AN ACT
1-1 relating to procedures in death penalty cases.
1-2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-3 SECTION 1. Subsections (a) and (h), Section 4, Article
1-4 11.071, Code of Criminal Procedure, are amended to read as follows:
1-5 (a) An application for a writ of habeas corpus, returnable
1-6 to the court of criminal appeals, must be filed in the convicting
1-7 court not later than the 180th day after the date the court of
1-8 criminal appeals appoints counsel under Section 2 or not later than
1-9 the 45th day after the date the appellee's original brief is filed
1-10 on direct appeal with the court of criminal appeals. If an
1-11 applicant who was convicted before September 1, 1995, does not have
1-12 an initial [original] application for a writ of habeas corpus under
1-13 Article 11.07 pending on September 1, 1995, and has not previously
1-14 filed an application under Article 11.07, the applicant's initial
1-15 [original] application must be filed not later than the 180th day
1-16 after the date the court of criminal appeals appoints counsel under
1-17 Section 2 or not later than the 45th day after the date the
1-18 appellee's original brief is filed [due] on direct appeal,
1-19 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:
2-1 (1) establishes good cause by showing particularized
2-2 justifying circumstances for not raising in the initial [original]
2-3 application the facts or claims contained in the amended or
2-4 supplemental application; and
2-5 (2) the amended or supplemental application is filed
2-6 before the 91st day after the filing date applicable to the
2-7 applicant under Subsection (a).
2-8 SECTION 2. Subsections (a) and (b), Section 5, Article
2-9 11.071, Code of Criminal Procedure, are amended to read as follows:
2-10 (a) If an initial [original] application for a writ of
2-11 habeas corpus is untimely or if a subsequent application is filed
2-12 after filing an initial [original] application, a court may not
2-13 consider the merits of or grant relief based on the subsequent or
2-14 untimely initial [original] application unless the application
2-15 contains sufficient specific facts establishing that:
2-16 (1) the current claims and issues have not been and
2-17 could not have been presented previously in a timely initial
2-18 [original] application or in a previously considered application
2-19 filed under this article or Article 11.07 because the factual or
2-20 legal basis for the claim was unavailable:
2-21 (A) on the date the applicant filed the previous
2-22 application; or
2-23 (B) if the applicant did not file an initial
2-24 [original] application, on or before the last date for the timely
2-25 filing of an initial [original] application;
3-1 (2) by a preponderance of the evidence, but for a
3-2 violation of the United States Constitution no rational juror could
3-3 have found the applicant guilty beyond a reasonable doubt; or
3-4 (3) by clear and convincing evidence, but for a
3-5 violation of the United States Constitution no rational juror would
3-6 have answered in the state's favor one or more of the special
3-7 issues that were submitted to the jury in the applicant's trial
3-8 under Article 37.071 or 37.0711.
3-9 (b) If the convicting court receives a subsequent
3-10 application or an untimely initial [original] application, the
3-11 clerk of the court shall:
3-12 (1) attach a notation that the application is a
3-13 subsequent or untimely initial [original] application;
3-14 (2) assign to the case a file number that is ancillary
3-15 to that of the conviction being challenged; and
3-16 (3) immediately send to the court of criminal appeals
3-17 a copy of:
3-18 (A) the application;
3-19 (B) the notation;
3-20 (C) the order scheduling the applicant's
3-21 execution, if scheduled; and
3-22 (D) any order the judge of the convicting court
3-23 directs to be attached to the application.
3-24 SECTION 3. Subsection (a), Section 7, Article 11.071, Code
3-25 of Criminal Procedure, is amended to read as follows:
4-1 (a) The state shall [may] file an answer to the application
4-2 for a writ of habeas corpus not later than the 30th day after the
4-3 date the state receives notice of issuance of the writ. The state
4-4 shall serve the answer[, if any,] on counsel for the applicant or,
4-5 if the applicant is proceeding pro se, on the applicant. The state
4-6 may request from the convicting court an extension of time in which
4-7 to answer the application by showing particularized justifying
4-8 circumstances for the extension.
4-9 SECTION 4. Section 8, Article 11.071, Code of Criminal
4-10 Procedure, is amended to read as follows:
4-11 Sec. 8. Findings of Fact Without Evidentiary Hearing.
4-12 (a) Not later than the 20th day after the last date the state
4-13 answers [may answer] the application, the convicting court shall
4-14 determine whether controverted, previously unresolved factual
4-15 issues material to the legality of the applicant's confinement
4-16 exist and shall issue a written order of the determination.
4-17 (b) If the convicting court determines the issues do not
4-18 exist, the parties shall [may] file proposed findings of fact and
4-19 conclusions of law for the court to consider on or before a date
4-20 set by the court that is not later than the 30th day after the date
4-21 the order is issued.
4-22 (c) After argument of counsel, if requested by the court,
4-23 the convicting court shall make appropriate written findings of
4-24 fact and conclusions of law not later than the 15th day after the
4-25 date the parties filed proposed findings or not later than the 45th
5-1 day after the date the court's determination is made under
5-2 Subsection (a), whichever occurs first.
5-3 (d) The clerk of the court shall immediately send to:
5-4 (1) the court of criminal appeals a copy of the:
5-5 (A) application;
5-6 (B) answer;
5-7 (C) orders entered by the convicting court;
5-8 (D) proposed findings of fact and conclusions of
5-9 law; and
5-10 (E) findings of fact and conclusions of law
5-11 entered by the court; and
5-12 (2) counsel for the applicant or, if the applicant is
5-13 proceeding pro se, to the applicant, a copy of:
5-14 (A) orders entered by the convicting court;
5-15 (B) proposed findings of fact and conclusions of
5-16 law; and
5-17 (C) findings of fact and conclusions of law
5-18 entered by the court.
5-19 [(e) Failure of the convicting court to issue findings of
5-20 fact and conclusions of law within the time provided by Subsection
5-21 (c) constitutes a finding that controverted, previously unresolved
5-22 factual issues material to the legality of the applicant's
5-23 confinement do not exist.]
5-24 SECTION 5. Subsections (a) and (e), Section 9, Article
5-25 11.071, Code of Criminal Procedure, are amended to read as follows:
6-1 (a) If the convicting court determines that controverted,
6-2 previously unresolved factual issues material to the legality of
6-3 the applicant's confinement exist, the court shall enter an order,
6-4 not later than the 20th day after the last date the state answers
6-5 [may answer] the application, designating the issues of fact to be
6-6 resolved and the manner in which the issues shall be resolved. To
6-7 resolve the issues, the court may require affidavits, depositions,
6-8 interrogatories, and evidentiary hearings and may use personal
6-9 recollection.
6-10 (e) The parties shall [may] file proposed findings of fact
6-11 and conclusions of law for the convicting court to consider on or
6-12 before a date set by the court that is not later than the 30th day
6-13 after the date the transcript is filed. If the court requests
6-14 argument of counsel, after argument the court shall make written
6-15 findings of fact that are necessary to resolve the previously
6-16 unresolved facts and make conclusions of law not later than the
6-17 15th day after the date the parties file proposed findings or not
6-18 later than the 45th day after the date the court reporter files the
6-19 transcript, whichever occurs first.
6-20 SECTION 6. This Act takes effect September 1, 1997.
6-21 SECTION 7. The importance of this legislation and the
6-22 crowded condition of the calendars in both houses create an
6-23 emergency and an imperative public necessity that the
6-24 constitutional rule requiring bills to be read on three several
6-25 days in each house be suspended, and this rule is hereby suspended.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1728 passed the Senate on
April 29, 1997, by the following vote: Yeas 31, Nays 0.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1728 passed the House on
May 21, 1997, by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor