Petition for Writ of Habeas Corpus Page 1

No. ________________________ 

EX PARTE 

TIMOTHY WADE MITLEFF, 

Applicant 

IN THE COURT OF CRIMINAL APPEALS 

OF THE STATE OF TEXAS 

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS: 

Comes now TIMOTHY WADE MITLEFF, Applicant, and files this Petition 

for Writ of Habeas Corpus. In support, Applicant shows the Court the following: 

I.

Applicant is currently being illegally restrained of his liberty due to an order 

entered by the District Judge of the 8th Judicial District Court, The Honorable 

Eddie Northcutt, Respondent. 

II.

On Friday, September 18, 2015, Respondent quadrupled Applicant’s bail. 

Previously, Respondent found Applicant to be indigent, and Respondent has never 

found that Applicant ever knowingly violated any court order while he was out on 

bail. As set forth below, Respondent’s order raises a serious constitutional due 

process issue – namely, Applicant’s right to prior, meaningful notice. 

 RECEIVED COURT OF CRIMINAL APPEALS 9/22/2015 ABEL ACOSTA, CLERK 
Petition for Writ of Habeas Corpus Page 2

III.

Applicant is charged by indictment with Assault Family Violence/Impede 

Breath. See TEX. PEN. CODE §22.01(b)(2)(B). According to the indictment, a 

certified copy of which is attached hereto as Exhibit A, Applicant caused “bodily 

injury to ALISHIA MITLEFF” on or about “the 29th day of March, 2015.” 

According to the indictment, Ms. Mitleff is “a member of [Applicant’s] family.” 

Ms. Mitleff is Applicant’s wife.

IV.

According to records from the Sheriff’s Office, Applicant was released on 

$25,000 bail on March 31, 2015. A certified copy of the bail bond is attached 

hereto at Exhibit B. 

V.

Exhibit B contains no provision that prohibits Applicant from 

communicating or even living together with his wife. 

VI.

Following his release on bail Applicant resumed living with his wife. 

During this time Respondent heard no evidence of any untoward activity by 

Applicant – no threats, no calls to law enforcement about him, etc. – at any time. 
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VII.

The Office of the District Attorney discovered that Ms. Mitleff and 

Applicant had resumed living together following Applicant’s release on bail. On 

September 2, 2015 – i.e., more than five months after Applicant had been released 

on bail -- the State served and presented to Respondent a document titled Motion 

to Add a Condition to Defendant’s Bond, a certified copy of which is attached 

hereto as Exhibit C. In the motion the State asks Respondent to enter an order 

prohibiting Applicant from having any contact with his wife, never mind the five 

months that the two had been living together since Applicant’s release on bail. 

VIII.

Respondent entered an order granting the State’s motion referenced in 

Paragraph VII supra. See “Order Adding Bond Conditions,” a certified copy of 

which is attached hereto as Exhibit D. Respondent entered this order on 

September 2, 2015.

IX.

On September 2, 2015 Respondent verbally instructed the State to serve 

Applicant by hand with Exhibit D. Respondent also wrote the following at the 

bottom of Exhibit D -- “To be served by law enforcement.”
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X.

On September 18, 2015 law enforcement appeared before Respondent and 

testified that although they had made about seven attempts, they had been unable 

to locate and serve Applicant with Exhibit D.

XI.

Applicant eventually did receive Exhibit D. Applicant received Exhibit D

on September 18, 2015. That is because Applicant was in court on September 18, 

2015. Applicant was in court in compliance with an order that he had previously 

received from Respondent. See document titled Appearance and Announcement 

Form, dated August 21, 2015, a certified copy of which is attached hereto as 

Exhibit E, which required Applicant to appear in court on September 18, 2015. 

XII.

On September 9, 2015, the State filed a document titled Motion to Hold 

Bond Insufficient and Increase Bond, a certified copy of which is attached hereto 

as Exhibit F. On page 2 of Exhibit F, the State asks Respondent to increase the 

$25,000 bail bond to $100,000. 

XIII.

On September 18, 2015 Respondent held an evidentiary hearing on the 

record on the State’s motion referenced in Paragraph XII supra. 
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XIV.

After hearing the evidence, Respondent stated from the bench that he 

believed Applicant had been aware that law enforcement had been trying to serve 

him with Exhibit D, and that Applicant had been evading service. Respondent 

then stated on the record that he lacked “confidence” in Applicant’s willingness to 

follow orders. 

XV.

Respondent granted the State’s motion to quadruple Applicant’s bond –

specifically, from $25,000 to $100,000. A certified copy of document titled Order 

Setting Bond is attached hereto as Exhibit G. 

XVI.

Respondent entered the order referenced in Paragraph XV supra --

A. EVEN THOUGH Respondent had previously made a 

written finding that Applicant was indigent. See certified copy of 

document titled Affidavit of Indigence, attached hereto as Exhibit H

at page 3. 

B. EVEN THOUGH Applicant had appeared in court on 

Friday, September 18, 2015 in compliance with a prior order entered 

on August 21, 2015 by Respondent. See Exhibit E (“Appearance and 
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Announcement Form”). 

C. EVEN THOUGH before September 18, 2015 Applicant 

had complied with at least two (2) prior orders from Respondent 

requiring him to appear in court. See Exhibit I, which contains two 

(2) documents, both of them titled Appearance and Announcement 

Form, which Respondent entered on the following dates -- July 10, 

2015, and August 7, 2015, respectively. 

D. EVEN THOUGH the trial court’s file contains no 

evidence that Applicant had ever failed to appear in court pursuant to 

any order entered by Respondent. 

E. EVEN THOUGH Respondent heard no evidence of any 

untoward or nefarious conduct by Applicant. See and compare Ex 

parte Beason, 1993 Tex. App. LEXIS 2341 (Tex. App. – Houston [1st

Dist.] Aug. 23, 1993, no writ) (held, amount of bail was excessive, 

where among other things there was no evidence of threats by 

appellant against others).

F. AND EVEN THOUGH during the September 18, 2015 

hearing neither Respondent nor the State had identified a single 

authority or source – no statute, no court case (published or 
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otherwise), no court rule, and no bond condition – that Applicant had 

violated during the five-plus months while he was out on bail.

XVII.

“The writ of habeas corpus is the remedy to be used when any person is 

restrained in his liberty." Ex parte Robinson, 641 S.W.2d 552, 553 (Tex. Crim. 

App. 1982) (citing statute). See e.g. Ex parte Clear, 573 S.W.2d 224 (Tex. Crim. 

App. 1978)(writ of habeas corpus used to challenge increase in bail). 

In this case, Applicant may use a pretrial writ, as opposed to an 

interlocutory appeal, to assert his constitutional protections with respect to bail.

Ragston v. State, 424 S.W.3d 49 (Tex. Crim. App. 2014), followed in, Vanhalst v. 

State, 2015 Tex. App. LEXIS 8917 (Tex. App. – Texarkana Aug. 26, 2015). See 

also e.g. Ex parte Keller, 595 S.W.2d 531 (Tex. Crim. App. 1980).

XVIII.

One constitutional protection is the right to due process, and one component 

of due process is fair notice. This Court made this plain when it quoted the U.S. 

Supreme Court on what due process means. See Hunter v. State, 1985 Tex. Crim. 

App. LEXIS 1726 (Tex. Crim. App. Oct. 23, 1985)(quoting Cleveland Bd. Of 

Educ. v. Loudermill, 470 U.S. 532 (1985), and Matthews v. Eldridge, 424 U.S. 319 

(1972)).
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XIX.

Meaningful, proper notice is conspicuously absent here. Before September 

18, 2015, and even if all facts are construed in Respondent’s favor, Applicant’s 

only source for learning that the conditions of his bond may have changed does 

not come from any agent of the State. Rather, Applicant’s only alleged source 

comes from the proverbial grapevine.

If logic is any guide, getting wind that some change is afoot in one’s bond 

conditions, even if true, does not satisfy any notion of due process. See and 

compare Ex parte Retzlaff, 135 S.W.3d 45, 50 (Tex. Crim. App. 2004)(held, 

written notice that an inmate’s parole will be reviewed at some unspecified time in 

the future, coupled with a request that inmate submit relevant materials "as soon as

possible," was constitutionally deficient notice).

Applicant’s level of notice, assuming for argument’s sake only there was 

any, would not even satisfy due process for a civil case. See e.g. Wilson v. Dunn, 

800 S.W.2d 833, 836 (Tex. 1990) ("Actual notice to a defendant, without proper 

service, is not sufficient to convey upon the court jurisdiction to render default 

judgment against him."). See also e.g. Grasz v. Grasz, 608 S.W.2d 356, 358 (Tex. 

Civ. App. – Dallas 1980, no writ) (“mere notice that one has been sued does not 

obligate the defendant to appear and answer”). A fortiori, Respondent’s apparent 
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reliance on the proverbial grapevine, and nothing more, as the basis for 

quadrupling Applicant’s bond cannot possibly satisfy constitutional due process in 

a case where Applicant’s liberty is at stake. 

XX.

Applicant was together with his wife -- without incident -- for more than 

five months before Respondent entered the Order Adding Bond Conditions, 

attached as Exhibit D, on September 2, 2015. This is unremarkable and should 

cause no alarm, especially when no agent of the State ever told Applicant and his 

wife they could not do this. 

If, more than five months after the fact, Respondent decides to enter an 

order upending this unremarkable arrangement and requiring Applicant to separate 

from his wife – indeed, requiring Applicant not even to communicate with his wife

– then Applicant should be able to rely on something more formal, more certain, 

and more concrete, than the rumor mill.

XXI.

Texas state law mandates that bail cannot to be used as an instrument of 

oppression. TEX. CODE CRIM. P. art. 17.15(2). Unfortunately, that is the result of 

Respondent’s Order Setting Bond (Exhibit G) entered on September 18, 2015. 

Quadrupling Applicant’s bail because Applicant may have not followed up on 
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stray remarks that he may or may not have heard from others, none of whom are 

even alleged to be agents of the State, falls far short of any serious notions about 

constitutional due process.

XXII.

Respondent’s Order Setting Bond -- entered on September 18, 2015, and a 

certified copy of which is attached hereto as Exhibit G -- violates the Fifth and 

Fourteenth Amendments to the U.S. Constitution, as well as Article One, Section 

13 of the Texas Constitution, because Applicant failed to receive meaningful 

notice. 

WHREFORE, Applicant prays that this Court grant this application for writ 

of habeas corpus and that this Court order Applicant discharged from the illegal 

restraint he is currently suffering. 

Dated: September 21, 2015

Respectfully submitted, 

By: __/s/ Wade A. Forsman_

Wade A. Forsman

State Bar No. 07264257

P.O. Box 918

Sulphur Springs, TX 75483-0918

903.689.4144 East Texas

972.499.4004 Dallas/Fort Worth

903.689.7001 Facsimile

wade@forsmanlaw.com
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Attorney for Applicant,

Timothy Wade Mitleff

Declaration

Pursuant to section 132.001 of the Civil Practice and Remedies Code, my 

name is Wade A. Forsman, and I am the appointed attorney for the Applicant, 

Timothy Wade Mitleff. My date of birth is June 14, 1058, and my work address is 

P.O. Box 918, Sulphur Springs, Hopkins County, Texas 75483-0918, United 

States of America. Executed in Hopkins County, State of Texas, on this the 21st

day of September 2015. 

/s/ Wade A. Forsman 

___________________________

Wade A. Forsman

CERTIFICATE OF SERVICE

This is to certify that on September 21, 2015, I served a true and correct

copy of the above and foregoing Petition for Writ of Habeas Corpus by email on 

Matthew Howard Harris, Assistant District Attorney, at 114 Main Street, Sulphur 

Springs, Texas 75482.

__/s/ Wade A. Forsman_

Wade A. Forsman