CASE NO.
|
EX PARTE
{NAME OF APPLICANT}
|
§§§§
|
IN
THE COUNTY COURT
OF
{name
of county} COUNTY
or
IN
THE DISTRICT COURT
________
JUDICIAL DISTRICT
{name
of county} COUNTY, TEXAS
or
IN
THE COURT OF
CRIMINAL
APPEALS
AUSTIN,
TEXAS
|
{Note that this is a model
from which to construct your final document.
Nothing in curly braces, “{}”, or the curly braces should show up in
your final document, but the information in the curly braces may suggest
particular individualized text that should replace the curly braces. Generally, an application for habeas corpus
needs to be custom made for the individual for whom relief is sought, but since
the 1940’s the constitutionally prescribed procedure for charging someone with
a misdemeanor in Texas has been disregarded in such a consistent manner that
this one issue should be applicable to any misdemeanor, and this model is
intended to provide a good starting point for attack.
Also note that a county court at law is not
indicated in the styling above because the Texas Constitution and TCCP, Art.
11.05 do not refer to a county court at law for this.}
TO THE HONORABLE JUDGE OF SAID COURT:
APPLICATON FOR
THE EXTRAORDINARY WRIT OF HABEAS CORPUS
{NAME OF APPLICANT} {or the name of
the person who signs the Application and actually brings it to a court, i.e.
the RELATOR}, APPLICANT {or RELATOR}, hereafter {Family
name of Applicant or family name of Relator}
or Applicant {Relator}, files this Application for the EXTRAORDINARY WRIT OF HABEAS CORPUS and
here proceeds to secure the release of your applicant, {Name of Applicant},
hereinafter Applicant or {Family
name of Applicant}, who is presently
restrained of his liberty as the result of the issuance of an "ORDER OF {put the title of a description of the
order. For this model application
attached to the model motion this will generally be the final order, whether an
assessment of fine or something else.
The purpose of the motion for dismissal with this application attached
is to cause them to take some action so that the final order is not issued,
thereby making the issue for the habeas corpus moot. You generally will not have a copy of this
order at the time that you put this paperwork in, but a copy of the unsigned
order may already exist in the case file.}
a true copy of which is attached and marked “Exhibit A”, the same being issued by the presiding Judge of {name the court} on or about [date entered
after issuance] {you probably don’t know the date this is supposed to
happen, but you are showing that it will be entered once known}.
Applicant will show that the Applicant is entitled to Habeas Corpus
relief and that the Judgment and Order Of {title
of order} are VOID for the following
reasons:
I.
JURISDICTION
1.
As jurisdictional authority for this application
for the Extraordinary Writ of Habeas Corpus and the same being signed and then
filed and presented to this court by {Family
name of Applicant} {or last name of Realtor}, your Applicant {Relator}, relies upon
the Constitution and laws of the United States of America especially the
Federal Bill of Rights; the Constitution and laws of the State of Texas
especially the Bill of Rights as stated in Article I thereof; the ancient
common law respecting Writs of Habeas Corpus; the Texas Criminal Code of
Procedure at Chapter 11, respecting Habeas Corpus, especially Articles 11.01,
11.02, 11.03, 11.04, 11.05, and 11.15; Article 1.27 of the Texas Code of
Criminal Procedure; and {any thing
else relevant to violations of the Applicant’s rights, ex. Article 1.051, respecting the Defendant’s Right to the Assistance of
Counsel.} Collectively, these statutes are binding on
this court and, inter alia, provide that,
"The
writ of habeas corpus is the remedy to be used when any person is restrained in
his liberty." See: TCCP, Art. 11.01 and
"The
Court of Criminal Appeals, the District Courts, the County Courts, or any Judge
of said Courts, have power to issue the writ of habeas corpus; and it is their duty, upon proper motion, to grant the writ under the rules
prescribed by law." See: TCCP, Art. 11.05, and
"The
writ of habeas corpus shall be granted without delay by the judge or court
receiving the petition, unless it be manifest from the petition itself, or
some document annexed to it, that the party is entitled to no relief
whatever." See: TCCP, Art. 11.15. (underline
and bold type emphasis is added to
the original)
II.
APPLICANT AUTHORIZED TO PETITION FOR RELIEF
2.
Applicant {Relator}, {Name
of Applicant} {or name of Relator},
has signed the instant Application and filed the same with the clerk of this
Court. Further, Applicant seeks to
hereby present this petition to this Honorable Court pursuant to the authority
of Articles 11.12 and 11.13 of TCCP that state, to wit:
"Either
the party for whose relief the writ is asked, or any person for him, may present a petition to the proper authority for the
purpose of obtaining relief." Art. 11.12, and
"The
word applicant, as used in this Chapter [11], refers to the person for whose
relief the writ is asked, though the petition may be signed and presented by
any other person." Art. 11.13.
3.
For example, in Lehmann v. Lehmann, 537 SW2d
131 (Civ.App. - Ft. Worth), May 7, 1976, the court upheld and acknowledged the
statutory and common law right of presentation by Applicant, to wit:
"In proceedings on habeas corpus the applicant
for the writ is the person for whom relief is sought by reason of his being
illegally confined or restrained within the district or county, and it is of no
importance that the petition for the writ is signed and presented by some other
person. " Lehmann at 132, citing 27 Tex.Jur. 2d, p 723,
"Habeas Corpus, Sec 46: In general, Who may apply."
4.
Further, your Applicant calls the attention of this
Court to the authority of Ex Parte Williams, 630 SW2d 803, 804 (Tex.App.
San Antonio - 1982) which in pertinent part states that:
"We hold
that to deny [a] hearing . . . constitutes an arbitrary and unreasonable
action, as does the denial of habeas corpus relief without a hearing." Id.
Ex Parte Williams, 804.
III.
APPLICANT’S REQUEST FOR CONSIDERATION
5.
Applicant {Relator} request the consideration of this
Court as to Applicant proceeding within his own proper person without aid of
counsel pursuant to the rule of law established in Hughes v Rowe, (1980) 449 US 5, 9; 101 S.Ct. 173, 176.
IV.
APPLICANT IS IN CONSTRUCTIVE CUSTODY
6.
Applicant's liberties are currently restrained by
reason of him presently being under bond {or
other reason. You may have to make
intelligent adjustments to this paragraph.}
to {name of the court} and as a result of the Order of the
Judge of {name of the court}.
In lieu of a copy of documents in addition to and other than the Order
Of {title of order} as set forth in “Exhibit A”, supra and attached, Applicant respectfully request this
Court to take Judicial Notice of the contents of the file jacket in the case of
The State of Texas vs. {Name of
Applicant}, No. {trial court case number}.
V.
BACKGROUND
7.
A review of
the known relevant facts respecting this application for the Extraordinary Writ
of Habeas Corpus are as follows:
{List
facts relevant to the case identified in 6 above. These will be verified, i.e. sworn to be
correct, later in this document.}
a. {first fact, (Applicant charged with …)}
b. {second fact}
c.
…
VI.
APPLICATION FOR
THE EXTRAORDINARY WRIT OF HABEAS CORPUS
8.
{Name
of Applicant} {or name of Relator},
Applicant {Relator} on this application for Extraordinary
Writ of Habeas Corpus, requests of this Court that this Application be in all
things granted and further requests this Honorable Court to issue the
Extraordinary Writ of Habeas Corpus directed to {name/identity of the court}
and/or any other person into whose custody, actual or constructive, your
Applicant, {Name of Applicant}, has been or may be remanded, to
produce the person and body of your Applicant, {Name of Applicant}, in
and before this Honorable Court at a date and time certain, in a manner
consistent with the Rule of Law established by Article 11.31, etc, of Chapter
11 of the Texas Code of Criminal Procedure, so that a statutorily sufficient
adjudicatory hearing may be held to determine the propriety, if any there be,
for the restraint upon the person and liberty of {Name
of Applicant}, the Applicant.
9.
In strict compliance with the requisites of an
Application for the Extraordinary Writ of Habeas Corpus as set forth in Article
11.14 of Chapter 11 of the Texas Code of Criminal Procedure pertaining to the
requisites of a Writ of Habeas Corpus, your Applicant {Relator}, {Name of Applicant} {or name of Relator} hereby states:
a. That
this Application for the Extraordinary Writ of Habeas Corpus, after being
signed by Applicant {Relator} and then filed with the clerk of this
court, and upon presentation by Applicant {Relator}, Applicant {Relator} represents
that this Application is being made in behalf of {Name of Applicant} who
is presently illegally restrained of his liberty and is presently under Bond to
and Order of the {name/identity of
the court}, and
b. That {Name of Applicant} is being restrained of his liberty by virtue of an “ORDER OF {title of order}” signed by {name of
the judge}, Judge of the {name/identity of the court}, the same being signed and entered on
or about {date that the order or
other paper is signed} and a true
copy of the same being attached hereto and marked “Exhibit A”, and
c. That
this Application contains a prayer for relief as stated below, and
d. That
this Application is verified by the oath of the Applicant {Relator} herein, {Name of Applicant} {or name of Relator}, to the effect that the allegations
of this Application are true, according to the belief of Applicant, and
e. That
Applicant {Relator} has examined the records for this
case and has failed to find that a misdemeanor indictment for this case was
ever issued by a grand jury, and {if
you’re going to swear that you took a look at the records, go take a look and
actually look for what you’re saying you did not find}
f. That
Applicant {Relator} has failed to find records showing
that any such indictment for this case had been quashed in the trial court, and
g. That
Applicant {Relator} has failed to find records showing
that any proceedings have taken place resulting in a finding of probable guilt
resulting in an information being used in this case, and
h. That
Applicant {Relator} has failed to find a waiver of
indictment.
i. {any other facts relevant to this application}
VII.
SPECIFIC ERRORS IN JUDICIAL
PROCEDURES
WHICH HAVE RESULTED IN THE ILLEGAL RESTRAINT OF LIBERTY
ERROR ONE
APPLICANT’S CONSTITUTIONAL RIGHTS WERE VIOLATED BY
FAILURE TO ADHERE TO THE PROCEDURES PRESCRIBED BY THE TEXAS CONSTITUTION AND
IMPLIMENTED BY THE CODE OF CRIMINAL PROCEDURE FOR CHARGING A MISDEMEANOR IN
THIS COURT.
10.
The Order Of {title
of order} is void on its face due to
a failure of the judicial officers involved in the cause to follow the
procedures for charging a misdemeanor as prescribed by the Texas Constitution.
11.
The procedure for charging a misdemeanor is
specified in Article V, Section 17 of the Texas Constitution, which states:
The County Court shall hold
terms as provided by law. Prosecutions
may be commenced in said court by information filed by the county attorney, or
by affidavit, as may be provided by law.
Grand juries empaneled in the District Courts shall enquire into misdemeanors, and all indictments therefor returned into the
District Courts shall forthwith be certified to the County Courts or other
inferior courts, having jurisdiction to try them for trial; and if such
indictment be quashed in the County, or other inferior court, the person
charged, shall not be discharged if there is probable cause of guilt, but may
be held by such court or magistrate to answer an information or affidavit. A jury in the County Court shall consist of
six persons; but no jury shall be empaneled to try a civil case unless demanded
by one of the parties, who shall pay such jury fee therefor, in advance, as may
be prescribed by law, unless he makes affidavit that he is unable to pay the
same.(Emphasis added.)
Particular sections of the Code of Criminal
Procedure implementing procedures prescribed by Texas Constitution, Article V,
Section 17 are Articles 21.26 — 21.30.
12.
The Court’s Order Of {title of order} shows
on its face that the trial court is not the County Court identified in Sentence
One (1) and Sentence Two (2) of this section of the Constitution.
13.
Applicant made no waiver of indictment.
14.
Applicant {Relator} has made inquiry to the District
Clerk of {county name} County to locate any records that
might show that the procedures available to the trial court by Article V,
Section 17 of the Texas Constitution and Art. 21.26 and Art. 21.28 of the Code
of Criminal Procedure had been followed, and Applicant has found none. {This paragraph can probably be omitted
since the court file does not show an indictment, but you can do this to
emphasize your due diligence. If you do,
add a verified statement of fact of this under paragraph number 9.}
15.
The procedure used to bring the Information {or Complaint} for this cause to the trial court was out of order of the
procedure prescribed by Article V, Section 17 of the Texas Constitution.
16.
The procedure used to bring the Information {or Complaint} for this cause to the trial court did not constitute a
“presentment of an indictment or information to a court” as contemplated by
Article V, Section 12(b) of the Texas Constitution.
17.
The procedures used in this case constitute a
deprivation of the due course of law and due process.
{Describe any other known errors to be raised ERROR
TWO …}
ERROR ______________
This space reserved for errors discovered
subsequent to the filing of Defendant’s Motion For Dismissal In Lieu Of
Application For The Writ Of Habeas Corpus
{Note that the above is not in curly braces and is
intended to be in the final document attached to the motion, but it would not
appear in an actual application}
VIII. SUMMARY
18.
Applicant {Relator} has herein made a prima facia case
for issuance of the Extraordinary Writ of Habeas Corpus meeting the threshold
requirements for issuance of the Great Writ as set forth in Article 11.14 of
the Texas Code of Criminal Procedure.
30. Thusly,
Applicant {Relator} has invoked the duty of an authorized
court to issue the Extraordinary Writ of Habeas Corpus forthwith pursuant to
Article 11.15 of the Code of Criminal Procedure.
WHEREFORE PREMISES CONSIDERED, {Name
of Applicant}, Applicant,
respectfully request that this court grant the following relief:
1) Issuance,
forthwith, of the Extraordinary Writ of Habeas Corpus; and
2) Fix a
date and time certain at which a statutorily sufficient adjudicatory hearing
may be held in a dispositive determination of the propriety of the present
restraint upon the liberty of your Applicant, {Name of Applicant}; and
3) Applicant
{Relator, on behalf of your
Applicant,} request any and all
other and added relief to which he may show himself or otherwise be justly
entitled at law or in equity to which the court deems to be just in this
action.
Respectfully submitted this day of ________.
_______________________________________
{Name of Applicant} {or name of Relator}
{street address}
{town},
Texas {zip if you want}
Tel. {Nnn nnn-nnnn }
VERIFICATION
STATE
OF TEXAS
COUNTY
OF {name of county}
ACKNOWLEDGMENT
Before me the undersigned authority on this day
personally appeared {Name
of Applicant} {or name of Relator} who after being duly sworn, did depose
and state:
"My name is {Name of Applicant} {or name of Relator}, I am over twenty-one (21) years
of age, have never been convicted of a felony or a crime of moral turpitude {if
you don’t meet any particular qualification listed here, then just take that
one out} and am competent to make
this affidavit. I am the Applicant {Relator} in the foregoing Application for
the Extraordinary Writ of Habeas Corpus and all statements, allegations,
denials and attachments contained therein are true and correct to the best of
my knowledge and belief"
{Name
of Applicant}
Given
under my hand and seal this day of ____________
__________________________________________
Notary Public, In and For the State of Texas
__________________________________________
Name of Notary – Printed
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