         IN THE COURT OF CRIMINAL APPEALS
                     OF TEXAS
                                NO. WR-82,807-01



                 EX PARTE JUSTIN TODD VALDEZ, Applicant




     ON APPLICATION FOR AN ORIGINAL WRIT OF HABEAS CORPUS
      CRIMINAL ACTION NO. 41070 IN THE COUNTY COURT AT LAW
                       CALDWELL COUNTY



        N EWELL, J., delivered the opinion of the Court in which K ELLER, P.J., and
M EYERS, K EASLER, H ERVEY, A LCALA, R ICHARDSON and Y EARY, JJ., joined. K ELLER,
P.J., filed a concurring opinion in which K EASLER, H ERVEY and Y EARY, JJ., joined.
R ICHARDSON, J., filed a concurring opinion. JOHNSON , J., filed a dissenting
opinion.

                                  OPINION

      We filed and set this application for an original writ of habeas corpus to

consider whether an original writ of habeas corpus in this Court is the proper

avenue for seeking an out-of-time petition for discretionary review (PDR) from a

judgment imposing community supervision. We conclude that it is not. Relief must

first be sought at the trial level. Because Applicant has not attempted to obtain
                                                                            Valdez – 2

habeas corpus relief at the trial level, we dismiss this application.

                                     Background

      Applicant was convicted of misdemeanor assault and placed on community

supervision. He appealed that conviction, and the court of appeals affirmed. Valdez

v. State, No. 03-12-00098-CR, 2014 WL 4362949 (Tex. App.–Austin Aug. 29, 2014) (not

designated for publication). This Court granted Applicant two extensions of time

to file a PDR, but ultimately he did not file one. Mandate issued on January 15, 2015.

      Filing an application for an original writ of habeas corpus in this Court on

Applicant’s behalf, counsel contends that Applicant is entitled to an out-of-time

PDR. In an affidavit attached to the application, counsel states that he intended to

timely file a PDR but failed to do so because he mistakenly believed that the PDR

was not due until January 24, 2015. Counsel also states in the affidavit that he has

spoken personally with the Caldwell District Attorney and that the District Attorney

agrees that applicant is entitled to the opportunity to file a PDR. Counsel further

contends that an original writ of habeas corpus from this Court is the appropriate

mechanism for obtaining an out-of-time PDR because “a misdemeanor trial judge

does not have authority to order the Court of Criminal Appeals to permit the filing

of an out-of-time PDR.”

      We abated the proceedings for thirty days and invited the State to file a

response. Ex parte Valdez, No. WR-82,807-01, 2015 WL 1407243 (Tex. Crim. App.
                                                                             Valdez – 3

Mar. 25, 2015) (not designated for publication).       No response was filed.      We

subsequently filed and set this application for submission.

                                  Habeas Authority

         Article I, § 12, of the Texas Constitution provides that the writ of habeas

corpus “is a writ of right, and shall never be suspended.” T EX. C ONST., Art. I, § 12.

That constitutional provision also charges the legislature with enacting “laws to

render the remedy speedy and effectual.” Id. Article V of the Texas Constitution

explicitly confers power on this Court to issue writs of habeas corpus “[s]ubject to

such regulations as may be prescribed by law.” T EX. C ONST., Art. V, § 5(c). Article

11.05 of the Code of Criminal Procedure recognizes the authority of this Court, the

district courts, the county courts, and any judges of these courts to issue the writ of

habeas corpus “under the rules prescribed by law.” T EX. C ODE C RIM. P ROC., art.

11.05.

         Chapter 11 of the Code of Criminal Procedure contains some provisions that

apply in general to habeas proceedings, and it also contains a few sections that detail

procedures to be used for relief from particular types of judgments, orders, or

proceedings under certain circumstances. T EX. C ODE C RIM. P ROC., arts. 11.01-11.04,

11.07-11.65. When an application does not fall within one of the provisions relating

to a certain type of judgment, order, or proceeding, a habeas corpus remedy may
                                                                                                 Valdez – 4

nevertheless be available under the Texas Constitution and Article 11.05.1 For

example, we held in Ex parte Schmidt that a person who had discharged a

misdemeanor sentence, but was suffering collateral consequences of that sentence,

could file a habeas application in the county court even though he did not meet the

confinement requirement of Article 11.09. 109 S.W.3d at 483. A habeas application

that is not governed by one of the provisions applying to specific types of

judgments, orders, or proceedings is often referred to as a “Constitutional writ” or

an “Article 11.05 writ.”

        Here, Applicant has sought relief in this Court by virtue of a “Constitutional

writ” rather than invoking our appellate jurisdiction via PDR from a writ application

filed with the trial court and taken through the usual appellate process. Because this

is not the type of circumstance calling for this Court’s exercise of its original habeas

corpus jurisdiction, we dismiss the application.

        As we explained in Ex parte Lambert, this Court will abstain from exercising

its original habeas jurisdiction except in extraordinary circumstances.

        We are also of the opinion that this is a matter over which the district
        judges are authorized to entertain jurisdiction and grant the writ of

        1
          Ex parte Schmidt, 109 S.W .3d 480, 483 (Tex. Crim. App. 2003) (“W hen they are read together,
Article V, section 16 of the Constitution, Section 25.0003(a) of the Government Code, and Article 11.05 of
the Code of Criminal Procedure give the statutory county court at law, and the judges of that court, the
power to issue the writ of habeas corpus when a person is restrained by an accusation or conviction of
misdemeanor.”); See also Rodriguez v. Court of Appeals, Eighth Supreme Judicial Dist., 769 S.W .2d 554, 558
(Tex. Crim. App. 1989) (habeas corpus application could be filed with trial court pursuant to Texas
Constitution when Applicant did not meet the custody requirement of Article 11.07).
                                                                                                   Valdez – 5

        habeas corpus. While the Constitution and the statute on the subject
        give this court jurisdiction to issue writs of habeas corpus, yet we do
        not believe it was the intention of the law makers to constitute this
        tribunal a nisi prius court for the purpose of issuing and trying
        indiscriminately all cases of habeas corpus. The Constitution and the
        laws of this State authorize us to review such cases on appeal, and we
        now lay down the rule that, except in extraordinary cases, we will not
        entertain jurisdiction as a court to grant original writs of habeas corpus.

37 Tex. Crim. 435, 435-36, 36 S.W. 81, 81-82 (1896). We have followed or cited to this

rule in later cases, though it has been some time since we have had the occasion to

address this rule, or Lambert, in a published opinion.2 Nevertheless, citing our

decision in Lambert among others, the United States Supreme Court has much more

recently recognized the vitality of this rule across the various states. Carey v. Saffold,

536 U.S. 214 (2002) (quoting Lambert and also quoting In re Barlow, 48 Idaho 309, 282

P. 380 (1929)) (“The Supreme Court, having jurisdiction to review on appeal

decisions of the district courts in habeas proceedings will not exercise its power to


        2
           See Guinn v. State, 228 S.W . 233, 234 (Tex. Crim. App. 1921) (following Lambert); Ex parte
Smallwood, 221 S.W . 293, 293 (Tex. Crim. App. 1920) (citing Lambert); Ex parte Houston, 219 S.W. 826, 826
(Tex. Crim. App. 1920) (quoting Ex parte Alderete, 203 S.W . 763, 764 (Tex. Crim. App. 1918) (“It does not
follow that the Court of Criminal Appeals will exercise its jurisdiction by granting a writ in every
application for writ of habeas corpus. The contrary policy has been declared and made necessary; and,
generally speaking, it will not issue original writs of habeas corpus in cases where other courts have
jurisdiction to do so.”)); Ex parte Japan, 38 S.W . 43, 43-44 (Tex. Crim. App. 1896) (following Lambert); see
also Ex parte Phelper, 433 S.W .2d 897, 897-98 (Tex. Crim. App. 1968) (“This court has consistently declined
to exercise its original jurisdiction in habeas corpus attacks upon the validity of a misdemeanor
conviction, the county court, district court, or a judge of said court having jurisdiction to grant relief, and
the petitioner having the right of appeal from an order denying relief.”) (citing Smallwood and other
cases); Ex parte Rodriguez, 334 S.W .2d 294, 294-95 (Tex. Crim. App. 1960) (“This Court does not hear
evidence. In proceedings of this character it has been the uniform practice of this Court for many years to
require that resort be first had to application for habeas corpus to the judge of the trial court or other
county court, county court at law or district judge of the county for relief, and an application for habeas
corpus originally filed in this Court attacking the legality of confinement under a misdemeanor judgment
will not otherwise be entertained.”) (citing Japan and other cases).
                                                                                                 Valdez – 6

grant an original writ of habeas corpus, except in extraordinary cases.”) (citations

omitted).

        Under the rule in Lambert, then, this Court will accept a “Constitutional writ”

application as an original matter only in extraordinary circumstances. The applicant

must first seek appropriate relief at the appropriate trial-level court. The refusal of

an appropriate trial-level court to issue the writ after being presented with a

colorable claim will generally constitute an extraordinary circumstance.3                                We

emphasize that, for the purpose of establishing extraordinary circumstances, the

court of conviction is ordinarily the appropriate court in which to first seek relief,

if it has habeas jurisdiction. And if a trial-level court issues the writ but denies relief,

the applicant’s remedy is an appeal from that determination, not an original writ

with this Court.

        Applicant contends that this is one of those “extraordinary circumstances”

because “a misdemeanor trial judge does not have authority to order the Court of

Criminal Appeals to permit the filing of an out-of-time PDR.” We disagree. In

Rodriguez v. Court of Appeals, Eighth Supreme Judicial Dist., we held that a trial court

that otherwise had habeas authority had the power to grant an out-of-time appeal.

769 S.W.2d at 558-59 (granting mandamus relief against a court of appeals’s refusal

        3
          This is similar to our rule in mandamus cases that “the petition should be presented first to the
court of appeals unless there is a compelling reason not to do so.” See Padilla v. McDaniel, 122 S.W .3d 805,
808 (Tex. Crim. App. 2003).
                                                                                 Valdez – 7

to docket an appeal: “We hold that the district court had jurisdiction to entertain the

writ of habeas corpus, and applicant in this cause properly invoked that jurisdiction

by filing his writ with the district court. Thus, the district court had jurisdiction of

the habeas application. Since the district court had this jurisdiction, it had the

authority to grant an out-of-time appeal.”). We see no relevant distinction between

a request for an out-of-time appeal and a request for an out-of-time PDR.

       Moreover, in both situations, the applicant will ordinarily have to introduce

some additional evidence not contained in the trial or appellate record of the

case–explaining what happened to prevent the timely filing of an appeal or

PDR–and the habeas court will have to pass on the credibility of such evidence. In

the present case, for example, applicant seeks an out-of-time PDR based in part on

an affidavit in which his attorney claims that he was mistaken about the filing

deadline. The trial level is generally the appropriate place to receive evidence and

to resolve fact issues, at least in the first instance. Ex parte Pena, ___ S.W.3d ___, 2016

WL 898837, at *1 (Tex. Crim. App. Mar. 9, 2016) (per curiam).

       Finally, what Applicant characterizes as a trial judge’s authority to “order the

Court of Criminal Appeals to permit the filing of an out-of-time PDR” does not, in

fact, order us to do anything. Rather, it merely resets the applicable appellate time

table. We have allowed trial courts to reset the clock in terms of an out-of-time
                                                                                               Valdez – 8

appeal; we similarly hold that a trial court is authorized to reset the clock for an out-

of-time PDR should such relief be necessary through a meritorious application for

a writ of habeas corpus.

        Before seeking relief on a “Constitutional writ” in this Court, an applicant

must first seek relief at the trial level (and avail himself of any appellate remedy if

necessary). Rodriguez, 769 S.W.2d 558-59. Applicant did not do so in this case.4 We

dismiss his application for habeas corpus relief in this case so that Applicant may

seek relief at the trial level.

Delivered: May 4, 2016

Publish




        4
          The question before the Court is whether we should exercise our original habeas corpus
jurisdiction. Having answered that question, it is unnecessary for the Court to decide which type of post-
conviction writ application Applicant should file in the trial court.
