Concurrent Jurisdiction in Post-Conviction Misdemeanor Writs of Habeas Corpus

Advantageous for both defendant and state.

Written by Hank Wilkins

In April 2018, former criminal defense attorney Mark Benavides was convicted and sentenced to 80 years in prison for six counts of human trafficking and coercing his clients to have sex with him. Through the prosecution of the case, the state discovered evidence that Benavides coerced many (if not most) of his clients to have sexual contact with him by threatening to sabotage their criminal cases if they did not comply. Although Benavides was tried, convicted, and sentenced in several of those cases, there are still potentially other victims that are entitled to postconviction relief. While the majority of these victims had convictions out of the county courts at law, Benavides handled cases throughout all 23 district and county criminal courts in Bexar County. To date, nearly two dozen courts have been asked to consider and grant relief on the same postconviction claim—ineffective assistance of counsel based on the fact that Benavides was putting his own self-interest above the interests of his clients-turned-victims. These courts have different levels of availability, docket space, and experience in habeas. An important issue is how the parties can ensure justice for all of Benavides’ victims, given these factors. The Texas Code of Criminal Procedure does not directly address this unique circumstance—there is no system for joinder, class action, or any sort of mass litigation in post-conviction habeas. So what is the best practice when the parties are faced with multiple cases in multiple courts dealing with the same post-conviction issue?

Texas Code of Criminal Procedure, or CCP, Article 11 governs applications for writ of habeas corpus. A defendant convicted of a misdemeanor and sentenced to confinement1 who wishes to challenge the validity of their conviction may assume, and with good reason, that their application for writ of habeas corpus needs to be filed in the court that originally held jurisdiction over the case.2 And a defendant could be forgiven for that assumption, considering that the remainder of Chapter 11 emphasizes the convicting court as the original fact finder. However, such a post-conviction misdemeanor writ could be filed with the district court clerk if the applicant chooses to have a district court judge preside over their writ application. While felony post-conviction writs of habeas corpus must be litigated in the district court, misdemeanor post-conviction writs of habeas corpus can be filed in either the county or district court. This “jurisdictional flexibility” has benefits for the defense bar, the state, and the efficiency of court administration.

Generally speaking, under CCP Article 11.05, “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.”3 While the Legislature seemingly intended to grant this sort of broad jurisdiction to the courts, the Court of Criminal Appeals decided decades ago to not exercise this general grant of jurisdiction over misdemeanor cases. Instead, the Court of Criminal Appeals decided that both the county courts and the district courts have original concurrent jurisdiction over post-conviction writs of habeas corpus involving misdemeanors.4

In deciding that the county and district courts have concurrent original jurisdiction over misdemeanor writs, the Court of Criminal Appeals examined the language of Article 11.09, finding that Article 11.09 “is permissive, not mandatory, and is therefore merely advisory in nature.”5 The court held that “Article 11.09 is not sufficient to deprive the District Court of its jurisdiction to hear post-conviction habeas corpus petitions in cases involving misdemeanors.”6

History lessons aside, this leaves us in a situation where a criminal defendant convicted of a misdemeanor offense could file an application for writ of habeas corpus under Article 11.09 in either the county court where he was convicted or with the district court clerk, who will file it in the presiding district court. Article 11.09 creates some amount of “jurisdictional flexibility”—and a rare case where a criminal defendant has the power to choose where they want their case to be considered. This allows the defendant (now the applicant) and, if applicable, habeas counsel, to evaluate whether they would prefer a county court judge or a district court judge to assess the merits of the misdemeanor conviction writ application. The jurisdictional flexibility afforded under Article 11.09 may be especially advantageous if habeas counsel suspects or knows that the county court judge does not have a full understanding of habeas corpus jurisprudence or how habeas corpus proceedings are governed under CCP Article 11. Similarly, it may be advantageous if habeas counsel suspects or knows that the county court judge has personal animus toward the applicant or habeas counsel.

Additionally, it provides the state, specifically a conviction integrity unit, or CIU, with the ability to address potential habeas corpus issues in disposed-of misdemeanor cases in the district courts, rather than in the county courts. If the CIU believes a defendant has been wrongly convicted of a misdemeanor, the CIU can file a motion to have a defense attorney appointed (titled a “Motion and Order for Appointment of Counsel”) with either the county court where the case originated or with the district court clerk. If filed with the district court, the writ application will go to the district court presiding judge who is assigned at that time. Choosing to file with the district court clerk can be more efficient when the state files several motions and orders at the same time.

In practice, the procedure will vary based on the facts and circumstances, but one could imagine the issue most often occurring in a situation like this one: a claim of ineffective assistance of counsel that impacts most of or all of an attorney’s cases. Rather than filing motions and orders to appoint habeas counsel with each individual trial court, the motions and orders can be filed with the district court clerk and all handled by the presiding district court judge. This process is more likely to result in consistent rulings than if the motions for appointment of writ counsel had to be filed in each of the 23 individual trial courts.

Returning to Mark Benavides, the Bexar County CIU (the author was a member of the CIU from October 2021 through March 2023 and is currently assigned to the Felony Criminal Trial Division of the Bexar County DA’s Office) has been working to identify his victims. Motions for appointment of counsel were filed in the first of Benavides’ cases, and Anne Burnham and Stephanie Stevens from the St. Mary’s University School of Law Criminal Justice Clinic were appointed as attorneys of record for the Justice for the Victims of Mark Benavides project. As part of the project, the CIU has filed motions for appointment of counsel in almost three dozen cases, and clinic attorneys will be appointed as attorneys of record to each case to investigate post-conviction relief for Benavides’ former clients to determine whether postconviction habeas relief is available due to Benavides’ criminal actions. At this time, 70 confirmed victims have been identified, with more potential victims with cases to be reviewed.

Utilizing this concurrent jurisdiction is not going to get relief for these victims immediately, but it provides an efficient and consistent solution to the issue of how to potentially handle future post-conviction claims arising out of Benavides’ criminal actions. This concurrent jurisdiction allows the courts better judicial economy with these cases. It also provides the state, the defense, and (most importantly) these victims confidence that the system is doing everything it can to correct this injustice. TBJ

1. Article 11.072 establishes the procedures for an application for a writ of habeas corpus in a felony or misdemeanor case in which the applicant received community supervision: the application “must be filed with the clerk of the court in which community supervision was imposed.”
2. Tex. Crim. Proc. Code Ann. Article 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.”).
3. Tex. Crim. Proc. Code Ann. Article 11.05.
4. Ex Parte Phelper, 433 S.W.2d 897, 898 (Tex. Crim. App. 1968) (holding that the Court of Criminal Appeals will not exercise its original jurisdiction in habeas corpus attacks upon the validity of misdemeanor convictions because “… the county court, district court, or a judge of said court hav[e] jurisdiction to grant relief ”); see also Ex Parte Johnson, 561 S.W.2d 841, 842 (Tex. Crim. App. 1978) (holding that the Court of Criminal Appeals would not take original jurisdiction of a writ that was not contesting the validity of a felony conviction. “The county and district courts have original jurisdiction in habeas corpus proceedings when a petitioner attacks the validity of a misdemeanor conviction.”).
5. See State ex rel. Rodriguez v. Onion, 741 S.W.2d 433 (Tex. Crim. App. 1987).
6. Id; See also, Ex Parte Crosley, 548 S.W.2d 409 (Tex. Crim. App. 1977)(holding that “[b]oth county and district courts have original jurisdiction in habeas corpus proceedings when attacks are made upon the validity of misdemeanor convictions”); see also Von Kolb v. Koehler, 609 S.W.2d 654, 656 (Tex. Crim. App. 1980)(holding that “[b]oth the district and county court have original jurisdiction to issue the writ of habeas corpus even though the criminal proceeding under attack is a misdemeanor.”).

Headshot Hank WilkinsHANK WILKINS has been an assistant district attorney in the Bexar County District Attorney’s Office since 2020 and worked in the office’s Conviction Integrity Unit from October 2021 through March 2023. He is a graduate of the University of Texas at Austin and St. Mary’s University School of Law. He is a member of the Texas Bar College, and his work has been published in the Texas Prosecutor Journal.

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