       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00767-CR
                                       NO. 03-08-00768-CR




                               Ex parte Prakashandand Saraswati




     FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
    NO. CR08272 & CR08273, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Prakashandand Saraswati is awaiting trial on two indictments, each

accusing him of ten counts of indecency with a child by contact.1 Appellant applied for a writ of

habeas corpus to challenge a condition of his bail bonds. The writ issued and, after a hearing, relief

was denied. This appeal followed.

               Appellant is a prominent Hindu spiritual master and teacher. He is the leader of

JKP-Barsana Dham, a movement within the Hindu faith with a world-wide membership. The North

American headquarters for this movement is the Barsana Dham community in Hays County, site of

a temple, appellant’s residence, and the residences of a number of appellant’s followers. It is also



   1
      The indictment in cause number CR08272 alleges that appellant touched the breasts of the
complainant, S.R., on ten occasions between September 1, 1993, and January 15, 1994. The
indictment in cause number CR08273 alleges that appellant touched the breasts of the complainant,
V.T., on ten occasions between September 1, 1995, and January 15, 1996. See Tex. Penal Code
Ann. § 21.11(a)(1), (c)(1) (West 2003).
the location where the alleged criminal acts took place. As a condition of his release, appellant’s bail

bonds require that he not physically enter the Barsana Dham property at any time.2 Appellant urges

that this condition violates both the statutes governing pretrial bail and his rights under the First,

Eighth, and Fourteenth Amendments to the United States Constitution.


                                           BACKGROUND

                  The indictments were filed on April 2, 2008, and we infer from the record that

appellant’s bail was initially set at $500,000 in each cause. On April 16, the district court increased

appellant’s bail to $1,000,000 in each cause and ordered, as a condition of bond, that appellant

surrender his passport.3

                  On April 25, 2008, the State filed a motion to impose two additional bond conditions:

(1) that appellant have no contact with persons under the age of eighteen, and (2) that appellant

remain at least 200 yards from the Barsana Dham property. On the same date, appellant moved to

reduce his bail to $500,000 in each cause. Both motions were granted. In orders signed on April 25,

the district court reduced bail in each cause to $500,000 and conditioned any bond on appellant

having no unsupervised contact with children under the age of seventeen, surrendering his passport,

and remaining at least 200 yards from Barsana Dham. As an exception to the third condition,

the order permitted appellant to go to Barsana Dham for religious activities on the weekend of

April 26, 2008. On April 28, the court modified the order to permit appellant to go to Barsana Dham




  2
       The record reflects appellant is presently living in a house a short distance from Barsana Dham.
   3
        Appellant is a United States citizen and holds a United States passport.

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for religious activities through May 2, 2008. Bonds incorporating the court’s conditions were posted

on April 26.

               On April 30, 2008, appellant filed a motion to amend the conditions of his bonds to

permit the return of his passport and to allow him to return to Barsana Dham. A hearing on this

motion was held on May 14. At the hearing, appellant’s counsel told the court, “We’d like to focus

on the returning of the passport and travel to India as a change in conditions.” Appellant offered

evidence regarding his prominence in the Hindu community and the importance of his being allowed

to officiate at events in India during the next several months. A member of the Barsana Dham

community, Peter Spiegel, testified that he was able and willing to pledge $10,000,000 if the court

would permit appellant to travel to India. Following a recess during which it appears that there was

an unreported conference involving the court and counsel for both parties, the court announced,

“[J]ust for the record, the passport will be returned with the additional conditions that you have

agreed on, including the new bond.” Appellant’s counsel responded, “That’s correct, Your Honor.”

               The agreement reached by the parties on May 14 was incorporated into a document

styled “agreed additional stipulations and conditions of bond” that was filed on May 16, 2008. The

written agreement stated that: (1) appellant “acknowledges the receipt from the State of his United

States passport”; (2) Spiegel agrees to be “the guarantor of a $10,000,000 personal bond that shall

be given”; and (3) appellant “acknowledges and agrees that he shall not physically enter the Barsana

Dham property in Hays County at any time.” The agreement was signed by appellant, appellant’s

counsel, Spiegel, and counsel for the State. On May 14 and June 20, the district court signed orders

amending the conditions of appellant’s bonds to incorporate the agreement. Appellant subsequently



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posted a $1,000,000 bail bond in cause number CR08272 and a $10,000,000 personal bond

guaranteed by Spiegel in cause number CR08273. Both bonds incorporate by reference the

conditions ordered by the district court on April 25 and May 14.

                On August 13, 2008, appellant filed another motion to modify the conditions of his

release. In the motion, appellant described the ongoing schedule of religious activities at Barsana

Dham and appellant’s role in them. The motion reminded the court that the alleged offenses

occurred over ten years ago and that the complainants no longer live in Texas, and it stated that no

one under the age of eighteen currently resides at Barsana Dham. The motion asked that appellant

be permitted to return to Barsana Dham to live, practice his religion, and associate with the adults

living there.

                A hearing on this motion was held on August 20, 2008. Witnesses testified to the

significant role appellant plays in the religious life of Barsana Dham. Evidence was also offered

regarding appellant’s living arrangements at Barsana Dham, and witnesses confirmed that no minors

were currently living there. At the conclusion of the hearing, the August 13 motion to modify the

conditions of appellant’s bonds was overruled.

                Appellant filed his habeas corpus applications on September 29, 2008. In each, he

complained that he was being unlawfully restrained by the condition of his bonds excluding him

from Barsana Dham. He urged that the condition violates his First Amendment freedoms of religion

and association, is excessive within the meaning of the Eighth Amendment, does not serve to ensure

his appearance for trial, and is not reasonably related to the safety of either the alleged victims or of

the community as a whole. Appellant asked that the bond conditions be modified to grant him



                                                   4
continuing access to Barsana Dham, subject to the requirement that he have no unsupervised contact

with minors. The State filed a written answer opposing the grant of relief on several grounds. On

November 24, the district court signed an order denying the requested relief and filed written

findings of fact and conclusions of law.


                                           DISCUSSION

               The State asserts that the Court should dismiss this appeal for want of jurisdiction,

reasoning that appellant is essentially appealing the overruling of his August 13 motion to modify

the conditions of his bonds. In general, no appeal can be taken from an interlocutory order on a

motion to alter the terms of pretrial bail. See Ex parte Shumake, 953 S.W.2d 842, 844-46 (Tex.

App.—Austin 1997, no pet.). On the other hand, courts of appeals have jurisdiction to hear appeals

from the denial of relief in habeas corpus proceedings. See Ex parte Hargett, 819 S.W.2d 866, 869

(Tex. Crim. App. 1991). The State argues that appellant should not be permitted to “bootstrap” an

appeal from an otherwise nonappealable interlocutory order by filing a habeas corpus application

making the same legal and factual allegations.

               The use of habeas corpus to challenge the amount or conditions of pretrial bail is an

accepted part of Texas criminal procedure, in part because the denial of habeas corpus relief may be

appealed before trial on the merits. See 41 George E. Dix & Robert O. Dawson, Texas Practice:

Criminal Practice and Procedure § 16.121 (2d ed. 2001). The use of habeas corpus for this purpose

is authorized by both statute and rule. See Tex. Code Crim. Proc. Ann. art. 11.24 (West 2005)

(person committed to custody for failing to enter into bond is entitled to writ of habeas corpus);

id. art. 11.64 (chapter eleven applies to use of habeas corpus for admission of prisoners to bail);

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Tex. R. App. P. 31.1-31.7 (appeals in habeas corpus, bail, and extradition proceedings). There is no

dispute that appellant is restrained in his liberty by reason of the conditions of his bail, that appellant

challenged this restraint in his habeas corpus application, or that the district court denied the

requested relief on the merits. The State’s motions to dismiss the appeals for want of jurisdiction

are overruled.

                  Alternatively, the State urges that appellant’s challenge to the bond condition that he

not enter Barsana Dham was procedurally defaulted. The State argues that appellant waived or

forfeited his right to complain of this condition by failing to timely object when the condition was

first imposed by the court. Moreover, the State argues that appellant was estopped from complaining

of the condition in his habeas corpus application because he expressly agreed to the condition in the

district court.

                  The district court granted the State’s April 25, 2008, motion to bar appellant from

Barsana Dham on the day the motion was filed and, so far as the record reflects, without first

conducting a hearing. Under the circumstances, appellant cannot be faulted for failing to voice an

objection to the condition at that time. However, after moving on April 30 to have this condition

set aside, appellant effectively abandoned his objection to the condition at the May 14 hearing. At

that hearing, appellant chose to focus entirely on his request to have his passport returned in order

to travel to India. Most significantly, appellant and his counsel reached an agreement with the State,

adopted by the district court at the conclusion of the hearing, under which appellant’s passport was

returned, the $10,000,000 personal bond was agreed to, and appellant agreed in writing to the

condition that he “shall not physically enter the Barsana Dham property in Hays County at any



                                                    6
time.”4 Thereafter, appellant posted bond and voiced no further complaint regarding the condition

at issue until August 13, when he filed another motion to modify the conditions of his bonds.

                In his brief, appellant argues that a habeas corpus petition challenging the legality of

one’s restraint or confinement can be filed at any time. This may be true, but it does not answer the

State’s argument that appellant, by agreeing to the condition that he not return to Barsana Dham,

waived or is estopped from asserting his contention that the condition is unlawful. At oral argument,

appellant argued that the code of criminal procedure permits the reconsideration of the terms of a

bail bond at any time in order to allow for a change in circumstances. See Tex. Code Crim. Proc.

Ann. art. 17.09, § 3 (West Supp. 2008). But appellant did not allege in his habeas corpus application

that there had been any material change in circumstances since the May 14 hearing. To the contrary,

the arguments appellant now makes against the condition barring him from Barsana Dham echo the

arguments he made against the condition in his April 30 motion to amend, before he ultimately

agreed to the condition. Appellant’s inability to return to Barsana Dham was no less a hindrance to

his ability to practice his religion or associate with his followers in May than it was in August, or

than it is today.

                A party may be estopped from asserting a claim that is inconsistent with that party’s

prior conduct. Arroyo v. State, 117 S.W.3d 795, 798 (Tex. Crim. App. 2003). The terms of

appellant’s bail bonds, including the condition that he not enter the Barsana Dham property at any




  4
    Appellant asserts in his brief that his counsel at the hearing, during an in-chambers conference,
reserved the right to challenge this condition following appellant’s return to the United States from
India. The State denies this and, in any case, appellant concedes that there is no support for this
assertion in the record.

                                                   7
time, were negotiated by appellant’s counsel at the May 14 hearing and memorialized in the May 16

written stipulation and agreement. There is no allegation that appellant did not understand the agreed

conditions of his bond or that appellant’s acceptance of those conditions was involuntary. Even if

a material change of circumstances would permit appellant to challenge the previously agreed-to

conditions, he has not alleged changed circumstances. Having negotiated the terms and conditions

of his present bonds, appellant is estopped from complaining that those conditions are unlawful.

See Ex parte Shoe, 137 S.W.3d 100, 102 (Tex. App.—Fort Worth 2004, no pet.).

               The order denying relief in these causes is affirmed.




                                               __________________________________________

                                               J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Puryear and Henson

Affirmed

Filed: June 24, 2009

Do Not Publish




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