By Montford S.B. No. 440
Substitute the following for S.B. No. 440:
By Place C.S.S.B. No. 440
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to procedures for applying for a writ of habeas corpus by
1-3 persons convicted of a felony and procedures for the compensation
1-4 and appointment of counsel to represent certain persons charged
1-5 with a capital felony.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. Chapter 11, Code of Criminal Procedure, is
1-8 amended by adding Article 11.071 to read as follows:
1-9 Art. 11.071. PROCEDURE IN DEATH PENALTY CASE
1-10 Sec. 1. APPLICATION TO DEATH PENALTY CASE. Notwithstanding
1-11 any other provision of this chapter, this article establishes the
1-12 procedures for an application for a writ of habeas corpus in which
1-13 the applicant seeks relief from a judgment imposing a penalty of
1-14 death.
1-15 Sec. 2. REPRESENTATION BY COUNSEL. (a) An applicant shall
1-16 be represented by competent counsel unless the applicant has
1-17 elected to proceed pro se and the convicting trial court finds,
1-18 after a hearing on the record, that the applicant's election is
1-19 intelligent and voluntary.
1-20 (b) If a defendant is sentenced to death on or after
1-21 September 1, 1995, the convicting court, immediately after judgment
1-22 is entered under Article 42.01, shall determine if the defendant is
1-23 indigent and, if so, whether the defendant desires appointment of
1-24 counsel for the purpose of a writ of habeas corpus. If a defendant
2-1 is sentenced to death, does not have an initial application for a
2-2 writ of habeas corpus under Article 11.07 pending on September 1,
2-3 1995, and has not been denied relief by the court of criminal
2-4 appeals in an initial habeas corpus proceeding under Article 11.07,
2-5 the convicting court, as soon as practicable, shall determine
2-6 whether the defendant is indigent and, if so, whether the defendant
2-7 desires the appointment of counsel for the purpose of a writ of
2-8 habeas corpus.
2-9 (c) Immediately after the convicting court makes the
2-10 findings required under Subsections (a), (b), and (i), the clerk of
2-11 the convicting court shall forward to the court of criminal
2-12 appeals:
2-13 (1) a copy of the judgment;
2-14 (2) a list containing the name, address, and telephone
2-15 number of each counsel of record for the applicant at trial and on
2-16 direct appeal; and
2-17 (3) if the applicant elects to proceed pro se, any
2-18 findings made by the convicting court on the voluntariness of the
2-19 applicant's election.
2-20 (d) Unless an applicant elects to proceed pro se or is
2-21 represented by retained counsel, the court of criminal appeals
2-22 shall, under rules and standards adopted by the court, appoint
2-23 competent counsel at the earliest practicable time after receipt of
2-24 the documents under Subsection (c).
2-25 (e) The court of criminal appeals may not appoint an
2-26 attorney as counsel under this section if the attorney represented
2-27 the applicant at trial or on direct appeal, unless:
3-1 (1) the applicant and the attorney request the
3-2 appointment on the record; or
3-3 (2) the court finds good cause to make the
3-4 appointment.
3-5 (f) If counsel is the same person appointed as counsel on
3-6 appeal under Article 26.052, the court of criminal appeals shall
3-7 appoint a second counsel to assist in the preparation of the appeal
3-8 and writ of habeas corpus.
3-9 (g) If the court of criminal appeals denies an applicant
3-10 relief under this article, an attorney appointed under this section
3-11 to represent the applicant shall, not later than the 15th day after
3-12 the date the court of criminal appeals denies relief or, if the
3-13 case is filed and set for submission, the 15th day after the date
3-14 the court of criminal appeals issues a mandate on the initial
3-15 application for a writ of habeas corpus under this article, move to
3-16 be appointed as counsel in federal habeas review under 21 U.S.C.
3-17 Section 848(q) or equivalent provision or, if necessary, move for
3-18 the appointment of other counsel under 21 U.S.C. Section 848(q) or
3-19 equivalent provision.
3-20 (h) The court of criminal appeals shall reasonably
3-21 compensate an attorney appointed by the court under this section
3-22 from state funds. The court shall appoint and reasonably
3-23 compensate an attorney for representation in a subsequent or
3-24 untimely application for a writ of habeas corpus, if the court
3-25 determines that the requirements of Section 5 allowing
3-26 consideration of the application have been satisfied.
3-27 (i) If an attorney is representing an inmate under a
4-1 sentence of death for an initial application for a writ of habeas
4-2 corpus under Article 11.07 pending on September 1, 1995, the
4-3 attorney may request that the convicting court determine if the
4-4 defendant is indigent and, if so, whether the defendant desires
4-5 appointment of counsel for the purpose of the writ of habeas
4-6 corpus.
4-7 Sec. 3. INVESTIGATION OF GROUNDS FOR APPLICATION. (a) On
4-8 appointment, counsel shall investigate expeditiously, before and
4-9 after the appellate record is filed in the court of criminal
4-10 appeals, the factual and legal grounds for the filing of an
4-11 application for a writ of habeas corpus.
4-12 (b) Not later than the 30th day before the date the
4-13 application for a writ of habeas corpus is filed with the
4-14 convicting court, counsel may file with the court of criminal
4-15 appeals an ex parte, verified, and confidential request for
4-16 prepayment of expenses, including expert fees, to investigate and
4-17 present potential habeas corpus claims. The request for expenses
4-18 must state:
4-19 (1) the claims of the application to be investigated;
4-20 (2) specific facts that suggest that a claim of
4-21 possible merit may exist; and
4-22 (3) an itemized list of anticipated expenses for each
4-23 claim.
4-24 (c) The court shall grant a request for expenses in whole or
4-25 in part if the request for expenses is timely and reasonable. If
4-26 the court denies in whole or in part the request for expenses, the
4-27 court shall briefly state the reasons for the denial in a written
5-1 order provided to the applicant.
5-2 (d) Counsel may incur expenses for habeas corpus
5-3 investigation, including expenses for experts, without prior
5-4 approval by the court of criminal appeals. On presentation of a
5-5 claim for reimbursement, which may be presented ex parte, the court
5-6 shall order reimbursement of counsel for expenses, if the expenses
5-7 are reasonably necessary and reasonably incurred. If the court
5-8 denies in whole or in part the request for expenses, the court
5-9 shall briefly state the reasons for the denial in a written order
5-10 provided to the applicant. The applicant may request
5-11 reconsideration of the denial for reimbursement.
5-12 (e) Materials submitted to the court under this section are
5-13 a part of the court's record.
5-14 Sec. 4. FILING OF APPLICATION. (a) An application for a
5-15 writ of habeas corpus, returnable to the court of criminal appeals,
5-16 must be filed in the convicting court not later than the 45th day
5-17 after the date the appellee's original brief is filed on direct
5-18 appeal with the court of criminal appeals. If an applicant who was
5-19 convicted before September 1, 1995, does not have an original
5-20 application for a writ of habeas corpus under Article 11.07 pending
5-21 on September 1, 1995, and has not previously filed an application
5-22 under Article 11.07, the applicant's original application must be
5-23 filed not later than the 180th day after the date the court of
5-24 criminal appeals appoints counsel under Section 2 or not later than
5-25 the 45th day after the date the appellee's original brief is due on
5-26 direct appeal, whichever is later.
5-27 (b) An application filed after the filing date that is
6-1 applicable to the applicant under Subsection (a) is presumed
6-2 untimely unless the applicant establishes good cause by showing
6-3 particularized justifying circumstances.
6-4 (c) If counsel has been appointed and a timely application
6-5 is not filed on or before the applicable filing date under
6-6 Subsection (a), the convicting court shall, before the 11th day
6-7 after the applicable filing date under Subsection (a), conduct a
6-8 hearing and determine if good cause exists for either the untimely
6-9 filing of an application or other necessary action.
6-10 (d) If the convicting court finds the applicant failed to
6-11 establish good cause for the delay, the court shall:
6-12 (1) make appropriate findings of fact;
6-13 (2) enter an order to that effect;
6-14 (3) direct the clerk of the court to enter a notation
6-15 that the petition is untimely; and
6-16 (4) send a copy of the petition, findings, and
6-17 notation to the court of criminal appeals as provided by Section 5.
6-18 (e) If the convicting court finds that the applicant has
6-19 established good cause for the delay, the convicting court shall
6-20 proceed as if the application was timely filed.
6-21 (f) Notwithstanding Subsection (b), (c), or (e), an
6-22 applicant cannot establish good cause for the untimely filing of an
6-23 application filed after the 91st day after the applicable filing
6-24 date under Subsection (a).
6-25 (g) A failure to file an application before the 91st day
6-26 after the filing date applicable to the applicant under Subsection
6-27 (a) constitutes a waiver of all grounds for relief that were
7-1 available to the applicant before the last date on which an
7-2 application could be timely filed, except as provided by Section 5.
7-3 (h) If an amended or supplemental application is not filed
7-4 within the time specified under Subsection (a), the court shall
7-5 treat the application as a subsequent or untimely application for a
7-6 writ of habeas corpus under Section 5, unless the applicant:
7-7 (1) establishes good cause by showing particularized
7-8 justifying circumstances for not raising in the original
7-9 application the facts or claims contained in the amended or
7-10 supplemental application; and
7-11 (2) the amended or supplemental application is filed
7-12 before the 91st day after the filing date applicable to the
7-13 applicant under Subsection (a).
7-14 Sec. 5. SUBSEQUENT OR UNTIMELY APPLICATION. (a) If an
7-15 original application for a writ of habeas corpus is untimely or if
7-16 a subsequent application is filed after filing an original
7-17 application, a court may not consider the merits of or grant relief
7-18 based on the subsequent or untimely original application unless the
7-19 application contains sufficient specific facts establishing that:
7-20 (1) the current claims and issues have not been and
7-21 could not have been presented previously in a timely original
7-22 application or in a previously considered application filed under
7-23 this article or Article 11.07 because the factual or legal basis
7-24 for the claim was unavailable:
7-25 (A) on the date the applicant filed the previous
7-26 application; or
7-27 (B) if the applicant did not file an original
8-1 application, on or before the last date for the timely filing of an
8-2 original application;
8-3 (2) by a preponderance of the evidence, but for a
8-4 violation of the United States Constitution no rational juror could
8-5 have found the applicant guilty beyond a reasonable doubt; or
8-6 (3) by clear and convincing evidence, but for a
8-7 violation of the United States Constitution no rational juror would
8-8 have answered in the state's favor one or more of the special
8-9 issues that were submitted to the jury in the applicant's trial
8-10 under Article 37.071 or 37.0711.
8-11 (b) If the convicting court receives a subsequent
8-12 application or an untimely original application, the clerk of the
8-13 court shall:
8-14 (1) attach a notation that the application is a
8-15 subsequent or untimely original application;
8-16 (2) assign to the case a file number that is ancillary
8-17 to that of the conviction being challenged; and
8-18 (3) immediately send to the court of criminal appeals
8-19 a copy of:
8-20 (A) the application;
8-21 (B) the notation;
8-22 (C) the order scheduling the applicant's
8-23 execution, if scheduled; and
8-24 (D) any order the judge of the convicting court
8-25 directs to be attached to the application.
8-26 (c) On receipt of the copies of the documents from the
8-27 clerk, the court of criminal appeals shall determine whether the
9-1 requirements of Subsection (a) have been satisfied. The convicting
9-2 court may not take further action on the application before the
9-3 court of criminal appeals issues an order finding that the
9-4 requirements have been satisfied. If the court of criminal appeals
9-5 determines that the requirements have not been satisfied, the court
9-6 shall issue an order dismissing the application as an abuse of the
9-7 writ under this section.
9-8 (d) For purposes of Subsection (a)(1), a legal basis of a
9-9 claim is unavailable on or before a date described by Subsection
9-10 (a)(1) if the legal basis was not recognized by or could not have
9-11 been reasonably formulated from a final decision of the United
9-12 States Supreme Court, a court of appeals of the United States, or a
9-13 court of appellate jurisdiction of this state on or before that
9-14 date.
9-15 (e) For purposes of Subsection (a)(1), a factual basis of a
9-16 claim is unavailable on or before a date described by Subsection
9-17 (a)(1) if the factual basis was not ascertainable through the
9-18 exercise of reasonable diligence on or before that date.
9-19 Sec. 6. ISSUANCE OF WRIT. (a) If a timely application for
9-20 a writ of habeas corpus is filed in the convicting court, a writ
9-21 of habeas corpus, returnable to the court of criminal appeals,
9-22 shall issue by operation of law.
9-23 (b) If the convicting court receives notice that the
9-24 requirements of Section 5 for consideration of a subsequent or
9-25 untimely application have been met, a writ of habeas corpus,
9-26 returnable to the court of criminal appeals, shall issue by
9-27 operation of law.
10-1 (c) The clerk of the convicting court shall:
10-2 (1) make an appropriate notation that a writ of habeas
10-3 corpus was issued;
10-4 (2) assign to the case a file number that is ancillary
10-5 to that of the conviction being challenged; and
10-6 (3) send a copy of the application by certified mail,
10-7 return receipt requested, to the attorney representing the state in
10-8 that court.
10-9 (d) The clerk of the convicting court shall promptly deliver
10-10 copies of documents submitted to the clerk under this article to
10-11 the applicant and the attorney representing the state.
10-12 Sec. 7. ANSWER TO APPLICATION. (a) The state may file an
10-13 answer to the application for a writ of habeas corpus not later
10-14 than the 30th day after the date the state receives notice of
10-15 issuance of the writ. The state shall serve the answer, if any, on
10-16 counsel for the applicant or, if the applicant is proceeding pro
10-17 se, on the applicant. The state may request from the convicting
10-18 court an extension of time in which to answer the application by
10-19 showing particularized justifying circumstances for the extension.
10-20 (b) Matters alleged in the application not admitted by the
10-21 state are deemed denied.
10-22 Sec. 8. FINDINGS OF FACT WITHOUT EVIDENTIARY HEARING. (a)
10-23 Not later than the 20th day after the last date the state may
10-24 answer the application, the convicting court shall determine
10-25 whether controverted, previously unresolved factual issues material
10-26 to the legality of the applicant's confinement exist and shall
10-27 issue a written order of the determination.
11-1 (b) If the convicting court determines the issues do not
11-2 exist, the parties may file proposed findings of fact and
11-3 conclusions of law for the court to consider on or before a date
11-4 set by the court that is not later than the 30th day after the date
11-5 the order is issued.
11-6 (c) After argument of counsel, if requested by the court,
11-7 the convicting court shall make appropriate written findings of
11-8 fact and conclusions of law not later than the 15th day after the
11-9 date the parties filed proposed findings or not later than the 45th
11-10 day after the date the court's determination is made under
11-11 Subsection (a), whichever occurs first.
11-12 (d) The clerk of the court shall immediately send to:
11-13 (1) the court of criminal appeals a copy of the:
11-14 (A) application;
11-15 (B) answer;
11-16 (C) orders entered by the convicting court;
11-17 (D) proposed findings of fact and conclusions of
11-18 law; and
11-19 (E) findings of fact and conclusions of law
11-20 entered by the court; and
11-21 (2) counsel for the applicant, or if the applicant is
11-22 proceeding pro se, to the applicant, a copy of:
11-23 (A) orders entered by the convicting court;
11-24 (B) proposed findings of fact and conclusions of
11-25 law; and
11-26 (C) findings of fact and conclusions of law
11-27 entered by the court.
12-1 (e) Failure of the convicting court to issue findings of
12-2 fact and conclusions of law within the time provided by Subsection
12-3 (c) constitutes a finding that controverted, previously unresolved
12-4 factual issues material to the legality of the applicant's
12-5 confinement do not exist.
12-6 Sec. 9. HEARING. (a) If the convicting court determines
12-7 that controverted, previously unresolved factual issues material to
12-8 the legality of the applicant's confinement exist, the court shall
12-9 enter an order, not later than the 20th day after the last date the
12-10 state may answer the application, designating the issues of fact to
12-11 be resolved and the manner in which the issues shall be resolved.
12-12 To resolve the issues, the court may require affidavits,
12-13 depositions, interrogatories, and evidentiary hearings and may use
12-14 personal recollection.
12-15 (b) The convicting court shall allow the applicant and the
12-16 state not less than 10 days to prepare for an evidentiary hearing.
12-17 The parties may waive the preparation time. If the state or the
12-18 applicant requests that an evidentiary hearing be held within 30
12-19 days after the date the court ordered the hearing, the hearing
12-20 shall be held within that period unless the court states, on the
12-21 record, good cause for delay.
12-22 (c) The presiding judge of the convicting court shall
12-23 conduct a hearing held under this section unless another judge
12-24 presided over the original capital felony trial, in which event
12-25 that judge, if qualified for assignment under Section 74.054 or
12-26 74.055, Government Code, may preside over the hearing.
12-27 (d) The court reporter shall prepare a transcript of the
13-1 hearing not later than the 30th day after the date the hearing ends
13-2 and file the transcript with the clerk of the convicting court.
13-3 (e) The parties may file proposed findings of fact and
13-4 conclusions of law for the convicting court to consider on or
13-5 before a date set by the court that is not later than the 30th day
13-6 after the date the transcript is filed. If the court requests
13-7 argument of counsel, after argument the court shall make written
13-8 findings of fact that are necessary to resolve the previously
13-9 unresolved facts and make conclusions of law not later than the
13-10 15th day after the date the parties file proposed findings or not
13-11 later than the 45th day after the date the court reporter files the
13-12 transcript, whichever occurs first.
13-13 (f) The clerk of the convicting court shall immediately
13-14 transmit to:
13-15 (1) the court of criminal appeals a copy of:
13-16 (A) the application;
13-17 (B) the answers and motions filed;
13-18 (C) the court reporter's transcript;
13-19 (D) the documentary exhibits introduced into
13-20 evidence;
13-21 (E) the proposed findings of fact and
13-22 conclusions of law;
13-23 (F) the findings of fact and conclusions of law
13-24 entered by the court;
13-25 (G) the sealed materials such as a confidential
13-26 request for investigative expenses; and
13-27 (H) any other matters used by the convicting
14-1 court in resolving issues of fact; and
14-2 (2) counsel for the applicant, or if the applicant is
14-3 proceeding pro se, to the applicant, a copy of:
14-4 (A) orders entered by the convicting court;
14-5 (B) proposed findings of fact and conclusions of
14-6 law; and
14-7 (C) findings of fact and conclusions of law
14-8 entered by the court.
14-9 (g) The clerk of the convicting court shall forward an
14-10 exhibit that is not documentary to the court of criminal appeals on
14-11 request of the court.
14-12 Sec. 10. RULES OF EVIDENCE. The Texas Rules of Criminal
14-13 Evidence apply to a hearing held under this article.
14-14 Sec. 11. REVIEW BY COURT OF CRIMINAL APPEALS. The court of
14-15 criminal appeals shall expeditiously review all applications for a
14-16 writ of habeas corpus submitted under this article. The court may
14-17 set the cause for oral argument and may request further briefing of
14-18 the issues by the applicant or the state. After reviewing the
14-19 record, the court shall enter its judgment remanding the applicant
14-20 to custody or ordering the applicant's release, as the law and
14-21 facts may justify.
14-22 SECTION 2. Chapter 26, Code of Criminal Procedure, is
14-23 amended by adding Article 26.052 to read as follows:
14-24 Art. 26.052. APPOINTMENT OF COUNSEL IN DEATH PENALTY CASE;
14-25 REIMBURSEMENT OF INVESTIGATIVE EXPENSES. (a) Notwithstanding any
14-26 other provision of this chapter, this article establishes
14-27 procedures in death penalty cases for appointment and payment of
15-1 counsel to represent indigent defendants at trial and on direct
15-2 appeal and to apply for writ of certiorari in the United States
15-3 Supreme Court.
15-4 (b) If a county is served by a public defender's office,
15-5 trial counsel and counsel for direct appeal or to apply for a writ
15-6 of certiorari may be appointed as provided by the guidelines
15-7 established by the public defender's office. In all other cases in
15-8 which the death penalty is sought, counsel shall be appointed as
15-9 provided by this article.
15-10 (c) A local selection committee is created in each
15-11 administrative judicial region created under Section 74.042,
15-12 Government Code. The administrative judge of the judicial region
15-13 shall appoint the members of the committee. A committee shall have
15-14 not less than four members, including:
15-15 (1) the administrative judge of the judicial region;
15-16 (2) at least one district judge;
15-17 (3) a representative from the local bar association;
15-18 and
15-19 (4) at least one practitioner who is board certified
15-20 by the State Bar of Texas in criminal law.
15-21 (d) The committee shall adopt standards for the
15-22 qualification of attorneys for appointment to death penalty cases.
15-23 The committee shall prominently post the standards in each district
15-24 clerk's office in the region with a list of attorneys qualified for
15-25 appointment.
15-26 (e) The presiding judge of the district court in which a
15-27 capital felony case is filed shall appoint counsel to represent an
16-1 indigent defendant as soon as practicable after charges are filed,
16-2 if the death penalty is sought in the case. The judge shall
16-3 appoint lead trial counsel from the list of attorneys qualified for
16-4 appointment. The judge shall appoint a second counsel to assist in
16-5 the defense of the defendant, unless reasons against the
16-6 appointment of two counsel are stated in the record.
16-7 (f) Appointed counsel may file with the trial court a
16-8 pretrial ex parte confidential request for advance payment of
16-9 expenses to investigate potential defenses. The request for
16-10 expenses must state:
16-11 (1) the type of investigation to be conducted;
16-12 (2) specific facts that suggest the investigation will
16-13 result in admissible evidence; and
16-14 (3) an itemized list of anticipated expenses for each
16-15 investigation.
16-16 (g) The court shall grant the request for advance payment of
16-17 expenses in whole or in part if the request is reasonable. If the
16-18 court denies in whole or in part the request for expenses, the
16-19 court shall:
16-20 (1) state the reasons for the denial in writing;
16-21 (2) attach the denial to the confidential request; and
16-22 (3) submit the request and denial as a sealed exhibit
16-23 to the record.
16-24 (h) Counsel may incur expenses without prior approval of the
16-25 court. On presentation of a claim for reimbursement, the court
16-26 shall order reimbursement of counsel for the expenses, if the
16-27 expenses are reasonably necessary and reasonably incurred.
17-1 (i) If the indigent defendant is convicted of a capital
17-2 felony and sentenced to death, the defendant is entitled to be
17-3 represented by competent counsel on appeal and to apply for a writ
17-4 of certiorari to the United States Supreme Court.
17-5 (j) As soon as practicable after a death sentence is imposed
17-6 in a capital felony case, the presiding judge of the convicting
17-7 court shall appoint counsel to represent an indigent defendant on
17-8 appeal and to apply for a writ of certiorari, if appropriate.
17-9 (k) The court may not appoint an attorney as counsel on
17-10 appeal if the attorney represented the defendant at trial, unless:
17-11 (1) the defendant and the attorney request the
17-12 appointment on the record; and
17-13 (2) the court finds good cause to make the
17-14 appointment.
17-15 (l) An attorney appointed under this article to represent a
17-16 defendant at trial or on direct appeal is compensated as provided
17-17 by Article 26.05 from county funds.
17-18 SECTION 3. Article 43.14, Code of Criminal Procedure, is
17-19 amended to read as follows:
17-20 Art. 43.14. EXECUTION OF CONVICT. Whenever the sentence of
17-21 death is pronounced against a convict, the sentence shall be
17-22 executed at any time after <before> the hour of 6 p.m. <sunrise> on
17-23 the day set for the execution <not less than thirty days from the
17-24 day the court sets the execution date, as the court may adjudge>,
17-25 by intravenous injection of a substance or substances in a lethal
17-26 quantity sufficient to cause death and until such convict is dead,
17-27 such execution procedure to be determined and supervised by the
18-1 Director of the institutional division of the Texas Department of
18-2 Criminal Justice.
18-3 SECTION 4. Chapter 43, Code of Criminal Procedure, is
18-4 amended by adding Article 43.141 to read as follows:
18-5 Art. 43.141. SCHEDULING OF EXECUTION DATE; WITHDRAWAL;
18-6 MODIFICATION. (a) If an initial application under Article 11.071
18-7 is timely filed, the convicting court may not set an execution date
18-8 before:
18-9 (1) the court of criminal appeals denies relief; or
18-10 (2) if the case is filed and set for submission, the
18-11 court of criminal appeals issues a mandate.
18-12 (b) If an original application is not timely filed under
18-13 Article 11.071 or good cause is not shown for an untimely
18-14 application under Article 11.071, the convicting court may set an
18-15 execution date.
18-16 (c) The first execution date may not be earlier than the
18-17 91st day after the date the convicting court enters the order
18-18 setting the execution date. A subsequent execution date may not be
18-19 earlier than the 31st day after the date the convicting court
18-20 enters the order setting the execution date.
18-21 (d) The convicting court may modify or withdraw the order of
18-22 the court setting a date for execution in a death penalty case if
18-23 the court determines that additional proceedings are necessary on a
18-24 subsequent or untimely application for a writ of habeas corpus
18-25 filed under Article 11.071.
18-26 (e) If the convicting court withdraws the order of the court
18-27 setting the execution date, the court shall recall the warrant of
19-1 execution. If the court modifies the order of the court setting
19-2 the execution date, the court shall recall the previous warrant of
19-3 execution, and the clerk of the court shall issue a new warrant.
19-4 SECTION 5. Article 11.07, Code of Criminal Procedure, is
19-5 amended to read as follows:
19-6 Art. 11.07. <RETURN TO CERTAIN COUNTY;> PROCEDURE AFTER
19-7 CONVICTION WITHOUT DEATH PENALTY
19-8 Sec. 1. This article establishes the procedures for an
19-9 application for writ of habeas corpus in which the applicant seeks
19-10 relief from a felony judgment imposing a penalty other than death.
19-11 Sec. 2. After indictment found in any felony case, other
19-12 than a case in which the death penalty is imposed, and before
19-13 conviction, the writ must be made returnable in the county where
19-14 the offense has been committed.
19-15 Sec. 3 <2>. (a) After final conviction in any felony case,
19-16 the writ must be made returnable to the Court of Criminal Appeals
19-17 of Texas at Austin, Texas.
19-18 (b) Whenever an application <a petition> for writ of habeas
19-19 corpus is filed after final conviction in a felony case, other than
19-20 a case in which the death penalty is imposed, the clerk shall
19-21 transfer or assign it to the court in which the conviction being
19-22 challenged was obtained. When the application <petition> is
19-23 received by that court, a writ of habeas corpus, returnable to the
19-24 Court of Criminal Appeals, shall issue by operation of law. The
19-25 clerk of that court shall make appropriate notation thereof, assign
19-26 to the case a file number (ancillary to that of the conviction
19-27 being challenged), and send a copy of the application <petition> by
20-1 certified mail, return receipt requested, to the attorney
20-2 representing the state in that court, who shall have 15 days in
20-3 which it may answer the application <petition>. Matters alleged in
20-4 the application <petition> not admitted by the state are deemed
20-5 denied.
20-6 (c) Within 20 days of the expiration of the time in which
20-7 the state is allowed to answer, it shall be the duty of the
20-8 convicting court to decide whether there are controverted,
20-9 previously unresolved facts material to the legality of the
20-10 applicant's confinement. Confinement means confinement for any
20-11 offense or any collateral consequence resulting from the conviction
20-12 that is the basis of the instant habeas corpus. If the convicting
20-13 court decides that there are no such issues, the clerk shall
20-14 immediately transmit to the Court of Criminal Appeals a copy of the
20-15 application <petition>, any answers filed, and a certificate
20-16 reciting the date upon which that finding was made. Failure of the
20-17 court to act within the allowed 20 days shall constitute such a
20-18 finding.
20-19 (d) If the convicting court decides that there are
20-20 controverted, previously unresolved facts which are material to the
20-21 legality of the applicant's confinement, it shall enter an order
20-22 within 20 days of the expiration of the time allowed for the state
20-23 to reply, designating the issues of fact to be resolved. To
20-24 resolve those issues the court may order affidavits, depositions,
20-25 interrogatories, and hearings, as well as using personal
20-26 recollection. Also, the convicting court may appoint an attorney
20-27 or a magistrate to hold a hearing and make findings of fact. An
21-1 attorney so appointed shall be compensated as provided in Article
21-2 26.05 of this code. It shall be the duty of the reporter who is
21-3 designated to transcribe a hearing held pursuant to this article to
21-4 prepare a transcript within 15 days of its conclusion. After the
21-5 convicting court makes findings of fact or approves the findings of
21-6 the person designated to make them, the clerk of the convicting
21-7 court shall immediately transmit to the Court of Criminal Appeals,
21-8 under one cover, the application <petition>, any answers filed, any
21-9 motions filed, transcripts of all depositions and hearings, any
21-10 affidavits, and any other matters such as official records used by
21-11 the court in resolving issues of fact.
21-12 Sec. 4. (a) If a subsequent application for writ of habeas
21-13 corpus is filed after final disposition of an initial application
21-14 challenging the same conviction, a court may not consider the
21-15 merits of or grant relief based on the subsequent application
21-16 unless the application contains sufficient specific facts
21-17 establishing that:
21-18 (1) the current claims and issues have not been and
21-19 could not have been presented previously in an original application
21-20 or in a previously considered application filed under this article
21-21 because the factual or legal basis for the claim was unavailable on
21-22 the date the applicant filed the previous application; or
21-23 (2) by a preponderance of the evidence, but for a
21-24 violation of the United States Constitution no rational juror could
21-25 have found the applicant guilty beyond a reasonable doubt.
21-26 (b) For purposes of Subsection (a)(1), a legal basis of a
21-27 claim is unavailable on or before a date described by Subsection
22-1 (a)(1) if the legal basis was not recognized by and could not have
22-2 been reasonably formulated from a final decision of the United
22-3 States Supreme Court, a court of appeals of the United States, or a
22-4 court of appellate jurisdiction of this state on or before that
22-5 date.
22-6 (c) For purposes of Subsection (a)(1), a factual basis of a
22-7 claim is unavailable on or before a date described by Subsection
22-8 (a)(1) if the factual basis was not ascertainable through the
22-9 exercise of reasonable diligence on or before that date.
22-10 Sec. 5 <3>. The Court of Criminal Appeals may deny relief
22-11 upon the findings and conclusions of the hearing judge without
22-12 docketing the cause, or may direct that the cause be docketed and
22-13 heard as though originally presented to said court or as an appeal.
22-14 Upon reviewing the record the court shall enter its judgment
22-15 remanding the applicant <petitioner> to custody or ordering his
22-16 release, as the law and facts may justify. The mandate of the
22-17 court shall issue to the court issuing the writ, as in other
22-18 criminal cases. After conviction the procedure outlined in this
22-19 Act shall be exclusive and any other proceeding shall be void and
22-20 of no force and effect in discharging the prisoner.
22-21 Sec. 6 <4>. Upon any hearing by a district judge by virtue
22-22 of this Act, the attorney for applicant <petitioner>, and the
22-23 state, shall be given at least seven <three> full days' notice
22-24 before such hearing is held.
22-25 Sec. 7 <5>. When the attorney for the state files an answer,
22-26 motion, or other pleading relating to an application <a petition>
22-27 for a writ of habeas corpus or the court issues an order relating
23-1 to an application <a petition> for a writ of habeas corpus, the
23-2 clerk of the court shall mail or deliver to the applicant
23-3 <petitioner> a copy of the answer, motion, pleading, or order.
23-4 SECTION 6. The rulemaking authority granted to the court of
23-5 criminal appeals under Section 22.108, Government Code, is
23-6 withdrawn with respect to rules of appellate procedure relating to
23-7 an application for a writ of habeas corpus, but only to the extent
23-8 the rules conflict with a procedure under Article 11.071, Code of
23-9 Criminal Procedure, as added by this Act, or Article 11.07, Code of
23-10 Criminal Procedure, as amended by this Act.
23-11 SECTION 7. (a) The change in law made by Articles 43.14,
23-12 43.141, and 11.071, Code of Criminal Procedure, as amended or added
23-13 by this Act, applies only to a person under a sentence of death.
23-14 (b) The change in law made by Article 26.052, Code of
23-15 Criminal Procedure, as added by this Act, applies only to a
23-16 defendant charged with an offense committed on or after the
23-17 effective date of this Act or to a defendant for whom the court of
23-18 criminal appeals or a federal court has entered an order granting a
23-19 new trial or a new punishment hearing on or after the effective
23-20 date of this Act. For purposes of this subsection, an offense is
23-21 committed before the effective date of this Act if any element of
23-22 the offense occurs before the effective date. A defendant charged
23-23 with an offense committed before the effective date of this Act or
23-24 a defendant for whom an order granting a new trial or new
23-25 punishment hearing is entered before the effective date of this Act
23-26 is covered by the law in effect when the offense was committed or
23-27 the order was entered, and the former law is continued in effect
24-1 for that purpose.
24-2 (c) The change in law made by Article 11.07, Code of
24-3 Criminal Procedure, as amended by this Act, applies only to an
24-4 application for a writ of habeas corpus filed on or after the
24-5 effective date of this Act by a person convicted of a felony, other
24-6 than an application filed by a person under a sentence of death.
24-7 An application filed before the effective date of this Act by a
24-8 person convicted of a felony, other than an application filed by a
24-9 person under a sentence of death, is covered by the law in effect
24-10 when the application was filed, and the former law is continued in
24-11 effect for that purpose.
24-12 SECTION 8. The Legislature strongly encourages district
24-13 courts to make use of state of the art technology for the
24-14 preparation of transcripts in capital felony cases in order to
24-15 expedite the appeals process in those cases.
24-16 SECTION 9. This Act takes effect September 1, 1995, but only
24-17 if the comptroller certifies on or before that date that at least
24-18 $5,000,000 is appropriated by the General Appropriations Act, Acts
24-19 of the 74th Legislature, Regular Session, 1995, for the fiscal
24-20 biennium ending August 31, 1997, to the court of criminal appeals
24-21 for the purpose of providing compensation and expenses to counsel
24-22 representing persons under a sentence of death in habeas corpus
24-23 proceedings.
24-24 SECTION 10. The importance of this legislation and the
24-25 crowded condition of the calendars in both houses create an
24-26 emergency and an imperative public necessity that the
24-27 constitutional rule requiring bills to be read on three several
25-1 days in each house be suspended, and this rule is hereby suspended.