                                         NO. 12-19-00055-CR

                               IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                                             TYLER, TEXAS

                                                             §        APPEAL FROM THE 369TH
 EX PARTE:
                                                             §        JUDICIAL DISTRICT COURT
 JOSEPH HAYNES
                                                             §        ANDERSON COUNTY, TEXAS

                                         MEMORANDUM OPINION
         Joseph Haynes appeals the trial court’s denial of his pretrial application for writ of habeas
corpus. In two issues, Appellant argues that after the trial court found him incompetent to stand
trial, it erred by ordering the Texas Department of Criminal Justice (TDCJ) to maintain custody of
him while he receives competency restoration services from the Texas Department of Health and
Human Services (TDHHS). We affirm.


                                                   BACKGROUND
         Appellant was charged by indictment with assault on a public servant, specifically, a TDCJ
correctional officer who was lawfully discharging his official duty to supervise inmates. An
enhancement paragraph alleges that Appellant was finally convicted of aggravated assault with a
deadly weapon in 2014. 1 Before trial, Appellant’s counsel filed a motion requesting authorization
for funds to evaluate Appellant’s mental health. The trial court granted the motion, and an expert
opined that Appellant was incompetent to stand trial. After reviewing the expert’s report, the
evidence, and the arguments of counsel, the trial court found that Appellant was incompetent to
stand trial and ordered that he be held in TDCJ custody while receiving competency restoration
services from TDHHS.


         1
           Although it is not directly stated in the record, we infer from the record that Appellant is currently serving
a prison sentence for this or some other offense.
       Subsequently, Appellant filed an application for writ of habeas corpus, contending that the
trial court lacks authority to issue the order because it violates provisions of the code of criminal
procedure and the separation of powers provision of the Texas Constitution. The trial court denied
the application, and this appeal followed.


                               COMPETENCY RESTORATION ORDER
       In his first issue, Appellant argues that the trial court’s competency restoration order
violates provisions of the code of criminal procedure requiring Appellant’s commitment to a
“mental health facility” or “residential care facility” or his release on bail. In his second issue, he
argues that the trial court violated the Texas Constitution’s separation of powers clause by
amending or rewriting the code of criminal procedure’s provisions on competency restoration.
Standard of Review and Applicable Law
       The writ of habeas corpus is the remedy to be used when a person is restrained in his liberty.
TEX. CODE CRIM. PROC. ANN. art. 11.01 (West 2005). It is an order from a judge commanding a
party who is restraining a person to appear before the court with the person and show why he is
under restraint. Id.; Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991). Pretrial
habeas followed by an interlocutory appeal is an extraordinary remedy reserved for situations in
which the protection of the applicant’s substantive rights or the conservation of judicial resources
would be better served by interlocutory review. Ex parte Ingram, 533 S.W.3d 887, 891-92 (Tex.
Crim. App. 2017). Except when double jeopardy is involved, pretrial habeas is not available when
the question presented, even if resolved in the defendant’s favor, would not result in immediate
release. Id. at 892.
       In reviewing a trial court’s ruling on a habeas corpus application, we review the facts in
the light most favorable to the ruling and uphold it absent an abuse of discretion. Ex parte
Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006). An abuse of discretion does not occur
unless the trial court acts arbitrarily or unreasonably or without reference to any guiding rules and
principles. State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016).
       Under the law in effect in 2016 when the instant offense allegedly occurred, when a trial
court determines a defendant is incompetent to stand trial, the code of criminal procedure generally
requires it to commit the defendant to a mental health facility or residential care facility determined
to be appropriate by the local mental health authority or local intellectual and developmental



                                                  2
disability authority or release him on bail. TEX. CODE CRIM. PROC. ANN. arts. 46B.071(a),
46B.073(d) (West 2004); see also TEX. GOV’T CODE ANN. § 311.022 (West 2013) (“A statute is
presumed to be prospective in its operation unless expressly made retrospective.”). “Mental health
facility” is defined generally as


       (A) an inpatient or outpatient mental health facility operated by the [Texas Department of State
           Health Services (TDSHS)], a federal agency, a political subdivision, or any person;

       (B) a community center or a facility operated by a community center; [or]

       (C) that identifiable part of a general hospital in which diagnosis, treatment, and care for persons
           with mental illness is provided[.]



TEX. CODE CRIM. PROC. ANN. art. 46B.001(5) (West 2018); TEX. HEALTH & SAFETY CODE ANN.
571.003(12) (West 2017). “Local mental health authority” is defined as



       an entity to which the executive commissioner [of the Health and Human Services Commission]
       delegates the executive commissioner’s authority and responsibility within a specified region for
       planning, policy development, coordination, including coordination with criminal justice entities,
       and resource development and allocation and for supervising and ensuring the provision of mental
       health services to persons with mental illness in the most appropriate and available setting to meet
       individual needs in one or more local service areas.



TEX. HEALTH & SAFETY CODE ANN. 571.003(11) (West 2017).
Analysis
       The challenged order in the trial court’s judgment of incompetency reads as follows:


       IT IS FURTHER ORDERED BY THIS COURT that the Texas Department of Criminal Justice now
       take the Defendant into custody and maintain such custody status in conformity with this order. IT
       IS ORDERED THE Texas Department of Criminal Justice and any health care provider providing
       services to Defendant shall cooperate with all reasonable requests made by the Texas Department
       of Health and Human Services, or its appointed service provider, in furtherance of the objective of
       competency restoration. The Defendant shall remain in the custody of the Texas Department of
       Criminal Justice while receiving competency restoration services from the Texas Department of
       Health and Human Services. The maximum period of confinement as set forth in Art. 46B.073 of
       the Texas Code of Criminal Procedure shall begin on the first day of treatment.


Appellant contends that this order violates Article 46B.071 because the penitentiary does not
qualify as a “mental health facility” or a “residential care facility.” He argues that the word



                                                        3
“commit” in the statute means “a physical exchange of [his] person between the prison and
treatment facility.” Appellant further argues that the order violates Chapter 46B by subjecting him
to treatment by TDHHS rather than a mental health facility selected by the local mental health
authority and operated by TDSHS. Finally, Appellant contends that these alleged departures from
the code’s requirements violate the Texas Constitution’s separation of powers clause.
         We do not reach the merits of Appellant’s questions because even if we resolved them in
his favor, our holding would not result in his immediate release. Appellant cites no authority, and
we find none, for the proposition that a trial court has the authority to release a TDCJ inmate
serving a sentence for one offense to restore his competency to stand trial for another offense. See
TEX. R. APP. P. 38.1(i) (requiring brief to contain clear and concise argument with appropriate
citations to authorities). Therefore, even if we held the trial court’s competency restoration order
in the instant case violates the code of criminal procedure and the Texas Constitution, Appellant
must remain in TDCJ custody until he completes the sentence he was serving when he allegedly
committed the instant offense. As such, our granting Appellant’s requested relief would not allow
for his immediate release from TDCJ custody.
         Because a favorable resolution of Appellant’s questions would not result in his immediate
release, we conclude that pretrial habeas is not available. See Ingram, 533 S.W.3d at 892; see also
Ex parte Stewart, 71 S.W.3d 540, 541 (Tex. App.—Amarillo 2002, no pet.) (habeas relief
unavailable where relator sought reassignment from psychiatric unit to general prison population
because favorable decision would not result in immediate release). Accordingly, we overrule
Appellant’s first and second issues.


                                                  DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the trial court’s judgment
of incompetency.


                                                                 GREG NEELEY
                                                                    Justice

Opinion delivered May 22, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.



                                             (DO NOT PUBLISH)


                                                          4
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                              MAY 22, 2019


                                         NO. 12-19-00055-CR


                                  EX PARTE: JOSEPH HAYNES


                                Appeal from the 369th District Court
                    of Anderson County, Texas (Tr.Ct.No. 369CR-17-33212)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
