the State’s power to charge the defendant, just its ability to convict him in particular fact patterns. Thus, it needs factual development that only a trial can bring.[18] The exception to this was Ex parte Perry.[19] Then-Governor Rick Perry’s claim was that the statutes he was charged with violating were generally constitutional, but the acts underlying the charges were constitutionally protected. The Court held this was cognizable because the rights at issue would have been undermined by forcing Perry to go to trial. This is a hard case to explain and apply, as one might expect from a sui generis fact pattern.

            In Ex parte Sheffield, the court revisited what it called “the Perry rule” to emphasize that most rights are not undermined by going to trial.[20] In Sheffield, the applicant raised a speedy-trial claim in a pretrial habeas application, but the court held that was not cognizable because the delay from a pretrial writ hearing and appeal actually undermined the right to a speedy trial.

            For decades the Court of Criminal Appeals allowed applicants to use pretrial habeas to raise statute of limitations claims. However, those cases were based on the idea that a defect in an indictment made it “fundamentally defective” and did not vest the trial court with jurisdiction.[21] After the 1985 constitutional amendments, which practically did away with the notion of a “fundamentally defective” indictment, the court has limited the sorts of limitations claims that are cognizable.

            If an indictment on its face appears to be outside the statute of limitations, but information in the record shows the indictment could be amended to include language that would fix that, such as a tolling paragraph or language regarding an exception to the statute of limitations, it is a “reparable defect” and the claim is not cognizable on habeas.[22] If an indictment contains a tolling paragraph, a claim that the allegations in that paragraph are false or inaccurate is not cognizable.[23] But if there is no tolling paragraph and the record shows there is no exception to the statute of limitations the State could plead, then a limitations claim is cognizable.[24]

            A Double Jeopardy claim is cognizable on a pretrial writ and is one of the few cognizable situations where factual development is appropriate. Double Jeopardy includes the right not to be retried after having already been convicted or acquitted, so forcing a defendant to go through a retrial to raise the claim would vitiate the right.[25] This rationale extends to claims of collateral estoppel that are based on the Double Jeopardy clause.[26]

And finally, bail

The final type of cognizable issue I’ll discuss here is bail. Bail writs are common enough and obviously cognizable if the applicant challenges the amount of his bail or the court’s authority to make him post bail.[27] An example of the second type of claim is Ex parte Gomez,[28] where the applicant posted bond but the trial court revoked him and ordered him to post another. Based on his reading of Code of Criminal Procedure Art. 17.09, the applicant claimed the trial court was without authority to do that. That was a cognizable claim, which he lost on the merits.

            On remand in Gomez, the First Court of Appeals held, in an unpublished opinion, that some of the applicant’s other complaints (which did not challenge the amount of bail or the trial court’s power to require bail) were not cognizable. For instance, Gomez complained that the trial court should have applied the Rules of Evidence at the hearing where it revoked him. The First Court held this was not cognizable because the remedy for that sort of procedural error was a new hearing, not immediate release.[29]


There’s a whole world of habeas claims out there—the only limit to noncognizable claims is the creativity of the defense bar—so obviously I can’t list them all here. But the examples and principles I’ve offered here should help prosecutors be on the lookout for noncognizable claims. If prosecutors can spot the noncognizable claims in time to keep a judge from issuing a writ, we can save a lot of delay on needless appeals.


[1]  Tex. Code Crim. Proc. Art. 11.01.

[2] Tex. Code Crim. Proc. Art. 11.13.

[3]  Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991). Hargett involves a post-conviction writ, and it has been superseded by Code of Criminal Procedure Art. 11.072 in some contexts, but the statement of the traditional rule is correct and still applies to pretrial writs.

[4]  Greenwell v. Court of Appeals for Thirteenth Judicial Dist., 159 S.W.3d 645, 650 (Tex. Crim. App. 2005).

[5]  Ex parte Anderson, 902 S.W.2d 695, 701 n.1 (Tex. App.—Austin 1995, pet. ref’d).

[6]  Ex parte McCullough, 966 S.W.2d 529, 531 (Tex. Crim. App. 1998).

[7]  I won McKeand v. State, 430 S.W.3d 572 (Tex. App.—Houston [14th Dist.] 2014, no pet.) on that basis, but that resulted in a year and a half of delay in a misdemeanor DWI prosecution. If you use the courts of appeals’s websites to look up the cases I cite in this article, you will see that delays of over a year are the norm for noncogizable claims, with some taking over three years to conclude. Spending years getting a court to declare the writ should never have issued in the first place is the appellate prosecutor’s version of “You might beat the rap but you won’t beat the ride.”

[8]  Ex parte Sheffield, ___ S.W.3d ___, No. PD-1102-20, 2023 WL 4092747, at *12 (Tex. Crim. App. June 21, 2023). As Sheffield explains, a defendant can apply to the court of appeals for a stay, but if he does not or if the court denies the stay—if the claim isn’t cognizable, that’s a good reason to deny a stay—then the trial proceeds independent of the habeas appeal.

[9]  It’s technically true that it’s not appealable if a judge issues a writ but, after hearing argument, determines it’s not cognizable or otherwise refuses to rule on the merits. Ex parte Gonzales, 12 S.W.3d 913, 914 (Tex. App.—Austin 2000, pet. ref’d). The problem, though, is that once the writ issues, there’s a cause number and something that facially looks like an order from the trial court. If the defendant tries to appeal, the State is stuck litigating appealability in the court of appeals. I had this happen in a post-conviction writ, and while I eventually got the court of appeals to dismiss the case, it took two years before that appeal concluded. See Ex parte Lewis, No. 14-16-00629-CR, 2017 WL 6559647 (Tex. App.—Houston [14th Dist.] Dec. 21, 2017, pet. ref’d) (not designated for publication). That’s a lot of appellate  litigation in a non-appealable case.

[10]   Ex parte Perry, 483 S.W.3d 884, 895 (Tex. Crim. App. 2016).

[11]  Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010).

[12]  McKeand, 430 S.W.3d at 573.

[13]  Doster, 303 S.W.3d at 724.

[14]  Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005).

[15]  It would also refer, in olden times, to situations where a defendant is being restrained without a criminal charge. But that doesn’t happen a lot in 21st Century Texas.

[16]  Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001).

[17]  Ex parte Couch, 678 S.W.3d 1, 3 (Tex. Crim. App. 2023).

[18]  Ex parte Gonzalez, 525 S.W.3d 342, 350 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

[19]  Ex parte Perry, 483 S.W.3d 884, 896 (Tex. Crim. App. 2016).

[20]  See Sheffield, 2023 WL 4092747, at *6-*7. Sheffield does a good job of synthesizing and applying the reasoning of Perry, and I recommend reading it if you need to apply some of these principles.

[21]  See, e.g., Ex parte Dickerson, 549 S.W.2d 202 (Tex. Crim. App. 1977).

[22]  Ex parte Edwards, 663 S.W.3d 614, 618 (Tex. Crim. App. 2022).

[23]  Ex parte Smith, 178 S.W.3d 797, 804 (Tex. Crim. App. 2005).

[24]  Ex parte Vieira, 676 S.W.3d 654, 658 (Tex. Crim. App. 2023).

[25]  Ex parte Robinson, 641 S.W.2d 552, 555 (Tex. Crim. App. 1982).

[26]  Ex parte Watkins, 73 S.W.3d 264 (Tex. Crim. App. 2002).

[27]  Tex. Code Crim. Proc. Art. 11.24.

[28]  Ex parte Gomez, 624 S.W.3d 573, 578 (Tex. Crim. App. 2021).

[29]  Ex parte Gomez, No. 01-20-00004-CR, 2022 WL 2720459, at *5-6 (Tex. App.—Houston [1st Dist.] July 14, 2022, pet. ref’d) (not designated for publication).