in Re State of Texas Ex Rel. Brent Smith v. Honorable Jan Soifer

             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                     NO. WR-93,354-02

                                In re BRENT SMITH, Relator

                 ON APPLICATION FOR A WRIT OF PROHIBITION
                     AGAINST THE 345TH DISTRICT COURT
                             IN TRAVIS COUNTY

             KELLER, P.J., delivered the opinion of the Court in which HERVEY,
RICHARDSON, NEWELL, KEEL, WALKER, SLAUGHTER, AND MCCLURE, JJ., joined.
YEARY, J., concurred.

                                          OPINION

       A number of defendants in misdemeanor cases arising in Kinney County have filed habeas

applications in a district court in Travis County (the District Court). The District Court has

permitted those applications to remain pending after granting relief on one of them. Relator, the

Kinney County Attorney, seeks to prohibit the District Court from considering or resolving the

remaining applications. Because a district court in Travis County is not a local court for these

misdemeanor cases arising out of Kinney County, the District Court is required to refrain from

resolving the merits in these habeas cases. Consequently, we hold that Relator is entitled to the

issuance of a writ of prohibition.
                                                                                        SMITH — 2

                                        I. BACKGROUND

       Cases arising from Governor Abbot’s “Operation Lone Star” have resulted in thousands of

misdemeanor arrests in Kinney County. Texas Rio Grande Legal Aid (representing the real parties

in interest) claims that 2,722 of these cases were charged in Kinney County. Hundreds of these

arrestees have filed habeas applications with a district court in Travis County challenging their

detentions. One of those arrestees has obtained relief from the District Court.1 In that action, the

District Court refused to allow the Kinney County Attorney to represent the State and designated the

Travis County District Attorney (TCDA) as the State’s representative.2 The TCDA recommended

that relief be granted to the habeas applicant.3 The cases of 438 other arrestees, the real parties in

interest, represented by Texas Rio Grande Legal Aid, are still pending. The real parties in interest

assert that 73 of the 438 habeas applicants have no charging instrument pending against them. They

claim that all 438 have been released from custody and are awaiting arraignment or pretrial hearings.

       Relator, the Kinney County Attorney, contends in an application for a writ of prohibition that

a district court in Travis County has no authority to decide the merits of a habeas action for an

offense prosecuted in a different county.4 As amicus curiae, the State Prosecuting Attorney contends

that the District Court lacked jurisdiction because the habeas applicants should have availed


       1
           See State v. Curipoma, 

, 77 (Tex. App.—Austin 2022, pet. granted).
       2
           

       3
           

       4
          Relator also requests mandamus relief but has failed to satisfy the requirement that he first
seek relief from a court of appeals. See Padilla v. McDaniel, 

 (Tex. Crim. App.
2003). That requirement does not apply to the prohibition relief Relator is seeking because only this
Court can grant such relief. In re State ex rel. Best, 

, 599 & n.3 (Tex. Crim. App.
2021).
                                                                                        SMITH — 3

themselves of the remedy provided by Article 11.09, which provides for an application to a local

county court in a misdemeanor case.

       The real parties in interest contend that they are “restrained” but not “confined,” so that

Article 11.09 is not an available remedy. Alternatively, they contend that Article 11.09 is not an

exclusive remedy. They further contend that, regardless of whether Article 11.09 is available, no

statute precludes the District Court from exercising jurisdiction, and they argue that Article 11.06

of the Code of Criminal Procedure permits it. The TCDA agrees with the real parties in interest but

also claims that we lack jurisdiction and that Relator has failed to preserve his complaint.5

                                           II. ANALYSIS

                                 A. Jurisdiction and Preservation

       The TCDA claims that we lack jurisdiction because no writs of habeas corpus have yet issued

in the underlying habeas proceedings and that any ruling by us would be an advisory opinion.

Prohibition can issue “only to prevent the threatened commission of a future act, and not to undo an

act performed,” and it cannot be used “to review an act which has already been performed, or to

annul or correct proceedings already terminated. ”6 Prohibition is necessarily directed at anticipated

future action. The proceedings at issue are currently pending before the District Court. That court

could have dismissed all of these proceedings on the basis that they involve offenses alleged to have

occurred in a different, non-adjacent county, but it did not do so. In fact, the District Court has


       5
          We ordered the judge of the District Court to respond and directed it “not to take any action
on any pending cases on any pending habeas applications where the underlying offense occurred in
Kinney County.” The District Court acknowledged our order, said it had not taken any action since
the order issued, and said that it would continue to comply with the direction not to take any action
until further order from our Court.
       6
           State ex rel. Millsap v. Lozano, 

, 482 n.19 (Tex. Crim. App. 1985).
                                                                                            SMITH — 4

already granted habeas relief in a case arising out of Kinney County, and in doing so refused to allow

the Kinney County Attorney to represent the State. By granting relief to one of the Kinney County

applicants, the District Court has signaled its belief that it is proper for it to resolve cases arising out

of Kinney County.

        The TCDA further claims that, because the various applicants have raised facial and as-

applied challenges to the Operation Lone Star enforcement regime, the circumstances facing each

applicant may differ. The TCDA contends that “it was individually evaluating, and intended to

separately respond to each of the underlying habeas applications at issue to determine whether relief

is appropriate.” But Relator’s position is that none of these applications should be resolved in Travis

County because of an element common to all of them—that they arose from offenses committed in

Kinney County. If the Relator’s position is correct, then piecemeal resolution of these cases in

Travis County would be improper. We conclude that our prohibition jurisdiction has been invoked.

        The TCDA claims that Relator has failed to preserve his complaint because he has not given

the District Court the opportunity to rule on his complaint. Relying upon a mandamus case from the

Texas Supreme Court,7 the TCDA argues that a relator must make a predicate request for relief from

the respondent before resorting to mandamus from a higher court. Assuming, without deciding, that

a predicate-request requirement imposed by our sister court in mandamus cases applies to a

prohibition action before us, we nevertheless find the TCDA’s argument unavailing.

        The TCDA acknowledges that there are exceptions to the predicate-request requirement but

argues that none have been shown to apply here. We disagree. The Supreme Court has relaxed the

predicate when the circumstances confirm that “the request would have been futile and the refusal


        7
            In re Coppola, 

 (Tex. 2017).
                                                                                         SMITH — 5

little more than a formality.”8 The District Court has already granted relief on a Kinney County case,

and in doing so, refused to allow the Kinney County Attorney to represent the State. It is difficult

to see how the Kinney County Attorney can even make a predicate request, given the earlier holding

precluding him from representing the State in a habeas action filed in Travis County. Even if that

hurdle could be surmounted, it appears to us to be a foregone conclusion that the District Court will

continue to decide the Kinney County cases absent our intervention.

                                    B. Prohibition Requirements

        Prohibition relief can be obtained only if the relator has a clear right to the relief sought and

no other adequate legal remedy.9 Even when a legal remedy is available, it can be “so uncertain,

tedious, burdensome, slow, inconvenient, inappropriate, or ineffective as to be deemed inadequate.”10

        With respect to whether a clear right to relief has been shown, we have said, “Even when the

facts are undisputed, the extraordinary mechanism of a writ of prohibition or mandamus will not lie

to resolve a hotly contested unsettled question of law.”11 But a ministerial duty, and therefore a clear

right to relief, can sometimes appear in cases of first impression.12 An unambiguous statute can by

itself create a ministerial duty, but a ministerial duty can also be found “when ‘the combined weight



        8
             In re Perritt, 

 (Tex. 1999).
        9
             In re McCann, 

 (Tex. Crim. App. 2013).
        10
        In re State ex rel. Wice v. Fifth Judicial Dist. Court of Appeals, 

, 194 (Tex.
Crim. App. 2018).
        11
          Simon v. Levario, 

 (Tex. Crim. App. 2009) (internal quotation marks
and brackets omitted). See also In re Medina, 

 (Tex. Crim. App. 2015) (“A writ
of prohibition is not the proper vehicle to settle unsettled law.”).
        12
             In re State ex rel. Ogg, 

, 363 (Tex. Crim. App. 2021).
                                                                                         SMITH — 6

of our precedents clearly establishes’ the proposition of law on which relief is predicated.”13 The

weight-of-precedent finding of a ministerial duty can occur when a lower court’s action flies in the

face of legal principles that are rightly characterized as foundational, being basic to the system and

longstanding.14

                                 C. No Adequate Remedy At Law

        The only remedy at law would be an appeal, if relief is granted. It is unclear at this juncture

whether the Kinney County Attorney could even avail himself of that remedy if the trial court refuses

to permit him to represent the State.15 Even assuming that appeal is available, the Kinney County

Attorney would have to wait for the District Court to resolve each case and then appeal it.

“[P]otential review at a later time is not always or automatically an adequate remedy.”16 The later

remedy of appeal is generally inadequate when the issue before us implicates the ability of a trial

court to consider the case at all.17 That is true here, where the question is whether a district court in

Travis County can even review claims made in a case arising in Kinney County. Moreover, delaying

review of this issue until appeal could conceivably result in the piecemeal review of hundreds of


        13
             

        14
            See id. at 365 (self-evident that a statute allowing the modification of procedures in an
emergency cannot be used to override basic jurisdictional principles or a principle as established as
the right to a jury trial).
        15
             See Curipoma, 652 S.W.3d at 80 (dismissing Kinney County Attorney’s appeal).
        16
          Greenwell v. Court of Appeals for the Thirteenth Judicial Dist., 

(Tex. Crim. App. 2005).
        17
          See 

 at 649 (citing, in support of its mandamus holding, the analogous situation of
certain double-jeopardy claims raised in pretrial habeas where the remedy of appeal after trial is
inadequate because protection against double jeopardy required review before jeopardy exposure
occurs).
                                                                                         SMITH — 7

cases that the district court should not be considering due to the location in which these cases arose.

Even if the Kinney County Attorney’s remedy can be said to be “certain,” it is tedious, burdensome,

slow, inconvenient, inappropriate, and to some degree ineffective in affording the relief sought. We

conclude that Relator does not have an adequate remedy at law.

                                      D. Clear Right to Relief

                              1. Local Resolution of Claims Required

        Assuming the truth of the factual assertions of the real parties in interest and their legal

assertion that they are not “confined,” the real parties in interest have no avenue for relief under the

statutes that authorize habeas applications for specific types of cases. None of these habeas actions

involve a final felony conviction, a conviction in which the death penalty was assessed, a case in

which probation was imposed, or a felony case after indictment.18 And assuming the real parties in

interest are correct that they are merely “restrained” rather than “confined,” then they cannot obtain

relief under Article 11.09, which applies in misdemeanor cases but only to “confined” individuals.19

Under these assumptions, the only avenue for relief available to the real parties in interest is an

original habeas action under Article 11.05, also known as a “Constitutional writ.”20

        Article 11.05 provides:


        18
             See TEX. CODE CRIM. PROC. arts. 11.07, 11.071, 11.072, 11.08.
        19
          See 

 art. 11.09 (“If a person is confined on a charge of misdemeanor, he may apply to
the county judge of the county in which the misdemeanor is charged to have been committed, or if
there be no county judge in said county, then to the county judge whose residence is nearest to the
courthouse of the county in which the applicant is held in custody.”) (emphasis added).
        20
         Ex parte Valdez, 

 (Tex. Crim. App. 2016) (“A habeas application that
is not governed by one of the provisions applying to specific types of judgments, orders, or
proceedings is often referred to as a ‘Constitutional writ’ or an ‘Article 11.05 writ.’”); TEX. CODE
CRIM. PROC. art. 11.05.
                                                                                         SMITH — 8

        The Court of Criminal Appeals, the District Courts, the County Courts, or any Judge
        of said Courts, have power to issue the writ of habeas corpus; and it is their duty,
        upon proper motion, to grant the writ under the rules prescribed by law.21

        Back in 1885, our predecessor court recognized that “one of the cardinal principles of our

system of government” was “to localize the administration of the law,—to try causes in the county,

and before the court, having the primary jurisdiction thereof.”22 We did not question the jurisdiction

of our Court to resolve a habeas case, even though the applicant had not applied for habeas relief

“with the local court or judge in the first instance,” but we held that we had discretion to refuse the

writ in such cases “and that it ought to be refused in all cases where no valid reason is shown why

the local court or judge was not applied to.”23 Accordingly, as early as 1885, we indicated that

abstention from considering a habeas application was the appropriate course of action for our Court

when the habeas applicant had not applied to the local court for relief.

        In Valdez, we reiterated that longstanding rule, holding that our Court would abstain from

considering an original habeas writ under Article 11.05 absent extraordinary circumstances.24 We

further held that, to meet a showing of extraordinary circumstances sufficient to justify our Court

considering a writ, a habeas applicant ordinarily “must first seek appropriate relief at the appropriate

trial-level court.”25 In addressing what was a postconviction writ, we said that “the court of




        21
             TEX. CODE CRIM. PROC. art. 11.05.
        22
             Ex parte Lynn, 

 (1885) (emphasis in original).
        23
             

 (emphasis added).
        24
             

.
        25
             

.
                                                                                           SMITH — 9

conviction is ordinarily the appropriate court in which to first seek relief.”26 But as Lynn explained,

the principle that the local court should first be resorted to was not limited to the post-conviction

setting:

           Or, in cases like the one before us, where indictment has not been presented, we
           would be compelled to have the applicant and witnesses brought before us regardless
           of distance and expense, in the most trivial case of misdemeanor, or assemble our
           court in some other county, to hear the case. The proposition is ridiculous, and is
           contrary to the intent of the statute, and to the adjudications of courts upon the
           question.27

           In several habeas statutes, the legislature has expressed a strong interest in local resolution

of habeas matters by imposing a geographic restriction on a trial-level court’s ability to issue a writ

or to decide the merits of a habeas application.28 Lynn cited some of the predecessor provisions to

these current statutes and remarked that they “clearly indicate that the application for the writ should,

in the first instance, be made to the local judge or court competent to grant the same, if there be such

judge or court, and if there be none such, then to the nearest judge or court competent to grant the




           26
           

 See also Ex parte Rodriguez, 

, 

(1960) (“[I]t has been the uniform practice of this court for many years to require that resort be first
had to application for habeas corpus to the judge of the trial court or other county court, county court
at law or district judge of the county for relief.”); Ex parte Fitzpatrick, 

, 

 (1959) (“No reason appears why a district judge in Potter or Randall County cannot hear
the matter and grant such relief as relator may show himself entitled to.”).
           27
          

. The statute referred to was the statute involving persons confined
on a charge of misdemeanor. 

.
           28
           TEX. CODE CRIM. PROC. arts. 11.07, § 2 (“in the county where the offense has been
committed”), 11.08 (“to the judge of the court in which he is indicted” or in some situations the
“nearest” judge to the courthouse of indictment), 11.09 (“to the county judge of the county in which
the misdemeanor is charged to have been committed” or in some situations the “nearest” judge to
the relevant courthouse), 11.10 (“in the county where the offense is charged in the indictment or
information”), 11.16 (“within his [the judge’s] district or county”).
                                                                                      SMITH — 10

same.”29

       Although the real parties in interest have not sought habeas relief with this Court, the

abstention concerns articulated in Lynn and Valdez with respect to our Court apply with even greater

force to a trial-level court that does not have jurisdiction over the geographic location in which the

case arose. Our court has jurisdiction over the entire state, and thus at least some interest in habeas

actions arising anywhere in Texas. The same cannot be said of a trial court of a different geographic

location than the one in which the case arose.

       Assuming, without deciding, that a trial court would even have jurisdiction to resolve the

merits of an Article 11.05 action for an offense arising outside the court’s geographic borders, the

circumstances permitting that jurisdiction to be exercised would be rare.            Perhaps unusual

circumstances—such as the long-term unavailability or serious backlog of courts in the county of

the charges—would permit a merits review in an adjacent county.30 Maybe a truly catastrophic event

that made a court in a non-adjacent county the nearest court capable of doing business would permit

that court, during the pendency of the crisis, to handle such habeas applications from the non-

adjacent county. And a habeas application might be appropriate in a non-local court in a post-

charging-instrument situation if venue has been transferred to that court. But absent these kinds of

unusual circumstances or specific statutory authority, a trial court should never consider the merits

of a habeas application for an offense arising outside its geographic boundaries, even assuming it had



       29
            

.
       30
            Articles 11.08 and 11.09 contemplate certain circumstances in which a court in a county
“nearest” the local court can issue the writ, see supra at n.28, but even then, the writ under those
circumstances must be made returnable in the county of the local court. See TEX. CODE CRIM. PROC.
art. 11.10.
                                                                                       SMITH — 11

jurisdiction to do so.

        The real parties in interest cite State ex rel. Rodriguez v. Onion for the proposition that

Article 11.09 is “permissive, not mandatory, and is therefore merely advisory in nature.”31 In Onion,

the Court held that a person confined on a misdemeanor did not have to employ Article 11.09, but

could employ Article 11.05 and file with a district court.32 The issue in that case, however, was

simply whether a misdemeanor habeas applicant could have his claim considered in district court

instead of county court. The Court did not suggest that consideration by a court in a different county

would be permissible.33

        The real parties in interest also cite cases suggesting that this Court has approved of district

courts issuing pretrial habeas writs in distant counties. But issuance of the writ is a preliminary

question separate from deciding the merits, and those same cases indicate that a distant court would

err to decide the merits.34 At best, these cases would support a conclusion that a distant court could


        31
             

 (Tex. Crim. App. 1987).
        32
             

        33
           See 

 at passim. A district court will sometimes have occasion to impose a conviction
and sentence for a misdemeanor offense within its geographic location. See TEX. CODE CRIM. PROC.
art. 4.06. This at least arguably gives a district court more authority over a misdemeanor case within
its geographic area than would inhere in a geographically distant court. Even so, abstention concerns
indicated in Valdez might still be applicable. We need not decide that issue here.
        34
           See e.g. Ex parte Rubison, 

, 

 (1960) (A
judge in Dallas County “granted the application for habeas corpus” but upon learning the defendant
was under indictment in Ector County, “it became his duty . . . to make the writ returnable to Ector
County.”); Stakes v. Rogers, 

, 

 (1942) (“duty of the judge
granting the writ, upon proper showing and request, to make same returnable to the judge of the
county where the offense covered by the indictment was committed”); Ex parte Overcash, 

, 

 (1911) (“[T]he writ was properly granted, but the case was
improperly tried in Jones County, and . . . the writ should have been made returnable to
Throckmorton County before the district judge of the district in which Throckmorton County is
                                                                                      SMITH — 12

issue the writ but would then have to transfer the case to a local court for a merits determination.

                                 3. Article 11.06 Does Not Apply

       The real parties in interest claim that the habeas applications can be considered under Article

11.06. Article 11.06 provides: “Before indictment found, the writ may be made returnable to any

county in the State.”35 The real parties in interest argue that, because there is no indictment in any

of these cases, the cases qualify as “before indictment found,” thus authorizing the consideration of

the habeas applications in any Texas county. That is incorrect.

       To say that a case has the status of being “before” indictment, it is not enough to simply say

that an indictment has not been returned. “Before,” when used in connection with an event, denotes

that the event is, in some sense, expected to occur.36 If no one expects an indictment to be returned

in a particular type of case, then it makes no sense to say that the proceedings are “before”

indictment.

        Indictments are required only in felony cases.37 Misdemeanor cases are usually prosecuted

by information.38 The real parties in interest concede that an information has been returned in 365




situated”). Moreover, there were indictments in the cited cases, so they are unlike the situation
before us. At any rate, the cited cases do not support resolving the merits of a habeas action in a
distant county.
       35
            TEX. CODE CRIM. PROC. art. 11.06.
       36
         See Before, WEBSTER’S NEW WORLD COLLEGIATE DICTIONARY (4th ed. 2000) (prep. entry
1) (“ahead of in time, space, order, rank, or importance”).
       37
          See TEX. CONST., Art. I, § 10 (“. . . and no person shall be held to answer for a criminal
offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine
or imprisonment, otherwise than in the penitentiary . . .”).
       38
            Studer v. State, 

 (Tex. Crim. App. 1990).
                                                                                         SMITH — 13

of their cases. An indictment is not expected in those cases because an information is on file. By

no stretch of the imagination can it be said that those cases are “before” an indictment that everyone

knows is not coming. But even for the remaining cases in which no information is pending, an

indictment is still not expected, because, as explained above, misdemeanor cases are usually

prosecuted by information. And because an indictment is not required, it would be speculative to

suggest that an indictment would be returned if a misdemeanor case were to go forward.39

        And other habeas statutes provide context clearly showing that Article 11.06 is intended to

apply only to felony cases. Section 2 of Article 11.07 says, “After indictment found in any felony

case, . . . and before conviction, the writ must be made returnable in the county where the offense

has been committed.”40 Article 11.08 says that, “after indictment on a charge of felony,” a confined

person “may apply to the judge of the court in which he is indicted.”41 Article 11.09, by contrast,


        39
             The real parties in interest contend that indictment of misdemeanors was a common
practice at the time the first predecessor to Art. 11.06 was enacted in 1856. Even if that assertion
is true, the significance of it is unclear. As we explain later, there are significant differences between
the 1856 habeas scheme and the current habeas scheme, which began with statutes enacted in 1965.
But the 1856 scheme itself differs from what came before it because 1856 appears to be the first time
the legislature passed a statute permitting informations for all misdemeanors. See TEX. CODE CRIM.
PROC. art. 391 (1856) (“All misdemeanors may be presented by either information or indictment.”).
Before that, a patchwork of statutes dictated whether particular misdemeanors could be charged by
information or had to be charged by indictment. For example, in the Needham v. State case cited by
the real parties in interest, the statute at issue said, “[A]ny person or persons who shall violate any
law or laws, requiring the payment of license taxes, shall be deemed guilty of a misdemeanor, and,
on indictment by the grand jury, and conviction by the petit jury, shall forfeit and pay such sum of
money as shall be double the amount of the license tax, which such person or persons, so offending,
were liable to pay.” 

 (1846) (emphasis added). Similarly, the “gaming” cases cited
by the real parties in interest involved statutes that condition the punishment for the misdemeanor
offense “on conviction . . . by indictment.” See TEX. STAT. arts. 441, 444, 563, 566, 1464, 1467,
1474, 1477 (Hartley 1850).
        40
             TEX. CODE CRIM. PROC. art. 11.07, § 2.
        41
             Id. art. 11.08.
                                                                                        SMITH — 14

applies to misdemeanor cases and contains no language regarding the return of an indictment.42 And

Article 11.10 refers to “the two preceding Articles”—applying to both felonies and

misdemeanors—and talks about the judge issuing a writ returnable “in the county where the offense

is charged in the indictment or information to have been committed.”43 These statutes support the

conclusion that the legislature contemplated an indictment only in connection with a felony case, and

that Article 11.06 does not apply in misdemeanor cases. Given the language of Article 11.06 and

the surrounding statutes, we conclude that Article 11.06 is unambiguously inapplicable to

misdemeanor cases.

        The real parties in interest claim that their construction of Article 11.06 is supported by the

historical context of its first predecessor, enacted in 1856. The language of the 1856 predecessor

statute, Article 123, is identical to the language of Article 11.06.44 The real parties in interest claim

that other provisions of the 1856 Code of Criminal Procedure make clear that restrictions on the

power to consider a habeas application depended on whether there was grand jury action and not on

whether the offense was a felony or a misdemeanor. In support of this claim, they cite Article 60 of

the 1856 Code, which conferred upon a district court the power to “issue” a habeas writ whether the

person detained was “within or out of his district” and “has been indicted or not.”45 They also cite



        42
             Id. art. 11.09.
        43
             Id. art. 11.10 (emphasis added).
        44
             See TEX. CODE CRIM. PROC. art. 123 (1856).
        45
           Id. art. 60. The power to “issue” the writ was a preliminary determination, as discussed
earlier, and what court could resolve the merits depended on other laws. See id. (The court to “make
such order on the return of the writ as the law and the facts of the case may require.”) (emphasis
added).
                                                                                       SMITH — 15

Article 124 of that Code, which provided, “After indictment found, the writ must be made returnable

in the county where the offence has been committed.”46 One could also look to Article 125, which

permitted a confined person, after indictment, to apply for habeas relief to the district court in the

district in which he was indicted, or if there was no judge in that district, to the nearest court.47

Finally, one could look to Article 126, which instructed a judge who received an application under

Article 125 to, among other things, make the writ returnable in the county where the offense was

charged.48 Considering these prior laws together would suggest that the predecessor to Article 11.06

(Article 123) was in fact intended to embrace all cases in which an indictment was lacking rather

than only those that could be said to be “before” an indictment.

        But even assuming the real parties in interest are correct in their construction of Article 123,

that does not mean the same construction applies to Article 11.06. A court must construe a statute

in accordance with the plain meaning of its text unless the text is ambiguous or the plain meaning

leads to absurd results that the legislature could not have possibly intended.49 That rule of




        46
             Id. art. 124 (adding at the end, “on account of which the applicant stands indicted”).
        47
            Id. art. 125 (“In all cases where a person is confined on a criminal accusation, and
indictment has been found against him, he may apply to the Judge of the District Court for the
district in which he is indicted, or if there be no Judge within the district, then to the Judge of any
district whose residence is nearest to the court-house of the county in which the applicant is held
in custody.”).
        48
            Id. art. 126 (“When application has been made to a Judge, under the circumstances set
forth in the preceding Article, it shall be his duty to appoint a time when he will examine the cause
of the applicant, and issue the writ returnable at that time, in the county where the offence is charged
in the indictment to have been committed. He shall also specify some place in the county where he
will hear the application.”).
        49
             Boykin v. State, 

 (Tex. Crim. App. 1991).
                                                                                      SMITH — 16

construction is a constitutional command.50 We have already held that the text of Article 11.06 is

unambiguous with respect to whether the statute encompasses misdemeanors. And there is nothing

absurd in declining to construe Article 11.06 to allow a misdemeanor habeas application to be

considered in any county in the state. The language of former provisions is an extratextual factor,51

which we are not allowed to consider absent ambiguity or absurd results in the text of the statute

before us.

       Article 11.06 should be considered in the context of the statutory scheme with which it was

enacted, but that statutory scheme was not the scheme enacted in 1856; it was the scheme enacted

in 1965. There are substantial differences between the two. The current statutory scheme has no

counterpart to former Article 60. Former Articles 124 through 126 are predecessors to current

statutes, but there is a material difference between the predecessors and the current statutes. Former

Articles 124 and 125 refer to the existence of an indictment but not to the case being a felony, while

the current statutes, Articles 11.07, § 1, and Article 11.08, refer to both the existence of an

indictment and the felony status of the case. Former Article 126 refers to Article 125 and mentions

“the indictment,”52 while current Article 11.10 refers to two preceding articles, one for felonies and

one for misdemeanors, and mentions both types of charging instruments (indictment or information).

The second article referred to by current Article 11.10 is Article 11.09, relating to misdemeanor

writs, which did not exist in the 1856 scheme.

       The real parties in interest also argue that their construction of Article 11.06 is required by


       50
             Id. at 785-86.
       51
             Williams v. State, 

, 445 (Tex. Crim. App. 2020).
       52
             See supra at n.48.
                                                                                      SMITH — 17

Article 11.04, because it requires constructions that are favorable to habeas applicants. Article 11.04

provides: “Every provision relating to the writ of habeas corpus shall be most favorably construed

in order to give effect to the remedy, and protect the rights of the person seeking relief under it.”53

This statute provides a favorable rule of construction for habeas applicants, but it cannot require us

to construe an unambiguous statute in a way that conflicts with its text.54 As we explained above,

to say that the misdemeanor cases here are “before” indictment is to construe the word “before” to

mean something other than what it plainly means. Article 11.04 does not require us to do that.

                                           3. Conclusion

       We conclude the district court in Travis County is required to refrain from resolving the

merits of habeas applications for misdemeanor cases arising in Kinney County. Consequently we

grant Relator’s application for a writ of prohibition.



Filed: December 7, 2022

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       53
            TEX. CODE CRIM. PROC. art. 11.04.
       54
         See Ex parte White, 

 (Tex. Crim. App. 2016) (Art. 11.04 cannot be
used to impose an “accuracy over finality” policy rationale contrary to unambiguous statutory
language and where other provisions allow for finality to prevail over accuracy in some
circumstances.).