## IN THE COURT O F CRIMINAL APPEALS OF TE XAS

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E X P A R T E J U S T I N T O D D V A L D E Z , A p p l i c a n t

O N A P P L I C A T I O N F O R A N O R I G I N A L W R I T O F H A B E A S C O R P U S C R I M I N A L A C T I O N N O
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J O H N S O N , J . , f

i l e d a d i s s e n t i n g o p i n i o n . D I S S E N T I N G O P I N I O N Today , this Court decide s that the serva nt may dict at e t o t h e master how the master’ s authority shall be invoked. I conclude that neither the statutes nor the state constitution permit such

an interpre tation a

nd that prior case s cited to support such an interpre tation wer e wrong ly decide d.
The Court’s opinion corr ectly notes that Article V of the Texas Constit ution “conf ers power

on this Court to issue writs of habea s corpus ‘[s] ubject to such reg ulations as may be presc ribed by
law.’” I t then cites to Article 11.05 of t he Tex as C ode of Criminal Procedure as t he source of the authority of various courts to issue the writ of habea s corpus as may be presc ribed by law. Howeve r, it skips over Article 11.01, “ What W rit I s.”2

The writ of habea s corpus is the reme dy to be used when any person is restra ined in his liberty

. I t is an order issued by a co u rt or judge of competent jurisdiction, direc ted to any one having a person in his custody , or under his restra int, 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 restra int.
This is close to the common-law writ of habeas corpus, “tha t y o u s h all have the body .” I t

was available to test the leg ality of the restra int, to challeng e jurisdiction, or asser t the rig ht to bail.
The writ of habea s corpus, by which the leg al authority under which a person may be detained can be challeng ed, is of immemorial antiquity

. After a chec kere d car eer in which it was involved in the strugg les betwee n the common-law courts and the C o u rt s of Chance ry and the Star Chamber, as well as in the conflicts betwee n Parliament and the crow n, the protec tion of the writ was firmly written into Eng lish law by the Habe as Corpus Ac t o f 1 6 7 9

. Today it is said to be “per haps the most important writ known to the constitutional law of Eng land . . ..”
Charles Alan Wright, The Law of Fede ral Courts , 53, at 350 (5 ed. 1994) (quoting t h Secre tary of State for Home Affairs v. O’Brien , [1923] A.C. 603, 609).
The wr it, “as may

be pre scribed by

law,” a pplies to a

n asser tion of illega l restra int. I t is in
that context that the presc ribing law g rants authority to the district courts and county courts. But our l aw ch o o s es the specific over the g ener al, and clea rly , the proce dures “pre scribed by law” for a 1
ch alleng e from a felony conviction found in Article 11.07 are more specific : “Sec. 1. This ar t i cl e establishes the proce dures for an application for writ of habea s corpus in which the applicant seeks
relief from a felony judgme nt imposing a p en alt y other than death.” Article 11.071 states emphatica lly that it controls proce dures in death- penalty case s: “Sec. 1. Notwithstanding any other provision of this chapte r, this article establishes the proce dures for an application for a writ of habea s
corpus in which the applicant seeks relief from a judgme nt imposing a penalty of death.” As J udg e Richardson points out, Article 11.072 sets out the proce dures for a writ filed by a person who is on

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community supervision, and Articles 11.08 and 11.09 specify wher e writ applications should be
filed. Both of those article s contain lang uag e that make Article 11.05 writs applicable only befor e conviction; Article 11.08 states, “I f a person is confine d afte r indictment on a char g e of felony

. . .,”
while Article 11.09 states, “I f a person is confine d on a ch ar ge o f m i sdemea nor
. . ..” Final
convictions in misdemeanor case s have no specific proce dures and thus seem to be left to the g ener al

statutes. Article 11.06 is also within the context of Article 11.01, and it imposes a second limit on the authority of trial courts to g rant an out-of-time petition: “B efor e indictment found, the writ may be
made returna

ble to any county in the State.” This case is far bey ond “bef ore indictment found,” so
I conclude that the writ descr ibed in Article 1 1

. 0 1 i s n o longe r “re turnable to any county in the
State.” After an indictment or information is filed, Articles 11.08 and 11.09 control to which county

a wr it is returnable.
Nowher e in any of these statutes do I find any indication that the leg islature intended the trial courts, of any descr iption, to have the authority to g rant relief on a writ of habea s corpus that seeks
relief from adminis trative rules and reg ulations. I n this case , applicant seeks t o be allowed to file

an untimely petition for discretionar y revie w, even though the Rules of Appellate Procedur e do not allow him to do so. The Rules applicable here are not “re g ulations

. . . presc ribed by law”; they are rules, which this Court has written as a means by which to manag e its docket. Manag ement of this
Court’s docket should not be c eded to tria l courts. Statutory interpre tation aside, I find it very curious that the Court’s opinion authorizes a trial

court to tell this Court what to do in reg ard to manag ement of this Court’s docket. A trial court can

cer tai n l y re co m m en d to this Court that we g rant or deny a reque st for relief , and ever y y ear we4

revie w thousands of applications for a writ of habea s corpus in which the trial court has made such

a rec ommendation, including hundreds in which the relief reque sted is an out-of-time filing. We do
well to consider a rec ommendation from the person who hear d the testimony and was in a position

to make judgme nts about cre dibilit y
. Stil l, the authority to make a decision lies with this Court and
no other.
The Court’s opinion conce des that the trial judge ’s order to this Court to permit an untimely filing “does not, in fac t order us to do any thing.” We can ignor e it. So why are we holding that the
trial court can, and presumably should, perf orm a futil e act–an act we all know ax iomatically that
the law does not require ? The Court’s opinion brushes this question aside by asser ting that such an order “mer ely rese ts the applica ble appe llate time table.” B ut such a holding still permits the trial

court to dictate to this Court what time limit s, set out in the Texas Rules of Appellate Procedur e, this Court will observe. Presumably , we c an ig nore the “re set” appellate ti me-table , too. I f the orde rs of trial courts can be so easily ignor ed, wh y is this Court telling them that they have authority to order this Court to do an act that this Court can, with impunity , ref use to do? Such rea soning strains
the definition of logic

. I would find that the trial courts may issue and g rant writs of habea s corpus that are cre ated and g overne d by statute, but they may not do so if the cause is cre ated and g overne d by rule. Be cause the Court’s holding permits the trial court to interfe re with the manag ement of this Court’s docket, I

respe ctfully

dissent.

Filed: May

4, 2016 Publis h