DAN MORALES

ATTORNEY GENERAL. 

## QBffice

of tfy !Zlttornep Mate of Qexae June 16,1994 

## Qkneral

Honorable John Vance Dallas County District Attorney Frank Crowley Courts Buildii LB 19 Dallas, Texas 75207-43 13 Opiion No. DM-295
Re: Whaher the district clerk filing fees provided for in section 51.317 of the Government Code apply to the tiling of an application for a preindiCtment writ of habeas corpus, and a related question (IQ-6 18)
Dear Mr. Vance:
Your letter requesting an opinion asks, “[C]an the appropriate civil tiling fee be collected at the. time of filing a pm-indictment Writ of Habeas Corpus?” According to your letter, there is contusion among the counties on this question:

In some smaller counties, the pre&iictment writs of habeas corpus filed by attorneys seeking release of their clients from jag while awaiting grand jury prooxdings or indictment have been treated as civil matters, and the district clerks have been collecting civil thing fees. These clerks would claim that their authority for charging a tiling fee is found in section 5 1.317 of the Government Code, which provides as follows:

(a) The district clerk shag collect at the time the suit or action is filed the fees provided by Subsection (b) of this section for services performed by the clerk. (b) The fees are: (1) for thing a suit, includii an appeal from an inferior wuli

.....................................................................s45 (2) for filing a cross-action, intervention, contempt action, or motion for new trial

.. ... . . . ....... .... . . . S15 (3) for issuing a subpoena, including one copy, when requested at the time a suit or action is tiled

............S4 (4) for issuing a citation or other writ or process not otherwise provided for, including one copy, when requested at the time a suit or action is tiled

. .. .. $8

p. 1568Honorable John Vance - Page 2 (DM-295)

(5) for issuing an additional copy of a process not otherwise provided for, when requested at the time a suit or action is t&i

......................................................S4 (6) for the records management and preservation hmd.. SS. You contend that a filing fee may not be charged under section 51.317 for a preindictment habeas corpus proceeding because such a proceeding arises out of an arrest of a person suspected of committing a crime and therefore is a miminal proceed@. Your argument seems to be premised on the assumption that the statute applies only to civil proceed@. Although section 51.317 does not contain the word civil and merely speaks of a “suit” or a “suit or action,” one of its statutory predecessors, article 3927, V.T.C.S. (1966), repealed @ Acts 1985, 69th Leg., ch. 480, 5 26(l) at 2048, did provide, until it was amended in 1969, that the fees were chargeable in “civil cases.” Compure Acts 1957, 55th Leg., ch. 433, 3 1, at 1293 (last amended version of article 3927 that refbrred to

“civil cases”) with Acts 1%9,61st Leg., ch. 667.8 1, at 1970 (amendment to article 3927 that first omitted “civil cases”). We have found no evidence that the omission of this phrase from the 1%9 amendmentr and subsequent amendmentss and the nonsubstantive coditication of article 3927 as Government Code section 51.3 173were intended to change the scope of the provision. We therefore agree with you that section 51.3 17 applies only to a case, that iq a “suit or actioq” of a civil nature. We have found no authority, however, for your contention that a habeas corpus challenge of a detention under crimimd process is a crimmal pmceedmg.4 We therefore. cennot agree with you that a pre.indictment writ of habeas corpus for that reason is not subject to the tiling-fee statute. On the other hand, the fact that a habeas corpus proceeding is not a uiminal proceed& does not require the conchtsion by default that a

‘See Sea Comm.on Judiciary, Bii Aoalyd, S.B. 255, 61~1 Leg. (1%9) (no indicat.ion tha! cmlkskowsshaendedmchsagescapofsppu~on). %ee kts 1979,66tl1 Leg., ch. 295, 8 1, at 661 (amendiq dck 39217,no don of “civil eases”); AC& 1977,6Stb+cg., ch. 219,g 1,at608 (same). %eeAas 1985,691bLeg.,ch. 480, $j 1,at 1983(m article 3927 as sections51.317 awJ 51.318OcCkemaat Chk), # 27, al 2049 **(M** subsmhe changeintended).

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such a procding is a civil “suit or action” within the scope of section 5 1.317. We must consider further the k.gislative intent of section 51.3 17 to de&mine whether that provision applies to habeas corpus. See Calvefi v. TexasPipe Line Co., 517 S.W.2d 777, 781 (Tex. 1974) (“The lklamental and dominant rule controlling the construction of a statute is to ascumin if possible the intention of the Legislature expressed therein”).
The language of section 51.317, even with the interpolation of the prior statutory refbrence to “civil cases,” is an indeterminate expression of legislative intention regarding your question. The words adim,’ case,6 civil,~ and sui% are subject to varying Qlhckk Law

Dictianalytkflres aettonillpaltasfollows: Tuminitsusudkgalscnse-ahwsuitbmu@inscourt;aformal enmpkintwidliathejwkdktionofaanutoflaw....Tllekgalaodfonnsl &mandofonckrigbtfmmanotherpxsonorpiutymadcandinsistedmina coutofjo6tico. Anotdhwypmcecd@inaanutofjo6ticchywhichone~ poscaderarmhcrforlbculfo~orpotedionofaright,tkrtdrcssor pmentionofawong,orthc~ofaplblicoffease....

. . .

%ack’s Law Dictionmy &WCS case in part as follows

A.gcnedtermfortmaaion,couse,6ld~or~, atlaworinequi~ ~~lpcftre 8 cowt ofjo6tico; PI1 aggqate of f&as whkh exeroisofthejmisdkUonofaanutofjustia. A judicidpnx&ingfortbedctumhtionofacon~bchzenpartics whcreiuriglltsarculforculorprotededor~arcprcvcutiorrcdnssed; anypmce&ngjudicialinitsnatwe. crhnkslpd rcsuiring~gatiollbypolia..

. The wordI%ase”

my includeapplications fordivoxe, applications

for the eaablislunentof bighway6,applications for O&IS of suppor(of dative4 arui otberspYSalproDEcxEllgslmknowntothccommonlaw.
Id. at 215.

?Bhck’ s Law Dictionmy defmes civil in part asfoknW Oforrdatingtothcstatcoritscitizcmy. ReiatingtoprivaterigMsand ranedi~ 6ongln

bycivil actionsasconW withcriminal pmccedings.
Id. at 244.

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interpretations. For&unately, however, it is unnecessary for us to rely on textual interpretatioq for our research of the evolution of the fee statutes for habeas corpus and

“civil cases” has uncovered clear evidence that section 51.317 does not apply to preindictment habeas proceedings.
An 1897 predecessor to section 51.317 was part of a statute that also contained a fee provision expressly applicable to habeas corpus. See Acts 1897,25th Leg., 1st C.S., ch. 5, at 5. The statute provided in part as follows:

Section 1.

. . mn all the counties in this State, where there shall have been cast at the next preceding presidential ekxtion 3000 votes or over, the clerks of the district cour& district attorney% camty attom sheriffs and constables shall receive from the State the following fees and compensation in felony cases, and no more: Se-c.2. The clerks of the district court shall receive for each felony case tried in such court by jury, whether the defendant be convicted or acquitted, the sum of $8. For each tmnscript on appeal or change of venue, 8 cents for each 100 words. For each felony case finally disposed of without ti or dismissed or noUe prosequi entered, S8.
. . For enteringjud~ent in habeas corpus cuses, 80 amts; andfor taking down testimony andpreparing zMnscr@t in habeas cmpus cases, 8 centsfor each 100 work; but thefees in habern cotpus cases shall, in no exent, exceed S8 in mryone case. Sec. 3. The district or county attorneys shall receive the foUowing fees:

. . . 3. For representing the State in each case of habeas cops where the defeendanr

is chmged with

felony, the sum of$16.

. .

‘ Bhck’ s Law Dictionary def~ncs suit in part asfollows: A genericterm,ofannprchensive sl@tication, tefening to my proceeding byooepasonorpeMnsagaiananotberorothersins~oflawinwbich theplaincitrplrsueqinsuchcauftheremcdywhichfbcLaw~o~himfortbc ledEm of an icjmy or the enfo roxnentofati&t,whetheratlaworin eqoity. It is,,howzver,seldomappliedto a criminalprosedion. AIKI it was fomdy sondmus trstricted to the &&nation of a proceedingin equity, to dishgoish aochproceed@froman actionatlaw.
Id. at 1434.

p. 1571Honorable John Vance - Page 5 (DM-295)

Sec. 7. That in those wtmties where there shall have been cast at the next preceding presidential election less than 3000 votes the clerk of the district courts, district attorneys, county attorneys, sheri@ and wnstables shall receive 6om the State the fees and wmpensation in felony cases allowed under now existing laws, and are not inknded to be at&&d by the provisions of sections 1,2, 3, 4,5and6ofthisact.

. . Sec. 22. The clerks of the district court shall receive for the following services the following fees: For wpy of petition, including cert&xte and seal, each 100 words, 15 cents; provided, whenever in any suit a certified wpy of any petition or any other instrument is necessary in the district or wtmty court, it shall be lati for the p&ntjfl or defeendonrto prepare such true and correct copy thereof, and to submit the same to the clerk of the district or county court, as the case may be, whose duty it shall be to compare the same with the original instrument, and if found to be correct he shall attach his cut&ate of true copy; for such service he. shall receive 50 cents for each certificate and seal, and in addition thereto the sum of 10 cents per page, 700 words to the-page, for each page of said copy. Each tit of citation, 75 cents; each wpy of writ of citation, 25 cents; !iUngof each paper, 10 cents; entering appeanmce of each party to suit, to be charged but once, 5 cents; eachfiMI jua@ent or akcree, 75 cents; ewry other or&r. jtuigment or &cree, not exceeding 200 words, 25 cents; where the order,jua@nent or decree, whether final or not, exceeak 200 won& the aaWional fee for each 100 wor& in excess of 200 work shall be 10 cents: making out and transmitting the records and proceect‘ nlgsin a cause to an inferiw court, fw each 100 worak. IS cents; making transcript of the recor& and pqoers in rmy cause upon appeal or wrtt of error, with cert@ate and seal, each 100 worak,lOcents.... Id $6 1 - 2,22 (emphasis added), 5 2 repealed by Acts 1985, 69th Leg., ch. 269, § 5(2) at 1307,s 22 repealed by Acts 1901,27th Leg., ch. 21, 5 4, at 25. Section 2 of the 1897 statute thus regulated fees in felony prosecutions and habeas proceedings, and section 22 of the same statute generally regulated fees in “suit[s]” between “plaintifls]” and

“defendant[s].” Comparison of the above-quoted sections 2 and 22 makes it obvious that the legislature did not intend for the language of the latter section to apply to habeas corpus proceedings, at least where the applicant is being detained under felony or misdemeanor

p. 1572Honorable John Vance - Page 6 (DM-295)

charges.9 Section 2 expressly provided for fees for entry of judgment (80 cents) and preparation of testimony and transcript (eight cents per 100 words) in habeas proceedings, so the similar language in section 22 (75 cents for the tlrst 200 words of the judgment and 10 cents per 100 words of transcript on appeal or writ of error) wuld not also apply. The placement of the specific language regulating habeas corpus fees in the same statute with a separate general section regulating civil fees that does not mention habeas corpus indicates a deliberate omission to include habeas corpus within the application of the general section.The subsequent evolution of the provisions in sections 2 and 22 is devoid of any evidence of a broadening of the general civil fee schedule to include habeas wrpus. Jn 1901 the general fee provisions in section 22 were repealed, Acts 1901,27th Leg., ch. 21, 5 4, at 25, and were replaced by a district clerk fee schedule that was expressly applicable to “civil w* id 8 1. There is no suggestion in the 1901 statute that the scope of the general fee provisions had be-enbroadened to include habeas corpus proceediis. The 1901 fee schedule eventually was codified as article 3927 of the Revised Civil Statutes of 1925, see V.T.C.S. art. 3927 (1966), and then was repealed and nxodified as Government Code section 51.317, see Acts 1985, 69th Leg., ch. 480, sec. 1, 0 51.317, at 1983, sec. 26(l) at 2048. Neither the codiication of the fee schedule as article 3927 nor the subsequent amendments to the articlelo even intimate that the scope of the fee schedule had been broadened to include habeas corpus prq. Meattwhile, the habeas wrpus fee language of section 2 eventually was codi6ed in article 1026 of the Code of Criminal Procedure of 1925, see Code Grim. Proc. art. 1026 (1979), where it remained, see Acts 1965, 59th Leg., ch. 722, 5 1, art. 54.02, at 563 (saving article 1026 from repeal when 1%5 Code of Criminal Procedure was enacted), until it was repealed in 1985, see Acts 1985, 69th Leg., ch. 269, $5(2) at 1307. Article 1026 retained language similar to that in section 2 of the 1897 statute, establishing fees for entering judgment and preparing transcript “in habeas corpus cases.” These fees, unliie
9Fbclanguageoft~tion2ofthe1897staMemightkams&eed aSlhiUllgdkUiOtCb3Ik hsbcasfc9todctentionsuodafclonychargcsksauscsdionl~tbeaaMcrderrcdtofcg’infclony casa”and~~3Limitcddipvictand~~fasinhabcar~onlytotbwc’wbcrr tlte&kndantischargedwithfelony.” Caselawd&qmwesmchaSoqhowever. ktion2of tbc1897sratute~wascodifiedinarticle1026oftbccodeofCriminal Prowdam (1979). which cootiMdtoprovidcfMf~fOrenteri~judgmcntandprrparingtranscriptinhabeasWrplsproceedingS untilit wasrepealed

in 1985. SeeActs 1%5,69th Leg.,ch. 269, 5 5(2)at 1307(repealer ofarticle 1026). TheTacaSCOtMliSSi

on of Appealsheld in 1935 thatthe districtclerkwas entitledto these fees under article1026regardless

ofwhether

theapplicant

hadbeencharged

with a felonyormerely

a misdemeanor. McCormick v. Sheppard, 86 S.W.2d 213, 215 flex. 1935). The 1897 statute,then, authori& district clerk fees under section 2 for habeas corpus proceedingsarising from detentions under felony or misdemwaorcharges,

hotdid notauthorize

anyfeesforhabeas

proceedings

under section22. Wee Acts 1941,47th Leg.,ch. 387, 8 1,at641;Acts 1945,49th Leg.,ch. 368, 5 3, at662; Acts 1957,55tb Leg.,ch. 433,s 1, at 1293;Acts 1%9,61st Leg., ch. 661.5 1, at 1970;AcJs1971,65th Leg., eh. 219, 8 1,at608;Acts 1979,66th Leg.,ch. 295, 8 1,at667.

p. 1573Honorable John Vance - Page 7 (DC295)

those provided in the general district clerk fee schedule, were initially paid not by the applicant/defendant but rather by the State; and the applicant/defendant was charged with the fees only upon conviction. See Code Crim. Proc. art. 1018 (1979); see also Code Crim. Pm. tit. 2 revisofs note at 262-63 (Supp. 1994) (explaining that article 1018 was impliedly repled by V.T.C.S. article 391%). Thu$ until 1985 the provisions for fees in habeas wrpus cases remaiwd segregated ffom the general civil fee schedule. In that year the general fee schedule in V.T.C.S. article 3927 was rewditied as sections 51.317 and 51.318 of the Government Code, see Acts 1985,69th Leg., ch. 480, 4 1, at 1983. with the expre-ssprovision that no substantive change was intended, ia! 5 27, at 2049. The substance of article 1026 of the. Code of Criminal Procedure (repealed 1985) was omitted from the nonsubstantive 1985 codification of title 2 of the Code of Criminal Procedure because V.T.C.S. article 3912e prohibits payment of fees by the State or a wunty to any salaried district or county officer. See Code Grim. Proc. tit 2 foreword at 228 & revisor’s note at 265 (Supp. 1994). Article XVI, section 61, of the wnstitution requires district clerks, as “district officers,” to be wmpensated on a saJary basis.
Jn sum, section 5 1.317 derives from an 1897 general fee. section that did not apply to the habeas corpus proceeding because the 1897 statute also contained a separate section that spec&aUy re&ted habeas proceedings. There is no evidence in any intermediate predecessor statute of an intention to broaden the general civil fee schedule to include habeas corpus. Rathex, the habeas fee provisions were kept segregated in article 1026 of the Code of Criminal Procedure until that article was repealed in 1985, the SME year in which section 51.317 was enacted as a nonsubstantive revision of the district clerk fee schedule. We therefore conclude that section 51.3 17 does note apply to a preindictment habeas proceed&
You also ask whether, if section 51.317 is inapplicable to a preindictment habeas proceeding, a district clerk mi&t charge a fee for sexvices rendered in the prowedmg pumuant to section 51.319 of the Government Code. Section 51.319 provides, in pertinentpart: The district clerk shall wllect the fouowing fees for services

performed by the clerk:

. . (5) for performing any other service prescribed or authorized by law for which no fee is se-t by law, a reasonable fee. Because no other law sets a fee for the district clerk’s services in a habeas corpus proceed@, this provision authorizes the district clerk to charge a “reasonable” filing fee in

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such a proceed@tt Cj Attorney General Opiion H-453 (1974) (statutory predecessor of section 5 1.319 authorizes reasonable district clerk fees in wndemnation proceed&s). Although what wnstittttes a “reasonable fee” is a fact question and theregore is beyond the scope of an attorney general opinion, we believe that a habeas wrptts fee that exceeds the fee charged in civil cases in district court would be unreasonable as a matter of law. CY Attorney General Opiion DM-26 (1991) at 3 (m district-court wndetnnation m=@w maximum fee that will be- deemed reasonable is same as fee statutorily provided for county clerks in wndentnation proceed@). Thus, a “reasonable fee” for filing the application for habeas corpus may be less than but may not exceed S45, see Goti Code 8 51.3 17(b)(l); and a “reasonable fee” for i.Winceofthewtitmaybeless than but may not exceed $8, id. 8 51.3 17@)(4). The fees for Sling the application and issuing the writ are chargeable when the application is filed and issuance of the writ is requested. Id. 5 51.317(a). Thefactthatrruchfeesaredueuponfilingandrequestforissuancedoesnotmean, however, that the clerk may rehe to issue the writ or any other process in a preindicttnent habeas corpus procexUng for the reason that the fees have nor been paid. Although Texas Rule of Civil Procedure 142 requires payment of fees or the Sling of a paupefs afEdavit before the clerk may issue process, that rule applies only to a “suik” see Tex. R Cii. P. 125. 127, 131. 137-38, or a “civil” matter, see Tex. R Civ. P. 126, 128. For the following reasons we believe.that the writ of habeas wrpus is not a kind of “suit” or “civil” matter that the Texas Supreme Court intended to in&de under rule 142. Bhck’s Law Dictionary defines habeas WPUS in part as follows:

Lat. (You have the body.) The name given to a variety of wits (of which these were anciently the emphatic words), having for their object to bring a party before a wutt or judge. In wmtnon usage, and whenever these words are used alone, they are usually understood to mean the habeas corpus ad subjiciendum (see inza). The primary li.mction of the writ is to release from ttnlawgtl itnptisonment.

. The office of the writ is not to de&tmine prisoner’s guilt or innocence, and only issue which it presents is whether prisoner is re&ained of his liberty by due process. A form of wllateral attack. An independent proceed& instituted to de&mtine whether a defendant is beiig ttnlawMy

p. 1575Honorable John Vance - Page 9 (DM-295)

deprived of his or her liberty. It is not an appropriate proceed@ for appeal-like review of discretionq decisions of a lower wutt.

. . . Eabcas corpus ad subjicieodum

. . . . A writ directed to the person detaining another, and commanding him to produce the body of the prisoner, or person detained. This is the most common form of habeas wrpus tit, the purpose of which is to test the legality of the detention or imprisonment; not whether he is guilty or innocent. This tit is guaranteed by U.S. Const. Art. I~9,andbystatewnstitutions.... This is the well-knownremedyin England and the United States for deliverance from illegal wn6nement, called by Sii William Blackstone the most celebrated writ in the English law, and the great and e&acious writ in all manner of illegal wnhtnent.

. . The “great writ of liberty,” issuing at wmmon law out of courts of Chancery, King’s Bench, Common Pleas, and Exchequer. BLACK’SLAW DICTIONARY709-10. Habeas cops ad subjiciendum thus is .a
“proceeding” for a “tit,” the purpose of which is a narrow one: to test the legality of a detention or imprisonment. It is intended to be “efficacious.“*z Article 11.01 of the Code of Criminal Procedure defines habeas corpus similarly, as foUows: The writ of habeas corpus is the remedy to be used when any

person is restmined in his liberty. It is an order issued by a wurt or judge of wmpetent jurisdiction, directed to any one having a person in his custody, or under his restmint, 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 restmint. Article 11.Ol and the foregoing Block’s definitions thus speak of habeas corpus in tetms of Wit, ” “remedy,” and “order” but do not call it a “suit” or an “a&ion.” In fact, there is no wnsensus on whether habeas corpus is a “suit” or an “action”:

Strictly speaking habeas corpus is not an action or a suit, but is a summary remedy open to the person detained. However, in some cases, or for some purposes, it is held to be an action or suit. Thus,
t2Article11.@40ftheCodeofCriminalRoadure provides:Tvuy provision relating tothewrit ~habcaPcorprrsbatlbcmostfaMlablyconshuedinordertogivc~tothcremdy,aadpmtcctthc rightsoftbepersonsc&ingreliefundexit.”

p. 1576Honorable John Vance - Page 10 (DM-295)

the proceedings in habeas corpus have been considered in the nature of an action so as to entitle persons to costs under a statute providing for costs in an action, although it is otherwise under other statutes. ln some jurisdictions it is classed as a special proceeding; in others it is not considered as a special proceedii. 39 C.J.S. Habeas Caps 5 3, at 462 (1976) (footnotes omitted). The sister high courts of this state have issued decisions ihustmting the lack of wnsensus on whether habeas corpus is a “suit.” An example of a case conchtding that habeas wrpus is not a “suit” is Ecparfe Ramzy, 424 S.W.2d 220 (Ten. 1%8). There the Texas Supreme Court stated that a habeas proceeding for relief f?om imprisomnent for contempt is not “a suit or controversy between private parties” snd held that the party adverse to the habeas applicant in an underlying civil proceeding out of which the alleged wntempt arose was not entitled to notice of the hearing on the merits of the habeas application. Id. at 223. The court explained its holding as follows:

The writ of habeas corpus is designed for the purpose of giving a speedy remedy to one who is unlawhdly detained. The very nature of a procedure by writ of habeas corpus dictates that it would be inwnsistent to recognize on the one hand that the purpose of the writ is to obtain a speedy adjudication of a person’s right to be f?ee from illegal restraint, and on the other hand to compel the person to await service of notice of the proceed@ upon some private party before the judge an proceed with the investigation. Id.13 The Texas Court of Crimimd Appeals took the contrary position on the “suit”-or-
“not a suit” question in Erparre Brow&r, 373 S.W.2d 256 (1%3), and Curry v.Ater, 648 S.W.Zd 10 (1983), owmded on other grounds by Collier v. Poe, 732 S.W.2d 332, 344 (Tex. Crim. App. 1987). In these cases the court, without stating its reasoning, held that a habeas corpus proceed@ is a “suit” for purposes of V.T.C.S. article 2168a (repealed by Acts 1985, 69th Leg., ch. 959, 8 9(l), at 3322), a statute requiring a court, “in all suits, either civil or crimb@” to grant a continuance where a party or attorney is a member of legislature. See Curry, 648 S.W.2d at 12;Browder, 373 S.W.2d at 257. (We note that in both Curry and Brow&r, the person seeking a legislative continuance was one of the attorneys for the habeas applicant; therefore, the applicant waived any entitlement to speedy reliefunder the writ.)

“See also Ex pde Tail, 14 N.W.Zd840, 841 (Ncb. 1944) @abeascorpus is special civil ~pmvidingaunmaryrrmedytodetaincdpcrsonsandisnot~~~lyadnrraryinchersctn or “asuit lehwco the applicant and the oftkcr [dctsioing him]“); Florid0 n rd. Lkb v. Fabisimki, 152 So. 207, 209 @la. 1933) @abeascorpusis not actionor suit but summay remedy); New York

.zxr-z/. IfmcpbnaM

Y.Hmley, 274 N.Y.S. 813, 815 (Sop. Ct. 1934) (habeascqw is summary pmceediaa), ofld, New York cx ml. Hauptmmn Y. Ha&y. 274 N.Y.S. 824 (App.Div. 1934);Red/ield Y. his, 176 N.W.512 (S.D. 1920)(habeas cmpw is notcivilaction).

p. 1577Honorable John Vance - Page 11 W-f-295)

Not only is there no wnsensus on whether habeas wrpus is a “suit” or “action,” but also tbe courts have struggled with the wrrectness vef tron of describii the pwcwding as “civil.” The wurts sometimes have wnsidcrcd habeas wrpus proceed& to be civil in nature, see Evparre Tong, 108 U.S. 556, 560 (1883); Exparte Morris, 349 S.W.Zd 99, 100-01 (Tax. 1961); Harbison v. McMurqv, 158 S.W.Zd 284, 287 (Tex. 1942), and sometimes have considered them to be neither civil nor wiminal but rather sui getwis, see In re May Chee Kee, 33 F. 377,379 (C.C.N.D. Cal. 1887), or an exercise of special wnstitutional and statutory jurisdiction, see McFar&md v. Johnson, 27 Tax. 105, 109 (1863); Corm v. Schilling, 576 S.W.Zd 147, 151 (Tan. Cii. App.-Corpus Christi 1978, no writ). Still other cases indicate a rewgnition of the Mlity of mechanicalty iabehng habeas corpus as a means of determining the appropriateness of applying a particular rule to the proweding and instead focus concern on the e&ctiveness of the writ itself Thus, inSmith v.Bennett, 365 U.S. 708 (1961), the Supreme Court held that a state requirement that all prisoners pay a tiling fee in order to chaknge a detention by habeas corpus, thereby making, the tit mtwtilable to the state’s indigent prisoners, denied those prisoners equal protection of the laws. Id. at 713-14. The Court found the civil label of habeas pmcwdings not to be controlling in this wntextr~ and declined to reach the state’s argument that if habeas corpus, a civil remedy, must be made available to indigents, then

Weshallnolquibblesstowhcthcrkthis~itIhPbcescnplslkcsllcda Eivilolcrimjllplsdi~f~,gsseldcllbassaiQ1k”tbchigbedremedyinkw, for my man that is inykned.’ 3 HoweII’s State Trials 95 (1628). The availMityofapxccedmtoregiinlibextylolttkuaghcrimi&pmcesscaawt bemwJecontingcntoponaehoiecofl&els. EversincetheMagoaChta,man’s gEdOSt~ght-pasonallibaty-haskenguaraatad,andtkproctdurcsOfthC HabeasCmpasActof1679gavetomryEaglkhamapromptaod~ maedyfortestiagtkkgalityofhisimprisonment. GmidemtbytheFcmders utbchiBbcasafcguard~libcrty,itwarwrittcninGothcConstitutiondtbe UnitrdStatcsthatits”privilcgc***~lmtksuspcaded,unlearwbmk CassofRchelkmorIavasknthepublicSafdymayrcqoirc~’ Art.I#9. Its pZiOCiplCiSimbcddcdiOthCfuodamcntal kwof47ofourStates. 1thasloag ~sMilsblektheftdnalcourutoiodigcntprisonrrsotbothtbestakand FederalGovemmntstotestthewdidityoftheirdeteation. Overthecentarksit hashoenthe.

camnon lawworld’s

“freedom tit” by whoseorderly

processes the ~onofaprjsonerincourtmaykreguirrdandthelegalityofthegrwndr for his incmcemtioninquiredinto, failing which the prisoaeris set free. We repeatwhathasbeensotndysaidofthefe&alwrit: “thereisnohigherduty ho to maintainit uaimpaiw BowenY.Johastoa,1939,306 U.S. 19,25, 59 S.a442,446,83L,Ed,455,andunsurpcndcQsavconlyinthccaccsspecified in OUT Cmstitotion. When an eqdvalent right is granted by a State, ~nancial bwdies mustnot bepermitted to condition its exemise. ,365 U.S. at712-13 (emphasis add@ fmtmxe omitted).

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the protection of all civil rights must he made available thee of charge to the poor. Id. at 712-13.Likewise, inHark v. Nelson, 394 U.S. 286 (1%9), the Court was critical of the

“civil” label of habeas proceedmgs. There the Court held that the Federal Rules of Civil procedure mguking discovery “do not apply [to habeas proceedings] completely and automaticdly by virtue of Rule 81(a)(2), “15id at 298, and that the federal courts may fashion appropriate rules for discovery in such proceedings “by analogy to existing rules or othemise in wnformity with judicial usage,” id. at 299. The majority called the “civil” label of a habeas wrpus proceeding “gross and inexact,” id. at 293~94,16and resisted an automatic literal application of the civil discovery rules to such a proceed@ because the delay caused by some of the elaborate discovery procedures would “do violence to the et&ient and effective administration of the Great Writ,” id. at 297. The Texas courts also at times have focused on the practical wncern of whether a particular pnxeduml rule will wnflict with the e&ctiveness of the writ rather than whetha the writ 6ts sem~tically within the language of the rule. For example, the Texas Supreme Court in Arendf v. Carter, 210 S.W.2d 976 (1948), explained the apparent wntlict between A4cFarkmd v. J&, 27 Tar. 105 (holding that respondent may not appeal), andHarbhwn v. McMurrq, 158 S.W.2d 284 (holding that applicant may appeal), as follows: The purpose of the writ of habeas corpus is to obtain a speedy

adjudication of a person’s right to liberation from illegal restraint, except in the child custody cases. In the light of this purpose there is no inconsistency in permitting an appeal by a relator where there is a rehal of discharge, and denying an appeal by the respondent where the discharge is granted. The former is wnsistent with the purpose of the writ of habeas corpus, while the latter is in wnflict 4th such Purpose.

1ti6,of-,tNcthathaheaseorposproccedingsarcch3racterizedas “civil.” SW,e.g., Fish v. Baker,203 U.S. 174, 181, 27 S. Ct. 135, 51 L.Ed. 142 (1906). Butthe labelis grossandinexact [Footnote titted.] Essentially, tbepmceanagisuaique. Habesscerpuspracticetnthefedclal~has eonformcdwitheiviIpmctieeonlyinageneraIsnst. Hami>, 394 U.S. at293-94. Inthe omitted footnote the Court citedadlmiti~ for“[tlhedeSree to wbicb this paid) charadcrization exodvely simpliks a complexhistory.”Id. at294 n.4.

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Arendt, 210 S.W.2d at 977 (emphasis added); see Stare v. Paitersan, 668 S.W.Zd 462, 463 (Tex. App.-Corpus Christi 19&4,no writ) (per auiam) (“regardless of whether the [habeas corpus] proceeding is civil or &minal,” State may not appeal from order releasing on writ of habeas corpus applicant who was wmmitted as delinquent child). After considering

the foregoing authorities, we are of the opinion that a court, in determining whether Texas Rule of Civil Procedure 142 applies to a preindictment habeas corpus proceeding, would conclude that the controlling wnsideration is not whether preindictment habeas is a “suit” or whether the proceeding is better categorized as “civil” or “not civil” but rather whether application of the rule would thwart the speed and e5caciousness of the proc&ing. The denial of relief from unlawful imprisonment on the basisofeven momeataryinabilitytopayafilingfeewouldconflictwiththepurposeof habeas corpus and the central importance of personal freedom in the United States and the State of Texas. The e&ctiveness of habeas corpus would be compromised if rule 142 were wnstrued as applying to the writ. We therefore conclude that rule 142 does not apply to a preindictment habeas proceeding.r7 SUMMARY The district clerk tiling fees provided for in section 51.317 of the Government Code do not apply to the Sling of an application for a preindictment writ of habeas corpus, but a district clerk may charge a
“reasonable” 6ling fa for services rendered in a habeas wrpus proceeding pursuant to section 51.319 of the Government Code. The clerk may not refuse to issue the writ for nonpayment of such a fee, however, because Texas Rule of Civil Procedure 142 does not apply to a preindictment habeas proceeding.

DAN MORALES Attorney General of Texas

‘7Normaya~orconrtaberrfusetoservctbewritmerrly~~tbcsrviccfteharaot hccn psld io sdvmce. The skiff, see Local Gov’t code 5 85.021, or the umstable,we id. 8 86.021, Merritt v. Hmis County, 775 S.W.Zd 17, 23 (Tea. App.-Hcuston [14th Dist.] 1989, tit denied), gcmmlly most execute all processdirectedto him or her hy legal authority. Texas Rule of Cii FVec&ue 126provides

thata sheriff

oramstable“shall[not]bemmpelledto executeanyp- in civil cPscscomingfromatlycountyotberthantbconeinwhichbcisanofficn,unlessthefeesallowedhimby lawfortbcscrviceofsuchp-shallbepaidinadvance;cxccptwhenaffidaviisfileQasprovidedby lawortksemka.” ThisnrlShowcvcr,expresslyrrfeato”civilcases”withoutspecifyinghabeaswrpls m. Bcfausethiglulewouldcompromisctbecffeaivmescofthcwritifitwereconstruedac ppplyingtotbcwrit,wcklicvctbatitdoesmcapplytoahabeasm~pmc&ding.

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JORGE VEGA FiiAssiamtAttomeyoeneral
DREWDURHAM Deputy Attorney General for Criminal Justice
WILL PRYOR specialcd
RENEAHIcKs State Solicitor SARAH J. SHIRLEY Chair, Opiion Committee PrepadbyJamesB.Pinson Assistant Attomeyoeneral

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