Attempting to Get Relief in Travis County for OLS Cases

The Texas Court of Criminal Appeals decided Ex parte Curipoma, No. PD-0159-22 (Tex. Crim. App. June 26, 2024) (per curiam). That case comes out of the thousands of trespassing cases at or near the Texas border since Governor Abbott launched “Operation Lone Star” in 2021.

In the procedural history of this case, an OLS defendant was arrested and booked in Kinney County, where most of these cases are prosecuted. The defendant filed a writ of habeas corpus in Travis County, and not Kinney County. The Travis County District Attorney agreed with the relief requested in the writ, and the Travis County district court did as well. The case against Curipoma was dismissed. The Kinney County District Attorney, however, attempted to represent the state at the hearing on the writ and on appeal.

The Third Court of Appeals dismissed the appeal for lack of jurisdiction (which the Travis County District Attorney requested) because only the Travis County District Attorney can file an appeal from the denial of the writ in Travis County.

Pointing to its earlier case in In re Smith, 665 S.W.3d 449 (Tex. Crim. App. 2022), the Texas Court of Criminal Appeals sent the case back to the appellate court for reconsideration. In Smith, the Texas Court of Criminal Appeals granted a writ of prohibition filed by the Kinney County Attorney, which essentially told the Travis County District Court that it did not have jurisdiction to hear a writ of habeas corpus on a misdemeanor case that originated out of Kinney County. According to the Court, the statutes controlling habeas writs for misdemeanor cases only permit a writ to be filed in the county that is closest to the location of the offense.

So back in Curipoma, the dissent says that we understand and agree with Smith, and Smith shows you that the correct procedural approach would be a writ of prohibition or a writ of mandamus, but NOT an appeal. The appellate court does not have jurisdiction to do anything if an appeal is filed by the Kinney County Attorney (not the proper party) versus the Travis County District Attorney. But the majority instead sent the case back to the Third Court to determine what to do in light of Smith.

It’s important to understand why OLS defendants are so desperate to find a different venue from Kinney County. Over 4,000 people have been arrested. 84% of the cases wind up in Kinney County where the concept of a speedy trial does not exist. Hearings to enforce release before trial due to delay on the part of the government become so delayed that it defeats the point. Clients are offered time served and told they will have to sit in jail indefinitely to actual try their cases.

One example from the OLS response in Smith: “One of the writs involves an individual who was arrested on what appears to be a Class C misdemeanor criminal trespass complaint on October 14, 2021, who has now been in custody on a $1,500 bond for 147 days since his arrest with no formal charges ever having been filed against him. In that case, despite having requested appointed counsel on October 14, 2021, undersigned counsel was not appointed until March 3, 2022. On that same date, undersigned counsel filed an Article 17.151 writ and is currently awaiting the acceptance of that filing by the Kinney County District Clerk. Counsel is attempting to have that case heard prior to April 22, 2022, given the blatant and inexcusable disregard for Article 17.151 and the excessive and illegal detention.”

OLS makes a mockery out of the justice system in Texas. The Texas RioGrand Legal Aid (TRLA) does exceptional work pushing back against Governor Abbott and his Constitution-free-zones.