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.