

                                                                                                        NO.
12-06-00210-CV
 
IN THE COURT OF APPEALS 
 
TWELFTH COURT OF APPEALS DISTRICT
 
TYLER, TEXAS
IN THE
MATTER     §                      APPEAL FROM THE 114TH
 
OF C.G.,         §                      JUDICIAL
DISTRICT COURT OF
 
A JUVENILE            §                      SMITH COUNTY, TEXAS
                                                                                                                                                           

OPINION
            C.G.
appeals from the district court’s denial of habeas corpus relief.  In one issue, she contends that she received
ineffective assistance of counsel in a juvenile court proceeding.  We dismiss for want of jurisdiction.
 
Background
            In July 1999, C.G. participated in
the murder of Jeffrey Adam Carrier.  She
was fourteen years old.  In May 2000,
C.G. admitted that she was a child in need of services and that she had
committed a delinquent act that constituted capital murder.  After her admission, the juvenile court
committed her to the Texas Youth Commission (Commission) for a determinate
period of twenty years.




            In March 2005, the Commission wrote
to the juvenile court requesting that the court order C.G. transferred to the
parole division of the Texas Department of Criminal Justice (adult
parole).  In its request the Commission
noted that C.G.’s twenty-first birthday was July 13, 2005, and it requested
that a hearing be held several months before that day.  In a report furnished to the juvenile court
the next month, the Commission’s court liaison wrote that if the court did not
release C.G. to adult parole, she “would then be transferred to the Texas
Department of Criminal Justice– Institutional Division on or around her 21st
birthday.”  The court held a hearing on
June 13, 2005 and heard evidence from the court liaison as well as from C.G.
and witnesses called by the State.  At
the conclusion of the hearing, the court determined that C.G. should not be
released to adult parole, but instead ordered that she be transferred to the
institutional division of the Texas Department of Criminal Justice
(institutional division).  
            C.G. filed an application for a writ
of habeas corpus in March 2006.  The
district court denied the application. 
This appeal followed.
 
Writ of Habeas Corpus
            In her sole issue, C.G. asserts that
she received ineffective assistance of counsel at the June 13, 2005
hearing in juvenile court.  Specifically,
she complains that her attorney should have objected when the trial court
considered transferring her to the institutional division of the Texas Department
of Criminal Justice, because the Texas Youth Commission had requested only that
she be released to adult parole.
Writ of
Habeas Corpus
            The writ of habeas corpus is a
remedy to be used by a person restrained in her liberty to test the legality of
her custody or restraint.  Tex. Code Crim. Proc. Ann. art. 11.01
(Vernon 2006).  A person is restrained,
for purposes of habeas corpus, if the person is actually confined or subject to
the general authority and power of a person claiming the right to exercise
control over the person.  See Tex. Code Crim. Proc. Ann. art. 11.22
(Vernon 2006).  If the court considering
a writ of habeas corpus determines that no legal cause is shown for the
imprisonment or restraint, or that a legal cause once existed but no longer
exists, the court shall order that the person be discharged.  Tex.
Code Crim. Proc. Ann. art. 11.40 (Vernon 2006).
            The writ process may not be used as
a substitute for a direct appeal.  See
Ex parte McGowen, 645 S.W.2d 286, 288 (Tex. Crim. App.
1983).  Furthermore, the relief sought
must change either the fact of confinement or the length of confinement.  See Ex parte Lockett, 956
S.W.2d 41, 42 (Tex. Crim. App. 1997) (citing Ex parte Tuan Van Truong,
770 S.W.2d 810, 811 (Tex. Crim. App. 1989)).
 
Juvenile
Court Procedure
            During the time a person is committed
to the Commission, the Commission may request that the trial court release the
person to parole or transfer the person to the institutional division.  See Tex.
Fam. Code Ann. § 54.11(a) (Vernon 2006). 
If the Commission requests that the person be released to adult parole,
the trial court may return the person to the Commission with or without
approval to release that person under supervision.  Tex.
Fam. Code Ann. § 54.11(j).  If the
Commission requests that a person be transferred to the institutional division,
the trial court may return the person to the Commission or order that she be
transferred to the institutional division. 
Tex. Fam. Code Ann. §
54.11(i).  For those who were adjudicated
for a delinquent act that constituted capital murder committed before September
1, 2003, and assessed a determinate sentence, transfer to the institutional
division of the Texas Department of Criminal Justice is automatic on the person’s
twenty-first birthday if the person has not been released to parole or served
at least ten years of the sentence.  Act
of May 31, 1995, 74th Leg., R.S. Ch. 262, § 64, 1995 Tex. Gen. Laws 2517,
2573-74, repealed by Act of June 18, 2003, 78th Leg., R.S., ch. 283, §
61(3), 2003 Tex. Gen. Laws 1221, 1245.1
Analysis
            Appellant argues that her
attorney was ineffective because he did not object to the juvenile court’s
consideration of the issue of transferring her to the institutional
division.  She argues that counsel should
have objected because the juvenile court lacked authority to transfer her to
the institutional division absent a request by the Commission.  C.G. does not address the issue of the
automatic transfer that was to occur on her twenty–first birthday and asks
simply that the “ruling of the juvenile sentencing court . . . be reversed.”
            The juvenile court’s written order
is unambiguous.  While the judge said in
open court that he would not order early release to adult parole, in the next
sentence and in the written order, the court ordered C.G. returned to the
custody of the Commission and thereafter that she be transferred to the
institutional division.  Two days later
the Commission transferred C.G. to the institutional division.  The reason given was a “Court Order[ed]
Transfer to TDCJ.”  
            Whether counsel should have objected
to the scope of the hearing or whether the trial court acted beyond its
authority are not issues that can be resolved by a writ of habeas corpus in
this case.  Habeas corpus is available to
immediately release a prisoner.  Lockett,
956 S.W.2d at 42.  In the context of
ineffective assistance of counsel claims, that has been construed to mean that
a court may grant habeas corpus relief by way of a new trial or hearing.  See, e.g., Ex parte
Briggs, 187 S.W.3d 458, 470 (Tex. Crim. App. 2005).  But habeas corpus is available only for those
persons who are restrained in some way.  See
Tex. Code Crim. Proc. Ann.
arts. 11.21, 11.22.
            Restraint is given a broad
definition, see Ex parte Ormsby, 676 S.W.2d 130, 132 n.4 (Tex. Crim.
App. 1984), but C.G. was not restrained by the juvenile court order that she be
transferred to the institutional division when she filed her application for
writ of habeas corpus.  C.G. filed her
application in March 2006.  Even if we
view C.G.’s argument in the most favorable light, the juvenile court’s order
that she be transferred to the institutional division restrained2




 her only from June 15, 2005, the date the
Commission said it would be transferring her to the institutional division,
until July 13, 2005, the date the Commission was otherwise obligated to
transfer her to the institutional division. 
On July 13, 2005, the legal authority to restrain Appellant in the
institutional division shifted from the transfer order to a combination of
factors: (1) C.G. had been adjudicated for capital murder, (2) she had served
less than ten years, (3) the court refused to release her to adult parole, and
(4) she reached the age of twenty-one.  Said another way, the juvenile court’s order
transferring her to the institutional division, the order she attacks, ceased
to be the legal reason for her restraint on her twenty-first birthday.  The argument C.G. presented in her
application for writ of habeas corpus only related to her restraint from June
15 until July 13, 2005.  That time had
passed, and C.G. was no longer restrained by the transfer order when she filed
her application for writ of habeas corpus in March 2006. 
            Because she was no longer restrained
by the juvenile court’s transfer order when she filed her application, C.G. did
not invoke the jurisdiction of the district court.  See Ex parte Cathcart, 13
S.W.3d 414, 417 (Tex. Crim. App. 2000) (“Because we find that appellant was
neither held to bail nor legally restrained in her liberty on the charge of
intoxication assault, we must also find that the habeas corpus jurisdiction of
the district court was not properly invoked.”). 
We do not have original jurisdiction to consider matters of habeas
corpus in cases such as this one.  See
Tex. Code Crim. Proc. Ann.
art. 11.05 (Vernon 2006) (Courts of appeals not within list of courts granted
original jurisdiction to issue the writ of habeas corpus.); see also Tex. Gov't Code Ann. § 22.221 (Vernon 2006)
(Limited jurisdiction for court of appeals to issue the writ of habeas corpus
in circumstances where restraint of liberty occurs in a civil case for
violation of a court order).  The
appropriate appellate remedy is a dismissal when we have no original
jurisdiction and the jurisdiction of the court below is not properly
invoked.  See Ex parte Cathcart,
32 S.W.3d 338, 339 (Tex. App.–San Antonio 2000, no pet.).
 
Disposition
This
appeal is dismissed for want of jurisdiction.
 
                                                                                                    BRIAN HOYLE   
                                                                                                               Justice
 
 
 
Opinion delivered March 30, 2007.
Panel
consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
 
 
 
 
 
(PUBLISH)




1 Section 61.084(d),
Texas Human Resources Code, provided as follows:
 
The
commission shall transfer a person sentenced under a determinate sentence to
commitment under Section 54.04(d)(3), 54.04(m), or 54.50(f), Family Code, for
delinquent conduct constituting the offense of capital murder to the
institutional division of the Texas Department of Criminal Justice on the
person’s 21st birthday to serve the remainder of the sentence if the person has
not:
 
(1)
served at least 10 years of the person’s sentence; or
(2)
been transferred or released under supervision by court order.
 
                The section was continued in effect for cases where
the delinquent conduct occurred before September 1, 2003.  See Act of June 18, 2003, 78th Leg.,
R.S., ch 283, § 62(c), 2003 Tex. Gen. Laws 1221, 1245. 
 


2 This was a restraint only in the sense that she was held in the
institutional division instead of by the Commission for the period of less than
thirty days.


