Where to File Texas State Habeas Corpus Applications

In March 2012 I promised a post about what Texas state courts to file habeas corpus applications in, but I don't seem to have done it yet.

• Civil- Applications for writs of habeas corpus only arise in civil trial courts one of two ways:

1.  When someone is held in contempt of court. Contempts of court may be divided into two types: criminal and civil. Contempt of court is a crime in Texas, and habeas corpus may be sought against a criminal contempt finding, as it may for any other crime. Civil contempt is when judges confine people in order to coerce them to follow a court order. They appear to arise most often in family law matters. Judges may only hold people in civil contempt for a maximum of 18 months.There is no right to appeal a civil contempt order; the only relief is through habeas. In these cases, one may generally apply for habeas through a court of appeals that supervises that trial court. The Texas Supreme Court may also have jurisdiction but in practically all cases it will require a relator to exhaust its court-of-appeals remedy before the Texas Supremes will hear the case.
2. When the writ is sought as to a nongovernmental confinement, most commonly possession of a child contrary to family law rights, though habeas is a civil remedy against any unlawful private confinement, against a kidnapping, enslavement, peonage or the confinement of sex workers, etc. Courts of general jurisdiction may hear these matters: state district courts and most county-courts-at-law. If a relator doesn't like the result there, the relator can apply for a writ first in the court of appeals, then if one needs to go further, to the Texas Supremes. Under a few circumstances, an appeal may lie against a trial court's denial of habeas relief.

• Criminal pre-trial- One must start in one's trial court, and if one wants to go further an application may subsequently be made first the court of appeals, and, if necessary, in the Court of Criminal Appeals.

• Criminal post-conviction- Practically all such applications for State of Texas relief are governed by Texas Code of Criminal Appeals chapter 11, with special provisions for habeas applications relating to people under a death sentence, people seeking relief from community supervision judgments and people imprisoned for non-death offenses. People suffering under imprisonment convictions apply straight to the Texas Court of Criminal Appeals, which has a large group of staff attorneys dealing with  those cases, including old friends of mine formerly with State Counsel for Offenders. Non-death-penalty relators are governed by article 11.07 and has a required form which may be found here. Texas offers all indigent imprisoned convicts appointed counsel on appeal to the courts of appeal, but not to non-death-penalty prisoners, so the vast majority are not done with lawyers, but are done by the convicts themselves. The form is intended to be helpful to them and to ease the court's work. Community supervision relators have to try to reform their conditions in the trial court, then file in the trial court, and they and the State may appeal that decision.

It Takes a Heap o' Writing to Make a Jail Contempt Stick.

In Texas's First Court of Appeals in Houston, a panel of justices of justices Evelyn Keyes, Michael C. Massengale, and Harvey G. Brown decided Tammy Fountain's application for a writ of habeas corpus against a Houston family court. Justice Massengale wrote for the majority and Justice Keyes dissented. Fountain stipulated to violating an order in a suit affecting the parent-child relationship on October 18, 2011. On May 24, 2012, she was found in contempt of court and sentenced to 60 days in jail, but her jailing was suspended, conditioned upon her following the October 18 court order and some modifications dated May 24, 2012 from that point into the future. About a month after May 24, Katcher, the other party to this case, moved to jail Fountain. On July 31, 2012, the court Fountain jailed (She bonded out.). Her three violations were:

1. Failing to provide required notice timely to Katcher that Fountain was moving on June 22 by giving notice on June 18, 2012,
2. Failing to give notice to the child's school by May 15, that Katcher could pick the child up there, and
3. Failing to post information to a website that Fountain was obliged to.

Justice Keyes argued that the July 31 order failed to specify the manner in which Fountain had committed two of the three acts for which it held her in contempt and as for the third, the purported contemptuous act arose under the May 24 modification but took place before May 24. The majority held that the October 18 proceeding was all orderly, and that the procedures for the revocation of the suspension had been good enough in view of that fact.

Reading through the papers of this case I am reminded of an Italian proverb- that a lawsuit plants a tree in a lawyer's garden. At least five lawyers have worked on this case, not counting justices and staff at First Court. Still, jailing people is not to be done unless the rules are observed, that is, unless the alleged contemnor gets timely notice of what is complained of and the sheriff is given written notice of the basis for the commitment order. When a panel splits like this, it often behooves respondent's counsel to seek that the whole appeals court reconsider, and, if that does not free the client, to file an application with the higher court, in this case, the Texas Supreme Court.

Commitment orders are hard to write. They are generally drafted before the hearing and have to marked up after. The decision to commit someone to jail often comes at the end of a long day, often after the judge has been listening to testimony for hours. At some point the judicial belly just becomes full of this matter and everyone in the courtroom is exhausted, yet movant's counsel must be painstaking with the paperwork and get the judge to dot every "i" and cross every "t" so as to reduce the likelihood of months of expensive games of ring-around-the-rosie in appellate courts.
In re Tammy Fountain, No. 01-12-00704-CV(Tex. App.--Houston (1st Dist.), Dec. 28, 2012) (orig. proceeding).