                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                 §

                                                 §
                                                                 No. 08-09-00181-CR
 IN RE: THE STATE OF TEXAS,                      §
                                                           AN ORIGINAL PROCEEDING
 RELATOR.                                        §
                                                                  IN MANDAMUS
                                                 §

                                                 §


                                          OPINION

       Relator Jaime Esparza, District Attorney for the 34th Judicial District of Texas, has filed

a petition for writ of mandamus against the Honorable Alma Trejo, Judge of the County Criminal

Court No. 1 of El Paso. Relator contends the Respondent issued a writ of habeas corpus without

jurisdiction, that the writ must be vacated, and the application dismissed.

       Mr. Martinez pleaded guilty to possession of marijuana, greater than two ounces, in the

County Criminal Court No. 1 of El Paso County on May 25, 2007. Pursuant to a plea bargain, he

was sentenced to two days imprisonment in the El Paso County Jail. Mr. Martinez did not appeal

his conviction.

       On December 22, 2008, Mr. Martinez filed an application for writ of habeas corpus

pursuant to Article 11.09 of the Texas Code of Criminal Procedure in which he represented that

as a result of his May 2007 conviction, the Department of Homeland Security had initiated

deportation proceedings. Mr. Martinez requested that Respondent issue a writ of habeas corpus,

and set the application for hearing at which time he would present evidence that the conviction
was unlawfully obtained and should be set aside due to ineffective assistance of counsel and a

factual defense. Specifically, Mr. Martinez’s writ application alleged that neither his trial

counsel, nor the trial court had advised him of the potential immigration consequences of his

guilty plea, and that his trial counsel had failed to properly investigate the facts underlying the

charge. The court scheduled the case for hearing on February 18, 2009.

       Relator responded, in part, by arguing that Respondent had no jurisdiction to issue the

requested writ as Mr. Martinez was in federal custody, specifically, the Department of Homeland

Security. The State requested that the trial court vacate its scheduling order and deny the relief

requested in the application.

       On June 18, 2009, Mr. Martinez filed an “Ex Parte Motion for Issuance of Writ of Habeas

Corpus Ad Testificandum” requesting that the trial court order his attendance at an evidentiary

hearing. The motion also stated Mr. Martinez was in custody in the El Paso Processing Center

awaiting removal to Mexico. Later that day, the trial court issued the requested writ, ordering the

El Paso County Sheriff to produce Mr. Martinez in court on July 15, 2009 for a hearing. The

record does not include a final order on Mr. Martinez’s application. The State has filed this

Petition for Writ of Mandamus requesting that this Court issue a writ of mandamus ordering the

Respondent to vacate its order and deny Mr. Martinez’s application for lack of jurisdiction.

       To obtain relief by writ of mandamus, the relator must establish: (1) no other adequate

remedy is available to address the alleged error; and (2) the act the relator seeks to compel is

ministerial. State ex rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex.Crim.App. 1994). An

act is ministerial if the law dictates the duty to be performed with such certainty that nothing is

left to the exercise of discretion. State ex rel. Healey, 884 S.W.2d at 774. With regard to the


                                                 -2-
first requirement, Texas Code of Criminal Procedure 44.01 does not authorize a State’s appeal

from a writ of habeas corpus. See TEX .CODE CRIM .PROC.ANN . art. 44.01 (Vernon Supp. 2009).

The State has no other adequate remedy at law in this instance. See State ex rel. Holmes v.

Klevenhagen, 819 S.W.2d 539, 542 (Tex.Crim.App. 1991).

       In its primary argument, the State contends, as it did in its response to Mr. Martinez’s

application, that the trial court lacks jurisdiction to entertain the application based on Article

11.63 of the Code of Criminal Procedure and the Dallas Court of Appeals’ decision in Ex parte

Nguyen, 31 S.W.3d 815 (Tex.App.--Dallas 2000, orig. proceeding). Both the statute and the case

law establish that a trial court lacks authority to issue a writ of habeas corpus to compel an

individual’s release from federal custody. See TEX .CODE CRIM .PROC.ANN . art. 11.63 (Vernon

2005); Nguyen, 31 S.W.3d at 817. Based on these provisions, the State argues that a state court’s

order granting habeas corpus relief to an applicant who is in federal custody facing deportation

due to a state court conviction, is actually relief from federal custody. The State then concludes,

based on Article 11.63, that a trial court has no jurisdiction to grant such relief. Were we to

accept this argument, the result would be to deprive trial courts of jurisdiction to consider habeas

corpus applications based on state court convictions. Because we do not agree Article 11.63

deprives a state court of jurisdiction to consider an application for a writ of habeas corpus based

on a state conviction, we are unpersuaded by the State’s argument.

       A request for relief via a writ of habeas corpus pursuant to the provisions of the Texas

Code of Criminal Procedure is a challenge only to a state court conviction. See TEX .CODE

CRIM .PROC.ANN . art. 11.01 (Vernon 2005). Any relief granted by the trial court is also limited to

the state conviction. See id. Moreover, a state court’s order granting habeas corpus relief cannot


                                                  -3-
be used to order an individual’s release from federal custody, as the trial court lacks authority to

do so. See TEX .CODE CRIM .PROC.ANN . art. 11.63. It is the duty of the habeas applicant, if he

chooses, to file a federal writ of habeas corpus in federal court to petition for release from federal

prison. See 28 U.S.C. § 2241 (2008).

        While Mr. Martinez has admitted he is in federal custody, his application for habeas

corpus relief has simply asked the trial court to grant relief on his state conviction by overturning

his conviction. The trial court clearly has jurisdiction to grant such relief. See TEX .CODE

CRIM .PROC.ANN . art. 11.09. Furthermore, the trial court’s authority to consider Mr. Martinez’s

application includes the authority to hold a hearing on the application if the court deems it

necessary. See TEX .CODE CRIM .PROC.ANN . art. 11.10. Although the authority to hold a hearing

does not include the power to compel the federal authorities to release Mr. Martinez so he may

appear before the court at that hearing, the trial court is not divested of jurisdiction to consider

the writ application due to the applicant’s absence. See In re Texas, No. 08-10-00038-CR, *5-6

(Tex.App.--El Paso January 13, 2010, orig. proceeding), citing Le v. State, Nos. 14-08-00582-

CR, 14-08-00583-CR, — S.W.3d —, 2009 WL 2476530, *2 (Tex.App.--Houston [14th Dist.]

Aug. 13, 2009, no pet.)(op., not yet reported). Therefore, that the State has not demonstrated a

clear abuse of discretion regarding the trial court’s exercise of jurisdiction over Mr. Martinez’s

application for writ of habeas corpus, and we deny the State’s request for relief by mandamus on

that issue.

        In the alternative, the State contends Article 11.63 prohibits the trial court from issuing its

order granting Mr. Martinez’s motion for writ of habeas corpus ad testificandum. A writ of

habeas corpus ad testificandum is issued to compel an inmate to be brought before the court to


                                                  -4-
testify. See Brewer v. State, 737 S.W.2d 421, 424 n.3 (Tex.App.--Dallas 1987, no writ).

Generally, this writ is referred to as a “bench warrant.” Id.

        In light of our discussion regarding Article 11.63 above, and our recent opinion in In re

Texas, No. 08-10-00038-CR, *5-6 (Tex.App.--El Paso January 13, 2010, orig. proceeding), the

trial court had no authority to issue such a writ in this instance as the state court has no authority

to compel Mr. Martinez’s release from federal custody. See TEX .CODE CRIM .PROC.ANN . art.

11.63. Accordingly, we conditionally grant the State’s request for mandamus relief on the

limited issue of the trial court’s order issuing a writ of habeas corpus ad testificandum. We are

confident the trial court will vacate the order in accordance with this opinion, and the writ will

issue only if the trial court fails to do so.




January 29, 2010
                                                DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, J., and Antcliff, Judge
Antcliff, Judge (Sitting by Assignment)

(Do Not Publish)




                                                  -5-
