Supreme Court of Texas

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No. 23-0339

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In re the Commitment of John Thomas Anderson,

Petitioner

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On Petition for Review from the

Court of Appeals for the Fifth District of Texas

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JUSTICE BUSBY, joined by Justice Lehrmann, concurring in the 

denial of the petition for review.

This case concerns the procedural remedies available when an 

indigent inmate indefinitely committed as a sexually violent predator 

receives ineffective assistance from his appointed counsel, resulting in 

the erroneous dismissal of his initial appeal challenging the 

commitment order. The State commendably “recognizes that [the 

inmate] had a right to appeal and his appeal should have been pursued. 

It does not seem just that he lost that right through ineffective 

assistance of counsel. If this were a criminal case, [the inmate] could be 

granted an out-of-time appeal through Chapter 11 of the Code of 

Criminal Procedure.” But “this is a civil case,” says the State, so the 

court of appeals correctly held that the inmate loses.

This is exactly the sort of seemingly irrational distinction that 

leads some people to mock our system of justice. I write to make very 
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clear that the court of appeals was wrong. Procedures are available to 

remedy this kind of injustice in civil cases just as in criminal cases, so it 

need never occur again. Because the inmate’s challenge fails for other 

reasons, however, I concur in the denial of review.

Petitioner John Thomas Anderson was convicted of two counts of 

sexual assault. When he neared the end of his sentence, the State filed 

a petition to have Anderson committed under the Civil Commitment of 

Sexually Violent Predators Act. TEX. HEALTH & SAFETY CODE 

§§ 841.062, 841.081.1 Anderson was found indigent, and an attorney

from the Office of State Counsel for Offenders represented him in the 

commitment trial. A jury found that Anderson was a sexually violent 

predator, and the trial judge signed an order committing him on 

June 10, 2016.

Anderson’s trial attorney filed a motion for new trial on July 5, 

but the district clerk did not file-stamp the motion until July 13. 

Anderson’s trial attorney also filed a notice of appeal on August 30, but 

again the district clerk’s file-stamp was delayed until September 14.

The court of appeals issued a letter questioning whether the

notice of appeal was timely. The court noted that the July 13 stamp on 

the motion for new trial was more than 30 days after the judgment was 

signed, which would make the motion untimely. See TEX. R. CIV.

P. 329b(a). And an untimely motion would fail to extend the time for 

1 The Act sets out a civil commitment procedure for certain convicted 

sexual offenders nearing the end of their criminal sentences. If committed,

sexually violent predators receive long-term supervision and treatment while 

the public is protected against the risk of re-offense.
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filing the notice of appeal, making that notice untimely as well. See TEX.

R. APP. P. 26.1(a)(1). 

By the time the court of appeals sent its letter, a different 

attorney had been assigned to represent Anderson on appeal.

Anderson’s new attorney incorrectly conceded that the notice of appeal 

was untimely and agreed that the appeal should be dismissed for lack of 

jurisdiction. The court of appeals thus dismissed Anderson’s appeal as 

untimely, relying exclusively on the concession of his attorney. See In 

re Commitment of Anderson, No. 05-16-01189-CV, 2016 WL 7448346, at 

*1 (Tex. App.—Dallas Oct. 27, 2016, no pet.).

Five years later, Anderson filed an application for writ of habeas 

corpus—the matter presently before us—in the same criminal district 

court where he had been committed. Anderson requested the ability to 

file an out-of-time appeal on the ground that he was denied effective 

assistance of counsel when his trial counsel failed to file the motion for 

new trial on time, which caused the notice of appeal to be untimely.

Anderson did not contend that his appellate counsel had provided 

ineffective assistance, and he characterized his appellate attorney’s 

concession of untimeliness as necessary.

The trial court granted Anderson relief and ordered that he be 

afforded the right to appeal his commitment. Anderson exercised that 

right and filed another notice of appeal of the judgment committing him.

But the court of appeals again prevented Anderson’s appeal from being 

heard, holding that the trial court’s grant of habeas relief was an 

improper allowance of an out-of-time appeal, which in civil cases can 

only be granted by an appellate court under limited circumstances not 
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present here. 2023 WL 2607560, at *2 (Tex. App.—Dallas Mar. 23, 

2023). Anderson, still seeking his first chance to appeal a judgment

indefinitely committing him, filed a petition for review in this Court.

The Court denies Anderson’s petition today. I agree that 

Anderson’s petition should be denied, but not for the reason given by the 

court of appeals. Instead, Anderson’s habeas application fails because 

he chose to challenge only the assistance provided by his trial counsel, 

not his appellate counsel. As the State now admits, Anderson’s trial 

counsel timely filed the motion for new trial and therefore timely filed 

the notice of appeal. Because Anderson’s trial counsel provided effective 

assistance in perfecting the appeal, I agree that we cannot award 

Anderson relief on that basis, so his petition should be denied. See Pike 

v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 782 (Tex. 2020) (“Our 

adversary system of justice generally depends ‘on the parties to frame 

the issues for decision and assign[s] to courts the role of neutral arbiter 

of matters the parties present.’” (quoting Greenlaw v. United States, 554 

U.S. 237, 243 (2008))). And even if Anderson’s focus on the wrong 

counsel could be overlooked, his delay of five years in seeking relief 

provides the State with a substantial defense as I explain later.

But Anderson’s appellate counsel likely provided ineffective 

assistance by wrongly agreeing to the dismissal of his timely appeal. 

And it would be a mistake for others in Anderson’s position who read 

the court of appeals’ opinion to believe that they have no remedy. To the 

contrary, when the ineffective assistance of appointed trial or appellate 

counsel deprives an involuntarily committed person of his right to 
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challenge that civil commitment on appeal, there are procedural 

avenues available to restore the lost appellate right.

Habeas corpus is a right ancient and revered. The writ of habeas 

corpus helped to fulfill Magna Carta’s promise that no man would be 

imprisoned contrary to the law of the land. See Boumediene v. Bush, 

553 U.S. 723, 740 (2008). The Framers of our federal Constitution thus 

“understood the writ of habeas corpus as a vital instrument to secure” 

freedom from unlawful restraint by the government. Id. at 739. Habeas 

corpus is also enshrined in the Texas Constitution’s Bill of Rights. TEX.

CONST. art. I, § 12.

An application for writ of habeas corpus allows a person who has 

been confined by the State to argue that his confinement is contrary to 

the law of the land. See Habeas Corpus, BLACK’S LAW DICTIONARY (11th 

ed. 2011). Because civil commitment is a type of state confinement, we 

have held that a commitment “may be collaterally attacked in a habeas 

corpus proceeding.” Ex parte Swate, 922 S.W.2d 122, 124 (Tex. 1996)

(citing Ex parte Barnett, 600 S.W.2d 252, 254 (Tex. 1980)). But, 

consistent with the history of habeas corpus jurisprudence in Texas, 

habeas cannot provide relief from a merely erroneous order; it is 

available only when the commitment order is void. Id. (citing Ex parte 

Rhodes, 352 S.W.2d 249, 250 (Tex. 1961)).

2 A commitment order is void 

if it contains a “jurisdictional defect or constitutional or fundamental 

violation.” Ex parte McCain, 67 S.W.3d 204, 210 (Tex. Crim. App. 

2 See also Ex parte Degener, 17 S.W. 1111, 1114-15 (Tex. Ct. App. 1891); 

Ex parte Boland, 11 Tex. App. 159, 166-67 (1881). 
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2002).

3 Ineffective assistance of counsel presents just such a violation. 

Ex parte Chandler, 182 S.W.3d 350, 353-54 (Tex. Crim. App. 2005)

(outlining requirements for obtaining habeas relief due to ineffective 

assistance of counsel (citing Strickland v. Washington, 466 U.S. 668 

(1984))); see also Ex parte Ross, 522 S.W.2d 214, 223 (Tex. Crim. App. 

1975).

Accordingly, a committed person is entitled to habeas relief

reinstating his original appeal if he alleges and proves that his counsel 

provided ineffective assistance that resulted in the improper dismissal 

of that appeal. The Court of Criminal Appeals held just that in a similar 

case. Rodriguez v. Ct. of Appeals, Eighth Supreme Jud. Dist., 769 

S.W.2d 554 (Tex. Crim. App. 1989). There, a criminal defendant sought 

habeas relief when a mistake by the clerk of court cut off his ability to 

appeal his conviction. Id. at 555-56. The defendant argued that his 

counsel was ineffective for failing to recognize the error. The trial court 

granted habeas relief reinstating the appeal, and the Court of Criminal 

Appeals affirmed, holding that the trial court had authority under the 

Texas Constitution to grant habeas relief. Id. at 558-59. The same 

process would apply to a committed person who proved his counsel was 

ineffective.

The court of appeals in this case, for its part, held that although 

out-of-time appeals are an allowed habeas remedy in criminal cases, 

3 See also Ex parte Swate, 922 S.W.2d at 124 (“A writ of habeas corpus 

will issue if the commitment order is void because it deprives the relator of 

liberty without due process of law.” (citing Ex parte Barnett, 600 S.W.2d at 254; 

Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979); Ex parte Rhodes, 352 S.W.2d 

at 250)). 
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they are unavailable in civil cases. 2023 WL 2607560, at *2. In support 

of this proposition, the court pointed to Texas Rule of Appellate 

Procedure 26, reasoning that “[t]he only authority allowing a notice of 

appeal to be filed beyond the timeframe provided by appellate rule 26.1 

is appellate rule 26.3, and the only court that may allow an appeal to 

proceed under rule 26.3 is an appellate court.” Id. This conclusion was 

erroneous.

As an initial matter, Rule 26 does not apply in the procedural 

posture of this case. Anderson did not need to file a new notice of appeal; 

he could seek the reinstatement of his original appeal that was timely 

filed and erroneously dismissed. But more importantly, the Texas Rules 

of Appellate Procedure do not—and cannot—serve as limits on the 

constitutionally protected right of habeas corpus. Although the 

Legislature may “enact laws to render the remedy speedy and effectual,” 

no governmental body has the power to suspend the right of habeas 

corpus. TEX. CONST. art. I, § 12.

Finally, the court of appeals’ reliance on a distinction between 

civil and criminal cases when it comes to the right of habeas corpus was 

misplaced. “[M]ost jurisdictions have traditionally regarded habeas 

corpus as a civil remedy, even when the relief sought is from 

confinement in the criminal justice system,” and in any case the habeas 

remedy is essentially “unique”; it is neither strictly civil nor strictly

criminal.4 Ex parte Rieck, 144 S.W.3d 510, 515-16 (Tex. Crim. App. 

2004) (citing Harris v. Nelson, 394 U.S. 286, 293-94 (1969); Harbison v. 

4 Indeed, Anderson filed the habeas application at issue here in a 

criminal district court.
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McMurray, 158 S.W.2d 284, 287 (Tex. 1942)). Although laws apply to

habeas proceedings arising from criminal convictions that do not apply

to habeas proceedings arising from civil commitments, both remedies 

emanate from the Constitution. In Rodriguez, the Court of Criminal 

Appeals held that even when a defendant lacked a habeas remedy under 

then-applicable statutes regulating habeas in criminal convictions, he

retained habeas rights under the Constitution. 769 S.W.2d at 558-59.

The court then determined that it would grant habeas relief if the 

defendant met “the requirements for obtaining issuance of a writ of 

mandamus . . . (1) the relator has no other adequate remedy at law; and 

(2) the act to be compelled is ministerial.” Id. at 559. The same standard 

would apply in a habeas case like this one. See Ex parte Swate, 922 

S.W.2d at 124 (“A commitment order may be collaterally attacked in a 

habeas corpus proceeding.”).

Relatedly, a committed person could seek mandamus relief on the 

theory that the court of appeals improperly cut off his right to appeal 

the judgment committing him. As this Court recently recognized, “[a]n 

appeal cannot be adequate when the court prevents a party from taking 

it.” In re Whataburger Rests. LLC, 645 S.W.3d 188, 193 (Tex. 2022). In 

Whataburger, we granted the relator an out-of-time appeal when a trial 

court clerk’s error deprived it of an opportunity to appeal. Id.

Accordingly, Anderson could have sought mandamus relief in this Court

to reinstate the original appeal of his commitment. In one sense, this 

case is more straightforward than Whataburger because Anderson’s 

appeal was never actually untimely. So rather than seeking an 
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out-of-time appeal, Anderson would merely be seeking the 

reinstatement of his timely filed appeal. 

Although these procedural options are available to committed 

people, it is not certain that Anderson would have obtained relief had he 

sought habeas based on ineffective assistance of appellate counsel or

mandamus against the court of appeals’ dismissal of his timely original 

appeal. Of course, a committed person would have to prove in either 

instance that ineffective assistance of counsel actually deprived him of 

his appeal, though that seems likely in this case.

More importantly, in either a habeas or a mandamus proceeding,

Anderson would have to address the five-year delay between the 

dismissal of his original appeal and his application for relief. In 

granting mandamus relief in Whataburger, we found it important that 

the relator “did not sleep on its rights.” Id. at 194. Additionally, the 

State can raise the equitable doctrine of laches when a defendant 

unreasonably delays in seeking habeas relief and the delay causes 

prejudice to the State. See Ex parte Perez, 398 S.W.3d 206, 217 (Tex. 

Crim. App. 2013). In either case, the State would have to show 

prejudice, which may be harder where the only relief sought is a

first-time appeal rather than a new trial. Id.

With these observations, I concur in the denial of the petition for 

review.

J. Brett Busby

Justice

OPINION FILED: June 28, 2024