By: Montford, Shapiro S.B. No. 440
A BILL TO BE ENTITLED
AN ACT
1-1 relating to procedures for applying for a writ of habeas corpus by
1-2 persons convicted of a felony and procedures for the compensation
1-3 and appointment of counsel to represent certain persons charged
1-4 with a capital felony.
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 DEATH PENALTY CASE
1-9 Sec. 1. APPLICATION TO DEATH PENALTY CASE. Notwithstanding
1-10 any other provision of this chapter, this article establishes the
1-11 procedures for an application for a writ of habeas corpus in which
1-12 the applicant seeks relief from a judgment imposing a penalty of
1-13 death.
1-14 Sec. 2. REPRESENTATION BY COUNSEL. (a) An applicant shall
1-15 be represented by competent counsel unless the applicant has
1-16 elected to proceed pro se and the convicting trial court finds,
1-17 after a hearing on the record, that the applicant's election is
1-18 intelligent and voluntary.
1-19 (b) If a defendant is sentenced to death on or after
1-20 September 1, 1995, the convicting court, immediately after judgment
1-21 is entered under Article 42.01, shall determine if the defendant is
1-22 indigent and, if so, whether the defendant desires appointment of
1-23 counsel for the purpose of a writ of habeas corpus. If a defendant
1-24 is sentenced to death, does not have an initial application for a
2-1 writ of habeas corpus under Article 11.07 pending on September 1,
2-2 1995, and has not been denied relief by the court of criminal
2-3 appeals in an initial habeas corpus proceeding under Article 11.07,
2-4 the convicting court, as soon as practicable, shall determine
2-5 whether the defendant is indigent and, if so, whether the defendant
2-6 desires the appointment of counsel for the purpose of a writ of
2-7 habeas corpus.
2-8 (c) Immediately after the convicting court makes the
2-9 findings required under Subsections (a), (b), and (i), the clerk of
2-10 the convicting court shall forward to the court of criminal
2-11 appeals:
2-12 (1) a copy of the judgment;
2-13 (2) a list containing the name, address, and telephone
2-14 number of each counsel of record for the applicant at trial and on
2-15 direct appeal; and
2-16 (3) if the applicant elects to proceed pro se, any
2-17 findings made by the convicting court on the voluntariness of the
2-18 applicant's election.
2-19 (d) Unless an applicant elects to proceed pro se or is
2-20 represented by retained counsel, the court of criminal appeals
2-21 shall, under rules and standards adopted by the court, appoint
2-22 competent counsel at the earliest practicable time after receipt of
2-23 the documents under Subsection (c).
2-24 (e) The court of criminal appeals may not appoint an
2-25 attorney as counsel under this section if the attorney represented
2-26 the applicant at trial or on direct appeal, unless:
2-27 (1) the applicant and the attorney request the
3-1 appointment on the record; or
3-2 (2) the court finds good cause to make the
3-3 appointment.
3-4 (f) If counsel is the same person appointed as counsel on
3-5 appeal under Article 26.052, the court of criminal appeals shall
3-6 appoint a second counsel to assist in the preparation of the appeal
3-7 and writ of habeas corpus.
3-8 (g) If the court of criminal appeals denies an applicant
3-9 relief under this article, an attorney appointed under this section
3-10 to represent the applicant shall, not later than the 15th day after
3-11 the date the court of criminal appeals denies relief or, if the
3-12 case is filed and set for submission, the 15th day after the date
3-13 the court of criminal appeals issues a mandate on the initial
3-14 application for a writ of habeas corpus under this article, move to
3-15 be appointed as counsel in federal habeas review under 21 U.S.C.
3-16 Section 848(q) or equivalent provision or, if necessary, move for
3-17 the appointment of other counsel under 21 U.S.C. Section 848(q) or
3-18 equivalent provision.
3-19 (h) The court of criminal appeals shall reasonably
3-20 compensate an attorney appointed by the court under this section
3-21 from state funds. The court shall reasonably compensate an
3-22 attorney for representation in a subsequent or untimely application
3-23 for a writ of habeas corpus, if the court determines that the
3-24 requirements of Section 5 allowing consideration of the application
3-25 have been satisfied.
3-26 (i) If an attorney is representing an inmate under a
3-27 sentence of death for an initial application for a writ of habeas
4-1 corpus under Article 11.07 pending on September 1, 1995, the
4-2 attorney may request that the convicting court determine if the
4-3 defendant is indigent and, if so, whether the defendant desires
4-4 appointment of counsel for the purpose of the writ of habeas
4-5 corpus.
4-6 Sec. 3. INVESTIGATION OF GROUNDS FOR APPLICATION. (a) On
4-7 appointment, counsel shall investigate expeditiously, before and
4-8 after the appellate record is filed in the court of criminal
4-9 appeals, the factual and legal grounds for the filing of an
4-10 application for a writ of habeas corpus.
4-11 (b) Not later than the 30th day before the date the
4-12 application for a writ of habeas corpus is filed with the
4-13 convicting court, counsel may file with the court of criminal
4-14 appeals an ex parte, verified, and confidential request for
4-15 prepayment of expenses, including expert fees, to investigate and
4-16 present potential habeas corpus claims. The request for expenses
4-17 must state:
4-18 (1) the claims of the application to be investigated;
4-19 (2) specific facts that suggest that a claim of
4-20 possible merit may exist; and
4-21 (3) an itemized list of anticipated expenses for each
4-22 claim.
4-23 (c) The court in its discretion may grant a request for
4-24 expenses in whole or in part if the request for expenses is timely
4-25 and reasonable. If the court denies in whole or in part the
4-26 request for expenses, the court shall briefly state the reasons for
4-27 the denial in a written order provided to the applicant.
5-1 (d) Counsel may incur expenses for habeas corpus
5-2 investigation, including expenses for experts, without prior
5-3 approval by the court of criminal appeals. On presentation of a
5-4 claim for reimbursement, the court shall order reimbursement of
5-5 counsel for expenses, if the expenses are reasonably necessary and
5-6 reasonably incurred. If the court denies in whole or in part the
5-7 request for expenses, the court shall briefly state the reasons for
5-8 the denial in a written order with an attached copy of the
5-9 reimbursement claim provided to the applicant. The applicant may
5-10 request reconsideration of the denial for reimbursement.
5-11 (e) Materials submitted to the court under this section are
5-12 a part of the court's record.
5-13 Sec. 4. FILING OF APPLICATION. (a) An application for a
5-14 writ of habeas corpus, returnable to the court of criminal appeals,
5-15 must be filed in the convicting court not later than the 45th day
5-16 after the date the appellee's original brief is filed on direct
5-17 appeal with the court of criminal appeals. If an applicant who was
5-18 convicted before September 1, 1995, does not have an original
5-19 application for a writ of habeas corpus under Article 11.07 pending
5-20 on September 1, 1995, and has not previously filed an application
5-21 under Article 11.07, the applicant's original application must be
5-22 filed not later than the 180th day after the date the court of
5-23 criminal appeals appoints counsel under Section 2 or not later than
5-24 the 45th day after the date the appellee's original brief is due on
5-25 direct appeal, whichever is later.
5-26 (b) An application filed after the filing date that is
5-27 applicable to the applicant under Subsection (a) is presumed
6-1 untimely unless the applicant establishes good cause by showing
6-2 particularized justifying circumstances.
6-3 (c) If counsel has been appointed and a timely application
6-4 is not filed on or before the applicable filing date under
6-5 Subsection (a), the convicting court shall as soon as practicable
6-6 conduct a hearing to determine if good cause exists for the
6-7 untimely filing of an application.
6-8 (d) If the convicting court finds the applicant failed to
6-9 establish good cause for the delay, the court shall:
6-10 (1) make appropriate findings of fact;
6-11 (2) enter an order to that effect;
6-12 (3) direct the clerk of the court to enter a notation
6-13 that the petition is untimely; and
6-14 (4) send a copy of the petition, findings, and
6-15 notation to the court of criminal appeals as provided by Section 5.
6-16 (e) If the convicting court finds that the applicant has
6-17 established good cause for the delay, the convicting court shall
6-18 proceed as if the application was timely filed.
6-19 (f) Notwithstanding Subsection (b), (c), or (e) an applicant
6-20 cannot establish good cause for the untimely filing of an
6-21 application filed after the 91st day after the applicable filing
6-22 date under Subsection (a).
6-23 (g) A failure to file an application before the 91st day
6-24 after the filing date applicable to the applicant under Subsection
6-25 (a) constitutes a waiver of all grounds for relief that were
6-26 available to the applicant before the last date on which an
6-27 application could be timely filed, except as provided by Section 5.
7-1 (h) If an amended or supplemental application is not filed
7-2 within the time specified under Subsection (a), the court shall
7-3 treat the application as a subsequent or untimely application for a
7-4 writ of habeas corpus under Section 5, unless the applicant:
7-5 (1) establishes good cause by showing particularized
7-6 justifying circumstances for not raising in the original
7-7 application the facts or claims contained in the amended or
7-8 supplemental application; and
7-9 (2) the amended or supplemental application is filed
7-10 before the 91st day after the filing date applicable to the
7-11 applicant under Subsection (a).
7-12 Sec. 5. SUBSEQUENT OR UNTIMELY APPLICATION. (a) If an
7-13 original application for a writ of habeas corpus is untimely or if
7-14 a subsequent application is filed after filing an original
7-15 application, a court may not consider the merits of or grant relief
7-16 based on the subsequent or untimely original application unless the
7-17 application contains sufficient specific facts establishing that:
7-18 (1) the current claims and issues have not been and
7-19 could not have been presented previously in a timely original
7-20 application or in a previously considered application filed under
7-21 this article or Article 11.07 because the factual or legal basis
7-22 for the claim was unavailable:
7-23 (A) on the date the applicant filed the previous
7-24 application; or
7-25 (B) if the applicant did not file an original
7-26 application, on or before the last date for the timely filing of an
7-27 original application;
8-1 (2) by a preponderance of the evidence, but for a
8-2 violation of the United States Constitution no rational juror could
8-3 have found the applicant guilty beyond a reasonable doubt; or
8-4 (3) by clear and convincing evidence, but for a
8-5 violation of the United States Constitution no rational juror would
8-6 have answered in the state's favor one or more of the special
8-7 issues that were submitted to the jury in the applicant's trial
8-8 under Article 37.071 or 37.0711.
8-9 (b) If the convicting court receives a subsequent
8-10 application or an untimely original application, the clerk of the
8-11 court shall:
8-12 (1) attach a notation that the application is a
8-13 subsequent or untimely original application;
8-14 (2) assign to the case a file number that is ancillary
8-15 to that of the conviction being challenged; and
8-16 (3) immediately send to the court of criminal appeals
8-17 a copy of:
8-18 (A) the application;
8-19 (B) the notation;
8-20 (C) the order scheduling the applicant's
8-21 execution, if scheduled; and
8-22 (D) any order the judge of the convicting court
8-23 directs to be attached to the application.
8-24 (c) On receipt of the copies of the documents from the
8-25 clerk, the court of criminal appeals shall determine whether the
8-26 requirements of Subsection (a) have been satisfied. The convicting
8-27 court may not take further action on the application before the
9-1 court of criminal appeals issues an order finding that the
9-2 requirements have been satisfied. If the court of criminal appeals
9-3 determines that the requirements have not been satisfied, the court
9-4 shall issue an order dismissing the application as an abuse of the
9-5 writ under this section.
9-6 (d) For purposes of Subsection (a)(1), a legal basis of a
9-7 claim is unavailable on or before a date described by Subsection
9-8 (a)(1) if the legal basis was not recognized by or could not have
9-9 been reasonably formulated from a final decision of the United
9-10 States Supreme Court, a court of appeals of the United States, or a
9-11 court of appellate jurisdiction of this state on or before that
9-12 date.
9-13 (e) For purposes of Subsection (a)(1), a factual basis of a
9-14 claim is unavailable on or before a date described by Subsection
9-15 (a)(1) if the factual basis was not ascertainable through the
9-16 exercise of reasonable diligence on or before that date.
9-17 Sec. 6. ISSUANCE OF WRIT. (a) If a timely application for
9-18 a writ of habeas corpus is filed in the convicting court, a writ
9-19 of habeas corpus, returnable to the court of criminal appeals,
9-20 shall issue by operation of law.
9-21 (b) If the convicting court receives notice that the
9-22 requirements of Section 5 for consideration of a subsequent or
9-23 untimely application have been met, a writ of habeas corpus,
9-24 returnable to the court of criminal appeals, shall issue by
9-25 operation of law.
9-26 (c) The clerk of the convicting court shall:
9-27 (1) make an appropriate notation that a writ of habeas
10-1 corpus was issued;
10-2 (2) assign to the case a file number that is ancillary
10-3 to that of the conviction being challenged; and
10-4 (3) send a copy of the application by certified mail,
10-5 return receipt requested, to the attorney representing the state in
10-6 that court.
10-7 (d) The clerk of the convicting court shall promptly deliver
10-8 copies of documents submitted to the clerk under this article to
10-9 the applicant and the attorney representing the state.
10-10 Sec. 7. ANSWER TO APPLICATION. (a) The state may file an
10-11 answer to the application for a writ of habeas corpus not later
10-12 than the 30th day after the date the state receives notice of
10-13 issuance of the writ. The state may request from the convicting
10-14 court an extension of time in which to answer the application by
10-15 showing particularized justifying circumstances for the extension.
10-16 (b) Matters alleged in the application not admitted by the
10-17 state are deemed denied.
10-18 Sec. 8. FINDINGS OF FACT WITHOUT EVIDENTIARY HEARING.
10-19 (a) Not later than the 20th day after the last date the state may
10-20 answer the application, the convicting court shall determine
10-21 whether controverted, previously unresolved factual issues material
10-22 to the legality of the applicant's confinement exist and shall
10-23 issue a written order of the determination.
10-24 (b) If the convicting court determines the issues do not
10-25 exist, the parties may file proposed findings of fact and
10-26 conclusions of law for the court to consider on or before a date
10-27 set by the court that is not later than the 30th day after the date
11-1 the order is issued.
11-2 (c) After argument of counsel, if requested by the court,
11-3 the convicting court shall make appropriate written findings of
11-4 fact and conclusions of law not later than the 15th day after the
11-5 date the parties filed proposed findings or not later than the 45th
11-6 day after the date the court's determination is made under
11-7 Subsection (a), whichever occurs first.
11-8 (d) The clerk of the court shall immediately send to the
11-9 court of criminal appeals a copy of the:
11-10 (1) application;
11-11 (2) answer;
11-12 (3) orders entered by the convicting court;
11-13 (4) proposed findings of fact and conclusions of law;
11-14 and
11-15 (5) findings of fact and conclusions of law entered by
11-16 the court.
11-17 (e) Failure of the convicting court to issue findings of
11-18 fact and conclusions of law within the time provided by Subsection
11-19 (c) constitutes a finding that controverted, previously unresolved
11-20 factual issues material to the legality of the applicant's
11-21 confinement do not exist.
11-22 Sec. 9. HEARING. (a) If the convicting court determines
11-23 that controverted, previously unresolved factual issues material to
11-24 the legality of the applicant's confinement exist, the court shall
11-25 enter an order, not later than the 20th day after the last date the
11-26 state may answer the application, designating the issues of fact to
11-27 be resolved and the manner in which the issues shall be resolved.
12-1 To resolve the issues, the court may require affidavits,
12-2 depositions, interrogatories, and evidentiary hearings and may use
12-3 personal recollection.
12-4 (b) The convicting court shall allow the applicant and the
12-5 state not less than 10 days to prepare for an evidentiary hearing.
12-6 The parties may waive the preparation time. If the state or the
12-7 applicant requests that an evidentiary hearing be held within 30
12-8 days after the date the court ordered the hearing, the hearing
12-9 shall be held within that period unless the court states, on the
12-10 record, good cause for delay.
12-11 (c) The presiding judge of the convicting court shall
12-12 conduct a hearing held under this section unless another judge
12-13 presided over the original capital felony trial, in which event
12-14 that judge, if qualified for assignment under Section 74.054 or
12-15 74.055, Government Code, may preside over the hearing.
12-16 (d) The court reporter shall prepare a transcript of the
12-17 hearing not later than the 30th day after the date the hearing ends
12-18 and file the transcript with the clerk of the convicting court.
12-19 (e) The parties may file proposed findings of fact and
12-20 conclusions of law for the convicting court to consider on or
12-21 before a date set by the court that is not later than the 30th day
12-22 after the date the transcript is filed. If the court requests
12-23 argument of counsel, after argument the court shall make written
12-24 findings of fact that are necessary to resolve the previously
12-25 unresolved facts and make conclusions of law not later than the
12-26 15th day after the date the parties file proposed findings or not
12-27 later than the 45th day after the date the court reporter files the
13-1 transcript, whichever occurs first.
13-2 (f) The clerk of the convicting court shall immediately
13-3 transmit to the court of criminal appeals a copy of:
13-4 (1) the application;
13-5 (2) the answers and motions filed;
13-6 (3) the court reporter's transcript;
13-7 (4) the documentary exhibits introduced into evidence;
13-8 (5) the proposed findings of fact and conclusions of
13-9 law;
13-10 (6) the findings of fact and conclusions of law
13-11 entered by the court;
13-12 (7) the sealed materials such as a confidential
13-13 request for investigative expenses; and
13-14 (8) any other matters used by the convicting court in
13-15 resolving issues of fact.
13-16 (g) The clerk of the convicting court shall forward an
13-17 exhibit that is not documentary to the court of criminal appeals on
13-18 request of the court.
13-19 Sec. 10. RULES OF EVIDENCE. The Texas Rules of Criminal
13-20 Evidence apply to a hearing held under this article.
13-21 Sec. 11. REVIEW BY COURT OF CRIMINAL APPEALS. The court of
13-22 criminal appeals shall expeditiously review all applications for a
13-23 writ of habeas corpus submitted under this article. The court may
13-24 set the cause for oral argument and may request further briefing of
13-25 the issues by the applicant or the state. After reviewing the
13-26 record, the court shall enter its judgment remanding the applicant
13-27 to custody or ordering the applicant's release, as the law and
14-1 facts may justify.
14-2 SECTION 2. Chapter 26, Code of Criminal Procedure, is
14-3 amended by adding Article 26.052 to read as follows:
14-4 Art. 26.052. APPOINTMENT OF COUNSEL IN DEATH PENALTY CASE;
14-5 REIMBURSEMENT OF INVESTIGATIVE EXPENSES. (a) Notwithstanding any
14-6 other provision of this chapter, this article establishes
14-7 procedures in death penalty cases for appointment and payment of
14-8 counsel to represent indigent defendants at trial and on direct
14-9 appeal and to apply for writ of certiorari in the United States
14-10 Supreme Court.
14-11 (b) If a county is served by a public defender's office,
14-12 trial counsel and counsel for direct appeal or to apply for a writ
14-13 of certiorari may be appointed as provided by the guidelines
14-14 established by the public defender's office. In all other cases in
14-15 which the death penalty is sought, counsel shall be appointed as
14-16 provided by this article.
14-17 (c) A local selection committee is created in each
14-18 administrative judicial region created under Section 74.042,
14-19 Government Code. The administrative judge of the judicial region
14-20 shall appoint the members of the committee. A committee shall have
14-21 not less than four members, including:
14-22 (1) the administrative judge of the judicial region;
14-23 (2) at least one district judge;
14-24 (3) a representative from the local bar association;
14-25 and
14-26 (4) at least one practitioner who is board certified
14-27 by the State Bar of Texas in criminal law.
15-1 (d) The committee shall adopt standards for the
15-2 qualification of attorneys for appointment to death penalty cases.
15-3 The committee shall prominently post the standards in each district
15-4 clerk's office in the region with a list of attorneys qualified for
15-5 appointment.
15-6 (e) The presiding judge of the district court in which a
15-7 capital felony case is filed shall appoint counsel to represent an
15-8 indigent defendant as soon as practicable after charges are filed,
15-9 if the death penalty is sought in the case. The judge shall
15-10 appoint lead trial counsel from the list of attorneys qualified for
15-11 appointment. The judge shall appoint a second counsel to assist in
15-12 the defense of the defendant, unless reasons against the
15-13 appointment of two counsel are stated in the record.
15-14 (f) Appointed counsel may file with the trial court a
15-15 pretrial ex parte confidential request for advance payment of
15-16 expenses to investigate potential defenses. The request for
15-17 expenses must state:
15-18 (1) the type of investigation to be conducted;
15-19 (2) specific facts that suggest the investigation will
15-20 result in admissible evidence; and
15-21 (3) an itemized list of anticipated expenses for each
15-22 investigation.
15-23 (g) The court shall grant the request for advance payment of
15-24 expenses in whole or in part if the request is reasonable. If the
15-25 court denies in whole or in part the request for expenses, the
15-26 court shall:
15-27 (1) state the reasons for the denial in writing;
16-1 (2) attach the denial to the confidential request; and
16-2 (3) submit the request and denial as a sealed exhibit
16-3 to the record.
16-4 (h) Counsel may incur expenses without prior approval of the
16-5 court. On presentation of a claim for reimbursement, the court
16-6 shall order reimbursement of counsel for the expenses, if the
16-7 expenses are reasonably necessary and reasonably incurred.
16-8 (i) If the indigent defendant is convicted of a capital
16-9 felony and sentenced to death, the defendant is entitled to be
16-10 represented by competent counsel on appeal and to apply for a writ
16-11 of certiorari to the United States Supreme Court.
16-12 (j) As soon as practicable after a death sentence is imposed
16-13 in a capital felony case, the presiding judge of the convicting
16-14 court shall appoint counsel to represent an indigent defendant on
16-15 appeal and to apply for a writ of certiorari, if appropriate.
16-16 (k) The court may not appoint an attorney as counsel on
16-17 appeal if the attorney represented the defendant at trial, unless:
16-18 (1) the defendant and the attorney request the
16-19 appointment on the record; and
16-20 (2) the court finds good cause to make the
16-21 appointment.
16-22 (l) An attorney appointed under this article to represent a
16-23 defendant at trial or on direct appeal is compensated as provided
16-24 by Article 26.05 from county funds.
16-25 SECTION 3. Article 43.14, Code of Criminal Procedure, is
16-26 amended to read as follows:
16-27 Art. 43.14. EXECUTION OF CONVICT. Whenever the sentence of
17-1 death is pronounced against a convict, the sentence shall be
17-2 executed at any time after <before> the hour of 6 p.m. <sunrise>
17-3 on the day set for the execution <not less than thirty days from
17-4 the day the court sets the execution date, as the court may
17-5 adjudge>, by intravenous injection of a substance or substances in
17-6 a lethal quantity sufficient to cause death and until such convict
17-7 is dead, such execution procedure to be determined and supervised
17-8 by the Director of the institutional division of the Texas
17-9 Department of Criminal Justice.
17-10 SECTION 4. Chapter 43, Code of Criminal Procedure, is
17-11 amended by adding Article 43.141 to read as follows:
17-12 Art. 43.141. SCHEDULING OF EXECUTION DATE; WITHDRAWAL;
17-13 MODIFICATION. (a) If an initial application under Article 11.071
17-14 is timely filed, the convicting court may not set an execution date
17-15 before:
17-16 (1) the court of criminal appeals denies relief; or
17-17 (2) if the case is filed and set for submission, the
17-18 court of criminal appeals issues a mandate.
17-19 (b) If an original application is not timely filed under
17-20 Article 11.071 or good cause is not shown for an untimely
17-21 application under Article 11.071, the convicting court may set an
17-22 execution date.
17-23 (c) The first execution date may not be earlier than the
17-24 91st day after the date the convicting court enters the order
17-25 setting the execution date. A subsequent execution date may not be
17-26 earlier than the 31st day after the date the convicting court
17-27 enters the order setting the execution date.
18-1 (d) The convicting court may modify or withdraw the order of
18-2 the court setting a date for execution in a death penalty case if
18-3 the court determines that additional proceedings are necessary on a
18-4 subsequent or untimely application for a writ of habeas corpus
18-5 filed under Article 11.071.
18-6 (e) If the convicting court withdraws the order of the court
18-7 setting the execution date, the court shall recall the warrant of
18-8 execution. If the court modifies the order of the court setting
18-9 the execution date, the court shall recall the previous warrant of
18-10 execution, and the clerk of the court shall issue a new warrant.
18-11 SECTION 5. Article 11.07, Code of Criminal Procedure, is
18-12 amended to read as follows:
18-13 Art. 11.07. <RETURN TO CERTAIN COUNTY;> PROCEDURE AFTER
18-14 CONVICTION WITHOUT DEATH PENALTY
18-15 Sec. 1. This article establishes the procedures for an
18-16 application for writ of habeas corpus in which the applicant seeks
18-17 relief from a felony judgment imposing a penalty other than death.
18-18 Sec. 2. After indictment found in any felony case, other
18-19 than a case in which the death penalty is imposed, and before
18-20 conviction, the writ must be made returnable in the county where
18-21 the offense has been committed.
18-22 Sec. 3 <2>. (a) After final conviction in any felony case,
18-23 the writ must be made returnable to the Court of Criminal Appeals
18-24 of Texas at Austin, Texas.
18-25 (b) Whenever an application <a petition> for writ of habeas
18-26 corpus is filed after final conviction in a felony case, other than
18-27 a case in which the death penalty is imposed, the clerk shall
19-1 transfer or assign it to the court in which the conviction being
19-2 challenged was obtained. When the application <petition> is
19-3 received by that court, a writ of habeas corpus, returnable to the
19-4 Court of Criminal Appeals, shall issue by operation of law. The
19-5 clerk of that court shall make appropriate notation thereof, assign
19-6 to the case a file number (ancillary to that of the conviction
19-7 being challenged), and send a copy of the application <petition> by
19-8 certified mail, return receipt requested, to the attorney
19-9 representing the state in that court, who shall have 15 days in
19-10 which it may answer the application <petition>. Matters alleged in
19-11 the application <petition> not admitted by the state are deemed
19-12 denied.
19-13 (c) Within 20 days of the expiration of the time in which
19-14 the state is allowed to answer, it shall be the duty of the
19-15 convicting court to decide whether there are controverted,
19-16 previously unresolved facts material to the legality of the
19-17 applicant's confinement. Confinement means confinement for any
19-18 offense or any collateral consequence resulting from the conviction
19-19 that is the basis of the instant habeas corpus. If the convicting
19-20 court decides that there are no such issues, the clerk shall
19-21 immediately transmit to the Court of Criminal Appeals a copy of the
19-22 application <petition>, any answers filed, and a certificate
19-23 reciting the date upon which that finding was made. Failure of the
19-24 court to act within the allowed 20 days shall constitute such a
19-25 finding.
19-26 (d) If the convicting court decides that there are
19-27 controverted, previously unresolved facts which are material to the
20-1 legality of the applicant's confinement, it shall enter an order
20-2 within 20 days of the expiration of the time allowed for the state
20-3 to reply, designating the issues of fact to be resolved. To
20-4 resolve those issues the court may order affidavits, depositions,
20-5 interrogatories, and hearings, as well as using personal
20-6 recollection. Also, the convicting court may appoint an attorney
20-7 or a magistrate to hold a hearing and make findings of fact. An
20-8 attorney so appointed shall be compensated as provided in Article
20-9 26.05 of this code. It shall be the duty of the reporter who is
20-10 designated to transcribe a hearing held pursuant to this article to
20-11 prepare a transcript within 15 days of its conclusion. After the
20-12 convicting court makes findings of fact or approves the findings of
20-13 the person designated to make them, the clerk of the convicting
20-14 court shall immediately transmit to the Court of Criminal Appeals,
20-15 under one cover, the application <petition>, any answers filed, any
20-16 motions filed, transcripts of all depositions and hearings, any
20-17 affidavits, and any other matters such as official records used by
20-18 the court in resolving issues of fact.
20-19 Sec. 4. (a) If a subsequent application for writ of habeas
20-20 corpus is filed after final disposition of an initial application
20-21 challenging the same conviction, a court may not consider the
20-22 merits of or grant relief based on the subsequent application
20-23 unless the application contains sufficient specific facts
20-24 establishing that:
20-25 (1) the current claims and issues have not been and
20-26 could not have been presented previously in an original application
20-27 or in a previously considered application filed under this article
21-1 because the factual or legal basis for the claim was unavailable on
21-2 the date the applicant filed the previous application; or
21-3 (2) by a preponderance of the evidence, but for a
21-4 violation of the United States Constitution no rational juror could
21-5 have found the applicant guilty beyond a reasonable doubt.
21-6 (b) For purposes of Subsection (a)(1), a legal basis of a
21-7 claim is unavailable on or before a date described by Subsection
21-8 (a)(1) if the legal basis was not recognized by and could not have
21-9 been reasonably formulated from a final decision of the United
21-10 States Supreme Court, a court of appeals of the United States, or a
21-11 court of appellate jurisdiction of this state on or before that
21-12 date.
21-13 (c) For purposes of Subsection (a)(1), a factual basis of a
21-14 claim is unavailable on or before a date described by Subsection
21-15 (a)(1) if the factual basis was not ascertainable through the
21-16 exercise of reasonable diligence on or before that date.
21-17 Sec. 5 <3>. The Court of Criminal Appeals may deny relief
21-18 upon the findings and conclusions of the hearing judge without
21-19 docketing the cause, or may direct that the cause be docketed and
21-20 heard as though originally presented to said court or as an appeal.
21-21 Upon reviewing the record the court shall enter its judgment
21-22 remanding the applicant <petitioner> to custody or ordering his
21-23 release, as the law and facts may justify. The mandate of the
21-24 court shall issue to the court issuing the writ, as in other
21-25 criminal cases. After conviction the procedure outlined in this
21-26 Act shall be exclusive and any other proceeding shall be void and
21-27 of no force and effect in discharging the prisoner.
22-1 Sec. 6 <4>. Upon any hearing by a district judge by virtue
22-2 of this Act, the attorney for applicant <petitioner>, and the
22-3 state, shall be given at least seven <three> full days' notice
22-4 before such hearing is held.
22-5 Sec. 7 <5>. When the attorney for the state files an answer,
22-6 motion, or other pleading relating to an application <a petition>
22-7 for a writ of habeas corpus or the court issues an order relating
22-8 to an application <a petition> for a writ of habeas corpus, the
22-9 clerk of the court shall mail or deliver to the applicant
22-10 <petitioner> a copy of the answer, motion, pleading, or order.
22-11 SECTION 6. The rulemaking authority granted to the court of
22-12 criminal appeals under Section 22.108, Government Code, is
22-13 withdrawn with respect to rules of appellate procedure relating to
22-14 an application for a writ of habeas corpus, but only to the extent
22-15 the rules conflict with a procedure under Article 11.071, Code of
22-16 Criminal Procedure, as added by this Act, or Article 11.07, Code of
22-17 Criminal Procedure, as amended by this Act.
22-18 SECTION 7. (a) The change in law made by Articles 43.14,
22-19 43.141, and 11.071, Code of Criminal Procedure, as amended or added
22-20 by this Act, applies only to a person under a sentence of death.
22-21 (b) The change in law made by Article 26.052, Code of
22-22 Criminal Procedure, as added by this Act, applies only to a
22-23 defendant charged with an offense committed on or after the
22-24 effective date of this Act or to a defendant for whom the court of
22-25 criminal appeals or a federal court has entered an order granting a
22-26 new trial or a new punishment hearing on or after the effective
22-27 date of this Act. For purposes of this subsection, an offense is
23-1 committed before the effective date of this Act if any element of
23-2 the offense occurs before the effective date. A defendant charged
23-3 with an offense committed before the effective date of this Act or
23-4 a defendant for which an order granting a new trial or new
23-5 punishment hearing is entered before the effective date of this Act
23-6 is covered by the law in effect when the offense was committed or
23-7 the order was entered, and the former law is continued in effect
23-8 for that purpose.
23-9 (c) The change in law made by Article 11.07, Code of
23-10 Criminal Procedure, as amended by this Act, applies only to an
23-11 application for a writ of habeas corpus filed on or after the
23-12 effective date of this Act by a person convicted of a felony, other
23-13 than an application filed by a person under a sentence of death.
23-14 An application filed before the effective date of this Act by a
23-15 person convicted of a felony, other than an application filed by a
23-16 person under a sentence of death, is covered by the law in effect
23-17 when the application was filed, and the former law is continued in
23-18 effect for that purpose.
23-19 SECTION 8. This Act takes effect September 1, 1995.
23-20 SECTION 9. The importance of this legislation and the
23-21 crowded condition of the calendars in both houses create an
23-22 emergency and an imperative public necessity that the
23-23 constitutional rule requiring bills to be read on three several
23-24 days in each house be suspended, and this rule is hereby suspended.