By Gallego, et al. H.B. No. 1562
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to procedures for petitioning for a writ of habeas corpus
1-3 by persons sentenced to death and procedures for the compensation
1-4 and appointment of counsel to represent persons sentenced to death.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Chapter 11, Code of Criminal Procedure, is
1-7 amended by adding Article 11.071 to read as follows:
1-8 Art. 11.071. PROCEDURE IN CAPITAL FELONY CASE
1-9 Sec. 1. APPLICATION TO CAPITAL FELONY CASE. Notwithstanding
1-10 any other provision of this chapter, this article establishes the
1-11 procedures for a petition for a writ of habeas corpus in which the
1-12 petitioner seeks relief from a judgment imposing a penalty of
1-13 death.
1-14 Sec. 2. REPRESENTATION BY COUNSEL. (a) A petitioner shall
1-15 be represented by counsel unless the petitioner has elected to
1-16 proceed pro se and the convicting trial court finds, after a
1-17 hearing on the record, that the petitioner's election is
1-18 intelligent and voluntary.
1-19 (b) Immediately after judgment is entered under Article
1-20 42.01 of this code, the convicting court shall determine if the
1-21 defendant is indigent and desires appointment of counsel for
1-22 purposes of a writ of habeas corpus. The clerk of the convicting
1-23 court shall immediately forward to the court of criminal appeals a
1-24 copy of the judgment, a list containing the name, address, and
2-1 telephone number of all counsel of record for the petitioner at
2-2 trial and on direct appeal, and, if the defendant elects to proceed
2-3 pro se, any findings made by the convicting court on the
2-4 voluntariness of the defendant's election.
2-5 (c) Unless an indigent petitioner is represented by retained
2-6 counsel, the court of criminal appeals shall appoint counsel at the
2-7 earliest practicable time under rules adopted by the court.
2-8 (d) The court of criminal appeals may not appoint an
2-9 attorney as counsel under this section if the attorney represented
2-10 the defendant at trial or on direct appeal, unless:
2-11 (1) the defendant and the attorney request the
2-12 appointment on the record; and
2-13 (2) the court finds good cause to make the
2-14 appointment.
2-15 (e) If counsel is the same person appointed as counsel on
2-16 appeal under Article 26.052 of this code, the court of criminal
2-17 appeals shall appoint a second counsel to assist in the preparation
2-18 of the appeal and writ of habeas corpus.
2-19 (f) An attorney appointed by the court of criminal appeals
2-20 under this section is compensated as provided by a fee schedule
2-21 adopted by the court from state funds.
2-22 Sec. 3. INVESTIGATION OF GROUNDS FOR PETITION. (a) On
2-23 appointment, counsel shall investigate expeditiously, before and
2-24 after the appellate record is filed in the court of criminal
2-25 appeals, the factual and legal grounds for the filing of a petition
2-26 for a writ of habeas corpus.
2-27 (b) Not later than the date the petitioner's direct appeal
3-1 brief is filed, counsel may file an ex parte confidential request
3-2 for expenses to investigate potential habeas corpus issues with the
3-3 court of criminal appeals. The court shall consider an initial
3-4 request filed at a later time only if good cause for the delay is
3-5 shown.
3-6 (c) The request for expenses shall state:
3-7 (1) the claims of the petition to be investigated;
3-8 (2) specific facts that suggest that a claim of
3-9 possible merit may exist; and
3-10 (3) an itemized list of anticipated expenses for each
3-11 claim.
3-12 (d) The court shall grant a request for expenses in whole or
3-13 in part if the request for expenses is timely and reasonable. On
3-14 presentation by counsel of an accounting of investigative expenses
3-15 incurred, the court shall order reimbursement of counsel, in an
3-16 amount not exceeding the amount authorized.
3-17 (e) Counsel may incur reasonably necessary expenses for
3-18 habeas corpus investigation without prior approval by the court of
3-19 criminal appeals. On presentation of a claim for reimbursement,
3-20 the court shall order reimbursement of counsel for expenses
3-21 reasonably necessary and reasonably incurred.
3-22 Sec. 4. FILING OF PETITION. (a) A petition for a writ of
3-23 habeas corpus, returnable to the court of criminal appeals, must be
3-24 filed in the convicting trial court not later than the 150th day
3-25 after the date the appellee's brief is filed on direct appeal to
3-26 the court of criminal appeals. A petition filed after this date is
3-27 presumed to be untimely.
4-1 (b) A petitioner may file a petition later than the 150th
4-2 day after the date the appellee's brief is filed on direct appeal
4-3 to the court of criminal appeals if the petitioner establishes good
4-4 cause for filing the untimely petition.
4-5 (c) A failure to file a petition before the 181st day after
4-6 the date the appellant's brief is filed on direct appeal
4-7 constitutes a waiver of all grounds for relief that were available
4-8 to the petitioner before that date, except as provided by Section 5
4-9 of this article.
4-10 Sec. 5. SUBSEQUENT OR UNTIMELY PETITION. (a) If an
4-11 original petition for a writ of habeas corpus is untimely or if a
4-12 subsequent petition is filed after filing an original petition, a
4-13 court may not grant relief based on the subsequent or untimely
4-14 original petition unless the petition contains sufficient specific
4-15 facts establishing that:
4-16 (1) the current claims and issues have not been and
4-17 could not have been presented previously in a timely original
4-18 petition or in a previously considered petition filed under this
4-19 section because the factual or legal basis for the claim was
4-20 unavailable:
4-21 (A) on the date the petitioner filed the
4-22 previous petition; or
4-23 (B) if the petitioner did not file an original
4-24 petition, on or before the last date for the timely filing of an
4-25 original petition;
4-26 (2) by clear and convincing evidence, a probability
4-27 exists that the petitioner is factually innocent of the capital
5-1 felony for which the petitioner was convicted because of a
5-2 violation of the United States Constitution or the laws of this
5-3 state; or
5-4 (3) by clear and convincing evidence, in the absence
5-5 of a violation of the United States Constitution or the laws of
5-6 this state, no rational jury could have answered in the state's
5-7 favor one or more of the special issues that were submitted to the
5-8 jury in the petitioner's trial under Article 37.071 of this code.
5-9 (b) If the convicting court receives a subsequent petition
5-10 or an untimely original petition, the clerk of the court shall
5-11 attach a notation that the petition is a subsequent or untimely
5-12 original petition, assign to the case a file number that is
5-13 ancillary to that of the conviction being challenged, and
5-14 immediately send to the court of criminal appeals a copy of the
5-15 petition, the notation, the order scheduling the petitioner's
5-16 execution, if scheduled, and any order the judge of the convicting
5-17 court directs to be attached to the petition.
5-18 (c) On receipt of the copies of the documents from the
5-19 clerk, the court of criminal appeals shall determine whether the
5-20 requirements of this section to allow consideration of the petition
5-21 have been satisfied. The convicting court may not take further
5-22 action on the petition before the court of criminal appeals issues
5-23 an order finding the requirements have been satisfied. If the
5-24 court of criminal appeals determines that the requirements have not
5-25 been satisfied, the court shall issue an order dismissing the
5-26 petition as an abuse of the writ under this section.
5-27 (d) For purposes of Subsection (a)(1) of this section, a
6-1 legal basis for a claim is unavailable on or before a date
6-2 described by Subsection (a)(1) if the legal basis:
6-3 (1) was not recognized by or could not have been
6-4 reasonably formulated from a final decision of the United States
6-5 Supreme Court, a court of appeals of the United States, or a court
6-6 of appellate jurisdiction of this state on or before that date; or
6-7 (2) is a new rule of constitutional law that was given
6-8 retroactive effect by the United States Supreme Court and had not
6-9 been announced by the court on or before that date.
6-10 (e) For purposes of Subsection (a)(1) of this section, a
6-11 factual basis for a claim is unavailable on or before a date
6-12 described by Subsection (a)(1) if the factual basis was not
6-13 ascertainable through the exercise of reasonable diligence on or
6-14 before that date.
6-15 Sec. 6. ISSUANCE OF WRIT. (a) If an untimely original or
6-16 subsequent petition found to meet the requirements for
6-17 consideration under Section 5 of this article or a timely petition
6-18 for a writ of habeas corpus is filed in the convicting trial court,
6-19 a writ of habeas corpus, returnable to the court of criminal
6-20 appeals, shall issue by operation of law.
6-21 (b) The clerk of the convicting court shall make an
6-22 appropriate notation that a writ of habeas corpus was issued,
6-23 assign to the case a file number that is ancillary to that of the
6-24 conviction being challenged, and send a copy of the petition by
6-25 certified mail, return receipt requested, to the attorney
6-26 representing the state in that court.
6-27 Sec. 7. ANSWER TO PETITION. (a) The state shall file an
7-1 answer to the petition for a writ of habeas corpus not later than
7-2 the 30th day after the date the state received the petition. The
7-3 state may request an extension of time in which to answer the
7-4 petition by showing particularized justifying circumstances for the
7-5 extension.
7-6 (b) Matters alleged in the petition not admitted by the
7-7 state are deemed denied.
7-8 Sec. 8. FINDINGS OF FACT WITHOUT HEARING. (a) Not later
7-9 than the 20th day after the last date the state may answer the
7-10 petition, the convicting court shall determine whether
7-11 controverted, previously unresolved factual issues material to the
7-12 legality of the petitioner's confinement exist and shall issue a
7-13 written order of the determination.
7-14 (b) If the court determines the issues do not exist, the
7-15 parties may file proposed findings of fact and conclusions of law
7-16 for the court to consider on or before a date set by the court that
7-17 is not later than the 30th day after the date the order is issued.
7-18 (c) After argument of counsel, if requested, the court shall
7-19 make appropriate written findings of fact and conclusions of law
7-20 not later than the 15th day after the date the parties filed
7-21 proposed findings or not later than the 45th day after the date the
7-22 court's determination is made under Subsection (a) of this section,
7-23 whichever occurs first.
7-24 (d) The clerk of the court shall immediately send to the
7-25 court of criminal appeals a copy of the petition, answer, orders
7-26 entered by the convicting court, proposed findings of fact and
7-27 conclusions of law, and findings of fact and conclusions of law
8-1 entered by the court.
8-2 (e) Failure of the court to issue findings of fact and
8-3 conclusions of law within the time provided by Subsection (c) of
8-4 this section constitutes a finding that controverted, previously
8-5 unresolved factual issues material to the legality of the
8-6 petitioner's confinement do not exist.
8-7 Sec. 9. HEARING. (a) If the convicting court determines
8-8 that controverted, previously unresolved factual issues material to
8-9 the legality of the petitioner's confinement exist, the court shall
8-10 enter an order, not later than the 20th day after the last date the
8-11 state may answer the petition, designating the issues of fact to be
8-12 resolved and the manner in which the issues shall be resolved. The
8-13 court may require affidavits, depositions, interrogatories, and
8-14 evidentiary hearings as appropriate.
8-15 (b) The convicting court shall allow the petitioner and the
8-16 state not less than 10 days to prepare for an evidentiary hearing.
8-17 The parties may waive the preparation time. If the state or the
8-18 petitioner requests that an evidentiary hearing be held within 30
8-19 days after the date the court ordered the hearing, the hearing
8-20 shall be held within that period unless the court states, on the
8-21 record, good cause for delay.
8-22 (c) The clerk of the convicting court shall promptly deliver
8-23 copies of documents submitted to the clerk under this article to
8-24 the petitioner and the attorney representing the state.
8-25 (d) The presiding judge of the convicting court shall
8-26 conduct a hearing held under this section unless another judge
8-27 presided over the original capital felony trial, in which event
9-1 that judge, if qualified for assignment under Section 74.054 or
9-2 74.055, Government Code, may preside over the hearing.
9-3 (e) The Texas Rules of Criminal Evidence apply to an
9-4 evidentiary hearing held under this section.
9-5 (f) The court reporter shall prepare a transcript of the
9-6 hearing not later than the 30th day after the date the hearing ends
9-7 and file the transcript with the clerk of the convicting court.
9-8 (g) The parties may file proposed findings of fact and
9-9 conclusions of law for the convicting court to consider on or
9-10 before a date set by the court that is not later than the 30th day
9-11 after the date the transcript is filed. After argument of counsel,
9-12 if requested, the court shall make written findings of fact that
9-13 are necessary to resolve the previously unresolved facts and make
9-14 conclusions of law not later than the 15th day after the date the
9-15 parties file proposed findings or not later than the 45th day after
9-16 the date the court reporter files the transcript, whichever occurs
9-17 first.
9-18 (h) The clerk of the convicting court shall immediately
9-19 transmit to the court of criminal appeals a copy of the petition,
9-20 answers and motions filed, court reporter's transcript, exhibits
9-21 introduced into evidence, proposed findings of fact and conclusions
9-22 of law, findings of fact and conclusions of law entered by the
9-23 court, and any other matters used by the court in resolving issues
9-24 of fact.
9-25 Sec. 10. REVIEW BY COURT OF CRIMINAL APPEALS. The court of
9-26 criminal appeals shall expeditiously review all petitions for a
9-27 writ of habeas corpus submitted under this article. The court may
10-1 set the cause for oral argument and may request further briefing of
10-2 the issues by the petitioner or the state. After reviewing the
10-3 record, the court shall enter its judgment remanding the petitioner
10-4 to custody or ordering the petitioner's release, as the law and
10-5 facts may justify.
10-6 SECTION 2. Chapter 26, Code of Criminal Procedure, is
10-7 amended by adding Article 26.052 to read as follows:
10-8 Art. 26.052. APPOINTMENT OF COUNSEL TO DEFEND CAPITAL FELONY
10-9 CASE; REIMBURSEMENT OF INVESTIGATIVE EXPENSES. (a) An indigent
10-10 defendant charged with a capital felony is entitled to be
10-11 represented by competent counsel at all stages of the criminal
10-12 proceeding, including writs of habeas corpus. If a county is
10-13 served by a public defender's office, trial counsel and counsel for
10-14 direct appeal may be appointed as provided by the guidelines
10-15 established by the public defender's office. In all other cases,
10-16 trial counsel and counsel for direct appeal shall be appointed as
10-17 provided by this article.
10-18 (b) A local selection committee is created in each
10-19 administrative judicial region created under Section 74.042,
10-20 Government Code. The administrative judge of the judicial region
10-21 shall appoint the members of the committee. A committee shall have
10-22 not less than four members, including the administrative judge of
10-23 the judicial region, at least one district judge, a representative
10-24 from the local bar association, and at least one practitioner board
10-25 certified by the State Bar of Texas in criminal law. The committee
10-26 shall adopt standards for the qualification of attorneys for
10-27 appointment to capital felony cases. The committee shall
11-1 prominently post the standards in each district clerk's office in
11-2 the region with a list of attorneys qualified for appointment.
11-3 (c) The presiding judge of the district court in which a
11-4 capital felony case is filed shall appoint counsel to represent an
11-5 indigent defendant as soon as practicable after charges are filed.
11-6 The judge shall appoint lead trial counsel from the list of
11-7 attorneys qualified for appointment. The judge shall appoint a
11-8 second counsel to assist in the defense of a person charged with a
11-9 capital felony, unless reasons against the appointment appear on
11-10 the record. Second counsel may be an attorney who is not on the
11-11 list of attorneys qualified for appointment.
11-12 (d) Appointed counsel may file with the trial court a
11-13 pretrial ex parte confidential request for expenses to investigate
11-14 potential defenses. The confidential request for expenses shall
11-15 state:
11-16 (1) the type of investigation to be conducted;
11-17 (2) the specific facts that suggest the investigation
11-18 will result in admissible evidence; and
11-19 (3) an itemized list of anticipated expenses for each
11-20 investigation.
11-21 (e) The court shall grant the request for expenses in whole
11-22 or in part if the request is reasonable. On presentation by
11-23 counsel of an accounting of investigative expenses incurred, the
11-24 court shall order reimbursement of counsel in an amount not
11-25 exceeding the amount authorized. If the court denies in whole or
11-26 in part the request for expenses, the court shall state the reasons
11-27 for the denial in writing, attach the denial to the confidential
12-1 request, and submit the request and denial as a sealed exhibit to
12-2 the record.
12-3 (f) If the indigent defendant is convicted of a capital
12-4 felony and sentenced to death, the defendant is entitled to be
12-5 represented by competent counsel on appeal.
12-6 (g) As soon as practicable after sentence is imposed, the
12-7 presiding judge of the district court in which a capital felony
12-8 conviction is returned shall appoint counsel to represent an
12-9 indigent defendant on appeal.
12-10 (h) The court may not appoint an attorney as counsel on
12-11 appeal if the attorney represented the defendant at trial, unless:
12-12 (1) the defendant and the attorney request the
12-13 appointment on the record; or
12-14 (2) the court finds good cause to make the
12-15 appointment.
12-16 (i) An attorney appointed under this article to represent a
12-17 defendant at trial or on direct appeal is compensated as provided
12-18 by Article 26.05 of this code from state funds.
12-19 SECTION 3. Article 43.14, Code of Criminal Procedure, is
12-20 amended to read as follows:
12-21 Art. 43.14. Execution of convict. Whenever the sentence of
12-22 death is pronounced against a convict, the sentence shall be
12-23 executed at any time before the hour of sunrise on the day set for
12-24 the execution not less than 60 <thirty> days from the day the court
12-25 sets the execution date, as the court may adjudge, by intravenous
12-26 injection of a substance or substances in a lethal quantity
12-27 sufficient to cause death and until such convict is dead, such
13-1 execution procedure to be determined and supervised by the Director
13-2 of the institutional division of the Texas Department of Criminal
13-3 Justice.
13-4 SECTION 4. Chapter 43, Code of Criminal Procedure, is
13-5 amended by adding Article 43.141 to read as follows:
13-6 Art. 43.141. WITHDRAWAL OR MODIFICATION OF EXECUTION DATE.
13-7 (a) The convicting court may modify or withdraw the order of the
13-8 court setting a date for execution in a death penalty case if the
13-9 court determines that additional proceedings are necessary on a
13-10 petition for a writ of habeas corpus filed under Article 11.071 of
13-11 this code.
13-12 (b) No execution date shall be set before the court of
13-13 criminal appeals enters its judgment on the initial petition for a
13-14 writ of habeas corpus submitted under Article 11.071 of this code,
13-15 so long as the petition is timely filed or good cause is shown for
13-16 its untimely filing. After judgment has been entered, the
13-17 convicting court may set an execution date pursuant to Article
13-18 43.14 of this code. If no petition is filed or good cause is not
13-19 shown for an untimely petition, an execution date may be set by the
13-20 convicting court.
13-21 (c) If the convicting court withdraws the order of the court
13-22 setting the execution date, the court shall recall the warrant of
13-23 execution. If the court modifies the order of the court setting
13-24 the execution date, the court shall recall the previous warrant of
13-25 execution, and the clerk of the court shall issue a new warrant.
13-26 SECTION 5. The rulemaking authority granted to the court of
13-27 criminal appeals under Section 22.108, Government Code, is
14-1 withdrawn with respect to rules of appellate procedure relating to
14-2 a petition for a writ of habeas corpus by a defendant under a
14-3 sentence of death, but only to the extent the rules conflict with a
14-4 procedure under Article 11.071, Code of Criminal Procedure, as
14-5 added by this Act.
14-6 SECTION 6. (a) The change in law made by Article 11.071,
14-7 Code of Criminal Procedure, as added by this Act, applies only to a
14-8 capital felony for which a judgment of conviction is entered on or
14-9 after the effective date of this Act. A capital felony for which a
14-10 judgment of conviction is entered before the effective date of this
14-11 Act is covered by the law in effect when the judgment was entered,
14-12 and the former law is continued in effect for this purpose.
14-13 (b) The change in law made by Article 26.052, Code of
14-14 Criminal Procedure, as added by this Act, applies only to an
14-15 offense committed on or after the effective date of this Act or to
14-16 a capital felony for which the court of criminal appeals or a court
14-17 of the United States has entered an order granting a new trial or a
14-18 new punishment hearing on or after the effective date of this Act.
14-19 (c) For purposes of Subsection (b) of this section, an
14-20 offense is committed before the effective date of this Act if any
14-21 element of the offense occurs before the effective date. An
14-22 offense committed or a capital felony for which an order granting a
14-23 new trial or a new punishment hearing is entered before the
14-24 effective date of this Act is covered by the law in effect when the
14-25 offense was committed or the order was entered, and the former law
14-26 is continued in effect for this purpose.
14-27 SECTION 7. This Act takes effect September 1, 1993.
15-1 SECTION 8. The importance of this legislation and the
15-2 crowded condition of the calendars in both houses create an
15-3 emergency and an imperative public necessity that the
15-4 constitutional rule requiring bills to be read on three several
15-5 days in each house be suspended, and this rule is hereby suspended.