NO. 12-20-00269-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
§ APPEAL FROM THE 217TH
EX PARTE:
§ JUDICIAL DISTRICT COURT
KEELAN DRE’ANTHONY LARUE, SR.
§ ANGELINA COUNTY, TEXAS
MEMORANDUM OPINION
Keelan Dre’Anthony Larue, Sr. appeals the trial court’s order denying his application for
writ of habeas corpus seeking release on a personal recognizance bond, or alternatively a bail
reduction. In two issues, he contends that the trial court abused its discretion in denying his
habeas corpus application. We reverse and remand.
BACKGROUND
On June 26, 2020, Appellant was arrested in Angelina County, Texas on two charges of
Engaging in Organized Criminal Activity with bonds totaling $250,000. On October 14,
Appellant filed an application for writ of habeas corpus seeking his release from jail pursuant to
Article 17.151 of the Texas Code of Criminal Procedure on a personal recognizance bond, or
alternatively a bond reduction, because he had been incarcerated for over ninety days and the
State had not secured an indictment on the charges. 1
On November 16, the trial court conducted a hearing via teleconference on Appellant’s
habeas corpus application. At the hearing, Appellant testified that he was seventeen years old
and had been a high school student prior to his arrest. He denied any gang affiliation but
admitted to one juvenile charge for criminal trespass. Appellant testified that he had no assets to
sell or money to make his bail. Appellant’s father, Cason Larue, testified that he lived in
1
TEX. CODE CRIM. PROC. ANN. art. 17.151 § 1(1) (West 2005).
Houston, Texas, and if Appellant was released, he would allow Appellant to live with him in
Houston pending the resolution of the charges. Cason testified that he would help Appellant
obtain a job and his GED. Cason testified that Appellant had no money or assets and Cason had
to use all of his savings to hire Appellant an attorney and had no other means to make
Appellant’s bail. The State acknowledged that it had not secured an indictment against
Appellant and was not ready for trial, but argued that the trial court should deny Appellant’s
habeas corpus application due to Executive Order GA-13, which states in pertinent part, “Article
17.151 of Texas Code of Criminal Procedure” is “hereby suspended to the extent necessary to
prevent any person’s automatic release on personal bond because the State is not ready for
trial.” 2
The trial court denied Appellant’s application for writ of habeas corpus. This appeal
followed.
ARTICLE 17.151 AND EXECUTIVE ORDER GA-13
In his first issue, Appellant argues that the trial court abused its discretion in denying his
application because it is undisputed that Appellant had been incarcerated for over ninety days
and the State had not secured an indictment and, thus, could not be ready for trial. In his second
issue, he argues that Executive Order GA-13 cannot legally suspend Article 17.151 because it
violates the United States and Texas Constitutions. For ease of understanding, we will address
issues one and two together. 3
Standard of Review and Applicable Law
We review a trial court’s decision to deny relief on a claim that the State violated Article
17.151 for an abuse of discretion. See Ex Parte Gill, 413 S.W.3d 425, 428 (Tex. Crim. App.
2013). A trial court abuses its discretion when it applies an erroneous legal standard or when no
reasonable view of the record could support the trial court’s conclusion under the correct law and
facts viewed in the light most favorable to its legal conclusion. Ex Parte Smith, 486 S.W.3d 62,
65 (Tex. App.—Texarkana 2016, no pet.).
2
See TEX. GOV. EXEC. ORDER No. GA-13 (March 29, 2020) available at
https://gov.texas.gov/uploads/files/press/EO-GA-13_jails_and_bail_for_COVID-19_IMAGE_03-29-2020.pdf.
On April 20, 2021, this Court notified the Texas Attorney General’s Office of Appellant’s constitutional
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challenge to GA-13 and sent it a copy of Appellant’s brief. See TEX. GOV’T CODE ANN. § 402.010 (West Supp.
2020). As of July 29, 2021, this Court has received no response from that office.
2
Article 17.151 of the Texas Code of Criminal Procedure reads, in pertinent part:
A defendant who is detained in jail pending trial of an accusation against him must be released
either on personal bond or by reducing the amount of bail required, if the state is not ready for trial
of the criminal action for which he is being detained within: .... 90 days from the commencement
of his detention if he is accused of a felony.
TEX. CODE CRIM. PROC. ANN. Art. 17.151 § 1(1) (West 2005). Under Article 17.151, the State
bears the initial burden to make a prima facie showing that it was ready for trial within the
applicable time period. Smith, 486 S.W.3d at 65. The question of the State’s “readiness” within
the statutory time limit refers to the prosecution’s preparedness for trial. Ex Parte Tucker, No.
03-20-00372-CR, 2020 WL 7776448, at *5 (Tex. App.—Austin Dec. 31, 2020, no pet.) (mem.
op., not designated for publication) (citing Behrend v. State, 729 S.W.2d 717, 720 (Tex. Crim.
App. 1987)). The State cannot announce ready for trial when there is no indictment. Ex Parte
Castellano, 321 S.W.3d 760, 763 (Tex. App.—Fort Worth 2010, no pet.). Accordingly, the
existence of a charging instrument is an element of the State’s preparedness. Kernahan v. State,
657 S.W.2d 433, 434 (Tex. Crim. App. 1983).
Analysis
Here, Appellant was arrested and jailed on June 26 and was continuously incarcerated on
the charges at the time of the filing of his habeas corpus application on October 14 and at the
time of the habeas hearing on November 16. Thus, Appellant had been incarcerated well over
ninety days and the State was required to make prima facie showing that it was ready for trial
within ninety days after Appellant’s detention began—i.e., June 26. See TEX. CODE CRIM. PROC.
ANN. Art. 17.151 § 1(1). Because the ninety day deadline in Article 17.151 had expired and
because the State had not secured an indictment against Appellant within the allotted time frame,
the State was not ready for trial and could not have announced it was ready for trial. See id.;
Castellano, 321 S.W.3d at 763. Thus, the State failed to make a prima facie showing that it was
ready for trial within ninety days from the date that Appellant’s detention commenced on June
26. However, the State argued that Executive Order GA-13, signed by Texas Governor Greg
Abbot on March 29, 2020 suspended the “ninety day requirement.”
As previously discussed, GA-13 suspends Article 17.151 “to the extent necessary to
prevent any person’s automatic release on personal bond because the State is not ready for trial.”
TEX. GOV. EXEC. ORDER No. GA-13 (March 29, 2020). Thus, we cannot say that the trial court
abused its discretion in denying Appellant’s request for a personal recognizance bond because
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GA-13 supports the trial court’s decision to deny Appellant’s request for release on a personal
recognizance bond. Smith, 486 S.W.3d at 65. Therefore, we overrule Appellant’s first issue, in
part.
However, GA-13 does not suspend the part of the statute requiring the defendant’s
automatic release “by reducing the amount of bail required.” See TEX. GOV. EXEC. ORDER No.
GA-13 (March 29, 2020); Ex Parte Montes, No. 04-20-00337-CR, 2021 WL 603368, at *2 (Tex.
App.—San Antonio Feb. 17, 2021, no pet.) (mem. op., not designated for publication). Thus,
because Article 17.151’s mandatory provision requiring bail reduction was not altered by GA-13
and because the State was not ready for trial ninety days after Appellant was confined, the trial
court was required to grant Appellant’s habeas corpus application and reduce his bail. See TEX.
CODE CRIM. PROC. ANN. Art. 17.151 § 1(1); Montes, 2021 WL 603368, at *3. Therefore, we
conclude the trial court abused its discretion by denying Appellant’s habeas corpus application
and by not reducing his bail amounts. See TEX. CODE CRIM. PROC. ANN. Art. 17.151 § 1(1);
Montes, 2021 WL 603368, at *3. We sustain Appellant’s first issue, in part.
In his second issue, Appellant argues that GA-13 unconstitutionally restricts the right to
bail under the federal and Texas constitutions, violates due process guarantees found in the
federal and Texas constitutions, violates the separation of powers established by the Texas
constitution, usurps the constitutional right bestowed on the legislature to suspend laws, and
exceeds the powers given to the Governor under the Government Code. See U.S. CONST.
amends. V, VIII; TEX. CONST., art. I, §§ 11, 19, 28; TEX. CONST. art. II, § 1; TEX. GOV’T CODE
ANN. §§ 418.011-.026 (West 2019 and West Supp. 2020).
However, Appellant presented no constitutional challenge regarding GA-13 to the trial
court. To preserve a complaint for appellate review, the record must show, among other things,
that the complaint was made to the trial court. See TEX. R. APP. P. 33.1(a). Generally, appellate
complaints are forfeited in the absence of a timely request for relief in the trial court except for
rights involving systemic requirements or rights that are non-forfeitable but can be affirmatively
waived. See Grado v. State, 445 S.W.3d 736, 739 (Tex. Crim. App. 2014). Even constitutional
rights “may be forfeited for purposes of appellate review unless properly preserved.” Johnson v.
State, No. 03-12-00006-CR, 2012 WL 1582236, at *3 (Tex. App.—Austin May 4, 2012, no pet.)
(mem. op., not designated for publication). Because Appellant failed to present his constitutional
arguments regarding GA-13 to the trial court, we must conclude that he failed to preserve these
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claims for appellate consideration. Ex Parte Williams, 03-20-00457-CR, 2021 WL 1583882, at
*12 (Tex. App.—Austin Apr. 23, 2021, no pet. h.) (holding that appellant failed to preserve same
constitutional arguments made in this case regarding GA-13 because he did not present them to
trial court). Thus, we decline to reach the merits of Appellant’s constitutional arguments, and we
overrule his second issue.
DISPOSITION
Having sustained part of Appellant’s first issue, we reverse the trial court’s order denying
Appellant’s habeas corpus application and remand this case to the trial court for proceedings
consistent with this opinion. We order the Clerk of this Court to issue the mandate immediately.
See TEX. R. APP. P. 18.6 (allowing the appellate court to issue the mandate with its judgment in
an accelerated appeal); Ex parte Carson, 215 S.W.3d 921, 924 (Tex. App—Texarkana 2007, no
pet.) (issuing mandate immediately in Article 17.151 bail reduction case).
GREG NEELEY
Justice
Opinion delivered June 30, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JUNE 30, 2021
NO. 12-20-00269-CR
EX PARTE: KEELAN DRE'ANTHONY LARUE, SR.
Appeal from the 217th District Court
of Angelina County, Texas (Tr.Ct.No. 2020-0661)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, because it is the opinion of this Court that there was error
in order of the court below, it is ORDERED, ADJUDGED and DECREED by this Court that the
order denying Appellant’s habeas corpus application be reversed and the cause remanded to the
trial court for further proceedings in accordance with the opinion of this Court; and that this
decision be certified to the court below for observance.”
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.