I didn’t give the prosecutor enough credit, when I pre-guessed that his response would be “out of time”. But he did throw a procedural wrinkle at me: Municipal Court judges can’t grant a writ. From Article 11.05, Texas Code of Criminal Procedure:
Art. 11.05. By Whom Writ May Be Granted.
The Court of Criminal Appeals, the District Courts, the County Courts, or any Judge of said Courts, have power to issue the writ of habeas corpus; and it is their duty, upon proper motion, to grant the writ under the rules prescribed by law.
Municipal court not listed, therefore a municipal court judge does not have the power or authority to issue the writ. Although 11.05 does not specifically say the list is exhaustive, it’s still a good procedural argument for the state.
A good argument, but for Texas Government Code Chapter 30, “Municipal Courts of Record”, Section 30.00006 “Judge”, stating in subsection (e):
(e) The municipal judge shall take judicial notice of state law and the ordinances and corporate limits of the municipality. The judge may grant writs of mandamus, attachment, and other writs necessary to the enforcement of the jurisdiction of the court and may issue writs of habeas corpus in cases in which the offense charged is within the jurisdiction of the court. A municipal judge is a magistrate and may issue administrative search warrants.
The judge decided he did have authority to hear the application, and to issue the writ if it were meritorious. To the prosecutor’s credit, he had told me beforehand that if his procedural issue failed, he agreed with the substance of the writ.
And so the judge granted it. I had initially typed up an order, but somehow neglected to attach it to the writ when filed, so the judge kindly signed this hastily hand written order. (Insert joke about lawyer who thinks his petition will fail, doesn’t bother to attach order. Ooops.)
Having attached proof of innocence (client had insurance at time of initial ticket) the case was dismissed and $394 ordered to be returned to client. The clerk told me they will notify DPS, which will not only reverse the $870 surcharge, but actually has a mechanism to refund monies already paid. I will follow up on that, but I won’t be holding my breath.