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in Re Arnold Garza ( 2010 )


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  • TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





    NO. 03-10-00154-CR  

    In re Arnold Garza





    ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY

    M E M O R A N D U M O P I N I O N  


    Arnold Garza (1) has filed an original Application for Writ of Habeas Corpus in this Court. He seeks relief from an order of commitment arising out of a criminal case. This Court does not have the power to consider original applications for writs of habeas corpus in criminal cases. See Tex. Code Crim. Proc. Ann. art 11.05 (West 2005); see also Tex. Const. art. V, § 5(c) (court of criminal appeals shall have the power to issue the writ of habeas corpus). This Court's original jurisdiction to issue a writ of habeas corpus is limited to those cases in which a person's liberty is restrained because the person has violated an order, judgment, or decree entered in a civil case. See Tex. Gov't Code Ann. § 22.221(d) (West 2004); Dodson v. State, 988 S.W.2d 833, 835 (Tex. App.--San Antonio 1999, no pet.); Ex parte Hawkins, 885 S.W.2d 586, 588 (Tex. App.--El Paso 1994, orig. proceeding); Norris v. State, 630 S.W.2d 362, 364 (Tex. App.--Houston [1st Dist.] 1982, no writ). Because Garza's application arises from an order entered in a criminal case, not a civil case, we have no jurisdiction to consider it.

    This Application for Writ of Habeas Corpus is dismissed for want of jurisdiction.





    G. Alan Waldrop, Justice

    Before Chief Justice Jones, Justices Pemberton and Waldrop

    Dismissed for Want of Jurisdiction

    Filed: March 26, 2010

    Do Not Publish

    1. The application was filed by Michael Joseph Kearns purporting to act as Arnold Garza's next friend. Nothing in the record presented authorizes Kearns to act as Garza's next friend. See Saldarriaga v. Saldarriaga, 121 S.W.3d 493, 498-99 (Tex. App.--Austin 2003, no pet.) ("It is legal error to conclude from rule 44 that an attorney may step in as next friend for a grown woman in the middle of a lawsuit without a formal adjudication of incapacity. . . . We find it incongruous that a next friend would have the same rights as a guardian but not be bound by the same procedure for appointment."). However, habeas petitions may be presented by someone other than the applicant on the applicant's behalf. See Tex. Code Crim. Proc. Ann. art. 11.12, 11.13 (West 2005). We note that this Court has held that, although an individual can sign and present the petition seeking the freedom of another, he would need the aid of an attorney to appear in court on behalf of another. Drew v. Unauthorized Practice of Law Committee, 970 S.W.2d 152, 156 (Tex. App.--Austin 1998, pet. denied).