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                               * * * * *