Ex Parte Renier

734 S.W.2d 349, 1987 Tex. Crim. App. LEXIS 742

• Court: Court of Criminal Appeals of Texas
• Decided: July 1, 1987
• Docket: 69728
• Status: Published

Opinions

OPINION ON APPLICANT’S MOTION FOR REHEARING

CLINTON, Judge.

On original submission of this application for habeas corpus in an unpublished opinion, 724 S.W.2d 393, we found that our determination to set the cause was improvident in that while the indictment upon which the conviction is based may be void it has been dismissed upon applicant’s successful completion of probation pursuant to former article 42.12, § 7, V.A.C.C.P. and, therefore, the relief prayed for had already been granted.

In his motion for rehearing applicant stoutly contends with supporting authorities: “An indictment which fails to allege all elements of an offense may be attacked for the first time by post-conviction Writ of Habeas Corpus.” We granted the motion to consider whether that general rule applies in the situation presented here. The application will be dismissed without prejudice.

In his application for writ of habeas corpus applicant alleges facts showing his conviction for felony theft and his being placed on probation for three years in cause no. 216199; that “the indictment upon which this conviction was based is void” for the reason asserted and authorities cited; that a void indictment may be attacked “by post conviction writ of habeas corpus,” citing cases. His prayer for relief is consistent with his allegations, viz:

“Wherefore, applicant prays this application be granted, the trial court order a copy of the indictment in cause number 26199 [sic] be forwarded to the Court of Criminal Appeals and the Court of Criminal Appeals issue an order dismissing the indictment in cause number 216199.” ¹

Moreover, convicting court, district clerk and parties thereafter treated the matter as a postconviction writ proceeding. In short, this proceeding purports to be a postconviction application for writ of habe-as corpus pursuant to Article 11.07, §§ 2 and 3, V.A.C.C.P. However, for reasons about to be given, the application is really not what it purports to be, and this Court lacks authority to grant relief under Article 11.07.

In the first place, Article 11.07, §§ 2 and 3 supra, applies only “after final conviction in any felony case,” id., § 2(a). Here because applicant was granted probation, there is no final conviction. Since he satisfactorily fulfilled conditions of his probation, the convicting court terminated the period of probation, permitted applicant to withdraw his plea, dismissed the indictment and set aside the judgment of conviction, thereby releasing applicant from all penalties and disabilities, as provided in former article 42.14, § 7. Thus, this is not a habe-as corpus proceeding authorized by Article 11.07, § 2(a).

Secondly, when the application is made after conviction Article 11.07 is concerned with “confinement.” Upon examination of such an application the judge of the convicting court has a duty to decide whether there are controverted, unresolved facts “material to the legality of the applicant’s confinement.” Id., § 2(c) and (d). After the record is reviewed here, this Court “shall enter its judgment remanding the petitioner to custody or ordering his release, as the law and facts may justify.” Id., § 3. Finally the procedure prescribed “shall be exclusive and any other procedure shall be void and of no force and effect in discharging the prisoner.” Ibid.

In this cause applicant is not confined; indeed, his complaint is that on account of his conviction and probated sentence he is “being deprived of my ability to obtain gainful employment in my choice of careers” and “to obtain bonding for positions of trust.”

Nevertheless, applicant points out that this Court has granted postconviction habeas relief when an applicant is not in confinement. He relies principally on Ex parte Ormsby, 676 S.W.2d 130 (Tex.Cr.App.1984), in which the Court expressly notices, “Applicant was not in custody at the time he filed his application.” Id., at 131.² Somewhat like Ormsby, he must be asserting his prior discharged conviction has legal collateral consequences amounting to restraint in his personal liberty. Ormsby, at 132. We find that to the extent it suggests Article 11.07, §§ 2-3, authorizes a postconviction challenge to a pri- or conviction when applicant is not then and there in confinement, but alleged to be only under “restraint,” Ormsby will not be followed.

The opinion in Ormsby draws heavily on the concurring opinion of Judge Odom in response to the dissenting opinion of the late Judge Douglas, in Ex parte Guzman, 551 S.W.2d 387, 388 ff (Tex.Cr.App.1977). Ex parte Guzman is, as Commissioner Green identified it, “an application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P.” That is, of course, a postconviction writ to test “the legality of the applicant’s confinement.” Article 11.-07, § 2(c) and (d).

Applicant in Guzman had alleged his conviction was void in that his probation had been revoked at a hearing when he was without, and had not waived, representation by counsel. The judge of convicting court “denied” the application upon his finding that “the application for writ of habeas corpus was moot, since petitioner was no longer held in custody by reason of that conviction, said conviction since being discharged.” Id., at 388.³ When the record reached here the Court remanded the cause for further proceedings “to determine the merits of petitioner’s contentions” because “prior convictions that had been discharged may have serious collateral consequences to a criminal defendant, thus the mootness doctrine cannot prohibit a collateral attack. [Cited cases omitted].” Ibid. (Emphasis in original).

When the cause returned here, largely upon findings by the convicting court that petitioner was indigent and did not have or waive representation by counsel, for the Court Commissioner Green found they were corroborated by records and held that “the order of revocation has been rendered void by petitioner’s showing that he was denied his right to counsel at that proceeding, [cases cited in which every applicant was then confined].” Accordingly, the writ was granted and the order of revocation set aside.

In dissent, based on much federal authority Judge Douglas opined that being in custody for the very conviction under attack is jurisdictional under Article 11.07; he charged, “Before today’s holding there was no authority to the contrary.” Id., at 390-391. Though not specifically mentioned in the opinion approved by the Court, in his response Judge Odom regarded significant the fact that at the time Guzman was then confined in TDC under another conviction, and observed that Judge Douglas had not distinguished an apposite decision. See note 1, p. 389.⁴ However, Judge Douglas did point out that in Ex parte Langston, supra, applicant was confined when he filed his application, thereby invoking habeas jurisdiction. He said similarly situated was applicant in Ex parte Burt, 499 S.W.2d 109 (Tex.Cr.App. 1973). While not all that clear the opinion may be so interpreted, viz: “Initially we must determine whether the question raised by this petition is moot, by reason of the fact that petitioner has been released from confinement in [TDC].” Finding that matter was not moot and although he had been released, the Court granted the writ “for the purpose of securing him against further legal consequences arising from the void conviction.” Id., at 110.

Thus we see that before and in Ex parte Guzman every Article 11.07 habeas applicant was under some character of confinement — at least at the time he filed his application. In that circumstance the Court had no compunction about granting relief from collateral legal consequences of a void conviction.

In further challenging the Douglas dissent Judge Odom noticed Judge Douglas conceded that “sufficient collateral consequences flow from the discharged conviction [to defeat mootness],” and then undertook to chastise the dissenting opinion for wanting to deny petitioner “a forum to raise his viable claim by finding those very collateral consequences that defeat mootness are insufficient to support jurisdiction.” But nowhere in his concurring opinion does Judge Odom disagree with the opinion approved by the Court setting aside the void order revoking probation; to the contrary, his dissent is premised on the proposition that because applicant was confined under another conviction the Court had habeas jurisdiction.⁵ Then he switched the subject from “confinement” to “restraint.” Id., at 389. He goes on to cite “the rules governing habeas corpus” in Chapter 11 of the Code of Criminal Procedure, and faults the dissenting opinion for flouting them. Ibid.

It is solely the “restraint” part of his opinion that we borrowed in Ormsby. Compare Guzman, at 389, with Ormsby, at 132. However, nowhere in all of Article 11.07 does the term “restraint” appear.⁶ Article 11.07 is reserved for an applicant in “confinement,” which by definition is a harsher condition than “restraint.” Compare Article 11.21 with Article 11.22. Therefore, as all decisions from Burt through Guzman to Sewell held, unless an applicant is confined pursuant to a commitment for a felony conviction, a postconviction application for habeas corpus relief from collateral consequences of another conviction will not lie under Article 11.07.⁷

Our error in Ormsby was in accepting too quickly the “restraint” part of the Odom concurrence without realizing that, like all decisions to that point, he too recognized that an applicant must then be confined for a felony conviction before seeking to avoid collateral consequences of another alleged void conviction from which he had been discharged. The implicit finding in Ormsby that Article 11.07, §§ 2 and 3, authorized the application for habeas corpus and the relief there granted is rejected.

That is not to say, however, that one who is at large but claims he may suffer “restraints” from collateral consequences of a prior felony conviction is barred from seeking relief by way of habe-as corpus. To preserve that protection constitutionally provided through The Great Writ, Article I, § 12, courts may apply as pertinent to felony convictions the rationale of Ex parte Crosley, 548 S.W.2d 409 (Tex.Cr.App.1977), with respect to misdemeanor convictions, viz:

“Both county and district courts have original jurisdiction in habeas corpus proceedings when attacks are made upon the validity of misdemeanor convictions; see Article 5, Section 8 of the Constitution of Texas; Article 11.05 and 11.09, V.A.C.C.P., and petitioners have a right of appeal from an order denying relief. ******

* * * * Even though the applicant may have been discharged from confinement, collateral legal consequences of his conviction may entitle him to relief, [citations omitted]. The applicant is entitled to have a hearing on the allegations which he has made.”

See also Ex parte Phelper, 433 S.W.2d 897, 898 (Tex.Cr.App.1968).

Granted it has been said that Article 11.07 provides the means to attack validity of a “final conviction in any felony case,” e.g., Mayes v. State, 538 S.W.2d 637, 638 (Tex.Cr.App.1976), and by virtue of § 3 is the only means, Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967). However, the Court has consistently held that a conviction producing collateral legal consequences may entitle one to relief even though he has been discharged from confinement on that conviction. To condition his entitlement to relief upon another conviction and confinement and then invocation of Article 11.07 is to deny constitutional protection against “restraint in his liberty” short of confinement. To that extent The Great Writ is suspended contrary to the dictate of Article I, § 12.

Accordingly, along the lines of Ex parte Crosley, we hold that the constitutional and statutory provisions combine to provide a procedure for seeking, and jurisdiction, power and authority in district courts under Article V, § 8, to grant, relief and, failing there, for appeal to a court of appeals, subject to discretionary review by this Court.

Therefore, we dismiss the instant application purportedly brought pursuant to Article 11.07, §§ 2 and 3, for want of jurisdictional requisites to granting relief, towit: a final felony conviction and confinement, without prejudice to applicant’s invoking the original jurisdiction of the district court in cause no. 216199.⁸ However, we leave open the question whether applicant is being restrained in his liberty.

The motion for rehearing is denied. The application is dismissed.

It is so ordered.

1 . All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

2 . He also cites Ex parte McClain, 623 S.W.2d 140 (Tex.Cr.App.1981) and Ex parte Pousson, 599 S.W.2d 820 (Tex.Cr.App.1980); to them we add the recent decision in Ex Parte Oliver, 703 S.W.2d 205 (Tex.Cr.App.1986). However, while the opinion in Oliver, supra, fails to mention it, the record clearly reveals that at the time he filed and when the Court ruled, the applicant there was then confined in the Texas Department of Corrections. Applicants in Ex parte McClain and Ex parte Pousson were similarly situated. Since they support the proposition that confinement is a prerequisite to an application for postconviction relief under Article 11.07, none of the three cases gives strength to the opinion in Ex parte Ormsby, supra.

3 . Original emphasis by Commissioner Green.

4 . Applicant in the case cited, Ex parte Langston, 510 S.W.2d 603 and 511 S.W.2d 936 (Tex.Cr. App.1974), had discharged his sentence imposed after revocation of probation, but was then confined in TDC on a subsequent conviction. Finding the conviction void for lack of counsel at revocation, the Court granted the writ "for the purpose of securing him against further legal consequences arising from the void conviction." 511 S.W.2d at 937.

5 .In every case cited in Ormsby, at 131, for its statement that "mootness cannot prohibit a collateral attack if prior discharged convictions may have collateral consequences to a criminal defendant” — from Ex parte Burt, supra, to Ex parte Sewell, 606 S.W.2d 924 (Tex.Cr.App.1980) —the Court pointed out in one way or another that the applicant was then confined under a felony conviction.

6 . See and compare relevant provisions outlined ante at p. 351.

7 . In his concurring opinion Judge Odom did not suggest otherwise; indeed, in note 1 he makes the point that applicant is confined under another conviction.

8 . When It is boiled down the dissenting opinion would have this Court assert its original jurisdiction pursuant to Article 11.07, § 2, because the statute mandates that the writ "must be made returnable to [this Court],” id., § 2(a), and it "shall issue by operation of law,” id., § 2(b). Pp. 373-374. However, dictates of §§ 2(c) and (d) that the issue is "the legality of the applicant’s confinement,” and the prescription in § 3 that this Court "enter its judgment remanding the prisoner to custody or ordering his release” cannot be lightly dismissed as an “unfortunate” "choice of terminology” on the part of the Legislature, as Judge Teague characterizes them. Id., at 374, n. 33 and accompanying text. The term "petitioner’s confinement under the felony conviction” was introduced in 1965, but germane terminology in § 3 has been constant, and Iegis-lative intent and purpose in declaring the procedure "exclusive” and rendering any other proceeding "void and of no force and effect in discharging the prisoner" have been clear, since the original enactment in 1943. Judge Teague excerpts only a portion of its emergency clause in his note 32; he omitted the more relevant part, viz: “the necessity existing for prompt and adequate relief for deserving petitioners as well as the rights of the state in such cases [arising after final conviction].” Acts 1943, 48th Leg., Ch. 233, p. 354, § 2. Today, we continue to give effect to the legislative intent and purpose that an applicant for relief under Article 11.07, §§ 2 and 3 must be suffering collateral legal consequences of a final felony conviction while in confinement in. order for this Court to grant relief.