Ex parte Auspro Enterprises

02/12/2025

PD-0975-24

  1. “Whether The Court of Appeals Erred By Sua Sponte Deciding An Important Issue Of First Impression: A Pretrial Writ Of Habeas Corpus Filed In Connection With A Class C Misdemeanor Offense (On Appeal De Novo To County Court) Does Not Lie Where The Defendant Is Only Somewhat Restrained Of His Liberty By A Cash Bond.”
  2. “Whether The Court Of Appeals Erred By Sua Sponte Addressing The Issue Of Restraint - Which Had Not Been Contested By The State And Which The County Court Had Specifically Found Sufficient When It Adopted The State's Proposed Findings Of Fact -And Holding That Because Appellant Was Only Somewhat Restrained Of Its Liberty By A Cash Bond, The Trial Court Did Not Abuse Its Discretion By Denying Relief On The Merits (Without Addressing The Merits)?”
  3. “What Level Of Restraint Is Necessary Before A Pretrial Writ Of Habeas Corpus Filed In Connection With A Class C Misdemeanor Offense On Appeal De Novo To County Court Lies Where A Defendant Is Only Somewhat Restrained Of Its Liberty By A Cash Bond?” 

 

Kleinman, through his limited partnership Auspro Enterprises (Auspro), opened a Planet K store in Cedar Park, Texas.   The City issued multiple citations to both Kleinman and Auspro, alleging violations of a municipal ordinance prohibiting “head shops.”  These violations were classified as Class C misdemeanors, carrying fines as the sole penalty.  The municipal court found them guilty and assessed fines and court costs.

They appealed to the county court at law for a trial de novo, and their appeal bonds for double the amount of the fines and costs were approved.  Then, challenging the constitutionality of the “head shop” ordinance, they sought pretrial habeas relief.  The trial court denied relief.  

Before the Austin Court of Appeals, Kleinman and Auspro challenged the trial court’s ruling. The court affirmed the decision, concluding that Kleinman and Auspro failed show they were “restrained,” as required for habeas relief.  The court rejected their arguments that the alleged violations and the posting of appeal bonds constituted “restraint.”  The violations were punishable by fines only, and there was no evidence that they had been arrested, confined, or released from custody on bond.  Additionally, the possibility of future arrest for violating the bonds or failing to pay fines was too speculative.

Kleinman and Auspro reassert the restraint factors rejected by the lower court.  Additionally, they argue that the court’s decision effectively eliminates the legal remedy of a writ—which, under Tex. Cont. Art. 1, § 12 shall never be “suspended”—for individuals seeking relief for a fine-only Class C misdemeanor when arrest, or arrest followed by release on bond, occurs.