Gibson v. State

• Decision Date: 21 March 1996
• Docket Number: No. 08-95-00148-CR,08-95-00148-CR
• Citation: 921 S.W.2d 747
• Parties: Michael R. GIBSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 747

921 S.W.2d 747

Michael R. GIBSON, Appellant, v. The STATE of Texas, Appellee.

No. 08-95-00148-CR.

Court of Appeals of Texas El Paso.

March 21, 1996.

Rehearing Overruled May 1, 1996.

Michael R. Gibson, El Paso, for Appellant.

Jaime E. Esparza, District Attorney, Jose R. Rodriguez, County Attorney, El Paso, for State.

Before BARAJAS, C.J., and LARSEN and McCLURE, JJ.

OPINION

McCLURE, Justice.

This is an appeal from the trial court's denial of habeas corpus relief. We affirm the judgment of the trial court.

FACTUAL BACKGROUND

Applicant, Michael Gibson, a Texas attorney practicing in El Paso County, filed an application for writ of habeas corpus in the 168th District Court of El Paso County. Gibson alleged that the Sheriff of El Paso County unlawfully restrains his liberty by requiring him to pass his belongings through an "X-ray" machine, and to walk through a magnetometer, ¹ before he is permitted to enter the courthouse. The procedure is similar to that found in airports and federal courthouses throughout the country. Gibson contends that the procedure is an illegal arrest in violation of Texas Code of Criminal Procedure, Articles 14 and 15 and an unlawful restraint in violation of the Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution.

The trial court conducted a hearing on Gibson's application on April 28, 1995. Gibson was the only witness to testify at the hearing. The following is a summary of his testimony. Gibson is a private practitioner specializing in the defense of criminal matters, and his practice requires him to enter the El Paso County Courthouse. Every time Gibson enters the courthouse, the Sheriff of El Paso County requires Gibson to "allow an examination of [his] briefcase and other carrying devices containing legal papers and matters pertaining to [his] briefcase and other carrying devices containing legal papers and matters pertaining to [his] clients and inspection of [his] person and [his] belongings to a detention; fully passing through an electronic monitoring device which apparently depicts large items of metal." There is no entry into the courthouse without passing through the metal detectors. The courthouse contains the offices of the county judge, county commissioners, county courts at law, the county attorney, the district attorney, district courts, a justice court, the county clerk, the district clerk, family law associate judges, and "other functionaries," including the courtroom and chambers of this Court. It is therefore impossible for Gibson to conduct his business and represent his clients without subjecting himself to the search in order to gain access to the courthouse. On cross-examination, Gibson admitted that every person who enters the courthouse must pass through the metal detectors. Gibson further admitted that he must pass through similar metal detectors at the federal courthouse located in El Paso County, but he has not sought a remedy for the federal courthouse.

Gibson requested the trial court to order the Sheriff of El Paso County to cease searching the "personal belongings of Michael R. Gibson each time that he attempts to enter the courthouse, and allow him to enter at will without restriction and without an arrest, as defined in the State Penal Code and/or to make such other lawful arrangements which would alleviate the problem as may be authorized by law and required as a practical matter." The trial court denied relief, and Gibson appealed.

THE STATE OF TEXAS THROUGH THE DISTRICT ATTORNEY IS THE

APPROPRIATE APPELLEE

Before reaching the merits of this appeal, we must address a preliminary procedural matter. Gibson filed a "Motion to Strike Brief of State of Texas" alleging that the State has no standing to file a brief because Leo Samaneigo in his capacity as the Sheriff of El Paso County is the appropriate party. Although the El Paso County Sheriff's Department appears to be the governmental entity performing the searches, the procedural posture of this case as chosen by Gibson dictates that the State, represented by the district attorney's office, is the correct appellee.

Gibson chose to file an application for writ of habeas corpus pursuant to Chapter 11 of the Code of Criminal Procedure seeking relief from the alleged unlawful restraint on his liberty. Article 2.01 of the Texas Code of Criminal Procedure provides, in pertinent part:

Each district attorney shall represent the State in all criminal cases in the district courts of his district and in appeals therefrom.... When any criminal proceeding is had before an examining court in his district or before a judge upon habeas corpus, and he is notified of the same, and is at the time within his district, he shall represent the State therein, unless prevented by other official duties. [Emphasis added].

TEX.CODE CRIM.PROC.ANN. art. 2.01 (Vernon Supp.1996).

It is therefore the district attorney's duty to represent the State in this habeas corpus proceeding. Gibson alleges that the phrases "all criminal cases" and "any criminal proceeding" make Article 2.01 inapplicable to this particular habeas proceeding because Gibson is not accused or convicted of a crime. Although he asserts that he brings this habeas proceeding pursuant to Article 11 of the Code of Criminal Procedure, Gibson argues that because there is no crime, this habeas proceeding cannot be a "criminal proceeding" or a "criminal case" subject to Article 2.01.

We find that the phrases in question refer not to the status of the applicant, but to the nature of the proceeding. A writ of habeas corpus pursuant to Article 11 of the Code of Criminal Procedure is a criminal proceeding despite its availability to persons not accused of crimes. Article 11 habeas corpus relief has broad availability to applicants. Ex parte Hargett, 819 S.W.2d 866, 867 (Tex.Crim.App.1991). Article 11.01 describes the writ as the remedy to be used when "any person," not just a person accused or convicted of a crime, is restrained in his liberty. See TEX.CODE CRIM.PROC.ANN. art. 11.01. "Restraint" is further defined as "the kind of control which one person exercises over another, not to confine him within certain limits, but to subject him to the general authority and power of the person claiming such right." TEX.CODE CRIM.PROC.ANN. art. 11.22 (Vernon 1977). The definition encompasses all official restraint and does not limit habeas corpus relief to official restraint exercised pursuant to criminal charges. Thus, the remedy afforded pursuant to Article 11 is not limited to those accused or convicted of a crime. Any person seeking relief from unlawful restraint may proceed under Article 11 of the Code of Criminal Procedure, making the action a criminal proceeding, regardless of whether the applicant is accused or convicted of a crime. Article 2.01 of the Code of Criminal Procedure is therefore applicable to this habeas proceeding brought pursuant to Article 11 of the Code.

Additionally, the State's interest in these proceedings is clear. The Texas Legislature vested the authority to provide and administer a fund for the purpose of courthouse security in the commissioners court of each county. See TEX.LOCAL GOV'T.CODE ANN. art. 291.008 (Vernon Supp.1996). According to the Texas Attorney General, these courthouse security funds are in response to recent courthouse violence indicating a need for increased security in the courthouses of this state for the protection of both courthouse personnel and members of the public who visit the courthouses. See Op.Tex.Atty Gen. DM-283 (1994). The State, by legislating courthouse security funds, has displayed an interest in providing security to protect courthouses for the benefit of all citizens of Texas.

Gibson brought his application for writ of habeas corpus pursuant to TEX.CODE CRIM.PROC.ANN. art. 11.01 et seq. As such, it is a criminal proceeding subject to TEX.CODE CRIM.PROC.ANN. art. 2.01. We conclude that the State, represented by the district attorney's office, is the appropriate party to this habeas corpus proceeding and appeal. Having resolved this matter, we turn to the merits.

STANDARD FOR HABEAS CORPUS RELIEF

An applicant for habeas corpus relief has the burden of proving facts which would entitle the applicant to the relief sought. Ex parte Kimes, 872 S.W.2d 700, 703 (Tex.Crim.App.1993). The applicant must establish that he is either "confined" or "restrained." See Rodriguez v. Court of Appeals, 769 S.W.2d 554, 558 (Tex.Crim.App.1989) (restraint required before writ relief can be granted); TEX.CODE CRIM.PROC.ANN. art. 11.01. Additionally, the applicant must show that he or she is under the confinement or restraint at the time of the filing of the writ application. See Rodriguez, 769 S.W.2d at 558. The applicant must further show that he or she has no other adequate remedy. Ex parte Groves, 571 S.W.2d 888, 890 (Tex.Crim.App.1978). Finally, the applicant must show that the confinement or restraint is unlawful. See TEX.CODE CRIM.PROC.ANN. arts. 11.14, 11.23 (Vernon 1977).

IS GIBSON CONFINED OR RESTRAINED?

"Confinement" or "confined" is defined in Article 11.21 as detaining a person within certain limits. TEX.CODE CRIM.PROC.ANN. art. 11.21. Gibson does not allege that he is confined within certain limits. He therefore is not "confined" for purposes of the statute. Gibson is, however, restrained. "Restraint" is defined as "the kind of control which one person exercises over another, not to confine him within certain limits, but to subject him to the general authority and power of the person claiming such right." TEX.CODE CRIM.PROC.ANN. art. 11.22.

In a habeas corpus context, Texas courts have long applied a broad interpretation of the term "restraint." In Ex parte Snodgrass, the Court of Criminal Appeals stated "suffice it to say that any character or kind of restraint that precludes an absolute and perfect freedom of action on the part of [the...