By Montford                                            S.B. No. 440
       74R2588 NSC-F
                                 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 counsel unless the applicant has elected to
   1-17  proceed pro se and the convicting trial court finds, after a
   1-18  hearing on the record, that the applicant's election is intelligent
   1-19  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 and does not have an application for a writ
    2-2  of habeas corpus under Article 11.07 pending on September 1, 1995,
    2-3  the convicting court, as soon as practicable, shall determine
    2-4  whether the defendant is indigent and, if so, whether the defendant
    2-5  desires the appointment of counsel for the purpose of a writ of
    2-6  habeas corpus.
    2-7        (c)  Immediately after the convicting court makes the
    2-8  findings required under Subsection (b), the clerk of the convicting
    2-9  court shall forward to the court of criminal appeals:
   2-10              (1)  a copy of the judgment;
   2-11              (2)  a list containing the name, address, and telephone
   2-12  number of each counsel of record for the applicant at trial and on
   2-13  direct appeal; and
   2-14              (3)  if the applicant elects to proceed pro se, any
   2-15  findings made by the convicting court on the voluntariness of the
   2-16  applicant's election.
   2-17        (d)  Unless an applicant elects to proceed pro se or is
   2-18  represented by retained counsel, the court of criminal appeals
   2-19  shall, under rules adopted by the court, appoint counsel at the
   2-20  earliest practicable time after receipt of the documents under
   2-21  Subsection (b).
   2-22        (e)  The court of criminal appeals may not appoint an
   2-23  attorney as counsel under this section if the attorney represented
   2-24  the applicant at trial or on direct appeal, unless:
   2-25              (1)  the applicant and the attorney request the
   2-26  appointment on the record; or
   2-27              (2)  the court finds good cause to make the
    3-1  appointment.
    3-2        (f)  If counsel is the same person appointed as counsel on
    3-3  appeal under Article 26.052, the court of criminal appeals shall
    3-4  appoint a second counsel to assist in the preparation of the appeal
    3-5  and writ of habeas corpus.
    3-6        (g)  If the court of criminal appeals denies an applicant
    3-7  relief under this article, an attorney appointed under this section
    3-8  to represent the applicant shall, not later than the 15th day after
    3-9  the date the court of criminal appeals denies relief or, if the
   3-10  case is filed and set for submission, the court of criminal appeals
   3-11  issues a mandate on the initial application for a writ of habeas
   3-12  corpus under this article, move to be appointed as counsel in
   3-13  federal habeas review under 21 U.S.C. Section 848(q) or, if
   3-14  necessary, move for the appointment of other counsel under 21
   3-15  U.S.C. Section 848(q).
   3-16        (h)  The court of criminal appeals shall compensate an
   3-17  attorney appointed by the court under this section from state
   3-18  funds.  The court shall compensate an attorney for representation
   3-19  in a subsequent or untimely application for a writ of habeas
   3-20  corpus, if the court determines that the requirements of Section 6
   3-21  allowing consideration of the application have been satisfied.
   3-22        (i)  If an attorney is representing an inmate under a
   3-23  sentence of death for an application for a writ of habeas corpus
   3-24  under Article 11.07 pending on September 1, 1995, the attorney may
   3-25  apply to the court of criminal appeals for appointment and
   3-26  compensation under this section.
   3-27        Sec. 3.  LAW APPLICABLE.  (a)  Except as provided by
    4-1  Subsection (b), a court may not announce or apply a new rule to
    4-2  grant habeas corpus relief under this article.
    4-3        (b)  A court considering a claim under this article may
    4-4  announce or apply a new rule if the rule:
    4-5              (1)  places a class of specific conduct beyond the
    4-6  power of the legislature to proscribe;
    4-7              (2)  prohibits the imposition of a certain type of
    4-8  punishment for a class of persons because of the persons' status or
    4-9  offense; or
   4-10              (3)  is a watershed rule of criminal procedure
   4-11  implicating the fundamental fairness and accuracy of the criminal
   4-12  proceedings.
   4-13        (c)  In this section, a "new rule" means a rule not dictated
   4-14  by precedent of the court of criminal appeals or United States
   4-15  Supreme Court at the time the applicant's conviction became final.
   4-16  For purposes of this subsection, a conviction is final on:
   4-17              (1)  the affirmation by the United States Supreme Court
   4-18  of the applicant's conviction or sentence;
   4-19              (2)  the denial by the United States Supreme Court of
   4-20  the applicant's petition for writ of certiorari; or
   4-21              (3)  if a petition for a writ of certiorari is not
   4-22  filed, the expiration of the time for filing a timely petition for
   4-23  a writ of certiorari in the United States Supreme Court.
   4-24        Sec. 4.  INVESTIGATION OF GROUNDS FOR APPLICATION.  (a)  On
   4-25  appointment, counsel shall investigate expeditiously, before and
   4-26  after the appellate record is filed in the court of criminal
   4-27  appeals, the factual and legal grounds for the filing of an
    5-1  application for a writ of habeas corpus.
    5-2        (b)  Not later than the 30th day before the date the
    5-3  application for a writ of habeas corpus is filed with the court of
    5-4  criminal appeals, counsel may file with the court of criminal
    5-5  appeals an ex parte confidential request for prepayment of expenses
    5-6  to investigate potential habeas corpus issues.  The request for
    5-7  expenses must state:
    5-8              (1)  the claims of the application to be investigated;
    5-9              (2)  specific facts that suggest that a claim of
   5-10  possible merit may exist; and
   5-11              (3)  an itemized list of anticipated expenses for each
   5-12  claim.
   5-13        (c)  The court shall grant a request for expenses in whole or
   5-14  in part if the request for expenses is timely and reasonable.
   5-15        (d)  Counsel may incur expenses for habeas corpus
   5-16  investigation without prior approval by the court of criminal
   5-17  appeals.  On presentation of a claim for reimbursement, the court
   5-18  shall order reimbursement of counsel for expenses, if the expenses
   5-19  are reasonably necessary and reasonably incurred.
   5-20        Sec. 5.  FILING OF APPLICATION.  (a)  An application for a
   5-21  writ of habeas corpus, returnable to the court of criminal appeals,
   5-22  must be filed in the convicting court not later than the 90th day
   5-23  after the date the appellant's original brief is filed on direct
   5-24  appeal with the court of criminal appeals.  If an applicant does
   5-25  not have an application  for a writ of habeas corpus under Article
   5-26  11.07 pending on September 1, 1995, the applicant's application
   5-27  must be filed not later than the 180th day after the date the court
    6-1  of criminal appeals appoints counsel under Section 2 or not later
    6-2  than the 90th day after the date the appellant's original brief is
    6-3  due on direct appeal, whichever is later.
    6-4        (b)  An application filed after the filing date under
    6-5  Subsection (a) is presumed untimely unless the applicant
    6-6  establishes good cause by showing particularized justifying
    6-7  circumstances.  If the convicting court finds the applicant failed
    6-8  to establish good cause for the delay, the court shall:
    6-9              (1)  make appropriate findings of fact;
   6-10              (2)  enter an order to that effect;
   6-11              (3)  direct the clerk of the court to enter a notation
   6-12  that the petition is untimely; and
   6-13              (4)  send a copy of the petition, findings, and
   6-14  notation to the court of criminal appeals as provided by Section 6.
   6-15  If the convicting court finds that the applicant has established
   6-16  good cause for the delay, the convicting court shall proceed as if
   6-17  the application was timely filed.
   6-18        (c)  A failure to file a timely petition constitutes a waiver
   6-19  of all grounds for relief that were available to the applicant
   6-20  before the last date on which an application could be timely filed,
   6-21  except as provided by Section 6.
   6-22        (d)  If an amended or supplemental application is not filed
   6-23  within the time specified under Subsection (a), the court shall
   6-24  treat the application as a subsequent or untimely application for a
   6-25  writ of habeas corpus under Section 6.
   6-26        Sec. 6.  SUBSEQUENT OR UNTIMELY APPLICATION.  (a)  If an
   6-27  original application for a writ of habeas corpus is untimely or if
    7-1  a subsequent application is filed after filing an original
    7-2  application, a court may not consider the merits of or grant relief
    7-3  based on the subsequent or untimely original application unless the
    7-4  application contains sufficient specific facts establishing that:
    7-5              (1)  the current claims and issues have not been and
    7-6  could not have been presented previously in a timely original
    7-7  application or in a previously considered application filed under
    7-8  this article or Article 11.07 because the factual or legal basis
    7-9  for the claim was unavailable:
   7-10                    (A)  on the date the applicant filed the previous
   7-11  application; or
   7-12                    (B)  if the applicant did not file an original
   7-13  application, on or before the last date for the timely filing of an
   7-14  original application;
   7-15              (2)  by clear and convincing evidence, a probability
   7-16  exists that the applicant is factually innocent of the capital
   7-17  felony for which the applicant was convicted because of a violation
   7-18  of the United States Constitution or the laws of this state; or
   7-19              (3)  by clear and convincing evidence and in the
   7-20  absence of a violation of the United States Constitution or the
   7-21  laws of this state, no rational jury would have answered in the
   7-22  state's favor one or more of the special issues that were submitted
   7-23  to the jury in the applicant's trial under Article 37.071 or
   7-24  37.0711.
   7-25        (b)  If the convicting court receives a subsequent
   7-26  application or an untimely original application, the clerk of the
   7-27  court shall:
    8-1              (1)  attach a notation that the application is a
    8-2  subsequent or untimely original application;
    8-3              (2)  assign to the case a file number that is ancillary
    8-4  to that of the conviction being challenged; and
    8-5              (3)  immediately send to the court of criminal appeals
    8-6  a copy of:
    8-7                    (A)  the application;
    8-8                    (B)  the notation;
    8-9                    (C)  the order scheduling the applicant's
   8-10  execution, if scheduled; and
   8-11                    (D)  any order the judge of the convicting court
   8-12  directs to be attached to the application.
   8-13        (c)  On receipt of the copies of the documents from the
   8-14  clerk, the court of criminal appeals shall determine whether the
   8-15  requirements of Subsection (a) have been satisfied.  The convicting
   8-16  court may not take further action on the application before the
   8-17  court of criminal appeals issues an order finding the requirements
   8-18  have been satisfied.  If the court of criminal appeals determines
   8-19  that the requirements have not been satisfied, the court shall
   8-20  issue an order dismissing the application as an abuse of the writ
   8-21  under this section.
   8-22        (d)  For purposes of Subsection (a)(1), a legal basis of a
   8-23  claim is unavailable on or before a date described by Subsection
   8-24  (a)(1) if the legal basis:
   8-25              (1)  was not recognized by or could not have been
   8-26  reasonably formulated from a final decision of the United States
   8-27  Supreme Court, a court of appeals of the United States, or a court
    9-1  of appellate jurisdiction of this state on or before that date; and
    9-2              (2)  is  a new rule of constitutional law that was
    9-3  given retroactive effect by the United States Supreme Court and had
    9-4  not been announced by the court on or before that date.
    9-5        (e)  For purposes of Subsection (a)(1), a factual basis of a
    9-6  claim is unavailable on or before a date described by Subsection
    9-7  (a)(1) if the factual basis was not ascertainable through the
    9-8  exercise of reasonable diligence on or before that date.
    9-9        Sec. 7.  ISSUANCE OF WRIT.  (a)  If a timely application for
   9-10  a writ of habeas corpus is  filed in the convicting court, a writ
   9-11  of habeas corpus, returnable to the court of criminal appeals,
   9-12  shall issue by operation of law.
   9-13        (b)  If the convicting court receives notice that the
   9-14  requirements of Section 6 for consideration of a subsequent or
   9-15  untimely application have been met, a writ of habeas corpus,
   9-16  returnable to the court of criminal appeals, shall issue by
   9-17  operation of law.
   9-18        (c)  The clerk of the convicting court shall:
   9-19              (1)  make an appropriate notation that a writ of habeas
   9-20  corpus was issued;
   9-21              (2)  assign to the case a file number that is ancillary
   9-22  to that of the conviction being challenged; and
   9-23              (3)  send a copy of the application by certified mail,
   9-24  return receipt requested, to the attorney representing the state in
   9-25  that court.
   9-26        (d)  The clerk of the convicting court shall promptly deliver
   9-27  copies of documents submitted to the clerk under this article to
   10-1  the applicant and the attorney representing the state.
   10-2        Sec. 8.  ANSWER TO APPLICATION.  (a)  The state may file an
   10-3  answer to the application for a writ of habeas corpus not later
   10-4  than the 30th day after the date the state receives notice of
   10-5  issuance of the writ.  The state may request from the convicting
   10-6  court an extension of time in which to answer the application by
   10-7  showing particularized justifying circumstances for the extension.
   10-8        (b)  Matters alleged in the application not admitted by the
   10-9  state are deemed denied.
  10-10        Sec. 9.  FINDINGS OF FACT WITHOUT EVIDENTIARY HEARING.  (a)
  10-11  Not later than the 20th day after the last date the state may
  10-12  answer the application, the convicting court shall determine
  10-13  whether controverted, previously unresolved factual issues material
  10-14  to the legality of the applicant's confinement exist and shall
  10-15  issue a written order of the determination.
  10-16        (b)  If the convicting court determines the issues do not
  10-17  exist, the parties may file proposed findings of fact and
  10-18  conclusions of law for the court to consider on or before a date
  10-19  set by the court that is not later than the 30th day after the date
  10-20  the order is issued.
  10-21        (c)  After argument of counsel, if requested by the court,
  10-22  the convicting court shall make appropriate written findings of
  10-23  fact and conclusions of law not later than the 15th day after the
  10-24  date the parties filed proposed findings or not later than the 45th
  10-25  day after the date the court's determination is made under
  10-26  Subsection (a), whichever occurs first.
  10-27        (d)  The clerk of the court shall immediately send to the
   11-1  court of criminal appeals a copy of the:
   11-2              (1)  application;
   11-3              (2)  answer;
   11-4              (3)  orders entered by the convicting court;
   11-5              (4)  proposed findings of fact and conclusions of law;
   11-6  and
   11-7              (5)  findings of fact and conclusions of law entered by
   11-8  the court.
   11-9        (e)  Failure of the convicting court to issue findings of
  11-10  fact and conclusions of law within the time provided by Subsection
  11-11  (c) constitutes a finding that controverted, previously unresolved
  11-12  factual issues material to the legality of the applicant's
  11-13  confinement do not exist.
  11-14        Sec. 10.  HEARING.  (a)  If the convicting court determines
  11-15  that controverted, previously unresolved factual issues material to
  11-16  the legality of the applicant's confinement exist, the court shall
  11-17  enter an order, not later than the 20th day after the last date the
  11-18  state may answer the application, designating the issues of fact to
  11-19  be resolved and the manner in which the issues shall be resolved.
  11-20  The court may require affidavits, depositions, interrogatories, and
  11-21  evidentiary hearings as appropriate.
  11-22        (b)  The convicting court shall allow the applicant and the
  11-23  state not less than 10 days to prepare for an evidentiary hearing.
  11-24  The parties may waive the preparation time.  If the state or the
  11-25  applicant requests that an evidentiary hearing be held within 30
  11-26  days after the date the court ordered the hearing, the hearing
  11-27  shall be held within that period unless the court states, on the
   12-1  record, good cause for delay.
   12-2        (c)  The presiding judge of the convicting court shall
   12-3  conduct a hearing held under this section unless another judge
   12-4  presided over the original capital felony trial, in which event
   12-5  that judge, if qualified for assignment under Section 74.054 or
   12-6  74.055, Government Code, may preside over the hearing.
   12-7        (d)  The court reporter shall prepare a transcript of the
   12-8  hearing not later than the 30th day after the date the hearing ends
   12-9  and file the transcript with the clerk of the convicting court.
  12-10        (e)  The parties may file proposed findings of fact and
  12-11  conclusions of law for the convicting court to consider on or
  12-12  before a date set by the court that is not later than the 30th day
  12-13  after the date the transcript is filed.  If the court requests
  12-14  argument of counsel, after argument the court shall make written
  12-15  findings of fact that are necessary to resolve the previously
  12-16  unresolved facts and make conclusions of law not later than the
  12-17  15th day after the date the parties file proposed findings or not
  12-18  later than the 45th day after the date the court reporter files the
  12-19  transcript, whichever occurs first.
  12-20        (f)  The clerk of the convicting court shall immediately
  12-21  transmit to the court of criminal appeals a copy of:
  12-22              (1)  the application;
  12-23              (2)  the answers and motions filed;
  12-24              (3)  the court reporter's transcript;
  12-25              (4)  the documentary exhibits introduced into evidence;
  12-26              (5)  the proposed findings of fact and conclusions of
  12-27  law;
   13-1              (6)  the findings of fact and conclusions of law
   13-2  entered by the court;
   13-3              (7)  the sealed materials such as a confidential
   13-4  request for investigative expenses; and
   13-5              (8)  any other matters used by the convicting court in
   13-6  resolving issues of fact.
   13-7        (g)  The clerk of the convicting court shall forward an
   13-8  exhibit that is not documentary to the court of criminal appeals on
   13-9  request of the court.
  13-10        Sec. 11.  RULES OF EVIDENCE.  The Texas Rules of Criminal
  13-11  Evidence apply to a hearing held under this article.
  13-12        Sec. 12.  REVIEW BY COURT OF CRIMINAL APPEALS.  The court of
  13-13  criminal appeals shall expeditiously review all applications for a
  13-14  writ of habeas corpus submitted under this article.  The court may
  13-15  set the cause for oral argument and may request further briefing of
  13-16  the issues by the applicant or the state.  After reviewing the
  13-17  record, the court shall enter its judgment remanding the applicant
  13-18  to custody or ordering the applicant's release, as the law and
  13-19  facts may justify.
  13-20        SECTION 2.  Chapter 26, Code of Criminal Procedure, is
  13-21  amended by adding Article 26.052 to read as follows:
  13-22        Art. 26.052.  APPOINTMENT OF COUNSEL IN DEATH PENALTY CASE;
  13-23  REIMBURSEMENT OF INVESTIGATIVE EXPENSES.  (a)  Notwithstanding any
  13-24  other provision of this chapter, this article establishes
  13-25  procedures in death penalty cases for appointment and payment of
  13-26  counsel to represent indigent defendants at trial and on direct
  13-27  appeal and for filing a petition for writ of certiorari in the
   14-1  United States Supreme Court.
   14-2        (b)  If a county is served by a public defender's office,
   14-3  trial counsel and counsel for direct appeal or for petition for a
   14-4  writ of certiorari may be appointed as provided by the guidelines
   14-5  established by the public defender's office.  In all other cases in
   14-6  which the death penalty is sought, counsel shall be appointed as
   14-7  provided by this article.
   14-8        (c)  A local selection committee is created in each
   14-9  administrative judicial region created under Section 74.042,
  14-10  Government Code.  The administrative judge of the judicial region
  14-11  shall appoint the members of the committee.  A committee shall have
  14-12  not less than four members, including:
  14-13              (1)  the administrative judge of the judicial region;
  14-14              (2)  at least one district judge;
  14-15              (3)  a representative from the local bar association;
  14-16  and
  14-17              (4)  at least one practitioner who is board certified
  14-18  by the State Bar of Texas in criminal law.
  14-19        (d)  The committee shall adopt standards for the
  14-20  qualification of attorneys for appointment to death penalty cases.
  14-21  The committee shall prominently post the standards in each district
  14-22  clerk's office in the region with a list of attorneys qualified for
  14-23  appointment.
  14-24        (e)  The presiding judge of the district court in which a
  14-25  capital felony case is filed shall appoint counsel to represent an
  14-26  indigent defendant as soon as practicable after charges are filed,
  14-27  if the death penalty is sought in the case.  The judge shall
   15-1  appoint lead trial counsel from the list of attorneys qualified for
   15-2  appointment.  The judge shall appoint a second counsel to assist in
   15-3  the defense of the defendant, unless reasons against the
   15-4  appointment of two counsel are stated in the record.
   15-5        (f)  Appointed counsel may file with the trial court a
   15-6  pretrial ex parte confidential request for advance payment of
   15-7  expenses to investigate potential defenses.  The request for
   15-8  expenses must state:
   15-9              (1)  the type of investigation to be conducted;
  15-10              (2)  specific facts that suggest the investigation will
  15-11  result in admissible evidence; and
  15-12              (3)  an itemized list of anticipated expenses for each
  15-13  investigation.
  15-14        (g)  The court shall grant the request for advance payment of
  15-15  expenses in whole or in part if the request is reasonable.  If the
  15-16  court denies in whole or in part the request for expenses, the
  15-17  court shall:
  15-18              (1)  state the reasons for the denial in writing;
  15-19              (2)  attach the denial to the confidential request; and
  15-20              (3)  submit the request and denial as a sealed exhibit
  15-21  to the record.
  15-22        (h)  Counsel may incur expenses without prior approval of the
  15-23  court.  On presentation of a claim for reimbursement, the court
  15-24  shall order reimbursement of counsel for the expenses, if the
  15-25  expenses are reasonably necessary and reasonably incurred.
  15-26        (i)  If the indigent defendant is convicted of a capital
  15-27  felony and sentenced to death, the defendant is entitled to be
   16-1  represented by competent counsel on appeal and on a petition for a
   16-2  writ of certiorari to the United States Supreme Court.
   16-3        (j)  As soon as practicable after a death sentence is imposed
   16-4  in a capital felony case, the presiding judge of the convicting
   16-5  court shall appoint counsel to represent an indigent defendant on
   16-6  appeal and to petition for a writ of certiorari, if appropriate.
   16-7        (k)  The court may not appoint an attorney as counsel on
   16-8  appeal if the attorney represented the defendant at trial, unless:
   16-9              (1)  the defendant and the attorney request the
  16-10  appointment on the record;  and
  16-11              (2)  the court finds good cause to make the
  16-12  appointment.
  16-13        (l)  An attorney appointed under this article to represent a
  16-14  defendant at trial or on direct appeal is compensated as provided
  16-15  by Article 26.05 from county funds.
  16-16        SECTION 3.  Article 43.14, Code of Criminal Procedure, is
  16-17  amended to read as follows:
  16-18        Art. 43.14.  EXECUTION OF CONVICT.  Whenever the sentence of
  16-19  death is pronounced against a convict, the sentence shall be
  16-20  executed at any time after  <before> the hour of 6 p.m. <sunrise>
  16-21  on the day set for the execution <not less than thirty days from
  16-22  the day the court sets the execution date,  as the court may
  16-23  adjudge>, by intravenous injection of a substance or substances in
  16-24  a lethal quantity sufficient to cause death and until such convict
  16-25  is dead, such execution procedure to be determined and supervised
  16-26  by the Director of the institutional division of the Texas
  16-27  Department of Criminal Justice.
   17-1        SECTION 4.  Chapter 43, Code of Criminal Procedure, is
   17-2  amended by adding Article 43.141 to read as follows:
   17-3        Art. 43.141.  SCHEDULING OF EXECUTION DATE; WITHDRAWAL;
   17-4  MODIFICATION.  (a)  If an initial application under Article 11.071
   17-5  is timely filed or good cause is shown for its untimely filing, the
   17-6  convicting court may not set an execution date before:
   17-7              (1)  the court of criminal appeals denies relief; or
   17-8              (2)  if the case is filed and set for submission, the
   17-9  court of criminal appeals issues a mandate.
  17-10        (b)  If an original application is not filed under Article
  17-11  11.071 or good cause is not shown for an untimely application under
  17-12  Article 11.071, the convicting court may set an execution date.
  17-13        (c)  The first execution date may not be earlier than the
  17-14  91st day after the date the convicting court enters the order
  17-15  setting the execution date.  A subsequent execution date may not be
  17-16  earlier than the 31st day after the date the convicting court
  17-17  enters the order setting the execution date.
  17-18        (d)  The convicting court may modify or withdraw the order of
  17-19  the court setting a date for execution in a death penalty case if
  17-20  the court determines that additional proceedings are necessary on a
  17-21  subsequent or untimely application for a writ of habeas corpus
  17-22  filed under Article 11.071.
  17-23        (e)  If the convicting court withdraws the order of the court
  17-24  setting the execution date, the court shall recall the warrant of
  17-25  execution.  If the court modifies the order of the court setting
  17-26  the execution date, the court shall recall the previous warrant of
  17-27  execution, and the clerk of the court shall issue a new warrant.
   18-1        SECTION 5.  Article 11.07, Code of Criminal Procedure, is
   18-2  amended to read as follows:
   18-3        Art. 11.07.  PROCEDURE <RETURN TO CERTAIN COUNTY; PROCEDURE>
   18-4  AFTER CONVICTION WITHOUT DEATH PENALTY
   18-5        Sec. 1.  This article establishes the procedures for an
   18-6  application for writ of habeas corpus in which the applicant seeks
   18-7  relief from a felony judgment imposing a penalty other than death.
   18-8        Sec. 2.  After indictment found in any felony case, other
   18-9  than a case in which the death penalty is imposed, and before
  18-10  conviction, the writ must be made returnable in the county where
  18-11  the offense has been committed.
  18-12        Sec. 3 <2>.  (a)  After final conviction in any felony case,
  18-13  the writ must be made returnable to the Court of Criminal Appeals
  18-14  of Texas at Austin, Texas.
  18-15        (b)  Whenever an application <a petition> for writ of habeas
  18-16  corpus is filed after final conviction in a felony case, other than
  18-17  a case in which the death penalty is imposed, the clerk shall
  18-18  transfer or assign it to the court in which the conviction being
  18-19  challenged was obtained.  When the application <petition> is
  18-20  received by that court, a writ of habeas corpus, returnable to the
  18-21  Court of Criminal Appeals, shall issue by operation of law.  The
  18-22  clerk of that court shall make appropriate notation thereof, assign
  18-23  to the case a file number (ancillary to that of the conviction
  18-24  being challenged), and send a copy of the application <petition> by
  18-25  certified mail, return receipt requested, to the attorney
  18-26  representing the state in that court, who shall have 15 days in
  18-27  which it may answer the application <petition>.  Matters alleged in
   19-1  the application <petition> not admitted by the state are deemed
   19-2  denied.
   19-3        (c)  Within 20 days of the expiration of the time in which
   19-4  the state is allowed to answer, it shall be the duty of the
   19-5  convicting court to decide whether there are controverted,
   19-6  previously unresolved facts material to the legality of the
   19-7  applicant's confinement.  If the convicting court decides that
   19-8  there are no such issues, the clerk shall immediately transmit to
   19-9  the Court of Criminal Appeals a copy of the application <petition>,
  19-10  any answers filed, and a certificate reciting the date upon which
  19-11  that finding was made.  Failure of the court to act within the
  19-12  allowed 20 days shall constitute such a finding.
  19-13        (d)  If the convicting court decides that there are
  19-14  controverted, previously unresolved facts which are material to the
  19-15  legality of the applicant's confinement, it shall enter an order
  19-16  within 20 days of the expiration of the time allowed for the state
  19-17  to reply, designating the issues of fact to be resolved.  To
  19-18  resolve those issues the court may order affidavits, depositions,
  19-19  interrogatories, and hearings, as well as using personal
  19-20  recollection.  Also, the convicting court may appoint an attorney
  19-21  or a magistrate to hold a hearing and make findings of fact.  An
  19-22  attorney so appointed shall be compensated as provided in Article
  19-23  26.05 of this code.  It shall be the duty of the reporter who is
  19-24  designated to transcribe a hearing held pursuant to this article to
  19-25  prepare a transcript within 15 days of its conclusion.  After the
  19-26  convicting court makes findings of fact or approves the findings of
  19-27  the person designated to make them, the clerk of the convicting
   20-1  court shall immediately transmit to the Court of Criminal Appeals,
   20-2  under one cover, the application <petition>, any answers filed, any
   20-3  motions filed, transcripts of all depositions and hearings, any
   20-4  affidavits, and any other matters such as official records used by
   20-5  the court in resolving issues of fact.
   20-6        Sec. 4.  (a)  Except as provided by Subsection (b), a court
   20-7  may not announce or apply a new rule to grant habeas corpus relief
   20-8  under this article.
   20-9        (b)  A court considering a claim under this article may
  20-10  announce or apply a new rule if the rule:
  20-11              (1)  places a class of specific conduct beyond the
  20-12  power of the legislature to proscribe;
  20-13              (2)  prohibits the imposition of a certain type of
  20-14  punishment for a class of persons because of the persons' status or
  20-15  offense; or
  20-16              (3)  is a watershed rule of criminal procedure
  20-17  implicating the fundamental fairness and accuracy of the criminal
  20-18  proceedings.
  20-19        (c)  In this section, a "new rule" means a rule that was not
  20-20  dictated by existing precedent of the court of criminal appeals or
  20-21  United States Supreme Court at the time the applicant's conviction
  20-22  became final.  For purposes of this subsection, a conviction is
  20-23  final on:
  20-24              (1)  the affirmation by the United States Supreme Court
  20-25  of the applicant's conviction or sentence;
  20-26              (2)  the denial by the United States Supreme Court of
  20-27  the applicant's petition for writ of certiorari; or
   21-1              (3)  if a petition for writ of certiorari is not filed,
   21-2  the expiration of the time for filing a timely petition for writ of
   21-3  certiorari in the United States Supreme Court.
   21-4        Sec. 5.  (a)  If a subsequent application for writ of habeas
   21-5  corpus is filed after final disposition of an initial application
   21-6  challenging the same conviction, a court may not consider the
   21-7  merits of or grant relief based on the subsequent application
   21-8  unless the application contains sufficient specific facts
   21-9  establishing that:
  21-10              (1)  the current claims and issues have not been and
  21-11  could not have been presented previously in an original application
  21-12  or in a previously considered application filed under this article
  21-13  because the factual or legal basis for the claim was unavailable on
  21-14  the date the applicant filed the previous application; or
  21-15              (2)  by clear and convincing evidence, a probability
  21-16  exists that the applicant is factually innocent of the crime for
  21-17  which the applicant was convicted because of a violation of the
  21-18  United States Constitution or the laws of this state.
  21-19        (b)  For purposes of Subsection (a)(1), a legal basis of a
  21-20  claim is unavailable on or before a date described by Subsection
  21-21  (a)(1) if the legal basis:
  21-22              (1)  was not recognized by and could not have been
  21-23  reasonably formulated from a final decision of the United States
  21-24  Supreme Court, a court of appeals of the United States, or a court
  21-25  of appellate jurisdiction of this state on or before that date; and
  21-26              (2)  is a new rule of constitutional law that was given
  21-27  retroactive effect by the United States Supreme Court and had not
   22-1  been announced by the court on or before that date.
   22-2        (c)  For purposes of Subsection (a)(1), a factual basis of a
   22-3  claim is unavailable on or before a date described by Subsection
   22-4  (a)(1) if the factual basis was not ascertainable through the
   22-5  exercise of reasonable diligence on or before that date.
   22-6        Sec. 6 <3>.  The Court of Criminal Appeals may deny relief
   22-7  upon the findings and conclusions of the hearing judge without
   22-8  docketing the cause, or may direct that the cause be docketed and
   22-9  heard as though originally presented to said court or as an appeal.
  22-10  Upon reviewing the record the court shall enter its judgment
  22-11  remanding the applicant <petitioner> to custody or ordering his
  22-12  release, as the law and facts may justify.  The mandate of the
  22-13  court shall issue to the court issuing the writ, as in other
  22-14  criminal cases.  After conviction the procedure outlined in this
  22-15  Act shall be exclusive and any other proceeding shall be void and
  22-16  of no force and effect in discharging the prisoner.
  22-17        Sec. 7 <4>.  Upon any hearing by a district judge by virtue
  22-18  of this Act, the attorney for applicant <petitioner>, and the
  22-19  state, shall be given at least seven <three> full days' notice
  22-20  before such hearing is held.
  22-21        Sec. 8 <5>.  When the attorney for the state files an answer,
  22-22  motion, or other pleading relating to an application <a petition>
  22-23  for a writ of habeas corpus or the court issues an order relating
  22-24  to an application <a petition> for a writ of habeas corpus, the
  22-25  clerk of the court shall mail or deliver to the applicant
  22-26  <petitioner> a copy of the answer, motion, pleading, or order.
  22-27        SECTION 6.  The rulemaking authority granted to the court of
   23-1  criminal appeals under Section 22.108, Government Code, is
   23-2  withdrawn with respect to rules of appellate procedure relating to
   23-3  an application for a writ of habeas corpus, but only to the extent
   23-4  the rules conflict with a procedure under Article 11.071, Code of
   23-5  Criminal Procedure, as added by this Act, or Article 11.07, Code of
   23-6  Criminal Procedure, as amended by this Act.
   23-7        SECTION 7.  (a)  The change in law made by Articles 43.14,
   23-8  43.141, and 11.071, Code of Criminal Procedure, as amended or added
   23-9  by this Act, applies only to a person under a sentence of death.
  23-10        (b)  The change in law made by Article 26.052, Code of
  23-11  Criminal Procedure, as added by this Act, applies only to a
  23-12  defendant charged with an offense committed on or after the
  23-13  effective date of this Act or to a defendant for whom the court of
  23-14  criminal appeals or a federal court has entered an order granting a
  23-15  new trial or a new punishment hearing on or after the effective
  23-16  date of this Act.  For purposes of this subsection, an offense is
  23-17  committed before the effective date of this Act if any element of
  23-18  the offense occurs before the effective date.  A defendant charged
  23-19  with an offense committed before the effective date of this Act or
  23-20  a defendant for which an order granting a new trial or new
  23-21  punishment hearing is entered before the effective date of this Act
  23-22  is covered by the law in effect when the offense was committed or
  23-23  the order was entered, and the former law is continued in effect
  23-24  for that purpose.
  23-25        (c)  The change in law made by Article 11.07, Code of
  23-26  Criminal Procedure, as amended by this Act, applies only to an
  23-27  application for a writ of habeas corpus filed on or after the
   24-1  effective date of this Act by a person convicted of a felony, other
   24-2  than an application filed by a person under a sentence of death.
   24-3  An application filed before the effective date of this Act by a
   24-4  person convicted of a felony, other than an application filed by a
   24-5  person under a sentence of death, is covered by the law in effect
   24-6  when the application was filed, and the former law is continued in
   24-7  effect for that purpose.
   24-8        SECTION 8.  This Act takes effect September 1, 1995.
   24-9        SECTION 9.  The importance of this legislation and the
  24-10  crowded condition of the calendars in both houses create an
  24-11  emergency and an imperative public necessity that the
  24-12  constitutional rule requiring bills to be read on three several
  24-13  days in each house be suspended, and this rule is hereby suspended.