Texas trial courts are seeing an upward trend in pretrial writ of habeas corpus applications challenging felony indictments. This trend seems “organic,” i.e., there’s been no specific change in the law that attorneys are reacting to. It is unclear why the criminal defense legal community seems to be gravitating towards this strategy. I suspect that recent successful facial challenges to the constitutionality of a few Texas Penal Code provisions has put pretrial writs on the defense bar’s radar. But I don’t think anyone knows for sure.
In light of recent a recent Court of Criminal Appeals (“CCA”)decision — Ex parte Edwards, it’s helpful to for defense attorneys that do not regularly file writs to be mindful of what type of grounds are “cognizable” in a pretrial writ, i.e. what kind of grounds can be properly raised. This is because in Edwards the CCA appears to have rolled back what most lawyers considered a “safe” pretrial writ claim — arguing that the State indicated a defendant outside the statute of limitations.
In Edwards, the CCA held that you can only challenge the statute of limitations in a pretrial writ under very limited circumstances. The CCA suggested the better way to argue limitations is with a motion to dismiss.