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Getting Out of Jail in Texas on a Writ of Habeas Corpus

There’s more than one way to regain your freedom after an arrest here in Texas.  Under either federal or state law, you can challenge the legality of your situation – being held behind bars – by filing an application with the court for a “writ of habeas corpus.”

What is a Writ of Habeas Corpus?

Translate the Latin phrase “habeas corpus” and you get “produce the body.”  A “writ” is a court order signed by a judge.

So, a “writ of habeas corpus” is literally an order from a judge to have the individual brought before the judge.  It is issued to those responsible for his or her imprisonment.  Maybe the writ is issued to the local jail.  Maybe it goes to the warden of the state prison.

The purpose of the Writ of Habeas Corpus is to shield citizens from governments overreaching in their power to imprison people.  The police, as well as agents of the federal government and state agencies like the Texas Rangers, have a great power entrusted to them.  That’s their power to grab a person off the street, cuff him, and place him behind bars.

In our country, that police power is monitored by all sorts of laws and regulations.  The power of an individual to petition a judge for a writ of habeas corpus is one tool to protect against wrongful imprisonment or incarceration.



The Writ of Habeas Corpus Is Not a Get Out of Jail Free Card

One thing to remember here:  an individual first files a “petition for writ of habeas corpus” with the court.  If it is granted, then the writ of habeas corpus is issued.

That writ brings the petitioner before the judge.  It does not give the prisoner his or her freedom.

The power of the writ of habeas corpus is to give someone who is setting behind bars the ability to argue their plight to a judge and to seek relief from the court.  Their arguments may be on any number of things; the key is that the legal rights of the individual have been violated in some way.

For example, see the Michael Lowe Case Result “Court of Appeals Granted Writ of Habeas Corpus” dealing with prosecutorial misconduct.

Constitutional Protection: Federal and State

The federal constitution provides for habeas corpus protection.  Article 1, Section 9, Clause 2 provides:

“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”

As explained in the Manual for the U.S. Attorney General’s Office, a federal petition for writ of habeas corpus can be filed either because (1) the prisoner argues there has been an error in sentencing or (2) the defendant argues that the conditions of his incarceration are unjust and unlawful.  For more, read Section 9-37.000 of the U.S. Attorney’s Manual.

Federal habeas corpus proceedings are sometimes called “Section 2254 Cases” because they are governed by the federal statute found in Title 28 of the United States Code Section 2254 (28 U.S.C. § 2254).  There are procedural rules that govern Section 2254 Cases.  These are cases where a state court conviction is being challenged before a federal judge on the grounds that the conviction is in violation of the defendant’s federal rights (constitutional or otherwise).

Federal writs of habeas corpus can deal with either state or federal incarcerations.  Federal judges can review what has happened in federal arrests and federal proceedings as well as in state arrests and state prosecutions.

The Texas constitution also provides for writs of habeas corpus.  The Texas Constitution’s Bill of Rights provides for a writ of habeas corpus in its Section 12:

Sec. 12. HABEAS CORPUS. The writ of habeas corpus is a writ of right, and shall never be suspended. The Legislature shall enact laws to render the remedy speedy and effectual.

In Texas, petitions for writ of habeas corpus are governed by Chapter 11 of the Texas Code of Criminal Procedure.

Pretrial Freedom: Writ of Habeas Corpus before Conviction

Before someone is convicted of a crime in Texas, they can seek relief through a petition for writ of habeas corpus.  This will be a separate criminal proceeding from their criminal case where the prosecutor is seeking to convict them.

This means that the independent habeas proceeding may end the prosecution quickly.  It may also mean that the habeas proceeding moves up to an appellate review fast, because any order by a lower court judge denying that petition for writ of habeas corpus can be appealed immediately.  No need to wait to see what happens in the criminal trial case.

Pretrial petitions for habeas corpus relief can deal with many things.  Double jeopardy is one ground for pretrial habeas relief, for instance (like the Case Result mentioned above).  A bail amount that is way too high is another valid ground (excessive bail).  Others include:

  • Failure to timely charge the defendant after his arrest;
  • Challenges to the statute upon which the arrest has been made as being unconstitutional; and
  • Selective prosecution.

Post-Conviction Writ of Habeas Corpus

After a conviction, defendants usually know that they have a right to appeal.  However, there are other remedies available to them in addition to the right to file an appeal with the reviewing court.

One of these remedies is filing a petition for writ of habeas corpus with the state appellate court or federal appeals court.

In Texas, after a conviction the defendant can seek a writ of habeas corpus that asks for the defendant’s freedom.  Their petition may also seek to change their sentence in some way, including how they are to be incarcerated.

For Dallas and North Texas, a petition for writ of habeas corpus after a federal conviction may be filed with the local federal court or with the United States Court of Appeals for the Fifth Circuit.  The federal appeals court is located in New Orleans, Louisiana.

Seeking Relief Though a Petition for Writ of Habeas Corpus

Courts are not known for granting petitions for writs of habeas corpus. Even if the writ is granted, it does not necessarily mean that the court will free the defendant or otherwise order relief for the incarcerated prisoner.

It’s a two-stepper:  first, you have to get your writ application granted.  Second, you have to win your legal argument on why your requested relief should be granted by the court. 

Justice can prevail through a habeas corpus proceeding.  There are good reasons for seeking relief through a state or federal petition for writ of habeas corpus.  Sometimes, this may be the only way to get relief for the individual, particularly during the pre-conviction process.

An experienced criminal defense lawyer will understand how best to proceed on a petition for writ of habeas corpus as well as the nuances of briefing, drafting, and arguing the habeas request.


For more information, check out our web resources as well as Michael Lowe’s Case Results and read his articles including:

Junk Science Causing Wrongful Convictions in Texas: Will New 2013 Habeas Corpus Law Help Those Wrongfully Convicted in Texas?

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