By: Turner S.B. No. 984
73R3951 NSC-F
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) Unless an indigent petitioner is represented by retained
1-20 counsel, the convicting trial court shall appoint counsel at the
1-21 earliest practicable time. Unless the court finds good cause to
1-22 do otherwise, the court shall make the appointment as provided by
1-23 Article 26.052 of this code. The attorney appointed as counsel for
1-24 direct appeal is presumed to be the best choice for appointment as
2-1 lead counsel for purposes of this article unless the attorney
2-2 represented the petitioner at trial.
2-3 Sec. 3. INVESTIGATION OF GROUNDS FOR PETITION. (a) On
2-4 appointment, counsel shall investigate expeditiously, before and
2-5 after the appellate record is filed in the court of criminal
2-6 appeals, the factual and legal grounds for the filing of a petition
2-7 for a writ of habeas corpus.
2-8 (b) Not later than the date the petitioner's direct appeal
2-9 brief is filed, counsel may file an ex parte confidential request
2-10 for expenses to investigate potential habeas corpus issues with the
2-11 convicting trial court. The court shall consider an initial
2-12 request filed at a later time only if good cause for the delay is
2-13 shown.
2-14 (c) The request for expenses shall state:
2-15 (1) the claims of the petition to be investigated;
2-16 (2) specific facts that support the claims; and
2-17 (3) an itemized list of anticipated expenses for each
2-18 claim.
2-19 (d) The court shall grant a request for expenses in whole or
2-20 in part if the request for expenses is timely and reasonable. On
2-21 presentation by counsel of an accounting of investigative expenses
2-22 incurred, the court shall order reimbursement of counsel, in an
2-23 amount not exceeding the amount authorized. If the court denies in
2-24 whole or in part the request for expenses, the court shall state
2-25 the reasons for that denial in writing, attach the denial to the
2-26 request, and submit the denial and request as a sealed exhibit to
2-27 the court of criminal appeals with the petitioner's writ of habeas
3-1 corpus.
3-2 (e) Counsel may incur reasonably necessary expenses for
3-3 habeas corpus investigation without prior approval by the court.
3-4 On presentation of a claim for reimbursement, the court shall order
3-5 reimbursement of counsel for expenses reasonably necessary and
3-6 reasonably incurred.
3-7 Sec. 4. FILING OF PETITION. (a) A petition for a writ of
3-8 habeas corpus, returnable to the court of criminal appeals, must be
3-9 filed in the convicting trial court not later than the 90th day
3-10 after the date the appellant's brief is filed on direct appeal to
3-11 the court of criminal appeals. A petition filed after this date is
3-12 presumed to be untimely.
3-13 (b) A petitioner may establish good cause for filing an
3-14 untimely petition by showing particularized justifying
3-15 circumstances. If the court finds the petitioner failed to
3-16 establish good cause for the delay, the court shall make
3-17 appropriate findings of fact, enter an order to that effect, direct
3-18 the clerk of the court to enter a notation that the petition is
3-19 untimely, and send a copy of the petition, findings, and notation
3-20 to the court of criminal appeals as provided by Section 5 of this
3-21 article.
3-22 (c) A failure to file a petition before the 181st day after
3-23 the date the appellant's brief is filed on direct appeal
3-24 constitutes a waiver of all grounds for relief that were available
3-25 to the petitioner before that date, except as provided by Section 5
3-26 of this article.
3-27 Sec. 5. SUBSEQUENT OR UNTIMELY PETITION. (a) If an
4-1 original petition for a writ of habeas corpus is untimely or if a
4-2 subsequent petition is filed after filing an original petition, a
4-3 court may not grant relief based on the subsequent or untimely
4-4 original petition unless the petition contains sufficient specific
4-5 facts establishing that:
4-6 (1) the current claims and issues have not been
4-7 presented previously in a timely original petition or in a
4-8 subsequent petition filed under this section because the factual or
4-9 legal basis for the claim was unavailable:
4-10 (A) on the date the petitioner filed the
4-11 petition; or
4-12 (B) if the petitioner did not file an original
4-13 petition, on or before the last date for the timely filing of an
4-14 original petition;
4-15 (2) by clear and convincing evidence, a probability
4-16 exists that the petitioner is factually innocent of the capital
4-17 felony for which the petitioner was convicted because of a
4-18 violation of the United States Constitution or the laws of this
4-19 state; or
4-20 (3) by clear and convincing evidence, a rational jury
4-21 could not have answered in the state's favor one or more of the
4-22 special issues that were submitted to the jury in the petitioner's
4-23 trial under Article 37.071 of this code.
4-24 (b) If the convicting court receives a subsequent or
4-25 untimely original petition, the clerk of the court shall attach a
4-26 notation that the petition is a subsequent or untimely original
4-27 petition, assign to the case a file number that is ancillary to
5-1 that of the conviction being challenged, and immediately send to
5-2 the court of criminal appeals a copy of the petition, the notation,
5-3 the order scheduling the petitioner's execution, if scheduled, and
5-4 any order the judge of the convicting court directs to be attached
5-5 to the petition.
5-6 (c) On receipt of the copies of the documents from the
5-7 clerk, the court of criminal appeals shall determine whether the
5-8 requirements of this section to allow consideration of the petition
5-9 have been satisfied. The convicting court may not take further
5-10 action on the petition before the court of criminal appeals issues
5-11 an order finding the requirements have been satisfied. If the
5-12 court of criminal appeals determines that the requirements have not
5-13 been satisfied, the court shall issue an order dismissing the
5-14 petition as an abuse of the writ under this section.
5-15 (d) For purposes of this section, a legal basis of a claim
5-16 is available if the legal basis:
5-17 (1) was recognized by or could have been reasonably
5-18 formulated from a final decision of the United States Supreme
5-19 Court, a court of appeals of the United States, or a court of
5-20 appellate jurisdiction of this state; or
5-21 (2) is a new rule of constitutional law that was
5-22 announced and given retroactive effect by the United States Supreme
5-23 Court.
5-24 (e) For purposes of this section, a factual basis of a claim
5-25 is available if the factual basis was ascertainable through the
5-26 exercise of reasonable diligence.
5-27 Sec. 6. ISSUANCE OF WRIT. (a) If a timely petition for a
6-1 writ of habeas corpus or an untimely original or subsequent
6-2 petition is found to meet the requirements for consideration of the
6-3 petition as provided by Section 5 of this article and is filed in
6-4 the convicting trial court, a writ of habeas corpus, returnable to
6-5 the court of criminal appeals, shall issue by operation of law.
6-6 (b) The clerk of the court shall make an appropriate
6-7 notation that a writ of habeas corpus was issued, assign to the
6-8 case a file number that is ancillary to that of the conviction
6-9 being challenged, and send a copy of the petition by certified
6-10 mail, return receipt requested, to the attorney representing the
6-11 state in that court.
6-12 Sec. 7. ANSWER TO PETITION. (a) The state shall file an
6-13 answer to the petition for a writ of habeas corpus not later than
6-14 the 30th day after the date the state received the petition. The
6-15 state may request an extension of time in which to answer the
6-16 petition by showing particularized justifying circumstances for the
6-17 extension.
6-18 (b) Matters alleged in the petition not admitted by the
6-19 state are deemed denied.
6-20 Sec. 8. FINDINGS OF FACT WITHOUT EVIDENTIARY HEARING. (a)
6-21 Not later than the 20th day after the last date the state may
6-22 answer the petition, the convicting court shall determine whether
6-23 controverted, previously unresolved factual issues material to the
6-24 legality of the petitioner's confinement exist and shall issue a
6-25 written order of the determination.
6-26 (b) If the court determines the issues do not exist, the
6-27 parties may file proposed findings of fact and conclusions of law
7-1 for the court to consider on or before a date set by the court that
7-2 is not later than the 30th day after the date the order is issued.
7-3 (c) After argument of counsel, if requested, the court shall
7-4 make appropriate written findings of fact and conclusions of law
7-5 not later than the 15th day after the date the parties filed
7-6 proposed findings or not later than the 45th day after the date the
7-7 court's determination is made under Subsection (b) of this section,
7-8 whichever occurs first.
7-9 (d) The clerk of the court shall immediately send to the
7-10 court of criminal appeals a copy of the petition, answer, orders
7-11 entered by the convicting court, proposed findings of fact and
7-12 conclusions of law, and findings of fact and conclusions of law
7-13 entered by the court.
7-14 (e) Failure of the court to issue findings of fact and
7-15 conclusions of law within the time provided by Subsection (c) of
7-16 this section constitutes a finding that controverted, previously
7-17 unresolved factual issues material to the legality of the
7-18 petitioner's confinement do not exist.
7-19 Sec. 9. EVIDENTIARY HEARING. (a) If the court determines
7-20 that controverted, previously unresolved factual issues material to
7-21 the legality of the petitioner's confinement exist, the court shall
7-22 enter an order, not later than the 20th day after the last date the
7-23 state may answer the petition, designating the issues of fact to be
7-24 resolved and the manner in which the issues shall be resolved. The
7-25 court may require affidavits, depositions, interrogatories, and
7-26 evidentiary hearings as appropriate.
7-27 (b) The court shall allow the petitioner and the state not
8-1 less than 10 days to prepare for an evidentiary hearing. The
8-2 parties may waive the preparation time. If the state or the
8-3 petitioner requests that an evidentiary hearing be held on a date
8-4 not later than the 30th day after the date the trial court ordered
8-5 the hearing, the hearing shall be held on that date unless the
8-6 court states, on the record, good cause for delay.
8-7 (c) The clerk of the court shall promptly deliver copies of
8-8 documents submitted to the clerk under this article, other than a
8-9 document relating to the compensation of petitioner's counsel, to
8-10 the petitioner and the attorney representing the state.
8-11 (d) The judge of the court that presided over the original
8-12 capital felony trial shall preside over the evidentiary hearing.
8-13 (e) The Texas Rules of Criminal Evidence apply to an
8-14 evidentiary hearing held under this article.
8-15 (f) The court reporter shall prepare a transcript of the
8-16 hearing not later than the 30th day after the date the hearing ends
8-17 and file the transcript with the clerk of the convicting court.
8-18 (g) The parties may file proposed findings of fact and
8-19 conclusions of law for the convicting court to consider on or
8-20 before a date set by the court that is not later than the 30th day
8-21 after the date the transcript is filed. After argument of counsel,
8-22 if requested, the court shall make written findings of fact that
8-23 are necessary to resolve the previously unresolved facts and make
8-24 conclusions of law not later than the 15th day after the date the
8-25 parties file proposed findings or not later than the 45th day after
8-26 the date the court reporter files the transcript, whichever occurs
8-27 first.
9-1 (h) The clerk of the court shall immediately transmit to the
9-2 court of criminal appeals a copy of the petition, answers and
9-3 motions filed, court reporter's transcript, exhibits introduced
9-4 into evidence, proposed findings of fact and conclusions of law,
9-5 findings of fact and conclusions of law entered by the court,
9-6 sealed materials such as a confidential request for investigative
9-7 expenses, and any other matters used by the court in resolving
9-8 issues of fact.
9-9 Sec. 10. REVIEW BY COURT OF CRIMINAL APPEALS. The court of
9-10 criminal appeals shall expeditiously review all petitions for a
9-11 writ of habeas corpus submitted under this article. The court may
9-12 set the cause for oral argument and may request further briefing of
9-13 the issues by the petitioner or the state. After reviewing the
9-14 record, the court shall enter its judgment remanding the petitioner
9-15 to custody or ordering the petitioner's release, as the law and
9-16 facts may justify.
9-17 SECTION 2. Chapter 26, Code of Criminal Procedure, is
9-18 amended by adding Article 26.052 to read as follows:
9-19 Art. 26.052. APPOINTMENT OF COUNSEL TO DEFEND CAPITAL FELONY
9-20 CASE; REIMBURSEMENT OF INVESTIGATIVE EXPENSES. (a) An indigent
9-21 defendant charged with a capital felony is entitled to be
9-22 represented by competent counsel at all stages of the criminal
9-23 proceeding, including writs of habeas corpus. If a county is
9-24 served by a public defender's office, counsel may be appointed as
9-25 provided by the guidelines established by the public defender's
9-26 office. In all other cases, counsel shall be appointed as provided
9-27 by this article.
10-1 (b) The presiding judge of the district court in which a
10-2 capital felony case is filed shall appoint counsel to represent an
10-3 indigent defendant as soon as practicable after charges are filed.
10-4 (c) A local selection committee is created in each
10-5 administrative judicial region created under Section 74.042,
10-6 Government Code. The administrative judge of the judicial region
10-7 shall appoint the members of the committee. A committee shall have
10-8 not less than four members, including the administrative judge of
10-9 the judicial region, at least one district judge, a representative
10-10 from the local bar association, and at least one practitioner board
10-11 certified by the State Bar of Texas in criminal law. The committee
10-12 shall adopt standards for the qualification of attorneys for
10-13 appointment to capital felony cases. The committee shall
10-14 prominently post the standards in each district clerk's office in
10-15 the region with a list of attorneys qualified for appointment.
10-16 (d) The presiding judge of the district court shall appoint
10-17 lead counsel from the list of attorneys qualified for appointment.
10-18 The judge shall appoint a second counsel to assist in the defense
10-19 of a person charged with a capital felony, unless reasons against
10-20 the appointment appear on the record. Second counsel may be an
10-21 attorney who is not on the list of attorneys qualified for
10-22 appointment.
10-23 (e) An attorney appointed under this article is compensated
10-24 as provided by Article 26.05 of this code.
10-25 (f) In addition, appointed counsel may file a pretrial ex
10-26 parte confidential request for expenses to investigate potential
10-27 defenses with the trial court. The confidential request for
11-1 expenses shall state:
11-2 (1) the type of investigation to be conducted;
11-3 (2) the specific facts that suggest the investigation
11-4 will result in admissible evidence; and
11-5 (3) an itemized list of anticipated expenses for each
11-6 investigation.
11-7 (g) The court shall grant the request for expenses in whole
11-8 or in part if the request is reasonable. On presentation by
11-9 counsel of an accounting of investigative expenses incurred, the
11-10 court shall order reimbursement of counsel in an amount not
11-11 exceeding the amount authorized. If the court denies in whole or
11-12 in part the request for expenses, the court shall state the reasons
11-13 for the denial in writing, attach the denial to the confidential
11-14 request, and submit the request and denial as a sealed exhibit to
11-15 the record.
11-16 (h) If the indigent defendant is convicted of a capital
11-17 felony and sentenced to death, the defendant is entitled to be
11-18 represented by competent counsel on appeal and for a writ of habeas
11-19 corpus. If a county is served by a public defender's office,
11-20 counsel may be appointed as provided by the guidelines established
11-21 by the public defender's office. In all other cases, counsel shall
11-22 be appointed from the list of attorneys qualified for appointment.
11-23 (i) The presiding judge of the district court in which a
11-24 capital felony conviction is returned shall appoint counsel to
11-25 represent an indigent defendant as soon as practicable after
11-26 sentence is imposed.
11-27 (j) The court may not appoint an attorney as appellate
12-1 counsel or counsel under Article 11.071 of this code if the
12-2 attorney represented the defendant at trial, unless:
12-3 (1) the defendant and the attorney request the
12-4 appointment on the record; or
12-5 (2) the court finds good cause to make the
12-6 appointment.
12-7 (k) If counsel on appeal is the same person appointed as
12-8 counsel under Article 11.071 of this code, the trial court shall
12-9 appoint a second counsel to assist in the preparation of the appeal
12-10 and writ of habeas corpus. The second counsel may be an attorney
12-11 who is not on the list of attorneys qualified for appointment.
12-12 Lead counsel must be from the list of attorneys qualified for
12-13 appointment.
12-14 (l) An attorney appointed under this article is compensated
12-15 as provided by Article 26.05 of this code.
12-16 SECTION 3. Chapter 43, Code of Criminal Procedure, is
12-17 amended by adding Articles 43.141 and 43.142 to read as follows:
12-18 Art. 43.141. WITHDRAWAL OR MODIFICATION OF EXECUTION DATE.
12-19 (a) The trial court may modify or withdraw the order of the court
12-20 setting a date for execution in a death penalty case if the court
12-21 determines that additional proceedings are necessary on a petition
12-22 for a writ of habeas corpus filed under Article 11.071 of this
12-23 code.
12-24 (b) On the written request of a federal judge with
12-25 jurisdiction over the habeas corpus petition of an inmate under a
12-26 death sentence, the trial court may modify its order setting the
12-27 date of execution.
13-1 (c) The trial court shall set an execution date modified
13-2 under this article on a date not earlier than the 10th day or later
13-3 than the 120th day after the date the modification order is
13-4 entered. The sentence shall be executed at any time before the
13-5 hour of sunrise on the day set for execution.
13-6 (d) If the trial court withdraws the order of the court
13-7 setting the execution date, the court shall recall the warrant of
13-8 execution. If the trial court modifies the order of the court
13-9 setting the execution date, the court shall recall the previous
13-10 warrant of execution, and the clerk of the court shall issue a new
13-11 warrant.
13-12 Art. 43.142. STAY OF EXECUTION IN DEATH PENALTY CASES. The
13-13 court of criminal appeals may stay the execution of an inmate under
13-14 a death sentence for not more than 120 days. After the expiration
13-15 of 120 days, the stay of execution expires, and the trial court may
13-16 set an execution date, unless the court of criminal appeals, before
13-17 the expiration of the stay, has ordered a successive stay and
13-18 stated the reasons for a successive stay in a published order.
13-19 SECTION 4. The rulemaking authority granted to the court of
13-20 criminal appeals under Section 22.108, Government Code, is
13-21 withdrawn with respect to rules of appellate procedure relating to
13-22 a petition for a writ of habeas corpus by a defendant under a
13-23 sentence of death, but only to the extent the rules conflict with a
13-24 procedure under Article 11.071, Code of Criminal Procedure, as
13-25 added by this Act.
13-26 SECTION 5. This Act takes effect September 1, 1993.
13-27 SECTION 6. The importance of this legislation and the
14-1 crowded condition of the calendars in both houses create an
14-2 emergency and an imperative public necessity that the
14-3 constitutional rule requiring bills to be read on three several
14-4 days in each house be suspended, and this rule is hereby suspended.