Art. 11.12. WHO MAY PRESENT PETITION. Either the party for whose relief the writ is intended, or any person for him, may present a petition to the proper authority for the purpose of obtaining relief.
Not only could a DA’s Office ask the court to appoint counsel under article 11.074 of the Texas Code of Criminal Procedure, but they could also file an application for writ of habeas corpus on behalf of a person unlawfully convicted.
They could do so with or without the person’s consent, and nobody is in a better position than the DA’s Office to know whether a defendant would benefit from habeas relief—the only reason a defendant should not seek relief from an unlawful conviction is if the DA’s Office intends to file other charges when habeas relief is granted, and only the DA’s office knows for sure if it intends that.
I know of at least two cases in which people got habeas relief from a conviction for the unconstitutional section 33.021(b), only to wind up with worse deals for other charges. Not privy to the DA’s intentions, I have advised many people, based on the limited information that I have—whatever I can shake loose from prior counsel, or from the DA’s Office with a Public Information Act request—this this is a possibility. Some have not taken the risk.1
In one of the cases in which someone got habeas relief for the unconstitutional conviction, only to wind up with a worse deal, it was the DA’s Office that had filed the habeas petition.
Yes, the DA’s Office filed a habeas petition, got relief for the defendant, and then used the grant of habeas relief to justify prosecuting the defendant for another offense.
I don’t approve—it’s a shitty thing to do, undoing the deal that you’ve made if the defendant doesn’t want to undo it—but it goes to show that, in a case where the DA’s Office’s Conviction “Integrity” Unit knows that the defendant is entitled to relief and that it has no intention to reprosecute, the DA’s Office doesn’t even need to ask a court to appoint counsel; it can get that relief on its own.
(Not holding my breath.)
The rest have taken the risk and not been prosecuted. ↩