                            QBfficeof tfy !Zlttornep Qkneral
                                                    Mate of Qexae
DAN MORALES                                               June 16,1994
 ATTORNEY
       GENERAL.

      Honorable John Vance                                        Opiion No. DM-295
      Dallas County District Attorney
      Frank Crowley Courts Buildii LB 19                          Re: Whaher the district clerk filing fees
      Dallas, Texas 75207-43 13                                   provided for in section 51.317 of the
                                                                  Government Code apply to the tiling of an
                                                                  application for a preindiCtment writ of habeas
                                                                  corpus, and a related question  (IQ-6 18)

      Dear Mr. Vance:

              Your letter requesting an opinion asks, “[C]an the appropriate civil tiling fee be
      collected at the. time of filing a pm-indictment Writ of Habeas Corpus?” According to
      your letter, there is contusion among the counties on this question:

                In some smaller counties, the pre&iictment writs of habeas corpus
                filed by attorneys seeking release of their clients from jag while
                awaiting grand jury prooxdings or indictment have been treated as
                civil matters, and the district clerks have been collecting civil thing
                fees.

      These clerks would claim that their authority for charging a tiling fee is found in section
      5 1.3 17 of the Government Code, which provides as follows:

                     (a) The district clerk shag 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 thing a suit, includii an appeal from an inferior
                               wuli ... ... .. ... ... ... ... ... ... .. ... ... ... ... .. ... ... .. ... ... ... .. ... .. .. . s45

                          (2) for filing a cross-action, intervention, contempt action,
                               or motion for new trial . . ... . . . ... ... . ... . . . . S15

                          (3) for issuing a subpoena, including one copy, when
                               requested at the time a suit or action is tiled ... .. ... .. .. S4

                          (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 tiled . . . .. $8




                                                                 p.      1568
Honorable John Vance - Page 2                         (DM-295)




                    (5) for issuing an additional copy of a process not other-
                         wise provided for, when requested at the time a suit
                         or action is t&i . ... ... .. ... ... .. ... ... ... .. ... .. ... .. ... .. ... .. ... .. . S4

                    (6) for the records management and preservation hmd.. SS.

         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 miminal proceed@. Your
argument seems to be premised on the assumption that the statute applies only to civil
proceed@.       Although section 5 1.3 17 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 @ Acts 1985, 69th Leg., ch. 480, 5 26(l) at 2048, did provide, until it
was amended in 1969, that the fees were chargeable in “civil cases.” Compure Acts 1957,
55th Leg., ch. 433, 3 1, at 1293 (last amended version of article 3927 that refbrred to
“civil cases”) with Acts 1%9,61st Leg., ch. 667.8 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 1%9 amendmentr and subsequent amendmentss and the nonsubstantive
coditication of article 3927 as Government Code section 51.3 173 were intended to change
the scope of the provision. We therefore agree with you that section 5 1.3 17 applies only
to a case, that iq a “suit or actioq” of a civil nature.

        We have found no authority, however, for your contention that a habeas corpus
challenge of a detention under crimimd process is a crimmal pmceedmg.4 We therefore.
cennot agree with you that a pre.indictment writ of habeas corpus for that reason is not
subject to the tiling-fee statute. On the other hand, the fact that a habeas corpus
proceeding is not a uiminal proceed& does not require the conchtsion by default that a

       ‘See Sea Comm. on Judiciary,Bii Aoalyd, S.B. 255, 61~1Leg. (1%9) (no indicat.iontha!
cmlkskowsshaendedmchsagescapofsppu~on).

        %ee kts 1979,66tl1 Leg., ch. 295, 8 1, at 661 (amendiq dck                                 39217, no don           of “civil
eases”);AC&1977,6Stb +cg., ch. 219,g 1, at 608 (same).

        %ee Aas 1985,691b Leg., ch. 480, $j1, at 1983 (m  article3927 as sections 51.317 awJ
51.318 OcCkemaat Chk), # 27, al 2049 (M subsmhe change intended).




                                                        P. 1569
Honorable John Vance - Page 3                   (DM-295)




such a procding           is a civil “suit or action” within the scope of section 5 1.3 17. We must
consider further    the k.gislative intent of section 51.3 17 to de&mine whether that
provision applies  to habeas corpus. See Calvefi v. Texas Pipe Line Co., 5 17 S.W.2d 777,
781 (Tex. 1974)    (“The lklamental and dominant rule controlling the construction of a
statute is to ascumin if possible the intention of the Legislature expressed therein”).

        The language of section 51.317, even with the interpolation of the prior statutory
refbrence to “civil cases,” is an indeterminate expression of legislative intention regarding
your question.     The words adim,’ case,6 civil,~ and sui% are subject to varying

           Qlhckk LawDictianaly tkflres aetton ill palt as follows:

                    Tuminitsusudkgalscnse-ahwsuitbmu@inscourt;aformal
                enmpkintwidliathejwkdktionofaanutoflaw....Tllekgalaodfonnsl
                &mandofonckrigbtfmmanotherpxsonorpiutymadcandinsistedmina
                coutofjo6tico. Anotdhwypmcecd@inaanutofjo6ticchywhichone~
                poscaderarmhcrforlbculfo~orpotedionofaright,tkrtdrcssor
                pmentionofawong,orthc~ofaplblicoffease....

                    ...




           %ack’s   Law Dictionmy &WCS case in part as follows

                     A.gcnedtermfortmaaion,couse,6ld~or~,                atlaworinequi~
                ~~lpcftre                   8 cowt ofjo6tico; PI1 aggqate of f&as whkh
                                         exeroisofthejmisdkUonofaanutofjustia.          A
                judicidpnx&ingfortbedctumhtionofacon~bchzenpartics
                whcreiuriglltsarculforculorprotededor~arcprcvcutiorrcdnssed;
                anypmce&ngjudicialinitsnatwe.
                    crhnkslpd rcsuiring~gatiollbypolia..              .
                     The word I%ase”my include applicationsfor divoxe, applicationsfor the
                eaablislunent of bighway6, applicationsfor O&IS of suppor(of dative4 arui
                otberspYSalproDEcxEllgslmknowntothccommonlaw.

Id. at   215.

           ?Bhck’s Law Dictionmy defmes civil   in partas foknW

                    Oforrdatingtothcstatcoritscitizcmy.     ReiatingtoprivaterigMsand
                ranedi~ 6onglnby civil actionsas conW   with criminalpmccedings.

Id. at 244.




                                                p. 1570
Honorable John Vance - Page 4                   (DM-295)




interpretations.   For&unately, however, it is unnecessary for us to rely on textual
interpretatioq 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. . . mn all the counties in this State, where there
                 shall have been cast at the next preceding presidential ekxtion 3000
                 votes or over, the clerks of the district cour& district attorney%
                 camty attom        sheriffs and constables shall receive from the State
                 the following fees and compensation in felony cases, and no more:

                      Se-c. 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 tmnscript on appeal
                 or change of venue, 8 cents for each 100 words. For each felony
                 case finally disposed of without ti    or dismissed or noUe prosequi
                 entered, S8. . . For enteringjud~ent in habeas corpus cuses, 80
                 amts; and for taking down testimony and preparing zMnscr@t in
                 habeas cmpus cases, 8 cents for each 100 work; but the fees in
                 habern cotpus cases shall, in no exent, exceed S8 in mry one case.

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

                     .     . .

                     3. For representing the State in each case of habeas cops
                 where the defeendanris chmged with felony, the sum of $16.

                         . .




           ‘Bhck’s Law Dictionary def~ncssuit in part as follows:

                      A generic term,ofannprchensive sl@tication, tefening to my proceeding
                 byooepasonorpeMnsagaiananotberorothersins~oflawinwbich
                 theplaincitrplrsueqinsuchcauftheremcdywhichfbcLaw~o~himfortbc
                 ledEm of an icjmy or the enforoxnentofati&t,whetheratlaworin
                 eqoity. It is,,howzver, seldom applied to a criminal prosedion. AIKIit was
                 fomdy sondmus trstrictedto the &&nation of a proceeding in equity, to
                 dishgoish aoch proceed@ froman actionat law.

Id. at   1434.




                                                 p. 1571
Honorable John Vance - Page 5           (DM-295)




               Sec. 7. That in those wtmties 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,
          sheri@ and wnstables shall receive 6om the State the fees and
          wmpensation in felony cases allowed under now existing laws, and
          are not inknded to be at&&d by the provisions of sections 1,2, 3,
          4,5and6ofthisact.
                .   .

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

                For wpy of petition, including cert&xte and seal, each 100
         words, 15 cents; provided, whenever in any suit a certified wpy of
          any petition or any other instrument is necessary in the district or
          wtmty court, it shall be lati        for the p&ntjfl or defeendonr 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 cut&ate 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 tit of citation, 75 cents;
          each wpy of writ of citation, 25 cents; !iUng of each paper, 10 cents;
          entering appeanmce of each party to suit, to be charged but once, 5
          cents; each fiMI jua@ent or akcree, 75 cents; ewry other or&r.
         jtuigment or &cree, not exceeding 200 words, 25 cents; where the
          order, jua@nent or decree, whether final or not, exceeak 200 won&
          the aaWional fee for each 100 wor& in excess of 200 work shall
          be 10 cents: making out and transmitting the records and
         proceect‘nlgs in a cause to an inferiw court, fw each 100 worak. IS
          cents; making transcript of the recor& and pqoers in rmy cause
          upon appeal or wrtt of error, with cert@ate and seal, each 100
          worak,lOcents....

Id $6 1 - 2,22 (emphasis added), 5 2 repealed by Acts 1985, 69th Leg., ch. 269, § 5(2)
at 1307,s 22 repealed by Acts 1901,27th Leg., ch. 21, 5 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 “suit[s]” between “plaintifls]” and
“defendant[s].”

         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




                                        p. 1572
Honorable John Vance - Page 6                (DM-295)




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 tlrst 200 words of the judgment and
10 cents per 100 words of transcript on appeal or writ of error) wuld 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 wrpus. Jn
1901 the general fee provisions in section 22 were repealed, Acts 1901,27th Leg., ch. 21,
5 4, at 25, and were replaced by a district clerk fee schedule that was expressly applicable
to “civil w*     id 8 1. There is no suggestion in the 1901 statute that the scope of the
general fee provisions had be-en broadened to include habeas corpus proceediis.         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 nxodified as Government
Code section 51.317, see Acts 1985, 69th Leg., ch. 480, sec. 1, 0 51.317, at 1983, sec.
26(l) at 2048. Neither the codiication of the fee schedule as article 3927 nor the
subsequent amendments to the articlelo even intimate that the scope of the fee schedule
had been broadened to include habeas corpus prq.

         Meattwhile, the habeas wrpus fee language of section 2 eventually was codi6ed in
article 1026 of the Code of Criminal Procedure of 1925, see Code Grim. Proc. art. 1026
(1979), where it remained, see Acts 1965, 59th Leg., ch. 722, 5 1, art. 54.02, at 563
(saving article 1026 from repeal when 1%5 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, unliie


          9Fbclanguageoft~tion2ofthe1897staMemightkams&eed                    aSlhiUllgdkUiOtCb3Ik
hsbcasfc9todctentionsuodafclonychargcsksauscsdionl~tbeaaMcrderrcdtofcg’infclony
casa”and~~3Limitcddipvictand~~fasinhabcar~onlytotbwc’wbcrr
tlte&kndantischargedwithfelony.” Caselawd&qmwesmchaSoqhowever.                              ktion2of
tbc1897sratute~wascodifiedinarticle1026oftbccodeofCriminal                     Prowdam (1979). which
cootiMdtoprovidcfMf~fOrenteri~judgmcntandprrparingtranscriptinhabeasWrplsproceedingS
until it was repealedin 1985. See Acts 1%5,69th Leg., ch. 269, 5 5(2) at 1307 (repealerofarticle 1026).
TheTacaSCOtMliSSi     on of Appeals held in 1935 that the districtclerk was entitled to these fees under
article 1026 regardlessof whetherthe applicanthadbeen chargedwith a felony or merelya misdemeanor.
McCormick v. Sheppard, 86 S.W.2d 213, 215 flex. 1935). The 1897 statute,then, authori& district
clerk fees under section 2 for habeas corpus proceedings arising from detentions under felony or
misdemwaor charges,hot did not authorizeany fees for habeasproceedingsundersection 22.

         Wee Acts 1941,47th Leg., ch. 387, 8 1, at 641; Acts 1945,49th Leg., ch. 368, 5 3, at 662; Acts
1957,55tb Leg., ch. 433,s 1, at 1293; Acts 1%9,61st Leg., ch. 661.5 1, at 1970; AcJs 1971,65th Leg.,
eh. 219, 8 1, at 608; Acts 1979,66th Leg., ch. 295, 8 1, at 667.



                                             p. 1573
Honorable John Vance - Page 7            (DC295)




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. Pm. tit. 2 revisofs note at 262-63 (Supp. 1994) (explaining that article 1018 was
impliedly repled by V.T.C.S. article 391%).

        Thu$ until 1985 the provisions for fees in habeas wrpus cases remaiwd
segregated ffom the general civil fee schedule. In that year the general fee schedule in
V.T.C.S. article 3927 was rewditied as sections 51.317 and 51.318 of the Government
Code, see Acts 1985,69th Leg., ch. 480, 4 1, at 1983. with the expre-ss provision that no
substantive change was intended, ia! 5 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 wunty to any salaried district or county officer.
See Code Grim. Proc. tit 2 foreword at 228 & revisor’s note at 265 (Supp. 1994). Article
XVI, section 61, of the wnstitution requires district clerks, as “district officers,” to be
wmpensated on a saJary basis.

        Jn sum, section 5 1.3 17 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 spec&aUy re&ted          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. Rathex, the habeas fee provisions were kept segregated in
article 1026 of the Code of Criminal Procedure until that article was repealed in 1985, the
SME year in which section 5 1.3 17 was enacted as a nonsubstantive revision of the district
clerk fee schedule. We therefore conclude that section 51.3 17 does note apply to a
preindictment habeas proceed&

        You also ask whether, if section 51.317 is inapplicable to a preindictment habeas
proceeding, a district clerk mi&t charge a fee for sexvices rendered in the prowedmg
pumuant to section 51.319 of the Government Code. Section 51.319 provides, in
pertinentpart:
               The district clerk shall wllect the fouowing fees for services
          performed by the clerk:

                 . .

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

Because no other law sets a fee for the district clerk’s services in a habeas corpus
proceed@, this provision authorizes the district clerk to charge a “reasonable” filing fee in




                                         p. 1574
Honorable John Vance - Page 8           (DM-295)




such a proceed@tt       Cj Attorney General Opiion H-453 (1974) (statutory predecessor
of section 5 1.3 19 authorizes reasonable district clerk fees in wndemnation proceed&s).

         Although what wnstittttes a “reasonable fee” is a fact question and theregore is
beyond the scope of an attorney general opinion, we believe that a habeas wrptts fee that
exceeds the fee charged in civil cases in district court would be unreasonable as a matter
of law. CY Attorney General Opiion DM-26 (1991) at 3 (m district-court wndetnnation
m=@w          maximum fee that will be- deemed reasonable is same as fee statutorily
provided for county clerks in wndentnation proceed@).         Thus, a “reasonable fee” for
filing the application for habeas corpus may be less than but may not exceed S45, see
Goti Code 8 51.3 17(b)(l); and a “reasonable fee” for i.Winceofthewtitmaybeless
than but may not exceed $8, id. 8 51.3 17@)(4). The fees for Sling the application and
issuing the writ are chargeable when the application is filed and issuance of the writ is
requested. Id. 5 51.317(a).

        Thefactthatrruchfeesaredueuponfilingandrequestforissuancedoesnotmean,
however, that the clerk may rehe to issue the writ or any other process in a
preindicttnent habeas corpus procexUng for the reason that the fees have nor been paid.
Although Texas Rule of Civil Procedure 142 requires payment of fees or the Sling of a
paupefs afEdavit before the clerk may issue process, that rule applies only to a “suik” see
Tex. R Cii. 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 wrpus is not a kind of “suit”
or “civil” matter that the Texas Supreme Court intended to in&de under rule 142.

       Bhck’s Law Dictionary defines habeas WPUS in part as follows:

                    Lat. (You have the body.) The name given to a variety of
               wits (of which these were anciently the emphatic words),
               having for their object to bring a party before a wutt or judge.
               In wmtnon usage, and whenever these words are used alone,
               they are usually understood to mean the habeas corpus ad
               subjiciendum (see inza).       The primary li.mction of the writ is
               to release from ttnlawgtl itnptisonment. . The office of the
               writ is not to de&tmine prisoner’s guilt or innocence, and only
               issue which it presents is whether prisoner is re&ained of his
               liberty by due process.

                     A form of wllateral attack. An independent proceed&
               instituted to de&mtine whether a defendant is beiig ttnlawMy




                                        p.   1575
Honorable John Vance - Page 9                   (DM-295)




                      deprived of his or her liberty. It is not an appropriate proceed@
                      for appeal-like review of discretionq         decisions of a lower
                      wutt.

          .     . .

          Eabcas corpus ad subjicieodum . . . . 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 wrpus tit, the purpose of which is to
              test the legality of the detention or imprisonment; not whether he
              is guilty or innocent. This tit is guaranteed by U.S. Const. Art.
              I~9,andbystatewnstitutions....

                           This is the well-known remedy in England and the United
                      States for deliverance from illegal wn6nement, called by Sii
                      WilliamBlackstone the most celebrated writ in the English law,
                      and the great and e&acious writ in all manner of illegal
                      wnhtnent.      . . The “great writ of liberty,” issuing at wmmon
                      law out of courts of Chancery, King’s Bench, Common Pleas,
                      and Exchequer.
BLACK’S LAW DICTIONARY 709-10.             Habeas cops        ad subjiciendum thus is .a
“proceeding” for a “tit,” the purpose of which is a narrow one: to test the legality of a
detention or imprisonment. It is intended to be “efficacious.“*z

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

               The writ of habeas corpus is the remedy to be used when any
          person is restmined in his liberty. It is an order issued by a wurt or
          judge of wmpetent jurisdiction, directed to any one having a person
          in his custody, or under his restmint, 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 restmint.

        Article 11.Ol and the foregoing Block’s definitions thus speak of habeas corpus in
tetms of Wit, ” “remedy,” and “order” but do not call it a “suit” or an “a&ion.” In fact,
there is no wnsensus 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,

         t2Article11.@40ftheCodeofCriminalRoadure provides: Tvuy provisionrelatingto the writ
~habcaPcorprrsbatlbcmostfaMlablyconshuedinordertogivc~tothcremdy,aadpmtcctthc
rightsoftbepersonsc&ingreliefundexit.”



                                                 p. 1576
Honorable John Vance - Page 10                (DM-295)




           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.
           ln some jurisdictions it is classed as a special proceeding; in others it
           is not considered as a special proceedii.

39 C.J.S. Habeas Caps        5 3, at 462 (1976) (footnotes omitted).

        The sister high courts of this state have issued decisions ihustmting the lack of
wnsensus on whether habeas corpus is a “suit.” An example of a case conchtding that
habeas wrpus is not a “suit” is Ecparfe Ramzy, 424 S.W.2d 220 (Ten. 1%8). There the
Texas Supreme Court stated that a habeas proceeding for relief f?om imprisomnent for
contempt is not “a suit or controversy between private parties” snd held that the party
adverse to the habeas applicant in an underlying civil proceeding out of which the alleged
wntempt 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 unlawhdly detained. The very nature
           of a procedure by writ of habeas corpus dictates that it would be
           inwnsistent 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 f?ee from
           illegal restraint, and on the other hand to compel the person to await
           service of notice of the proceed@ upon some private party before
           the judge an proceed with the investigation.

Id.13 The Texas Court of Crimimd Appeals took the contrary position on the “suit”-or-
“not a suit” question in Erparre Brow&r, 373 S.W.2d 256 (1%3), and Curry v. Ater, 648
S.W.Zd 10 (1983), owmded 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 proceed@ is a “suit” for purposes of V.T.C.S. article 2168a (repealed by
Acts 1985, 69th Leg., ch. 959, 8 9(l), at 3322), a statute requiring a court, “in all suits,
either civil or crimb@” 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 Brow&r, the person seeking a legislative continuance was one of the
attorneys for the habeas applicant; therefore, the applicant waived any entitlement to
speedy reliefunder the writ.)



        “See also Ex pde      Tail,   14 N.W.Zd 840, 841 (Ncb. 1944) @abeas corpus is special civil
~pmvidingaunmaryrrmedytodetaincdpcrsonsandisnot~~~lyadnrraryinchersctn
                                                                             v. Fabisimki, 152
or “a suit lehwco the applicant and the oftkcr [dctsioing him]“); Florid0 n rd. Lkb
So. 207, 209 @la. 1933) @abeascorpus is not action or suit but summay remedy);New York.zx r-z/.
IfmcpbnaMY. Hmley, 274 N.Y.S. 813, 815 (Sop. Ct. 1934) (habeas cqw is summarypmceediaa),
ofld, New York cx ml. HauptmmnY. Ha&y. 274 N.Y.S. 824 (App. Div. 1934); Red/ield Y. his,   176
N.W. 512 (S.D. 1920) (habeascmpw is not civil action).



                                              p.   1577
Honorable John Vance - Page 11
                                           W-f-295)




        Not only is there no wnsensus on whether habeas wrpus is a “suit” or “action,”
but also tbe courts have struggled with the wrrectness vef tron of describii          the
pwcwding as “civil.” The wurts sometimes have wnsidcrcd habeas wrpus proceed&
to be civil in nature, see Evparre Tong, 108 U.S. 556, 560 (1883); Exparte Morris, 349
S.W.Zd 99, 100-01 (Tax. 1961); Harbison v. McMurqv, 158 S.W.Zd 284, 287 (Tex.
 1942), and sometimes have considered them to be neither civil nor wiminal but rather sui
getwis, see In re May Chee Kee, 33 F. 377,379 (C.C.N.D. Cal. 1887), or an exercise of
special wnstitutional and statutory jurisdiction, see McFar&md v. Johnson, 27 Tax. 105,
 109 (1863); Corm v. Schilling, 576 S.W.Zd 147, 151 (Tan. Cii. App.-Corpus Christi
 1978, no writ).

        Still other cases indicate a rewgnition of the Mlity of mechanicalty iabehng
habeas corpus as a means of determining the appropriateness of applying a particular rule
to the proweding and instead focus concern on the e&ctiveness 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 tiling fee in order to chaknge a detention by habeas corpus,
thereby making, the tit mtwtilable 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 pmcwdings not to be controlling in this wntextr~ and declined to reach the state’s
argument that if habeas corpus, a civil remedy, must be made available to indigents, then




          Weshallnolquibblesstowhcthcrkthis~itIhPbcescnplslkcsllcda
          Eivilolcrimjllplsdi~f~,gsseldcllbassaiQ1k”tbchigbedremedyinkw,
          for my man that is inykned.’        3 HoweII’sState Trials 95 (1628). The
          availMityofapxccedmtoregiinlibextylolttkuaghcrimi&pmcesscaawt
          bemwJecontingcntoponaehoiecofl&els. EversincetheMagoaChta,man’s
          gEdOSt~ght-pasonallibaty-haskenguaraatad,andtkproctdurcsOfthC
          HabeasCmpasActof1679gavetomryEaglkhamapromptaod~
          maedyfortestiagtkkgalityofhisimprisonment.         GmidemtbytheFcmders
          utbchiBbcasafcguard~libcrty,itwarwrittcninGothcConstitutiondtbe
          UnitrdStatcsthatits”privilcgc***~lmtksuspcaded,unlearwbmk
          CassofRchelkmorIavasknthepublicSafdymayrcqoirc~’                Art.I#9. Its
          pZiOCiplCiSimbcddcdiOthCfuodamcntal       kwof47ofourStates.       1thasloag
          ~sMilsblektheftdnalcourutoiodigcntprisonrrsotbothtbestakand
          FederalGovemmntstotestthewdidityoftheirdeteation. Overthecentarksit
          has hoen the.camnon law world’s“freedomtit” by whose orderlyprocessesthe
          ~onofaprjsonerincourtmaykreguirrdandthelegalityofthegrwndr
          for his incmcemtion inquired into, failing which the prisoaer is set free. We
          repeatwhathasbeensotndysaidofthefe&alwrit:            “thereisnohigherduty
          ho to maintainit uaimpaiw        Bowen Y. Johastoa, 1939, 306 U.S. 19, 25, 59
          S.a442,446,83L,Ed,455,andunsurpcndcQsavconlyinthccaccsspecified
          in OUTCmstitotion. When an eqdvalent right is granted by a State, ~nancial
          bwdies must not be permitted to condition its exemise.

     ,365 U.S. at 712-13 (emphasisadd@ fmtmxe omitted).




                                           p.   1578
Honorable John Vance - Page 12               (DM-295)




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

         Likewise, in Hark v. Nelson, 394 U.S. 286 (1%9), the Court was critical of the
“civil” label of habeas proceedmgs. There the Court held that the Federal Rules of Civil
procedure mguking discovery “do not apply [to habeas proceedings] completely and
automaticdly 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
othemise in wnformity with judicial usage,” id. at 299. The majority called the “civil”
label of a habeas wrpus proceeding “gross and inexact,” id. at 293~94,16 and resisted an
automatic literal application of the civil discovery rules to such a proceed@ because the
delay caused by some of the elaborate discovery procedures would “do violence to the
et&ient and effective administration of the Great Writ,” id. at 297.

        The Texas courts also at times have focused on the practical wncern of whether a
particular pnxeduml rule will wnflict with the e&ctiveness of the writ rather than
whetha the writ 6ts sem~tically within the language of the rule. For example, the Texas
Supreme Court in Arendf v. Carter, 210 S.W.2d 976 (1948), explained the apparent
wntlict between A4cFarkmd v. J&,          27 Tar. 105 (holding that respondent may not
appeal), and Harbhwn v. McMurrq, 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
             rehal of discharge, and denying an appeal by the respondent where
             the discharge is granted. The former is wnsistent with the purpose
             of the writ of habeas corpus, while the latter is in wnflict 4th such
             Purpose.




                  1ti6,of-,tNcthathaheaseorposproccedingsarcch3racterizedas
             “civil.” SW, e.g., Fish v. Baker, 203 U.S. 174, 181, 27 S. Ct. 135, 51 L.Ed.
             142 (1906). But the label is gross and inexact [Footnotetitted.] Essentially,
             tbepmceanagisuaique.    Habesscerpuspracticetnthefedclal~has
             eonformcdwitheiviIpmctieeonlyinageneraIsnst.
Hami>, 394 U.S. at 293-94. In the omittedfootnotethe Courtcited adlmiti~ for “[tlhedeSreeto wbicb
this paid) charadcrizationexodvely simpliks a complexhistory.”Id. at 294 n.4.




                                               p. 1579
Honorable John Vance - Page 13             (DM-295)




Arendt, 210 S.W.2d at 977 (emphasis added); see Stare v. Paitersan, 668 S.W.Zd 462,
463 (Tex. App.-Corpus Christi 19&4, no writ) (per auiam) (“regardless of whether the
[habeas corpus] proceeding is civil or &minal,” State may not appeal from order releasing
on writ of habeas corpus applicant who was wmmitted 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 wnsideration 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
e5caciousness of the proc&ing. The denial of relief from unlawful imprisonment on the
basisofeven momeataryinabilitytopayafilingfeewouldconflictwiththepurposeof
habeas corpus and the central importance of personal freedom in the United States and the
State of Texas. The e&ctiveness of habeas corpus would be compromised if rule 142
were wnstrued as applying to the writ. We therefore conclude that rule 142 does not
apply to a preindictment habeas proceeding.r7

                                    SUMMARY

                The district clerk tiling fees provided for in section 5 1.3 17 of the
           Government Code do not apply to the Sling of an application for a
           preindictment writ of habeas corpus, but a district clerk may charge a
           “reasonable” 6ling fa for services rendered in a habeas wrpus
           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.




                                                        DAN      MORALES
                                                        Attorney General of Texas


         ‘7Normaya~orconrtaberrfusetoservctbewritmerrly~~tbcsrviccfteharaot
hccn psld io sdvmce. The skiff, see Local Gov’tcode 5 85.021, or the umstable, we id. 8 86.021,
Merritt v. Hmis County, 775 S.W.Zd 17, 23 (Tea. App.-Hcuston [14th Dist.] 1989, tit denied),
gcmmlly most execute all process directedto him or her hy legal authority. Texas Rule of Cii
FVec&ue 126 providesthat a sheriffor amstable “shall [not]be mmpelled to executeany p-  in civil
cPscscomingfromatlycountyotberthantbconeinwhichbcisanofficn,unlessthefeesallowedhimby
lawfortbcscrviceofsuchp-shallbepaidinadvance;cxccptwhenaffidaviisfileQasprovidedby
lawortksemka.” ThisnrlShowcvcr,expresslyrrfeato”civilcases”withoutspecifyinghabeaswrpls
m.            Bcfausethiglulewouldcompromisctbecffeaivmescofthcwritifitwereconstruedac
ppplyingtotbcwrit,wcklicvctbatitdoesmcapplytoahabeasm~pmc&ding.




                                          p. 1580
Honorable John Vance - Page 14         (DM-295)




JORGE VEGA
FiiAssiamtAttomeyoeneral

DREWDURHAM
Deputy Attorney General for Criminal Justice

WILL PRYOR
specialcd

RENEAHIcKs
State Solicitor

SARAH J. SHIRLEY
Chair, Opiion Committee

PrepadbyJamesB.Pinson
Assistant Attomeyoeneral




                                         p. 1581
