Defendant gets tried and convicted in '96. Defendant appeals and loses at the Court of Appeals. In 2001, Defendant hires a new attorney who informally calls local judges to see if any of them would grant a writ of habeas corpus. All of them tell him no. So, attorney goes to another county, finds a willing county court at law judge, and files an application for a writ of habeas corpus. The judge grants the writ and reverses and remands the case back to the trial court. However, since no one in the original county knew anything about it (no certificate of service or certified mail cards on the habeas application) -- the case has sat on the shelf in the clerk's office since early 2002.
Any ideas on where to start cleaning this mess up? Has anyone run into this issue before?
I would start with an investigation into the ethics of a lawyer shopping the case like that. First, he makes an ex parte contact with a judge. Second, he fails to give notice to the obvious opposing party.
Williamson County, Texas
Isn't the habeas ruling void under 11.09 or does Ex parte Schmidt, 109 S.W.3d 480 (Tex. Crim. App. 2003) say that 11.05 trumps 11.09. Sure seems to me that 11.09 was written precisely to prevent this kind of forum shopping.
After reading Schmidt I don't think that is giving blanket jurisdiction to every county or district judge to review habeas petitions from other counties. I would think that under normal statutory construction that the more specific statute, 11.09, would control over the more general statute, 11.05. 11.05 seems to only give the general authority (jurisdiction) to who can review habeas petitions and 11.09 gives specific authority (jurisdiction) to the county where the conviction was charged.
Perhaps an answer to this question is finally upcoming in State v. Curipoma, PD-0159-22. In that case a Travis County District Court granted relief with respect to a misdemeanor charge in Kinney County Court. The Travis County DA recommended relief in the interest of justice (contrary to the charging decision made by the Kinney County Attorney).
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