73R9953 NSC-F
By Gallego, et al. H.B. No. 1562
Substitute the following for H.B. No. 1562:
By Talton C.S.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; or
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.
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 90th day
3-25 after the date the appellant'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) If a petition is not filed on or before the 90th day
4-2 after the date the appellant's brief is filed on direct appeal, the
4-3 convicting court shall conduct a hearing not later than the 100th
4-4 day after the date the brief is filed to determine whether there
4-5 are circumstances that excuse the failure to timely file the
4-6 petition.
4-7 (c) A petitioner may file an untimely petition not later
4-8 than the 180th day after the date the appellant's brief is filed on
4-9 direct appeal to the court of criminal appeals if the petitioner
4-10 establishes good cause for filing the untimely petition by showing
4-11 particularized justifying circumstances. If the court finds the
4-12 petitioner established good cause for the delay, the court shall
4-13 treat the petition as timely filed. If the court finds the
4-14 petitioner failed to establish good cause for the delay, the court
4-15 shall make appropriate findings of fact, enter an order to that
4-16 effect, direct the clerk of the court to enter a notation that the
4-17 petition is untimely, and send a copy of the petition, findings,
4-18 and notation to the court of criminal appeals as provided by
4-19 Section 5 of this article.
4-20 (d) A failure to file a petition before the 181st day after
4-21 the date the appellant's brief is filed on direct appeal
4-22 constitutes a waiver of all grounds for relief that were available
4-23 to the petitioner before that date, except as provided by Section 5
4-24 of this article.
4-25 Sec. 5. SUBSEQUENT OR UNTIMELY PETITION. (a) If an
4-26 original petition for a writ of habeas corpus is untimely or if a
4-27 subsequent petition is filed after filing an original petition, a
5-1 court may not grant relief based on the subsequent or untimely
5-2 original petition unless the petition contains sufficient specific
5-3 facts establishing that:
5-4 (1) the current claims and issues have not been and
5-5 could not have been presented previously in a timely original
5-6 petition or in a previously considered petition filed under this
5-7 section because the factual or legal basis for the claim was
5-8 unavailable:
5-9 (A) on the date the petitioner filed the
5-10 previous petition; or
5-11 (B) if the petitioner did not file an original
5-12 petition, on or before the last date for the timely filing of an
5-13 original petition;
5-14 (2) by clear and convincing evidence, a probability
5-15 exists that the petitioner is factually innocent of the capital
5-16 felony for which the petitioner was convicted because of a
5-17 violation of the United States Constitution or the laws of this
5-18 state; or
5-19 (3) by clear and convincing evidence, in the absence
5-20 of a violation of the United States Constitution or the laws of
5-21 this state, a rational jury could not have answered in the state's
5-22 favor one or more of the special issues that were submitted to the
5-23 jury in the petitioner's trial under Article 37.071 of this code.
5-24 (b) If the convicting court receives a subsequent petition
5-25 or an untimely original petition, the clerk of the court shall
5-26 attach a notation that the petition is a subsequent or untimely
5-27 original petition, assign to the case a file number that is
6-1 ancillary to that of the conviction being challenged, and
6-2 immediately send to the court of criminal appeals a copy of the
6-3 petition, the notation, the order scheduling the petitioner's
6-4 execution, if scheduled, and any order the judge of the convicting
6-5 court directs to be attached to the petition.
6-6 (c) On receipt of the copies of the documents from the
6-7 clerk, the court of criminal appeals shall determine whether the
6-8 requirements of this section to allow consideration of the petition
6-9 have been satisfied. The convicting court may not take further
6-10 action on the petition before the court of criminal appeals issues
6-11 an order finding the requirements have been satisfied. If the
6-12 court of criminal appeals determines that the requirements have not
6-13 been satisfied, the court shall issue an order dismissing the
6-14 petition as an abuse of the writ under this section.
6-15 (d) For purposes of Subsection (a)(1) of this section, a
6-16 legal basis of a claim is unavailable on or before a date described
6-17 by Subsection (a)(1) if the legal basis:
6-18 (1) was not recognized by or could not have been
6-19 reasonably formulated from a final decision of the United States
6-20 Supreme Court, a court of appeals of the United States, or a court
6-21 of appellate jurisdiction of this state on or before that date; or
6-22 (2) is a new rule of constitutional law that was given
6-23 retroactive effect by the United States Supreme Court and had not
6-24 been announced by the court on or before that date.
6-25 (e) For purposes of Subsection (a)(1) of this section, a
6-26 factual basis of a claim is unavailable on or before a date
6-27 described by Subsection (a)(1) if the factual basis was not
7-1 ascertainable through the exercise of reasonable diligence on or
7-2 before that date.
7-3 Sec. 6. ISSUANCE OF WRIT. (a) If an untimely original or
7-4 subsequent petition found to meet the requirements for
7-5 consideration under Section 5 of this article or a timely petition
7-6 for a writ of habeas corpus is filed in the convicting trial court,
7-7 a writ of habeas corpus, returnable to the court of criminal
7-8 appeals, shall issue by operation of law.
7-9 (b) The clerk of the convicting court shall make an
7-10 appropriate notation that a writ of habeas corpus was issued,
7-11 assign to the case a file number that is ancillary to that of the
7-12 conviction being challenged, and send a copy of the petition by
7-13 certified mail, return receipt requested, to the attorney
7-14 representing the state in that court.
7-15 Sec. 7. ANSWER TO PETITION. (a) The state shall file an
7-16 answer to the petition for a writ of habeas corpus not later than
7-17 the 30th day after the date the state received the petition. The
7-18 state may request an extension of time in which to answer the
7-19 petition by showing particularized justifying circumstances for the
7-20 extension.
7-21 (b) Matters alleged in the petition not admitted by the
7-22 state are deemed denied.
7-23 Sec. 8. FINDINGS OF FACT WITHOUT HEARING. (a) Not later
7-24 than the 20th day after the last date the state may answer the
7-25 petition, the convicting court shall determine whether
7-26 controverted, previously unresolved factual issues material to the
7-27 legality of the petitioner's confinement exist and shall issue a
8-1 written order of the determination.
8-2 (b) If the court determines the issues do not exist, the
8-3 parties may file proposed findings of fact and conclusions of law
8-4 for the court to consider on or before a date set by the court that
8-5 is not later than the 30th day after the date the order is issued.
8-6 (c) After argument of counsel, if requested, the court shall
8-7 make appropriate written findings of fact and conclusions of law
8-8 not later than the 15th day after the date the parties filed
8-9 proposed findings or not later than the 45th day after the date the
8-10 court's determination is made under Subsection (a) of this section,
8-11 whichever occurs first.
8-12 (d) The clerk of the court shall immediately send to the
8-13 court of criminal appeals a copy of the petition, answer, orders
8-14 entered by the convicting court, proposed findings of fact and
8-15 conclusions of law, and findings of fact and conclusions of law
8-16 entered by the court.
8-17 (e) Failure of the court to issue findings of fact and
8-18 conclusions of law within the time provided by Subsection (c) of
8-19 this section constitutes a finding that controverted, previously
8-20 unresolved factual issues material to the legality of the
8-21 petitioner's confinement do not exist.
8-22 Sec. 9. HEARING. (a) If the convicting court determines
8-23 that controverted, previously unresolved factual issues material to
8-24 the legality of the petitioner's confinement exist, the court shall
8-25 enter an order, not later than the 20th day after the last date the
8-26 state may answer the petition, designating the issues of fact to be
8-27 resolved and the manner in which the issues shall be resolved. The
9-1 court may require affidavits, depositions, interrogatories, and
9-2 evidentiary hearings as appropriate.
9-3 (b) The convicting court shall allow the petitioner and the
9-4 state not less than 10 days to prepare for an evidentiary hearing.
9-5 The parties may waive the preparation time. If the state or the
9-6 petitioner requests that an evidentiary hearing be held within 30
9-7 days after the date the court ordered the hearing, the hearing
9-8 shall be held within that period unless the court states, on the
9-9 record, good cause for delay.
9-10 (c) The clerk of the convicting court shall promptly deliver
9-11 copies of documents submitted to the clerk under this article to
9-12 the petitioner and the attorney representing the state.
9-13 (d) The presiding judge of the convicting court shall
9-14 conduct a hearing held under this section unless another judge
9-15 presided over the original capital felony trial, in which event
9-16 that judge, if qualified for assignment under Section 74.054 or
9-17 74.055, Government Code, may preside over the hearing.
9-18 (e) The Texas Rules of Criminal Evidence apply to an
9-19 evidentiary hearing held under this section.
9-20 (f) The court reporter shall prepare a transcript of the
9-21 hearing not later than the 30th day after the date the hearing ends
9-22 and file the transcript with the clerk of the convicting court.
9-23 (g) The parties may file proposed findings of fact and
9-24 conclusions of law for the convicting court to consider on or
9-25 before a date set by the court that is not later than the 30th day
9-26 after the date the transcript is filed. After argument of counsel,
9-27 if requested, the court shall make written findings of fact that
10-1 are necessary to resolve the previously unresolved facts and make
10-2 conclusions of law not later than the 15th day after the date the
10-3 parties file proposed findings or not later than the 45th day after
10-4 the date the court reporter files the transcript, whichever occurs
10-5 first.
10-6 (h) The clerk of the convicting court shall immediately
10-7 transmit to the court of criminal appeals a copy of the petition,
10-8 answers and motions filed, court reporter's transcript, exhibits
10-9 introduced into evidence, proposed findings of fact and conclusions
10-10 of law, findings of fact and conclusions of law entered by the
10-11 court, and any other matters used by the court in resolving issues
10-12 of fact.
10-13 Sec. 10. REVIEW BY COURT OF CRIMINAL APPEALS. The court of
10-14 criminal appeals shall expeditiously review all petitions for a
10-15 writ of habeas corpus submitted under this article. The court may
10-16 set the cause for oral argument and may request further briefing of
10-17 the issues by the petitioner or the state. After reviewing the
10-18 record, the court shall enter its judgment remanding the petitioner
10-19 to custody or ordering the petitioner's release, as the law and
10-20 facts may justify.
10-21 SECTION 2. Chapter 26, Code of Criminal Procedure, is
10-22 amended by adding Article 26.052 to read as follows:
10-23 Art. 26.052. APPOINTMENT OF COUNSEL TO DEFEND CAPITAL FELONY
10-24 CASE; REIMBURSEMENT OF INVESTIGATIVE EXPENSES. (a) An indigent
10-25 defendant charged with a capital felony is entitled to be
10-26 represented by competent counsel at all stages of the criminal
10-27 proceeding, including writs of habeas corpus. If a county is
11-1 served by a public defender's office, trial counsel and counsel for
11-2 direct appeal may be appointed as provided by the guidelines
11-3 established by the public defender's office. In all other cases,
11-4 trial counsel and counsel for direct appeal shall be appointed as
11-5 provided by this article.
11-6 (b) A local selection committee is created in each
11-7 administrative judicial region created under Section 74.042,
11-8 Government Code. The administrative judge of the judicial region
11-9 shall appoint the members of the committee. A committee shall have
11-10 not less than four members, including the administrative judge of
11-11 the judicial region, at least one district judge, a representative
11-12 from the local bar association, and at least one practitioner board
11-13 certified by the State Bar of Texas in criminal law. The committee
11-14 shall adopt standards for the qualification of attorneys for
11-15 appointment to capital felony cases. The committee shall
11-16 prominently post the standards in each district clerk's office in
11-17 the region with a list of attorneys qualified for appointment.
11-18 (c) The presiding judge of the district court in which a
11-19 capital felony case is filed shall appoint counsel to represent an
11-20 indigent defendant as soon as practicable after charges are filed.
11-21 The judge shall appoint lead trial counsel from the list of
11-22 attorneys qualified for appointment. The judge shall appoint a
11-23 second counsel to assist in the defense of a person charged with a
11-24 capital felony, unless reasons against the appointment appear on
11-25 the record. Second counsel may be an attorney who is not on the
11-26 list of attorneys qualified for appointment.
11-27 (d) Appointed counsel may file with the trial court a
12-1 pretrial ex parte confidential request for expenses to investigate
12-2 potential defenses. The confidential request for expenses shall
12-3 state:
12-4 (1) the type of investigation to be conducted;
12-5 (2) the specific facts that suggest the investigation
12-6 will result in admissible evidence; and
12-7 (3) an itemized list of anticipated expenses for each
12-8 investigation.
12-9 (e) The court shall grant the request for expenses in whole
12-10 or in part if the request is reasonable. On presentation by
12-11 counsel of an accounting of investigative expenses incurred, the
12-12 court shall order reimbursement of counsel in an amount not
12-13 exceeding the amount authorized. If the court denies in whole or
12-14 in part the request for expenses, the court shall state the reasons
12-15 for the denial in writing, attach the denial to the confidential
12-16 request, and submit the request and denial as a sealed exhibit to
12-17 the record.
12-18 (f) If the indigent defendant is convicted of a capital
12-19 felony and sentenced to death, the defendant is entitled to be
12-20 represented by competent counsel on appeal.
12-21 (g) As soon as practicable after sentence is imposed, the
12-22 presiding judge of the district court in which a capital felony
12-23 conviction is returned shall appoint counsel to represent an
12-24 indigent defendant on appeal.
12-25 (h) The court may not appoint an attorney as counsel on
12-26 appeal if the attorney represented the defendant at trial, unless:
12-27 (1) the defendant and the attorney request the
13-1 appointment on the record; or
13-2 (2) the court finds good cause to make the
13-3 appointment.
13-4 (i) An attorney appointed under this article to represent a
13-5 defendant at trial or on direct appeal is compensated as provided
13-6 by Article 26.05 of this code.
13-7 SECTION 3. Article 43.14, Code of Criminal Procedure, is
13-8 amended to read as follows:
13-9 Art. 43.14. Execution of convict. Whenever the sentence of
13-10 death is pronounced against a convict, the sentence shall be
13-11 executed at any time before the hour of sunrise on the day set for
13-12 the execution not less than 60 <thirty> days from the day the court
13-13 sets the execution date, as the court may adjudge, by intravenous
13-14 injection of a substance or substances in a lethal quantity
13-15 sufficient to cause death and until such convict is dead, such
13-16 execution procedure to be determined and supervised by the Director
13-17 of the institutional division of the Texas Department of Criminal
13-18 Justice.
13-19 SECTION 4. Chapter 43, Code of Criminal Procedure, is
13-20 amended by adding Articles 43.141 and 43.142 to read as follows:
13-21 Art. 43.141. WITHDRAWAL OR MODIFICATION OF EXECUTION DATE.
13-22 (a) The convicting court may modify or withdraw the order of the
13-23 court setting a date for execution in a death penalty case if the
13-24 court determines that additional proceedings are necessary on a
13-25 petition for a writ of habeas corpus filed under Article 11.071 of
13-26 this code.
13-27 (b) On the written request of a federal judge with
14-1 jurisdiction over the habeas corpus petition of an inmate under a
14-2 death sentence, the convicting court may modify its order setting
14-3 the date of execution.
14-4 (c) The convicting court shall set an execution date
14-5 modified under this article on a date not earlier than the 10th day
14-6 or later than the 120th day after the date the modification order
14-7 is entered. The sentence shall be executed at any time before the
14-8 hour of sunrise on the day set for execution.
14-9 (d) If the convicting court withdraws the order of the court
14-10 setting the execution date, the court shall recall the warrant of
14-11 execution. If the court modifies the order of the court setting
14-12 the execution date, the court shall recall the previous warrant of
14-13 execution, and the clerk of the court shall issue a new warrant.
14-14 Art. 43.142. STAY OF EXECUTION IN DEATH PENALTY CASES. The
14-15 court of criminal appeals may stay the execution of an inmate under
14-16 a death sentence for not more than 120 days. After the expiration
14-17 of 120 days, the stay of execution expires, and the convicting
14-18 court may set an execution date, unless the court of criminal
14-19 appeals, before the expiration of the stay, has ordered a
14-20 successive stay and stated the reasons for a successive stay in a
14-21 published order.
14-22 SECTION 5. The rulemaking authority granted to the court of
14-23 criminal appeals under Section 22.108, Government Code, is
14-24 withdrawn with respect to rules of appellate procedure relating to
14-25 a petition for a writ of habeas corpus by a defendant under a
14-26 sentence of death, but only to the extent the rules conflict with a
14-27 procedure under Article 11.071, Code of Criminal Procedure, as
15-1 added by this Act.
15-2 SECTION 6. (a) The change in law made by Article 11.071,
15-3 Code of Criminal Procedure, as added by this Act, applies only to a
15-4 capital felony for which a judgment of conviction is entered on or
15-5 after the effective date of this Act. A capital felony for which a
15-6 judgment of conviction is entered before the effective date of this
15-7 Act is covered by the law in effect when the judgment was entered,
15-8 and the former law is continued in effect for this purpose.
15-9 (b) The change in law made by Article 26.052, Code of
15-10 Criminal Procedure, as added by this Act, applies only to an
15-11 offense committed on or after the effective date of this Act or to
15-12 a capital felony for which the court of criminal appeals has
15-13 entered an order granting a new trial or a new punishment hearing
15-14 on or after the effective date of this Act.
15-15 (c) For purposes of Subsection (b) of this section, an
15-16 offense is committed before the effective date of this Act if any
15-17 element of the offense occurs before the effective date. An
15-18 offense committed or a capital felony for which an order granting a
15-19 new trial or a new punishment hearing is entered before the
15-20 effective date of this Act is covered by the law in effect when the
15-21 offense was committed or the order was entered, and the former law
15-22 is continued in effect for this purpose.
15-23 SECTION 7. This Act takes effect September 1, 1993.
15-24 SECTION 8. The importance of this legislation and the
15-25 crowded condition of the calendars in both houses create an
15-26 emergency and an imperative public necessity that the
15-27 constitutional rule requiring bills to be read on three several
16-1 days in each house be suspended, and this rule is hereby suspended.