Opinion
NO. PD-0159-22
06-26-2024
ON PETITION FROM THE KINNEY COUNTY ATTORNEY AND ON COURT’S OWN MOTION FOR DISCRETIONARY REVIEW FROM THE THIRD COURT OF APPEALS TRAVIS COUNTY
Angelica Cogliano, Austin, for Appellee. David A. Schulman, Austin, Holly E. Taylor, for State of Texas.
ON PETITION FROM THE KINNEY COUNTY ATTORNEY AND ON COURT’S OWN MOTION FOR DISCRETIONARY REVIEW FROM THE THIRD COURT OF APPEALS TRAVIS COUNTY
Angelica Cogliano, Austin, for Appellee.
David A. Schulman, Austin, Holly E. Taylor, for State of Texas.
OPINION
Per Curiam.
This case arises from a prosecution in which Appellee was arrested in Kinney County. He attempted to challenge the prosecution by filing a habeas application in Travis County District Court. The Travis County District Court granted relief, and the Kinney County Attorney filed a notice of appeal. Concluding that the Kinney County Attorney was not authorized to appeal on the State’s behalf, the court of appeals dismissed the appeal. In its reasoning, the court of appeals held that Appellee’s habeas action was properly filed in the Travis County District Court. In In re Smith, we held that, for a case like this originating in Kinney County, proceedings in the Travis County court are unauthorized. We vacate the court of appeals’s decision and remand for reconsideration in light of Smith. Yeary, J., filed a concurring opinion.
State v. Curipoma, 652 S.W.3d 74, 80 (Tex. App.—Austin 2022).
See Party, Black’s Law Dictionary (11th ed. 2019) 1350–51 ("2. One by or against whom a lawsuit is brought; anyone who is both directly interested in a lawsuit and has a right to control the proceedings, make a defense, or appeal from an adverse judgment[.]").
See Tex. Code Crim. Proc. art. 2.02 ("The county attorney shall attend the terms of court in his county below the grade of district court, and shall represent the State in all criminal cases under examination or prosecution in said county; and in the absence of the district attorney he shall represent the State alone and, when requested, shall aid the district attorney in the prosecution of any case in behalf of the State in the district court. He shall represent the State in cases he has prosecuted which are appealed.").
665 S.W.3d 449 (Tex. Crim. App. 2022).
Id. at 77-78.
The application filed in this case appears to be filed pursuant to Article 11.09, which authorizes pre-trial applications for the writ in misdemeanor cases. Tex, Code Crim, Proc art. 11.09.
As an alternative, I note that an appellate court has authority to treat a direct appeal as a request for mandamus relief if a party so requests. See, e.g., Ex parte Garcia, 683 S.W.3d 467, 473 (Tex. App.—San Antonio 2023) (noting that, "[i]n certain circumstances, we may treat an appeal as a petition for a writ of mandamus. However, to do so, the party seeking appellate review must specifically request that its appeal be treated as a mandamus petition.") (citing and quoting Hodge v. Kraft, 490 S.W.3d 510, 516 n.2 (Tex. App.—San Antonio 2015, no pet.); CMH Homes v. Perez, 340 S.W.3d 444, 452-53 (Tex. 2011)); see also In re R.G., 388 S.W.3d 820, 822 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (converting an appeal into a petition for a writ of mandamus upon request of the applicant after the reviewing court determined it lacked appellate jurisdiction to review the appeal). Thus, on remand, the Kinney County Attorney could request that the court of appeals treat his appeal as a request for mandamus relief against the Travis County district court judge.
State v. Curipoma, 652 S.W.3d 74, 77-78 (Tex. App.—Austin 2022).
665 S.W.3d 449 (Tex. Crim. App. 2022).
"The state is entitled to appeal an order granting relief to an applicant for a writ of habeas corpus under Article 11.072." Tex. Code Crim. Proc. art. 44.01(k).
Id. at 78-79.
Slaughter, J., filed a concurring opinion in which Richardson, Newell and Walker, JJ., joined.
Keller, P.J., filed a dissenting opinion in which Hervey and Keel, JJ., joined.
Yeary, J., filed a concurring opinion.
It is always appropriate for courts to ascertain who are the proper parties to litigation. But, in my view, the dissent gets the answer to that question wrong, and it falls apart from there. The dissent says: "The State is a party in this case, so the question becomes who has the authority to represent the State in filing a PDR." Dissenting Opinion at 606. The dissent also says that "the Travis County District Attorney was the ‘prosecuting attorney’ with the sole authority to represent the State on appeal." Id. at 609. These statements suggest an underlying assumption that "the State" is a party in these habeas proceedings, and that, because the Travis County District Attorney is the elected attorney constitutionally authorized to represent "the State" in cases filed in the trial courts of his county, only the Travis County District Attorney was authorized to oppose Appellee in these proceedings and on appeal from them. But that is just wrong.
The applicable statutory law must always be examined. And after examining our controlling statutory law, it is evident to me that the dissent improperly excludes the only elected prosecutor—the only "prosecuting attorney"—with an interest in these proceedings from any power to defend his action. I will endeavor to explain.
I . A rticle 11.01, C ode of C riminal P rocedure
Let us begin with the language of Article 11.01 of our Code of Criminal Procedure. Article 11.01 establishes what a writ of habeas corpus is:
It is an order issued by a court or judge of competent jurisdiction, directed to any one having a person in his custody, or under his restraint, commanding him to produce such person, at a time and place named in the writ, and show why he is held in custody or under restraint.
Tex. Code Crim. Proc. art. 11.01 (emphasis added). This statute makes clear that whoever has a person "in his custody or under restraint" is a party to habeas litigation.1a In some cases the person who has another person "in his custody or under restraint" might be the State, but that is not necessarily always the case. Because Appellee in this case was being held by authorities in Kinney County pending trial or resolution of the charges against him, those authorities were the necessary parties to his pretrial application for the writ of habeas corpus. Id.
The dissent disagrees. But its position is belied by the plain and unambiguous language of Article 11.01. Appellee was held in custody or restraint, not by the State of Texas per se, or by authorities from Travis County, but by local authorities in Kinney County. It is they, the Kinney County authorities, who must answer for Appellee’s detention, restraint, and prosecution.
During the entire pendency of Appellee’s pre-trial detention or restraint, including during the proceedings on his pretrial application for the writ of habeas corpus filed in Travis County, it was the Kinney County authorities (who undoubtedly exercise the power of a political subdivision of the state distinct from the Travis County District Attorney) who held or restrained him. The writ issued by the trial court in this case, pursuant to the plain language of Article 11.01, was required to order the authorities from Kinney County to produce Appellee and answer "why he [was] held in custody or under restraint." Tex. Code Crim. Proc. art. 11.01. This was true even if the trial court that issued the writ was located far away from Kinney County. Id. The dissent concludes differently, and so I respectfully offer my own view on the subject.
II. W ho is authorized by A rticle 44.01 to bring a S tate ’ s A ppeal
After failing to acknowledge the plain and unambiguous language in Article 11.01, the dissent then compounds the problem when it concludes that "the Kinney County Attorney had no authority to represent the State in an appeal from Appellee’s habeas action[.]" Dissenting Opinion at 609. Attempting to explain why it draws that conclusion, the dissent focuses on Article 44.01, which makes clear that it is only the "prosecuting attorney" who holds the State’s authority to appeal in Texas criminal cases. Specifically, the Court points to Subsection (d) of Article 44.01, which provides:
The prosecuting attorney may not make an appeal under Subsection (a) or (b) of this article later than the 20th day after the date on which the order, ruling, or sentence to be appealed is entered by the court.
Tex. Code Crim. Proc. art. 44.01(d) (emphasis added); Dissenting Opinion at 8. The dissent then focuses on the definition of "prosecuting attorney" found in Subsection (i) of that article. Dissenting Opinion at 608–09. Subsection (i) provides that, "[i]n this article, ‘prosecuting attorney’ means":
the county attorney, district attorney, or criminal district attorney who has the primary responsibility of prosecuting cases in the court hearing the case and does not include an assistant prosecuting attorney.
Tex. Code Crim. Proc. art. 44.01(i) (emphasis added).
After examining these provisions of Article 44.01, the dissent concludes that, because "[t]he appeal in the present case is from a habeas action in Travis County District Court," the "Travis County District Attorney [is] the ‘prosecuting attorney’ with the sole authority to represent the State on appeal." Dissenting Opinion at 609 (emphasis added). But I am persuaded that the dissent misperceives both the language in Article 44.01(i) and the limited breadth of the State’s Article 44.01-authorized right of appeal.
Article 44.01 provides a limited right of appeal for the State. Tex. Code Crim. Proc. art. 44.01. In Subsection (i) of that article, the Legislature specifically identifies the person who is authorized to take those limited appeals. That person is the "prosecuting attorney." Our law says that he is the person "who has the primary responsibility of prosecuting cases in the court hearing the case." Tex. Code Crim. Proc. art. 44.01(i) (emphasis added). Focusing on that text then, the question which we must answer is what "ease" is "the case" to which Article 44.01(i) refers? Does "the case" include a pre-trial application for a writ of habeas corpus, even when that proceeding is filed by an applicant in a court in a county foreign to the one in which the applicant is charged, in an attempt to defeat his own ongoing prosecution outside the reach of the elected attorney prosecuting him? The dissent concludes that it does. In the dissent’s view, "[t]he case" in Article 44.01(i), refers to the application for writ of habeas corpus case that Appellee filed in Travis County. Dissenting Opinion at 608–10. But Article 44.01 does not speak to a right of appeal in relation to a pre-trial application for the writ of habeas corpus. In fact, it does not mention habeas corpus other than with respect to Article 11.072, which is not applicable here.2a Nor does it grant "the State" a general right to appeal from any conceivable adverse orders that may arise in pretrial habeas corpus proceedings. It only grants "the State" specific authorization to appeal from orders that "meet[ ] specified requisites in [their] effect" or "results[.]" See Alvarez v. Eighth Court of Appeals, 977 S.W.2d 590, 593 (Tex. Crim. App. 1998) ("[I]f the granting of relief by a habeas corpus court results in one of the enumerated situations within Art. 44.01(a), the State may appeal[.]").
Stated another way, it is not the existence of an adverse order in some pre-trial habeas proceeding that Article 44.01(a) gives the State a right to appeal from. It is the "effect" or "results" of an order granting habeas relief that may or may not make such an order appealable. And the "effect" or "result" of the Travis County District Court’s order in this case is to compel the dismissal of a criminal case, but not any criminal case then pending in Travis County. The dismissal is ordered to take place "in Kinney County, Texas"!
That dismissal, whenever it happens or happened, will have its effect on a case then pending in the Kinney County Court, where the constitutionally authorized representative of the State is the Kinney County Attorney, not the Travis County District Attorney. It is the dismissal of that prosecution in Kinney County that Article 44.01(a) permits the State to appeal. Logically, this must mean that the Kinney County Attorney is the proper representative of the State—the "prosecuting attorney"—with the authority to appeal the order. Tex. Const. art. V, § 21 (authorizing a County Attorney to "represent the state" in the trial courts in his county).
Even though this Court already essentially prohibited the kind of out-of-county writ practice at issue here, in In re Smith, 665 S.W.3d 449 (Tex. Crim. App. 2022), it acknowledged that an out-of-county writ application might still be authorized in some circumstances. Specifically, the Court referred to cases in which there is "a truly catastrophic event" or if venue is transferred. Id. at 457. The Court did not exclude the possibility that it also might be appropriate in other cases as well. But in those circumstances, going forward, the dissenting opinion in this case would counsel that the foreign County or District Attorney should "represent the State" in those habeas proceedings, even though the results of those proceedings will ultimately affect only proceedings in the counties where the challenged charges are pending. That is a mistake, and this case proves it.
Cases like this should remind the Court that, in this big state, it is not at all unusual to find elected County and District Attorneys from different counties who are adverse to one another with regard to the desirability of certain kinds of prosecutions. This reality should also illuminate the Court’s understanding of the words "the case" in Article 44.01(i). Let's face it. In the real world, the Travis County District Attorney may be the only attorney constitutionally authorized to represent "the State" in the trial courts of his own county, but he has no vested interest in preserving the Kinney County Attorney’s right to continue prosecuting Appellee and similarly charged individuals. And with regard to those cases pending in Kinney County, there is no way in which the Travis County District Attorney could properly be considered a "prosecuting attorney." The only way in which Article 44.01(i) works to identify a real "prosecuting attorney" with an actual legislatively granted interest in appealing is if its reference to "the case" means the case in which there actually is a "prosecuting attorney." And once we acknowledge that the Kinney County case is "the case" from which Article 44.01 authorizes an appeal, it is clear that only the Kinney County Attorney is a "prosecuting attorney" with a statutory right to appeal the order issued by the District Court in this case.
This interpretation of "the case" is bolstered by the fact that it also synchronizes the meaning of "the case" and "a case" as used elsewhere in the statute. Article 44.01(a)(5) permits the State to appeal an order that "grants a motion to suppress evidence, a confession, or an admission, if jeopardy has not attached" and "if the prosecuting attorney certifies" that "the evidence, confession, or admission is of substantial importance in the case." Tex. Code Crim. Proc. art. 44.01(a)(5) (emphasis added). Article 44.01(b) gives the State the authority to appeal "a sentence in a case on the ground that the sentence is illegal." id. art. 44.01(b) (emphasis added). Article 44.01(c) gives the State the authority "to appeal a ruling on a question of law if the defendant is convicted in the case and appeals the judgment." Id. art. 44.01(c) (emphasis added). Read contextually, all of these uses of the phrase "the case" or "a case" in the statute refer to the criminal prosecution itself, not to an ancillary proceeding like a pre-trial application for a writ of habeas corpus.
No provision in Article 44.01, other than 44.01(k)3a—which, again, is not applicable here—expressly permits the State to "appeal an order granting relief to an applicant for a writ of habeas corpus[.]" Tex. Code Crim. Proc. art. 44.01(k). At the same time, the State only has the limited authority to appeal provided for by Article 44.01. Pfeiffer v. State, 363 S.W.3d 594, 599-600 (2012) ("In 1987, the State obtained a limited right to appeal certain trial-court orders and rulings when the Texas Legislature enacted Article 44.01 of the Texas Code of Criminal Procedure. The State’s right to appeal was limited to the specific circumstances set forth in Article 44.01 and only as provided by the procedure set out in the statute."). And those appeals may only take place to challenge the effect of an order on "the case" that is the underlying prosecution. See Tex. Code Crim. Proc. art. 44.01.
The dissent points out that Article 44.01(a)(6) authorizes an appeal from an order of a court in a criminal case if the order is issued under Chapter 64 of the Code of Criminal Procedure. Dissenting Opinion at 610–11. It is true that such an order does not ordinarily issue in the course of a prosecution, but neither does Article 44.01 directly authorize an appeal generally from any adverse rulings entered in pre-trial habeas corpus proceedings. What it does permit is a State's appeal of an order that produces certain specific effects on a pending prosecution. Tex. Code Crim. Proc. art. 44.01(a).
Id. at 79-80.
Ordinarily, the District Attorney of Travis County would have no interest in an appeal from the dismissal of a prosecution ongoing in another county, unless he had been appointed attorney pro-tem because the local elected prosecutor was recused or disqualified. The prosecution in this case was brought in Kinney County, by Kinney County prosecutors, and if a charging instrument was dismissed, the dismissal was effective only in Kinney County, not in Travis County. The attorney "who has the primary responsibility of prosecuting cases in the court hearing the case" is the Kinney County Attorney, not the Travis County District Attorney. I conclude, therefore, that the Kinney County Attorney is the only attorney authorized by our law to pursue an appeal from the dismissal order in this case, and I would not approve the dismissal of Kinney County’s appeal as the dissent would.
Article 2A.104(b) of the Code of Criminal Procedure provides:
If an attorney representing the state is disqualified to act in any case or proceeding, is absent from the county or district, or is otherwise unable to perform the duties of the attorney’s office, or if there is no attorney representing the state, the judge of the court in which the attorney represents the state may appoint to perform the duties of the attorney’s office during the attorney’s absence or disqualification:
(1) an attorney representing the state from any county or district; or
(2) an assistant attorney general.
Tex. Code Crim. Proc. art. 2A. 104(b).
Id. at 80.
Stated another way, because the dismissal of the prosecution happened or would happen in Kinney County, the Kinney County Attorney must be the representative of the State who is permitted to take any appeal. See Tex. Code Crim. Proc. art. 44.01(a)(1) ("The state is entitled to appeal an order of a court in a criminal case if the order … dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint[.]"). In fact, and I will elaborate on this more in Part III of this opinion, it would be incumbent upon him to do so to continue his constitutionally authorized representation of the State in his own county. Tex. Const. art. V, § 21. The Travis County District Attorney, having seen no appealable effect or result on any prosecutions pending in his own county, would have no right to represent the State on any appeal.
III . T he T exas C onstitution
Finally, but as a matter of ultimate importance, there is the guidance provided by our own Texas Constitution. Our state constitution places the primary responsibility to "represent the state" in our local trial courts upon locally elected attorneys. Tex. Const. art. V, § 21. But this constitutionally established and electorally delegated responsibility of locally elected prosecutors is meaningless if it does not also entail the co-extensive authority to appear in proceedings—even those initiated and occurring in courts outside of their own home counties—to preserve their authority to represent the State according to their own lights in cases pending in the courts of their home county. Having been delegated the responsibility to represent the State in the trial courts of their own counties, these locally elected prosecutors cannot, at the same time, be expected or required to sit idly by while defendants, whom they have otherwise lawfully accused of a crime, attack their ability to prosecute, in foreign forums, where the locally elected prosecutors are not permitted to appear. Of what use then would be the constitutional authority to represent the State in their own county if the defendant in a prosecution can simply find a friendly county, with friendly courts and friendly prosecutors, to thwart that power from a place where the locally elected prosecuting attorney cannot go? If for no other reason, our constitution’s requirement that a locally elected prosecutor represent the State in the trial courts of his or her own county must also at least afford a concomitant authority for that same prosecutor to appear in a court in another county, when necessary, to defend his or her own constitutional representation mandate.
Unquestionably, Appellee attempted to invoke the jurisdiction of a Travis County district court over his habeas application to thwart his prosecution in Kinney County. While the Travis County District Attorney has his own constitutional responsibility to "represent the State" in the trial courts of Travis County, the Kinney County Attorney must also not be denied the authority to appear and represent his own county and county officials, as well as the State, even in a foreign county, when the proceedings there directly threaten his own authority to prosecute a defendant in proceedings initiated in his home county. The dissent is wrong to conclude otherwise.
IV. C onclusion
The whole pursuit of this out-of-county application for habeas corpus relief was both an ill-conceived and an ill-fated adventure that should never have been attempted. Perhaps that is one of the reasons why, in a different case, on mandamus, this Court recently decided that such an enterprise could not be tolerated. In re Smith, 665 S.W.3d at 461. But I would not allow the unique and disturbing arrangement of facts present here to distort the answers to (1) who is the proper elected attorney responsible for all aspects of the prosecution of a criminal case, (2) who may enter a proper appearance in court to put an errant foreign trial court on notice that it should not erroneously attempt to exercise authority to interfere with a prosecution in a different county, and (3) who may undertake any appeal that might be needed in order to rescue such a case from an arguably unauthorized or illegal dismissal order. The correct answer to each of these questions is the elected attorney who initiated, and is attempting to pursue, the prosecution of the defendant/habeas-applicant and not the prosecutor in a foreign jurisdiction where the defendant chose to file an application for habeas relief.
CONCURRING OPINION
Slaughter, J., filed a concurring opinion in which Richardson, Newell, and Walker, JJ., joined.
This case arises from a pretrial grant of habeas corpus relief to an individual arrested and charged with criminal trespass as part of the "Operation Lone Star" task force. After Appellee was arrested and charged in Kinney County, he filed an application for pretrial habeas relief in a Travis County district court. Both the Kinney County Attorney and the Travis County District Attorney sought to appear on behalf of the State in the Travis County habeas proceedings, but the trial judge ruled that the Kinney County Attorney had no authority to appear. The Travis County judge then granted Appellee pretrial habeas relief and dismissed the criminal trespass charge. After the Kinney County Attorney attempted to file a direct appeal of that ruling, the Third Court of Appeals dismissed the appeal for want of jurisdiction, based on its conclusion that the Kinney County Attorney lacked authority to represent the State on appeal.
Having granted discretionary review of this case, this Court today vacates the decision of the court of appeals and remands for reconsideration in light of our intervening decision in In re Smith, 665 S.W.3d 449 (Tex. Crim. App. 2022). I agree with that decision because, as Smith now makes clear, a fundamental premise underlying the court of appeals’ analysis was flawed. The court of appeals had deter mined, as an initial matter, that Appellee’s habeas application was properly filed in Travis County. Smith unequivocally rejected that position and instead held that the only proper place for filing the instant habeas application was in the county where the underlying criminal charges were pending, Kinney County. Because the remainder of the court of appeals’ analysis flowed from this erroneous conclusion, this Court properly sends the case back for full reconsideration of the issues in light of Smith. Further, applying Smith here, the correct outcome becomes obvious: The direct appeal here was subject to dismissal because the entire case was void from its inception as a result of the Travis County district court’s lack of any authority to rule on the merits of Appellee’s pretrial habeas application where the underlying misdemeanor charges were pending in another county. Thus, because the habeas proceedings in Travis County were wholly invalid, unauthorized, and void from their inception, the appeal should be dismissed for want of jurisdiction, and the trial court’s invalid order purporting to grant Appellee pretrial habeas relief should be set aside.
I. Background
In 2021, Appellee, a non-U.S. citizen with no lawful immigration status, was arrested in Kinney County for misdemeanor criminal trespass. He was released on bond pending a trial. He subsequently filed an application for pretrial habeas corpus relief in the 126th District Court of Travis County challenging his constructive confinement in Kinney County resulting from the pending charges. The Travis County District Attorney’s Office filed a response to the application in which it recommended that the trial court grant relief.
The trial court held a Zoom hearing at which counsel for Appellee and the Travis County District Attorney’s Office appeared. An attorney representing the Kinney County Attorney’s Office also attempted to appear and argued that that office was the "proper representative" of the State and should "proceed as counsel for the State" in the habeas proceeding, given that the underlying criminal charge was pending in Kinney County. The district court, however, disagreed and instead determined that the Travis County District Attorney was the proper representative of the State in the habeas proceeding. The court sustained objections to Kinney County’s counsel participating in the hearing but allowed counsel to make a bill of exception. After the hearing, the trial court granted Appellee pretrial habeas relief and dismissed the trespass case.
Direct Appeal to the Third Court of Appeals
The Kinney County Attorney filed a notice of appeal to the Third Court of Appeals. The following day, the Travis County District Attorney filed a "Motion to Dismiss Unauthorized Appeal," arguing that the Kinney County Attorney’s Office had no "jurisdiction, authority, or standing" to bring an appeal on behalf of the State in this habeas matter. The Kinney County Attorney filed a response urging that, as the representative for the State in the underlying criminal charges, his office must be permitted to participate in the habeas proceedings. To hold otherwise, he argued, would allow "applicants to raise pre-trial habeas challenges to the constitutionality of criminal charges in any Texas district court and to have those criminal proceedings dismissed without response—or appeal—from the party prosecuting them[.]" This, he contended, would improperly leave the prosecuting entity without any avenue "to defend its underlying criminal proceedings against dismissal by district court judges statewide[.]" In its opinion resolving this issue, the court of appeals ultimately agreed with the Travis County District Attorney’s position that his office was the proper representative of the State and that the Kinney County Attorney was not authorized to pursue an appeal from the trial court’s ruling granting Appellee pretrial habeas relief, such that dismissal of the unauthorized appeal was warranted. State v. Guzman -Curipoma, 652 S.W.3d 74, 76, 80 (Tex. App—Austin 2022, pet. granted). To reach this conclusion, the court of appeals addressed two issues: "[1] the propriety of the habeas application filing in a Travis County district court[,] and [2] the statutory duties of district and county attorneys." Id. at 77.
With respect to the first issue, the court determined that Appellee’s habeas application "was properly filed in a Travis County district court"—in essence because district courts have "plenary power over issuance of writs of habeas corpus in misdemeanor actions." Id. at 77-78 (citation and quotation omitted). The court concluded, "[W]hen, as here, an indictment has not issued, the writ of habeas corpus can be made returnable to any Texas county…. Thus, the Travis County District Court had jurisdiction of Guzman Curipoma’s habeas application as to the misdemeanor criminal-trespass charge pending against him in Kinney County." Id. at 78 (emphasis added).
Having concluded that the trial court had jurisdiction to consider the habeas application, the court of appeals then went on to reach the second issue—the statutory duties of district and county attorneys—for the purpose of deciding which entity was authorized to represent the State in this matter. As to this issue, the court ultimately determined that the "[Travis County] District Attorney was the proper representative of the State in the Travis County habeas proceedings[.]" Id. at. 78; see also id. at 79 (comparing the statutory duties of district and county attorneys and observing that the county attorney "aids the district attorney when requested," or, represents the State "in the absence of the district attorney"; because neither circumstance was present here, the district attorney was the proper representative of the State). Moreover, the court concluded that the County Attorney "may not take a different position on appeal than the State did below as to this same habeas petition." Id. at 79 (construing the applicable law "to prohibit prosecutors from taking conflicting positions as ‘the State’ on the same habeas application"). Thus, because the Kinney County Attorney’s Office was not authorized to bring an appeal on behalf of the State under these circumstances, the court of appeals granted the Travis County District Attorney’s motion and dismissed the appeal. Id. at 80.
On Discretionary Review
The Kinney County Attorney filed a petition for discretionary review in this Court, which this Court granted. On discretionary review, he argued, among other things, that "[o]nce a formal charging instrument is on file, the return of a properly issued pre-trial writ of habeas corpus must be made to the county in which the underlying charges are pending, and the responsibility for defending the legality of the confinement and representation of the official who is alleged to be illegally confining the applicant lies with the prosecutor’s office charged with prosecuting the underlying criminal case." Accordingly, the Kinney County Attorney disputed the Travis County district judge’s authority to rule on the merits of Appellee’s habeas application. See PDR of Kinney County Attorney, at 9 ("Because Appellee is confined pursuant to a misdemeanor pending in Kinney County, the writ in this case was properly returnable to Kinney County, not Travis County. Consequently, Judge Soifer lacked authority to act on and determine the merits of the habeas corpus applications.").
In addition to granting the Kinney County Attorney’s PDR, we also granted review on our own motion to address: (1) whether the Kinney County Attorney was authorized to file a State’s appeal from the habeas proceedings in Travis County, and (2) whether the Kinney County Attorney was authorized to file a petition for discretionary review. Given the nature of the issues before us, we ordered the Travis County District Attorney’s Office to file a brief. Counsel for Appellee also filed a brief.
The State Prosecuting Attorney filed an amicus brief. The SPA took the position that this case should be considered in tandem with In re Smith, No. WR-93,354-02, which had not yet been decided at the time that we granted review, because the issues in the cases were "intertwined." As I discuss further below, in Smith, this Court was set to consider whether the Travis County district court had jurisdiction or authority to grant pretrial habeas relief to a group of individuals similarly situated to Appellee—that is, undocumented immigrants charged with misdemeanor offenses in Kinney County who had sought pretrial habeas relief in Travis County. The only real difference in those cases was that the Travis County district court had not yet granted habeas relief to those applicants. The SPA’s position in its amicus brief in this case is that the Travis County court lacked jurisdiction over the habeas proceedings where the underlying criminal charges were pending in Kinney County. Therefore, the SPA contends, because the habeas court’s judgment granting relief was void, there was "no proper State representative." The SPA urges that this case "hinges on" the Travis County district court’s lack of jurisdiction to rule on the habeas matter, not the "dueling State positions [that] the court of appeals opined are impermissible." Amicus Brief of SPA, at 3.
II. Analysis
As noted above, at the time that this case was submitted for an opinion in November 2022, this Court had not yet reached a decision in In re Smith, 665 S.W.3d 449 (decided Dec. 7, 2022). But I agree with the position taken by the SPA in this case that the issue here is "intertwined" with the issue in Smith, such that Smith controls the outcome here. Based on Smith, the Travis County district court clearly lacked authority and/or jurisdiction to make any ruling (let alone grant relief) on Appellee’s pretrial habeas application challenging the charges arising out of Kinney County. Therefore, the trial court’s resulting order purporting to grant Appellee relief was invalid and void on its face. Given that the court of appeals did not have the benefit of our Smith decision when it analyzed these issues, I agree with the Court that the proper course is to remand for reconsideration in light of Smith. Applying Smith on remand, the court of appeals should hold that the trial court lacked jurisdiction, and that the resulting order purporting to grant Appellee relief was invalid and must be set aside.
A. In re Smith
In In re Smith, this Court considered a request for prohibition relief from the Kinney County Attorney, with the underlying issue being identical to the one in this case, but it was presented in a distinguishable procedural posture. 665 S.W.3d at 452. Thousands of defendants similarly situated to Appellee had been arrested for misdemeanor trespass in Kinney County, pursuant to the "Operation Lone Star" task force. Hundreds of those defendants then filed applications for pretrial habeas relief in the distinct courts of Travis County. We observed that one of those arrestees—Appellee—had already obtained relief from the district court. Id. The remaining arrestees' applications were left in a pending state while the resulting litigation ensued.
In arguing that he was entitled to prohibition relief to prevent the Travis County district courts from ruling on the merits of the pending applications, the Kinney County Attorney reiterated his position that the courts of Kinney County have sole authority to consider the merits of any habeas applications stemming from charges arising in Kinney County. As in this case, the SPA filed an amicus brief asserting that the Travis County courts lacked jurisdiction over the habeas cases for which the underlying criminal charges were pending in Kinney County.
In resolving this issue, we first determined that the Kinney County Attorney lacked any adequate remedy at law through the avenue of direct appeal. Id. at 454. We observed that the "later remedy of appeal is generally inadequate when the issue before us implicates the ability of a trial court to consider the case at all." Id. We also observed that, given the number of cases implicated, it would be excessively burdensome for Kinney County to have to litigate each case separately in the court of appeals. Id. Thus, we proceeded to consider whether Relator had a clear right to relief.
In concluding that the clear-right-to-relief requirement had been met, we discussed the various relevant provisions in Code of Criminal Procedure Chapter 11, as well as applicable caselaw addressing abstention and local authority over pending criminal matters. Id. at 455-61. We concluded that the sole available vehicle for the arrestees to challenge their constructive confinement was an original writ, found in Article 11.05. Id. at 455. We stated, "Assuming, without deciding, that a trial court would even have jurisdiction to resolve the merits of an Article 11.05 action for an offense arising outside the court’s geographic borders, the circumstances permitting that jurisdiction to be exercised would be rare." Id. at 456. We cited, as possible examples of such circumstances, a serious backlog of cases or a natural disaster, which would pennit the action to be brought in an "adjacent county." Id. at 456-57. "[A]bsent these kinds of unusual circumstances or specific statutory authority, a trial court should never consider the merits of a habeas application for an offense arising outside its geographic boundaries, even assuming it had jurisdiction to do so." Id. at 457 (emphasis added). We therefore held that the district court in Travis County was "required to refrain from resolving the merits of habeas applications for misdemeanor cases arising in Kinney County." Id. at 461.
B. Because the Travis County district court clearly lacked authority and/or jurisdiction to grant Appellee pretrial habeas relief, the direct appeal was subject to dismissal, and the invalid order should be set aside.
At the outset, it is clear that our analysis in Smith undermines a significant portion of the court of appeals’ analysis in this case. Before considering the question of which entity could properly represent the State in this matter, the court of appeals first found it necessary to address whether the Travis County district court had jurisdiction or authority to consider the application at all. See Curipoma, 652 S.W.3d at 77-78. It is now obvious, in light of Smith, that the court of appeals’ answer to that question was incorrect. It also appears highly likely that the court of appeals would not have reached, or at the very least might have resolved differently, the secondary question of which entity had authority to represent the State in this matter, had it had the benefit of our Smith decision at that time. On this basis alone, I agree with the Court’s decision today to vacate the court of appeals’ decision and remand for reconsideration in light of Smith.
Further, applying Smith to these circumstances, the correct ultimate outcome on remand is clear. Smith held that the Travis County district court clearly and indisputably lacked any authority (and possibly jurisdiction) to rule on the merits of the pretrial habeas applications arising from misdemeanor charges pending in Kinney County. Smith, 665 S.W.3d at 456-57. Applying that same rule to Appellee’s case here, the entire habeas proceeding in the Travis County district court was invalid and unauthorized. The district court’s order purporting to grant Appellee pretrial habeas relief was similarly invalid. Given this, on remand, the court of appeals should dismiss the appeal for want of jurisdiction and set aside the invalid order—not because the Kinney County Attorney lacked authority to pursue such an appeal, but because the underlying proceedings in the trial court were plainly invalid and unauthorized. See id.; see also State v. Rodriguez-Gomez, No. 04-23-00157-CR, — S.W.3d —, —, 2024 WL 590425, at *9 (Tex. App—San Antonio Feb. 14, 2024) ("When a party appeals a void order, [the appellate court] should declare the order void and dismiss the appeal for want of jurisdiction") (citation and quotation omitted); Freedom Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012) ("[A]ppellate courts do not have jurisdiction to address the merits of appeals from void orders or judgments; rather, they have jurisdiction only to determine that the order or judgment underlying the appeal is void and make appropriate orders based on that determination."); DeShazo v. Hall, 963 S.W.2d 958, 960 (Tex. App.—Houston [14th Dist.] 1998) (stating that the proper course when appellate court receives appeal of void judgment is to set aside trial court’s invalid judgment and dismiss the appeal).
C. The Authority Question—Did the court of appeals lack jurisdiction because no valid notice of appeal was ever filed?
In addition to its erroneous holding that the Travis County district court had jurisdiction over this habeas matter, the court of appeals further held that the Kinney County Attorney lacked any authority to file a notice of appeal from the Travis County district court’s order granting habeas relief, such that no valid notice of appeal was ever filed. Curipoma, 652 S.W.3d at 78-80. As I have already suggested, it is unclear to me whether, or to what extent, the court of appeals should even consider this issue now that Smith has clarified that the entire habeas proceeding in Travis County was unauthorized and invalid. But, to the extent that the court of appeals would find it necessary to address this secondary issue in spite of Smith, I note that none of the statutes the court of appeals cited previously in its analysis of this issue directly applies to the situation before us here—that is, a situation in which criminal charges have been properly filed in one county, the defendant seeks to collaterally attack those charges in another county without any legal basis for doing so, and the State’s representative in the second county has no interest in defending or prosecuting the criminal charges that are pending in the first county. For example, the court of appeals cited Code of Criminal Procedure Article 2.01 for the proposition that "[e]ach district attorney shall represent the State in all criminal cases in the district courts of his district and in appeals therefrom, except in cases where he has been, before his elec tion, employed adversely." Id. at 78 (citing Tex. Code Crim. Proc. art. 2.01). The court of appeals interpreted this provision as giving the Travis County District Attorney superior authority to represent the State in this matter, given that the related provisions in Article 2.02 indicate that a county attorney may represent the State in the district courts only when there is no district attorney, or when the district attorney requests his assistance.1b But, when the Legislature drafted these provisions detailing the respective duties of the district and county attorneys, it understandably assumed that the criminal cases at issue would be valid, properly pending cases, not void proceedings that should have instead been initiated in another district. Thus, even though the statutes authorize a district attorney to represent the State in the cases pending in the courts of his district, it is not entirely clear to me that these statutes apply to a situation involving wholly invalid or void proceedings that were filed in the wrong district. In any event, courts should not reflexively apply statutory requirements if doing so would thwart the Legislature’s purpose of allowing the interested State entity—here, the representative of Kinney County—to defend the State’s interests through exercising the right of appeal.
Given the foregoing, to the extent it is necessary to resolving this case, the court of appeals should simply hold on remand that the timely notice of appeal filed by the Kinney County Attorney validly invoked the appellate court’s jurisdiction, even if it was only for the limited purpose of allowing the appellate court to determine that the underlying habeas proceeding was unauthorized and that the court of appeals had no jurisdiction to proceed beyond dismissing the appeal and setting aside the unauthorized order. See, e.g., Skinner v. State, 484 S.W.3d 434, 437 (Tex. Crim. App. 2016) ("A court always has jurisdiction to determine whether it has jurisdiction over a matter, and jurisdiction is a systemic requirement that appellate courts must review regardless of whether the issue is raised by the parties."). The Kinney County Attorney was, for all practical purposes, the only real representative of the "State" that had any vested interest in defending the criminal charges against Appellee’s collateral attack. The applicable law should be interpreted to allow a limited invocation of the appellate court’s jurisdiction under these narrow circumstances.2b III. Conclusion
In light of our decision in In re Smith, it is readily apparent that the pretrial habeas proceeding in Travis County district court, and the resulting ruling purporting to grant Appellee relief as to the pending criminal charges in Kinney County, were plainly unauthorized and invalid. Because the habeas proceedings were invalid, on remand, the court of appeals should order the appeal dismissed and set aside the trial court’s unauthorized order. For the foregoing reasons, I respectfully concur in the Court’s judgment.
DISSENTING OPINION
Keller, P.J., filed a dissenting opinion in which Hervey and Keel, JJ., joined.
The Court remands this case for reconsideration in light of our decision in In re Smith. 1c I would instead affirm the judgment of the court of appeals dismissing this appeal for lack of jurisdiction. I respectfully dissent.
I. BACKGROUND
A. Trial
Appellee was arrested in Kinney County for misdemeanor trespass, and he was released on bond pending a trial. He filed a habeas application in a district court in Travis County challenging his restraint arising from the trespass charge. The Travis County District Attorney filed a response that recommended granting relief. The Kinney County Attorney appeared through counsel and argued that the Kinney County Attorney’s Office is the proper representative of the State in the habeas action. The trial court disagreed but allowed the Kinney County Attorney to make a bill of exception. Ultimately, the trial court granted Appellee relief and dismissed the trespass case. The Kinney County Attorney filed a notice of appeal, and the Travis County District Attorney then filed a motion to dismiss the appeal.
B. Appeal
The court of appeals first held that Appellee’s habeas action was properly filed in the Travis County District Court.2c The court of appeals further held that the Travis County District Attorney was "the proper representative of the State in the Travis County habeas proceedings."3c The court of appeals then held that the Kinney County Attorney could not take a different position on appeal than the State did in the habeas proceedings before the trial court.4c Granting the Travis County District Attorney’s motion, the court of appeals dismissed the appeal.5c
C. Discretionary Review
The Kinney County Attorney filed a petition for discretionary review in this Court. We granted that petition, and we also granted two grounds on our own motion. The Kinney County Attorney, the Travis County District Attorney, and Appellee have filed briefs, and the State Prosecuting Attorney has submitted an amicus brief. The Kinney County Attorney argues that the court of appeals erred in holding that the Travis County District Court had the authority to decide the merits of the habeas action. And in essence, the Kinney County Attorney argues that, because the case should not even have been in Travis County, the Travis County District Attorney lacks the authority to represent the State. The Travis County District Attorney argues the opposite on both points, contending that the court of appeals was correct both in saying that the Travis County District Court had authority to resolve the case and that the Travis County District Attorney was the proper representative. The State Prosecuting Attorney (SPA) contends that there is no proper representative of the State in this case. The SPA agrees with the Kinney County Attorney that the case is not properly in Travis County but also argues that the Kinney County Attorney has no authority to file an appeal from a Travis County judgment. Appellee contends that the Kinney County Attorney waived his claims but otherwise takes no position on the issues before us.
The ground in its petition states: "The Court of Appeals Erred by Basing its Opinion on the Holdings of the Habeas Court Without Determining Whether Such Holdings Were correct."
II. ANALYSIS
A. Standards of Construction
This opinion construes court rules as well as statutes. In construing statutes, we are constrained by the standard articulated in Boykin v. State: we give effect to the plain meaning of the statutory text unless the text is ambiguous or the plain meaning leads to absurd results that the legislature could not have possibly intended. The Boykin textual standard does not apply to the interpretation of court rules, where factors beyond the text may be considered, but the text is a good place to begin.
Delarosa v. State. 677 S.W.3d 668, 674 (Tex. Crim. App. 2023); Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
Smith v. State, 559 S.W.3d 527, 531 (Tex. Crim. App. 2018).
B. Discretionary Review Jurisdiction
One of the issues we granted on our own motion was "whether the Kinney County Attorney was authorized to file a petition for discretionary review." Under Rule 68.1, we may grant review on a petition by any "party" from a court of appeals’s decision. The State is a party in this case, so the question becomes who has the authority to represent the State in filing a PDR.
The State Prosecuting Attorney shall "represent the state in all proceedings before" the Court of Criminal Appeals. The SPA "has primary authority to represent the State in this Court," which includes filing a PDR. The SPA could have filed a PDR in this case, but it did not.
Tex. Gov’t Code §42.001.
Saldano v. State, 70 S.W.3d 873, 877 (Tex. Crim. App. 2002) (emphasis added).
Ex parte Taylor, 36 S.W.3d 883, 887 (Tex. Crim. App. 2001).
Government Code § 42.005(b) provides that a "district or county attorney may assist the state prosecuting attorney in representing the state before the court of criminal appeals." Subsection (a) of § 42.005 also allows the state prosecuting attorney to "assist a district or a county attorney in representing the state before a court of appeals if requested to do so by the district or county attorney." Read together, both subsections of § 42.005 seem to be referring to the same "district or county attorney"—the one who had authority to represent the State in the court of appeals. This conclusion is reinforced by the fact that the local prosecuting attorney can participate in–"assist" in-a case before this Court without the SPA first asking him to. One would expect unrequited assistance to come from the prosecutorial office involved in the appeal. Rule 68.1’s reference to a "party" filing a PDR supports this expectation because one would naturally look to the proceedings below for the appropriate entity representing the State on appeal. We have tacitly recognized that a local district or county attorney can assist the SPA by filing a PDR on its own, as long as the SPA does not also file a PDR. So, the SPA has primary authority to file a PDR, but if it does not exercise that authority, the prosecuting entity that had authority to file the appeal in the court of appeals may file a PDR. Here, the SPA did not file a PDR, so whether the Kinney County Attorney had authority to file a PDR depends on whether he had the authority to file a notice of appeal in the court of appeals. Because I ultimately conclude that the Kinney County Attorney was not authorized to file a notice of appeal, I necessarily conclude that he was not authorized to file a PDR.
Tex. Gov’t Code § 42.005(b) (emphasis added).
Id. § 42.005(a). Although this subsection seems to require a request for the SPA to get involved, § 42.001 also confers upon the SPA the right to intervene in a court of appeals on its own. Id. § 42.001(a) ("The state prosecuting attorney may also represent the state in any stage of a criminal case before a state court of appeals if he considers it necessary for the interest of the state.").
See id. § 42.005(b).
Taylor, 36 S.W.3d at 887 ("The District Attorney does not, and cannot, point to any considered decision by this Court since 1981 allowing both the state prosecuting attorney and the local prosecutor to seek review in this Court.... The state prosecuting attorney has a statewide view that a local prosecutor may not have, and this doubtless explains the legislature's choice to give the state prosecuting attorney the primary authority in this court ... In this case the State Prosecuting Attorney has exercised his authority to represent the State in this proceeding by filing a petition for discretionary review, and it is the State's petition in this case.").
But that conclusion would not defeat our discretionary review jurisdiction. This Court has the power to grant review without a petition. And we can do so "at any time before the mandate of the court of appeals issues." The mandate has not issued, so our grant of review was timely.
Tex. R. App. P. 66.1.
Id. 67.1.
The duty of the court of appeals to issue mandate is suspended when a "timely ... petition for discretionary review has been filed." The Kinney County Attorney timely filed a PDR. It makes no difference whether he was authorized to do so. This Court can dismiss a PDR if it determines that it was filed by someone unauthorized to do so. Until or unless that happens, the pendency of a PDR prevents the court of appeals clerk from issuing mandate. And granting review of issues on our own also suspends the mandate requirement.
Id. 18.1(a)(1)(A).
In at least one context, we allow a party to suggest that we act on our own motion—to reconsider a denial of relief in a habeas action. Ex parte Robertson, 603 S.W.3d 427, 428 (Tex. Crim. App. 2020). A PDR filed by someone who does not in fact have the authority to file one could be construed as a suggestion that we grant review on our own motion. In fact, the Kinney County Attorney filed an explicit suggestion that we grant review on our own motion before it filed a PDR.
We have already granted review of two issues on our own. And though I conclude that the Kinney County Attorney did not have the authority to file a PDR, we can accept an unauthorized PDR as an amicus brief.
Taylor, 36 S.W.3d at 887.
C. Appellate Jurisdiction
Unlike this Court, a court of appeals cannot grant review of a case on its own motion. To invoke a court of appeals’s jurisdiction, a party must file a timely notice of appeal. And when the notice of appeal is filed by the State, the person purporting to represent the State must be authorized to file it. In State v. Muller, we held that an assistant district attorney could not file a notice of appeal on behalf of the State without express authorization from the elected district attorney to file the specific notice of appeal. We further held that a defect in a notice of appeal caused by a failure to obtain express authorization could not be cured after the time for filing the notice of appeal had elapsed. The failure of the proper representative of the State to timely file the notice of appeal deprived the court of appeals of jurisdiction to hear the merits of the appeal.
Smith v. State, 559 S.W.3d 527, 531 (Tex. Crim. App. 2018); Guthrie-Nail v. State, 543 S.W.3d 225, 226 (Tex. Crim. App. 2018). See also State v. Hanson, 555 S.W.3d 578, 581 (Tex. Crim. App. 2018) ("because the State filed a timely notice of appeal regarding that order, the court of appeals has jurisdiction to hear the appeal").
State v. Muller, 829 S.W.2d 805, 810-13 (Tex. Crim. App. 1992).
Id. at 812.
Id.
Id. at 812-13.
Muller construed language in the statute that generally authorizes State appeals, more specifically Article 44.01(d) and (i). Muller’s construction of Article 44.01 controls in the present case because the State’s ability to appeal in a habeas case is entirely dependent on the right to appeal conferred by Article 44.01.
Id. at 810, 811 n.7 (discussing Tex. Code Crim. Proc. 44.01(d) and (i)).
State v. Garcia, 638 S.W.3d 679 (Tex. Crim. App. 2022) (State can appeal habeas relief when the relief literally satisfies the conditions for appeal authorized by Art. 44.01).
Article 44.01(d) provides:
The prosecuting attorney may not make an appeal under Subsection (a) or (b) of this article later than the 20th day after the date on which the order, ruling, or sentence to be appealed is entered by the court.
The Court construed the language in (d) to limit not only the time in which an appeal can be taken, but who may take a State’s appeal: the "prosecuting attorney." Article 44.01(i) defines "prosecuting attorney" as follows:
Muller, 829 S.W.2d at 810.
the county attorney, district attorney, or criminal district attorney who has the primary responsibility of prosecuting cases in the court hearing the case and does not include an assistant prosecuting attorney.
Tex. Code Crim. Proc. art. 44.01 (i) (emphasis added).
Muller addressed the part of the definition that makes only the elected prosecutor, not any assistants, the "prosecuting attorney" for the purpose of filing a notice of appeal. The present case involves another part of the definition in subsection (i)—the part that defines the "prosecuting attorney" as the one "who has the primary responsibility of prosecuting cases in the court hearing the case."
See Muller, 829 S.W.2d at 810.
Under Article 2.01, "Each district attorney shall represent the State in all criminal cases in the district courts of his district and in appeals therefrom." Not only does this statute explicitly confer the right to appeal on the district attorney for criminal cases in the district court of his district, but it also makes the district attorney the "prosecuting attorney" for those cases under the definition found in Article 44.01. The appeal in the present case is from a habeas action in Travis County District Court, so the Travis County District Attorney was the "prosecuting attorney" with the sole authority to represent the State on appeal. County Attorneys have some appellate authority under Article 2.02, but that provision does not help the Kinney County Attorney here. Under Article 2.02, the County Attorney "shall represent the State in cases he has prosecuted which are appealed." But while the County Attorney may properly be said to be prosecuting the underlying trespass case, this habeas action, though related to the trespass case, is a separate action from that case. I conclude that the Kinney County Attorney had no authority to represent the State in an appeal from Appellee’s habeas action, and so the Kinney County Attorney’s notice of appeal was ineffective.
Tex. Code Crim. Proc. art. 2.01. The Travis County District Attorney also cites a portion of Art. 2.01 that confers broader authority on the district attorney to represent the State in habeas proceedings arising in the district regardless of whether those proceedings are in district court: ‘‘When any criminal proceeding is had … before a judge upon habeas corpus, and he is notified of the same, and is at the time within his district, he shall represent the State therein." Id. See Alvarez v. Eighth Court of Appeals, 977 S.W.2d 590, 593 (Tex. Crim. App. 1998) (habeas action that invalidated a municipal prosecution of a municipal ordinance). Because the current habeas action was in district court, reliance on the habeas part of Art. 2.01 is unnecessary.
Tex. Code Crim. Proc. art. 2.02.
Id.
See Cont’l Heritage Ins. Co. v. State, 683 S.W.3d 407, 416 (Tex. Crim. App. 2024) (‘‘A habeas corpus action is related to a criminal proceeding being attacked but is nevertheless considered to be a separate action.").
Before an appellate court can exert any power at all over the trial court, its appellate jurisdiction has to have been properly invoked by a valid and timely notice of appeal. Because the court of appeals’s jurisdiction was not properly invoked, that court was correct to dismiss the appeal. And because jurisdiction is a threshold issue, I would affirm the court of appeals’s ultimately correct resolution of the matter rather than remand for it to correct a mistake in legal reasoning that does not affect whether its jurisdiction was properly invoked.
Woods v. State, 68 S.W.3d 667, 669 (Tex. Crim. App. 2002).
D. Response to the Concurrences
In a concurring opinion, Judge Yeary focuses on the meaning of the words "the case" in the definition of "prosecuting attorney." The concurrence contends that the words "the case," in Article 44.01(i), must mean the criminal prosecution because Article 11.01 talks about the entity holding the habeas applicant under custody or restraint and because the Kinney County Attorney is the entity that is charged with prosecuting the habeas applicant. The concurrence suggests that local authorities in Kinney County, not "the State of Texas per se," are the proper parties. The concurrence also contends that its view is consistent with a few of the subsections in Article 44.01(a) that address situations that can occur only in criminal prosecutions, such as a ruling on a motion to suppress.
See Tex, Code Crim Proc, art. 44.01(a)(5), (b), (c).
But Article 11.02, titled "To Whom Directed," says, "The writ runs in the name of ‘The State of Texas.’ " Although Articles 11.01 and 11.02 require that the writ be directed and addressed to the entity holding the habeas applicant in custody to enable that entity to produce the applicant, that entity is never the prosecuting attorney, and under the plain language of Article 44.01, such an entity, (e.g., a local sheriff) has not been given authority to file a notice of appeal. Because the writ runs in the name of the "State of Texas," it is the State that is charged with litigating the writ and pursuing any appeal. And under Article 44.01, only the "prosecuting attorney," as defined by Article 44.01, can file a notice of appeal as the State’s representative. Under the plain language of Article 44.01(i), that is the district attorney, county attorney, or criminal district attorney with the primary responsibility of prosecuting cases in the court hearing the case being appealed—here, the Travis County District Attorney.
Tex. Code Crim, Proc, art. 11.02.
Id. arts. 11.01, 11.02.
The concurrence’s proposed construction varies from a plain reading of Article 44.01(i) and creates an inconsistency in how the word "court" is used in Article 44.01. Under Subsection (i), the "prosecuting attorney" is defined as having the primary responsibility of prosecuting cases "in the court hearing the case." The plain import of the "hearing" language is to refer to the court hearing and deciding the case being appealed—which in this case is the Travis County District Court, in which the Travis County District attorney has the primary responsibility of prosecuting cases. Moreover, Subsection (a), which is also at issue here, provides for an appeal, under certain enumerated circumstances, of "an order of a court in a criminal case." It is evident from reading these provisions of Article 44.01, that the "court" in both of these subsections is the same court. That is, the "court" that issues the order that is being appealed is also the "court" hearing the case. But the concurrence’s construction would require that we read the word "court" in these two subsections to refer to different courts (in this case, the Travis County district court and the Kinney County court) in the same appeal. The concurrence would hold that the court that issues the order is not the court that hears the case—a construction at odds with the plain reading of the statute.
Tex. Code Crim. Proc art. 44.01 (i) (emphasis added).
Id. art. 44.01(a) (emphasis added).
Further, one subsection of Article 44.01(a) addresses a situation that does not occur in a criminal prosecution (Chapter 64 motions), and other subsections address situations that do not have to occur in criminal prosecutions. A construction of the words "the case" to refer broadly to any type of criminal case—including criminal prosecutions, habeas proceedings, and Chapter 64 proceedings—is entirely consistent.
See id. art. 44.01(a)(6); Skinner v. State, 305 S.W.3d 593, 594 (Tex. Crim. App, 2010) (Because a Chapter 64 proceeding is filed after a conviction becomes final, a "criminal action" arising from the criminal prosecution "no longer exists.").
See id. art. 44.01 (a)(1)-(4); Alvarez, 977 S.W.2d at 593 ("[T]he types of orders described in Art. 44.01(a) do not limit the State's appeal to orders entered by a court exercising original jurisdiction," even though those types of orders are "typically" entered by such courts.).
It also matches the language "criminal case" found in Art. 44.01(a).
Judge Yeary’s concurrence also says that we should not allow the disturbing arrangement of the facts in this case to distort our answers to the issues before us. I agree with that sentiment, which is why I think we must give effect to the language of Article 44.01. The concurrence complains that prosecutors should not be hamstrung from being able to protect their criminal prosecutions from interference in foreign forums. But the concurrence acknowledges that that concern underlies our recent holding in Smith, and Smith points to a solution: a writ of mandamus or prohibition to compel a foreign trial court to dismiss a habeas action that should not be before it. In Smith, the action was a writ of prohibition because the merits of the habeas action had not been decided, but mandamus is a vehicle that can be used to undo an action performed if the trial court acts beyond the clear scope of its lawful authority. The concurrence contends that Smith might still allow the filing of a habeas application in a foreign court in an unusual situation. The extraordinarily slight possibility that such an unusual circumstance might occur in the future is no reason to contravene the plain language of Article 44.01, and in any event, the Legislature appears to have eliminated that possibility in a recent amendment to Article 11.06.
In re Smith, 665 S.W.3d 449 (Tex. Crim. App. 2022).
In re State ex rel. Wice, 668 S.W.3d 662, 671 (Tex. Crim. App. 2023).
After amendment in 2023, Article 1.1.06 now reads in pertinent part:
(a) If the applicant has not been formally charged by indictment or information, the writ must be made returnable to the county in which:
(1) the applicant is confined to the custody of the sheriff or other authority;
(2) the applicant is alleged, by any means including the issuance of a warrant for the applicant's arrest or the applicant’s arrest pursuant to Chapter 14, to have committed a criminal offense that provides the basis for the restraint from which the application seeks relief; or
(3) if neither Subdivision (1) nor (2) applies, the action imposing a restraint on the applicant’s liberty occurred.
Tex. Code Crim Proc. art. 11.06(a).
Judge Slaughter’s concurring opinion says an appellate court could dismiss the appeal but declare the Travis County District Court’s order void. But, as I explained earlier, for an appellate court to be able to exert any power at all over the trial court, its appellate jurisdiction has to have been properly invoked by a valid and timely notice of appeal. Otherwise, all it can do is dismiss the appeal; it can do nothing else. None of the cases relied on by the concurrence show otherwise. In fact, State v. Rodriguez-Gomez, one of the cases relied upon by the concurrence, makes that very point. The court there addressed two appeals, holding that the State’s notice of appeal was timely in one but not the other. For the appeal where the notice of appeal was untimely, the court of appeals held it had no choice but to dismiss the appeal and do nothing else, but for the appeal with the timely notice, the court of appeals held it had jurisdiction to further consider whether the trial-level court had jurisdiction.
— S.W.3d —, 2024 WL 590425 (Tex. App.—San Antonio February 14, 2024).
Id. at *2-3.
Id. at *2-3 ("Accordingly, to the extent the State attempts to appeal from the district court's order in the habeas proceeding, we conclude that the State failed to invoke our jurisdiction and we have no power to act other than to dismiss the appeal.").
Id. at *3 ("As a result, the State properly invoked, at minimum, our jurisdiction to determine our jurisdiction and to determine the county court’s jurisdiction. We will therefore determine whether the county court had jurisdiction to dismiss the information against Rodriguez-Gomez and whether we have jurisdiction to review the county court’s order.").
Judge Slaughter’s concurrence says that the statutes conferring prosecutorial authority to appeal do not directly apply to a situation in which criminal charges are properly filed in one county and the defendant seeks to collaterally attack those charges in another county without a good legal basis for doing so and where the local prosecutor has no interest in the case. But statutory language requires the prosecutor who files the notice of appeal to be the one with primary responsibility of prosecuting cases in the court that issues the order being appealed, and we are bound by that language. And we have addressed a situation in which a habeas action has been filed in a court different from the court in which the criminal prosecution was pending, and we have held that the prosecutor authorized by statute to act in the habeas court (though different from the one in charge of the criminal prosecution) was the proper person to represent the State on appeal. Judge Slaughter’s concurrence also contends that an appellate court can simply hold that the Kinney County Attorney’s notice of appeal invoked appellate jurisdiction for a limited purpose. But if the notice of appeal is not filed by the proper party, then appellate jurisdiction is not invoked for any purpose. We cannot create appellate jurisdiction that the legislature has not conferred.
Alvarez, 977 S.W.2d at 591, 593 (prosecution in municipal court; district attorney, not city attorney, had authority to represent the State in appeal from a habeas action filed in a county court at law).
Judge Slaughter’s concurrence also suggests that the court of appeals could treat an appeal as a mandamus application upon the appealing party’s request. That sort of claim is outside our discretionary review jurisdiction, Dickens v. Court of Appeals, 727 S.W.2d 542, 549 (Tex. Crim. App. 1987) ("there is no remedy via petition for discretionary review from an adverse ruling in an original mandamus proceeding"), and no one has filed a mandamus application with us in this case, so I express no opinion on the matter.
I respectfully dissent.