Monday, March 17, 2014


CASE NO.                                         





{name of county} COUNTY
{name of county} COUNTY, TEXAS
Text Box: Defendant’s Exhibit 1{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.  Generally, an application for habeas corpus needs to be custom made for the individual for whom relief is sought, but since the 1940’s the constitutionally prescribed procedure for charging someone with a misdemeanor in Texas has been disregarded in such a consistent manner that this one issue should be applicable to any misdemeanor, and this model is intended to provide a good starting point for attack.

Also note that a county court at law is not indicated in the styling above because the Texas Constitution and TCCP, Art. 11.05 do not refer to a county court at law for this.}




            {NAME OF APPLICANT} {or the name of the person who signs the Application and actually brings it to a court, i.e. the RELATOR}, APPLICANT {or RELATOR}, hereafter {Family name of Applicant or family name of Relator} or Applicant {Relator}, files this Application for the EXTRAORDINARY WRIT OF HABEAS CORPUS and here proceeds to secure the release of your applicant, {Name of Applicant}, hereinafter Applicant or {Family name of Applicant}, who is presently restrained of his liberty as the result of the issuance of an "ORDER OF {put the title of a description of the order.  For this model application attached to the model motion this will generally be the final order, whether an assessment of fine or something else.  The purpose of the motion for dismissal with this application attached is to cause them to take some action so that the final order is not issued, thereby making the issue for the habeas corpus moot.  You generally will not have a copy of this order at the time that you put this paperwork in, but a copy of the unsigned order may already exist in the case file.} a true copy of which is attached and marked “Exhibit A”, the same being issued by the presiding Judge of {name the court} on or about [date entered after issuance] {you probably don’t know the date this is supposed to happen, but you are showing that it will be entered once known}.  Applicant will show that the Applicant is entitled to Habeas Corpus relief and that the Judgment and Order Of {title of order} are VOID for the following reasons:


1.                 As jurisdictional authority for this application for the Extraordinary Writ of Habeas Corpus and the same being signed and then filed and presented to this court by {Family name of Applicant} {or last name of Realtor}, your Applicant {Relator}, relies upon the Constitution and laws of the United States of America especially the Federal Bill of Rights; the Constitution and laws of the State of Texas especially the Bill of Rights as stated in Article I thereof; the ancient common law respecting Writs of Habeas Corpus; the Texas Criminal Code of Procedure at Chapter 11, respecting Habeas Corpus, especially Articles 11.01, 11.02, 11.03, 11.04, 11.05, and 11.15; Article 1.27 of the Texas Code of Criminal Procedure; and {any thing else relevant to violations of the Applicant’s rights, ex. Article 1.051, respecting the Defendant’s Right to the Assistance of Counsel.}  Collectively, these statutes are binding on this court and, inter alia, provide that,

"The writ of habeas corpus is the remedy to be used when any person is restrained in his liberty." See: TCCP, Art. 11.01 and

"The Court of Criminal Appeals, the District Courts, the County Courts, or any Judge of said Courts, have power to issue the writ of habeas corpus; and it is their duty, upon proper motion, to grant the writ under the rules prescribed by law." See: TCCP, Art. 11.05, and

"The writ of habeas corpus shall be granted without delay by the judge or court receiving the petition, unless it be manifest from the petition itself, or some document annexed to it, that the party is entitled to no relief whatever." See: TCCP, Art. 11.15.  (underline and bold type emphasis is added to the original)



2.                 Applicant {Relator}, {Name of Applicant} {or name of Relator}, has signed the instant Application and filed the same with the clerk of this Court.  Further, Applicant seeks to hereby present this petition to this Honorable Court pursuant to the authority of Articles 11.12 and 11.13 of TCCP that state, to wit:

"Either the party for whose relief the writ is asked, or any person for him, may present a petition to the proper authority for the purpose of obtaining relief." Art. 11.12, and

"The word applicant, as used in this Chapter [11], refers to the person for whose relief the writ is asked, though the petition may be signed and presented by any other person." Art. 11.13.
3.                 For example, in Lehmann v. Lehmann, 537 SW2d 131 (Civ.App. - Ft. Worth), May 7, 1976, the court upheld and acknowledged the statutory and common law right of presentation by Applicant, to wit:

"In proceedings on habeas corpus the applicant for the writ is the person for whom relief is sought by reason of his being illegally confined or restrained within the district or county, and it is of no importance that the petition for the writ is signed and presented by some other person. " Lehmann at 132, citing 27 Tex.Jur. 2d, p 723, "Habeas Corpus, Sec 46: In general, Who may apply."

4.                 Further, your Applicant calls the attention of this Court to the authority of Ex Parte Williams, 630 SW2d 803, 804 (Tex.App. San Antonio - 1982) which in pertinent part states that:

"We hold that to deny [a] hearing . . . constitutes an arbitrary and unreasonable action, as does the denial of habeas corpus relief without a hearing." Id. Ex Parte Williams, 804.


5.                  Applicant {Relator} request the consideration of this Court as to Applicant proceeding within his own proper person without aid of counsel pursuant to the rule of law established in Hughes v Rowe,  (1980) 449 US 5, 9; 101  S.Ct. 173, 176.



6.                  Applicant's liberties are currently restrained by reason of him presently being under bond {or other reason.  You may have to make intelligent adjustments to this paragraph.} to {name of the court} and as a result of the Order of the Judge of {name of the court}.  In lieu of a copy of documents in addition to and other than the Order Of {title of order} as set forth in “Exhibit A”, supra and attached, Applicant respectfully request this Court to take Judicial Notice of the contents of the file jacket in the case of The State of Texas vs. {Name of Applicant}, No. {trial court case number}.


7.                   A review of the known relevant facts respecting this application for the Extraordinary Writ of Habeas Corpus are as follows:
{List facts relevant to the case identified in 6 above.  These will be verified, i.e. sworn to be correct, later in this document.}

a.       {first fact, (Applicant charged with …)}
b.      {second fact}



8.                  {Name of Applicant} {or name of Relator}, Applicant {Relator} on this application for Extraordinary Writ of Habeas Corpus, requests of this Court that this Application be in all things granted and further requests this Honorable Court to issue the Extraordinary Writ of Habeas Corpus directed to {name/identity of the court} and/or any other person into whose custody, actual or constructive, your Applicant, {Name of Applicant}, has been or may be remanded, to produce the person and body of your Applicant, {Name of Applicant}, in and before this Honorable Court at a date and time certain, in a manner consistent with the Rule of Law established by Article 11.31, etc, of Chapter 11 of the Texas Code of Criminal Procedure, so that a statutorily sufficient adjudicatory hearing may be held to determine the propriety, if any there be, for the restraint upon the person and liberty of  {Name of Applicant}, the Applicant.
9.                  In strict compliance with the requisites of an Application for the Extraordinary Writ of Habeas Corpus as set forth in Article 11.14 of Chapter 11 of the Texas Code of Criminal Procedure pertaining to the requisites of a Writ of Habeas Corpus, your Applicant {Relator}, {Name of Applicant} {or name of Relator} hereby states:
a.      That this Application for the Extraordinary Writ of Habeas Corpus, after being signed by Applicant {Relator} and then filed with the clerk of this court, and upon presentation by Applicant {Relator}, Applicant {Relator} represents that this Application is being made in behalf of {Name of Applicant} who is presently illegally restrained of his liberty and is presently under Bond to and Order of the {name/identity of the court}, and
b.     That {Name of Applicant} is being restrained of his liberty by virtue of an “ORDER OF {title of order}” signed by {name of the judge}, Judge of the {name/identity of the court}, the same being signed and entered on or about {date that the order or other paper is signed} and a true copy of the same being attached hereto and marked “Exhibit A”, and
c.      That this Application contains a prayer for relief as stated below, and
d.     That this Application is verified by the oath of the Applicant {Relator} herein, {Name of Applicant} {or name of Relator}, to the effect that the allegations of this Application are true, according to the belief of Applicant, and
e.      That Applicant {Relator} 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, and {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}
f.      That Applicant {Relator} has failed to find records showing that any such indictment for this case had been quashed in the trial court, and
g.     That Applicant {Relator} 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, and
h.     That Applicant {Relator} has failed to find a waiver of indictment.
i.       {any other facts relevant to this application}


10.             The Order Of {title of order} is void on its face due to a failure of the judicial officers involved in the cause to follow the procedures for charging a misdemeanor as prescribed by the Texas Constitution.
11.             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.)

Particular sections of the Code of Criminal Procedure implementing procedures prescribed by Texas Constitution, Article V, Section 17 are Articles 21.26 — 21.30.

12.             The Court’s Order Of {title of order} shows on its face that the trial court is not the County Court identified in Sentence One (1) and Sentence Two (2) of this section of the Constitution.
13.             Applicant made no waiver of indictment.
14.             Applicant {Relator} has made inquiry to the District Clerk of {county name} County to locate any records that might show that the procedures available to the trial court by Article V, Section 17 of the Texas Constitution and Art. 21.26 and Art. 21.28 of the Code of Criminal Procedure had been followed, and Applicant has found none. {This paragraph can probably be omitted since the court file does not show an indictment, but you can do this to emphasize your due diligence.  If you do, add a verified statement of fact of this under paragraph number 9.}
15.             The procedure used to bring the Information {or Complaint} for this cause to the trial court was out of order of the procedure prescribed by Article V, Section 17 of the Texas Constitution.
16.             The procedure used to bring the Information {or Complaint} for this cause 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.
17.             The procedures used in this case constitute a deprivation of the due course of law and due process.
{Describe any other known errors to be raised  ERROR TWO …}

ERROR ______________

This space reserved for errors discovered subsequent to the filing of Defendant’s Motion For Dismissal In Lieu Of Application For The Writ Of Habeas Corpus
{Note that the above is not in curly braces and is intended to be in the final document attached to the motion, but it would not appear in an actual application}

18.             Applicant {Relator} has herein made a prima facia case for issuance of the Extraordinary Writ of Habeas Corpus meeting the threshold requirements for issuance of the Great Writ as set forth in Article 11.14 of the Texas Code of Criminal Procedure.
30. Thusly, Applicant {Relator} has invoked the duty of an authorized court to issue the Extraordinary Writ of Habeas Corpus forthwith pursuant to Article 11.15 of the Code of Criminal Procedure.
                   WHEREFORE PREMISES CONSIDERED, {Name of Applicant}, Applicant, respectfully request that this court grant the following relief:

1)      Issuance, forthwith, of the Extraordinary Writ of Habeas Corpus; and
2)     Fix a date and time certain at which a statutorily sufficient adjudicatory hearing may be held in a dispositive determination of the propriety of the present restraint upon the liberty of your Applicant, {Name of Applicant}; and
3)     Applicant {Relator, on behalf of your Applicant,} request any and all other and added relief to which he may show himself or otherwise be justly entitled at law or in equity to which the court deems to be just in this action.

Respectfully submitted this                 day of ________.

{Name of Applicant} {or name of Relator}
{street address}
{town}, Texas {zip if you want}
Tel. {Nnn nnn-nnnn }



COUNTY OF {name of county}


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

"My name is {Name of Applicant} {or name of Relator}, 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 Applicant {Relator} in the foregoing Application for the Extraordinary 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 Applicant}

Given under my hand and seal this                 day of ____________

Notary Public, In and For the State of Texas

Name of Notary – Printed

1 comment:

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