BILL ANALYSIS C.S.S.B. 440 By: Montford (Gallego) 4-27-95 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.S.B. 440 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 expressly grants additional rulemaking authority to the court of criminal appeals in SECTION 1, Subsection 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 an 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 (which may be presented ex parte); 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. (REPRESENTATION BY COUNSEL) (h) Requires the court to appoint as well as compensate an attorney for representation. Sec. 3. (INVESTIGATION OF GROUNDS FOR APPLICATION) (c) Requires the court to grant request for expenses in whole or in part if the request is timely and reasonable. (d) Allows the claim for reimbursement of counsel to be presented ex parte. Deletes the requirement that the court's statement for denial of request for expenses be accompanied by an attached copy of the reimbursement claim. Sec. 4 (FILING OF APPLICATION) (c) Requires the convicting court to conduct a hearing (within 11 days after the applicable filing date under Subsection (a)) 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. Sec. 7 (ANSWER TO APPLICATION) (a) 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. Sec. 8 (FINDINGS OF FACT WITHOUT EVIDENTIARY HEARING) (d) 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) (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 8. (substitute) Adds statement that the 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. (substitute) 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 SB 440 was considered by the full committee in a formal meeting on April 27, 1995. The committee considered a complete committee substitute to the bill. The substitute was adopted by a non-record vote. SB 440 was reported favorably as substituted, with the recommendation that it do pass and be printed, by a record vote of 5 ayes, 1 nays, 1 pnv, and 2 absent.