Virginia Law

The common-law writ of quo warranto and information in the nature of writ of quo warranto is hereby abolished and superseded by the statutory writ of quo warranto.

1977, c. 617.

A writ of quo warranto may be issued and prosecuted in the name of the Commonwealth in any of the following cases:

1. Against a domestic corporation, other than a municipal corporation, for the misuse or nonuse of its corporate privileges and franchises, or for the exercise of a privilege or franchise not conferred upon it by law, or when a charter of incorporation has been obtained by it for a fraudulent purpose, or for a purpose not authorized by law;

2. Against a person for the misuse or nonuse of any privilege conferred upon him by law;

2a. Against a person engaged in the practice of any profession without being duly authorized or licensed to do so;

3. Against any person or persons acting as a corporation, other than a municipal corporation, without authority of law; and

4. Against any person who intrudes into or usurps any public office. But no writ shall be issued or prosecuted against any person now in office for any cause which would have been available in support of a proceeding to contest his election.

Provided that nothing herein shall be construed to give jurisdiction to any court to judge the election, qualifications, or returns of the members of either house of the General Assembly.

Code 1950, § 8-857; 1977, c. 617; 1980, c. 705.

A. The Attorney General or attorney for the Commonwealth of any county or city of which the circuit court has jurisdiction of the proceeding, at his own instance or at the relation of any interested person, or any interested person, may apply to such court by petition verified by oath for a writ of quo warranto. In case of an application under § 8.01-636 2a the term "any interested person" shall include any attorney licensed to practice law in this Commonwealth and qualified to practice before the Supreme Court of Virginia, or the circuit court in which the petition is filed.

B. If, in the opinion of the court, the matters stated in the petition are sufficient in law to authorize the issuance of such writ, a writ shall issue thereon, commanding the sheriff to summon the defendant to appear at a date set forth in the writ.

C. If the petition is filed on the relation of any person or by any person at his own instance, before the clerk shall issue the writ the court shall require the relator or person to give bond with sufficient surety, to be approved by the clerk, to indemnify the Commonwealth against all costs and expenses of the proceedings, in case the same shall not be recovered from and paid by the defendant.

Code 1950, §§ 8-858, 8-859, 8-860; 1977, c. 617; 1980, c. 705.

Repealed by Acts 1987, c. 567.

The writ and a copy of the petition attached thereto may be directed to the sheriff of any county or city and shall be served as in other actions.

Code 1950, § 8-861; 1977, c. 617.

If the defendant fails to appear in accordance with the writ, the court may hear proof of the allegations of the petition, and if the allegations are sustained, shall give judgment accordingly.

Code 1950, § 8-862; 1977, c. 617.

But if service is made by publication, the defendant against whom the judgment is rendered may file a motion within thirty days from the rendition of judgment to have such judgment set aside, upon giving bond with good security as prescribed by the court, with condition to pay all such costs as shall be awarded in the cause against the defendant. The defendant may then make such defense to the petition as he might have made, and in the same manner, before the judgment was rendered.

Code 1950, § 8-863; 1977, c. 617.

The defendant against whom the writ was issued may plead, demur or answer the petition within the time set forth in the writ for his appearance.

Code 1950, § 8-864; 1977, c. 617.

Unless the defendant shall ask for a trial by jury, the court shall hear the same. If the case is tried by jury and the defendant is found guilty as to only a part of the charges, the verdict shall be guilty as to such part and shall particularly specify the same. As to the residue of such charges, the verdict shall be not guilty.

If the defendant appears and is found guilty the court shall give such judgment as is appropriate and authorized by law and for costs incurred in the prosecution of the information, including a reasonable attorney's fee to be prescribed by the court.

Code 1950, § 8-865; 1977, c. 617.

Except as provided in § 2.2-3713, application for a writ of mandamus or a writ of prohibition shall be on petition verified by oath, after the party against whom the writ is prayed has been served with a copy of the petition and notice of the intended application a reasonable time before such application is made.

Code 1950, § 8-704; 1977, c. 617; 2009, c. 634.

A petition for extraordinary writ of mandamus, filed by or on behalf of a person confined in a state correctional facility, shall be brought within one year after the cause of action accrues.

1998, c. 596.

The petition shall state plainly and concisely the grounds of the application, concluding with a prayer for the writ, and shall be presented to the court having jurisdiction, unless the application is to the Court of Appeals or the Supreme Court.

Code 1950, § 8-705; 1977, c. 617; 1984, c. 703.

When the application is made, on proof of notice and service of the copy of the petition as aforesaid, if the defendant fails to appear, or appearing fails to make defense, and the petition states a proper case for the writ, a peremptory writ shall be awarded with costs.

Code 1950, § 8-706; 1977, c. 617.

The defendant may file a demurrer or answer on oath to the petition, or both. The court may permit amendments of the pleadings as in other cases.

Code 1950, § 8-707; 1977, c. 617.

The court shall award or deny the writ according to the law and facts of the case, with or without costs.

Code 1950, § 8-709; 1977, c. 617.

If the application is to the Court of Appeals or the Supreme Court, the procedure shall be in accordance with the provisions of Rules of Court.

Code 1950, § 8-710; 1977, c. 617; 1984, c. 703.

On petition for a writ of prohibition, the court may, at any time before or after the application for the writ is made, make an order, a copy of which shall be served on the defendant, suspending the proceedings sought to be prohibited until the final decision of the cause.

Code 1950, § 8-711; 1977, c. 617.

Whenever a court having jurisdiction refuses to suspend proceedings as provided in § 8.01-650 of this chapter, a copy of the proceedings in court, with any orders entered in the proceedings, may be presented to a judge of the Court of Appeals, if an application for a writ of prohibition is pending in that court, or to a justice of the Supreme Court if the application for a writ is pending there. Such judge or justice may thereupon award a suspension of the proceedings sought to be prohibited until the final decision of the cause.

Code 1950, § 8-711.1; 1972, c. 673; 1977, c. 617; 1984, c. 703.

Service of a copy of the order awarding the writ shall be equivalent to service of the writ, and obedience to the writ or order may be enforced by process of contempt.

Code 1950, § 8-713; 1977, c. 617.

Whenever the Comptroller or the Treasurer of the Commonwealth shall notify the Attorney General, in writing, that they, or either of them, entertain such doubt respecting the proper construction or interpretation of any act of the General Assembly which appropriates or directs the payment of money out of the treasury of the Commonwealth, or respecting the constitutionality of any such act, that they, or either of them, do not feel that it would be proper or safe to pay such money until there has been a final adjudication by the Supreme Court determining any and all such questions, and that, for such reason, they will not make payments pursuant to such act until such adjudication has been made, the Attorney General may file in such court a petition for a writ of mandamus directing or requiring the Comptroller or Treasurer of the Commonwealth, or both, to pay such money as provided by any such act at such time in the future as may be proper. In order to avoid delays in payments after the time for making them has arrived, any such petition may be filed at any time after the passage of any such act although the time for making such payments has not arrived and no demand for such payments has been made. In any such proceeding the court shall consider and determine all questions raised by the Attorney General's petition pertaining to the constitutionality or interpretation of any such act, even though some of such questions may not be necessary to the decision of the question of the duty of such Comptroller and Treasurer of the Commonwealth to make payment of the moneys appropriated or directed to be paid.

The Comptroller and the Treasurer of the Commonwealth, or either of them, as the case may be, shall be made a party or parties defendant to any such petition and the court may, in its discretion, cause such other officers or persons to be made parties defendant as it may deem proper, and may make such order respecting the employment of an attorney or attorneys for any officer of the Commonwealth who is a party defendant as may be appropriate. The compensation of any such attorney shall be fixed by such court and upon its order paid out of the appropriation to the office or department of any such public officer represented by any such attorney in such proceeding.

Code 1950, § 8-714; 1977, c. 617.

Whenever the Comptroller notifies the Attorney General in writing that he entertains doubt respecting the constitutionality of any act of the General Assembly granting an agency of the Commonwealth or other governmental board or entity of the Commonwealth general powers to incur obligations for transportation needs where such obligations are subject to authorization by the General Assembly, the Attorney General shall file in the Supreme Court a petition for a writ of mandamus directing or requiring the Comptroller to pay the money as provided by any such act at such time in the future as may be proper. In order to expedite long-term planning by such an agency of the Commonwealth or other governmental board or entity of the Commonwealth and expedite its advice to the Governor and the General Assembly on possible alternative means of financing Virginia's transportation needs, the petition may be filed after the enactment date of any such act, although (i) the General Assembly may not have enacted legislation specifically authorizing such an agency of the Commonwealth or other governmental board or entity of the Commonwealth to enter into specific obligations under its general authority or (ii) if such specific obligations have been authorized, the time for making payments has not arrived and no demand for payment has been made. The court shall consider and determine all questions raised by the Attorney General's petition pertaining to the constitutionality or interpretation of any such act, even though some of the questions may not be necessary to the decision regarding the duty of the Comptroller to make payment of the moneys appropriated or directed to be paid.

The Comptroller shall be made a party defendant to the petition. The court may, in its discretion, cause other officers or persons to be made parties defendant as it may deem proper, and may make such order respecting the employment of an attorney or attorneys for any officer of the Commonwealth who is a party defendant as may be appropriate. The compensation of any attorney so employed shall be fixed by the court and upon its order paid out of the appropriation to the office or department of the public officer represented by the attorney in the proceeding.

1986, Sp. Sess., cc. 14, 16.

A. 1. A petition for a writ of habeas corpus ad subjiciendum may be filed in the Supreme Court or any circuit court showing by affidavits or other evidence that the petitioner is detained without lawful authority.

2. A petition for writ of habeas corpus ad subjiciendum, other than a petition challenging a criminal conviction or sentence, shall be brought within one year after the cause of action accrues. A habeas corpus petition attacking a criminal conviction or sentence shall be filed within two years from the date of final judgment in the trial court or within one year from either final disposition of the direct appeal in state court or the time for filing such appeal has expired, whichever is later.

B. 1. With respect to any such petition filed by a petitioner whose detention originated under criminal process, and subject to the provisions of § 17.1-310, only the circuit court that entered the original judgment or order resulting in the detention complained of in the petition shall have authority to issue writs of habeas corpus. If a district court entered the original judgment or order resulting in the detention complained of in the petition, only the circuit court for the city or county wherein the district court sits shall have authority to issue writs of habeas corpus. Hearings on such petition, where granted in the circuit court, may be held at any circuit court within the same circuit as the circuit court in which the petition was filed, as designated by the judge thereof.

2. Such petition shall contain all allegations the facts of which are known to petitioner at the time of filing and such petition shall enumerate all previous applications and their disposition. No writ shall be granted on the basis of any allegation the facts of which petitioner had knowledge at the time of filing any previous petition. The provisions of this section shall not apply to a petitioner's first petition for a writ of habeas corpus when the sole allegation of such petition is that the petitioner was deprived of the right to pursue an appeal from a final judgment of conviction or probation revocation, except that such petition shall contain all facts pertinent to the denial of appeal that are known to the petitioner at the time of the filing, and such petition shall certify that the petitioner has filed no prior habeas corpus petitions attacking the conviction or probation revocation.

3. Such petition may allege detention without lawful authority through challenge to a conviction, although the sentence imposed for such conviction is suspended or is to be served subsequently to the sentence currently being served by petitioner.

4. In the event the allegations of illegality of the petitioner's detention can be fully determined on the basis of recorded matters, the court may make its determination whether such writ should issue on the basis of the record.

5. The court shall give findings of fact and conclusions of law following a determination on the record or after hearing, to be made a part of the record and transcribed.

6. If petitioner alleges as a ground for illegality of his detention the inadequacy of counsel, he shall be deemed to waive his privilege with respect to communications between such counsel and himself to the extent necessary to permit a full and fair hearing for the alleged ground.

Code 1950, § 8-596; 1958, c. 215; 1968, c. 487; 1977, c. 617; 1978, c. 124; 1995, c. 503; 1998, c. 577; 2005, c. 836; 2019, cc. 8, 48; 2021, Sp. Sess. I, cc. 344, 345.

Repealed by Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 2, effective July 1, 2021.

A. Every petition filed by a prisoner seeking a writ of habeas corpus must be filed on the form set forth in subsection B. The failure to use such form and to comply substantially with such form shall entitle the court to which such petition is directed to return such petition to the prisoner pending the use of and substantial compliance with such form. The petitioner shall be responsible for all statements contained in the petition and any false statement contained therein, if the same be knowingly or wilfully made, shall be a ground for prosecution and conviction of perjury as provided for in § 18.2-434.

B. Every petition filed by a prisoner seeking a writ of habeas corpus shall be filed on a form to be approved and provided by the office of the Attorney General, the contents of which shall be substantially as follows:

IN THE............................................................… COURT

..........................................................................…

Full name and prisonerCase No............................…

number (if any) of(To be supplied by

Petitionerthe Clerk of the

-vs-Court)

..........................................................................…

..........................................................................…

Name and Title of Respondent

PETITION FOR WRIT OF HABEAS CORPUS

Instructions--Read Carefully

In order for this petition to receive consideration by the Court, it must
be legibly handwritten or typewritten, signed by the petitioner and verified
before a notary or other officer authorized to administer oaths. It must set
forth in concise form the answers to each applicable question. If necessary,
petitioner may finish his answer to a particular question on an additional
page. Petitioner must make it clear to which question any such continued
answer refers. The petitioner may also submit exhibits.

Since every petition for habeas corpus must be sworn to under oath, any
false statement of a material fact therein may serve as the basis of
prosecution and conviction for perjury under § 18.2-434. Petitioners should,
therefore, exercise care to assure that all answers are true and correct.

When the petition is completed, the original and two copies (total of

three) should be mailed to the clerk of the court. The petitioner shall keep
one copy.

NOTICE

The granting of a writ of habeas corpus does not entitle the petitioner to
dismissal of the charges for conviction of which he is being detained, but may
gain him no more than a new trial.

..........................................................................…

Place of detention:....................................................…

A. Criminal Trial

1. Name and location of court which imposed the sentence from which you
seek relief:
..........................................................................…
....................................................................…..…

2. The offense or offenses for which sentence was imposed (include
indictment number or numbers if known):
a...................................................................…
b...................................................................…
c...................................................................…

3. The date upon which sentence was imposed and the terms of the sentence:
a...................................................................…
b...................................................................…
c...................................................................…

4. Check which plea you made and whether trial by jury: Plea of guilty:
.......; Plea of not guilty:.......; Trial by jury:......; Trial by judge
without jury:...…

5. The name and address of each attorney, if any, who represented you at
your criminal trial:
..........................................................................…
..........................................................................…
6. Did you appeal the conviction?......................................…
7. If you answered "yes" to 6, state: the result and the date in your
appeal or petition for certiorari:
a...................................................................…
b...................................................................…
citations of the appellate court opinions or orders:
a...................................................................…
b...................................................................…

8. List the name and address of each attorney, if any, who represented you
on your appeal:
..........................................................................…
..........................................................................…

B. Habeas Corpus

9. Before this petition did you file with respect to this conviction any
other petition for habeas corpus in either a State or federal court?......…
10. If you answered "yes" to 9, list with respect to each petition: the
name and location of the court in which each was filed:
a.........................................…......................…
b...................................................................…
the disposition and the date:
a...................................................................…
b...................................................................…
the name and address of each attorney, if any, who represented you on
your habeas corpus:
a...................................................................…
b...................................................................…

11. Did you appeal from the disposition of your petition for habeas corpus?
12. If you answered "yes" to 11, state: the result and the date of each
petition:
a...................................................................…
b...................................................................…
citations of court opinions or orders on your habeas corpus petition:
a...................................................................…
b...................................................................…
the name and address of each attorney, if any, who represented you on
appeal of your habeas corpus:
a...................................................................…
b...................................................................…

C. Other Petitions, Motions or Applications

13. List all other petitions, motions or applications filed with any court
following a final order of conviction and not set out in A or B. Include the
nature of the motion, the name and location of the court, the result, the
date, and citations to opinions or orders. Give the name and address of each
attorney, if any, who represented you.
a...................................................................…
b...................................................................…
c...................................................................…

D. Present Petition

14. State the grounds which make your detention unlawful, including the
facts on which you intend to rely:
a...................................................................…
b............…...................................................…
c...................................................................…
15. List each ground set forth in 14, which has been presented in any other
proceeding:
a...................................................................…
b...................................................................…
c...................................................................…
List the proceedings in which each ground was raised:
a...................................................................…
b...................................................................…
c...................................................................…
16. If any ground set forth in 14 has not been presented to a court, list
each ground and the reason why it was not:
a...................................................................…
b...................................................................…
c...................................................................…

.............................................…

Signature of Petitioner

.............................................…

Address of Petitioner

STATE OF VIRGINIA

CITY/COUNTY OF...................................…

The petitioner being first duly sworn, says:

1. He signed the foregoing petition;

2. The facts stated in the petition are true to the best of his
information and belief.

.............................................…

Signature of Petitioner

Subscribed and sworn to before me

this....… day of........................., 20...…

....................................…
Notary Public

My commission expires:......................…

The petition will not be filed without payment of court costs unless the
petitioner is entitled to proceed in forma pauperis and has executed the
affidavit in forma pauperis.

The petitioner who proceeds in forma pauperis shall be furnished, without
cost, certified copies of the arrest warrants, indictment and order of his
conviction at his criminal trial in order to comply with the instructions of
this petition.

AFFIDAVIT IN FORMA PAUPERIS

STATE OF VIRGINIA

CITY/COUNTY OF.............................…

The petitioner being duly sworn, says:

1. He is unable to pay the costs of this action or give security
therefor;
2. His assets amount to a total of $....................…

.............................................…

Signature of Petitioner

Subscribed and sworn to before me

this....… day of........................., 20...…

....................................…
Notary Public

My commission expires:..................…

Code 1950, § 8-596.1; 1968, c. 359; 1977, c. 617.

Repealed by Acts 2019, cc. 8 and 48, cl. 2.

A. Except as may be provided in the Rules of Supreme Court of Virginia, no response to a petition for a writ of habeas corpus shall be required except upon an order of the court, directed to the person in whose custody the petitioner is detained or on the person having the immediate or potential custody of him, and made returnable as soon as may be before the court ordering the same.

B. When the petition challenges a criminal conviction or sentence:

1. If the petitioner is in jail, prison, or other actual physical restraint due to the conviction or sentence he is attacking, the named respondent shall be (i) the Director of the Department of Corrections or the warden or superintendent of the state correctional facility where the petitioner is detained if the petitioner has been committed to, or is subject to transfer to, the Department of Corrections or (ii) the sheriff or superintendent of a local or regional jail facility if the petitioner's sentence will be served in such local or regional jail facility.

2. If the petitioner is on probation or parole due to the conviction or sentence he is attacking, the named respondent shall be the probation or parole officer responsible for supervising the applicant or the official in charge of the parole or probation agency.

3. If a petitioner has a suspended sentence and is not under supervision by a probation or parole officer, the respondent shall be (i) the local sheriff if the judgment of conviction the petitioner challenges has a suspended sentence of less than one year or (ii) the Director of the Department of Corrections if the judgment of conviction the petitioner challenges has a suspended sentence of one year or more.

C. The petitioner shall name a proper party respondent, and if he fails to do so, the court may allow amendment of the petition. If the petitioner fails to amend the petition by naming a proper party respondent in the time provided by the court, the court in which the petition is filed shall dismiss the habeas petition without prejudice.

D. If the court in which the petition was filed determines that the petitioner's allegations present a case for the determination of unrecorded matters of fact relating to a previous judicial proceeding in any circuit court, the court may transfer the petition to the circuit court in which such judicial proceeding occurred, or if the petition was filed in the Supreme Court, the Court may require the circuit court in which such judicial proceeding occurred to conduct an evidentiary hearing, in accordance with such procedures as may be set forth in the Rules of Supreme Court of Virginia.

Code 1950, § 8-599; 1977, c. 617; 2015, c. 554; 2019, cc. 8, 48.

Repealed by Acts 2019, cc. 8 and 48, cl. 2.

In the discretion of the court or judge before whom the petitioner is brought, the affidavits of witnesses taken by either party, on reasonable notice to the other, may be read as evidence.

Code 1950, § 8-601; 1977, c. 617.

All the material facts proved shall, when it is required by either party, be made a part of the proceedings and entered by the clerk among the records of the court.

Code 1950, § 8-602; 1977, c. 617.

After hearing the matter both upon the response and any other evidence, the court shall either discharge or remand the petitioner, grant him any other relief to which he is entitled, or admit him to bail and adjudge the cost of the proceeding, including the charge for transporting the prisoner, provided, however, that if the petition is denied, the costs and expenses of the proceeding and the attorney fees of any attorney appointed to represent the petitioner shall be assessed against the petitioner. If such cost, expenses, and fees are collected, they shall be paid to the Commonwealth.

When relief is granted upon a petition for a writ of habeas corpus, the order granting relief on the writ shall be served on the respondent and the petitioner. Service may, in the court's discretion, be accomplished by personal service or by transmitting a certified copy of the order to the parties via regular or certified mail, a third-party commercial carrier, or electronic delivery.

Code 1950, § 8-603; 1968, c. 482; 1977, c. 617; 2019, cc. 8, 48.

Any such judgment entered of record shall be conclusive, unless the same be reversed, except that the petitioner shall not be precluded from bringing the same matter in question in an action for false imprisonment.

Code 1950, § 8-605; 1977, c. 617.

If, during the recess of the Supreme Court, the Governor or the Chief Justice of the Court should think the immediate revision of any such judgment to be proper, he may summon the Court for that purpose, to meet on any day to be fixed by him.

Code 1950, § 8-606; 1977, c. 617.

When the prisoner is remanded, the execution of the judgment shall not be suspended by a petition for appeal or by a writ of error, or for the purpose of applying for such writ. When he is ordered to be discharged, and the execution of the judgment is suspended for the purpose of petitioning for appeal to the Court of Appeals or applying for a writ of error from the Supreme Court, the court making such suspending order may admit the prisoner to bail until the expiration of the time allowed for filing a petition for appeal or applying for the writ of error, or, in case the petition for appeal is filed or the writ of error is allowed, until the decision of the Court of Appeals or the Supreme Court thereon is duly certified.

Code 1950, § 8-607; 1977, c. 617; 1984, c. 703.

Writs of habeas corpus ad testificandum may be granted by any circuit court in the same manner and under the same conditions and provisions as are prescribed by this chapter as to granting the writ of habeas corpus ad subjiciendum so far as the same are applicable.

Code 1950, § 8-608; 1977, c. 617.

Whenever any habeas corpus case is pending in a federal court, upon written request of the Attorney General or any assistant attorney general, a court of this Commonwealth shall transmit to such federal court such records as may be requested.

Code 1950, § 8-608.1; 1975, c. 389; 1977, c. 617.

The writ de homine replegiando is abolished.

Code 1950, § 8-609; 1977, c. 617.