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.