Could a Texas district clerk charge civil filing fees for a preindictment habeas application or withhold the writ until fees were paid?

TX AG Opinion DM-0295: Could a clerk charge for a preindictment habeas filing?

Plain-English summary

The Texas Attorney General concluded that the district-clerk fees listed in Government Code section 51.317 did not apply to an application for a preindictment writ of habeas corpus. The statute descended from a general civil fee schedule that historically remained separate from provisions specifically governing fees in habeas cases.

A district clerk could charge a reasonable fee under Government Code section 51.319(5), because no other law set a fee for the service. The opinion said that a reasonable filing fee could not exceed the comparable $45 civil filing fee and that a reasonable fee for issuing the writ could not exceed the comparable $8 civil-process fee.

The clerk could not refuse to issue the writ merely because those fees had not been paid. Texas Rule of Civil Procedure 142 conditioned issuance of civil process on payment or a pauper's affidavit, but the Attorney General concluded that applying it to preindictment habeas would compromise the speed and effectiveness of the writ. The opinion also concluded that a sheriff or constable could not refuse service solely because the service fee had not been paid in advance.

Currency note

This opinion was issued in 1994. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 1994)

District clerks: Section 51.317 did not supply the fee for a preindictment habeas application. Section 51.319(5) permitted a reasonable fee, subject to the opinion's stated civil-fee ceilings.

People detained before indictment and their lawyers: Nonpayment could not be used to withhold the writ. The opinion treated prompt access to habeas review as controlling over a mechanical civil label.

Prosecutors and judges: The analysis separated the fee question from whether habeas should be classified as civil or criminal. The historical development of the fee statutes and the effectiveness of the remedy controlled the result.

Sheriffs and constables: The opinion's final footnote said they likewise could not refuse to serve the writ merely because a service fee had not been prepaid.

Common questions

Did the ordinary Texas district-court filing fee apply to a preindictment habeas application?
No. The opinion concluded that Government Code section 51.317 came from a general civil fee schedule that had never been broadened to include habeas proceedings.

Could the district clerk charge any fee?
Yes. Government Code section 51.319(5) allowed a reasonable fee for a legally authorized service when no other law set the amount.

How much could the clerk charge under the opinion?
The filing fee could be less than, but not more than, $45. The fee for issuing the writ could be less than, but not more than, $8. These are historical 1994 amounts and should not be treated as current fee limits.

Could a clerk delay the writ until payment?
No. The opinion concluded that Rule 142 did not apply to preindictment habeas because conditioning issuance on payment would impair the writ's speed and effectiveness.

Did the opinion decide whether habeas corpus was civil or criminal?
No single label controlled the result. The opinion reviewed decisions describing habeas as civil, neither civil nor criminal, a special proceeding, or a unique remedy, then focused on statutory history and whether a procedural rule would weaken the writ.

Background and statutory framework

Section 51.317 required a district clerk to collect listed fees when a "suit or action" was filed. The opinion traced that language to an 1897 statute that placed habeas fees in one section and general fees for suits between plaintiffs and defendants in another. Later law kept the habeas fee provisions in Code of Criminal Procedure article 1026 while the general civil schedule became Revised Civil Statutes article 3927 and then Government Code sections 51.317 and 51.318.

The Legislature repealed article 1026 in 1985, the same year it enacted section 51.317 as a nonsubstantive revision. The Attorney General found no evidence that this recodification expanded the general civil schedule to habeas proceedings.

Section 51.319(5), by contrast, authorized a reasonable charge for another service prescribed or authorized by law when no fee was otherwise set. The opinion used the comparable civil charges as legal ceilings, while recognizing that the exact reasonable amount was a fact question outside an attorney general opinion.

The opinion then considered whether Texas Rule of Civil Procedure 142 allowed a clerk to demand payment before issuing the writ. Decisions including Smith v. Bennett and Harris v. Nelson treated the effectiveness of habeas review as more important than attaching a civil label to the proceeding. Texas cases likewise emphasized speedy adjudication and protection from illegal restraint. On that basis, the opinion concluded that Rule 142 did not reach a preindictment habeas proceeding.

Citations

Statutes and rules:

• Tex. Gov't Code §§ 51.317, 51.318, 51.319(5)
• Tex. Code Crim. Proc. arts. 11.01, 11.04, former arts. 1018 and 1026
• Tex. R. Civ. P. 125-28, 131, 137-38, 142
• Tex. Const. art. XVI, § 61
• U.S. Const. art. I, § 9

Cases:

• Calvert v. Texas Pipe Line Co., 517 S.W.2d 777 (Tex. 1974)
• McCormick v. Sheppard, 86 S.W.2d 213 (Tex. 1935)
• In re Moy Chee Kee, 33 F. 377 (C.C.N.D. Cal. 1887)
• Ex parte Ramzy, 424 S.W.2d 220 (Tex. 1968)
• Ex parte Browder, 373 S.W.2d 256 (Tex. Crim. App. 1963)
• Curry v. Ater, 648 S.W.2d 10 (Tex. Crim. App. 1983)
• Collier v. Poe, 732 S.W.2d 332 (Tex. Crim. App. 1987)
• Smith v. Bennett, 365 U.S. 708 (1961)
• Harris v. Nelson, 394 U.S. 286 (1969)
• Arendt v. Carter, 210 S.W.2d 976 (Tex. 1948)
• State v. Patterson, 668 S.W.2d 462 (Tex. App.--Corpus Christi 1984, no writ)
• Merritt v. Harris County, 775 S.W.2d 17 (Tex. App.--Houston [14th Dist.] 1989, writ denied)

Related opinions:

• Tex. Att'y Gen. Ops. H-453 (1974); DM-26 (1991)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0295
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1994/dm0295.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

June 16, 1994

Honorable John Vance
Dallas County District Attorney
Frank Crowley Courts Building, LB 19
Dallas, Texas 75207-4313

Opinion No. DM-295

Re: Whether the district clerk filing fees provided for in section 51.317 of the
Government Code apply to the filing of an application for a preindictment writ of habeas
corpus, and a related question (RQ-618)

Dear Mr. Vance:

Your letter requesting an opinion asks, "[C]an the appropriate civil filing fee be
collected at the time of filing a preindictment Writ of Habeas Corpus?" According to
your letter, there is confusion among the counties on this question:

In some smaller counties, the preindictment writs of habeas corpus
filed by attorneys seeking release of their clients from jail while
awaiting grand jury proceedings or indictment have been treated as
civil matters, and the district clerks have been collecting civil filing
fees.

These clerks would claim that their authority for charging a filing fee is found in section
51.317 of the Government Code, which provides as follows:

(a) The district clerk shall collect at the time the suit or action is
filed the fees provided by Subsection (b) of this section for services

performed by the clerk.
(b) The fees are:
(1) for filing a suit, including an appeal from an inferior
court ........................................................................ $45

(2) for filing a cross-action, intervention, contempt action,
or motion for new trial ................................................ $15

(3) for issuing a subpoena, including one copy, when
requested at the time a suit or action is filed................... $4

(4) for issuing a citation or other writ or process not
otherwise provided for, including one copy, when
requested at the time a suit or action is filed................... $8

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(5) for issuing an additional copy of a process not other-
wise provided for, when requested at the time a suit
or action is filed ........................................................ $4

(6) for the records management and preservation fund.. $5.

You contend that a filing fee may not be charged under section 51.317 for a pre-
indictment habeas corpus proceeding because such a proceeding arises out of an arrest of
a person suspected of committing a crime and therefore is a criminal proceeding. Your
argument seems to be premised on the assumption that the statute applies only to civil
proceedings. Although section 51.317 does not contain the word civil and merely speaks
of a "suit" or a “suit or action," one of its statutory predecessors, article 3927, V.T.C.S.
(1966), repealed by Acts 1985, 69th Leg., ch. 480, § 26(1) at 2048, did provide, until it
was amended in 1969, that the fees were chargeable in "civil cases." Compare Acts 1957,
55th Leg., ch. 433, § 1, at 1293 (last amended version of article 3927 that referred to
“civil cases") with Acts 1969, 61st Leg., ch. 667, § 1, at 1970 (amendment to article 3927
that first omitted “civil cases"). We have found no evidence that the omission of this
phrase from the 1969 amendment¹ and subsequent amendments² and the nonsubstantive
codification of article 3927 as Government Code section 51.317³ were intended to change
the scope of the provision. We therefore agree with you that section 51.317 applies only
to a case, that is, a “suit or action,” of a civil nature.

We have found no authority, however, for your contention that a habeas corpus
challenge of a detention under criminal process is a criminal proceeding. We therefore
cannot agree with you that a preindictment writ of habeas corpus for that reason is not
subject to the filing-fee statute. On the other hand, the fact that a habeas corpus
proceeding is not a criminal proceeding does not require the conclusion by default that a

1 See Sen. Comm. on Judiciary, Bill Analysis, S.B. 255, 61st Leg. (1969) (no indication that
omission was intended to change scope of application).

2 See Acts 1979, 66th Leg., ch. 295, § 1, at 667 (amending article 3927; no mention of “civil
cases"); Acts 1977, 65th Leg., ch. 219, § 1, at 608 (same).

3 See Acts 1985, 69th Leg., ch. 480, § 1, at 1983 (recodifying article 3927 as sections 51.317 and
51.318 of Government Code), § 27, at 2049 (no substantive change intended).

4 State v. Kanapa, 778 S.W.2d 592 (Tex. App.—Houston [1st Dist.] 1989, no writ), does not
support a characterization of post-conviction habeas corpus as criminal in nature, although the court there
expressly held that the general rule that a habeas respondent cannot appeal from an adverse ruling is “no
longer applicable in criminal cases when the State would otherwise have the right to appeal." Id. at 593
(emphasis added). The court in Kanapa explained its holding as follows: “We find that by granting
appellee's requested relief, the trial court modified the previous judgment entered against appellee.
Therefore the State is entitled to appeal the trial court's order." Id. This passage clarifies that the court
was referring in the above quotation not to habeas corpus proceedings themselves as “criminal cases" but
rather to the prior criminal prosecutions that are affected by the habeas judgment in some way that is
appealable by the State under Texas Constitution article V, section 26, and Code of Criminal Procedure
article 44.01.

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such a proceeding is a civil "suit or action" within the scope of section 51.317. We must
consider further the legislative intent of section 51.317 to determine whether that
provision applies to habeas corpus. See Calvert v. Texas Pipe Line Co., 517 S.W.2d 777,
781 (Tex. 1974) ("The fundamental and dominant rule controlling the construction of a
statute is to ascertain if possible the intention of the Legislature expressed therein").

The language of section 51.317, even with the interpolation of the prior statutory
reference to “civil cases," is an indeterminate expression of legislative intention regarding

your question. The words action,⁵ case,⁶ civil,⁷ and suit⁸ are subject to varying

5 Black's Law Dictionary defines action in part as follows:

Term in its usual legal sense means a lawsuit brought in a court; a formal
complaint within the jurisdiction of a court of law.... The legal and formal
demand of one's right from another person or party made and insisted on in a
court of justice. An ordinary proceeding in a court of justice by which one party
prosecutes another for the enforcement or protection of a right, the redress or
prevention of a wrong, or the punishment of a public offense. . . .

Civil actions are such as lie in behalf of persons to enforce their rights or
obtain redress of wrongs in their relation to individuals. . . .

Criminal actions are such as are instituted by the sovereign power (i.e.

government), for the purpose of punishing or preventing offenses against
the public.

BLACK'S LAW DICTIONARY 28 (6th ed. 1990) (italics in original).

6 Black's Law Dictionary defines case in part as follows:

A general term for an action, cause, suit, or controversy, at law or in equity;
a question contested before a court of justice, an aggregate of facts which
furnishes occasion for the exercise of the jurisdiction of a court of justice. A
judicial proceeding for the determination of a controversy between parties
wherein rights are enforced or protected, or wrongs are prevented or redressed,;
any proceeding judicial in its nature.

Criminal act requiring investigation by police. . . .

The word “case” may include applications for divorce, applications for the
establishment of highways, applications for orders of support of relatives, and
other special proceedings unknown to the common law.

Id. at 215.

7 Black's Law Dictionary defines civil in part as follows:

Of or relating to the state or its citizenry. Relating to private rights and
remedies sought by civil actions as contrasted with criminal proceedings.

Id. at 244.

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interpretations. Fortunately, however, it is unnecessary for us to rely on textual
interpretation, for our research of the evolution of the fee statutes for habeas corpus and
"civil cases" has uncovered clear evidence that section 51.317 does not apply. to

preindictment habeas proceedings.

An 1897 predecessor to section 51.317 was part of a statute that also contained a
fee provision expressly applicable to habeas corpus. See Acts 1897, 25th Leg., 1st C.S.,

ch. 5, at 5. The statute provided in part as follows:

Section 1. ... [I]n all the counties in this State, where there
shall have been cast at the next preceding presidential election 3000
votes or over, the clerks of the district courts, district attorneys,
county attorneys, sheriffs and constables shall receive from the State
the following fees and compensation in felony cases, and no more:

Sec. 2. The clerks of the district court shall receive for each
felony case tried in such court by jury, whether the defendant be
convicted or acquitted, the sum of $8. For each transcript on appeal
or change of venue, 8 cents for each 100 words. For each felony
case finally disposed of without trial, or dismissed or nolle prosequi
entered, $8.... For entering judgment in habeas corpus cases, 80
cents; and for taking down testimony and preparing transcript in
habeas corpus cases, 8 cents for each 100 words; but the fees in
habeas corpus cases shall, in no event, exceed $8 in any one case.

Sec. 3. The district or county attorneys shall receive the
following fees:

3. For representing the State in each case of habeas corpus
   where the defendant is charged with felony, the sum of $16.

8 Black's Law Dictionary defines suit in part as follows:

A generic term, of comprehensive signification, referring to any proceeding
by one person or persons against another or others in a court of law in which
the plaintiff pursues, in such court, the remedy which the law affords him for the
redress of an injury or the enforcement of a right, whether at law or in
equity... It is, however, seldom applied to a criminal prosecution. And it was
formerly sometimes restricted to the designation of a proceeding in equity, to
distinguish such proceeding from an action at law.

Id. at 1434.

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Sec. 7. That in those counties where there shall have been cast
at the next preceding presidential election less than 3000 votes the
clerk of the district courts, district attorneys, county attorneys,
sheriffs and constables shall receive from the State the fees and
compensation in felony cases allowed under now existing laws, and
are not intended to be affected by the provisions of sections 1, 2, 3,
4, 5 and 6 of this act.

Sec. 22. The clerks of the district court shall receive for the
following services the following fees:

For copy of petition, including certificate and seal, each 100
words, 15 cents; provided, whenever in any suit a certified copy of
any petition or any other instrument is necessary in the district or
county court, it shall be lawful for the plaintiff or defendant to
prepare such true and correct copy thereof, and to submit the same
to the clerk of the district or county court, as the case may be, whose
duty it shall be to compare the same with the original instrument, and
if found to be correct he shall attach his certificate of true copy; for
such service he shall receive 50 cents for each certificate and seal,
and in addition thereto the sum of 10 cents per page, 700 words to
the page, for each page of said copy. Each writ of citation, 75 cents;
each copy of writ of citation, 25 cents; filing of each paper, 10 cents;
entering appearance of each party to suit, to be charged but once, 5
cents; each final judgment or decree, 75 cents; every other order,
judgment or decree, not exceeding 200 words, 25 cents; where the
order, judgment or decree, whether final or not, exceeds 200 words,
the additional fee for each 100 words in excess of 200 words shall
be 10 cents; making out and transmitting the records and
proceedings in a cause to an inferior court, for each 100 words, 15
cents; making transcript of the records and papers in any cause
upon appeal or writ of error, with certificate and seal, each 100
words, 10 cents....

Id. §§ 1-3, 22 (emphasis added), § 2 repealed by Acts 1985, 69th Leg., ch. 269, § 5(2)
at 1307, § 22 repealed by Acts 1901, 27th Leg., ch. 21, § 4, at 25. Section 2 of the 1897
statute thus regulated fees in felony prosecutions and habeas proceedings, and section 22
of the same statute generally regulated fees in “suits" between "plaintiff[s]" and
“defendants."

Comparison of the above-quoted sections 2 and 22 makes it obvious that the

legislature did not intend for the language of the latter section to apply to habeas corpus
proceedings, at least where the applicant is being detained under felony or misdemeanor

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charges.⁹ Section 2 expressly provided for fees for entry of judgment (80 cents) and
preparation of testimony and transcript (eight cents per 100 words) in habeas proceedings,
so the similar language in section 22 (75 cents for the first 200 words of the judgment and
10 cents per 100 words of transcript on appeal or writ of error) could not also apply. The
placement of the specific language regulating habeas corpus fees in the same statute with a
separate general section regulating civil fees that does not mention habeas corpus indicates
a deliberate omission to include habeas corpus within the application of the general
section.

The subsequent evolution of the provisions in sections 2 and 22 is devoid of any
evidence of a broadening of the general civil fee schedule to include habeas corpus. In
1901 the general fee provisions in section 22 were repealed, Acts 1901, 27th Leg., ch. 21,
§ 4, at 25, and were replaced by a district clerk fee schedule that was expressly applicable
to “civil cases," id. § 1. There is no suggestion in the 1901 statute that the scope of the
general fee provisions had been broadened to include habeas corpus proceedings. The
1901 fee schedule eventually was codified as article 3927 of the Revised Civil Statutes of
1925, see V.T.C.S. art. 3927 (1966), and then was repealed and recodified as Government
Code section 51.317, see Acts 1985, 69th Leg., ch. 480, sec. 1, § 51.317, at 1983, sec.
26(1) at 2048. Neither the codification of the fee schedule as article 3927 nor the
subsequent amendments to the article¹⁰ even intimate that the scope of the fee schedule
had been broadened to include habeas corpus proceedings.

Meanwhile, the habeas corpus fee language of section 2 eventually was codified in
article 1026 of the Code of Criminal Procedure of 1925, see Code Crim. Proc. art. 1026
(1979), where it remained, see Acts 1965, 59th Leg., ch. 722, § 1, art. 54.02, at 563
(saving article 1026 from repeal when 1965 Code of Criminal Procedure was enacted),
until it was repealed in 1985, see Acts 1985, 69th Leg., ch. 269, § 5(2) at 1307. Article
1026 retained language similar to that in section 2 of the 1897 statute, establishing fees for
entering judgment and preparing transcript "in habeas corpus cases." These fees, unlike

9 The language of section 2 of the 1897 statute might be construed as limiting district clerk
habeas fees to detentions under felony charges because section 1 of the statute referred to fees "in felony
cases" and section 3 limited district and county attorneys’ fees in habeas proceedings only to those “where
the defendant is charged with felony.” Case law disapproves such a construction, however. Section 2 of
the 1897 statute eventually was codified in article 1026 of the Code of Criminal Procedure (1979), which
continued to provide for fees for entering judgment and preparing transcript in habeas corpus proceedings
until it was repealed in 1985. See Acts 1985, 69th Leg., ch. 269, § 5(2) at 1307 (repealer of article 1026).
The Texas Commission of Appeals held in 1935 that the district clerk was entitled to these fees under
article 1026 regardless of whether the applicant had been charged with a felony or merely a misdemeanor.
McCormick v. Sheppard, 86 S.W.2d 213, 215 (Tex. 1935). The 1897 statute, then, authorized district
clerk fees under section 2 for habeas corpus proceedings arising from detentions under felony or
misdemeanor charges, but did not authorize any fees for habeas proceedings under section 22.

10 See Acts 1941, 47th Leg., ch. 387, § 1, at 641; Acts 1945, 49th Leg., ch. 368, § 3, at 662; Acts

1957, 55th Leg., ch. 433, § 1, at 1293; Acts 1969, 61st Leg., ch. 667, § 1, at 1970, Acts 1977, 65th Leg.,
ch. 219, § 1, at 608; Acts 1979, 66th Leg., ch. 295, § 1, at 667.

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those provided in the general district clerk fee schedule, were initially paid not by the
applicant/defendant but rather by the State; and the applicant/defendant was charged with
the fees only upon conviction. See Code Crim. Proc. art. 1018 (1979); see also Code
Crim. Proc. tit. 2 revisor’s note at 262-63 (Supp. 1994) (explaining that article 1018 was
impliedly repealed by V.T.C.S. article 3912e).

Thus, until 1985 the provisions for fees in habeas corpus cases remained
segregated from the general civil fee schedule. In that year the general fee schedule in
V.T.C.S. article 3927 was recodified as sections 51.317 and 51.318 of the Government
Code, see Acts 1985, 69th Leg., ch. 480, § 1, at 1983, with the express provision that no
substantive change was intended, id. § 27, at 2049. The substance of article 1026 of the
Code of Criminal Procedure (repealed 1985) was omitted from the nonsubstantive 1985
codification of title 2 of the Code of Criminal Procedure because V.T.C.S. article 3912e
prohibits payment of fees by the State or a county to any salaried district or county officer.
See Code Crim. Proc. tit. 2 foreword at 228 & revisor's note at 265 (Supp. 1994). Article
XVI, section 61, of the constitution requires district clerks, as "district officers," to be
compensated on a salary basis.

In sum, section 51.317 derives from an 1897 general fee section that did not apply
to the habeas corpus proceeding because the 1897 statute also contained a separate
section that specifically regulated habeas proceedings. There is no evidence in any
intermediate predecessor statute of an intention to broaden the general civil fee schedule
to include habeas corpus. Rather, the habeas fee provisions were kept segregated in
article 1026 of the Code of Criminal Procedure until that article was repealed in 1985, the
same year in which section 51.317 was enacted as a nonsubstantive revision of the district
clerk fee schedule. We therefore conclude that section 51.317 does not apply to a
preindictment habeas proceeding.

You also ask whether, if section 51.317 is inapplicable to a preindictment habeas
proceeding, a district clerk might charge a fee for services rendered in the proceeding
pursuant to section 51.319 of the Government Code. Section 51.319 provides, in

The district clerk shall collect the following fees for services
performed by the clerk:

(5) for performing any other service prescribed or authorized by
law for which no fee is set by law, a reasonable fee.

Because no other law sets a fee for the district clerk's services in a habeas corpus
proceeding, this provision authorizes the district clerk to charge a "reasonable" filing fee in

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such a proceeding.¹¹ Cf. Attorney General Opinion H-453 (1974) (statutory predecessor
of section 51.319 authorizes reasonable district clerk fees in condemnation proceedings).

Although what constitutes a “reasonable fee” is a fact question and therefore is
beyond the scope of an attorney general opinion, we believe that a habeas corpus fee that
exceeds the fee charged in civil cases in district court would be unreasonable as a matter
of law. Cf. Attorney General Opinion DM-26 (1991) at 3 (in district-court condemnation
proceedings maximum fee that will be deemed reasonable is same as fee statutorily
provided for county clerks in condemnation proceedings). Thus, a "reasonable fee" for
filing the application for habeas corpus may be less than but may not exceed $45, see
Gov't Code § 51.317(b)(1); and a “reasonable fee" for issuance of the writ may be less
than but may not exceed $8, id. § 51.317(b)(4). The fees for filing the application and
issuing the writ are chargeable when the application is filed and issuance of the writ is
requested. Id. § 51.317(a).

The fact that such fees are due upon filing and request for issuance does not mean,
however, that the clerk may refuse to issue the writ or any other process in a
preindictment habeas corpus proceeding for the reason that the fees have not been paid.
Although Texas Rule of Civil Procedure 142 requires payment of fees or the filing of a
pauper's affidavit before the clerk may issue process, that rule applies only to a "suit," see
Tex. R. Civ. P. 125, 127, 131, 137-38, or a “civil” matter, see Tex. R. Civ. P. 126, 128.
For the following reasons we believe that the writ of habeas corpus is not a kind of “suit”
or "civil" matter that the Texas Supreme Court intended to include under rule 142.

Black's Law Dictionary defines habeas corpus in part as follows:

Lat. (You have the body.) The name given to a variety of
writs (of which these were anciently the emphatic words),
having for their object to bring a party before a court or judge.
In common usage, and whenever these words are used alone,
they are usually understood to mean the habeas corpus ad
subjiciendum (see infra). ... The primary function of the writ is
to release from unlawful imprisonment.... The office of the
writ is not to determine prisoner's guilt or innocence, and only
issue which it presents is whether prisoner is restrained of his
liberty by due process. . . .

A form of collateral attack. An independent proceeding
instituted to determine whether a defendant is being unlawfully

11 Note that the federal court in In re Moy Chee Kee, 33 F. 377 (C.C.N.D. Cal. 1887), although
holding that no statutory civil case fees applied to habeas corpus proceedings because such proceedings
are sui generis, id. at 379, also held that the presiding court might fix a reasonable amount as costs for the
clerk's services in a habeas proceeding and suggested that the court refer to fees for similar services in the
fee-bill statute for guidance in the determination of a reasonable amount, id. at 380.

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deprived of his or her liberty. It is not an appropriate proceeding
for appeal-like review of discretionary decisions of a lower
court.

Habeas corpus ad subjiciendum .... A writ directed to the
person detaining another, and commanding him to produce the
body of the prisoner, or person detained. This is the most
common form of habeas corpus writ, the purpose of which is to
test the legality of the detention or imprisonment; not whether he
is guilty or innocent. This writ is guaranteed by U.S. Const. Art.
1 § 9, and by state constitutions. . . .

This is the well-known remedy in England and the United
States for deliverance from illegal confinement, called by Sir
William Blackstone the most celebrated writ in the English law,
and the great and efficacious writ in all manner of illegal
confinement.... The "great writ of liberty,” issuing at common
law out of courts of Chancery, King's Bench, Common Pleas,
and Exchequer.

BLACK'S LAW DICTIONARY 709-10. Habeas corpus ad subjiciendum thus is a
"proceeding" for a “writ," the purpose of which is a narrow one: to test the legality of a
detention or imprisonment. It is intended to be "efficacious."¹²

Article 11.01 of the Code of Criminal Procedure defines habeas corpus similarly,
as follows:

The writ of habeas corpus is the remedy to be used when any
person is restrained in his liberty. It is an order issued by a court or
judge of competent jurisdiction, directed to any one having a person
in his custody, or under his restraint, commanding him to produce
such person, at a time and place named in the writ, and show why he
is held in custody or under restraint.

Article 11.01 and the foregoing Black's definitions thus speak of habeas corpus in
terms of "writ," "remedy," and "order" but do not call it a “suit” or an "action." In fact,
there is no consensus on whether habeas corpus is a "suit" or an “action”:

Strictly speaking habeas corpus is not an action or a suit, but is a
summary remedy open to the person detained. However, in some
cases, or for some purposes, it is held to be an action or suit. Thus,

12 Article 11.04 of the Code of Criminal Procedure 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.”

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the proceedings in habeas corpus have been considered in the nature
of an action so as to entitle persons to costs under a statute providing
for costs in an action, although it is otherwise under other statutes.
In some jurisdictions it is classed as a special proceeding; in others it
is not considered as a special proceeding.

39 C.J.S. Habeas Corpus § 3, at 462 (1976) (footnotes omitted).

The sister high courts of this state have issued decisions illustrating the lack of
consensus on whether habeas corpus is a “suit.". An example of a case concluding that
habeas corpus is not a "suit" is Ex parte Ramzy, 424 S.W.2d 220 (Tex. 1968). There the
Texas Supreme Court stated that a habeas proceeding for relief from imprisonment for
contempt is not “a suit or controversy between private parties" and held that the party
adverse to the habeas applicant in an underlying civil proceeding out of which the alleged
contempt arose was not entitled to notice of the hearing on the merits of the habeas
application. Id. at 223. The court explained its holding as follows:

The writ of habeas corpus is designed for the purpose of giving a
speedy remedy to one who is unlawfully detained. The very nature
of a procedure by writ of habeas corpus dictates that it would be
inconsistent to recognize on the one hand that the purpose of the writ
is to obtain a speedy adjudication of a person's right to be free from
illegal restraint, and on the other hand to compel the person to await
service of notice of the proceedings upon some private party before
the judge can proceed with the investigation.

Id. The Texas Court of Criminal Appeals took the contrary position on the "suit"-or-
“not a suit" question in Ex parte Browder, 373 S.W.2d 256 (1963), and Curry v. Ater, 648
S.W.2d 10 (1983), overruled on other grounds by Collier v. Poe, 732 S.W.2d 332, 344
(Tex. Crim. App. 1987). In these cases the court, without stating its reasoning, held that a
habeas corpus proceeding is a “suit” for purposes of V.T.C.S. article 2168a (repealed by
Acts 1985, 69th Leg., ch. 959, § 9(1), at 3322), a statute requiring a court, "in all suits,
either civil or criminal,” to grant a continuance where a party or attorney is a member of
legislature. See Curry, 648 S.W.2d at 12; Browder, 373 S.W.2d at 257. (We note that in
both Curry and Browder, the person seeking a legislative continuance was one of the
attorneys for the habeas applicant; therefore, the applicant waived any entitlement to
speedy relief under the writ.)

13 See also Ex parte Tail, 14 N.W.2d 840, 841 (Neb. 1944) (habeas corpus is special civil
proceeding providing summary remedy to detained persons and is not technically adversary in character
or "a suit between the applicant and the officer [detaining him]"); Florida ex rel. Deeb v. Fabisinski, 152
So. 207, 209 (Fla. 1933) (habeas corpus is not action or suit but summary remedy), New York ex rel.
Hauptmann v. Hanley, 274 N.Y.S. 813, 815 (Sup. Ct. 1934) (habeas corpus is summary proceeding),
aff'd, New York ex rel. Hauptmann v. Hanley, 274 N.Y.S. 824 (App. Div. 1934); Redfield v. Davis, 176
N.W. 512 (S.D. 1920) (habeas corpus is not civil action).

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Not only is there no consensus on whether habeas corpus is a "suit" or “action,”
but also the courts have struggled with the correctness vel non of describing the
proceeding as “civil.” The courts sometimes have considered habeas corpus proceedings
to be civil in nature, see Ex parte Tong, 108 U.S. 556, 560 (1883); Ex parte Morris, 349
S.W.2d 99, 100-01 (Tex. 1961); Harbison v. McMurray, 158 S.W.2d 284, 287 (Tex.
1942), and sometimes have considered them to be neither civil nor criminal but rather sui
generis, see In re Moy Chee Kee, 33 F. 377, 379 (C.C.N.D. Cal. 1887), or an exercise of
special constitutional and statutory jurisdiction, see McFarland v. Johnson, 27 Tex. 105,
109 (1863); Garza v. Schilling, 576 S.W.2d 147, 151 (Tex. Civ. App.-Corpus Christi
1978, no writ).

Still other cases indicate a recognition of the futility of mechanically labeling
habeas corpus as a means of determining the appropriateness of applying a particular rule
to the proceeding and instead focus concern on the effectiveness of the writ itself. Thus,
in Smith v. Bennett, 365 U.S. 708 (1961), the Supreme Court held that a state requirement
that all prisoners pay a filing fee in order to challenge a detention by habeas corpus,
thereby making the writ unavailable to the state's indigent prisoners, denied those
prisoners equal protection of the laws. Id. at 713-14. The Court found the civil label of
habeas proceedings not to be controlling in this context¹⁴ and declined to reach the state's
argument that if habeas corpus, a civil remedy, must be made available to indigents, then

14 A unanimous Court wrote as follows of the overarching importance of habeas corpus in a free
common-law society:

We shall not quibble as to whether in this context it [habeas corpus] be called a
civil or criminal action for, as Seiden has said, it is “the highest remedy in law,
for any man that is imprisoned." 3 Howell's State Trials 95 (1628). The
availability of a procedure to regain liberty lost through criminal process cannot
be made contingent upon a choice of labels. Ever since the Magna Charta, man's
greatest right--personal liberty—has been guaranteed, and the procedures of the
Habeas Corpus Act of 1679 gave to every Englishman a prompt and effective
remedy for testing the legality of his imprisonment. Considered by the Founders
as the highest safeguard of liberty, it was written into the Constitution of the
United States that its “privilege * * * shall not be suspended, unless when in
cases of Rebellion or Invasion the public Safety may require it." Art. 1 § 9. Its
principle is imbedded in the fundamental law of 47 of our States. It has long
been available in the federal courts to indigent prisoners of both the State and
Federal Governments to test the validity of their detention. Over the centuries it
has been the common law world's “freedom writ” by whose orderly processes the
production of a prisoner in court may be required and the legality of the grounds
for his incarceration inquired into, failing which the prisoner is set free. We
repeat what has been so truly said of the federal writ: “there is no higher duty
than to maintain it unimpaired,” Bowen v. Johnston, 1939, 306 U.S. 19, 25, 59
S. Ct. 442, 446, 83 L. Ed. 455, and unsuspended, save only in the cases specified
in our Constitution. When an equivalent right is granted by a State, financial
hurdles must not be permitted to condition its exercise.

Smith, 365 U.S. at 712-13 (emphasis added; footnote omitted).

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the protection of all civil rights must be made available free of charge to the poor. Id. at
712-13.

Likewise, in Harris v. Nelson, 394 U.S. 286 (1969), the Court was critical of the
“civil” label of habeas proceedings. There the Court held that the Federal Rules of Civil
Procedure regulating discovery "do not apply [to habeas proceedings] completely and
automatically by virtue of Rule 81(a)(2),"15 id. at 298, and that the federal courts may
fashion appropriate rules for discovery in such proceedings "by analogy to existing rules or
otherwise in conformity with judicial usage," id. at 299. The majority called the "civil"
label of a habeas corpus proceeding “gross and inexact,” id. at 293-94,16 and resisted an
automatic literal application of the civil discovery rules to such a proceeding because the
delay caused by some of the elaborate discovery procedures would "do violence to the
efficient and effective administration of the Great Writ," id. at 297.

The Texas courts also at times have focused on the practical concern of whether a
particular procedural rule will conflict with the effectiveness of the writ rather than
whether the writ fits semantically within the language of the rule. For example, the Texas
Supreme Court in Arendt v. Carter, 210 S.W.2d 976 (1948), explained the apparent
conflict between McFarland v. Johnson, 27 Tex. 105 (holding that respondent may not
appeal), and Harbison v. McMurray, 158 S.W.2d 284 (holding that applicant may appeal),
as follows:

The purpose of the writ of habeas corpus is to obtain a speedy
adjudication of a person's right to liberation from illegal restraint,
except in the child custody cases. In the light of this purpose there is
no inconsistency in permitting an appeal by a relator where there is a
refusal of discharge, and denying an appeal by the respondent where
the discharge is granted. The former is consistent with the purpose
of the writ of habeas corpus, while the latter is in conflict with such
purpose.

15 Federal Rule of Civil Procedure 81(a)(2) provides in pertinent part: “These rules are applicable
to proceedings for . . . habeas corpus . . . to the extent that the practice in such proceedings is not set forth
in statutes of the United States and has heretofore conformed to the practice in civil actions."

16 The majority wrote:

“It is, of course, true that habeas corpus proceedings are characterized as

“civil.” See, e.g., Fisher v. Baker, 203 U.S. 174, 181, 27 S. Ct. 135, 51 L.Ed.

142 (1906). But the label is gross and inexact. [Footnote omitted.] Essentially,

the proceeding is unique. Habeas corpus practice in the federal courts has

conformed with civil practice only in a general sense.
Harris, 394 U.S. at 293-94. In the omitted footnote the Court cited authorities for "[t]he degree to which
this ['civil’] characterization excessively simplifies a complex history." Id. at 294 n.4.

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Arendt, 210 S.W.2d at 977 (emphasis added); see State v. Patterson, 668 S.W.2d 462,
463 (Tex. App.--Corpus Christi 1984, no writ) (per curiam) ("regardless of whether the
[habeas corpus] proceeding is civil or criminal," State may not appeal from order releasing
on writ of habeas corpus applicant who was committed as delinquent child).

After considering the foregoing authorities, we are of the opinion that a court, in
determining whether Texas Rule of Civil Procedure 142 applies to a preindictment habeas
corpus proceeding, would conclude that the controlling consideration is not whether
preindictment habeas is a “suit” or whether the proceeding is better categorized as "civil"
or "not civil" but rather whether application of the rule would thwart the speed and
efficaciousness of the proceeding. The denial of relief from unlawful imprisonment on the
basis of even momentary inability to pay a filing fee would conflict with the purpose of
habeas corpus and the central importance of personal freedom in the United States and the
State of Texas. The effectiveness of habeas corpus would be compromised if rule 142
were construed as applying to the writ. We therefore conclude that rule 142 does not
apply to a preindictment habeas proceeding.¹⁷

SUMMARY
The district clerk filing fees provided for in section 51.317 of the
Government Code do not apply to the filing of an application for a
preindictment writ of habeas corpus, but a district clerk may charge a
"reasonable” filing fee for services rendered in a habeas corpus
proceeding pursuant to section 51.319 of the Government Code.
The clerk may not refuse to issue the writ for nonpayment of such a
fee, however, because Texas Rule of Civil Procedure 142 does not
apply to a preindictment habeas proceeding.
Very truly yours,

DAN MORALES
Attorney General of Texas

17 Nor may a sheriff or constable refuse to serve the writ merely because the service fee has not
been paid in advance. The sheriff, see Local Gov't Code § 85.021, or the constable, see id. § 86.021,
Merritt v. Harris County, 775 S.W.2d 17, 23 (Tex. App.—Houston [14th Dist.] 1989, writ denied),
generally must execute all process directed to him or her by legal authority. Texas Rule of Civil
Procedure 126 provides that a sheriff or constable “shall [not] be compelled to execute any process in civil
cases coming from any county other than the one in which he is an officer, unless the fees allowed him by
law for the service of such process shall be paid in advance; except when affidavit is filed, as provided by
law or these rules.” This rule, however, expressly refers to “civil cases" without specifying habeas corpus
proceedings. Because this rule would compromise the effectiveness of the writ if it were construed as
applying to the writ, we believe that it does not apply to a habeas corpus proceeding.

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JORGE VEGA

First Assistant Attorney General

DREW DURHAM

Deputy Attorney General for Criminal Justice

WILL PRYOR .

Special Counsel

RENEA HICKS

State Solicitor

SARAH J. SHIRLEY

Chair, Opinion Committee

Prepared by James B. Pinson

Assistant Attorney General .
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