BILL ANALYSIS
C.S.H.B. 3
By: Gallego
4-19-95
Committee Report (Substituted)
BACKGROUND
Currently the average time between a capital conviction and the
imposition of a death sentence is 8.3 years, and it is not unusual
for a death-sentenced inmate to be on death row for 16 years before
the imposition of sentence. This delay is attributable to a number
of factors, not the least of which is that inmates are not
currently limited in the number of state habeas applications that
they can file. Delay also occurs when death-sentenced inmates are
without legal representation.
PURPOSE
If enacted, C.S.H.B. 3 would streamline the review of capital
convictions and significantly reduce the time between conviction
and the imposition of a death sentence, while assuring that capital
convictions and death sentences are fully and fairly reviewed.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill grants rulemaking
authority to the court of criminal appeals in Section 1. Sec.2 (d).
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Chapter 11, Code of Criminal Procedure (HABEAS
CORPUS), by adding Article 11.071 as follows:
Art. 11.071. PROCEDURE IN DEATH PENALTY CASE.
Sec. 1. APPLICATION TO DEATH PENALTY CASE. Establishes the
procedures for an application for writ of habeas corpus by an
inmate sentenced to death.
Sec. 2. REPRESENTATION BY COUNSEL.
(a) requires an applicant to be represented by competent
counsel unless the applicant elects to proceed pro se and the
trial court finds the election to be intelligent and
voluntary.
(b) requires the convicting court to determine immediately
after judgment if the defendant is indigent and, if so,
whether the defendant desires counsel for filing habeas corpus
writs.
(c) requires the clerk of the convicting court to forward to
the court of criminal appeals, immediately after the court
makes the findings required under Subsections (a), (b), and
(i), the following:
(1) a copy of the judgment;
(2) a list containing the name, address, and phone
number of each counsel of record; and
(3) finding by the convicting court regarding the
voluntary nature of the defendant's choice to proceed
pro se.
(d) requires the court of criminal appeals to adopt rules and
standards to appoint competent counsel at the earliest
practicable time after receipt of the documents in Subsection
(c), unless the applicant elects to proceed pro se.
(e) prohibits the court of criminal appeals from appointing an
attorney as counsel if the attorney represented the applicant
at trial or on direct appeal, unless:
(1) the applicant and the attorney request the
appointment on the record; or
(2) the court finds good cause to make the appointment.
(f) requires the court of criminal appeals to appoint a second
counsel to assist if counsel is the same person appointed on
appeal under Article 26.052.
(g) requires an attorney appointed under this section to move
to be appointed as counsel in federal habeas review if the
court of criminal appeals denies an applicant relief under
this article.
(h) requires the court of criminal appeals to reasonably
compensate a court appointed attorney from state funds;
requires the court to appoint and reasonably compensate at
attorney for representation in a subsequent or untimely
application for writ of habeas corpus, if the court determines
that the requirements of Section 5 have been satisfied.
(i) allows the attorney to apply to the court of criminal
appeals for appointment and compensation if representing an
inmate under a death sentence for an initial application for
writ of habeas corpus; allows the attorney to request that the
convicting court determine if the defendant is indigent and,
if so, whether the defendant desires appointment of counsel
for habeas corpus writ.
Sec. 3. INVESTIGATION OF GROUNDS FOR APPLICATION.
(a) requires counsel, on appointment, to investigate the
factual and legal grounds for the application for a writ of
habeas corpus.
(b) allows counsel to file an ex parte, verified, and
confidential request for prepayment of expenses, including
expert fees, to investigate and present potential habeas
corpus issues; requires the request to state:
(1) the claims of the application to be investigated;
(2) facts that suggest a claim of merit may exist; and
(3) an itemized list of expenses.
(c) requires the court to grant a request for expenses if the
request is timely and reasonable; requires the court, if it
denies the expense request in whole or in part, to state the
reasons for the denial in a written order provided to the
applicant.
(d) allows counsel to incur expenses for habeas corpus
investigation, including expenses for experts, without prior
approval by the court of criminal appeals; requires the court
to order reimbursement of counsel of expenses on presentation
of a claim; requires the court, if it denies the request in
whole or in part, to state the reasons for the denial in a
written order provided to the applicant; allows the applicant
to request reconsideration of the denial for reimbursement.
(e) considers materials submitted to the court under this
section as a part of the court's record.
Sec. 4. FILING OF APPLICATION.
(a) requires an application for a writ of habeas corpus to be
filed in the convicting court within a specified period of
time.
(b) presumes an application filed after the deadline untimely
unless the applicant establishes good cause; outlines the
steps for a convicting court to take upon a finding of lack
of good cause for the delay.
(c) requires the convicting court, if counsel has been
appointed and a timely application is not filed on or before
the applicable filing date under Subsection (a), to conduct a
hearing (within a specified period of time) and determine if
good cause exists for either the untimely filing of an
application or other necessary action.
(d) requires the convicting court to perform certain duties if
it finds the applicant failed to establish good cause for the
delay.
(e) requires the convicting court to proceed as if the
application was timely filed if the court finds that the
applicant has established good cause for the delay.
(f) prohibits an applicant from establishing good cause for
untimely filing of an application filed after the 91st day
after the applicable filing date under Subsection (a).
(g) considers a failure to file an application before the 91st
day after the filing date applicable to the applicant under
Subsection (a) as a waiver of all grounds for relief that were
previously available.
(h) requires the court to treat certain types of applications
as untimely for a writs of habeas corpus unless the applicant:
(1) establishes good cause; and
(2) the amended or supplemental application is filed
before the 91st day after the filing date applicable
under Subsection (a).
Sec. 5. SUBSEQUENT OR UNTIMELY APPLICATION.
(a) prohibits a court from considering the merits of an
application if it is untimely unless it contains facts
establishing that:
(1) the claims could not have been presented previously
because the factual or legal basis for the claim was
unavailable during a certain time period;
(2) by a preponderance of the evidence, but for a
violation of the U.S. Constitution no rational juror
could have found the applicant guilty beyond a
reasonable doubt;
(3) by clear and convincing evidence, no rational juror
would have answered in the state's favor one or more of
the special issues submitted.
(b) requires the court clerk to do the following on receipt of
a subsequent application or untimely original application:
(1) attach a notation regarding the untimeliness of the
application;
(2) assign to the case a file number; and
(3) send to the court of criminal appeals a copy of the
application, the notation, the order scheduling the
execution, and any order the judge directs to be
attached.
(c) requires the court of criminal appeals to determine
whether the requirements of Subsection (a) have been
satisfied; prohibits the convicting court from taking further
action on the application before the court of criminal appeals
issues an order finding the requirements have been satisfied.
(d) outlines the times at which a legal basis of a claim is
unavailable.
(e) outlines the times at which a factual basis of a claim is
unavailable.
Sec. 6. ISSUANCE OF WRIT.
(a) requires a writ of habeas corpus to issue by operation of
law if a timely application is filed.
(b) requires a writ of habeas corpus to issue by operation of
law if the convicting court receives notice that requirements
for consideration of an untimely application have been met.
(c) requires the clerk of the convicting court to complete
certain tasks regarding the writ of habeas corpus.
(d) requires the clerk of the convicting court to deliver
copies of documents to the applicant and the state's attorney.
Sec. 7. ANSWER TO APPLICATION.
(a) allows the state 30 days in which to answer the
application; requires the state to serve the answer, if any,
on counsel for the applicant or, if the applicant is
proceeding pro se, on the applicant; allows the state the
possibility of extending this period upon a showing of
particularized justifying circumstances.
(b) denies matters alleged in the application and not admitted
by the state.
Sec. 8. FINDINGS OF FACT WITHOUT EVIDENTIARY HEARING.
(a) requires the convicting court to determine, within 20 days
after the last date the state may answer the application,
whether controverted, previously unresolved factual issues
material to the legality of the applicant s confinement exist.
(b) allows the parties to file proposed findings of fact and
conclusions of law for the court to consider if the convicting
court determines the issues do not exist.
(c) requires the convicting court to make appropriate written
findings of fact and conclusions of law within a certain time
frame.
(d) requires the clerk of the court to send immediately to the
court of criminal appeals a copy of the: application, answer,
orders entered by the convicting court, proposed findings of
fact and conclusions of law, and findings of fact entered by
the court; requires the court to send immediately to
applicant's counsel, or to the applicant if proceeding pro se:
orders entered by the convicting court, proposed findings of
fact and conclusions of law, and findings of fact and
conclusions of law entered by the court.
(e) states that the convicting court's failure to issue
findings of fact within the time provided by Subsection (c)
constitutes a finding that previously unresolved factual
issues do not exist.
Sec. 9. HEARING.
(a) requires the convicting court to enter an order within a
certain time frame designating the issues of fact to be
resolved and the manner for resolution; allows the court, in
order to resolve the issues, to require affidavits,
depositions, interrogatories, and evidentiary hearings and
allows the use of personal recollection.
(b) requires the convicting court to allow the applicant and
the state no less than 10 days to prepare for an evidentiary
hearing; allows the parties to waive the preparation time;
outlines the time frame for holding evidentiary hearings in
all situations.
(c) requires the presiding judge of the convicting court to
conduct a hearing under this section unless another judge
presided over the original capital felony trial, in which
event the latter may preside.
(d) requires the court reporter to prepare a hearing
transcript no later than the 30th day after the date the
hearing ends and file the transcript.
(e) allows the parties to file proposed findings of fact and
conclusions of law for the convicting court to consider.
(f) lists the items required of the clerk of the convicting
court to transmit to the court of criminal appeals; lists the
items required of the clerk to transmit to counsel for the
applicant or to the applicant if proceeding pro se.
(g) requires the clerk of the convicting court to forward an
exhibit that is not documentary to the court of criminal
appeals on request of the court.
Sec. 10. RULES OF EVIDENCE. The Texas Rules of Criminal Evidence
are applicable to a hearing under this article.
Sec. 11. REVIEW BY COURT OF CRIMINAL APPEALS. Requires the court
of criminal appeals to review all submitted applications; allows
the court to set the cause for oral argument and request further
briefing of the issues by the applicant or the state.
SECTION 2. Amends Chapter 26, Code of Criminal Procedure
(ARRAIGNMENT), by adding Article 26.052 as follows:
Art. 26.052. APPOINTMENT OF COUNSEL IN DEATH PENALTY CASE;
REIMBURSEMENT OF INVESTIGATIVE EXPENSES.
(a) establishes procedures for appointment and payment of
counsel in death penalty cases and for application for writ of
certiorari in the U.S. Supreme Court.
(b) allows counsel for direct appeal or for applicant for writ
of certiorari to be appointed by the guidelines of a county's
public defender's office, if one exists.
(c) creates a local selection committee in each administrative
judicial region created under Section 74.042, Government Code;
lists the membership of this committee.
(d) requires this committee to adopt standards for the
qualification of attorneys for appointment in death penalty
cases and post a list of qualified attorneys; requires the
judge to appoint a second counsel unless reasons exist for not
doing so.
(e) requires the presiding judge of the district court in
which a capital felony case is filed to appoint counsel to
represent an indigent defendant as soon as practicable after
charges are filed.
(f) allows appointed counsel to file with the trial court a
pretrial ex parte confidential request for advance payment of
expenses to investigate defenses; list the items to be
included in the request.
(g) requires the court to grant the request for advance
payment of reasonable expenses if reasonable; requires the
court to state reasons for a denial.
(h) allows counsel to incur expenses without prior approval of
the court.
(i) entitles an indigent defendant convicted of a capital
felony and sentenced to death to be represented by competent
counsel on appeal and for application of writ of certiorari.
(j) requires the judge of the convicting court to appoint
counsel to represent an indigent defendant on appeal and for
application of writ of certiorari as soon as practicable after
death sentence is imposed.
(k) prohibits the court from appointing an attorney as counsel
on appeal if the attorney represented the defendant at trial
except in certain situations.
(l) outlines the procedures for compensation of counsel.
SECTION 3. Amends Article 43.14, Code of Criminal Procedure
(EXECUTION OF CONVICT), by changing the time an execution can occur
to after 6 p.m. on the date set for execution.
SECTION 4. Amends Chapter 43, Code of Criminal Procedure
(EXECUTION OF JUDGMENT) by adding Article 43.141 as follows:
Art. 43.141. SCHEDULING OF EXECUTION DATE; WITHDRAWAL; MODIFICATION
(a) outlines the time frame for a convicting court to follow
when setting an execution date if an initial application is
timely filed or if good cause is shown for its untimely
filing.
(b) allows the convicting court to set an execution date if
the original application is not timely filed.
(c) prohibits the first execution date from being earlier than
the 91st day after the date the convicting court enters the
order setting the date; prohibits a subsequent execution date
from being earlier than the 31st day after the date the court
enters the order.
(d) allows the convicting court to modify or withdraw the
order setting the execution date if the court determines that
additional proceedings are necessary on a subsequent or
untimely application.
(e) requires the court to recall the execution warrant if the
convicting court withdraws the execution order.
SECTION 5. Amends Article 11.07, Code of Criminal Procedure
(RETURN TO CERTAIN COUNTY; PROCEDURE AFTER CONVICTION), by changing
the title to PROCEDURE AFTER CONVICTION WITHOUT DEATH PENALTY and
as follows:
Sec. 1. Establishes the procedures for an application for writ of
habeas corpus in seeking relief from felony judgment imposing a
penalty other than death.
Sec. 2. Exempts death penalty cases from those in which the writ
is returnable in the county where the offense has been committed.
Sec. 3.
(a) renumbered.
(b) replaces "petition" with "application"; exempts death
penalty cases from conditions of this subsection.
(c) defines "confinement" as confinement for any offense or
any collateral consequence resulting from the conviction that
is the basis of the instant habeas corpus; replaces "petition"
with "application."
(d) replaces "petition" with "application."
Sec. 4.
(a) prohibits a court from considering the merits of a habeas
writ if the subsequent application is filed after final
disposition of an initial application challenging the same
conviction unless certain conditions exist.
(b) outlines the time frame under which a legal basis of a
claim is unavailable.
(c) outlines the time frame under which a factual basis of a
claim is unavailable.
Sec. 5. Replaces "petitioner" with "applicant."
Sec. 6. Replaces "petitioner" with "applicant"; increases the
amount of notice given to the defense attorney and to the state
before a hearing is held from three to seven days.
Sec. 7. Replaces "petition" with "application."
SECTION 6. Withdraws rulemaking authority granted to the court of
criminal appeals under Section 22.108, Government Code, with
respect to rules of appellate procedure relating to application for
writ of habeas corpus, but only to the extent the rules conflict
with a procedure under Article 11.071 or Article 11.07, Code of
Criminal Procedure.
SECTION 7.
(a) Change in law made by Articles 43.14, 43.141, and 11.071,
Code of Criminal Procedure, as amended or added by this Act,
applies only to a person sentenced to death.
(b) Change in law made by Article 26.052, Code of Criminal
Procedure, as added by this Act, applies only to a defendant
charged with an offense committed on or after the effective
date of the Act.
(c) Change in law made by Article 11.07, Code of Criminal
Procedure, as amended by this Act, applies only to habeas
corpus writs filed on or after the effective date of the Act
by a person convicted of a felony, other than application
filed by person under death sentence. Makes effects of this
act prospective.
SECTION 8. States that the Legislature strongly encourages
district courts to make use of state of the art technology for
preparation of transcripts in capital felony cases in order to
expedite the appeals process in those cases.
SECTION 9. Effective date: September 1, 1995, but only if the
comptroller certifies on or before that date that at least
$5,000,000 is appropriated by the General Appropriations Act for
the fiscal biennium ending August 31, 1997, to the court of
criminal appeals for the purpose of providing counsel for death
sentenced persons in habeas proceedings.
SECTION 10. Emergency clause.
COMPARISON OF SUBSTITUTE TO ORIGINAL
SECTION 1. Sec. 2.
(a) Adds the requirement that appointed counsel for applicants
sentenced to death be competent.
(b) Adds the provision that a defendant not have been denied relief
by the court of criminal appeals in an initial habeas corpus
proceeding under Article 11.07 for the court to determine whether
the defendant is indigent.
(c) Adds Subsections (a) and (i) to the list of findings under
which the convicting court operates.
(d) Adds "standards"; adds requirement that counsel be competent.
(g) Adds a specific time frame within which the court of criminal
appeals issues a mandate on the initial application for a habeas
corpus writ.
(h) Adds the provision that attorneys are compensated reasonably;
requires the court to appoint as well as compensate an attorney for
representation.
(i) Allows the attorney, under certain circumstances, to request
that the convicting court determine if the defendant is indigent
and, if so, whether he desires appointment of counsel for habeas
corpus writ.
Sec. 3 of original (LAW APPLICABLE) deleted.
Sec. 3 (substitute)
(c) Requires the court, if it denies request for expenses in whole
or in part, to state the reasons for the denial in a written order
provided to the applicant.
(d) Requires the court, if it denies request for expenses in whole
or in part, to state the reasons for the denial in a written order
provided to the applicant; allows the applicant to request
reconsideration of the denial for reimbursement.
(e) Adds statement that materials submitted to the court under this
section are a part of the court's record.
Sec. 4 (FILING OF APPLICATION)
(a) Changes the maximum time limit from 90 to 45 days in which an
application for a writ of habeas corpus must be filed in the
convicting court. Specifies that certain applicants must not have
been convicted before September 1, 1995 and have not previously
filed an application under Article 11.07.
(c) Adds requirement that convicting court conduct a hearing and
determine if good cause exists for either the untimely filing of an
application or other necessary action if counsel has been appointed
and a timely application is not filed on or before a certain date.
(e) Adds requirement that convicting court proceed as if
application was timely filed if the court finds that the applicant
has established good cause for the delay.
(f) Adds prohibition that applicant establish good cause for
untimely filing filed after a certain time.
(g) Establishes the conditions for a waiver of all grounds for
relief previously available to an applicant.
(h) Adds exceptions for the court's treating an application as
subsequent or untimely.
Sec. 5 (SUBSEQUENT OR UNTIMELY APPLICATION)
(a)(2) Replaces "clear and convincing" to "preponderance of the"
evidence.
(d)(2) of original bill deleted.
Sec. 7 (ANSWER TO APPLICATION)
(a) Adds requirement that state serve the answer, if any, on
counsel for the applicant or, if the applicant is proceeding pro
se, on the applicant.
Sec. 8 (FINDINGS OF FACT WITHOUT EVIDENTIARY HEARING)
(d)(2) Adds requirement that the court clerk send to counsel for
the applicant or the applicant himself if proceeding pro se, copies
of certain items.
Sec. 9 (HEARING)
(a) Allows the court to use personal recollection to resolve
issues.
(f) Requires the court clerk to transmit to counsel for the
applicant or the applicant himself if proceeding pro se, copies of
certain items.
SECTION 4.
(a) Deletes allowance for showing good cause for untimely filing of
initial application under Article 11.071.
SECTION 5. Sec. 3
(c) Adds definition of "confinement" to include that for any
offense or collateral consequence resulting from the conviction
that is the basis of the instant habeas corpus.
Sec. 4 of original bill deleted.
Sec. 4 of substitute:
(a)(2) Replaces "clear and convincing" with "a preponderance of
the" evidence.
Sec. 5 (b)(2) of original bill deleted.
SECTION 8. Adds statement that Legislature strongly encourages
district courts to make use of state of the art technology for the
preparation of transcripts in capital felony cases in order to
expedite the appeals process in those cases.
SECTION 9. Adds provision to effective date clause requiring the
comptroller to certify on or before effective date that at least
$5,000,000 is appropriated by the General Appropriations Act to the
court of criminal appeals for the purpose of providing compensation
and expenses to counsel representing persons under a death sentence
in habeas corpus proceedings.
SUMMARY OF COMMITTEE ACTION
HB 3 was considered by the full committee in a public hearing on
April 19, 1995. The following persons testified in favor of the
bill:
Linda Kelley, representing herself; and
Betty Marshall, Tarrant County District Attorney's office,
representing herself.
The following person testified in favor of part of the bill and
against part of the bill:
David Botsford, representing the Texas Criminal Defense
Lawyers Association (TCDLA).
The following persons testified on the bill:
Peggy Griffey, resource person from the Office of the Attorney
General; and
Rob Kepple, representing the Texas District and County
Attorneys Association (TDCAA).
The following person testified against the bill:
Michael T. Maddi, representing the Schiller Institute.
The committee considered a complete committee substitute for HB 3.
The substitute was adopted without objection. HB 3 was considered
favorably as substituted, with the recommendation that it do pass
and be printed, by a record vote of 5 ayes, 0 nays, 0 pnv, and 4
absent.