KLEINMAN, EX PARTE MICHAEL v. the State of Texas

In the Court of Criminal
Appeals of Texas
════════════
Nos. PD-0966-24 thru PD-0974-24
════════════

EX PARTE MICHAEL KLEINMAN, Appellant

════════════
Nos. PD-0975-24 thru PD-0980-24
════════════

EX PARTE AUSPRO ENTERPRISES, L.P., Appellant

═══════════════════════════════════════
On Appellants’ Petitions for Discretionary Review
From the Third Court of Appeals
Williamson County
═══════════════════════════════════════

YEARY, J., delivered the opinion of the Court in which SCHENCK,
P.J., and RICHARDSON, KEEL, WALKER, MCCLURE, FINLEY, and PARKER,
J.J., joined. NEWELL, J., concurred.

This case involves pretrial applications for writs of habeas corpus
in a group of Class C misdemeanor cases. The court of appeals affirmed
KLEINMAN – 2

the county court at law’s denial of relief, not on the merits as the county
court at law had, but because Appellants “failed to meet their burden of
establishing that they were under a restraint sufficient to justify their
requested habeas relief[.]” Kleinman v. State, 706 S.W.3d 391, 398 (Tex.
App.—Austin 2024). We granted Appellants’ petitions for discretionary
review to examine the court of appeals’ conclusion regarding the
“sufficiency” of the restraint. We reverse the court of appeals’ judgment
and remand the cases to that court for further proceedings.
I. BACKGROUND
Appellant Kleinman and his business entity, Auspro Enterprises,
L.P., were charged in separate complaints with fifteen instances of
operating a so-called “head shop” in violation of Cedar Park Code of
Ordinances, Sections 11.01.032 and 11.02.064—Class C misdemeanors. 1
Both Appellant and his business were convicted in municipal court.
They then both appealed, seeking trial de novo in the Williamson
County Court at Law No. 5. 2 To effectuate their appeal to the county

1 Kleinman was charged by complaint with nine instances of violation

of the ordinances, alleged to have occurred on December 22, 2021, and January
3, January 13, January 20, January 27, February 7, February 11, February 22,
and March 1, 2022. Auspro Enterprises was charged by complaint with six
instances of violation of the same ordinances, alleged to have occurred on
December 22, 2021, and January 27, February 7, February 11, February 22,
and March 1, 2022. Operating a “Head Shop” in violation of Cedar Park City
Ordinances governing zoning constitutes a Class C misdemeanor, subject to a
fine not to exceed $2,000, and each day a violation continues constitutes a
separate offense. Code of Ordinances, City of Cedar Park, Texas, Chapter 1,
Article 1, Sections 1.01.009, 11.01.032, 11.02.064, 11.08.003 & 11.09.001.

2 See Article 44.17 (providing that in appeals from municipal courts to
county courts, “the trial shall be de novo . . . the same as if the prosecution had
been originally commenced in that court.”); Article 45.042(b) (recodified as
Article 45A.202(b)) (same).
KLEINMAN – 3

court at law, as required by statute, they both posted appellate bonds,
the sum of which totaled $64,881.72.
They next filed pretrial applications for writs of habeas corpus in
the county court at law challenging the constitutionality of the city
ordinances on vagueness grounds. 3 The county court at law denied relief
on the merits of the constitutional challenges, having first concluded in
its written findings and conclusions that Appellants were restrained in
their liberty for purposes of pursuing pretrial habeas relief by virtue of
the cash appeal bonds for their pending criminal charges filed in that
court.
Appellants then pursued interlocutory appeal of the county court
at law’s denial of habeas relief on the merits. The court of appeals
affirmed the county court at law’s denial of relief, but it did not even
reach the merits of Appellants’ arguments at all. Instead, the court of
appeals concluded “that pretrial habeas relief is not available to
applicants who have been charged with a fine-only offense and are not
in custody or have not been released from custody on bond.” Kleinman,
706 S.W.3d at 398.
The court of appeals acknowledged that Appellants had filed
appeal bonds to perfect their de novo trial in the county court at law, but
it explained that any allusion in the conditions of the appeal bond to

All references to “Articles” hereinafter in this opinion refer to the Texas
Code of Criminal Procedure. Also, all emphasis is added.
3 “Specifically, they argue that the ordinance provides no objective

criteria or guidance regarding what is and is not prohibited and relies on
subjective assessments by City employees who have unfettered discretion to
make these assessments. Additionally, [they] assert that the ordinance is
vague because it lacks a culpable mental state.” Kleinman, 706 S.W.3d at 394.
KLEINMAN – 4

arrest for non-payment was merely “required to be included by statute
and does not indicate that any type of arrest was currently looming.” Id.
(citing Article 17.08, Section 6 of which alludes to the recovery of
“reasonable expenses incurred” for “rearresting the principal in the
event he fails to appear” as required by the bail bond). This potential for
re-arrest, the court of appeals concluded, was too speculative to
constitute “a restraint sufficient to justify [Appellants’] requested
habeas relief[.]” Id. And on that basis, it affirmed the county court at
law’s order denying pretrial habeas corpus relief. Id.
We granted Appellants’ petitions for discretionary review to
examine this conclusion.
II. THE APPLICABLE LAW
This Court has explained that “[a] defendant may use a pretrial
writ of habeas corpus only in very limited circumstances.” Ex parte
Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005). As the court of
appeals also noted, pretrial habeas corpus relief is an extraordinary
remedy, subject to interlocutory appeal. Kleinman, 706 S.W.3d at
394−95 (citing Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010)).
But “habeas corpus” is not to be “used as a substitute for appeal.” Ex
parte Beck, 541 S.W.3d 846, 852 (Tex. Crim. App. 2017). So, the pretrial
writ should not be used “to secure pretrial appellate review of matters
that in actual fact should not be put before appellate courts at the
pretrial stage.” Kleinman, 706 S.W.3d at 395 (quoting Ellis, 309 S.W.3d
at 79, which in turn quotes Ex parte Doster, 303 S.W.3d 720, 724 (Tex.
Crim. App. 2010)).
Also, according to our law, the habeas remedy is predicated on the
KLEINMAN – 5

notion that it exists for the benefit of applicants who are “restrained in
[their] liberty.” Article 11.01. So, this Court has said that “[w]hether an
applicant is being restrained within the meaning of the habeas corpus
statutes is a threshold question.” Id. at 396−97 (citing Ex parte Schmidt,
109 S.W.3d 480, 481 (Tex. Crim. App. 2003)). We turn, then, first to an
examination of the text and history of our habeas statutes.
Except for Articles 11.07 through 11.074, every article that
presently appears in Chapter 11 of the Texas Code of Criminal
Procedure could be found almost verbatim in the “Old Code” of 1856.
Thus, it has long been the statutory law of this state that “[t]he writ of
habeas corpus is the remedy to be used when any person is restrained in
his liberty.” Article 11.01. Chapter 11 also explains that it “applies to all
cases of habeas corpus for the enlargement of persons . . . in any manner
restrained in their personal liberty[.]” Article 11.64.
The scope of the writ is also statutorily set: It “is intended to be
applicable to all such cases of . . . restraint, where there is no lawful right
in the person exercising the power, or where, though the power in fact
exists, it is exercised in a manner or degree not sanctioned by law.”
Article 11.23. And “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.” Article 11.22. “[I]f no legal cause be shown for the
. . . restraint, or if it appear that the . . . restraint, though at first legal,
cannot for any cause be lawfully prolonged, the applicant shall be
discharged.” Article 11.40.
The Texas Constitution mandates, in no less than Article I, that
KLEINMAN – 6

the Legislature “shall enact laws to render the remedy speedy and
effectual.” TEX. CONST. art. I, § 12. Accordingly, the Texas Legislature
has proclaimed that the provisions of Chapter 11 “shall be most
favorably construed in order to give effect to the remedy, and protect the
rights of the person seeking relief under it.” Article 11.04. And this
Court, early on, declared that “any character or kind of restraint that
precludes the absolute and perfect freedom of action on the part of
relator authorizes such relator to make application to this [C]ourt for
release from said restraint.” Ex parte Snodgrass, 43 Tex. Crim. 359, 362,
65 S.W. 1061, 1062 (1901).
This Court’s decision in Ex parte Foster, 44 Tex. Crim. 423, 425,
71 S.W. 593, 594 (1903), is to the same effect as Ex parte Snodgrass.
Both Snodgrass and Foster involved habeas applicants who were
admitted to bail following contempt judgments without ever having been
incarcerated. Snodgrass, 43 Tex. Crim. at 361−62, 65 S.W. at 1061−62;
Foster, 44 Tex. Crim. at 424−25, 71 S.W. at 594. Both applicants were
nevertheless found to have been restrained. Id.
Although the Texas Supreme Court has appropriately concluded
that “[a] mere judgment of contempt will not justify the granting of a
writ of habeas corpus[,]” and that “[t]here must be some character of
restraint[,]” still, the Supreme Court explained, “[i]t is not required that
[an] applicant for a writ of habeas corpus be actually confined in a jail.”
Ex parte Calhoun, 127 Tex. 54, 57, 91 S.W. 1047, 1048 (1936). The
Supreme Court echoed this Court’s pronouncement that “[a]ny character
of restraint which precludes absolute and perfect freedom of action will
justify issuance of the writ.” Id. (citing Snodgrass, 43 Tex. Crim. at 359,
KLEINMAN – 7

65 S.W. at 1061).
More recent cases have also adhered to this broad understanding
of “restraint” for purposes of determining the availability of habeas
corpus relief. For example, the applicant in Basaldua v. State
complained in a purported appeal from a trial court’s order imposing
conditions of probation that those conditions were unconstitutional. 558
S.W.2d 2, 5−6 (Tex. Crim. App. 1977). This Court treated the purported
appeal as an original habeas corpus application and determined that the
applicant was indeed restrained by those probation conditions within
the meaning of Article 11.22. Id. at 5.
Also, in Ex parte Bain, attorneys were forced by a trial court judge
to represent a capital murder client. 568 S.W.2d 356 (Tex. Crim. App.
1978). They were held in contempt by the judge for announcing “not
ready” instead of agreeing to try the case uncompensated. This Court
held that they were “restrained,” notwithstanding that they had made
bail and “were later purged of contempt[,]” albeit only when they agreed,
under protest, to prepare for trial. Id. at 358. And in Ex parte Armes, the
Court concluded that an applicant, who was subject to “a $10,000 bond
to ensure his appearance as a witness” in California, was “under
restraint for habeas corpus purposes when released on bond or bail.” 582
S.W.2d 434, 437 (Tex. Crim. App. 1979).
There are many other such cases as well. See, e.g., Ex parte
Guzman, 551 S.W.2d 387, 389 (Tex. Crim. App. 1977) (Odom, J.,
concurring) (“Since enactment of [the statutes quoted above] in 1856,
the writ has never been limited to cases of ‘severe restraints on
individual liberty [quoting the dissent],’ but has been available to those
KLEINMAN – 8

who are ‘in any manner restrained in their personal liberty [quoting
Article 11.64].’”); Ex parte Ormsby, 676 S.W.2d 130, 132 (Tex. Crim. App.
1984) (recognizing, on authority of Judge Odom’s concurrence in
Guzman, that “outstanding collateral consequences of applicant’s
invalid conviction, imposed under the general authority and power of
the State of Texas, is a current and enduring restraint on applicant’s
liberty”); Ex parte Cathcart, 13 S.W.3d 414, 417 (Tex. Crim. App. 2000)
(noting that “restraint” as defined by Article 11.22 “has been construed
broadly[,]” but refusing to find the applicant restrained when the
pending criminal charge had been “dismissed and her bond closed”); Ex
parte Weise, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001) (“Weise was
restrained of his liberty within the meaning of [A]rticle 11.01 of the
Texas Code of Criminal Procedure when he was charged with illegal
dumping and released on bond to await trial.”); cf. Ex parte Eureste, 725
S.W.2d 214, 216 (Tex. Crim. App. 1986) (failing to recognize that the
applicant’s release on bond after being held in contempt for refusing to
honor a grand jury’s subpoena duces tecum constituted “restraint,” but
only because the bond itself was “obviously invalid”).
With this broad understanding of “restraint” in mind, we now
turn to the issue at hand: whether Appellants in this case have “in any
manner” suffered restraint so as to justify allowing them to proceed with
their pretrial habeas corpus review. 4

4 For its part, “[t]he State acknowledges that, like a bail bond, the
appeal bonds [in this case] obligate Appellants to appear in the [county court
at law] when ordered to do so or face the future prospect of arrest. This Court
must decide whether the obligation to appear on a fine-only criminal charge,
without any prior actual physical confinement, acts [as] a restraint that
precludes an absolute and perfect freedom of action.” State’s Appellate Brief at
KLEINMAN – 9

III. ANALYSIS
A. “Sufficient Restraint” Versus “Restraint”
At the outset, we reject the notion, suggested by the court of
appeals’ opinion, that the restraint that gives rise to habeas corpus relief
must be more than mere restraint—that it must be sufficient restraint.
Kleinman, 706 S.W.3d at 398. Article 11.22’s definition of “restraint” is
a broad one, both on its face and as judicially construed over the years.
Moreover, Article 11.23 (“Scope of the writ”) makes explicit that “[t]he
writ of habeas corpus is intended to be applicable to all such cases of
confinement and restraint,” not just those in which a reviewing court
has concluded that the restraint is onerous enough to merit
consideration. Article 11.23.
B. This Case
But have Appellants in this case actually been restrained—at all?
Appellants have been charged by complaints with the commission of
Class C misdemeanor offenses. They have been convicted of those
offenses in municipal court and now seek appeals in the form of de novo
review in the county court at law. Article 44.17; Article 45.042(b)
(recodified as Article 45A.202(b)). In order to perfect those de novo
appeals, they have posted appellate bonds in a cumulative amount
approaching $65,000. Article 45.0425(a) (recodified as 45A.203(c)). By
statute, the terms of the appeal bond require Appellants to appear
personally, “immediately . . . remaining at the court from day to day . . .
to answer in the case.” Article 45A.203(e). And Appellants’ many appeal

31 (internal quotation marks omitted) (citing, inter alia, Snodgrass, 43 Tex.
Crim. 362, 65 S.W. at 1062).
KLEINMAN – 10

bonds conformed with these statutory requirements.
In Ex parte Schmidt, 109 S.W.3d at 483, this Court concluded that
statutory county courts at law have, by virtue of Article 11.09, “the
power to issue the writ of habeas corpus when a person is restrained by
an accusation or conviction of misdemeanor.” 5 On their faces, neither
Article 11.09 nor the Court’s opinion in Schmidt exclude Class C
misdemeanors from their scope. It is true that Class C misdemeanors do
not carry punishment by incarceration, being punishable by no more
than “a fine not to exceed $500.” TEX. PENAL CODE § 12.23. Nor do they
“impose any legal disability or disadvantage.” TEX. PENAL CODE §
12.03(c). Nevertheless, do (1) the many complaints filed against
Appellants, (2) their convictions (albeit non-final) in municipal court,
and (3) the appeal bonds they have posted to assure their presence for
the de novo proceedings in the county court at law combine to constitute
“restraint” as that term is used in Articles 11.01, 11.04, 11.09, 11.22,
and 11.23 of the Code of Criminal Procedure, and Schmidt?
We conclude that, at least in combination, these circumstances
have accrued to cause Appellants to fall under “the kind of control which
one person exercises over another . . . to subject [them] to the general

5 For purposes of charging misdemeanor offenses in municipal court, a

complaint is “a sworn allegation charging an accused person with the
commission of an offense. Article 45A.002(1). Albeit without citation to
authority, the late Professors Dix and Schmolesky have observed that, “[i]n the
pretrial context, the existence of pending charges is generally sufficient to show
restraint.” George E. Dix & John M. Schmolesky, 43 TEXAS PRACTICE:
CRIMINAL PRACTICE AND PROCEDURE § 35:4 (3d ed. 2011), at 261. They do not
suggest that complaints alleging Class C misdemeanors fall under an
exception to this general rule.
KLEINMAN – 11

authority and power” of the State. Article 11.22. In short, Appellants
have been “restrained” according to Articles 11.01, 11.09, and 11.23. The
court of appeals erred to conclude otherwise.
C. The Court of Appeals’ Opinion
In concluding that Appellants were not “sufficiently restrained,”
the court of appeals relied on the following facts: (1) that Appellants
were never placed in custody to answer to the complaints filed against
them; (2) that they were not released from custody on bond (having
never been in any form of actual physical custody to begin with); and (3)
that any threat of arrest or confinement as a consequence of failing to
pay the fine, which was the only punishment assessed (or that could
have been assessed) for this Class C misdemeanor offense, was too
speculative to constitute a restraint on their liberty. Kleinman, 706
S.W.3d at 397−98. But besides other courts of appeals opinions, 6 the

6 The court of appeals identified two decisions of its sister courts of
appeals that it believed supported its conclusion. Kleinman, 706 S.W.3d at 397.
First, it cited City of El Paso v. Alvarez, 931 S.W.2d 370, 379 (Tex. App.—El
Paso 1996), for the proposition that a complaint filed in municipal court “does
not confine the defendant or restrain her liberty in any manner.” It is highly
doubtful, however, that this proposition is consistent with Article 11.09 as later
construed by this Court in Schmidt. See Schmidt, 109 S.W.3d at 483
(concluding that statutory county courts at law have, by virtue of Article 11.09,
“the power to issue the writ of habeas corpus when a person is restrained by
an accusation or conviction of misdemeanor”). Second, the court of appeals
cited an unpublished opinion in McCann v. State, Nos. 14-97-00563-CR & 14-
97-00564-CR, 1997 WL 786951 (Tex. App.—Houston [14th Dist.] Dec. 23, 1997)
(not designated for publication), for the proposition that a fine imposed in
municipal court does not constitute a “restraint” under Chapter 11. Of course,
this Court is not “bound by the decisions of the courts of appeals—and much
less by those that are unpublished.” Hyland v. State, 574 S.W.3d 904, 913 (Tex.
Crim. App. 2019). In any event, both Alvarez and McCann cited for authority
the Texas Supreme Court’s 1926 opinion in Ex parte Beamer, 116 Tex. 39, 285
S.W. 255 (1926). But Beamer is quite distinguishable.
KLEINMAN – 12

main source for this proposition seems to have been certain federal
cases. See id. at 397 (citing five cases from four federal circuit courts of
appeals for the proposition that “federal habeas relief is not available for
violations with punishments that are fine only”). The court of appeals
here also cited this Court’s opinion in Ex parte Lewis, 219 S.W.3d 335,
351 (Tex. Crim. App. 2007), for the proposition that offenses punishable
by fine only are “exclude[ed]” from those that may be thought to result
in a restraint of liberty for purposes of seeking habeas corpus relief. We
next address each of these propositions in turn.
1. Federal Cases Construing 28 U.S.C. § 2254(a)
The federal cases the court of appeals cited do not purport to
speak to what constitutes “restraint” for purposes of Chapter 11 of the
Texas Code of Criminal Procedure. Instead, they construe what it means
to say that a person is “in custody pursuant to a judgment of a State
court” for purposes of the federal statute governing federal habeas
corpus review of state court convictions. 28 U.S.C. § 2254. 7 It is true that

Beamer involved a contempt proceeding arising from a civil matter.
Although the district court judge declared the applicants to be in contempt, it
declined to impose any punishment whatsoever against them, ordering only
that they pay the costs of the contempt proceeding itself. Id. at 41, 285 S.W. at
255. The Supreme Court declined to reach the merits of the ensuing habeas
corpus applications, concluding that the applicants had not been “restrained of
their liberty.” Id. at 43, S.W. at 256. We do not regard this as particularly
compelling precedent for the propositions that neither a complaint filed, nor a
fine imposed, in municipal court constitutes “restraint” under Chapter 11.

7 28 U.S.C. Section 2254(a) reads, in its totality:

(a) The Supreme Court, a Justice thereof, a circuit judge,
or a district court shall entertain an application for a writ of
habeas corpus on behalf of a person in custody pursuant to a
judgment of a State court only on the ground that he is in custody
KLEINMAN – 13

these cases construe “custody” not to include “a fine, by itself,” holding
that this “imposition . . . is not sufficient to meet § 2254’s jurisdictional
requirements.” Bailey v. Hill, 599 F.3d 976, 979 (9th Cir. 2010). 8
But in considering these federal cases, two critical distinctions
must be borne in mind. First, they construe the scope of the word
“custody” for purposes of federal review of final state court judgments—
not the word “restraint” in our state statutory habeas corpus scheme,
which carries its own explicit definition and history of judicial
construction. 9 Second, Section 2254(a) pertains to post-judgment habeas

in violation of the Constitution or law or treaties of the United
States.
28 U.S.C. § 2254.
8 Of like import, and also cited by the court of appeals: Obado v. New

Jersey, 328 F.3d 716, 718 (3rd Cir. 2003) (“The payment of restitution or a fine,
absent more, is not the sort of sort of significant restraint on liberty
contemplated in the ‘custody’ requirement of the federal habeas corpus
statutes.”) (internal quotation marks omitted); Spring v. Caldwell, 692 F.2d
994, 999 (5th Cir. 1982) (noting “the established rule that federal courts do not
have habeas jurisdiction in fine-only cases”); Hanson v. Circuit Court of First
Judicial Circuit of Illinois, 591 F.2d 404, 407 (7th Cir. 1979) (“We hold that a
fine-only conviction is not a restraint on individual liberty.”); cf. Barnickel v.
United States, 113 F.3d 704, 706 (7th Cir. 1997) (holding, similarly, in an action
seeking relief from a federal conviction under 28 U.S.C. § 2255, “that a fine-
only conviction is not enough of a restraint on liberty to constitute ‘custody’
within the meaning of the habeas corpus statutes”). Kleinman, 706 S.W.3d at
397.

9 Our own statutory scheme also defines what it calls “constructive
custody,” and it does so independently of its statutory definition of “restraint.”
Article 11.21 reads:
The words “confined”, “imprisoned”, “in custody”,
“confinement”, “imprisonment”, refer not only to the actual,
corporeal and forcible detention of a person, but likewise to any
coercive measures by threats, menaces or the fear of injury,
whereby one person exercises control over the person of another,
and detains him within certain limits.
KLEINMAN – 14

corpus petitions in federal courts, seeking relief from final state
convictions—not pretrial habeas applications filed in state courts. We
address the significance of these distinctions next.
“Custody” versus “restraint”: The United States Supreme
Court, in construing the federal statute, has said that it “does not limit
the relief that may be granted to discharge of the applicant from physical
custody.” Carafas v. LaVallee, 391 U.S. 234, 239 (1969). Instead, “[i]ts
mandate is broad with respect to the relief that may be granted.” Id.
Accordingly, the Supreme Court has concluded that parole, for example,
is a kind of constructive “custody” that triggers the statute. Jones v.
Cunningham, 371 U.S. 236, 243 (1963). Similarly, a defendant who was
at large on a personal recognizance bond following his conviction for a
misdemeanor offense, pending execution of sentence, was deemed to be
“in custody for purposes of the habeas corpus statute.” Hensley v.
Municipal Court, San Jose Milpitas Judicial Dist., Santa Clara County,
411 U.S. 345, 351 (1973).
But the limits of such constructive custody under the federal
statute, though broad, are not boundless. More recently, the Supreme

Thus, our own statutory concept of “custody” is not limited to physical
confinement. But even Article 11.21’s definition of “constructive custody”
retains an element of “detention” of some kind, by force or threat. In contrast,
Article 11.22’s definition of “restraint” requires less than “confine[ment] . . .
within certain limits,” and need only involve “the kind of control which one
person exercises over another . . . to subject him to the general authority and
power of the person claiming such right.” Article 11.22. It would not be
unreasonable to believe that Section 2254(a)’s use of the word “custody” to
define the scope of federal habeas review of state court convictions was likewise
meant to convey something more “confining” than Article 11.22’s more-
encompassing definition of “restraint.”
KLEINMAN – 15

Court concluded that the mere possibility of the use of a conviction
against an applicant whose sentence was “fully expired[,]” to enhance
his punishment for a subsequent offense, does not amount to custody
under the statute. Maleng v. Cook, 490 U.S. 488, 492 (1989). The
Supreme Court observed that, “[w]hile we have very liberally construed
the ‘in custody’ requirement for purposes of federal habeas, we have
never extended it to the situation where a habeas petitioner suffers no
present restraint from a conviction.” Id.
The Supreme Court also declared that collateral consequences of
a conviction “are not themselves sufficient to render an individual ‘in
custody’ for the purposes of a habeas attack upon it.” Id. And the lower
federal appellate courts have likewise restricted the statute. Some of
them have concluded, not only that fine-only punishments do not invoke
the statute, but also that the requirement of sex-offender registration
for convicted applicants who challenge no other aspect of their “custody”
are likewise not cognizable. See Bailey, 599 F.3d at 981 (citing Virsnieks
v. Smith, 521 F.3d 707, 721 (7th Cir. 2008)).
This Court, however, has construed the word “restraint” for
purposes of Chapter 11 of the Code of Criminal Procedure more
expansively. The Court has long recognized, in felony and misdemeanor
cases alike, that the collateral consequences of a conviction may operate
as a restraint of liberty for purposes of, if not always Article 11.07, then
at least the rest of Chapter 11. 10 Thus, federal cases construing

10 Article 11.07, governing post-conviction applications for writs of
habeas corpus in felony cases, speaks in terms of “confinement” rather than
“restraint.” Article 11.07, § 3(c). But since 1995, confinement has been defined
by the statute itself to include “any collateral consequence resulting from the
KLEINMAN – 16

“custody” for purposes of Section 2254(a) prove to be less than perfect
analogs for our construction of the various provisions of Chapter 11. Our
own statutes contemplate entertaining the habeas writ application for
“all such cases of . . . restraint[,]” applying Chapter 11 “to all cases of
habeas corpus for the enlargement of persons . . . in any manner
restrained in their personal liberty[.]” Articles 11.23, 11.64.
Post-conviction versus pretrial “restraint”: Moreover,
Section 2254 deals exclusively with federal habeas review “pursuant to
the judgment of a State court[.]” 28 U.S.C. § 2254(a). It does not
authorize interlocutory federal habeas corpus review of state cases at
the pretrial stage, such as those that may be appropriate for habeas
relief under Chapter 11. It may well be that a federal post-conviction

conviction that is the basis of the instant habeas corpus.” Acts 1995, 74th Leg.,
ch. 319, § 5, p. 2771, eff. June 7, 1995. Thus, a habeas corpus applicant
convicted of a felony no longer need be “in actual physical custody” before the
restraint attendant to his conviction may entitle him to relief. Ex parte
Harrington, 310 S.W.3d 452, 456−57 (Tex. Crim. App. 2010).
Accordingly, this Court has found matters such as the use of a felony
conviction for later enhancement of punishment for a subsequent offense, or
the onus of sex-offender registration, to justify post-conviction relief even for
applicants who have completed their sentences. E.g., Ex parte Like, No. WR-
70,021-01, 2008 WL 2677329 (Tex. Crim. App. del. July 2,2008) (not designated
for publication); Ex parte Vansumeren, No. WR-81,368-01, 2016 WL 548410
(Tex. Crim. App. del. Feb. 10, 2016) (not designated for publication). In post-
conviction habeas proceedings in misdemeanor cases, moreover, collateral
consequences have always been considered restraint for purposes of proceeding
with a writ application under Article 11.09. See Ex parte Renier, 734 S.W.2d
349, 353 (Tex. Crim. App. 1987) (concluding that a felony habeas applicant who
could not proceed under pre-1995 Article 11.07, because not “confined,” could
nevertheless pursue an original writ application, just as do habeas applicants
challenging misdemeanor convictions who can identify collateral consequences
amounting to restraint) (citing Ex parte Crosley, 548 S.W.2d 409 (Tex. Crim.
App. 1977); Ex parte Phelper, 442 S.W.2d 695 (Tex. Crim. App. 1969)).
KLEINMAN – 17

habeas applicant, who has been finally convicted and has been punished
by no more than a fine, may not be said to suffer even the kind of
constructive custody the United States Supreme Court has recognized
as sufficient to trigger Section 2254(a).
Indeed, it is possible that, in a post-conviction context, if the only
restraining circumstance an applicant could point to is the imposition of
a fine, with no attendant collateral consequences, we might agree that
he has not been restrained even for purposes of Chapter 11. 11 After all,
such a post-conviction applicant can arguably avoid all possible
constraints on his liberty “simply by paying the fine[.]” See Kleinman,
706 S.W.3d at 398 (quoting Tinder v. Paula, 725 F.2d 801, 804 (1st Cir.
1984)). 12 But in a pretrial context such as this one, Applicants are not
simply faced with the prospect of having to pay a fine, and nothing more.
Unlike the post-conviction applicant who has completed his
sentence, if any, and has only his fine to pay, Applicants in the present
cases remain under formal threat of prosecution—indeed, they have
already been preliminarily, if not finally, convicted in municipal court—
and are under the duress of an appeal bond that assures their
attendance at a trial de novo at the risk of arrest and forfeiture of the

11 Of course, we need not, and do not, decide that question today.

12 Tinder was a juvenile offender whose adjudication of delinquent
conduct in a Massachusetts state court resulted in a period of probation that
had expired before he filed his federal petition for writ of habeas corpus under
28 U.S.C. Section 2254. Tinder, 725 F.2d at 802. The only remaining obligation
he suffered was to pay court-ordered restitution. Id. The First Circuit
analogized this situation to a fine-only scenario, declaring the possibility of
restraint due to non-payment of restitution too speculative to amount to
“custody” for purposes of the federal statute. Id. at 804−06.
KLEINMAN – 18

bond. Under these circumstances, we can only conclude that they are
“subject . . . to the general power and authority” of the State. Article
11.22. And we therefore conclude that these circumstances have at least
combined to “preclude[] [Applicants’] absolute and perfect freedom of
action[.]” Snodgrass, 43 Tex. Crim. at 362, 65 S.W. at 1062.
2. This Court’s Opinion in Ex parte Lewis
Twice the court of appeals also cited Lewis for the proposition that
“[t]he concept of liberty restraints excludes punishments for offenses ‘for
which the punishment is a fine or the forfeiture of property.’” Kleinman,
706 S.W.3d at 396, 397 (quoting Lewis, 219 S.W.3d at 351). Lewis,
however, is also distinguishable. There, the Court’s opinion endeavored
to construe our state constitutional protection against double jeopardy,
found in Article I, Section 14 of the Texas Constitution. TEX. CONST. art.
I, § 14. Specifically, the Court was responding to the State’s assertion
that this state constitutional provision “applies only to acquittals.”
Lewis, 219 S.W.3d at 350−51. But the Court recognized independent
double jeopardy significance to the fact that our state double jeopardy
provision contains two clauses. 13 One of those clauses protects the
people against multiple prosecutions for the same offense regardless of
the outcome of a first trial. The other clause protects the people against
subsequent prosecution after being once found not guilty. This Court
remarked that “the language ‘jeopardy of life or liberty’ in the first
clause suggests application only to death or imprisonment—excluding

13 Article I, Section 14 of the Texas Constitution provides: “No person,

for the same offense, shall be twice put in jeopardy of life or liberty, nor shall
a person be again put upon trial for the same offense, after a verdict of not
guilty in a court of competent jurisdiction.” TEX. CONST. art. I, § 14.
KLEINMAN – 19

offenses for which the only punishment is a fine or the forfeiture or
property.” Id. at 351. The court of appeals believed this observation
should translate into a conclusion that a fine-only offense does not
amount to a “restraint” for habeas corpus purposes, since it does not
impact a defendant’s liberty. Kleinman, 706 S.W.3d at 397.
But neither Article I, Section 14, nor Lewis, mentions the word
“restraint”—at all—much less purports to determine how that term
should be understood in the context of Chapter 11 of the Code of
Criminal Procedure. Lewis stands for the proposition that a person
already convicted once of a fine-only misdemeanor may be tried a second
time for that offense, consistent with Article I, Section 14, of the Texas
Constitution, even if that same person could not be tried a second time
had he been acquitted of that offense. That does not necessarily mean
that the fine does not satisfy Article 11.22’s definition of “restraint” for
purposes of Article 11.23, which expressly defines the scope of the writ.
The court of appeals has unfortunately mixed constitutional apples (our
state constitution’s double jeopardy clause) with statutory oranges
(Chapter 11’s definition of “restraint”).
And in any event, as we have pointed out ante, Appellants have
yet to be finally convicted of their fine-only offenses. Whether they could
be prosecuted again once they have been convicted is wholly beside the
point. In the pretrial context, the question is whether they remain
presently restrained by (1) the complaints filed against them, (2) their
preliminary convictions, and (3) their appellate bonds—even if they may
eventually—post-conviction—be subject to nothing more than the
requirement that they pay a fine. We conclude that they do.
KLEINMAN – 20

IV. CONCLUSION
Accordingly, we reverse the judgment of the court of appeals and
remand the case to that court for further proceedings not inconsistent
with this opinion.

DELIVERED: July 30, 2025
PUBLISH