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.