An application for writ of habeas corpus (WHC or "writ") is a type of legal proceeding which allows an inmate to bring up new evidence to show that he needs a new trial. The evidence must be compelling and serious. For example, if police withheld vital evidence, or if his lawyer was ineffective, or the judge had a conflict of interest, then these might constitute grounds for a writ of habeas corpus. These appeals are rarely granted, perhaps 2 or 3 in 100. Mr. Volberding is Board Certified in Criminal Law and Criminal Appellate Law by the Texas Board of Legal Specialization.
In Texas, an inmate is generally permitted to file one, and only one, application for writ of habeas corpus. Because the inmate is permitted only one application, it is best that a lawyer prepare it. The WHC is filed in the same trial court where the inmate was convicted. The trial judge is required to make recommendations and then forward the application to the Texas Court of Criminal Appeals in Austin for decision.
A WHC is a complex legal undertaking. There are difficult rules which favor the prosecutors. The inmate is required to produce new evidence in the form of affidavits. The inmate must show not merely that a mistake occurred at trial, but that a huge mistake occurred – one so large that the federal constitution was violated. This means that before filing a successful WHC, the lawyer must investigate the entire trial, contact witnesses, interview the original lawyer, and anticipate the prosecutors' response. It is usually necessary to hire a private investigator to track witnesses and obtain affidavits.
Our Tyler, TX law firm charges a minimum of $7,500 for preparation of an application for writ of habeas corpus. This is a retainer, not a flat fee. We bill by the hour. The costs of a WHC can reach $20,000 - $30,000.
Before deciding to hire a lawyer for an application for writ of habeas corpus, it is more practical to hire a lawyer for a case review. In a case review, the lawyer will meet with the client at his prison unit, learn the details of his case, interview his family, and examine the court's file and his previous appeal. After the end of this work, the lawyer will analyze what work could be done for the client, and then write a report which discusses his case and lists possible legal issues to be raised in an application for writ of habeas corpus.
If the lawyer concludes that there is nothing that can be done to help the inmate in an application for writ of habeas corpus, then the lawyer will recommend that you stop work and not spend any more money.
The retainer for a case review is $3,500 for inmates located in one of the units in Tennessee Colony or within two hours of Tyler. If the inmate is farther, then there would be additional charges for travel.
Before leaving this subject, it is worth discussing "time cuts." There is a myth in Texas prisons that a procedure called "motion for a time cut" exists. Your friend or loved one in prison may ask you about this. However, there is no such thing as a "time cut." Many prisoners file motions and ask lawyers to help them obtain a time cut of their sentence, but this is a waste of time. There is no such procedure.
There is in Texas law, however, a procedure for reducing a defendant's sentence, but this procedure requires the agreement of the judge, district attorney, sheriff's department and police. The circumstances where all of the law enforcement officials would agree to reduce a prisoner's sentence are so rare as to be non-existent.
If you have questions about filing an application for writ of habeas corpus in Texas or would like more information, please contact Tyler, Texas, lawyer James Volberding.