Friday, June 4, 2010

No Current Confinement Necessary: Habeas Relief Available for Collateral Consequences

On May 26, 2010, the Texas Court of Criminal Appeals released its opinion in Ex parte Harrington, which has the potential to substantially increase habeas corpus litigation in Texas.  In Harrington, the Court was faced with the question:
[W]hether a person who has discharged his sentence prior to filing an application, but who continues to suffer collateral consequences arising from the challenged conviction, is entitled to seek post-conviction habeas relief under Article 11.07.
 The basis for applicant's petition was that due to his confinement for felony DWI, he suffered collateral consequences, namely, he lost his long-time job with the Texas Workforce Commission.  The applicant argued that but for his counsel's ineffective assistance in failing to investigate his prior DWI conviction, he would not have plead guilty for felony DWI and, in turn, would not have been sentenced to confinement.

In 1987, the CCA answered this question in the negative, holding:
an applicant who alleges only that he is under “restraint,” but who is not “in custody” at the time of filing, is precluded from seeking relief under Article 11.07.  [U]nless an applicant is confined pursuant to a commitment for a felony conviction, a postconviction application for habeas corpus relief from collateral consequences of another conviction will not lie under Article 11.07.
However, in 1995, the Code of Criminal Procedure was amended.
Article 11.07, § 3(c), now explicitly provides that “confinement means confinement for any offense or any collateral consequence resulting from the conviction that is the basis of the instant habeas corpus.” Thus, a showing of a collateral consequence, without more, is now sufficient to establish “confinement” so as to trigger application of art. 11.07. That an applicant is not in the actual physical custody of the government at the time of filing does not preclude his application nor deprive the trial court of jurisdiction to consider it.
Holding that the Court indeed has jurisdiction to entertain Applicant's petition regarding relief from the collateral consequences of his confinement, the Court granted relief and remanded the case back to the trial court for resentencing as a Class A misdemeanor.