By:  West                                             S.B. No. 1728

                                A BILL TO BE ENTITLED

                                       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:

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.  Subsections (a) and (b), Section 5, Article

 2-8     11.071, Code of 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.  Subsection (a), Section 7, Article 11.071, Code

3-22     of Criminal 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.  Section 8, Article 11.071, Code of Criminal

 4-5     Procedure, is amended to read as follows:

 4-6           Sec. 8.  Findings of Fact Without Evidentiary Hearing.

 4-7     (a)  Not later than the 20th day after the last date the state

 4-8     answers [may answer] the application, the convicting court shall

 4-9     determine whether controverted, previously unresolved factual

4-10     issues material to the legality of the applicant's confinement

4-11     exist and shall issue a written order of the determination.

4-12           (b)  If the convicting court determines the issues do not

4-13     exist, the parties shall [may] file proposed findings of fact and

4-14     conclusions of law for the court to consider on or before a date

4-15     set by the court that is not later than the 30th day after the date

4-16     the order is issued.

4-17           (c)  After argument of counsel, if requested by the court,

4-18     the convicting court shall make appropriate written findings of

4-19     fact and conclusions of law not later than the 15th day after the

4-20     date the parties filed proposed findings or not later than the 45th

4-21     day after the date the court's determination is made under

4-22     Subsection (a), whichever occurs first.

4-23           (d)  The clerk of the court shall immediately send to:

4-24                 (1)  the court of criminal appeals a copy of the:

4-25                       (A)  application;

4-26                       (B)  answer;

4-27                       (C)  orders entered by the convicting court;

 5-1                       (D)  proposed findings of fact and conclusions of

 5-2     law; and

 5-3                       (E)  findings of fact and conclusions of law

 5-4     entered by the court; and

 5-5                 (2)  counsel for the applicant or, if the applicant is

 5-6     proceeding pro se, to the applicant, a copy of:

 5-7                       (A)  orders entered by the convicting court;

 5-8                       (B)  proposed findings of fact and conclusions of

 5-9     law; and

5-10                       (C)  findings of fact and conclusions of law

5-11     entered by the court.

5-12           [(e)  Failure of the convicting court to issue findings of

5-13     fact and conclusions of law within the time provided by Subsection

5-14     (c) constitutes a finding that controverted, previously unresolved

5-15     factual issues material to the legality of the applicant's

5-16     confinement do not exist.]

5-17           SECTION 5.  Subsections (a) and (e), Section 9, Article

5-18     11.071, Code of Criminal Procedure, are amended to read as follows:

5-19           (a)  If the convicting court determines that controverted,

5-20     previously unresolved factual issues material to the legality of

5-21     the applicant's confinement exist, the court shall enter an order,

5-22     not later than the 20th day after the last date the state answers

5-23     [may answer] the application, designating the issues of fact to be

5-24     resolved and the manner in which the issues shall be resolved.  To

5-25     resolve the issues, the court may require affidavits, depositions,

5-26     interrogatories, and evidentiary hearings and may use personal

5-27     recollection.

 6-1           (e)  The parties shall [may] file proposed findings of fact

 6-2     and conclusions of law for the convicting court to consider on or

 6-3     before a date set by the court that is not later than the 30th day

 6-4     after the date the transcript is filed.  If the court requests

 6-5     argument of counsel, after argument the court shall make written

 6-6     findings of fact that are necessary to resolve the previously

 6-7     unresolved facts and make conclusions of law not later than the

 6-8     15th day after the date the parties file proposed findings or not

 6-9     later than the 45th day after the date the court reporter files the

6-10     transcript, whichever occurs first.

6-11           SECTION 6.  This Act takes effect September 1, 1997.

6-12           SECTION 7.  The importance of this legislation and the

6-13     crowded condition of the calendars in both houses create an

6-14     emergency and an imperative public necessity that the

6-15     constitutional rule requiring bills to be read on three several

6-16     days in each house be suspended, and this rule is hereby suspended.