Travis County does not have jurisdiction to decide habeas applications filed by migrants who were arrested in Kinney County



United States

Cases arising from Governor Abbot’s “Operation Lone Star” have resulted in thousands of misdemeanor arrests in Kinney County, a Texas county that borders Mexico. In In re Texas ex rel. Smith, WR-93,354-02 (Tex. Ct. Crim. App. December 7, 2022), a number of defendants in misdemeanor cases arising in Kinney County filed habeas applications in a district court in Travis County, a county in south central Texas where the city of Austin is located. The Travis County District Court granted relief on one of the applications and permitted the other applications to remain pending. The Kinney County Attorney sought to prohibit the district court from considering or resolving the remaining applications via a writ of prohibition. 

An exception to the predicate request for relief requirement

The Travis County District Attorney argued that the Kinney County Attorney first had to make a predicate request for relief from the Travis County District Court before seeking relief from a higher court. The Texas Court of Criminal Appeals disagreed. The Court explained that the Supreme Court relaxed the predicate request requirement when the circumstances confirm that the request would have been futile and the refusal little more than a formality. The Court found that because the Travis County District Court refused the Kinney County Attorney the opportunity to represent the State, it would be difficult to see how the Kinney County Attorney could even make a predicate request. Additionally, the Court found that absent its intervention, the Travis County District Court would continue to decide the Kinney County cases. 

Prohibition relief can be obtained only if the petitioner has a clear right to the relief sought and no other adequate legal remedy 

The Court found that the Kinney County Attorney had no adequate remedy at law. It was unclear if the Kinney Count Attorney could appeal the trial court’s decision because the trial court refused to permit him to represent the State. Furthermore, the remedy of appeal is generally inadequate when the issue implicates the ability of the trial court to consider the case at all. 

The Court also found that the Kinney County Attorney had a clear right to relief because local resolution of the claims was required. The Court explained that the only avenue for relief available to the real parties, as “restrained” individuals charged with misdemeanors, was an original habeas action under Article 11.05, known as the Constitutional writ. The Court held that absent unusual circumstances or specific statutory authority, a trial court should never consider the merits of a habeas application for an offense arising outside its geographic boundaries, even assuming it had legal jurisdiction to do so.

Article 11.06 did not apply 

The real parties in interest argued that habeas applications could be considered under Article 11.06 in any county of the state. The Court explained that Article 11.06 only applies to cases before indictment. Indictments are not required in misdemeanor cases, which are usually prosecuted by information. The Court stated that if no one expects an indictment to be returned for a particular type of case, then it makes no sense to say that the proceedings are before indictment. The Court concluded that given the language of Article 11.06, and the surrounding statutes, Article 11.06 is unambiguously inapplicable to misdemeanor cases. 


The Court granted the Kinney County Attorney’s application for a writ of prohibition requiring the district court in Travis County to refrain from resolving the merits of habeas applications for misdemeanor cases arising in Kinney County.

January 19, 2023
In re Texas ex rel. Smith, WR-93,354-02 (Tex. Ct. Crim. App. December 7, 2022)
Author: Grace Baehren
Texas Courts