PD-0159-22 06/22/2022
Kinney County’s Ground for Review
“The Court of Appeals Erred by Basing its Opinion on the Holdings of the Habeas Court Without Determining Whether Such Holdings Were Correct.”Grounds Granted on the Court’s Own Motion
1. “[W]hether the Kinney County Attorney was authorized to file a State’s appeal from the habeas proceedings in Travis County[.]”2. “[W]hether the Kinney County Attorney was authorized to file a petition for discretionary review.”
Curipoma was charged by information in the Kinney County Constitutional Court with criminal trespass, with the punishment enhanced due to the Governor’s state-of-disaster declaration. Curipoma sought habeas relief in the 126th District Court of Travis County. The Travis County District Attorney represented the State in the district court and recommended granting relief. The Kinney County Attorney objected, arguing that he is the proper representative of the State. The habeas court concluded that the Travis County District Attorney is the proper representative and dismissed the charge. The Kinney County Attorney appealed to the Third Court of Appeals.
The court of appeals first concluded that Curipoma’s habeas application was properly filed in the Travis County district court. Though Tex. Code Crim. Proc. art. 11.09 authorizes a charged person to seek relief in the county in which the charge originated, it is not mandatory. State ex rel. Rodriguez v. Onion, 741 S.W.2d 433, 434 (Tex. Crim. App. 1987). Article 5, § 8 grants district courts plenary power to issue writs of habeas corpus and, when there is no indictment, a writ can be returnable to any county in Texas under Tex. Code Crim. Proc. art. 11.06. The court also concluded that the Travis County District Attorney is the State’s proper representative. Under Tex. Code Crim. Proc. art. 2.01, “[e]ach district attorney shall represent the State in all criminal cases in the district courts of his district and in appeals therefrom . . . .” The court then held that the Kinney County Attorney is therefore not permitted to take a different position than the proper State’s representative—the Travis County District Attorney—and had no authority to appeal on the State’s behalf.
The Kinney County Attorney contends that the writ should have been made returnable to Kinney County because that’s where the charge originated. He faults the court of appeals for failing to acknowledge that he objected to Travis County’s representation of the State before the habeas court. Neither court, he asserts, has explained why the Kinney County Attorney isn’t the proper representative or why the hearing should have been held in Travis County when there is no nexus between the charge and Travis County. He also argues that no writ should have issued because the Sheriff with custody of Curipoma had not been served.
The issues in this case are related to In re State of Texas ex rel. Brent Smith, WR-93,354-02.
