FYI: Our court of appeals in El Paso held, in our mandamus petition, that trial courts have the authority to hold hearings on writ applications when the applicant is in federal custody BUT they do not have the authority to issue w.h.c. ad testificandum or bench warrants to bring them to court for the hearing when they are in ICE custody. In re: State of Texas, 08-09-00181-CR, Jan. 29, 2010.

JM

An interesting ruling. It is included in this week's TDCAA case summaries. Any plans to mandamus the COA?

I'm leaning towards observing how this will play out in the trial courts for now.

JM

I've spent a lot of time with federal habeas and federal-state custody issues, and it sounds to me like the El Paso court got it exactly right.

The definition of a "writ" is found in CCP 11.01. It is an order directed to the one having a person in his or her custody or restraint to produce the person, etc. By holding that a court can still review a conviction but cannot order that the person be "produced" from federal custody, is it still a "writ" as defined in 11.01?

JM

It is still a writ isn't it? As there isn't a vehicle in state court for the inmate to get relief in federal court, the writ was just employed for the wrong purposes or filed in the wrong system. The writ could properly be filed and considered in state court as it was submitted by an inmate with a state conviction but the court simply lacked jurisdiction to provide that particular type of relief.

Maybe this helps. If a inmate incorrectly seeks civil rights relief by way of a state writ, the state court will not reach the issue on its merits, but the vehicle employed by the inmate is still a writ. If not, the court would lack jurisdiction to explain its ruling.

While a court has jursdiction to consider its jurisdiction, it cannot provide advisory opinions. So if it gave an opinion on a matter over which it decided it had no jursdiction, it improperly issued an advisory opinion. Is that what you are playing with?

[This message was edited by John A. Stride on 02-22-10 at .]

What first started me down this road was Ex parte Nguyen, 31 SW3d 815 from the Dallas Court of Appeals. It is an appeal from the denial of a state writ by a person in immigration custody. The Dallas court vacated the denial and dismissed the writ, holding that the trial court lacked jurisdiction to even deny the writ because of CCP 11.63 and the applicant's federal custody.

JM