Texas Stamp


PD-0183-21 04/21/2021

“The Fourteenth Court of Appeals misconstrued Article 44.01 of the Texas Code of Criminal Procedure and erred in concluding that the State does not have the right to appeal the trial court’s order granting relief in a habeas corpus proceeding brought under Article 11.09 of the Texas Code of Criminal Procedure when the trial court’s order functionally served to either grant a new trial or to dismiss the information—both of which would constitute an appealable order under Article 44.01(a).”

Garcia, who is not a citizen, pleaded guilty to separate misdemeanor thefts in 1998 and 2007. In 2019, he received notice from the Department of Homeland Security that he was subject to deportation as a result of the two thefts. He then filed an application for writ of habeas corpus pursuant to Tex. Code Crim. Proc. art. 11.09 alleging his 2007 plea was involuntary based on counsel’s failure to advise him of that fact. The trial court granted relief, and the State appealed.

The court of appeals dismissed the State’s appeal for lack of jurisdiction. The law explicitly provides for a State’s appeal from a grant of relief under Tex. Code Crim. Proc. art. 11.072, see Tex. Code Crim. Proc. art. 44.01(k), but there is no corresponding authorization for appeal from a grant of relief under Article 11.09. The court of appeals recognized the State may appeal when it would otherwise have the right to appeal, but found no applicable authorization. It rejected the State’s argument that the order was tantamount to the grant of a new trial, appealable under Article 44.01(a)(3), because 1) the trial court “vacated the conviction and ordered ‘applicant discharged and released without delay’” without ordering a new trial, and 2) the Legislature could have explicitly provided for appeal of 11.09 relief but did not.

The State points to the multiple Court of Criminal Appeals opinions explaining how it is the substantive relief rather than label that governs whether the State may appeal. It argues the addition of explicit authorization for appeal of other habeas relief does not change the analysis. Looking at the substance of the relief granted, the court of appeals was wrong for two reasons. First, despite the language used by the trial court (or the court of appeals’s interpretation of it), the order merely released appellant from the restraint created by his plea; it did not discharge him from any potential liability. Returning the parties to their pre-plea position is the functional equivalent of a granted motion for new trial regardless of whether the trial court said so. To the extent the court of appeals treated the order like a dismissal, it was wrong. Second, and alternatively, if Garcia’s charges had been dismissed, the State was permitted to appeal the order under Article 44.01(a)(1).

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