What is a Writ of Habeas Corpus?

By Criminal Defense Lawyer Jeremy Rosenthal


(972) 369-0577

There are few more confusing terms in criminal law.  Basically a writ of habeas corpus is a petition to undo something “unlawful.”  A writ of habeas corpus could be to over-turn a decades old conviction or a demand bond be set for someone arrested earlier the same day.  The latin translation is “we command you have the body” which doesn’t help at all.

Usually a writ of habeas corpus is filed to undo a conviction in Texas.  Today, I’ll be discussing the post-conviction aspect of habeas corpus.

Indirect Appeal

Writs of Habeas Corpus often get confused with appeals.  They are really not the same thing.  An appeal (or direct appeal) is based solely on what happened in the courtroom.  Examples of issues covered on direct appeal would be rulings by the judge, testimony of a witness, or error in a jury charge.

Habeas corpus is what is known as an “indirect appeal.”  They are often based on new or unknown facts which were not known at the time of the trial.

Indirect appeals usually require new facts to be investigated, developed and then ultimately reported to the Court.  Most topics which were already appealed from the original courtroom proceedings cannot be the subject of writs of habeas corpus.

Texas Codes Control Writs of Habeas Corpus

Chapter 11 of the Texas Code of Criminal Procedure is called “Habeas Corpus.”  It proscribes the different types of habeas proceedings:

  • 11.07 writs – felony writs for inmates in TDC;
  • 11.071 writs – death penalty writs;
  • 11.072 writs – felony writs for probationers;
  • 11.073 writs – writs related to scientific evidence;
  • 11.09 writs – writs for misdemeanor convictions (probation or not).

Typical Examples of How Post Conviction Habeas Corpus Works

Example 1:

Let’s say a persons put on trial for sexual assault and is convicted then sent to prison or put on felony probation and required to register for life as a sex offender.  The defendant appeals and loses those appeals in the months and years after the trial.  A decade passes and word leaks out to Defendant or his family the accuser admitted to her college roommate the allegations were not true.  Defendant could then file an 11.07 (or 11.072) writ based on the newly discovered facts.

Example 2:

Lawyer advises defendant to plead guilty to assault/ family violence and defendant is not a full US Citizen – and the lawyer did not give appropriate immigration advice to Defendant.  The defendant completes probation successfully but then petitions to have his Visa renewed to stay in the US.  He is then denied his visa and faces deportation proceedings.  In this instance an 11.09 writ of habeas corpus might be appropriate.  Defendant could allege ineffective assistance of counsel and potentially have the guilty-plea set aside.

As you can see – each example consists of entirely new facts unknown at the time of conviction.

You Only Get One!

You only get one Habeas Proceeding in Texas absent bizarre circumstances.  A criminal defendant considering filing a writ of habeas corpus whether in jail or not should absolutely consult a lawyer first.  If a criminal defendant does their own writ and it is unsuccessful – they can spoil future writs.  When filing a writ of habeas corpus – it is important to include all potential grounds for relief for this reason.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.



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