By:  West                                    S.B. No. 1728

         97S0785/1                           

                                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 45th day after the date the appellee's

 1-8     original brief is filed on direct appeal with the court of criminal

 1-9     appeals.  If an applicant who was convicted before September 1,

1-10     1995, does not have an initial [original] application for a writ of

1-11     habeas corpus under Article 11.07 pending on September 1, 1995, and

1-12     has not previously filed an application under Article 11.07, the

1-13     applicant's initial [original] application must be filed not later

1-14     than the 180th day after the date the court of criminal appeals

1-15     appoints counsel under Section 2 or not later than the 45th day

1-16     after the date the appellee's original brief is filed [due] on

1-17     direct appeal, whichever is later.

1-18           (h)  If an amended or supplemental application is not filed

1-19     within the time specified under Subsection (a), the court shall

1-20     treat the application as a subsequent or untimely application for a

1-21     writ of habeas corpus under Section 5, unless the applicant:

1-22                 (1)  establishes good cause by showing particularized

1-23     justifying circumstances for not raising in the initial [original]

 2-1     application the facts or claims contained in the amended or

 2-2     supplemental application; and

 2-3                 (2)  the amended or supplemental application is filed

 2-4     before the 91st day after the filing date applicable to the

 2-5     applicant under Subsection (a).

 2-6           SECTION 2.  Subsections (a) and (b), Section 5, Article

 2-7     11.071, Code of Criminal Procedure, are amended to read as follows:

 2-8           (a)  If an initial [original] application for a writ of

 2-9     habeas corpus is untimely or if a subsequent application is filed

2-10     after filing an initial [original] application, a court may not

2-11     consider the merits of or grant relief based on the subsequent or

2-12     untimely initial [original] application unless the application

2-13     contains sufficient specific facts establishing that:

2-14                 (1)  the current claims and issues have not been and

2-15     could not have been presented previously in a timely initial

2-16     [original] application or in a previously considered application

2-17     filed under this article or Article 11.07 because the factual or

2-18     legal basis for the claim was unavailable:

2-19                       (A)  on the date the applicant filed the previous

2-20     application; or

2-21                       (B)  if the applicant did not file an initial

2-22     [original] application, on or before the last date for the timely

2-23     filing of an initial [original] application;

2-24                 (2)  by a preponderance of the evidence, but for a

2-25     violation of the United States Constitution no rational juror could

 3-1     have found the applicant guilty beyond a reasonable doubt; or

 3-2                 (3)  by clear and convincing evidence, but for a

 3-3     violation of the United States Constitution no rational juror would

 3-4     have answered in the state's favor one or more of the special

 3-5     issues that were submitted to the jury in the applicant's trial

 3-6     under Article 37.071 or 37.0711.

 3-7           (b)  If the convicting court receives a subsequent

 3-8     application or an untimely initial [original] application, the

 3-9     clerk of the court shall:

3-10                 (1)  attach a notation that the application is a

3-11     subsequent or untimely initial [original] application;

3-12                 (2)  assign to the case a file number that is ancillary

3-13     to that of the conviction being challenged; and

3-14                 (3)  immediately send to the court of criminal appeals

3-15     a copy of:

3-16                       (A)  the application;

3-17                       (B)  the notation;

3-18                       (C)  the order scheduling the applicant's

3-19     execution, if scheduled; and

3-20                       (D)  any order the judge of the convicting court

3-21     directs to be attached to the application.

3-22           SECTION 3.  Subsection (a), Section 7, Article 11.071, Code

3-23     of Criminal Procedure, is amended to read as follows:

3-24           (a)  The state shall [may] file an answer to the application

3-25     for a writ of habeas corpus not later than the 30th day after the

 4-1     date the state receives notice of issuance of the writ.  The state

 4-2     shall serve the answer[, if any,] on counsel for the applicant or,

 4-3     if the applicant is proceeding pro se, on the applicant. The state

 4-4     may request from the convicting court an extension of time in which

 4-5     to answer the application by showing particularized justifying

 4-6     circumstances for the extension.

 4-7           SECTION 4.  Section 8, Article 11.071, Code of Criminal

 4-8     Procedure, is amended to read as follows:

 4-9           Sec. 8.  Findings of Fact Without Evidentiary Hearing.

4-10     (a)  Not later than the 20th day after the last date the state

4-11     answers [may answer] the application, the convicting court shall

4-12     determine whether controverted, previously unresolved factual

4-13     issues material to the legality of the applicant's confinement

4-14     exist and shall issue a written order of the determination.

4-15           (b)  If the convicting court determines the issues do not

4-16     exist, the parties shall [may] file proposed findings of fact and

4-17     conclusions of law for the court to consider on or before a date

4-18     set by the court that is not later than the 30th day after the date

4-19     the order is issued.

4-20           (c)  After argument of counsel, if requested by the court,

4-21     the convicting court shall make appropriate written findings of

4-22     fact and conclusions of law not later than the 15th day after the

4-23     date the parties filed proposed findings or not later than the 45th

4-24     day after the date the court's determination is made under

4-25     Subsection (a), whichever occurs first.

 5-1           (d)  The clerk of the court shall immediately send to:

 5-2                 (1)  the court of criminal appeals a copy of the:

 5-3                       (A)  application;

 5-4                       (B)  answer;

 5-5                       (C)  orders entered by the convicting court;

 5-6                       (D)  proposed findings of fact and conclusions of

 5-7     law; and

 5-8                       (E)  findings of fact and conclusions of law

 5-9     entered by the court; and

5-10                 (2)  counsel for the applicant or, if the applicant is

5-11     proceeding pro se, to the applicant, a copy of:

5-12                       (A)  orders entered by the convicting court;

5-13                       (B)  proposed findings of fact and conclusions of

5-14     law; and

5-15                       (C)  findings of fact and conclusions of law

5-16     entered by the court.

5-17           [(e)  Failure of the convicting court to issue findings of

5-18     fact and conclusions of law within the time provided by Subsection

5-19     (c) constitutes a finding that controverted, previously unresolved

5-20     factual issues material to the legality of the applicant's

5-21     confinement do not exist.]

5-22           SECTION 5.  Subsections (a) and (e), Section 9, Article

5-23     11.071, Code of Criminal Procedure, are amended to read as follows:

5-24           (a)  If the convicting court determines that controverted,

5-25     previously unresolved factual issues material to the legality of

 6-1     the applicant's confinement exist, the court shall enter an order,

 6-2     not later than the 20th day after the last date the state answers

 6-3     [may answer] the application, designating the issues of fact to be

 6-4     resolved and the manner in which the issues shall be resolved.  To

 6-5     resolve the issues, the court may require affidavits, depositions,

 6-6     interrogatories, and evidentiary hearings and may use personal

 6-7     recollection.

 6-8           (e)  The parties shall [may] file proposed findings of fact

 6-9     and conclusions of law for the convicting court to consider on or

6-10     before a date set by the court that is not later than the 30th day

6-11     after the date the transcript is filed.  If the court requests

6-12     argument of counsel, after argument the court shall make written

6-13     findings of fact that are necessary to resolve the previously

6-14     unresolved facts and make conclusions of law not later than the

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

6-16     later than the 45th day after the date the court reporter files the

6-17     transcript, whichever occurs first.

6-18           SECTION 6.  This Act takes effect September 1, 1997.

6-19           SECTION 7.  The importance of this legislation and the

6-20     crowded condition of the calendars in both houses create an

6-21     emergency and an imperative public necessity that the

6-22     constitutional rule requiring bills to be read on three several

6-23     days in each house be suspended, and this rule is hereby suspended.