Opinion issued August 8, 2017
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-16-00523-CR ——————————— EX PARTE CYPRESS CREEK EMS, Appellant
On Appeal from the County Criminal Court at Law No. 4 Harris County, Texas Trial Court Case No. 2096756
MEMORANDUM OPINION
Appellant, Cypress Creek EMS, challenges the trial court’s order denying its
pretrial application for a writ of habeas corpus.1 In two issues, appellant contends
that the trial court erred in denying the requested relief.
1 See TEX. CODE CRIM. PROC. ANN. art. 11.09 (Vernon 2005) (providing person confined on charge of misdemeanor may apply for writ of habeas corpus); see also We affirm.
Background
Appellant, a nonprofit corporation subject to the provisions of the Texas
Business Organizations Code relating to nonprofit corporations (the “Nonprofit
Corporation Act”),2 provides emergency services to portions of Harris County. With
some exceptions, the Nonprofit Corporation Act requires a nonprofit corporation to
“maintain current and accurate financial records with complete entries as to each
financial transaction of the corporation, including income and expenditures, in
accordance with generally accepted accounting principles.”3 The nonprofit
corporation must “keep records, books, and annual reports of the corporation’s
financial activity at the corporation’s registered or principal office in this state for at
least three years after the close of the fiscal year.”4 It “shall make the records, books,
and reports available to the public for inspection and copying at the corporation’s
registered or principal office during regular business hours.”5 And a nonprofit
corporation “commits an offense if the corporation fails to maintain a financial
id. art. 11.01 (Vernon 2005) (“The writ of habeas corpus is the remedy to be used when any person is restrained in his liberty.”). 2 See TEX. BUS. ORGS. CODE ANN. §§ 22.201–22.409 (Vernon 2012 & Supp. 2016). 3 Id. § 22.352(a); see id. §22.355 (setting out exemptions from requirements relating to financial records and annual reports). 4 Id. § 22.353(a). 5 Id. § 22.353(b).
2 record, prepare an annual report, or make the record or report available to the public”
as required by statute.6 The offense is a Class B misdemeanor.7
In August 2014, Wayne Dolcefino, a private investigator, sought from
appellant, pursuant to the Nonprofit Corporation Act, “payroll information of all
employees of [appellant] since January 1, 2013, including the names of the
employees, their position, and their annual salary, benefits and overtime.” 8 Several
months later, the Harris County District Attorney filed an information, accusing
appellant of:
intentionally and knowingly fail[ing] to make available to the public a financial record, of [appellant’s] financial activity, namely, documents detailing the annual salary and compensation for administrative employees of [appellant] for the period 2010 continuing through 2014, namely, [appellant] failed to make said financial record available to the public for inspection and copying at [appellant’s] registered office of the State of Texas, namely, 7111 Five Fork Dr[.], Spring, Texas 77379.9
(Emphasis omitted.) The State then served appellant with a subpoena requesting for
appellant’s administrative staff, for the period July 1, 2010 through the present, and
6 Id. § 22.354(a). 7 Id. § 22.354(b). The punishment for a Class B misdemeanor is a fine not to exceed $2,000 and confinement in jail for no more than 180 days. TEX. PENAL CODE ANN. § 12.22 (Vernon 2011). If a corporation is adjudged guilty of an offense that provides a penalty including imprisonment, a court may assess punishment at a fine not to exceed $10,000. Id. § 12.51(b)(1) (Vernon 2011); see Tarlton v. State, 93 S.W.3d 168, 176 n.3 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d). 8 See TEX. BUS. ORGS. CODE ANN. § 22.353(b). 9 See id. § 22.354(b).
3 all employees, for the period January 1, 2013 through the present, “[d]ocuments
detailing the[ir] payroll information, including annual salaries and any other
financial compensation” and “the names of these employees, their position, their
annual pay, benefits and overtime.” In response, appellant moved to dismiss the
information and quash the subpoena, asserting, among other things, that the
requested information was not subject to disclosure under the Nonprofit Corporation
Act, and the requested information was privileged and confidential commercial
information exempt from disclosure, and production of the information “would
constitute a clearly unwarranted invasion of privacy.”
On March 17, 2016, the trial court held a hearing on appellant’s motions to
dismiss the information and quash the State’s subpoena at which Andrew McKinney,
appellant’s general counsel, testified that Dolcefino, pursuant to the Texas Public
Information Act10 and the Nonprofit Corporation Act, requested “payroll
information of all employees of [appellant] since January 1, 2013, including the
names of the employees, their position, and their annual pay, benefits and overtime.”
McKinney explained that appellant, “believing that [it] was subject to the Public
Information Act,” complied with Dolcefino’s requests “except for the demand for
compensation benefits and overtime for the administrative staff.” In accordance
with the Public Information Act, appellant also “t[ook] the issue” to the Texas
10 See TEX. GOV’T CODE ANN. §§ 552.001–.353 (Vernon 2012 & Supp. 2016).
4 Attorney General, who concluded that “to the extent that public funds are used to
pay salaries of employees of a private entity, the identity and salaries of those
employees so funded is subject to the [Public Information Act].” Appellant then
filed suit in a Travis County district court to challenge the Attorney General’s
opinion. On March 4, 2016, the Travis County district court concluded that appellant
is not subject to the Public Information Act.11
McKinney opined that the State’s criminal prosecution is “not grounded” in
the Public Information Act but in the Nonprofit Corporation Act. And he advised
appellant that the Nonprofit Corporation Act does not require disclosure of “annual
salary and compensation for administrative employees” and it had complied “in
terms of the reporting and disclosure requirements within that Act.” McKinney
explained that appellant has “an annual independent audit of its books and records”
and “publishes an unaudited financial report each month that’s available to the
public.” These financial reports reflect “how much in each year [appellant] pays for
general and administrative employees,” and “employee health benefits” and
appellant had provided these reports to Dolcefino.
McKinney further testified that appellant’s board of directors “takes very,
very seriously” the fact that appellant remains charged with a crime. He explained
11 See Greater Hous. P’ship v. Paxton, 468 S.W.3d 51, 67 (Tex. 2015) (holding entity not “supported in whole or in part by public funds” not “governmental body” under Public Information Act). 5 that appellant originally was “almost an all-volunteer organization” and board
members, who “probably [have] an average age of 75,” had been with appellant
“almost from the beginning and [were] never paid a penny. All the men are
ex-military. These are the kind of people it’s a privilege to serve. And they don’t
take being accused of a crime lightly.”
In addition to McKinney’s testimony, appellant offered, and the trial court
admitted, with no objection, into evidence a copy of the information; “Financial
Statements and Supplemental Information . . . with Independent Auditor’s Report”
for the years ending December 31, 2012, December 31, 2013, and December 31,
2014; “Cypress EMS Profit & Loss Budget Performance,” dated December 2012,
December 2013, and December 2014; and “Cypress Creek EMS Sources and Uses
of Funds January through August 2015.”
Asserting that its motion to dismiss the information attacked the
constitutionality of the controlling statue and “should have properly been styled and
filed as a writ of habeas corpus,” appellant asked the trial court to allow appellant
“to file a writ in the interim” and “consider all the evidence in connection with the
writ as well.” The trial court agreed and allowed appellant to file the application for
a writ of habeas corpus and the State to respond.
6 Appellant then filed its application and amended application for a writ of
habeas corpus, arguing that pertinent provisions of the Nonprofit Corporation Act12
are unconstitutionally vague on their face because the terms “financial activity” and
“financial records” are ambiguous and the statute “articulates no applicable mens
rea standard.” Appellant further argued that the provisions are unconstitutionally
vague and violate due process rights because “the law puts businesses such as
[appellant] in impossible situations, where they must either relinquish their rights to
pursue clarification of the law” and “reveal their trade secrets or else be subject to
prosecution.”
The trial court denied appellant’s requested habeas relief. In a written order,
it concluded that “a corporation can have a liberty interest that is restrained by a
criminal statute or prosecution.” It noted, however, that appellant had “failed to
establish that its liberty [was] restrained in a manner sufficient to invoke this Court’s
habeas jurisdiction.” The trial court explained that even had appellant “properly
invoked [the trial court’s] habeas jurisdiction, its claim fail[ed] on the merits”
because the use of the terms “financial records” and “financial activity” did not
render the statute “facially unconstitutional for vagueness.” Moreover, it stated that
“[r]ecords showing payroll expenses and recipients . . . are unquestionably ‘financial
records’ and records concerning ‘financial activities.’” The trial court further
12 See TEX. BUS. ORGS. CODE ANN. §§ 22.353, 22.354. 7 concluded that the information alleged that appellant “‘intentionally and knowingly’
engaged in criminal conduct” and “comport[ed] to the law.” Finally, the trial court
explained that “seeking an Attorney General’s Opinion is not a constitutionally
protected right” and appellant “presented no evidence that it actually relinquished or
abandoned any ‘right’ to pursue an Attorney General’s Office opinion.”
Standard of Review
“[A] pretrial habeas, followed by an interlocutory appeal, is an ‘extraordinary
remedy,’ and ‘appellate courts have been careful to ensure that a pretrial writ is not
misused to secure pretrial appellate review of matters that in actual fact should not
be put before appellate courts at the pretrial stage.’” Ex parte Ellis, 309 S.W.3d 71,
79 (Tex. Crim. App. 2010) (quoting Ex parte Doster, 303 S.W.3d 720, 724 (Tex.
Crim. App. 2010)). A claim is cognizable in a pretrial writ of habeas corpus if,
resolved in the defendant’s favor, it would deprive the trial court of the power to
proceed and result in the defendant’s immediate release. Ex parte Smith, 185 S.W.3d
887, 892 (Tex. Crim. App. 2006) (citing Ex parte Weise, 55 S.W.3d 617, 619 (Tex.
Crim. App. 2001)). Accordingly, a defendant may use a pretrial writ application to
assert that the statute under which the applicant is prosecuted is unconstitutional on
its face because the statute’s invalidity would render the charging instrument void.
Ex parte Thompson, 442 S.W.3d 325, 333 (Tex. Crim. App. 2014); Ex parte Flores,
8 483 S.W.3d 632, 638 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) (citing Ex
parte Weise, 55 S.W.3d at 620).
We generally review a trial court’s ruling on an application for a pretrial writ
of habeas corpus for an abuse of discretion. Washington v. State, 326 S.W.3d 701,
704 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (citing Ex parte Wheeler, 203
S.W.3d 317, 324 (Tex. Crim. App. 2006)). In conducting this review, we view the
facts in the light most favorable to the trial court’s ruling and uphold that ruling
absent an abuse of discretion. Wheeler, 203 S.W.3d at 324. We afford almost total
deference to a trial court’s factual findings when those findings are based upon
credibility and demeanor. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim.
App. 2006) (quoting Ex parte White, 160 S.W.3d 46, 50 (Tex. Crim. App. 2004)).
However, a facial attack upon a penal statute is a question of law that we review de
novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013); Mims v. State, 434
S.W.3d 265, 268 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing Karenev v.
State, 281 S.W.3d 428, 435 (Tex. Crim. App. 2008)). An applicant for habeas relief
has the burden of proof as to the application. Washington, 326 S.W.3d at 706 (citing
Ex parte Chandler, 182 S.W.3d 350, 353 n.2 (Tex. Crim. App. 2005); Ex parte
Kimes, 872 S.W.2d 700, 703 (Tex. Crim. App. 1993)).
9 Restraint
As an initial matter, we consider whether appellant established that it was
confined or restrained as required for habeas relief. See Le v. State, 300 S.W.3d 324,
325–26 (Tex. App.—Houston [14th Dist.] 2009, no pet.). To be entitled to habeas
relief, an applicant must be illegally restrained in his liberty. Ex parte Weise, 55
S.W.3d at 619 (citations omitted); see TEX. CODE CRIM. PROC. ANN. arts. 11.01
(Vernon 2005) (providing habeas corpus is “remedy to be used when any person is
restrained in his liberty”); 11.09 (Vernon 2009) (providing person “confined on a
charge of misdemeanor,” may file application for writ of habeas corpus).
Accordingly, an applicant for habeas corpus relief must establish that the applicant
was unlawfully confined or restrained by an accusation or conviction. Ex parte
Schmidt, 109 S.W.3d 480, 483 (Tex. Crim. App. 2003); Ex parte Weise, 55 S.W.3d
at 619. A person is “restrained” if under “the kind of control which one person
exercises over another, not to confine him within certain limits, but to subject him
to the general authority and power of the person claiming such right.” TEX. CODE
CRIM. PROC. ANN. art. 11.22 (Vernon 2005). “Restraint” is construed broadly in the
context of habeas corpus writ applications. See Ex parte Cathcart, 13 S.W.3d 414,
417 (Tex. Crim. App. 2000) (citing Ex parte Ormsby, 676 S.W.2d 130, 132 n.4 (Tex.
Crim. App. 1984); Gibson v. State, 921 S.W.2d 747, 754 (Tex. App.—El Paso 1996,
writ denied)); see also Ex parte Davis, 748 S.W.2d 555, 557 (Tex. App.—Houston
10 [1st Dist.] 1988, pet. ref’d) (citing TEX. CODE CRIM. PROC. Ann. art. 11.64 (Vernon
2005)) (“Concepts of ‘confinement’ and ‘restraint’ encompass incarceration, release
on bail or bond, release on probation or parole, or any other restraint on ‘personal
liberty.’”).
Here, the trial court concluded that appellant “fail[ed] to argue the point at all”
in its habeas application and “establish sufficient evidence at the hearing to show
that its ability to engage in its normal course of business [was] impacted any more
than that belonging to any other criminal defendant.” Thus, the trial court further
concluded that appellant “failed to establish that its liberty [was] restrained in a
manner sufficient to invoke” the trial court’s habeas jurisdiction.
In this Court, the State argues that appellant is not entitled to habeas relief
because a corporation “is not a ‘person’ capable of being restrained, confined, or
detained” and “the Code of Criminal Procedure evidences a legislative choice to
make habeas remedies available only to physical persons.” Appellant asserts that
“[a] legal ‘person’ is broader than simply a ‘natural person’” and it “has the same
‘rights and duties’ as a natural person to abide by the Business [Organizations] Code,
so logically it should have equal rights to challenge the vagueness of such laws.”
Chapter 17A of the Texas Code of Criminal Procedure “sets out some of the
procedural rules applicable to the criminal responsibility of corporations and
associations.” TEX. CODE CRIM. PROC. ANN. art. 17A.01(a) (Vernon 2015). When
11 not in conflict with chapter 17A, “the other chapters” of the Code of Criminal
Procedure “apply to corporations and associations.” Id. And, “unless the context
requires a different definition,” chapter 17A defines “person” to include
“corporation and association.” Id. art. 17A.01(b)(4); cf. TEX. PENAL CODE ANN.
§§ 1.07(13) (defining “corporation” to include “nonprofit corporations”), 1.07(38)
(Vernon Supp. 2016) (providing “person” means “individual, corporation, or
association”). The State argues that, in the context of the provisions relating to
habeas relief, “person” includes only “physical persons” because a corporation “is
incapable of being detained, restrained, or confined.” See Specialized Waste Sys.,
Inc. v. State, 126 S.W.3d 530, 531 (Tex. App.—Houston [1st Dist.] 2003, pet.
denied) (concluding Code of Criminal Procedure article 55.01 “required[d] a
different definition” of “person” because it limits expunction to persons wrongfully
arrested and corporations not subject to arrest); see also TEX. CODE CRIM. PROC.
ANN. art. 17A.03(b) (“No individual may be arrested upon a complaint, indictment,
information, judgment, or sentence against a corporation or association.”).
We need not decide whether “habeas remedies [are] available only to physical
persons” because appellant did not establish that it is confined or restrained. In its
habeas application, appellant did not assert that it is confined or restrained as a result
of the challenged information. Regardless, appellant asserts that “[t]he fact that [it]
is restrained was well established” through McKinney’s testimony at the trial court
12 hearing. According to appellant, McKinney explained that it had “spent hundreds
of thousands of dollars fighting against the allegations of Mr. Dolcefino and the
State” and the “criminal charges have had a drastic impact” on appellant’s board of
directors, who “take being charged with a crime extremely seriously, which has cost
[appellant] significant resources.”
The record reflects that Dolcefino, pursuant to the Public Information Act and
the Nonprofit Corporation Act, sought “payroll information” for appellant’s
administrative staff and employees, including their names, position, annual pay,
benefits, and overtime. Appellant, “believing that [it] was subject to the Public
Information Act,” complied with the requests “except for the demand for
compensation benefits and overtime for the administrative staff.” Appellant “t[ook]
the issue” to the Attorney General, who concluded that “to the extent that public
funds are used to pay salaries of employees of a private entity, the identity and
salaries of those employees so funded is subject to the [Public Information Act].”
Appellant then challenged this ruling in a Travis County district court, which
concluded that appellant is not subject to the Public Information Act. When asked
whether appellant, “several hundred thousand dollars later, in various wars in other
courtrooms and potentially including this one . . . still remain[ed] charged with a
crime,” McKinney answered that appellant’s board of directors “takes very, very
seriously” the charge and did not “take being accused of a crime lightly.” Although
13 appellant offered, and the trial court admitted, appellant’s documents showing
amounts paid for legal expenses, these documents do not reveal what portion of any
amount of funds expended resulted from the criminal charge in the underlying
proceeding. The evidence presented at the trial court’s hearing does not demonstrate
any restraint on appellant. See City of El Paso v. Alvarez, 931 S.W.2d 370, 379 (Tex.
App.—El Paso 1996, orig. proceeding) (citing Ex parte Calhoun, 91 S.W.2d 1047,
1048 (Tex. 1936)) (concluding filing of complaint in municipal court, without more,
did “not confine the defendant or restrain her liberty in any manner”); see also Ex
parte Davis, 506 S.W.3d 150, 152 (Tex. App.—Tyler 2016, no pet.) (citing
Crawford v. Campbell, 124 S.W.3d 778, 781 (Tex. App.—Houston [1st Dist.] 2003,
no pet.); Dahesh v. State, 51 S.W.3d 300, 303 (Tex. App.—Houston [14th Dist.]
2000, pet. ref’d)) (concluding, even had applicant for post-conviction writ of habeas
corpus proved insurance rates rose or he had lost status in community as result of
conviction, such changes did not constitute confinement or restraint).
Considering the evidence in the light most favorable to the trial court’s ruling
and deferring to the trial court’s findings of fact supported by the record, we
conclude that the record supports the trial court’s conclusion that appellant “failed
to establish that its liberty [was] restrained in a manner sufficient to invoke [the trial
court’s] habeas jurisdiction.” Accordingly, we hold that appellant has not shown
14 that the trial court abused its discretion in denying its application for a writ of habeas
corpus. Having so concluded, we need not address appellant’s remaining arguments.
Conclusion
We affirm the order of the trial court.
Terry Jennings Justice
Panel consists of Justices Jennings, Higley, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).