November 21, 2017, 11:44cburkedavis
Sample 11.09 Writ Response
Does anyone have a sample 11.09 Writ Response they could send me? I've been through the new Writs book and it just says that 11.09 writs are rare and complicated. . . any samples would be appreciated.
November 22, 2017, 09:19Martin Peterson
Probably no specific form is available because it would depend on what is alleged as the basis for the illegality of the restraint. But, I will share a few thoughts. First, the State is not necessarily required to make any response. Of course, if you were to believe it to be manifest from the petition itself, or some documents annexed to it, that the party is entitled to no relief whatever, I would make that statement and explain why. If the petition failed to comply in some respect with the requirements of art. 11.14, I would respond to that effect (but keeping arts. 11.03 and 11.04 in mind). Finally, be quick with any response, as the hearing will presumably be quick, under art. 11.11. And be sure the judge understands that the burden is upon the applicant.
There is likely an issue about the right of appeal. This proceeding has been described as criminal in nature. E.g., Hinojos, No. 08-17-00077-CR (El Paso 5/4/17). The State may have no right of appeal, as habeas relief is not mentioned in art. 44.01, although 44.01(a)(1) may apply. So, perhaps only mandamus is available. Furthermore, there may be a jeopardy issue if the State were merely to try to refile the case later.