S.B. No. 440
                                        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 appoint and reasonably
   3-22  compensate an attorney for representation in a subsequent or
   3-23  untimely application for a writ of habeas corpus, if the court
   3-24  determines that the requirements of Section 5 allowing
   3-25  consideration of the application 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 shall grant a request for expenses in whole or
   4-24  in part if the request for expenses is timely and reasonable.  If
   4-25  the court denies in whole or in part the request for expenses, the
   4-26  court shall briefly state the reasons for the denial in a written
   4-27  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, which may be presented ex parte, the court
    5-5  shall order reimbursement of counsel for expenses, if the expenses
    5-6  are reasonably necessary and reasonably incurred.  If the court
    5-7  denies in whole or in part the request for expenses, the court
    5-8  shall briefly state the reasons for the denial in a written order
    5-9  provided to the applicant.  The applicant may request
   5-10  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, before the 11th day
    6-6  after the applicable filing date under Subsection (a), conduct a
    6-7  hearing and determine if good cause exists for either the untimely
    6-8  filing of an application or other necessary action.
    6-9        (d)  If the convicting court finds the applicant failed to
   6-10  establish good cause for the delay, the court shall:
   6-11              (1)  make appropriate findings of fact;
   6-12              (2)  enter an order to that effect;
   6-13              (3)  direct the clerk of the court to enter a notation
   6-14  that the petition is untimely; and
   6-15              (4)  send a copy of the petition, findings, and
   6-16  notation to the court of criminal appeals as provided by Section 5.
   6-17        (e)  If the convicting court finds that the applicant has
   6-18  established good cause for the delay, the convicting court shall
   6-19  proceed as if the application was timely filed.
   6-20        (f)  Notwithstanding Subsection (b), (c), or (e), an
   6-21  applicant cannot establish good cause for the untimely filing of an
   6-22  application filed after the 91st day after the applicable filing
   6-23  date under Subsection (a).
   6-24        (g)  A failure to file an application before the 91st day
   6-25  after the filing date applicable to the applicant under Subsection
   6-26  (a) constitutes a waiver of all grounds for relief that were
   6-27  available to the applicant before the last date on which an
    7-1  application could be timely filed, except as provided by Section 5.
    7-2        (h)  If an amended or supplemental application is not filed
    7-3  within the time specified under Subsection (a), the court shall
    7-4  treat the application as a subsequent or untimely application for a
    7-5  writ of habeas corpus under Section 5, unless the applicant:
    7-6              (1)  establishes good cause by showing particularized
    7-7  justifying circumstances for not raising in the original
    7-8  application the facts or claims contained in the amended or
    7-9  supplemental application; and
   7-10              (2)  the amended or supplemental application is filed
   7-11  before the 91st day after the filing date applicable to the
   7-12  applicant under Subsection (a).
   7-13        Sec. 5.  SUBSEQUENT OR UNTIMELY APPLICATION.  (a)  If an
   7-14  original application for a writ of habeas corpus is untimely or if
   7-15  a subsequent application is filed after filing an original
   7-16  application, a court may not consider the merits of or grant relief
   7-17  based on the subsequent or untimely original application unless the
   7-18  application contains sufficient specific facts establishing that:
   7-19              (1)  the current claims and issues have not been and
   7-20  could not have been presented previously in a timely original
   7-21  application or in a previously considered application filed under
   7-22  this article or Article 11.07 because the factual or legal basis
   7-23  for the claim was unavailable:
   7-24                    (A)  on the date the applicant filed the previous
   7-25  application; or
   7-26                    (B)  if the applicant did not file an original
   7-27  application, on or before the last date for the timely filing of an
    8-1  original application;
    8-2              (2)  by a preponderance of the evidence, but for a
    8-3  violation of the United States Constitution no rational juror could
    8-4  have found the applicant guilty beyond a reasonable doubt; or
    8-5              (3)  by clear and convincing evidence, but for a
    8-6  violation of the United States Constitution no rational juror would
    8-7  have answered in the state's favor one or more of the special
    8-8  issues that were submitted to the jury in the applicant's trial
    8-9  under Article 37.071 or 37.0711.
   8-10        (b)  If the convicting court receives a subsequent
   8-11  application or an untimely original application, the clerk of the
   8-12  court shall:
   8-13              (1)  attach a notation that the application is a
   8-14  subsequent or untimely original application;
   8-15              (2)  assign to the case a file number that is ancillary
   8-16  to that of the conviction being challenged; and
   8-17              (3)  immediately send to the court of criminal appeals
   8-18  a copy of:
   8-19                    (A)  the application;
   8-20                    (B)  the notation;
   8-21                    (C)  the order scheduling the applicant's
   8-22  execution, if scheduled; and
   8-23                    (D)  any order the judge of the convicting court
   8-24  directs to be attached to the application.
   8-25        (c)  On receipt of the copies of the documents from the
   8-26  clerk, the court of criminal appeals shall determine whether the
   8-27  requirements of Subsection (a) have been satisfied.  The convicting
    9-1  court may not take further action on the application before the
    9-2  court of criminal appeals issues an order finding that the
    9-3  requirements have been satisfied.  If the court of criminal appeals
    9-4  determines that the requirements have not been satisfied, the court
    9-5  shall issue an order dismissing the application as an abuse of the
    9-6  writ under this section.
    9-7        (d)  For purposes of Subsection (a)(1), a legal basis of a
    9-8  claim is unavailable on or before a date described by Subsection
    9-9  (a)(1) if the legal basis was not recognized by or could not have
   9-10  been  reasonably formulated from a final decision of the United
   9-11  States Supreme Court, a court of appeals of the United States, or a
   9-12  court of appellate jurisdiction of this state on or before that
   9-13  date.
   9-14        (e)  For purposes of Subsection (a)(1), a factual basis of a
   9-15  claim is unavailable on or before a date described by Subsection
   9-16  (a)(1) if the factual basis was not ascertainable through the
   9-17  exercise of reasonable diligence on or before that date.
   9-18        Sec. 6.  ISSUANCE OF WRIT.  (a)  If a timely application for
   9-19  a writ of habeas corpus is  filed in the convicting court, a writ
   9-20  of habeas corpus, returnable to the court of criminal appeals,
   9-21  shall issue by operation of law.
   9-22        (b)  If the convicting court receives notice that the
   9-23  requirements of Section 5 for consideration of a subsequent or
   9-24  untimely application have been met, a writ of habeas corpus,
   9-25  returnable to the court of criminal appeals, shall issue by
   9-26  operation of law.
   9-27        (c)  The clerk of the convicting court shall:
   10-1              (1)  make an appropriate notation that a writ of habeas
   10-2  corpus was issued;
   10-3              (2)  assign to the case a file number that is ancillary
   10-4  to that of the conviction being challenged; and
   10-5              (3)  send a copy of the application by certified mail,
   10-6  return receipt requested, to the attorney representing the state in
   10-7  that court.
   10-8        (d)  The clerk of the convicting court shall promptly deliver
   10-9  copies of documents submitted to the clerk under this article to
  10-10  the applicant and the attorney representing the state.
  10-11        Sec. 7.  ANSWER TO APPLICATION.  (a)  The state may file an
  10-12  answer to the application for a writ of habeas corpus not later
  10-13  than the 30th day after the date the state receives notice of
  10-14  issuance of the writ.  The state shall serve the answer, if any, on
  10-15  counsel for the applicant or, if the applicant is proceeding pro
  10-16  se, on the applicant.  The state may request from the convicting
  10-17  court an extension of time in which to answer the application by
  10-18  showing particularized justifying circumstances for the extension.
  10-19        (b)  Matters alleged in the application not admitted by the
  10-20  state are deemed denied.
  10-21        Sec. 8.  FINDINGS OF FACT WITHOUT EVIDENTIARY HEARING.
  10-22  (a)  Not later than the 20th day after the last date the state may
  10-23  answer the application, the convicting court shall determine
  10-24  whether controverted, previously unresolved factual issues material
  10-25  to the legality of the applicant's confinement exist and shall
  10-26  issue a written order of the determination.
  10-27        (b)  If the convicting court determines the issues do not
   11-1  exist, the parties may file proposed findings of fact and
   11-2  conclusions of law for the court to consider on or before a date
   11-3  set by the court that is not later than the 30th day after the date
   11-4  the order is issued.
   11-5        (c)  After argument of counsel, if requested by the court,
   11-6  the convicting court shall make appropriate written findings of
   11-7  fact and conclusions of law not later than the 15th day after the
   11-8  date the parties filed proposed findings or not later than the 45th
   11-9  day after the date the court's determination is made under
  11-10  Subsection (a), whichever occurs first.
  11-11        (d)  The clerk of the court shall immediately send to:
  11-12              (1)  the court of criminal appeals a copy of the:
  11-13                    (A)  application;
  11-14                    (B)  answer;
  11-15                    (C)  orders entered by the convicting court;
  11-16                    (D)  proposed findings of fact and conclusions of
  11-17  law; and
  11-18                    (E)  findings of fact and conclusions of law
  11-19  entered by the court; and
  11-20              (2)  counsel for the applicant or, if the applicant is
  11-21  proceeding pro se, to the applicant, a copy of:
  11-22                    (A)  orders entered by the convicting court;
  11-23                    (B)  proposed findings of fact and conclusions of
  11-24  law; and
  11-25                    (C)  findings of fact and conclusions of law
  11-26  entered by the court.
  11-27        (e)  Failure of the convicting court to issue findings of
   12-1  fact and conclusions of law within the time provided by Subsection
   12-2  (c) constitutes a finding that controverted, previously unresolved
   12-3  factual issues material to the legality of the applicant's
   12-4  confinement do not exist.
   12-5        Sec. 9.  HEARING.  (a)  If the convicting court determines
   12-6  that controverted, previously unresolved factual issues material to
   12-7  the legality of the applicant's confinement exist, the court shall
   12-8  enter an order, not later than the 20th day after the last date the
   12-9  state may answer the application, designating the issues of fact to
  12-10  be resolved and the manner in which the issues shall be resolved.
  12-11  To resolve the issues, the court may require affidavits,
  12-12  depositions, interrogatories, and evidentiary hearings and may use
  12-13  personal recollection.
  12-14        (b)  The convicting court shall allow the applicant and the
  12-15  state not less than 10 days to prepare for an evidentiary hearing.
  12-16  The parties may waive the preparation time.  If the state or the
  12-17  applicant requests that an evidentiary hearing be held within 30
  12-18  days after the date the court ordered the hearing, the hearing
  12-19  shall be held within that period unless the court states, on the
  12-20  record, good cause for delay.
  12-21        (c)  The presiding judge of the convicting court shall
  12-22  conduct a hearing held under this section unless another judge
  12-23  presided over the original capital felony trial, in which event
  12-24  that judge, if qualified for assignment under Section 74.054 or
  12-25  74.055, Government Code, may preside over the hearing.
  12-26        (d)  The court reporter shall prepare a transcript of the
  12-27  hearing not later than the 30th day after the date the hearing ends
   13-1  and file the transcript with the clerk of the convicting court.
   13-2        (e)  The parties may file proposed findings of fact and
   13-3  conclusions of law for the convicting court to consider on or
   13-4  before a date set by the court that is not later than the 30th day
   13-5  after the date the transcript is filed.  If the court requests
   13-6  argument of counsel, after argument the court shall make written
   13-7  findings of fact that are necessary to resolve the previously
   13-8  unresolved facts and make conclusions of law not later than the
   13-9  15th day after the date the parties file proposed findings or not
  13-10  later than the 45th day after the date the court reporter files the
  13-11  transcript, whichever occurs first.
  13-12        (f)  The clerk of the convicting court shall immediately
  13-13  transmit to:
  13-14              (1)  the court of criminal appeals a copy of:
  13-15                    (A)  the application;
  13-16                    (B)  the answers and motions filed;
  13-17                    (C)  the court reporter's transcript;
  13-18                    (D)  the documentary exhibits introduced into
  13-19  evidence;
  13-20                    (E)  the proposed findings of fact and
  13-21  conclusions of law;
  13-22                    (F)  the findings of fact and conclusions of law
  13-23  entered by the court;
  13-24                    (G)  the sealed materials such as a confidential
  13-25  request for investigative expenses; and
  13-26                    (H)  any other matters used by the convicting
  13-27  court in resolving issues of fact; and
   14-1              (2)  counsel for the applicant or, if the applicant is
   14-2  proceeding pro se, to the applicant, a copy of:
   14-3                    (A)  orders entered by the convicting court;
   14-4                    (B)  proposed findings of fact and conclusions of
   14-5  law; and
   14-6                    (C)  findings of fact and conclusions of law
   14-7  entered by the court.
   14-8        (g)  The clerk of the convicting court shall forward an
   14-9  exhibit that is not documentary to the court of criminal appeals on
  14-10  request of the court.
  14-11        Sec. 10.  RULES OF EVIDENCE.  The Texas Rules of Criminal
  14-12  Evidence apply to a hearing held under this article.
  14-13        Sec. 11.  REVIEW BY COURT OF CRIMINAL APPEALS.  The court of
  14-14  criminal appeals shall expeditiously review all applications for a
  14-15  writ of habeas corpus submitted under this article.  The court may
  14-16  set the cause for oral argument and may request further briefing of
  14-17  the issues by the applicant or the state.  After reviewing the
  14-18  record, the court shall enter its judgment remanding the applicant
  14-19  to custody or ordering the applicant's release, as the law and
  14-20  facts may justify.
  14-21        SECTION 2.  Chapter 26, Code of Criminal Procedure, is
  14-22  amended by adding Article 26.052 to read as follows:
  14-23        Art. 26.052.  APPOINTMENT OF COUNSEL IN DEATH PENALTY CASE;
  14-24  REIMBURSEMENT OF INVESTIGATIVE EXPENSES.  (a)  Notwithstanding any
  14-25  other provision of this chapter, this article establishes
  14-26  procedures in death penalty cases for appointment and payment of
  14-27  counsel to represent indigent defendants at trial and on direct
   15-1  appeal and to apply for writ of certiorari in the United States
   15-2  Supreme Court.
   15-3        (b)  If a county is served by a public defender's office,
   15-4  trial counsel and counsel for direct appeal or to apply for a writ
   15-5  of certiorari may be appointed as provided by the guidelines
   15-6  established by the public defender's office.  In all other cases in
   15-7  which the death penalty is sought, counsel shall be appointed as
   15-8  provided by this article.
   15-9        (c)  A local selection committee is created in each
  15-10  administrative judicial region created under Section 74.042,
  15-11  Government Code.  The administrative judge of the judicial region
  15-12  shall appoint the members of the committee.  A committee shall have
  15-13  not less than four members, including:
  15-14              (1)  the administrative judge of the judicial region;
  15-15              (2)  at least one district judge;
  15-16              (3)  a representative from the local bar association;
  15-17  and
  15-18              (4)  at least one practitioner who is board certified
  15-19  by the State Bar of Texas in criminal law.
  15-20        (d)  The committee shall adopt standards for the
  15-21  qualification of attorneys for appointment to death penalty cases.
  15-22  The committee shall prominently post the standards in each district
  15-23  clerk's office in the region with a list of attorneys qualified for
  15-24  appointment.
  15-25        (e)  The presiding judge of the district court in which a
  15-26  capital felony case is filed shall appoint counsel to represent an
  15-27  indigent defendant as soon as practicable after charges are filed,
   16-1  if the death penalty is sought in the case.  The judge shall
   16-2  appoint lead trial counsel from the list of attorneys qualified for
   16-3  appointment.  The judge shall appoint a second counsel to assist in
   16-4  the defense of the defendant, unless reasons against the
   16-5  appointment of two counsel are stated in the record.
   16-6        (f)  Appointed counsel may file with the trial court a
   16-7  pretrial ex parte confidential request for advance payment of
   16-8  expenses to investigate potential defenses.  The request for
   16-9  expenses must state:
  16-10              (1)  the type of investigation to be conducted;
  16-11              (2)  specific facts that suggest the investigation will
  16-12  result in admissible evidence; and
  16-13              (3)  an itemized list of anticipated expenses for each
  16-14  investigation.
  16-15        (g)  The court shall grant the request for advance payment of
  16-16  expenses in whole or in part if the request is reasonable.  If the
  16-17  court denies in whole or in part the request for expenses, the
  16-18  court shall:
  16-19              (1)  state the reasons for the denial in writing;
  16-20              (2)  attach the denial to the confidential request; and
  16-21              (3)  submit the request and denial as a sealed exhibit
  16-22  to the record.
  16-23        (h)  Counsel may incur expenses without prior approval of the
  16-24  court.  On presentation of a claim for reimbursement, the court
  16-25  shall order reimbursement of counsel for the expenses, if the
  16-26  expenses are reasonably necessary and reasonably incurred.
  16-27        (i)  If the indigent defendant is convicted of a capital
   17-1  felony and sentenced to death, the defendant is entitled to be
   17-2  represented by competent counsel on appeal and to apply for a writ
   17-3  of certiorari to the United States Supreme Court.
   17-4        (j)  As soon as practicable after a death sentence is imposed
   17-5  in a capital felony case, the presiding judge of the convicting
   17-6  court shall appoint counsel to represent an indigent defendant on
   17-7  appeal and to apply for a writ of certiorari, if appropriate.
   17-8        (k)  The court may not appoint an attorney as counsel on
   17-9  appeal if the attorney represented the defendant at trial, unless:
  17-10              (1)  the defendant and the attorney request the
  17-11  appointment on the record; and
  17-12              (2)  the court finds good cause to make the
  17-13  appointment.
  17-14        (l)  An attorney appointed under this article to represent a
  17-15  defendant at trial or on direct appeal is compensated as provided
  17-16  by Article 26.05 from county funds.
  17-17        SECTION 3.  Article 43.14, Code of Criminal Procedure, is
  17-18  amended to read as follows:
  17-19        Art. 43.14.  EXECUTION OF CONVICT.  Whenever the sentence of
  17-20  death is pronounced against a convict, the sentence shall be
  17-21  executed at any time after  <before> the hour of 6 p.m. <sunrise>
  17-22  on the day set for the execution <not less than thirty days from
  17-23  the day the court sets the execution date,  as the court may
  17-24  adjudge>, by intravenous injection of a substance or substances in
  17-25  a lethal quantity sufficient to cause death and until such convict
  17-26  is dead, such execution procedure to be determined and supervised
  17-27  by the Director of the institutional division of the Texas
   18-1  Department of Criminal Justice.
   18-2        SECTION 4.  Chapter 43, Code of Criminal Procedure, is
   18-3  amended by adding Article 43.141 to read as follows:
   18-4        Art. 43.141.  SCHEDULING OF EXECUTION DATE; WITHDRAWAL;
   18-5  MODIFICATION.  (a)  If an initial application under Article 11.071
   18-6  is timely filed, the convicting court may not set an execution date
   18-7  before:
   18-8              (1)  the court of criminal appeals denies relief; or
   18-9              (2)  if the case is filed and set for submission, the
  18-10  court of criminal appeals issues a mandate.
  18-11        (b)  If an original application is not timely filed under
  18-12  Article 11.071 or good cause is not shown for an untimely
  18-13  application under Article 11.071, the convicting court may set an
  18-14  execution date.
  18-15        (c)  The first execution date may not be earlier than the
  18-16  91st day after the date the convicting court enters the order
  18-17  setting the execution date.  A subsequent execution date may not be
  18-18  earlier than the 31st day after the date the convicting court
  18-19  enters the order setting the execution date.
  18-20        (d)  The convicting court may modify or withdraw the order of
  18-21  the court setting a date for execution in a death penalty case if
  18-22  the court determines that additional proceedings are necessary on a
  18-23  subsequent or untimely application for a writ of habeas corpus
  18-24  filed under Article 11.071.
  18-25        (e)  If the convicting court withdraws the order of the court
  18-26  setting the execution date, the court shall recall the warrant of
  18-27  execution.  If the court modifies the order of the court setting
   19-1  the execution date, the court shall recall the previous warrant of
   19-2  execution, and the clerk of the court shall issue a new warrant.
   19-3        SECTION 5.  Article 11.07, Code of Criminal Procedure, is
   19-4  amended to read as follows:
   19-5        Art. 11.07.  <RETURN TO CERTAIN COUNTY;> PROCEDURE AFTER
   19-6  CONVICTION WITHOUT DEATH PENALTY
   19-7        Sec. 1.  This article establishes the procedures for an
   19-8  application for writ of habeas corpus in which the applicant seeks
   19-9  relief from a felony judgment imposing a penalty other than death.
  19-10        Sec. 2.  After indictment found in any felony case, other
  19-11  than a case in which the death penalty is imposed, and before
  19-12  conviction, the writ must be made returnable in the county where
  19-13  the offense has been committed.
  19-14        Sec. 3 <2>.  (a)  After final conviction in any felony case,
  19-15  the writ must be made returnable to the Court of Criminal Appeals
  19-16  of Texas at Austin, Texas.
  19-17        (b)  Whenever an application <a petition> for writ of habeas
  19-18  corpus is filed after final conviction in a felony case, other than
  19-19  a case in which the death penalty is imposed, the clerk shall
  19-20  transfer or assign it to the court in which the conviction being
  19-21  challenged was obtained.  When the application <petition> is
  19-22  received by that court, a writ of habeas corpus, returnable to the
  19-23  Court of Criminal Appeals, shall issue by operation of law.  The
  19-24  clerk of that court shall make appropriate notation thereof, assign
  19-25  to the case a file number (ancillary to that of the conviction
  19-26  being challenged), and send a copy of the application <petition> by
  19-27  certified mail, return receipt requested, to the attorney
   20-1  representing the state in that court, who shall have 15 days in
   20-2  which it may answer the application <petition>.  Matters alleged in
   20-3  the application <petition> not admitted by the state are deemed
   20-4  denied.
   20-5        (c)  Within 20 days of the expiration of the time in which
   20-6  the state is allowed to answer, it shall be the duty of the
   20-7  convicting court to decide whether there are controverted,
   20-8  previously unresolved facts material to the legality of the
   20-9  applicant's confinement.  Confinement means confinement for any
  20-10  offense or any collateral consequence resulting from the conviction
  20-11  that is the basis of the instant habeas corpus.  If the convicting
  20-12  court decides that there are no such issues, the clerk shall
  20-13  immediately transmit to the Court of Criminal Appeals a copy of the
  20-14  application <petition>, any answers filed, and a certificate
  20-15  reciting the date upon which that finding was made.  Failure of the
  20-16  court to act within the allowed 20 days shall constitute such a
  20-17  finding.
  20-18        (d)  If the convicting court decides that there are
  20-19  controverted, previously unresolved facts which are material to the
  20-20  legality of the applicant's confinement, it shall enter an order
  20-21  within 20 days of the expiration of the time allowed for the state
  20-22  to reply, designating the issues of fact to be resolved.  To
  20-23  resolve those issues the court may order affidavits, depositions,
  20-24  interrogatories, and hearings, as well as using personal
  20-25  recollection.  Also, the convicting court may appoint an attorney
  20-26  or a magistrate to hold a hearing and make findings of fact.  An
  20-27  attorney so appointed shall be compensated as provided in Article
   21-1  26.05 of this code.  It shall be the duty of the reporter who is
   21-2  designated to transcribe a hearing held pursuant to this article to
   21-3  prepare a transcript within 15 days of its conclusion.  After the
   21-4  convicting court makes findings of fact or approves the findings of
   21-5  the person designated to make them, the clerk of the convicting
   21-6  court shall immediately transmit to the Court of Criminal Appeals,
   21-7  under one cover, the application <petition>, any answers filed, any
   21-8  motions filed, transcripts of all depositions and hearings, any
   21-9  affidavits, and any other matters such as official records used by
  21-10  the court in resolving issues of fact.
  21-11        Sec. 4.  (a)  If a subsequent application for writ of habeas
  21-12  corpus is filed after final disposition of an initial application
  21-13  challenging the same conviction, a court may not consider the
  21-14  merits of or grant relief based on the subsequent application
  21-15  unless the application contains sufficient specific facts
  21-16  establishing that:
  21-17              (1)  the current claims and issues have not been and
  21-18  could not have been presented previously in an original application
  21-19  or in a previously considered application filed under this article
  21-20  because the factual or legal basis for the claim was unavailable on
  21-21  the date the applicant filed the previous application; or
  21-22              (2)  by a preponderance of the evidence, but for a
  21-23  violation of the United States Constitution no rational juror could
  21-24  have found the applicant guilty beyond a reasonable doubt.
  21-25        (b)  For purposes of Subsection (a)(1), a legal basis of a
  21-26  claim is unavailable on or before a date described by Subsection
  21-27  (a)(1) if the legal basis was not recognized by and could not have
   22-1  been reasonably formulated from a final decision of the United
   22-2  States Supreme Court, a court of appeals of the United States, or a
   22-3  court of appellate jurisdiction of this state on or before that
   22-4  date.
   22-5        (c)  For purposes of Subsection (a)(1), a factual basis of a
   22-6  claim is unavailable on or before a date described by Subsection
   22-7  (a)(1) if the factual basis was not ascertainable through the
   22-8  exercise of reasonable diligence on or before that date.
   22-9        Sec. 5 <3>.  The Court of Criminal Appeals may deny relief
  22-10  upon the findings and conclusions of the hearing judge without
  22-11  docketing the cause, or may direct that the cause be docketed and
  22-12  heard as though originally presented to said court or as an appeal.
  22-13  Upon reviewing the record the court shall enter its judgment
  22-14  remanding the applicant <petitioner> to custody or ordering his
  22-15  release, as the law and facts may justify.  The mandate of the
  22-16  court shall issue to the court issuing the writ, as in other
  22-17  criminal cases.  After conviction the procedure outlined in this
  22-18  Act shall be exclusive and any other proceeding shall be void and
  22-19  of no force and effect in discharging the prisoner.
  22-20        Sec. 6 <4>.  Upon any hearing by a district judge by virtue
  22-21  of this Act, the attorney for applicant <petitioner>, and the
  22-22  state, shall be given at least seven <three> full days' notice
  22-23  before such hearing is held.
  22-24        Sec. 7 <5>.  When the attorney for the state files an answer,
  22-25  motion, or other pleading relating to an application <a petition>
  22-26  for a writ of habeas corpus or the court issues an order relating
  22-27  to an application <a petition> for a writ of habeas corpus, the
   23-1  clerk of the court shall mail or deliver to the applicant
   23-2  <petitioner> a copy of the answer, motion, pleading, or order.
   23-3        SECTION 6.  The rulemaking authority granted to the court of
   23-4  criminal appeals under Section 22.108, Government Code, is
   23-5  withdrawn with respect to rules of appellate procedure relating to
   23-6  an application for a writ of habeas corpus, but only to the extent
   23-7  the rules conflict with a procedure under Article 11.071, Code of
   23-8  Criminal Procedure, as added by this Act, or Article 11.07, Code of
   23-9  Criminal Procedure, as amended by this Act.
  23-10        SECTION 7.  (a)  The change in law made by Articles 43.14,
  23-11  43.141, and 11.071, Code of Criminal Procedure, as amended or added
  23-12  by this Act, applies only to a person under a sentence of death.
  23-13        (b)  The change in law made by Article 26.052, Code of
  23-14  Criminal Procedure, as added by this Act, applies only to a
  23-15  defendant charged with an offense committed on or after the
  23-16  effective date of this Act or to a defendant for whom the court of
  23-17  criminal appeals or a federal court has entered an order granting a
  23-18  new trial or a new punishment hearing on or after the effective
  23-19  date of this Act.  For purposes of this subsection, an offense is
  23-20  committed before the effective date of this Act if any element of
  23-21  the offense occurs before the effective date.  A defendant charged
  23-22  with an offense committed before the effective date of this Act or
  23-23  a defendant for whom an order granting a new trial or new
  23-24  punishment hearing is entered before the effective date of this Act
  23-25  is covered by the law in effect when the offense was committed or
  23-26  the order was entered, and the former law is continued in effect
  23-27  for that purpose.
   24-1        (c)  The change in law made by Article 11.07, Code of
   24-2  Criminal Procedure, as amended by this Act, applies only to an
   24-3  application for a writ of habeas corpus filed on or after the
   24-4  effective date of this Act by a person convicted of a felony, other
   24-5  than an application filed by a person under a sentence of death.
   24-6  An application filed before the effective date of this Act by a
   24-7  person convicted of a felony, other than an application filed by a
   24-8  person under a sentence of death, is covered by the law in effect
   24-9  when the application was filed, and the former law is continued in
  24-10  effect for that purpose.
  24-11        SECTION 8.  The legislature strongly encourages district
  24-12  courts to make use of state-of-the-art technology for the
  24-13  preparation of transcripts in capital felony cases in order to
  24-14  expedite the appeals process in those cases.
  24-15        SECTION 9.  This Act takes effect September 1, 1995, but only
  24-16  if the comptroller certifies on or before that date that at least
  24-17  $2,000,000 is appropriated by the General Appropriations Act, Acts
  24-18  of the 74th Legislature, Regular Session, 1995, for the fiscal
  24-19  biennium ending August 31, 1997, to the court of criminal appeals
  24-20  for the purpose of providing compensation and expenses to counsel
  24-21  representing persons under a sentence of death in habeas corpus
  24-22  proceedings.
  24-23        SECTION 10.  The importance of this legislation and the
  24-24  crowded condition of the calendars in both houses create an
  24-25  emergency and an imperative public necessity that the
  24-26  constitutional rule requiring bills to be read on three several
  24-27  days in each house be suspended, and this rule is hereby suspended.