May 21, 2025

The Texas Writ of Habeas Corpus: A Lifeline in Criminal Cases

Because this phrase has come up in the news lately in the immigration context, today’s topic is the writ of habeas corpus. The focus of this article is on the role of the post-conviction writ of habeas corpus in Texas felony criminal cases. While State law does permit use of a writ of habeas corpus in misdemeanor cases or in cases that have not gone to trial yet, we'll save those subjects for another day. At least for now, I'll leave the application to Federal Immigration Law alone.

What is a writ of habeas corpus?

This ancient legal remedy, rooted in the Magna Carta, serves as a vital safeguard against unlawful imprisonment and miscarriages of justice within the Texas criminal justice system. At its core, the writ of habeas corpus is a legal action that challenges the legality of a person’s detention. The phrase “habeas corpus” is Latin for “you have the body.” Essentially, it demands that the government or custodian produce the detained individual before a court and justify the reason for their confinement. 

In the context of Texas criminal law, a writ of habeas corpus is typically filed after a conviction and sentencing, once the direct appeal process has been exhausted or is no longer available. It serves as a collateral attack on the conviction, meaning it is a separate lawsuit from the original criminal case. Importantly, and unlike a direct appeal, an applicant may bring an application for a writ of habeas corpus even if the applicant plead guilty and waived their right to appeal.

What claims are suited for a writ of habeas corpus?

The purpose of a Texas writ of habeas corpus is not to retry the case or re-litigate issues that were or could have been raised on direct appeal. Instead, it is designed to address fundamental Constitutional or jurisdictional errors that rendered the conviction or sentence unlawful. These errors must be of such a nature that they undermine the integrity of the judicial process or violate the individual’s basic rights. Some common grounds for seeking a writ of habeas corpus in Texas include, but are not limited to:

• Violation of Constitutional rights: This can include claims of ineffective assistance of counsel or violation of the right to due process.

• Actual innocence: In rare cases, a writ of habeas corpus may be sought based on newly discovered evidence that proves the individual’s actual innocence.

• Illegal sentence: This involves challenges to the legality of the sentence imposed, such as when the sentence exceeds the statutory limits or is otherwise unlawful.

Now, let’s delve into the specific realm of an 11.07 writ, named after Article 11.07 of the Texas Code of Criminal Procedure. This particular type of writ is the most commonly used post-conviction remedy in Texas for challenging felony convictions. An 11.07 writ is filed in the convicting court, the court where the original trial took place. By law, the clerk of the court shall serve a copy of the application for a writ of habeas corpus on the attorney for the State. The State has 30 days to file an response.

Within 20 days of the State’s 30-day deadline, the convicting court must decide “whether there are controverted, previously unresolved facts material to the legality of the applicant's confinement.” Depending on the answer to that question, the convicting court shall either designate the facts to be resolved and initiate a process to determine those facts, or determine that no unresolved facts need to be resolved, in which case the application and related filings are forwarded to the Court of Criminal Appeals for resolution.

 The types of claims that are best suited for an 11.07 writ often involve matters that were not and could not have been raised on direct appeal. This typically includes claims that rely on evidence outside the trial record, such as attorney’s failure to investigate a key witness or present crucial evidence. Claims based on the trial transcripts alone are generally unsuccessful, as the claim could have been raised on direct appeal. An 11.07 writ allows the defendant to present affidavits, witness statements, and other evidence to support their claim.

 Ineffective assistance of counsel is a complex and highly fact-specific claim. To succeed on such a claim, the applicant must show (1) their attorney’s performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for the attorney’s unprofessional errors, the result of the proceeding would have been different. This is a high bar to clear, but it is a critical avenue for relief when an individual has been deprived of their Sixth Amendment right to effective counsel.

 Another type of claim appropriate for an 11.07 writ is actual innocence based on newly discovered evidence. This requires the applicant to present evidence that was not available at trial and that clearly and convincingly establishes their innocence. This can be DNA evidence, recantations by key witnesses, or other compelling evidence that undermines the original conviction.

 It is crucial to understand that filing a writ of habeas corpus in Texas is a complex legal process with strict procedural rules and deadlines. It is not a substitute for a direct appeal, and it is not a guarantee of relief. However, it can be a powerful tool for individuals who have been unlawfully convicted or sentenced. If you believe you have grounds for a writ of habeas corpus, it is essential to consult with an experienced post-conviction criminal law attorney who can evaluate your case and guide you through the process.

Want To Learn More? Click below to read other posts by Larman Law in Heath, Texas: