Writ of Habeas Corpus in Texas

In Texas, a writ of habeas corpus is a court order in which the judge demands a law enforcement agency to produce a detainee for a court hearing. Prosecutors must show that they have a valid reason for detaining the person. If the detention is illegal, the detainee can be released.

People who are detained can petition the court for a writ of habeas corpus. If the petition is granted, the judge will issue the writ and schedule the hearing. Detainees can argue that are being held in violation of the law at this hearing.

Inmates can petition for a writ of habeas corpus after they have been sentenced. Defendants can also petition for a writ while their criminal case is still pending.

The right to petition for a writ of habeas corpus is guaranteed by both the U.S. Constitution and the Texas State Constitution.

writ of habeas corpus
A writ of habeas corpus is a court order for law enforcement to justify a particular detention.

1. What is a writ of habeas corpus?

A writ of habeas corpus is a court order for law enforcement to justify a particular detention.

Defendants or inmates can petition for a writ of habeas corpus. In this petition, they ask the judge to review their case. They claim that their detention violates the law.

The judge will set a hearing to make this decision. If the judge agrees that the detention is illegal, the petitioner can be released or their terms of confinement can change.

The right to petition for a writ of habeas corpus is an old one. It has existed since the early Middle Ages. Now, it is a part of the U.S. Constitution1 and the Texas Constitution.2 It is designed to restrict the power of the executive branch. It gives judges the power to require law enforcement to justify an arrest.

The term “habeas corpus” is Latin. It means “you have the body.” In the writ, a judge demands that law enforcement produce a person in their possession.

2. Who can petition for a writ?

In Texas, both inmates and defendants can petition for a writ of habeas corpus.

Inmates are people who have already been convicted of a crime. They are serving jail time. They can petition for a writ of habeas corpus to challenge their detention. They can claim:

  • the court that sentenced them did not have jurisdiction,3 or
  • they are held captive after being deprived of a fair trial due to a violation of a federal constitutional right.4

Defendants can also petition for a writ of habeas corpus if they are in custody for a pending charge. They can claim that the detention violates their rights. Those rights include:

Defendants do not need to physically be in jail to petition for a writ of habeas corpus.8

attorney filing writ of habeas corpus
People can apply for a federal writ of habeas corpus, even if they are held by state law enforcement.

3. What is the petition process?

The process for writs of habeas corpus depends on whether it is being pursued in federal court9 or in a Texas state court.10 People can apply for a federal writ of habeas corpus, even if they are held by state law enforcement.11

The petition process also changes based on:

  • the nature of the conviction or criminal charge,12 and
  • the stage of the criminal proceeding.13

For example, the process of a habeas corpus petition for a capital felony will different than one that only led to community supervision.

If filed in a Texas state court, the petition is a are sworn document that has to include:

  • a statement that the petitioner is being held illegally,
  • names or descriptions of the people or agencies detaining the petitioner,
  • a copy of the detainment order, if possible, and
  • a request for a writ of habeas corpus.14

4. What happens at the hearing?

When a judge grants a petition for habeas corpus, he or she will schedule a hearing.

At the hearing, prosecutors will have to explain why the detention is justified. The defendant or inmate will argue that the detention is illegal or violates their rights.

If the judge decides that there is no legal cause for the detention, the petitioner can be released.15


Legal References:

  1. U.S. Constitution Article 1, Section 9 (“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it”).

  2. Texas Constitution Article 1, Section 12 (“The writ of habeas corpus is a writ of right, and shall never be suspended. The Legislature shall enact laws to render the remedy speedy and effectual”).

  3. Ex Parte Young, 418 S.W.2d 824 (Tex. Crim. App. 1967).

  4. Stone v. Powell, 96 S.Ct. 3037 (1976).

  5. Ex Parte Robinson, 641 S.W.2d 552 (Tex. Crim. App. 1982).

  6. Texas Code of Criminal Procedure 11.24.

  7. Ex Parte Trillo, 540 S.W.2d 728 (1976) (defendant was held past the 20-day limit for detentions for an alleged probation violation).

  8. Hensley v. Municipal Court, 93 S.Ct. 1571 (1973).

  9. 28 U.S.C. 2241 et seq.

  10. Texas Code of Criminal Procedure 11.01 et seq.

  11. 28 U.S.C. 2254.

  12. Compare Texas Code of Criminal Procedure 11.07 (convictions not involving the death penalty) with 11.071 (death penalty convictions).

  13. Compare Texas Code of Criminal Procedure 11.07, 11.071, and 11.072 (convictions) with 11.08 and 11.09 (charges).

  14. Texas Code of Criminal Procedure 11.14.

  15. Texas Code of Criminal Procedure 11.40.

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