Illinois General Assembly

  Bills & Resolutions  
  Compiled Statutes  
  Public Acts  
  Legislative Reports  
  IL Constitution  
  Legislative Guide  
  Legislative Glossary  

 Search By Number
 (example: HB0001)
Search Tips

Search By Keyword

Illinois Compiled Statutes

Information maintained by the Legislative Reference Bureau
Updating the database of the Illinois Compiled Statutes (ILCS) is an ongoing process. Recent laws may not yet be included in the ILCS database, but they are found on this site as Public Acts soon after they become law. For information concerning the relationship between statutes and Public Acts, refer to the Guide.

Because the statute database is maintained primarily for legislative drafting purposes, statutory changes are sometimes included in the statute database before they take effect. If the source note at the end of a Section of the statutes includes a Public Act that has not yet taken effect, the version of the law that is currently in effect may have already been removed from the database and you should refer to that Public Act to see the changes made to the current law.

CIVIL PROCEDURE
(735 ILCS 5/) Code of Civil Procedure.

735 ILCS 5/Art. X

 
    (735 ILCS 5/Art. X heading)
ARTICLE X
HABEAS CORPUS

735 ILCS 5/10-101

    (735 ILCS 5/10-101) (from Ch. 110, par. 10-101)
    Sec. 10-101. Action commenced by plaintiff. In all proceedings commenced under Article X of this Act, the name of the person seeking the relief afforded by this Article shall be set out as plaintiff without the use of the phrase "People ex rel." or "People on the relation of".
(Source: P.A. 82-280.)

735 ILCS 5/10-102

    (735 ILCS 5/10-102) (from Ch. 110, par. 10-102)
    Sec. 10-102. Who may file. Every person imprisoned or otherwise restrained of his or her liberty, except as herein otherwise provided, may apply for habeas corpus in the manner provided in Article X of this Act, to obtain relief from such imprisonment or restraint, if it prove to be unlawful.
(Source: P.A. 82-280.)

735 ILCS 5/10-103

    (735 ILCS 5/10-103) (from Ch. 110, par. 10-103)
    Sec. 10-103. Application. Application for the relief shall be made to the Supreme Court or to the circuit court of the county in which the person in whose behalf the application is made, is imprisoned or restrained, or to the circuit court of the county from which such person was sentenced or committed. Application shall be made by complaint signed by the person for whose relief it is intended, or by some person in his or her behalf, and verified by affidavit. Application for relief under this Article may not be commenced on behalf of a person who has been sentenced to death without the written consent of that person, unless the person, because of a mental or physical condition, is incapable of asserting his or her own claim.
(Source: P.A. 89-684, eff. 6-1-97.)

735 ILCS 5/10-104

    (735 ILCS 5/10-104) (from Ch. 110, par. 10-104)
    Sec. 10-104. Substance of complaint. The complaint shall state in substance:
    1. That the person in whose behalf the relief is applied for is imprisoned or restrained of his or her liberty, and the place where - naming all the parties if they are known, or describing them if they are not known.
    2. The cause or pretense of the restraint, according to the best knowledge and belief of the applicant, and that such person is not committed or detained by virtue of any process, or judgment, specified in Section 10-123 of this Act.
    3. If the commitment or restraint is by virtue of any warrant or process, a copy thereof shall be annexed, or it shall be stated that by reason of such prisoner being removed or concealed before application, a demand of such copy could not be made, or that such demand was made, and the legal fees therefor tendered to the officer or person having such prisoner in his or her custody, and that such copy was refused.
(Source: P.A. 82-280.)

735 ILCS 5/10-105

    (735 ILCS 5/10-105) (from Ch. 110, par. 10-105)
    Sec. 10-105. Copy of process. Any sheriff or other officer or person having custody of any prisoner committed on any civil or criminal process of any court who shall neglect to give such prisoner a copy of the process or order of commitment by which he or she is imprisoned within 6 hours after demand made by the prisoner, or any one on behalf of the prisoner, shall forfeit to the prisoner or party affected not exceeding $500. This Section shall not apply to the Illinois Department of Corrections.
(Source: P.A. 85-907.)

735 ILCS 5/10-106

    (735 ILCS 5/10-106) (from Ch. 110, par. 10-106)
    Sec. 10-106. Grant of relief - Penalty. Unless it shall appear from the complaint itself, or from the documents thereto annexed, that the party can neither be discharged, admitted to bail nor otherwise relieved, the court shall forthwith award relief by habeas corpus. Any judge empowered to grant relief by habeas corpus who shall corruptly refuse to grant the relief when legally applied for in a case where it may lawfully be granted, or who shall for the purpose of oppression unreasonably delay the granting of such relief shall, for every such offense, forfeit to the prisoner or party affected a sum not exceeding $1,000.
(Source: P.A. 83-707.)

735 ILCS 5/10-107

    (735 ILCS 5/10-107) (from Ch. 110, par. 10-107)
    Sec. 10-107. Form of orders. If the relief is allowed by an order of a court it shall be certified by the clerk under the seal of the court; if by a judge, it shall be under the judge's signature, and shall be directed to the person in whose custody or under whose restraint the prisoner is, and may be substantially in the following form:
        The People of the State of Illinois, to the Sheriff
    
of .... County (or, "to A B," as the case may be):
        You are hereby commanded to have the body of C D,
    
imprisoned and detained by you, together with the time and cause of such imprisonment and detention by whatsoever name C D is called or charged, before .... court of .... County (or before E F, judge of, etc.), at, etc., immediately after being served with a certified copy of this order, to be dealt with according to law; and you are to deliver a certified copy of this order with a return thereon of your performance in carrying out this order.
(Source: P.A. 83-707.)

735 ILCS 5/10-108

    (735 ILCS 5/10-108) (from Ch. 110, par. 10-108)
    Sec. 10-108. Indorsement. With the intent that no officer or person to whom such order is directed may pretend ignorance thereof, every such order shall be indorsed with these words: "By the habeas corpus law."
(Source: P.A. 82-280.)

735 ILCS 5/10-109

    (735 ILCS 5/10-109) (from Ch. 110, par. 10-109)
    Sec. 10-109. Subpoena-Service. When the party has been committed upon a criminal charge, unless the court deems it unnecessary, a subpoena shall also be issued to summon the witnesses whose names have been endorsed upon the warrant of commitment, to appear before such court at the time and place when and where such order of habeas corpus is returnable, and it shall be the duty of the sheriff, or other officer to whom the subpoena is issued, to serve the same, if it is possible, in time to enable such witnesses to attend.
(Source: P.A. 82-280.)

735 ILCS 5/10-110

    (735 ILCS 5/10-110) (from Ch. 110, par. 10-110)
    Sec. 10-110. Service of order. The habeas corpus order may be served by the sheriff, coroner or any person appointed for that purpose by the court which entered the order; if served by a person not an officer, he or she shall have the same power, and be liable to the same penalty for non-performance of his or her duty, as though he or she were sheriff.
(Source: P.A. 83-707.)

735 ILCS 5/10-111

    (735 ILCS 5/10-111) (from Ch. 110, par. 10-111)
    Sec. 10-111. Manner of service. Service shall be made by leaving a copy of the order with the person to whom it is directed, or with any of his or her under officers who may be at the place where the prisoner is detained; or if he or she can not be found, or has not the person imprisoned or restrained in custody, the service may be made upon any person who has the person in custody with the same effect as though he or she had been made a defendant therein.
(Source: P.A. 82-280.)

735 ILCS 5/10-112

    (735 ILCS 5/10-112) (from Ch. 110, par. 10-112)
    Sec. 10-112. Expense involved. When the person confined or restrained is in the custody of a civil officer, the court entering the order shall certify thereon the sum to be paid for the expense of bringing the person from the place of imprisonment, not exceeding 10 cents per mile, and the officer shall not be bound to obey it unless the sum so certified is paid or tendered to him or her, and security is given to pay the charges of carrying the party back if he or she should be remanded. If the court is satisfied that the party so confined or restrained is a poor person and unable to pay such expense, then the court shall so state in the order, and in such case no tender or payment of expenses need be made or security given but the officer shall be bound to obey such order.
(Source: P.A. 82-280.)

735 ILCS 5/10-113

    (735 ILCS 5/10-113) (from Ch. 110, par. 10-113)
    Sec. 10-113. Form of return. The officer or person upon whom such order is served shall state in his or her return, plainly and unequivocally:
    1. Whether he or she has or has not the party in his or her custody or control, or under his or her restraint, and if he or she has not, whether he or she has had the party in his or her custody or control, or under his or her restraint, at any and what time prior or subsequent to the date of the order.
    2. If he or she has the party in his or her custody or control, or under his or her restraint, the authority and true cause of such imprisonment or restraint, setting forth the same in detail.
    3. If the party is detained by virtue of any order, warrant or other written authority, a copy thereof shall be attached to the return, and the original shall be produced and exhibited on the return of the order to the court before whom the same is returnable.
    4. If the person upon whom the order is served has had the party in his or her custody or control or under his or her restraint, at any time prior or subsequent to the date of the order but has transferred such custody or restraint to another, the return shall state particularly to whom, at what time, for what cause and by what authority such transfer took place. The return shall be signed by the person making the same, and except where such person is a sworn public officer and makes the return in his or her official capacity, it shall be verified by oath.
(Source: P.A. 82-280.)

735 ILCS 5/10-114

    (735 ILCS 5/10-114) (from Ch. 110, par. 10-114)
    Sec. 10-114. Bringing of body. The officer or person making the return, shall, at the same time, bring the body of the party, if in his or her custody or power or under his or her restraint, according to the command of the order unless prevented by the sickness or infirmity of the party.
(Source: P.A. 82-280.)

735 ILCS 5/10-115

    (735 ILCS 5/10-115) (from Ch. 110, par. 10-115)
    Sec. 10-115. Sickness or infirmity. When, from the sickness or infirmity of the party, he or she cannot without danger, be brought to the place designated for the return of the order, that fact shall be stated in the return, and if it is proved to the satisfaction of the judge, he or she may proceed to the jail or other place where the party is confined, and there make an examination, or the judge may adjourn the same to such other time, or make such other order in the case as law and justice require.
(Source: P.A. 82-280.)

735 ILCS 5/10-116

    (735 ILCS 5/10-116) (from Ch. 110, par. 10-116)
    Sec. 10-116. Neglect to obey order. If the officer or person upon whom such order is served refuses or neglects to obey the same, by producing the party named in the order and making a full and explicit return thereto within the time required by Article X of this Act, and no sufficient excuse is shown for such refusal or neglect, the court before whom the order is returnable, upon proof of the service thereof, shall enforce obedience by attachment as for contempt, and the officer or person so refusing or neglecting shall forfeit to the party a sum not exceeding $500, and be incapable of holding office.
(Source: P.A. 82-280.)

735 ILCS 5/10-117

    (735 ILCS 5/10-117) (from Ch. 110, par. 10-117)
    Sec. 10-117. Order in case of neglect. The court may also, at the same time or afterwards, enter an order to the sheriff or other person to whom such attachment is directed, commanding him or her to bring forthwith before the court the party for whose benefit the habeas corpus order was entered, who shall thereafter remain in the custody of such sheriff, or other person, until the party is discharged, bailed or remanded, as the court directs.
(Source: P.A. 82-280.)

735 ILCS 5/10-118

    (735 ILCS 5/10-118) (from Ch. 110, par. 10-118)
    Sec. 10-118. Proceedings in case of emergency. Whenever it appears by the complaint, or by affidavit, that any one is illegally held in custody or restraint, and that there is good reason to believe that such person will be taken out of the jurisdiction of the court in which the application for a habeas corpus is made, or will suffer some irreparable injury before compliance with the order can be enforced, the court may enter an order directed to the sheriff or other proper officer, commanding him or her to take the prisoner thus held in custody or restraint, and forthwith bring him or her before the court to be dealt with according to law. The court may also, if it is deemed necessary, order the apprehension of the person charged with causing the illegal restraint. The officer shall execute the order by bringing the person therein named before the court, and the like return and proceedings shall be had as in other orders of habeas corpus.
(Source: P.A. 83-707.)

735 ILCS 5/10-119

    (735 ILCS 5/10-119) (from Ch. 110, par. 10-119)
    Sec. 10-119. Examination. Upon the return of an order of habeas corpus, the court shall, without delay, proceed to examine the cause of the imprisonment or restraint, but the examination may be adjourned from time to time as circumstances require.
(Source: P.A. 82-280.)

735 ILCS 5/10-120

    (735 ILCS 5/10-120) (from Ch. 110, par. 10-120)
    Sec. 10-120. Denial of allegations in return. The party imprisoned or restrained may file a reply to the return and deny any of the material facts set forth in the return, and may allege any other facts that may be material in the case, which denial or allegation shall be on oath; and the court shall proceed promptly to examine the cause of the imprisonment or restraint, hear the evidence produced by any person interested or authorized to appear, both in support of such imprisonment or restraint and against it, and thereupon shall determine the matter according to law.
(Source: P.A. 82-280.)

735 ILCS 5/10-121

    (735 ILCS 5/10-121) (from Ch. 110, par. 10-121)
    Sec. 10-121. Seeking wrong remedy not fatal. Where relief is sought under Article X of this Act and the court determines, on motion directed to the pleadings, or on motion for summary judgment or upon trial, that the plaintiff has pleaded or established facts which entitle the plaintiff to relief but that the plaintiff has sought the wrong remedy, the court shall permit the pleadings to be amended, on just and reasonable terms, and the court shall grant the relief to which the plaintiff is entitled on the amended pleadings or upon the evidence. In considering whether a proposed amendment is just and reasonable, the court shall consider the right of the defendant to assert additional defenses, to demand a trial by jury, to plead a counterclaim or third party complaint, and to order the plaintiff to take additional steps which were not required under the pleadings as previously filed.
(Source: P.A. 82-280.)

735 ILCS 5/10-122

    (735 ILCS 5/10-122) (from Ch. 110, par. 10-122)
    Sec. 10-122. Amendments. The return, as well as any denial or allegation, may be amended at any time by leave of the court.
(Source: P.A. 82-280.)

735 ILCS 5/10-123

    (735 ILCS 5/10-123) (from Ch. 110, par. 10-123)
    Sec. 10-123. When prisoner not entitled to discharge. No person shall be discharged under the provisions of this Act, if he or she is in custody:
    1. By virtue of process of any court of the United States, in a case where such court has exclusive jurisdiction; or,
    2. By virtue of a final judgment of any circuit court, or of any proceeding for the enforcement of such judgment, unless the time during which such party may be legally detained has expired; or,
    3. For any treason, felony or other crime committed in any other state or territory of the United States, for which such person ought, by the Constitution and laws of the United States, to be delivered to the executive power of such state or territory.
(Source: P.A. 82-280.)

735 ILCS 5/10-124

    (735 ILCS 5/10-124) (from Ch. 110, par. 10-124)
    Sec. 10-124. Causes for discharge when in custody on process of court. If it appears that the prisoner is in custody by virtue of process from any court legally constituted, he or she may be discharged only for one or more of the following causes:
    1. Where the court has exceeded the limit of its jurisdiction, either as to the matter, place, sum or person.
    2. Where, though the original imprisonment was lawful, nevertheless, by some act, omission or event which has subsequently taken place, the party has become entitled to be discharged.
    3. Where the process is defective in some substantial form required by law.
    4. Where the process, though in proper form, has been issued in a case or under circumstances where the law does not allow process to issue or orders to be entered for imprisonment or arrest.
    5. Where, although in proper form, the process has been issued in a case or under circumstances unauthorized to issue or execute the same, or where the person having the custody of the prisoner under such process is not the person empowered by law to detain him or her.
    6. Where the process appears to have been obtained by false pretense or bribery.
    7. Where there is no general law, nor any judgment or order of a court to authorize the process if in a civil action, nor any conviction if in a criminal proceeding. No court, on the return of a habeas corpus, shall, in any other matter, inquire into the legality or justice of a judgment of a court legally constituted.
(Source: P.A. 82-280.)

735 ILCS 5/10-125

    (735 ILCS 5/10-125) (from Ch. 110, par. 10-125)
    Sec. 10-125. New commitment. In all cases where the imprisonment is for a criminal, or supposed criminal matter, if it appears to the court that there is sufficient legal cause for the commitment of the prisoner, although such commitment may have been informally made, or without due authority, or the process may have been executed by a person not duly authorized, the court shall make a new commitment in proper form, and direct it to the proper officer, or admit the party to bail if the case is bailable. The court shall also, when necessary, take the recognizance of all material witnesses against the prisoner, as in other cases. The recognizances shall be in the form provided by law, and returned as other recognizances. If any judge shall neglect or refuse to bind any such prisoner or witness by recognizance, or to return a recognizance when taken as hereinabove stated, he or she shall be guilty of a Class A misdemeanor in office, and be proceeded against accordingly.
(Source: P.A. 82-280.)

735 ILCS 5/10-126

    (735 ILCS 5/10-126) (from Ch. 110, par. 10-126)
    Sec. 10-126. Remand. When any prisoner brought up on a habeas corpus is remanded to prison, it shall be the duty of the court remanding the prisoner to deliver to the sheriff, or other person to whose custody the prisoner is remanded, an order in writing, stating the cause of remanding the prisoner. If such prisoner obtains a second order of habeas corpus, it shall be the duty of such sheriff, or other person to whom the same is directed, to return therewith the order above stated; and if it appears that the prisoner was remanded for an offense adjudged not bailable, it shall be taken and received as conclusive, and the prisoner shall be remanded without further proceedings.
(Source: P.A. 82-280.)

735 ILCS 5/10-127

    (735 ILCS 5/10-127) (from Ch. 110, par. 10-127)
    Sec. 10-127. Grant of habeas corpus. It is not lawful for any court, on a second order of habeas corpus obtained by such prisoner, to discharge the prisoner, if he or she is clearly and specifically charged in the warrant of commitment with a criminal offense; but the court shall, on the return of such second order, have power only to admit such prisoner to bail where the offense is bailable by law, or remand him or her to prison where the offense is not bailable, or being bailable, where such prisoner fails to give the bail required.
(Source: P.A. 82-280.)

735 ILCS 5/10-128

    (735 ILCS 5/10-128) (from Ch. 110, par. 10-128)
    Sec. 10-128. Person discharged again imprisoned. No person who has been discharged by order of the court on a habeas corpus, shall be again imprisoned, restrained or kept in custody for the same cause, unless he or she is afterwards indicted for the same offense, nor unless by the legal order or process of the court wherein he or she is bound by recognizance to appear. The following shall not be deemed to be the same cause:
    1. If, after a discharge for a defect of proof, or any material defect in the commitment, in a criminal case, the prisoner is again arrested on sufficient proof, and committed by legal process for the same offense.
    2. If, in a civil action, the party has been discharged for any illegality in the judgment or process, and is afterwards imprisoned by legal process for the same cause of action.
    3. Generally, whenever the discharge is ordered on account of the non-observance of any of the forms required by law, the party may be a second time imprisoned if the cause is legal and the forms required by law observed.
(Source: P.A. 82-280.)

735 ILCS 5/10-129

    (735 ILCS 5/10-129) (from Ch. 110, par. 10-129)
    Sec. 10-129. Penalty for rearrest of person discharged. Any person who, knowing that another has been discharged by order of a competent court on a habeas corpus, shall, contrary to the provisions of Article X of this Act, arrest or detain him or her again for the same cause which was shown on the return to such order, shall forfeit $500 for the first offense, and $1,000 for every subsequent offense.
(Source: P.A. 82-280.)

735 ILCS 5/10-130

    (735 ILCS 5/10-130) (from Ch. 110, par. 10-130)
    Sec. 10-130. Prisoner not to be removed from county. To prevent any person from avoiding or delaying his or her trial, it shall not be lawful to remove any prisoner on habeas corpus under Article X of this Act out of the county in which he or she is confined, within 15 days next preceding the first day of the calendar month in which such person ought to be tried unless it is done to convey him or her into the county where the offense with which he or she stands charged is properly cognizable.
(Source: P.A. 82-280.)

735 ILCS 5/10-131

    (735 ILCS 5/10-131) (from Ch. 110, par. 10-131)
    Sec. 10-131. Custody not to be changed. Any person being committed to any prison, or in the custody of any sheriff or other officer or person for any criminal or supposed criminal matter, shall not be removed therefrom into any other prison or custody, unless it is done by habeas corpus order or some other legal process or when it is expressly allowed by law. If any person removes, or causes to be removed any prisoner so committed, except as above provided, he or she shall forfeit to the party affected a sum not exceeding $300.
(Source: P.A. 83-707.)

735 ILCS 5/10-132

    (735 ILCS 5/10-132) (from Ch. 110, par. 10-132)
    Sec. 10-132. Avoidance of order - Punishment. Any one having a person in his or her custody, or under his or her restraint, power or control, for whose relief an order of habeas corpus is entered, who, with intent to avoid the effect of such order, transfers such person to the custody or places him or her under the control of another, or conceals him or her, or changes the place of his or her confinement, with intent to avoid the operation of such order, or with intent to remove him or her out of the State, shall, for every such offense, be guilty of a Class 4 felony. In any prosecution for the penalty incurred under this Section it shall not be necessary to show that the order of habeas corpus had been entered at the time of the removal, transfer or concealment therein mentioned, if it is proven that the acts therein forbidden were done with the intent to avoid the operation of such order.
(Source: P.A. 83-707.)

735 ILCS 5/10-133

    (735 ILCS 5/10-133) (from Ch. 110, par. 10-133)
    Sec. 10-133. Penalties - How recovered. All the pecuniary forfeitures incurred under this Act shall inure to the use of the party for whose benefit the order of habeas corpus was entered, and shall be sued for and recovered with costs, by the Attorney General or State's Attorney, in the name of the State, by complaint; and the amount, when recovered, shall, without any deduction, be paid to the party entitled thereto.
(Source: P.A. 82-280.)

735 ILCS 5/10-134

    (735 ILCS 5/10-134) (from Ch. 110, par. 10-134)
    Sec. 10-134. No bar to civil damages. The recovery of the penalties shall be no bar to a civil action for damages.
(Source: P.A. 82-280.)

735 ILCS 5/10-135

    (735 ILCS 5/10-135) (from Ch. 110, par. 10-135)
    Sec. 10-135. Habeas corpus to testify. The several courts having authority to grant relief by habeas corpus, may enter orders, when necessary, to bring before them any prisoner to testify, or to be surrendered in discharge of bail, or for trial upon any criminal charge lawfully pending in the same court or to testify in a criminal proceeding in another state as provided for by Section 2 of the "Uniform Act to secure the attendance of witnesses from within or without a state in criminal proceedings", approved July 23, 1959, as heretofore or hereafter amended; and the order may be directed to any county in the State, and there be served and returned by any officer to whom it is directed.
(Source: P.A. 82-280.)

735 ILCS 5/10-136

    (735 ILCS 5/10-136) (from Ch. 110, par. 10-136)
    Sec. 10-136. Prisoner remanded or punished. After a prisoner has given his or her testimony, or been surrendered, or his or her bail discharged, or he or she has been tried for the crime with which he or she is charged, he or she shall be returned to the jail or other place of confinement from which he or she was taken for that purpose. If such prisoner is convicted of a crime punishable with death or imprisonment in the penitentiary, he or she may be punished accordingly; but in any case where the prisoner has been taken from the penitentiary, and his or her punishment is by imprisonment, the time of such imprisonment shall not commence to run until the expiration of the time of service under any former sentence.
(Source: P.A. 82-280.)

735 ILCS 5/10-137

    (735 ILCS 5/10-137) (from Ch. 110, par. 10-137)
    Sec. 10-137. Contempt - Discharge. Any person imprisoned for any contempt of court for the non-performance of any order or judgment for the payment of money, is entitled to relief by habeas corpus, and if it appears, on full examination of such person and such witnesses, and other evidence as may be adduced, that he or she is unable to comply with such order or judgment, or to endure the confinement, and that all persons interested in the order or judgment have had reasonable notice of the time and place of trial, the court may discharge him or her from imprisonment, but no such discharge shall operate to release the lien of such order or judgment, but the same may be enforced against the property of such person as other orders and judgments are enforced in civil cases.
(Source: P.A. 82-280.)