MOON, EX PARTE CAMERON MICHAEL v. the State of Texas

In the Court of Criminal
Appeals of Texas
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No. PD-0302-22
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EX PARTE CAMERON MICHAEL MOON,
Appellant

═══════════════════════════════════════
On State’s Petition for Discretionary Review
From the First Court of Appeals
Harris County
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YEARY, J., delivered the opinion of the Court, in which KELLER,
P.J., and RICHARDSON, KEEL, SLAUGHTER, and MCCLURE, JJ., joined.
HERVEY and NEWELL, JJ., concurred in the result. WALKER, J.,
dissented.

We originally granted the State’s petition for discretionary review
in this case to address the holdings of the court of appeals. Instead, our
resolution of this matter turns on our construction of former Texas Code
of Criminal Procedure Article 44.47(b). That Article provided that “A
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defendant may appeal a transfer under Subsection (a) [of the same
Article] only in conjunction with the appeal of a conviction of or an order
of deferred adjudication for the offense for which the defendant was
transferred to criminal court.” 1 Former TEX. CODE CRIM. PROC. art.
44.47(b) (repealed by Acts 2015, 84th Leg., ch. 74 (S.B. 888), § 4, p. 1066,
eff. Sept. 1, 2015).
After Appellant was certified in juvenile court to stand trial as an
adult, the juvenile court ordered his case transferred to the 178th
District Court for adult criminal proceedings. 2 Appellant then filed a
pretrial application of writ of habeas corpus challenging the transfer.
The district court denied relief, so Appellant took an interlocutory
appeal.
The First Court of Appeals reversed the district court’s order
denying relief. It concluded that the State had failed to establish the
necessary statutory criteria for waiver of juvenile jurisdiction and
transfer into the adult criminal court. As a result, the court of appeals
remanded the case with instructions to dismiss the prosecution for lack
of jurisdiction. Ex parte Moon, 649 S.W.3d 700, 720−21 (Tex. App.—
Houston [1st Dist.] 2022).
We granted the State’s petition for discretionary review to
consider several issues related to the juvenile court’s transfer order,

1 Subsection (a) provided: “A defendant may appeal an order of a
juvenile court certifying the defendant to stand trial as an adult and
transferring the defendant to a criminal court under Section 54.02, Family
Code.” Former TEX. CODE. CRIM. PROC. art. 44.47(a).

2 For the balance of this opinion, we will refer to the 178th District
Court, to which the case was transferred for adult criminal proceedings, as
simply “the district court,” to differentiate it from the juvenile court.
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including whether the court of appeals erred to hold that such a
challenge is even cognizable in pretrial habeas. Id. at 716−17. However,
we now conclude that, even if Appellant’s claims were cognizable in a
pretrial habeas proceeding, the court of appeals lacked the authority to
entertain Appellant’s interlocutory appeal. Accordingly, we reverse the
court of appeals’ judgment and remand to that court for an order
dismissing Appellant’s appeal as premature.
I. BACKGROUND
A. The First Transfer
This is not the first time we have considered Appellant’s case. He
was first transferred from juvenile court to an adult district court in
2008 to face a charge of capital murder, allegedly committed when he
was sixteen years old. After he was convicted of that offense in adult
criminal court, he challenged the adequacy of the juvenile court’s
certification and transfer order on direct appeal, and the court of appeals
granted relief. Moon v. State, 410 S.W.3d 366, 378 (Tex. App.—Houston
[1st Dist.] 2013). The court of appeals held that, “[b]ecause the juvenile
court abused its discretion in waiving its jurisdiction over [Appellant]
and certifying him for trial as an adult, the district court lacked
jurisdiction over this case.” Id. The court of appeals then declared that
“[t]he case remains pending in the juvenile court.” Id.
On discretionary review, this Court affirmed the court of appeals’
judgment. Moon v. State, 451 S.W.3d 28, 51−52 (Tex. Crim. App. 2014).
Among other things, the Court affirmed the court of appeals’ ultimate
disposition of the case (i.e., that it “remains pending in the juvenile
court”). Id. at 52 n.90. The Court did observe, however, that it might be
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possible for the State to re-initiate adult criminal proceedings against
Appellant, even though he had since exceeded the age of eighteen, under
Section 54.02(j) of the Texas Family Code. Id. (citing TEX. FAM. CODE §
54.02(j)).
B. The Second Transfer
The State then proceeded to do exactly that. It filed a second
motion requesting the juvenile court to once again (1) waive its exclusive
jurisdiction, and (2) certify Appellant to stand trial as an adult, under
Section 54.02(j) of the Juvenile Code. After a hearing on that motion, the
juvenile court signed an order waiving jurisdiction and transferring the
case to the district court for adult proceedings. That order was signed on
May 7, 2015—a date that will prove critical to our ultimate disposition
today.
Following Appellant’s subsequent indictment in the district court,
he filed a pretrial application for writ of habeas corpus challenging the
propriety of the juvenile court’s second certification and transfer order.
In his writ application he challenged, among other things, whether all
the statutory criteria for waiver of juvenile jurisdiction and transfer to
criminal court had been satisfied. Specifically, he contended that, before
a proper transfer pursuant to Section 54.02(j)(3) was authorized, it must
be shown that “no adjudication concerning the alleged offense” had
occurred and that “no adjudication hearing concerning the offense” had
been held. TEX. FAM. CODE § 54.02(j)(3) (emphasis added). Appellant
argued that he had, in fact, been “adjudicated” for the capital offense
when he was previously tried and convicted in district court in 2008. The
district court rejected all of Appellant’s arguments, including this one,
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and denied Appellant’s pretrial writ application.
Appellant immediately appealed the denial of pretrial habeas
relief. And the court of appeals reversed the district court’s denial of
relief. In doing so, the court of appeals addressed only two aspects of the
case: (1) whether Appellant’s claims were cognizable in pretrial habeas
proceedings; and (2) whether the criteria of Section 54.02(j)(3), requiring
the lack of a previous “adjudication,” had been satisfied in the juvenile
court, given Appellant’s previous prosecution in adult court for the
capital murder. See, respectively, Moon, 649 S.W.3d at 716−17
(addressing cognizability); id. at 717−20 (addressing the Section
54.02(j)(3) criteria). Concluding that the claim was cognizable, and that
the criteria under Section 54.02(j)(3) were not satisfied, since Appellant
had in fact been previously adjudicated, the court of appeals again
ordered the district court to dismiss the case for lack of jurisdiction. Id.
It therefore found it unnecessary to address Appellant’s other
arguments challenging the validity of the transfer proceedings. Id. at
720−21 & n.18.
Addressing cognizability, 3 the court of appeals observed that, if
sustained, Appellant’s argument relating to the requirements of Section
54.02(j)(3) would deprive the district court of the power to proceed.
Because that would require dismissal of the criminal case, the court of
appeals concluded, the claim was cognizable in pretrial habeas corpus
proceedings under this Court’s precedents. Id. at 717. The court of

3 In appeals from trial court rulings on pretrial applications for writ of
habeas corpus, courts of appeals should routinely address whether the
particular claim is cognizable “as a threshold issue before reaching the merits
of the claim.” Ex parte Couch, 629 S.W.3d 217 (Tex. Crim. App. 2021).
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appeals then addressed several of the State’s arguments that the Section
54.02(j)(3) criteria were satisfied. Id. at 718−19. The court of appeals
rejected these arguments based on this Court’s recent opinion in Ex
parte Thomas, 623 S.W.3d 370 (Tex. Crim. App. 2021).
In Thomas, in a post-conviction habeas corpus proceeding, this
Court disowned its opinion in Moon. It rejected the part of that opinion
that had upheld the court of appeals’ conclusion that deficiencies in
Appellant’s first transfer order deprived the district court of jurisdiction.
It also decided that both Moon opinions (the one written by this Court
and the one written by the court of appeals) erred to conclude that the
deficiency in Appellant’s juvenile certification and transfer order
deprived the district court of jurisdiction. Thomas, 623 S.W.3d at 383.
The State argued here that Thomas should not control because
the holdings of the court of appeals and of this Court in the prior Moon
opinions constituted controlling “law of the case.” In other words, the
State contended, the district court—in this case—did not previously
acquire jurisdiction to prosecute Appellant as an adult, so there had
actually been no legitimate previous criminal “adjudication,” and
consequently, the criteria of Section 54.02(j)(3) were satisfied. The
bottom line, according to the State, is that Appellant was properly
transferred to stand trial in adult criminal court.
The court of appeals, however, found the State’s law-of-the-case
argument unpersuasive. Because of this Court’s emphatic decision that
the district court—in 2008—lacked jurisdiction to prosecute Appellant,
the court of appeals concluded that the law-of-the-case doctrine should
not bind it to its prior holding. Moon, 649 S.W.3d at 719. The State then
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sought discretionary review.
C. This Time, On Discretionary Review
The State originally raised three grounds for discretionary
review. In its first two grounds for review, it argued that the court of
appeals erred by holding that: (1) Appellant’s claim was cognizable; and
(2) the law-of-the-case doctrine did not control in this case. The State
also presented a third ground for review, in which it contended—for the
first time—that, (3) having accepted the benefit of the holdings in the
prior Moon opinions, Appellant should be estopped from now arguing
that they were wrong.
We granted all three of the State’s grounds and, on our own
motion, a fourth ground as well. Ex parte Moon, No. PD-0302-22, 2022
WL 4088312, at *1 (Tex. Crim. App. Sept. 7, 2022) (not designated for
publication). In that fourth ground, we asked the parties to brief the
question, addressed only in a footnote in the court of appeals’ latest
opinion, (4) whether Section 54.02(j)(3)’s references to an “adjudication”
and an “adjudication hearing” have applicability beyond what those
terms mean in the Family Code’s juvenile justice provisions
themselves. 4 Id.; see Moon, 649 S.W.3d at 720 n.17 (addressing the scope

4 In other words, are the words “adjudication” and “adjudication
hearing” in Section 54.02(j)(3) essentially terms of art which have a tailored
meaning in the context of juvenile proceedings, which meaning should not be
extended to embrace criminal proceedings? Cf. In re Hall, 286 S.W.3d 925,
928−29 (Tex. 2009) (observing, in construing the word “detention” in a certain
Family Code provision, that “we will not give an undefined statutory term a
meaning that is out of harmony or inconsistent with other provisions in the
statute. Thus, if a different, more limited, or precise definition [than ordinary
usage] is apparent from the term’s use in the context of the statute, we apply
that meaning”).
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of the term “adjudication” as used in Section 54.02(j)(3)). We have now
received the parties’ briefs on the merits addressing these four issues.
To further complicate matters, Appellant has now filed a motion
in this Court contesting our jurisdiction to entertain the State’s petition.
He claims that former Article 44.47(b), which is applicable to his case,
does not permit this Court to entertain an appeal challenging a juvenile
court’s transfer order unless and until the ensuing criminal prosecution
results in a conviction or deferred adjudication. Former TEX. CODE CRIM.
PROC. art. 44.47(b). 5 Appellant seems to challenge this Court’s
discretionary review authority on the ground that, unless and until he
is convicted, his claims relating to the validity of his transfer to adult

5 Former Article 44.47 read, in its entirety:

(a) A defendant may appeal an order of a juvenile court
certifying the defendant to stand trial as an adult and
transferring the defendant to a criminal court under Section
54.02, Family Code.

(b) A defendant may appeal a transfer under Subsection
(a) only in conjunction with the appeal of a conviction of or an
order of deferred adjudication for the offense for which the
defendant was transferred to criminal court.

(c) An appeal under this section is a criminal matter and
is governed by this code and the Texas Rules of Appellate
Procedure that apply to a criminal case.

(d) An appeal under this article may include any claims
under the law that existed before January 1, 1996, that could
have been raised on direct appeal of a transfer under Section
54.02, Family Code.

See Acts 2003, 78th Leg., ch. 283, § 30, pp. 1234−35, eff. Sept. 1, 2003 (latest
amendment to Article 44.47 prior to its repeal in 2015).
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court constitute a civil law matter and are therefore beyond this Court’s
appellate authority. For this reason, he urges that any discretionary
review of the court of appeals’ judgment should lie with the Texas
Supreme Court.
We reject Appellant’s challenge to our discretionary review
authority in this case. But we do conclude that, given former Article
44.47(b)’s history and plain import, any purported appeal of the district
court’s pretrial habeas corpus order relating to the juvenile court’s
transfer order in this case was without authority. The court of appeals
should not have entertained Appellant’s appeal but should have simply
dismissed it as premature—under former Article 44.47(b).
II. ANALYSIS
A. This Court’s Discretionary Review Jurisdiction
The Texas Constitution confers upon this Court “final appellate
jurisdiction coextensive with the limits of the state,” and provides that
“its determinations shall be final, in all criminal cases of whatever
grade[.]” TEX. CONST. art. V, § 5(a) (emphasis added). The appellate
jurisdiction of the Texas Supreme Court, by contrast, “shall be final and
shall extend to all cases except in criminal law matters[.]” TEX. CONST.
art. V, § 3(a) (emphasis added). The appellate jurisdiction of the courts
of appeals “shall extend to all cases in which the District Courts or
County Courts have original or appellate jurisdiction[.]” TEX. CONST. art.
V, § 6(a) (emphasis added). Thus, while the courts of appeals have both
civil and criminal appellate jurisdiction, this Court’s appellate
jurisdiction is limited to “criminal cases,” and our authority in that
context is “final.” The Texas Supreme Court’s appellate jurisdiction is
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“final” in all matters except “criminal law matters.” Moreover, the
appellate jurisdiction of all the appellate courts of Texas is subject to
legislative regulation. See id. § 5(a) (“with such exceptions and under
such regulations as may be provided . . . by law”); id. § 3(a) (“and as
otherwise provided . . . by law”); id. § 6(a) (“under such restrictions and
regulations as may be prescribed by law”).
Appellant argues that our appellate jurisdiction is limited by
former Article 44.47(b), which applies to this case by virtue of when the
juvenile court issued its latest order transferring jurisdiction to the
district court. 6 Because this Court may entertain a challenge to a
juvenile court’s transfer order “only in conjunction with the appeal of a
conviction,” Appellant claims, our appellate jurisdiction does not cover
review of a district court’s order in a pretrial application for writ of
habeas corpus which challenges such a transfer order.
To fill the perceived void in final appellate jurisdiction, Appellant
argues that such an appeal must remain essentially a civil law matter,
just as it would be if the appeal had directly emanated from an action
taken by the juvenile court itself. Since the courts of appeals have civil
and criminal appellate jurisdiction alike, Appellate contends, there was
nothing to prevent the court of appeals from entertaining his appeal
from the district court’s denial of habeas corpus relief. And because it is

6 When Article 44.47 was repealed in 2015, that change in law was made
applicable only to juvenile transfer orders “issued on or after the effective date
of this Act.” Acts 2015, 84th Leg., ch. 74 (S.B. 888), § 5, p. 1066. The effective
date was September 1, 2015. Id. § 6. As we have noted in the text, the second
juvenile court’s order transferring jurisdiction to the district court in this case
was signed on May 7, 2015. Therefore, any appeal of Appellant’s juvenile
transfer order is governed by former Article 44.47.
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a civil matter, Appellant argues, discretionary-review jurisdiction must
inhere in the Texas Supreme Court, as the court with “final” appellate
jurisdiction in all cases “except” those involving “criminal law matters.”
We conclude that the appeal from the pretrial habeas corpus
application in this case constitutes a “criminal law matter.” The relief
that Appellant prayed for in his pretrial application for writ of habeas
corpus was that (1) the district court presiding over his criminal trial
declare that it lacked jurisdiction to prosecute him as an adult, and that
(2) the district court should therefore dismiss the indictment against
him with prejudice. That kind of relief may only be obtained in the
context of a “criminal case”; 7 it is therefore manifestly a “criminal law
matter,” over which the Texas Supreme Court lacks final appellate
jurisdiction. 8

7 See Ex parte Burr, 185 S.W.3d 451, 453 (Tex. Crim. App. 2006) (“[T]his
Court will entertain an appeal [pursuant to its final appellate jurisdiction
under Article V, Section 5(a) of the Texas Constitution] when it is expressly
authorized by statute and when it is related to the ‘standard definition’ of a
criminal case, in which there has been a finding of guilt and an assessment of
punishment.”). To the extent that Appellant’s pretrial application for writ of
habeas corpus impacts the district court’s authority to preside over a “finding
of guilt and an assessment of punishment,” it constitutes a “criminal law
matter” for purposes of Article V, Section 5(c), and the appeal of that question
also is an appeal in a “criminal case” for purposes of Article V, Section 5(a).
And so is the pursuit of discretionary review in this Court. There is no
requirement that the defendant already have been found guilty and punished
before a matter or case may be deemed “criminal.” Any other conclusion “would
call into question our jurisdiction to review most of the matters that the State
may appeal pursuant to [TEX. CODE CRIM. PROC. art. 44.01], since these
matters do not involve a situation where an accused has been found guilty of
something and punishment has been assessed.” Kutzner v. State, 75 S.W.3d
427, 431 (Tex. Crim. App. 2002).

8None of the cases that Appellant cites supports his argument that a
defendant’s appeal of an adverse ruling on a pretrial application for writ of
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B. The Court of Appeals’ Authority
What Appellant’s argument does raise is a question about the
propriety of the court of appeals having entertained Appellant’s appeal
in the first place. Having had our attention drawn to former Article
44.47 by Appellant, it is apparent to us from both the history and
language of that former Article that it limits a defendant’s appeal, of any
kind, that challenges the validity of a juvenile court’s transfer order
solely to the context of criminal post-conviction (or post-deferred
adjudication) appellate review. Former Article 44.47 provides that a
“defendant” may bring such an appeal “only in conjunction with the
appeal of a conviction of or an order of deferred adjudication for the
offense for which the defendant was transferred to criminal court.”
Former TEX. CODE CRIM. PROC. art. 44.47(b).
The starting point for determining statutory meaning is to

habeas corpus filed in a district court in a criminal case is appealable as a civil
matter. All involve higher court review of proceedings still pending in the
juvenile court, appeals of which either preceded the enactment of Article 44.47
or remained within the parameters of Section 56.01 of the Family Code even
during the lifespan of Article 44.47. See In the Matter of D.W.M., 562 S.W.2d
851 (Tex. 1978) (appeal of juvenile court’s transfer order prior to enactment of
Article 44.47); In the Matter of W.L.C., 562 S.W.2d 454 (Tex. 1978) (same); In
the Matter of N.J.A., 997 S.W.2d 554 (Tex. 1999) (appeal of juvenile
adjudication and disposition orders in the juvenile court); Ex parte Valle, 104
S.W.3d 888 (Tex. Crim. App. 2003) (refusing to apply TEX. CODE CRIM. PROC.
art. 11.07 proceedings to review the legitimacy of a transfer hearing under TEX.
FAM. CODE § 54.11, because appeal of a juvenile court’s transfer order under
that provision remains a matter of direct civil appeal, and the Texas Supreme
Court had denied a petition for review); In re Hall, 286 S.W.3d 925 (Tex. 2009)
(denying relief on an application for writ of mandamus seeking to compel a
certain action by the juvenile court); In re B.T., 323 S.W.3d 158 (Tex. 2010)
(granting mandamus relief seeking to compel the juvenile court to conduct the
transfer hearing in full accordance with Section 52.04; Supreme Court stayed
the transfer hearing and no actual transfer order had yet issued).
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examine both the literal text of the statute and its context; and part of
the statutory context includes the history of the statute in question.
Timmons v. State, 601 S.W.3d 345, 348, 354 & n.50 (Tex. Crim. App.
2020) (citing Antonin Scalia & Bryan Garner, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 256 (2012) (“defining ‘statutory
history’ as ‘the statutes repealed or amended by the statute under
consideration’ and explaining that statutory history ‘forms part of the
context of [a] statute’”)). Here, both the history and literal text and of
former Article 44.47 make it clear that a defendant is not authorized to
appeal from an adverse ruling in a pretrial habeas case that challenges
a juvenile court’s transfer order. The court of appeals should not have
entertained Appellant’s appeal.
1. History of Article 44.47
Before January 1, 1996, a defect or error in a juvenile court’s
transfer order was immediately appealable in the courts of appeals, as
a civil matter, under then-Section 56.01, Subsections (a) and (c)(1), of
the 1973 Juvenile Justice Code (Title 3 of the Family Code). See Acts
1973, 63rd Leg., ch. 544, § 1, p. 1483, eff. Sept. 1, 1973 (“An appeal may
be taken [to the court of appeals] . . . by or on behalf of a child from an
order entered under . . . Section 54.02 of this code respecting transfer of
the child to criminal court for prosecution as an adult[.]”). But in 1995,
the Legislature expressly repealed those provisions of the juvenile
appeal statute (Section 56.01 of the Family Code) that provided for such
an immediate civil appeal of a juvenile transfer order. See Acts 1995,
74th Leg., ch. 262, § 48, p. 2546 (repealing former TEX. FAM. CODE
Section 56.01(c)(1)(A)). And it enacted former Article 44.47 in its place.
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Id., § 85, p. 2584 (enacting Art. 44.47 of the Code of Criminal Procedure).
Thus, the same legislative act accomplished two objectives. First,
it eliminated the former statutory authority for a juvenile to directly
appeal a juvenile transfer order as an interlocutory civil matter. Second,
it enacted Article 44.47, which would thenceforth provide for appeal by
a “defendant” of a juvenile transfer order entered under Section 54.02 of
the Family Code (Article 44.47(a)), 9 but now expressly “as a criminal law
matter” (Article 44.47(c)), and moreover, “only in conjunction with the
appeal of a conviction” (or order of deferred adjudication) for the offense
for which the juvenile was transferred (Article 44.47(b)). 10 As of 1996,

9 By its terms, former Article 44.47 applies only to the appeal brought
by a “defendant.” The State may still appeal an order of a criminal court in a
“criminal case,” under Article 44.01(a)(1) of the Code of Criminal Procedure, if
the criminal court has dismissed the charging instrument because of a
purportedly defective juvenile transfer order. See TEX. CODE CRIM. PROC. art.
44.01(a)(1) (“The state is entitled to appeal an order of a court in a criminal
case if the order . . . dismisses an indictment, information, or complaint or any
portion of an indictment, information, or complaint.”). This Court has
entertained a State’s petition for discretionary review of a court of appeals
decision following such an appeal. State v. Rhinehart, 333 S.W.3d 154 (Tex.
Crim. App. 2011). That case, however, did not involve a pretrial application for
writ of habeas corpus but a motion to quash the indictment, which the district
court had granted.

10 As we noted earlier, in 2015, but after the second juvenile court’s
transfer order in this case was signed, the Legislature again changed the
appellate scheme for appealing juvenile transfer orders, reverting to a process
similar to what it had been prior to 1996. See Acts 2015, 84th Leg., ch. 74, §§
2−4, pp. 1065−66, eff. Sept. 1, 2015 (repealing Article 44.47); note 5, ante.
Under the 2015 revisions, a challenge to a waiver/transfer order is once again
to be brought in an immediate civil appeal, to run concurrently with the
criminal proceedings, and subject to discretionary review in the Texas
Supreme Court. Id. This change in the character of the appellate review from
belated criminal to accelerated civil appeal was made applicable, however, only
to waiver/transfer orders which issue after the effective date of the
amendment, which was September 1, 2015. Id. §§ 5 & 6, p. 1066. Because the
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any statutory authority by which a juvenile defendant could directly
appeal a juvenile court’s transfer order at all as a civil matter, much less
in an interlocutory civil appeal, was gone. 11 The only appeal of such an
order was as a criminal law matter, and then “only in conjunction with”
an appeal of any ensuing criminal conviction.
2. Plain Text of Former Article 44.47
Considering the plain language of former Article 44.47(b), it
would be anomalous to nevertheless permit what amounts to an
interlocutory appeal from an adverse ruling on a pretrial application for
writ of habeas corpus that challenges the jurisdiction of the criminal
court based on an alleged defective juvenile transfer order. Any appeal
that challenges a juvenile court’s transfer order under Section 54.02 of
the Family Code which is controlled by former Article 44.47 may be
brought “only” as part of the direct appeal of the “criminal case” “in

juvenile court issued the transfer order in this case on May 7, 2015, former
Article 44.47 still controls the permissible course of this appeal. See note 6,
ante.

11 The right to appeal is “not of constitutional magnitude,” this Court
has said; and that which the Legislature has conferred by statute, it may
instead withhold in whole or in part. Rushing v. State, 85 S.W.3d 283, 285−86
(Tex. Crim. App. 2002). It was thus within the legislative prerogative to deny
any interlocutory appeal of a juvenile transfer order, whether civil or
criminal—if only for an interim and even though the Legislature apparently
thought better of it by 2015. “It is the Legislature, after all, that established
the juvenile court system, and ultimately it is up to that body to determine
what procedures guide the movement of cases from that system to the adult
criminal court system.” Id. at 286−87. To allow a defendant to pursue an
interlocutory appeal from an adverse ruling on a pretrial application for writ
of habeas corpus challenging a juvenile court’s transfer order would create a
readily available end-run around the manifest limitation on such appeals so
clearly embodied in former Article 44.47.
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conjunction with the appeal of a conviction[.]” Former TEX. CODE CRIM.
PROC. art. 44.47(b). Indeed, considering the interplay which the Court
has repeatedly recognized between cognizability of claims in pretrial
habeas proceedings and permissibility of interlocutory appeals, it is
questionable whether the district court should even have entertained
Appellant’s writ application in the first place. 12

12 A number of this Court’s opinions have recognized that pretrial
habeas cognizability is determinable, at least partly, as a function of the
advisability of permitting an interlocutory appeal of the matter sought to be
litigated pretrial. See, e.g., Ex parte Edwards, ___ S.W.3d ___, No. PD-1092-20,
2022 WL 1421507, at *1 (Tex. Crim. App. May 4, 2022) (“[A]ppellate courts
take care to foreclose from pretrial habeas ‘matters that in actual fact should
not be put before appellate courts at the pretrial stage.’”) (quoting Ex parte
Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010), which in turn quotes Ex
parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005)); Ex parte Ellis, 309
S.W.3d 71, 79 (Tex. Crim. App. 2010) (same, citing Doster); Ex parte Weise, 55
S.W.3d 617, 620 (Tex. Crim. App. 2001) (“Pretrial habeas should be reserved
for situations in which the protection of the applicant’s substantive rights of
the conservation of judicial resources would be better served by interlocutory
review.”). “Undoubtedly,” Professors Dix and Schmolesky have observed,
“pretrial habeas cannot be used as a means of achieving interlocutory appeal
on issues for which pretrial appellate relief has been explicitly held
unavailable.” George E. Dix & John M. Schmolesky, 43 TEXAS PRACTICE:
CRIMINAL PRACTICE AND PROCEDURE § 35:16, at 278 (3d ed. 2011). In the
absence of former Article 44.47, we might well have agreed with the court of
appeals that a juvenile defendant’s right not to be put to trial based on a
juvenile court’s transfer order that was so deficient as to deprive the criminal
court of jurisdiction ought to be cognizable in pretrial habeas proceedings, on
the ground that he ought not to have to stand trial before it may be determined
whether he may properly be prosecuted. Moon, 649 S.W.3d at 716; see Menefee
v. State, 561 S.W.2d 822, 824 (Tex. Crim. App. 1977) (“The District Court has
no jurisdiction to proceed on a void indictment, and habeas corpus relief is
available.”). But Article 44.47 prohibits any such interlocutory appeal here,
and that arguably renders the issue non-cognizable under the cases cited in
the text of this footnote above.
The argument against cognizability is not undermined by Section
56.01(o) of the Family Code, which provides that “[t]his Section does not limit
a child’s right to obtain a writ of habeas corpus.” TEX. FAM. CODE § 56.01(o).
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III. CONCLUSION
In any event, though we granted the State’s petition for
discretionary review to address the holdings of the court of appeals, we
ultimately conclude that the court of appeals should not have reached
the merits of Appellant’s appeal. See Woods v. State, 68 S.W.3d 667, 670
(Tex. Crim. App. 2002) (granting discretionary review to examine a court
of appeals ruling about the scope of appellate review of a juvenile
transfer order, but then reversing the court of appeals without
addressing that issue because the court of appeals lacked jurisdiction to
address that issue). The court of appeals erred to entertain Appellant’s
appeal in this case. Accordingly, we reversed the court of appeals’
judgment and remand the case to that court to issue an order dismissing
the appeal as unauthorized under former Article 44.47.

DELIVERED: May 3, 2023
PUBLISH

This subsection was added in 2001, during the period in which Section 56.01
did not apply to the appeal of juvenile court transfer orders. Acts 2001, 77th.
Leg., ch. 1297, § 33, p. 3155, eff. Sept. 1, 2001. A revision of Section 56.01 that
provides that “[t]his section” does not limit habeas corpus availability simply
does not speak to the question of whether Article 44.47, which did govern
appeals of juvenile transfer orders at the time that Section 56.01(o) was
enacted, might operate to limit pretrial habeas availability in Appellant’s
criminal proceedings.