BILL ANALYSIS
C.S.S.B. 440
By: Montford
Criminal Justice
4-11-95
Committee Report (Substituted)
BACKGROUND
Convictions that include the death sentence are appealed directly
to the Court of Criminal Appeals. During this direct appeal, which
can last from two to five years, the inmate is entitled to be
represented by locally appointed counsel. Following affirmance of
the conviction by the Court of Criminal Appeals, the inmate may
file an appeal with the U.S. Supreme Court. If the U.S. Supreme
Court declines to hear the case, then the inmate begins the state
post-conviction writ process, referred to as habeas review. Habeas
review can take up to nine years. Death-row inmates are not
entitled appointment of counsel for habeas review. Texas law does
not limit the number of applications for writ of habeas corpus that
a death-row inmate can file.
PURPOSE
As proposed, C.S.S.B. 440 amends the procedures for applying for a
writ of habeas corpus by persons convicted of a felony and
procedures for the compensation and appointment of counsel to
represent certain persons charged with a capital felony.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not grant any
additional rulemaking authority to a state officer, institution, or
agency.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Chapter 11, Code of Criminal Procedure, by adding
Article 11.071, as follows:
Art. 11.071. PROCEDURE IN DEATH PENALTY CASE
Sec. 1. APPLICATION TO DEATH PENALTY CASE. Provides that
this article establishes the procedures for an application for
a writ of habeas corpus (writ) in which the applicant seeks
relief from a judgment imposing a penalty of death.
Sec. 2. REPRESENTATION BY COUNSEL. (a) Requires an
applicant to be represented by competent counsel unless the
applicant has elected to proceed pro se and the convicting
trial court finds that the applicant's election is intelligent
and voluntary.
(b) Requires the convicting court, if a defendant is
sentenced to death on or after September 1, 1995, does not
have an initial application for a writ of habeas corpus
pending on September 1, 1995, and has not been denied relief
by the court of criminal appeals in an initial habeas corpus
proceeding, to determine, immediately after judgment, if the
defendant is indigent and, if so, whether the defendant
desires appointment of counsel for the purpose of a writ of
habeas corpus.
(c) Requires the clerk of the convicting court to forward
certain information to the court of criminal appeals
(court).
(d) Requires the court, unless an applicant elects to
proceed pro se or is represented by retained counsel, to
appoint competent counsel under court adopted rules and
standards at the earliest practicable time.
(e) Prohibits the court from appointing an attorney as
counsel under this section if the attorney represented the
applicant at trial or on direct appeal, unless the applicant
and the attorney request the appointment on the record or
the court finds good cause to make the appointment.
(f) Requires the court to appoint a second counsel to
assist in the preparation of the appeal and writ.
(g) Requires an appointed attorney to move to be appointed
as counsel in federal habeas review or to move for the
appointment of other counsel or equivalent provision by a
certain date.
(h) Requires the court to reasonably compensate an attorney
for representation in a subsequent or untimely application
for a writ if requirements of Section 5 have been satisfied.
(i) Authorizes an attorney who is representing an inmate on
death row to request that the convicting court determine if
the defendant is indigent and if so, whether the defendant
desires appointment of counsel for the purpose of the writ
of habeas corpus.
Sec. 3. INVESTIGATION OF GROUNDS FOR APPLICATION. (a)
Requires counsel to investigate expeditiously the factual and
legal grounds for filing of an application for a writ.
(b) Authorizes counsel to file an ex parte, verified, and
confidential request for prepayment of expenses, including
expert fees, to investigate and present potential habeas
corpus claims no later than 30 days before the date the
application for a writ of habeas corpus is filed with the
convicting court. Sets forth the required contents of the
request.
(c) Authorizes the court in its discretion to grant a
request for expenses in whole or in part if the request for
expenses is timely and reasonable. Requires the court to
briefly state the reasons for the denial in a written order
provided to the applicant if the court denies in whole or in
part the request for expenses.
(d) Authorizes counsel to incur expenses for habeas corpus
investigation, including expenses for experts, without prior
approval by the court. Requires the court to order
reimbursement of counsel if the expenses are reasonably
necessary and reasonably incurred. Requires the court to
state the reasons for the denial in a written order with an
attached copy of the reimbursement claim provided to the
applicant if the court denies in whole or in part the
request for expenses. Authorizes the applicant to request
reconsideration of the denial for reimbursement.
(e) Provides that materials submitted to the court under
this section are a part of the court's record.
Sec. 4. FILING OF APPLICATION. (a) Requires an application
for a writ to be filed in the convicting court not later than
the 45th day after the date the appellee's original brief is
filed on direct appeal with the court. Requires an original
application to be filed not later than 180th day after the
date the court appoints counsel or not later than the 45th day
after the date the appellee's original brief is due on direct
appeal, if an applicant who was convicted before September 1,
1995, does not have an application for a writ of habeas corpus
pending on September 1, 1995, and has not previously filed an
application under Article 11.07.
(b) Provides that an application filed after the filing
date that is applicable to the applicant under Subsection
(a) is presumed untimely unless the applicant establishes
good cause by showing particularized justifying
circumstances.
(c) Requires the convicting court to conduct a hearing to
determine if good cause exists for the untimely filing of an
application if counsel has been appointed and a timely
application is not filed on or before the applicable filing
date under Subsection (a).
(d) Requires the court to take certain actions if the
convicting court finds the applicant failed to establish
good cause for the delay.
(e) Requires the court to proceed as if the application was
timely filed if the convicting court finds that the
applicant has established good cause for the delay.
(f) Provides that an applicant cannot establish good cause
for the untimely filing of an application filed after the
91st day after the applicable filing date under Subsection
(a) notwithstanding Subsection (b), (c), or (e).
(g) Provides that a failure to file an application before
the 91st day after the filing date applicable to the
applicant under Subsection (a) constitutes a waiver of all
grounds for relief available to the applicant before the
last date on which an application could be timely filed,
except as provided by Section 5.
(h) Requires the court, if an amended or supplemental
application is not filed within the time specified under
Subsection (a), to treat the application as a subsequent or
untimely application for a writ of habeas court, unless the
applicant fulfills certain requirements.
Sec. 5. SUBSEQUENT OR UNTIMELY APPLICATION. (a) Sets forth
the contents which prohibit a court from considering the
merits of or grant relief based on the subsequent or untimely
original application.
(b) Sets forth the required actions of the clerk of the
court if the convicting court receives a subsequent or an
untimely application.
(c) Requires the court 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 issues an order finding the
requirements have been satisfied. Requires the court to
issue an order dismissing the application as an abuse of the
writ.
(d) Sets forth the conditions which make a legal basis of
a claim unavailable.
(e) Provides that a factual basis of a claim is unavailable
on or before a date described by Subsection (a)(1) if the
factual basis was not ascertainable through the exercise of
reasonable diligence on or before that date.
Sec. 6. ISSUANCE OF WRIT. (a) Requires a writ to issue by
operation of law if the convicting court receives a timely
application for a writ.
(b) Requires a writ to issue by operation of law if the
convicting court receives notice that the requirements of
Section 6 for consideration of a subsequent or untimely
application have been met.
(c) Sets forth the required duties of the clerk of the
convicting court.
(d) Requires the clerk of the convicting court to promptly
deliver copies of documents submitted to the clerk to the
applicant and the attorney representing the state.
Sec. 7. ANSWER TO APPLICATION. (a) Authorizes the state to
file an answer to the application for a writ within 30 days
after it receives notice. Authorizes the state to request an
extension of time in which to answer the application by
showing particularized justifying circumstances for the
extension.
(b) Provides that matters alleged in the application not
admitted by the state are deemed denied.
Sec. 8. FINDINGS OF FACT WITHOUT EVIDENTIARY HEARING. (a)
Requires the convicting court to determine, within 20 days
after the date the state may answer the application, whether
controverted, previously unresolved factual issues material to
the legality of the applicants confinement exist and to issue
a written order of the determination.
(b) Authorizes the parties to file proposed findings of
fact and conclusions of law for the court to consider on or
before the order is issued.
(c) Requires the convicting court to make appropriate
written findings of fact and conclusions of law not later
than 15 days after the parties filed proposed findings or
not later than 45 days after the court's determination is
made, whichever is first.
(d) Sets forth the items of which the clerk of the court is
required to send copies to the court.
(e) Provides that failure of the convicting court to issue
findings of fact and conclusions of law within the time
provided by Subsection (c) constitutes a finding that
controverted, previously unresolved factual issues material
to the legality of the applicant's confinement do not exist.
Sec. 9. HEARING. (a) Requires the court to enter an order
designating the issues of fact to be resolved and the manner
in which the issues are to be solved within a specified
period. Authorizes the court to require affidavits,
depositions, interrogatories, and use personal recollection to
resolve the issues.
(b) Requires the convicting court to allow the applicant
and the state to prepare for an evidentiary hearing.
Authorizes the parties to waive the preparation time.
Requires the hearing to be held within a specified period
unless the court states, on record, good cause for delay.
(c) Requires the presiding judge of the convicting court to
conduct a hearing held unless another judge presided over
the original capital felony trial, in which the judge is
authorized to preside over the hearing.
(d) Requires the court reporter to prepare a transcript of
the hearing not later than the 30th day after the date the
hearing ends and to file the transcript with the clerk of
the convicting court.
(e) Specifies the date in which the parties are authorized
to file proposed findings of fact and conclusions of law.
Requires the court to make written findings of fact that are
necessary to resolve the previously unresolved facts and
make conclusions of law not later than the 15th day after
the date the parties file proposed findings or not later
than the 45th day after the date the court reporter files
the transcript, whichever occurs first.
(f) Sets forth the documents the clerk of the convicting
court is required to transmit to the court.
(g) Requires the clerk of the convicting court to forward
an exhibit that is not documentary to the court on request
of the court.
Sec. 10. RULES OF EVIDENCE. Provides that the Texas Rules of
Criminal Evidence apply to a hearing held under this article.
Sec. 11. REVIEW BY COURT OF CRIMINAL APPEALS. Requires the
court to expeditiously review all applications for a writ
submitted under this article. Authorizes the court to set the
cause for oral argument and to request further briefing of the
issues by the applicant or the state. Requires the court to
enter its judgment remanding the applicant to custody or
ordering the applicant's release, as the law and facts may
justify.
SECTION 2. Amends Chapter 26, Code of Criminal Procedure, by adding
Article 26.052, as follows:
Art. 26.052. APPOINTMENT OF COUNSEL IN DEATH PENALTY CASE;
REIMBURSEMENT OF INVESTIGATIVE EXPENSES. (a) Provides that
this chapter establishes procedures in death penalty cases for
appointment and payment of counsel and applications for writs
of certiorari in the U.S. Supreme Court.
(b) Authorizes trial counsel and counsel for direct appeal
or for a petition for a writ of certiorari to be appointed
as provided by the guidelines established by the public
defender's office. Requires counsel to be appointed in
cases in which the death penalty is sought.
(c) Provides that a local selection committee is created in
each administrative judicial region created under Section
74.042, Government Code. Requires the administrative judge
of the judicial region to appoint the members of the
committee. Establishes the required membership of a
committee.
(d) Requires the committee to adopt standards for the
qualification of attorneys for appointment to death penalty
cases. Requires the committee to prominently post the
standards in each district clerk's office in the region with
a list of attorneys qualified for appointment.
(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, if the death penalty is sought in the
case. Requires the judge to appoint lead trial counsel from
the list of attorneys qualified for appointment and to
appoint a second counsel to assist in the defense of the
defendant, unless reasons against the appointment of two
counsel are stated in the record.
(f) Authorizes appointed counsel to file a pretrial ex
parte confidential request for advance payment of expenses
to investigate potential defenses. Sets forth the required
contents of the request.
(g) Requires the court to grant the request for advance
payment of expenses in whole or in part if the request is
reasonable. Sets forth the court's actions regarding denial
of the request.
(h) Authorizes counsel to incur expenses without prior
approval by the court. Requires the court to order
reimbursement of counsel if the expenses are reasonably
necessary and reasonably incurred.
(i) Provides that if an indigent defendant is convicted of
a capital felony and sentenced to death, the defendant is
entitled to be represented by competent counsel on appeal
and to apply for a writ of certiorari to the U.S. Supreme
Court.
(j) Requires the presiding judge of the convicting court to
appoint counsel to represent an indigent defendant on appeal
and to petition for a writ of certiorari, if appropriate.
(k) Prohibits the court from appointing an attorney as
counsel on appeal if the attorney represented the defendant
at trial under certain circumstances.
(l) Provides that an attorney appointed under this article
to represent a defendant at trial or on direct appeal is
compensated as provided by Article 26.05 from county funds.
SECTION 3. Amends Article 43.14, Code of Criminal Procedure, to
require a death penalty to be carried out at any time after 6 p.m.,
rather than before sunrise, on the day set for the execution.
Deletes the provision that a convict may not be executed less than
30 days from the day the court sets the execution date.
SECTION 4. Amends Chapter 43, Code of Criminal Procedure, by adding
Article 43.141, as follows:
Art. 43.141. SCHEDULING OF EXECUTION DATE: WITHDRAWAL;
MODIFICATION. (a) Prohibits the convicting court from
setting an execution date before the court denies relief or,
if the case is filed and set for submission, the court issues
a mandate.
(b) Authorizes the convicting court to set an execution
date if an original application is not timely filed or good
cause is shown for untimely application.
(c) Prohibits the first execution date from being earlier
than the 91st day after the date the convicting court enters
the order setting the execution. Prohibits a subsequent
execution date from being earlier than 31 days after the
date the convicting court enters the order setting the
execution date.
(d) Authorizes the convicting court to modify or withdraw
the order of the court setting a date for execution in a
death penalty case if the court determines that additional
proceedings are necessary on a subsequent or untimely
application of a writ.
(e) Requires the court to recall the warrant of execution
if the convicting court withdraws or modifies the order of
the court setting the execution date. Requires the clerk to
issue a new warrant if the warrant is modified.
SECTION 5. Amends Article 11.07, Code of Criminal Procedure, as
follows:
Art. 11.07. New heading: PROCEDURE AFTER CONVICTION WITHOUT
DEATH
PENALTY
Sec. 1. Provides that this article establishes the procedures
for an application for writ in which the applicant seeks
relief from a felony judgment imposing a penalty other than
death.
Sec. 2. Requires the writ to be made returnable in the county
where the offense was committed unless the case is one in
which the death penalty is imposed.
Sec. 3. (a) Created from existing text.
(b) Makes conforming and nonsubstantive changes.
(c) Defines "confinement." Makes a conforming change.
(d) Makes a conforming change.
Sec. 4. (a) Prohibits a court from considering the merits of
or grant relief based on the subsequent application unless the
application contains sufficient specific facts establishing
certain conclusions if a subsequent application for writ of
habeas corpus is filed after final disposition of an initial
application challenging the same conviction.
(b) Sets forth the conditions which make a legal basis of
a claim unavailable.
(c) Provides that a factual basis of a claim is unavailable
on or before a date described by Subsection (a)(1) if the
factual basis was not ascertainable through the exercise of
reasonable diligence on or before that date.
Sec. 5. Makes a conforming change. Redesignates existing
Section 3.
Sec. 6. Requires the attorney for the applicant and the state
to be given at least seven, rather than three, full days'
notice before any hearing by a district judge. Redesignates
existing Section 4.
Sec. 7. Makes conforming changes. Redesignates existing
Section 5.
SECTION 6. Provides that rulemaking authority granted to the court
under Section 22.108, Government Code, is withdrawn with respect to
rules of appellate procedure relating to an application for a writ
but only to the extent the rules conflict with a procedure under
Articles 11.071 and 11.07, Code of Criminal Procedure.
SECTION 7. (a) Provides that Articles 43.14, 43.141, and 11.071,
Code of Criminal Procedure, apply only to a person sentenced to
death.
(b) Makes application of Article 26.052, Code of Criminal
Procedure, as added by this Act, prospective.
(c) Makes application of Article 11.07, Code of Criminal
Procedure, as amended by this Act, prospective.
SECTION 8. Effective date: September 1, 1995.
SECTION 9. Emergency clause.