Defendant has filed Writ of Habeas Corpus seeking relief from final felony conviction. Defendant was sentenced to 4 years TDCJ for the offense of sexual assualt pursuant to a plea agreement. Defendant is now unhappy with plea agreement (big surprise), and filed Writ of Habeas Corpus. Defendant failed to get
the Writ verified (i.e. sworn before a notary public). Is this grounds for denial the Writ? Forgive me, I'm asking a pretty simple question b/c
this is the first I've ever done. Any insight would be greatly appreciated.
Look at Ex parte Golden, 991 S.W.2d 859, 862 (Tex. Crim. App. 1999) ("Had the Legislature intended the requirements of Article 11.14 to be jurisdictional, the drafters would have made that intent clear as they did in Article 11.07. Instead, Article 11.14 simply sets out procedural requirements for habeas corpus petitions. Although the instant application is not properly verified, we are not jurisdictionally barred from considering the merits of the issues raised. Under the peculiar circumstances of this case, we choose to address the merits and grant relief.").
In the absence of an oath that the allegations are true and correct in the manner required by law, there may not be a justiciable case or controversy. TEX. CODE CRIM. PRO. art. 11.14(5) or TEX. CIV. PRAC. & REM. CODE, sec. 132.001-132.003. Ex parte Jackson, 616 S.W.2d 625).
In Golden, the case was heard without an oath because no one complained and everyone agreed on the facts.
Check Ex Parte Johnson, 811 sw2d 93, (97 CCA 91), requiring verification or a sworn declaration under penalty of perjury that the allegations of the application are true.
Thanks to Everyone:
You guys have been really helpful!!!
You did not mention whether the application was filed on the form required by the Court of Criminal Appeals, which contains two options for verification. See TRAP 73.1(d).
If the application is not on the form at all, the district clerk should return the whole package with a copy of the proper form. TRAP 73.2. If the verification is just left blank, the CCA most likely will treat it as non-compliant under the same rule and return it without filing it (even more likely if you note it in your response).
Whether to limit a response only to the deficient verification depends upon how much concern you would have about the Court reviewing the issue without additional answer (in case they disagree about the deficiency). Of course, if the application is returned, you'll likely just have to deal with it again when he re-files.
Welcome to the wonderful world of writs.
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