HABEAS CORPUS 2.

Cause No.  {cause number for the case}

THE STATE OF TEXAS VS.      {NAME OF DEFENDANT}

§ § § § §

IN THE {identity of the municipal or justice or county court at law} OF {name of the city or county}, TEXAS

{Note that this is a model from which to construct your final document.  Nothing in curly braces, “{}”, or the curly braces should show up in your final document, but the information in the curly braces may suggest particular individualized text that should replace the curly braces.  This motion probably will not be granted itself, but it is expected to cause the trial court, for a misdemeanor, to take some other action that results in the desired effect.    The sooner that the judicial officers become aware of this motion the more ways they can engineer something to let the case against you go without them losing face.  The primary issue is that since the 1940’s the constitutionally prescribed method for charging a misdemeanor has not been followed.  There is a  view that every misdemeanor conviction in Texas for the past several decades is void.  Although these issues have been brought up in trial courts before and ignored, this motion also threatens the use of habeas corpus.   Habeas corpus, or threat of it, has been found effective and necessary.  One with a great amount of experience with habeas corpus has said that it’s as if “The System is terrified of being called upon to give an accounting of itself.”}

DEFENDANT’S MOTION FOR DISMISSAL IN LIEU OF APPLICATION FOR THE WRIT OF HABEAS CORPUS

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW {Name of Defendant}, defendant in the above described and numbered cause, and would show the court that the case file for the above described and numbered case lacks certain documents essential to show that the court had obtained jurisdiction of this cause, {and whatever other points are to be brought up.}  Defendant has been deprived of the due course of law and due process, which can be remedied through Habeas Corpus, but defendant desires to afford the court opportunity to provide remedy.

BACKGROUND

1.      Defendant was charged by {Information/Complaint as the case may be} with the offense of {name or describe the charge}.

DEPRIVATION OF DUE COURSE OF LAW AND DUE PROCESS

2.      Defendant, {Name of Defendant}, in order to show the facts that the case file for this case lacks necessary documents that show that the court had ever obtained jurisdiction of this cause states:

a.       Defendant has examined the records for this case and has failed to find that a misdemeanor indictment for this case was ever issued by a grand jury. {if you’re going to swear that you took a look at the records, go take a look and actually look for what you’re saying you did not find}

b.      Defendant has failed to find records showing that any such indictment for this case had been quashed in the trial court.

c.       Defendant has failed to find records showing that any proceedings have taken place resulting in a finding of probable guilt resulting in an information being used in this case.

d.      Defendant has failed to find a waiver of indictment.

e.       {any other facts to bring up about this point}

3.      The procedure for charging a misdemeanor is specified in Article V, Section 17 of the Texas Constitution, which states:

The County Court shall hold terms as provided by law.  Prosecutions may be commenced in said court by information filed by the county attorney, or by affidavit, as may be provided by law.  Grand juries empaneled in the District Courts shall enquire into misdemeanors, and all indictments therefor returned into the District Courts shall forthwith be certified to the County Courts or other inferior courts, having jurisdiction to try them for trial; and if such indictment be quashed in the County, or other inferior court, the person charged, shall not be discharged if there is probable cause of guilt, but may be held by such court or magistrate to answer an information or affidavit.  A jury in the County Court shall consist of six persons; but no jury shall be empaneled to try a civil case unless demanded by one of the parties, who shall pay such jury fee therefor, in advance, as may be prescribed by law, unless he makes affidavit that he is unable to pay the same. (Emphasis added)

These constitutionally prescribed procedures have been further implemented in Texas Code of Criminal at Art. 21.26 – 21.30.

4.      The County Court identified in Sentence One (1) and Sentence Two (2) of this section of the Constitution does not include this trial court.

5.      The current state of the records of this case having been identified to the court, the court is no longer justified in applying the presumption of regularity in considering the manner by which the Information {or Complaint} used in this case arrived at the court.

6.      The current state of the records for this case indicates that the procedure used to bring the Information for this case to the trial court was out of order of the procedure prescribed by Article V, Section 17 of the Texas Constitution.

7.      The current state of the records for this case indicates that the procedure used to bring the Information {or Complaint} for this case to the trial court did not constitute a “presentment of an indictment or information to a court” as contemplated by Article V, Section 12(b) of the Texas Constitution.

8.      The current state of the records for this case indicates that defendant was deprived of the due course of law prescribed by the Article V, Section 17 of the Texas Constitution and the Texas Code of Criminal Procedure.

9.      The current state of the records for this case fails to show that the trial court ever obtained jurisdiction of this cause.

No Remedy By Appeal

10.  The trial court lacking jurisdiction of this cause deprives appellate courts of jurisdiction of an appeal.  “The justice court being without jurisdiction, the county court was also without jurisdiction on appeal.  It therefore follows that appellant's conviction is void.  For the reasons stated, the appeal is dismissed without prejudice to appellant's right to attack the judgment of conviction as being void for the want of jurisdiction in both the justice court and the county court at law by writ of habeas corpus.”  (Citations omitted)  Bonner v. State, 436 S.W.2d 904, 906 (Tex.Cr.App. 1968).

11.  However, this court can still take appropriate action in this matter.  “The only "jurisdiction" of which every court is assured possession is the jurisdiction to assess its subject matter jurisdiction and act accordingly.” Camacho v. Samaniego, 831 S.W.2d 804, 809 (Tex. 1992) citing Camacho v. Samaniego, 825 S.W.2d at 469 (Tex.App.-El Paso 1991).

12.  Defendant is prepared to institute proceedings to obtain relief through habeas corpus, but he requests that this court take immediate proper and just action in this matter.  See Defendant’s Exhibit 1 attached.

{OTHER ISSUES BROUGHT UP IN THE ATTACHED APPLICATION FOR HABEAS CORPUS}

13.  {State your case for the other issues}

PRAYER

WHEREFORE PREMISES CONSIDERED, {Name of Defendant}, defendant, respectfully request that this court:

Upon the prosecutor of this cause failing to produce sufficient documentation to show that the constitutionally prescribed procedures were followed for bringing this cause to this court, that this cause be dismissed, and

{Anything else that you feel is proper to ask for at this time, and}

Any and all other and added relief to which he may show himself or otherwise be entitled at law or in equity, which the court deems to be just.

Respectfully submitted,

____________________________________

{Name of Defendant}

{Street address}

{City}, Texas [zip]

Tel. {(nnn) nnn-nnnn}

VERIFICATION

STATE OF TEXAS

COUNTY OF {name of county}

ACKNOWLEDGMENT

Before me the undersigned authority on this day personally appeared {Name of Defendant} who after being duly sworn, did depose and state:

"My name is {Name of Defendant}, I am over twenty-one (21) years of age, have never been convicted of a felony or a crime of moral turpitude {if you don’t meet any particular qualification listed here, then just take that one out} and am competent to make this affidavit. I am the Movant in the foregoing Defendant’s Motion For Dismissal In Lieu Of Application For The Writ Of Habeas Corpus and all statements, allegations, denials and attachments contained therein are true and correct to the best of my knowledge and belief."

                                                                       

            {Name of Defendant}

Given under my hand and seal this                 day of ____________ 2005

­­­­­­­­­­­­­­­­­__________________________________________ 

Notary Public, In and For the State of Texas

__________________________________________ 

Name of Notary - Printed

 

 

CERTIFICATE OF SERVICE

I certify that I delivered by hand {or identify the method actually used} a true and correct copy of foregoing Defendant’s Motion For Dismissal In Lieu Of Application For The Writ Of Habeas Corpus to the office of the attorney representing the State, at {Street Address}, {City}, Texas, on {DATE}.

______________________________

{Name of Defendant}

{Street address}

{City}, Texas [zip{if you want}]

Tel. {(nnn) nnn-nnnn}