Illinois Compiled Statutes
735 ILCS 5/ - Code of Civil Procedure.
Article X - Habeas Corpus

(735 ILCS 5/Art. X heading)

(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) (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) (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) (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) (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) (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 pretrial release 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. 101-652, eff. 1-1-23.)

(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:
(Source: P.A. 83-707.)

(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) (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) (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) (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) (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) (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) (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) (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) (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) (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) (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) (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) (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) (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) (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) (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) (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) (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 pretrial release if the case
is eligible for pretrial release. 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. 101-652, eff. 1-1-23.)

(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) (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 pretrial release where the offense is eligible for pretrial release by law, or remand him or
her to prison where the offense is not eligible for pretrial release, or being eligible for pretrial release, where such
prisoner fails to comply with the terms of pretrial release.

(Source: P.A. 101-652, eff. 1-1-23.)

(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) (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) (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) (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) (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) (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) (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) (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 pretrial release, 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. 101-652, eff. 1-1-23.)

(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 pretrial release 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. 101-652, eff. 1-1-23.)

(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.)