1-1 By: Montford, Shapiro S.B. No. 440
1-2 (In the Senate - Filed February 2, 1995; February 6, 1995,
1-3 read first time and referred to Committee on Criminal Justice;
1-4 April 5, 1995, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 7, Nays 0; April 5, 1995,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 440 By: Moncrief
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to procedures for applying for a writ of habeas corpus by
1-11 persons convicted of a felony and procedures for the compensation
1-12 and appointment of counsel to represent certain persons charged
1-13 with a capital felony.
1-14 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-15 SECTION 1. Chapter 11, Code of Criminal Procedure, is
1-16 amended by adding Article 11.071 to read as follows:
1-17 Art. 11.071. PROCEDURE IN DEATH PENALTY CASE
1-18 Sec. 1. APPLICATION TO DEATH PENALTY CASE. Notwithstanding
1-19 any other provision of this chapter, this article establishes the
1-20 procedures for an application for a writ of habeas corpus in which
1-21 the applicant seeks relief from a judgment imposing a penalty of
1-22 death.
1-23 Sec. 2. REPRESENTATION BY COUNSEL. (a) An applicant shall
1-24 be represented by competent counsel unless the applicant has
1-25 elected to proceed pro se and the convicting trial court finds,
1-26 after a hearing on the record, that the applicant's election is
1-27 intelligent and voluntary.
1-28 (b) If a defendant is sentenced to death on or after
1-29 September 1, 1995, the convicting court, immediately after judgment
1-30 is entered under Article 42.01, shall determine if the defendant is
1-31 indigent and, if so, whether the defendant desires appointment of
1-32 counsel for the purpose of a writ of habeas corpus. If a defendant
1-33 is sentenced to death, does not have an initial application for a
1-34 writ of habeas corpus under Article 11.07 pending on September 1,
1-35 1995, and has not been denied relief by the court of criminal
1-36 appeals in an initial habeas corpus proceeding under Article 11.07,
1-37 the convicting court, as soon as practicable, shall determine
1-38 whether the defendant is indigent and, if so, whether the defendant
1-39 desires the appointment of counsel for the purpose of a writ of
1-40 habeas corpus.
1-41 (c) Immediately after the convicting court makes the
1-42 findings required under Subsections (a), (b), and (i), the clerk of
1-43 the convicting court shall forward to the court of criminal
1-44 appeals:
1-45 (1) a copy of the judgment;
1-46 (2) a list containing the name, address, and telephone
1-47 number of each counsel of record for the applicant at trial and on
1-48 direct appeal; and
1-49 (3) if the applicant elects to proceed pro se, any
1-50 findings made by the convicting court on the voluntariness of the
1-51 applicant's election.
1-52 (d) Unless an applicant elects to proceed pro se or is
1-53 represented by retained counsel, the court of criminal appeals
1-54 shall, under rules and standards adopted by the court, appoint
1-55 competent counsel at the earliest practicable time after receipt of
1-56 the documents under Subsection (c).
1-57 (e) The court of criminal appeals may not appoint an
1-58 attorney as counsel under this section if the attorney represented
1-59 the applicant at trial or on direct appeal, unless:
1-60 (1) the applicant and the attorney request the
1-61 appointment on the record; or
1-62 (2) the court finds good cause to make the
1-63 appointment.
1-64 (f) If counsel is the same person appointed as counsel on
1-65 appeal under Article 26.052, the court of criminal appeals shall
1-66 appoint a second counsel to assist in the preparation of the appeal
1-67 and writ of habeas corpus.
1-68 (g) If the court of criminal appeals denies an applicant
2-1 relief under this article, an attorney appointed under this section
2-2 to represent the applicant shall, not later than the 15th day after
2-3 the date the court of criminal appeals denies relief or, if the
2-4 case is filed and set for submission, the 15th day after the date
2-5 the court of criminal appeals issues a mandate on the initial
2-6 application for a writ of habeas corpus under this article, move to
2-7 be appointed as counsel in federal habeas review under 21 U.S.C.
2-8 Section 848(q) or equivalent provision or, if necessary, move for
2-9 the appointment of other counsel under 21 U.S.C. Section 848(q) or
2-10 equivalent provision.
2-11 (h) The court of criminal appeals shall reasonably
2-12 compensate an attorney appointed by the court under this section
2-13 from state funds. The court shall reasonably compensate an
2-14 attorney for representation in a subsequent or untimely application
2-15 for a writ of habeas corpus, if the court determines that the
2-16 requirements of Section 5 allowing consideration of the application
2-17 have been satisfied.
2-18 (i) If an attorney is representing an inmate under a
2-19 sentence of death for an initial application for a writ of habeas
2-20 corpus under Article 11.07 pending on September 1, 1995, the
2-21 attorney may request that the convicting court determine if the
2-22 defendant is indigent and, if so, whether the defendant desires
2-23 appointment of counsel for the purpose of the writ of habeas
2-24 corpus.
2-25 Sec. 3. INVESTIGATION OF GROUNDS FOR APPLICATION. (a) On
2-26 appointment, counsel shall investigate expeditiously, before and
2-27 after the appellate record is filed in the court of criminal
2-28 appeals, the factual and legal grounds for the filing of an
2-29 application for a writ of habeas corpus.
2-30 (b) Not later than the 30th day before the date the
2-31 application for a writ of habeas corpus is filed with the
2-32 convicting court, counsel may file with the court of criminal
2-33 appeals an ex parte, verified, and confidential request for
2-34 prepayment of expenses, including expert fees, to investigate and
2-35 present potential habeas corpus claims. The request for expenses
2-36 must state:
2-37 (1) the claims of the application to be investigated;
2-38 (2) specific facts that suggest that a claim of
2-39 possible merit may exist; and
2-40 (3) an itemized list of anticipated expenses for each
2-41 claim.
2-42 (c) The court in its discretion may grant a request for
2-43 expenses in whole or in part if the request for expenses is timely
2-44 and reasonable. If the court denies in whole or in part the
2-45 request for expenses, the court shall briefly state the reasons for
2-46 the denial in a written order provided to the applicant.
2-47 (d) Counsel may incur expenses for habeas corpus
2-48 investigation, including expenses for experts, without prior
2-49 approval by the court of criminal appeals. On presentation of a
2-50 claim for reimbursement, the court shall order reimbursement of
2-51 counsel for expenses, if the expenses are reasonably necessary and
2-52 reasonably incurred. If the court denies in whole or in part the
2-53 request for expenses, the court shall briefly state the reasons for
2-54 the denial in a written order with an attached copy of the
2-55 reimbursement claim provided to the applicant. The applicant may
2-56 request reconsideration of the denial for reimbursement.
2-57 (e) Materials submitted to the court under this section are
2-58 a part of the court's record.
2-59 Sec. 4. FILING OF APPLICATION. (a) An application for a
2-60 writ of habeas corpus, returnable to the court of criminal appeals,
2-61 must be filed in the convicting court not later than the 45th day
2-62 after the date the appellee's original brief is filed on direct
2-63 appeal with the court of criminal appeals. If an applicant who was
2-64 convicted before September 1, 1995, does not have an original
2-65 application for a writ of habeas corpus under Article 11.07 pending
2-66 on September 1, 1995, and has not previously filed an application
2-67 under Article 11.07, the applicant's original application must be
2-68 filed not later than the 180th day after the date the court of
2-69 criminal appeals appoints counsel under Section 2 or not later than
2-70 the 45th day after the date the appellee's original brief is due on
3-1 direct appeal, whichever is later.
3-2 (b) An application filed after the filing date that is
3-3 applicable to the applicant under Subsection (a) is presumed
3-4 untimely unless the applicant establishes good cause by showing
3-5 particularized justifying circumstances.
3-6 (c) If counsel has been appointed and a timely application
3-7 is not filed on or before the applicable filing date under
3-8 Subsection (a), the convicting court shall as soon as practicable
3-9 conduct a hearing to determine if good cause exists for the
3-10 untimely filing of an application.
3-11 (d) If the convicting court finds the applicant failed to
3-12 establish good cause for the delay, the court shall:
3-13 (1) make appropriate findings of fact;
3-14 (2) enter an order to that effect;
3-15 (3) direct the clerk of the court to enter a notation
3-16 that the petition is untimely; and
3-17 (4) send a copy of the petition, findings, and
3-18 notation to the court of criminal appeals as provided by Section 5.
3-19 (e) If the convicting court finds that the applicant has
3-20 established good cause for the delay, the convicting court shall
3-21 proceed as if the application was timely filed.
3-22 (f) Notwithstanding Subsection (b), (c), or (e) an applicant
3-23 cannot establish good cause for the untimely filing of an
3-24 application filed after the 91st day after the applicable filing
3-25 date under Subsection (a).
3-26 (g) A failure to file an application before the 91st day
3-27 after the filing date applicable to the applicant under Subsection
3-28 (a) constitutes a waiver of all grounds for relief that were
3-29 available to the applicant before the last date on which an
3-30 application could be timely filed, except as provided by Section 5.
3-31 (h) If an amended or supplemental application is not filed
3-32 within the time specified under Subsection (a), the court shall
3-33 treat the application as a subsequent or untimely application for a
3-34 writ of habeas corpus under Section 5, unless the applicant:
3-35 (1) establishes good cause by showing particularized
3-36 justifying circumstances for not raising in the original
3-37 application the facts or claims contained in the amended or
3-38 supplemental application; and
3-39 (2) the amended or supplemental application is filed
3-40 before the 91st day after the filing date applicable to the
3-41 applicant under Subsection (a).
3-42 Sec. 5. SUBSEQUENT OR UNTIMELY APPLICATION. (a) If an
3-43 original application for a writ of habeas corpus is untimely or if
3-44 a subsequent application is filed after filing an original
3-45 application, a court may not consider the merits of or grant relief
3-46 based on the subsequent or untimely original application unless the
3-47 application contains sufficient specific facts establishing that:
3-48 (1) the current claims and issues have not been and
3-49 could not have been presented previously in a timely original
3-50 application or in a previously considered application filed under
3-51 this article or Article 11.07 because the factual or legal basis
3-52 for the claim was unavailable:
3-53 (A) on the date the applicant filed the previous
3-54 application; or
3-55 (B) if the applicant did not file an original
3-56 application, on or before the last date for the timely filing of an
3-57 original application;
3-58 (2) by a preponderance of the evidence, but for a
3-59 violation of the United States Constitution no rational juror could
3-60 have found the applicant guilty beyond a reasonable doubt; or
3-61 (3) by clear and convincing evidence, but for a
3-62 violation of the United States Constitution no rational juror would
3-63 have answered in the state's favor one or more of the special
3-64 issues that were submitted to the jury in the applicant's trial
3-65 under Article 37.071 or 37.0711.
3-66 (b) If the convicting court receives a subsequent
3-67 application or an untimely original application, the clerk of the
3-68 court shall:
3-69 (1) attach a notation that the application is a
3-70 subsequent or untimely original application;
4-1 (2) assign to the case a file number that is ancillary
4-2 to that of the conviction being challenged; and
4-3 (3) immediately send to the court of criminal appeals
4-4 a copy of:
4-5 (A) the application;
4-6 (B) the notation;
4-7 (C) the order scheduling the applicant's
4-8 execution, if scheduled; and
4-9 (D) any order the judge of the convicting court
4-10 directs to be attached to the application.
4-11 (c) On receipt of the copies of the documents from the
4-12 clerk, the court of criminal appeals shall determine whether the
4-13 requirements of Subsection (a) have been satisfied. The convicting
4-14 court may not take further action on the application before the
4-15 court of criminal appeals issues an order finding that the
4-16 requirements have been satisfied. If the court of criminal appeals
4-17 determines that the requirements have not been satisfied, the court
4-18 shall issue an order dismissing the application as an abuse of the
4-19 writ under this section.
4-20 (d) For purposes of Subsection (a)(1), a legal basis of a
4-21 claim is unavailable on or before a date described by Subsection
4-22 (a)(1) if the legal basis was not recognized by or could not have
4-23 been reasonably formulated from a final decision of the United
4-24 States Supreme Court, a court of appeals of the United States, or a
4-25 court of appellate jurisdiction of this state on or before that
4-26 date.
4-27 (e) For purposes of Subsection (a)(1), a factual basis of a
4-28 claim is unavailable on or before a date described by Subsection
4-29 (a)(1) if the factual basis was not ascertainable through the
4-30 exercise of reasonable diligence on or before that date.
4-31 Sec. 6. ISSUANCE OF WRIT. (a) If a timely application for
4-32 a writ of habeas corpus is filed in the convicting court, a writ
4-33 of habeas corpus, returnable to the court of criminal appeals,
4-34 shall issue by operation of law.
4-35 (b) If the convicting court receives notice that the
4-36 requirements of Section 5 for consideration of a subsequent or
4-37 untimely application have been met, a writ of habeas corpus,
4-38 returnable to the court of criminal appeals, shall issue by
4-39 operation of law.
4-40 (c) The clerk of the convicting court shall:
4-41 (1) make an appropriate notation that a writ of habeas
4-42 corpus was issued;
4-43 (2) assign to the case a file number that is ancillary
4-44 to that of the conviction being challenged; and
4-45 (3) send a copy of the application by certified mail,
4-46 return receipt requested, to the attorney representing the state in
4-47 that court.
4-48 (d) The clerk of the convicting court shall promptly deliver
4-49 copies of documents submitted to the clerk under this article to
4-50 the applicant and the attorney representing the state.
4-51 Sec. 7. ANSWER TO APPLICATION. (a) The state may file an
4-52 answer to the application for a writ of habeas corpus not later
4-53 than the 30th day after the date the state receives notice of
4-54 issuance of the writ. The state may request from the convicting
4-55 court an extension of time in which to answer the application by
4-56 showing particularized justifying circumstances for the extension.
4-57 (b) Matters alleged in the application not admitted by the
4-58 state are deemed denied.
4-59 Sec. 8. FINDINGS OF FACT WITHOUT EVIDENTIARY HEARING.
4-60 (a) Not later than the 20th day after the last date the state may
4-61 answer the application, the convicting court shall determine
4-62 whether controverted, previously unresolved factual issues material
4-63 to the legality of the applicant's confinement exist and shall
4-64 issue a written order of the determination.
4-65 (b) If the convicting court determines the issues do not
4-66 exist, the parties may file proposed findings of fact and
4-67 conclusions of law for the court to consider on or before a date
4-68 set by the court that is not later than the 30th day after the date
4-69 the order is issued.
4-70 (c) After argument of counsel, if requested by the court,
5-1 the convicting court shall make appropriate written findings of
5-2 fact and conclusions of law not later than the 15th day after the
5-3 date the parties filed proposed findings or not later than the 45th
5-4 day after the date the court's determination is made under
5-5 Subsection (a), whichever occurs first.
5-6 (d) The clerk of the court shall immediately send to the
5-7 court of criminal appeals a copy of the:
5-8 (1) application;
5-9 (2) answer;
5-10 (3) orders entered by the convicting court;
5-11 (4) proposed findings of fact and conclusions of law;
5-12 and
5-13 (5) findings of fact and conclusions of law entered by
5-14 the court.
5-15 (e) Failure of the convicting court to issue findings of
5-16 fact and conclusions of law within the time provided by Subsection
5-17 (c) constitutes a finding that controverted, previously unresolved
5-18 factual issues material to the legality of the applicant's
5-19 confinement do not exist.
5-20 Sec. 9. HEARING. (a) If the convicting court determines
5-21 that controverted, previously unresolved factual issues material to
5-22 the legality of the applicant's confinement exist, the court shall
5-23 enter an order, not later than the 20th day after the last date the
5-24 state may answer the application, designating the issues of fact to
5-25 be resolved and the manner in which the issues shall be resolved.
5-26 To resolve the issues, the court may require affidavits,
5-27 depositions, interrogatories, and evidentiary hearings and may use
5-28 personal recollection.
5-29 (b) The convicting court shall allow the applicant and the
5-30 state not less than 10 days to prepare for an evidentiary hearing.
5-31 The parties may waive the preparation time. If the state or the
5-32 applicant requests that an evidentiary hearing be held within 30
5-33 days after the date the court ordered the hearing, the hearing
5-34 shall be held within that period unless the court states, on the
5-35 record, good cause for delay.
5-36 (c) The presiding judge of the convicting court shall
5-37 conduct a hearing held under this section unless another judge
5-38 presided over the original capital felony trial, in which event
5-39 that judge, if qualified for assignment under Section 74.054 or
5-40 74.055, Government Code, may preside over the hearing.
5-41 (d) The court reporter shall prepare a transcript of the
5-42 hearing not later than the 30th day after the date the hearing ends
5-43 and file the transcript with the clerk of the convicting court.
5-44 (e) The parties may file proposed findings of fact and
5-45 conclusions of law for the convicting court to consider on or
5-46 before a date set by the court that is not later than the 30th day
5-47 after the date the transcript is filed. If the court requests
5-48 argument of counsel, after argument the court shall make written
5-49 findings of fact that are necessary to resolve the previously
5-50 unresolved facts and make conclusions of law not later than the
5-51 15th day after the date the parties file proposed findings or not
5-52 later than the 45th day after the date the court reporter files the
5-53 transcript, whichever occurs first.
5-54 (f) The clerk of the convicting court shall immediately
5-55 transmit to the court of criminal appeals a copy of:
5-56 (1) the application;
5-57 (2) the answers and motions filed;
5-58 (3) the court reporter's transcript;
5-59 (4) the documentary exhibits introduced into evidence;
5-60 (5) the proposed findings of fact and conclusions of
5-61 law;
5-62 (6) the findings of fact and conclusions of law
5-63 entered by the court;
5-64 (7) the sealed materials such as a confidential
5-65 request for investigative expenses; and
5-66 (8) any other matters used by the convicting court in
5-67 resolving issues of fact.
5-68 (g) The clerk of the convicting court shall forward an
5-69 exhibit that is not documentary to the court of criminal appeals on
5-70 request of the court.
6-1 Sec. 10. RULES OF EVIDENCE. The Texas Rules of Criminal
6-2 Evidence apply to a hearing held under this article.
6-3 Sec. 11. REVIEW BY COURT OF CRIMINAL APPEALS. The court of
6-4 criminal appeals shall expeditiously review all applications for a
6-5 writ of habeas corpus submitted under this article. The court may
6-6 set the cause for oral argument and may request further briefing of
6-7 the issues by the applicant or the state. After reviewing the
6-8 record, the court shall enter its judgment remanding the applicant
6-9 to custody or ordering the applicant's release, as the law and
6-10 facts may justify.
6-11 SECTION 2. Chapter 26, Code of Criminal Procedure, is
6-12 amended by adding Article 26.052 to read as follows:
6-13 Art. 26.052. APPOINTMENT OF COUNSEL IN DEATH PENALTY CASE;
6-14 REIMBURSEMENT OF INVESTIGATIVE EXPENSES. (a) Notwithstanding any
6-15 other provision of this chapter, this article establishes
6-16 procedures in death penalty cases for appointment and payment of
6-17 counsel to represent indigent defendants at trial and on direct
6-18 appeal and to apply for writ of certiorari in the United States
6-19 Supreme Court.
6-20 (b) If a county is served by a public defender's office,
6-21 trial counsel and counsel for direct appeal or to apply for a writ
6-22 of certiorari may be appointed as provided by the guidelines
6-23 established by the public defender's office. In all other cases in
6-24 which the death penalty is sought, counsel shall be appointed as
6-25 provided by this article.
6-26 (c) A local selection committee is created in each
6-27 administrative judicial region created under Section 74.042,
6-28 Government Code. The administrative judge of the judicial region
6-29 shall appoint the members of the committee. A committee shall have
6-30 not less than four members, including:
6-31 (1) the administrative judge of the judicial region;
6-32 (2) at least one district judge;
6-33 (3) a representative from the local bar association;
6-34 and
6-35 (4) at least one practitioner who is board certified
6-36 by the State Bar of Texas in criminal law.
6-37 (d) The committee shall adopt standards for the
6-38 qualification of attorneys for appointment to death penalty cases.
6-39 The committee shall prominently post the standards in each district
6-40 clerk's office in the region with a list of attorneys qualified for
6-41 appointment.
6-42 (e) The presiding judge of the district court in which a
6-43 capital felony case is filed shall appoint counsel to represent an
6-44 indigent defendant as soon as practicable after charges are filed,
6-45 if the death penalty is sought in the case. The judge shall
6-46 appoint lead trial counsel from the list of attorneys qualified for
6-47 appointment. The judge shall appoint a second counsel to assist in
6-48 the defense of the defendant, unless reasons against the
6-49 appointment of two counsel are stated in the record.
6-50 (f) Appointed counsel may file with the trial court a
6-51 pretrial ex parte confidential request for advance payment of
6-52 expenses to investigate potential defenses. The request for
6-53 expenses must state:
6-54 (1) the type of investigation to be conducted;
6-55 (2) specific facts that suggest the investigation will
6-56 result in admissible evidence; and
6-57 (3) an itemized list of anticipated expenses for each
6-58 investigation.
6-59 (g) The court shall grant the request for advance payment of
6-60 expenses in whole or in part if the request is reasonable. If the
6-61 court denies in whole or in part the request for expenses, the
6-62 court shall:
6-63 (1) state the reasons for the denial in writing;
6-64 (2) attach the denial to the confidential request; and
6-65 (3) submit the request and denial as a sealed exhibit
6-66 to the record.
6-67 (h) Counsel may incur expenses without prior approval of the
6-68 court. On presentation of a claim for reimbursement, the court
6-69 shall order reimbursement of counsel for the expenses, if the
6-70 expenses are reasonably necessary and reasonably incurred.
7-1 (i) If the indigent defendant is convicted of a capital
7-2 felony and sentenced to death, the defendant is entitled to be
7-3 represented by competent counsel on appeal and to apply for a writ
7-4 of certiorari to the United States Supreme Court.
7-5 (j) As soon as practicable after a death sentence is imposed
7-6 in a capital felony case, the presiding judge of the convicting
7-7 court shall appoint counsel to represent an indigent defendant on
7-8 appeal and to apply for a writ of certiorari, if appropriate.
7-9 (k) The court may not appoint an attorney as counsel on
7-10 appeal if the attorney represented the defendant at trial, unless:
7-11 (1) the defendant and the attorney request the
7-12 appointment on the record; and
7-13 (2) the court finds good cause to make the
7-14 appointment.
7-15 (l) An attorney appointed under this article to represent a
7-16 defendant at trial or on direct appeal is compensated as provided
7-17 by Article 26.05 from county funds.
7-18 SECTION 3. Article 43.14, Code of Criminal Procedure, is
7-19 amended to read as follows:
7-20 Art. 43.14. EXECUTION OF CONVICT. Whenever the sentence of
7-21 death is pronounced against a convict, the sentence shall be
7-22 executed at any time after <before> the hour of 6 p.m. <sunrise>
7-23 on the day set for the execution <not less than thirty days from
7-24 the day the court sets the execution date, as the court may
7-25 adjudge>, by intravenous injection of a substance or substances in
7-26 a lethal quantity sufficient to cause death and until such convict
7-27 is dead, such execution procedure to be determined and supervised
7-28 by the Director of the institutional division of the Texas
7-29 Department of Criminal Justice.
7-30 SECTION 4. Chapter 43, Code of Criminal Procedure, is
7-31 amended by adding Article 43.141 to read as follows:
7-32 Art. 43.141. SCHEDULING OF EXECUTION DATE; WITHDRAWAL;
7-33 MODIFICATION. (a) If an initial application under Article 11.071
7-34 is timely filed, the convicting court may not set an execution date
7-35 before:
7-36 (1) the court of criminal appeals denies relief; or
7-37 (2) if the case is filed and set for submission, the
7-38 court of criminal appeals issues a mandate.
7-39 (b) If an original application is not timely filed under
7-40 Article 11.071 or good cause is not shown for an untimely
7-41 application under Article 11.071, the convicting court may set an
7-42 execution date.
7-43 (c) The first execution date may not be earlier than the
7-44 91st day after the date the convicting court enters the order
7-45 setting the execution date. A subsequent execution date may not be
7-46 earlier than the 31st day after the date the convicting court
7-47 enters the order setting the execution date.
7-48 (d) The convicting court may modify or withdraw the order of
7-49 the court setting a date for execution in a death penalty case if
7-50 the court determines that additional proceedings are necessary on a
7-51 subsequent or untimely application for a writ of habeas corpus
7-52 filed under Article 11.071.
7-53 (e) If the convicting court withdraws the order of the court
7-54 setting the execution date, the court shall recall the warrant of
7-55 execution. If the court modifies the order of the court setting
7-56 the execution date, the court shall recall the previous warrant of
7-57 execution, and the clerk of the court shall issue a new warrant.
7-58 SECTION 5. Article 11.07, Code of Criminal Procedure, is
7-59 amended to read as follows:
7-60 Art. 11.07. <RETURN TO CERTAIN COUNTY;> PROCEDURE AFTER
7-61 CONVICTION WITHOUT DEATH PENALTY
7-62 Sec. 1. This article establishes the procedures for an
7-63 application for writ of habeas corpus in which the applicant seeks
7-64 relief from a felony judgment imposing a penalty other than death.
7-65 Sec. 2. After indictment found in any felony case, other
7-66 than a case in which the death penalty is imposed, and before
7-67 conviction, the writ must be made returnable in the county where
7-68 the offense has been committed.
7-69 Sec. 3 <2>. (a) After final conviction in any felony case,
7-70 the writ must be made returnable to the Court of Criminal Appeals
8-1 of Texas at Austin, Texas.
8-2 (b) Whenever an application <a petition> for writ of habeas
8-3 corpus is filed after final conviction in a felony case, other than
8-4 a case in which the death penalty is imposed, the clerk shall
8-5 transfer or assign it to the court in which the conviction being
8-6 challenged was obtained. When the application <petition> is
8-7 received by that court, a writ of habeas corpus, returnable to the
8-8 Court of Criminal Appeals, shall issue by operation of law. The
8-9 clerk of that court shall make appropriate notation thereof, assign
8-10 to the case a file number (ancillary to that of the conviction
8-11 being challenged), and send a copy of the application <petition> by
8-12 certified mail, return receipt requested, to the attorney
8-13 representing the state in that court, who shall have 15 days in
8-14 which it may answer the application <petition>. Matters alleged in
8-15 the application <petition> not admitted by the state are deemed
8-16 denied.
8-17 (c) Within 20 days of the expiration of the time in which
8-18 the state is allowed to answer, it shall be the duty of the
8-19 convicting court to decide whether there are controverted,
8-20 previously unresolved facts material to the legality of the
8-21 applicant's confinement. Confinement means confinement for any
8-22 offense or any collateral consequence resulting from the conviction
8-23 that is the basis of the instant habeas corpus. If the convicting
8-24 court decides that there are no such issues, the clerk shall
8-25 immediately transmit to the Court of Criminal Appeals a copy of the
8-26 application <petition>, any answers filed, and a certificate
8-27 reciting the date upon which that finding was made. Failure of the
8-28 court to act within the allowed 20 days shall constitute such a
8-29 finding.
8-30 (d) If the convicting court decides that there are
8-31 controverted, previously unresolved facts which are material to the
8-32 legality of the applicant's confinement, it shall enter an order
8-33 within 20 days of the expiration of the time allowed for the state
8-34 to reply, designating the issues of fact to be resolved. To
8-35 resolve those issues the court may order affidavits, depositions,
8-36 interrogatories, and hearings, as well as using personal
8-37 recollection. Also, the convicting court may appoint an attorney
8-38 or a magistrate to hold a hearing and make findings of fact. An
8-39 attorney so appointed shall be compensated as provided in Article
8-40 26.05 of this code. It shall be the duty of the reporter who is
8-41 designated to transcribe a hearing held pursuant to this article to
8-42 prepare a transcript within 15 days of its conclusion. After the
8-43 convicting court makes findings of fact or approves the findings of
8-44 the person designated to make them, the clerk of the convicting
8-45 court shall immediately transmit to the Court of Criminal Appeals,
8-46 under one cover, the application <petition>, any answers filed, any
8-47 motions filed, transcripts of all depositions and hearings, any
8-48 affidavits, and any other matters such as official records used by
8-49 the court in resolving issues of fact.
8-50 Sec. 4. (a) If a subsequent application for writ of habeas
8-51 corpus is filed after final disposition of an initial application
8-52 challenging the same conviction, a court may not consider the
8-53 merits of or grant relief based on the subsequent application
8-54 unless the application contains sufficient specific facts
8-55 establishing that:
8-56 (1) the current claims and issues have not been and
8-57 could not have been presented previously in an original application
8-58 or in a previously considered application filed under this article
8-59 because the factual or legal basis for the claim was unavailable on
8-60 the date the applicant filed the previous application; or
8-61 (2) by a preponderance of the evidence, but for a
8-62 violation of the United States Constitution no rational juror could
8-63 have found the applicant guilty beyond a reasonable doubt.
8-64 (b) For purposes of Subsection (a)(1), a legal basis of a
8-65 claim is unavailable on or before a date described by Subsection
8-66 (a)(1) if the legal basis was not recognized by and could not have
8-67 been reasonably formulated from a final decision of the United
8-68 States Supreme Court, a court of appeals of the United States, or a
8-69 court of appellate jurisdiction of this state on or before that
8-70 date.
9-1 (c) For purposes of Subsection (a)(1), a factual basis of a
9-2 claim is unavailable on or before a date described by Subsection
9-3 (a)(1) if the factual basis was not ascertainable through the
9-4 exercise of reasonable diligence on or before that date.
9-5 Sec. 5 <3>. The Court of Criminal Appeals may deny relief
9-6 upon the findings and conclusions of the hearing judge without
9-7 docketing the cause, or may direct that the cause be docketed and
9-8 heard as though originally presented to said court or as an appeal.
9-9 Upon reviewing the record the court shall enter its judgment
9-10 remanding the applicant <petitioner> to custody or ordering his
9-11 release, as the law and facts may justify. The mandate of the
9-12 court shall issue to the court issuing the writ, as in other
9-13 criminal cases. After conviction the procedure outlined in this
9-14 Act shall be exclusive and any other proceeding shall be void and
9-15 of no force and effect in discharging the prisoner.
9-16 Sec. 6 <4>. Upon any hearing by a district judge by virtue
9-17 of this Act, the attorney for applicant <petitioner>, and the
9-18 state, shall be given at least seven <three> full days' notice
9-19 before such hearing is held.
9-20 Sec. 7 <5>. When the attorney for the state files an answer,
9-21 motion, or other pleading relating to an application <a petition>
9-22 for a writ of habeas corpus or the court issues an order relating
9-23 to an application <a petition> for a writ of habeas corpus, the
9-24 clerk of the court shall mail or deliver to the applicant
9-25 <petitioner> a copy of the answer, motion, pleading, or order.
9-26 SECTION 6. The rulemaking authority granted to the court of
9-27 criminal appeals under Section 22.108, Government Code, is
9-28 withdrawn with respect to rules of appellate procedure relating to
9-29 an application for a writ of habeas corpus, but only to the extent
9-30 the rules conflict with a procedure under Article 11.071, Code of
9-31 Criminal Procedure, as added by this Act, or Article 11.07, Code of
9-32 Criminal Procedure, as amended by this Act.
9-33 SECTION 7. (a) The change in law made by Articles 43.14,
9-34 43.141, and 11.071, Code of Criminal Procedure, as amended or added
9-35 by this Act, applies only to a person under a sentence of death.
9-36 (b) The change in law made by Article 26.052, Code of
9-37 Criminal Procedure, as added by this Act, applies only to a
9-38 defendant charged with an offense committed on or after the
9-39 effective date of this Act or to a defendant for whom the court of
9-40 criminal appeals or a federal court has entered an order granting a
9-41 new trial or a new punishment hearing on or after the effective
9-42 date of this Act. For purposes of this subsection, an offense is
9-43 committed before the effective date of this Act if any element of
9-44 the offense occurs before the effective date. A defendant charged
9-45 with an offense committed before the effective date of this Act or
9-46 a defendant for which an order granting a new trial or new
9-47 punishment hearing is entered before the effective date of this Act
9-48 is covered by the law in effect when the offense was committed or
9-49 the order was entered, and the former law is continued in effect
9-50 for that purpose.
9-51 (c) The change in law made by Article 11.07, Code of
9-52 Criminal Procedure, as amended by this Act, applies only to an
9-53 application for a writ of habeas corpus filed on or after the
9-54 effective date of this Act by a person convicted of a felony, other
9-55 than an application filed by a person under a sentence of death.
9-56 An application filed before the effective date of this Act by a
9-57 person convicted of a felony, other than an application filed by a
9-58 person under a sentence of death, is covered by the law in effect
9-59 when the application was filed, and the former law is continued in
9-60 effect for that purpose.
9-61 SECTION 8. This Act takes effect September 1, 1995.
9-62 SECTION 9. The importance of this legislation and the
9-63 crowded condition of the calendars in both houses create an
9-64 emergency and an imperative public necessity that the
9-65 constitutional rule requiring bills to be read on three several
9-66 days in each house be suspended, and this rule is hereby suspended.
9-67 * * * * *