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.