by Matthew Clarke

The Court of Criminal Appeals of Texas held that defendants charged with fine-only Class C misdemeanors who have posted appeal bonds to perfect their de novo appeals are “restrained” within the meaning of Texas’s habeas corpus statutes and therefore may seek pretrial habeas relief.

Background

Michael Kleinman and his business, Auspro Enterprises, L.P., (“Defendants”) were charged in separate complaints with 15 instances of operating a “head shop” in violation of the City of Cedar Park Code of Ordinances, §§ 11.01.032 and 11.02.064, fine-only Class C misdemeanor offenses. They were convicted in municipal court and timely appealed, seeking trial de novo in the Williamson County Court at Law No. 5, and were required by statute to post appeal bonds totaling $64,881.72.

They then filed pretrial applications for writs of habeas corpus in the county court at law challenging the city ordinances as unconstitutionally vague. The county court at law concluded that Defendants were restrained in their liberty by virtue of the cash appeal bonds for their pending criminal charges but denied relief on the merits of their constitutional challenges. Defendants then pursued interlocutory appeal.

The court of appeals affirmed the denial but did not reach the merits of Defendants’ constitutional arguments. Instead, it concluded “that pretrial habeas relief is not available to applicants who have been charged with a fine-only offense and are not in custody or have not been released from custody on bond.” The court reasoned that the potential for re-arrest under the appeal bonds was too speculative to constitute a restraint sufficient to justify habeas relief.

The Court of Criminal Appeals granted Defendants’ petitions for discretionary review.

Analysis

The Court stated that the issue to be resolved is “whether Defendants in this case have ‘in any manner’ suffered restraint so as to justify allowing them to proceed with their pretrial habeas corpus review.” It rejected the court of appeals’ position that “the restraint that gives rise to habeas corpus relief must be more than mere restraint – that it must be sufficient restraint.” (Emphasis in original)

It began the analysis by noting that habeas relief from restraint is controlled by four statutes found in Chapter 11 of the Texas Code of Criminal Procedure. Article 11.01 states that the habeas remedy is available “for the benefit of applicants who are ‘restrained in [their] liberty.’” Article 11.64 provides that the habeas remedy applies to all persons who are “in any manner restrained in their personal liberty.” Article 11.23 specifies that the writ “is intended to be applicable to all such cases of … restraint, where there is no lawful right in the person exercising the power, or where, though the power in fact exists, it is exercised in a manner or degree not sanctioned by law.” Most tellingly, Article 11.22 defines “restraint” as “the kind of control which one person exercises over another, not to confine him within certain limits, but to subject him to the general authority and power of the person claiming such right.”

The Court determined that these four statutes, working together, do not support the concept of a threshold of “sufficient restraint” but rather clearly state that habeas corpus is available when there is any restraint. This means “any character or kind of restraint that precludes the absolute and perfect freedom of action” is sufficient to authorize the seeking of habeas relief. Ex parte Snodgrass, 65 S.W. 1061 (Tex. Crim. App. 1901). The Court observed that Article 11.22’s definition of “restraint” is broad, both on its face and as judicially construed over the years. Additionally, Article 11.23 makes explicit that the writ “is intended to be applicable to all such cases of confinement and restraint,” not just those in which a reviewing court has concluded that the restraint is onerous enough to merit consideration. The Court noted that numerous cases throughout its history stood for the principle that habeas relief is not limited to cases of severe restraint but rather applied to cases where there is any restraint. Ex parte Guzman, 551 S.W.2d 387 (Tex. Crim. App. 1977).

The Court then firmly rejected the concept of “sufficient” restraint put forth by the court of appeals. It also rejected reliance on federal post-conviction habeas corpus case law to support the position that fine-only offenses cannot give rise to restraint for habeas purposes. The court of appeals had relied on federal cases construing 28 U.S.C. § 2254(a), which governs federal habeas review “pursuant to the judgment of a State court.” The Court explained that these federal cases construe what it means to say that a person is “in custody pursuant to a judgment of a State court” for purposes of federal review of final state court convictions – not the word “restraint” in Texas’ state statutory habeas corpus scheme, which carries its own explicit definition and history of judicial construction.

The Court observed that two critical distinctions must be kept in mind when considering federal cases. First, they construe the scope of the word “custody” for purposes of federal review of final state court judgments, not the word “restraint” in the state statutory habeas corpus scheme. Second, § 2254(a) pertains to post-judgment habeas corpus petitions in federal courts seeking relief from final state convictions, not pretrial habeas applications filed in state courts. While the United States Supreme Court has construed “custody” broadly to include parole and release on personal recognizance bonds, see Jones v. Cunningham, 371 U.S. 236 (1963); Hensley v. Municipal Court, 411 U.S. 345 (1973), it has also limited constructive custody, ruling that collateral consequences of a conviction “are not themselves sufficient to render an individual ‘in custody’ for the purposes of a habeas attack upon it.” Maleng v. Cook, 490 U.S. 488 (1989).

In contrast, the Court explained that Texas has construed the word “restraint” for purposes of Chapter 11 more expansively. Texas case law has long recognized, in both felony and misdemeanor cases, that the collateral consequences of a conviction may operate as a restraint of liberty for purposes of Chapter 11. The Court noted that Texas statutes contemplate entertaining habeas writ applications for “all such cases of … restraint,” applying Chapter 11 “to all cases of habeas corpus for the enlargement of persons … in any manner restrained in their personal liberty.” Article 11.64. Consequently, the Texas Court of Criminal Appeals has found matters such as the use of a felony conviction for later enhancement of punishment or the onus of sex-offender registration sufficient to justify post-conviction relief even for applicants who have completed their sentences, the Court explained. Ex parte Ormsby, 676 S.W.2d 130 (Tex. Crim. App. 1984).

The Court also distinguished Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007), which the court of appeals had cited for the proposition that fine-only offenses are excluded from liberty restraints. Lewis dealt with construing the state constitutional protection against double jeopardy found in Article I, Section 14 of the Texas Constitution. The Court explained that Lewis stands for the proposition that a person already convicted once of a fine-only misdemeanor may be tried a second time for that offense consistent with Article I, Section 14, even if that same person could not be tried a second time had he been acquitted. That does not necessarily mean that a fine does not satisfy Article 11.22’s definition of “restraint” for purposes of Article 11.23. The Court accused the court of appeals of mixing “constitutional apples … with statutory oranges.”

Importantly, the Court emphasized the critical distinction between pretrial and post-conviction contexts. The Court acknowledged that in a post-conviction context, if the only restraining circumstance an applicant could point to is the imposition of a fine with no attendant collateral consequences, the applicant might not be restrained even for purposes of Chapter 11 because such a post-conviction applicant could arguably avoid all constraints on liberty “simply by paying the fine.” But in a pretrial context, the Court explained, applicants are not simply faced with the prospect of having to pay a fine and nothing more. Unlike the post-conviction applicant who has completed his sentence and has only his fine to pay, applicants in pretrial proceedings remain under formal threat of prosecution and are under the duress of an appeal bond that assures their attendance at trial de novo at the risk of arrest and forfeiture of the bond, according to the Court.

Turning to the appellate bond specifically, the Court noted that Defendants were required by statute to post bonds totaling nearly $65,000. By statute, the terms of the appeal bond require Defendants to appear personally, “immediately … remaining at the court from day to day … to answer in the case.” Article 45A.203(e). The Court further noted that neither Article 11.09 nor Ex parte Schmidt, 109 S.W.3d 480 (Tex. Crim. App. 2003), holding that statutory county courts at law have the power to issue writs of habeas corpus when a person is restrained by an accusation or conviction of misdemeanor, exclude Class C misdemeanors from their scope.

The Court reasoned that the combination of three circumstances constituted restraint within the meaning of Chapter 11: (1) the complaints filed against Defendants, (2) their preliminary convictions in municipal court, and (3) the appeal bonds they posted to assure their presence for de novo proceedings in the county court at law. The Court determined that “at least in combination, these circumstances have accrued to cause Defendants to fall under ‘the kind of control which one person exercises over another … to subject [them] to the general authority and power’ of the State.” Thus, the Court ruled that Defendants are “subject … to the general power and authority” of the State and that these circumstances have at least combined to preclude Applicants’ “absolute and perfect freedom of action,” resulting in them being “presently restrained” and able to “proceed with their pretrial habeas corpus review.”

Conclusion

Accordingly, the Court reversed the judgment of the court of appeals and remanded the case for further proceedings not inconsistent with its opinion. See: In re Kleinman, 2025 Tex. Crim. App. LEXIS 491 (2025).   

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