Five years ago, in February 2009 I filed an application for writ of habeas corpus on behalf of a guy—we’ll call him Mr. Doe—who had been on probation since 2006 for online solicitation of a child under Section 33.021(b) of the Texas Penal Code, the “explicit communication” statute. I hadn’t represented Mr. Doe at trial, and his trial counsel hadn’t argued that the statute was unconstitutional. (This was a Perverted Justice case, which never would be filed today.)
The trial judge denied habeas relief, so I appealed. The Fourteenth Court of Appeals affirmed the denial of habeas relief in July 2010, so I filed a Petition for Discretionary Review with a single ground for review:
The Fourteenth Court of Appeals erred when it held that the constitutionality of a criminal law cannot be first raised on habeas corpus. If a penal statute unconstitutionally criminalizes protected speech, will a conviction under that law stand forever if not objected to at trial?
The Texas Court of Criminal Appeals denied discretionary review. So Mr. Doe was stuck finishing his probation (until 2011), registering as a sex offender (until 2021) and branded as a convicted felon (for life).Or so it appeared.
In September 2010 I filed a pretrial writ of habeas corpus on behalf of a defendant—call him Mr. Roe—who had been charged with, but not convicted of violating 33.021(b). The trial court denied relief, so I appealed to the First Court of Appeals. The First Court of Appeals affirmed, so I filed a petition for discretionary review. The Court of Criminal Appeals granted PDR, heard argument, and in October 2013 reversed the judgment of the First Court of Appeals, holding 33.021(b) unconstitutional.
(Mr. Roe’s was not the first pretrial writ of habeas corpus I had filed attacking 33.021(b). In September 2009 Herb Ritchie, then judge of the 337th District Court, granted relief. The State failed to appeal that ruling.)
Today Mr. Doe got to go back to court on another habeas, again based on the unconstitutionality of Section 33.021(b), conclusively established in Mr. Roe’s case. This time the State agreed to relief, and the trial court—the same judge who had denied relief in 2009—signed an order dismissing Mr. Doe’s case.
Mr. Doe can never get back his five years on probation or the rubbishing of his good name, but with that order, I’ll get him off the sex-offender registry, I’ll get his records expunged—he can deny that he was ever even arrested—and I may recover a portion of the thousands of dollars in fines, fees, and court costs that he had to pay as a result of his conviction for violating a void statute.
The icing on the cake for me? As he was signing the order, the judge said to me, “you can’t say ‘I told you so’ because I didn’t get a chance to rule on this before.”
“Yes you did, judge.
“I told you so.”