By Gallego H.B. No. 3582
75R11903 KEL-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to procedures regarding an application for a writ of
1-3 habeas corpus filed in a capital case.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Sections 4(a) and (h), Article 11.071, Code of
1-6 Criminal Procedure, are amended to read as follows:
1-7 (a) An application for a writ of habeas corpus, returnable
1-8 to the court of criminal appeals, must be filed in the convicting
1-9 court not later than the 45th day after the date the appellee's
1-10 original brief is filed on direct appeal with the court of criminal
1-11 appeals. If an applicant who was convicted before September 1,
1-12 1995, does not have an initial [original] application for a writ of
1-13 habeas corpus under Article 11.07 pending on September 1, 1995, and
1-14 has not previously filed an application under Article 11.07, the
1-15 applicant's initial [original] application must be filed not later
1-16 than the 180th day after the date the court of criminal appeals
1-17 appoints counsel under Section 2 or not later than the 45th day
1-18 after the date the appellee's original brief is filed [due] on
1-19 direct appeal, whichever is later.
1-20 (h) If an amended or supplemental application is not filed
1-21 within the time specified under Subsection (a), the court shall
1-22 treat the application as a subsequent or untimely application for a
1-23 writ of habeas corpus under Section 5, unless the applicant:
1-24 (1) establishes good cause by showing particularized
2-1 justifying circumstances for not raising in the initial [original]
2-2 application the facts or claims contained in the amended or
2-3 supplemental application; and
2-4 (2) the amended or supplemental application is filed
2-5 before the 91st day after the filing date applicable to the
2-6 applicant under Subsection (a).
2-7 SECTION 2. Sections 5(a) and (b), Article 11.071, Code of
2-8 Criminal Procedure, are amended to read as follows:
2-9 (a) If an initial [original] application for a writ of
2-10 habeas corpus is untimely or if a subsequent application is filed
2-11 after filing an initial [original] application, a court may not
2-12 consider the merits of or grant relief based on the subsequent or
2-13 untimely initial [original] application unless the application
2-14 contains sufficient specific facts establishing that:
2-15 (1) the current claims and issues have not been and
2-16 could not have been presented previously in a timely initial
2-17 [original] application or in a previously considered application
2-18 filed under this article or Article 11.07 because the factual or
2-19 legal basis for the claim was unavailable:
2-20 (A) on the date the applicant filed the previous
2-21 application; or
2-22 (B) if the applicant did not file an initial
2-23 [original] application, on or before the last date for the timely
2-24 filing of an initial [original] application;
2-25 (2) by a preponderance of the evidence, but for a
2-26 violation of the United States Constitution no rational juror could
2-27 have found the applicant guilty beyond a reasonable doubt; or
3-1 (3) by clear and convincing evidence, but for a
3-2 violation of the United States Constitution no rational juror would
3-3 have answered in the state's favor one or more of the special
3-4 issues that were submitted to the jury in the applicant's trial
3-5 under Article 37.071 or 37.0711.
3-6 (b) If the convicting court receives a subsequent
3-7 application or an untimely initial [original] application, the
3-8 clerk of the court shall:
3-9 (1) attach a notation that the application is a
3-10 subsequent or untimely initial [original] application;
3-11 (2) assign to the case a file number that is ancillary
3-12 to that of the conviction being challenged; and
3-13 (3) immediately send to the court of criminal appeals
3-14 a copy of:
3-15 (A) the application;
3-16 (B) the notation;
3-17 (C) the order scheduling the applicant's
3-18 execution, if scheduled; and
3-19 (D) any order the judge of the convicting court
3-20 directs to be attached to the application.
3-21 SECTION 3. Section 7(a), Article 11.071, Code of Criminal
3-22 Procedure, is amended to read as follows:
3-23 (a) The state shall [may] file an answer to the application
3-24 for a writ of habeas corpus not later than the 30th day after the
3-25 date the state receives notice of issuance of the writ. The state
3-26 shall serve the answer[, if any,] on counsel for the applicant or,
3-27 if the applicant is proceeding pro se, on the applicant. The state
4-1 may request from the convicting court an extension of time in which
4-2 to answer the application by showing particularized justifying
4-3 circumstances for the extension.
4-4 SECTION 4. Sections 8(a), (b), and (e), Article 11.071, Code
4-5 of Criminal Procedure, are amended to read as follows:
4-6 (a) Not later than the 20th day after the last date the
4-7 state answers [may answer] the application, the convicting court
4-8 shall determine whether controverted, previously unresolved factual
4-9 issues material to the legality of the applicant's confinement
4-10 exist and shall issue a written order of the determination.
4-11 (b) If the convicting court determines the issues do not
4-12 exist, the parties shall [may] file proposed findings of fact and
4-13 conclusions of law for the court to consider on or before a date
4-14 set by the court that is not later than the 30th day after the date
4-15 the order is issued.
4-16 [(e) Failure of the convicting court to issue findings of
4-17 fact and conclusions of law within the time provided by Subsection
4-18 (c) constitutes a finding that controverted, previously unresolved
4-19 factual issues material to the legality of the applicant's
4-20 confinement do not exist.]
4-21 SECTION 5. Sections 9(a) and (e), Article 11.071, Code of
4-22 Criminal Procedure, are amended to read as follows:
4-23 (a) If the convicting court determines that controverted,
4-24 previously unresolved factual issues material to the legality of
4-25 the applicant's confinement exist, the court shall enter an order,
4-26 not later than the 20th day after the last date the state answers
4-27 [may answer] the application, designating the issues of fact to be
5-1 resolved and the manner in which the issues shall be resolved. To
5-2 resolve the issues, the court may require affidavits, depositions,
5-3 interrogatories, and evidentiary hearings and may use personal
5-4 recollection.
5-5 (e) The parties shall [may] file proposed findings of fact
5-6 and conclusions of law for the convicting court to consider on or
5-7 before a date set by the court that is not later than the 30th day
5-8 after the date the transcript is filed. If the court requests
5-9 argument of counsel, after argument the court shall make written
5-10 findings of fact that are necessary to resolve the previously
5-11 unresolved facts and make conclusions of law not later than the
5-12 15th day after the date the parties file proposed findings or not
5-13 later than the 45th day after the date the court reporter files the
5-14 transcript, whichever occurs first.
5-15 SECTION 6. This Act takes effect September 1, 1997. The
5-16 change in law made by this Act to Article 11.071, Code of Criminal
5-17 Procedure, applies only to a defendant sentenced to death on or
5-18 after the effective date of this Act. A defendant sentenced to
5-19 death before the effective date of this Act is covered by the law
5-20 in effect when the defendant was sentenced to death, and the former
5-21 law is continued in effect for that purpose.
5-22 SECTION 7. The importance of this legislation and the
5-23 crowded condition of the calendars in both houses create an
5-24 emergency and an imperative public necessity that the
5-25 constitutional rule requiring bills to be read on three several
5-26 days in each house be suspended, and this rule is hereby suspended.