1-1 By: West S.B. No. 1728
1-2 (In the Senate - Filed March 14, 1997; March 24, 1997, read
1-3 first time and referred to Committee on Criminal Justice;
1-4 April 24, 1997, reported favorably, as amended, by the following
1-5 vote: Yeas 6, Nays 0; April 24, 1997, sent to printer.)
1-6 COMMITTEE AMENDMENT NO. 1 By: West
1-7 Amend S.B. No. 1728, SECTION 1, in Subsection (a), Section 4,
1-8 Article 11.071, Code of Criminal Procedure (Introduced version page
1-9 1, line 20), between "than the" and "45th day", by inserting "180th
1-10 day after the date the court of criminal appeals appoints counsel
1-11 under Section 2 or not later than the".
1-12 A BILL TO BE ENTITLED
1-13 AN ACT
1-14 relating to procedures in death penalty cases.
1-15 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-16 SECTION 1. Subsections (a) and (h), Section 4, Article
1-17 11.071, Code of Criminal Procedure, are amended to read as follows:
1-18 (a) An application for a writ of habeas corpus, returnable
1-19 to the court of criminal appeals, must be filed in the convicting
1-20 court not later than the 45th day after the date the appellee's
1-21 original brief is filed on direct appeal with the court of criminal
1-22 appeals. If an applicant who was convicted before September 1,
1-23 1995, does not have an initial [original] application for a writ of
1-24 habeas corpus under Article 11.07 pending on September 1, 1995, and
1-25 has not previously filed an application under Article 11.07, the
1-26 applicant's initial [original] application must be filed not later
1-27 than the 180th day after the date the court of criminal appeals
1-28 appoints counsel under Section 2 or not later than the 45th day
1-29 after the date the appellee's original brief is filed [due] on
1-30 direct appeal, whichever is later.
1-31 (h) If an amended or supplemental application is not filed
1-32 within the time specified under Subsection (a), the court shall
1-33 treat the application as a subsequent or untimely application for a
1-34 writ of habeas corpus under Section 5, unless the applicant:
1-35 (1) establishes good cause by showing particularized
1-36 justifying circumstances for not raising in the initial [original]
1-37 application the facts or claims contained in the amended or
1-38 supplemental application; and
1-39 (2) the amended or supplemental application is filed
1-40 before the 91st day after the filing date applicable to the
1-41 applicant under Subsection (a).
1-42 SECTION 2. Subsections (a) and (b), Section 5, Article
1-43 11.071, Code of Criminal Procedure, are amended to read as follows:
1-44 (a) If an initial [original] application for a writ of
1-45 habeas corpus is untimely or if a subsequent application is filed
1-46 after filing an initial [original] application, a court may not
1-47 consider the merits of or grant relief based on the subsequent or
1-48 untimely initial [original] application unless the application
1-49 contains sufficient specific facts establishing that:
1-50 (1) the current claims and issues have not been and
1-51 could not have been presented previously in a timely initial
1-52 [original] application or in a previously considered application
1-53 filed under this article or Article 11.07 because the factual or
1-54 legal basis for the claim was unavailable:
1-55 (A) on the date the applicant filed the previous
1-56 application; or
1-57 (B) if the applicant did not file an initial
1-58 [original] application, on or before the last date for the timely
1-59 filing of an initial [original] application;
1-60 (2) by a preponderance of the evidence, but for a
1-61 violation of the United States Constitution no rational juror could
1-62 have found the applicant guilty beyond a reasonable doubt; or
1-63 (3) by clear and convincing evidence, but for a
1-64 violation of the United States Constitution no rational juror would
2-1 have answered in the state's favor one or more of the special
2-2 issues that were submitted to the jury in the applicant's trial
2-3 under Article 37.071 or 37.0711.
2-4 (b) If the convicting court receives a subsequent
2-5 application or an untimely initial [original] application, the
2-6 clerk of the court shall:
2-7 (1) attach a notation that the application is a
2-8 subsequent or untimely initial [original] application;
2-9 (2) assign to the case a file number that is ancillary
2-10 to that of the conviction being challenged; and
2-11 (3) immediately send to the court of criminal appeals
2-12 a copy of:
2-13 (A) the application;
2-14 (B) the notation;
2-15 (C) the order scheduling the applicant's
2-16 execution, if scheduled; and
2-17 (D) any order the judge of the convicting court
2-18 directs to be attached to the application.
2-19 SECTION 3. Subsection (a), Section 7, Article 11.071, Code
2-20 of Criminal Procedure, is amended to read as follows:
2-21 (a) The state shall [may] file an answer to the application
2-22 for a writ of habeas corpus not later than the 30th day after the
2-23 date the state receives notice of issuance of the writ. The state
2-24 shall serve the answer[, if any,] on counsel for the applicant or,
2-25 if the applicant is proceeding pro se, on the applicant. The state
2-26 may request from the convicting court an extension of time in which
2-27 to answer the application by showing particularized justifying
2-28 circumstances for the extension.
2-29 SECTION 4. Section 8, Article 11.071, Code of Criminal
2-30 Procedure, is amended to read as follows:
2-31 Sec. 8. Findings of Fact Without Evidentiary Hearing.
2-32 (a) Not later than the 20th day after the last date the state
2-33 answers [may answer] the application, the convicting court shall
2-34 determine whether controverted, previously unresolved factual
2-35 issues material to the legality of the applicant's confinement
2-36 exist and shall issue a written order of the determination.
2-37 (b) If the convicting court determines the issues do not
2-38 exist, the parties shall [may] file proposed findings of fact and
2-39 conclusions of law for the court to consider on or before a date
2-40 set by the court that is not later than the 30th day after the date
2-41 the order is issued.
2-42 (c) After argument of counsel, if requested by the court,
2-43 the convicting court shall make appropriate written findings of
2-44 fact and conclusions of law not later than the 15th day after the
2-45 date the parties filed proposed findings or not later than the 45th
2-46 day after the date the court's determination is made under
2-47 Subsection (a), whichever occurs first.
2-48 (d) The clerk of the court shall immediately send to:
2-49 (1) the court of criminal appeals a copy of the:
2-50 (A) application;
2-51 (B) answer;
2-52 (C) orders entered by the convicting court;
2-53 (D) proposed findings of fact and conclusions of
2-54 law; and
2-55 (E) findings of fact and conclusions of law
2-56 entered by the court; and
2-57 (2) counsel for the applicant or, if the applicant is
2-58 proceeding pro se, to the applicant, a copy of:
2-59 (A) orders entered by the convicting court;
2-60 (B) proposed findings of fact and conclusions of
2-61 law; and
2-62 (C) findings of fact and conclusions of law
2-63 entered by the court.
2-64 [(e) Failure of the convicting court to issue findings of
2-65 fact and conclusions of law within the time provided by Subsection
2-66 (c) constitutes a finding that controverted, previously unresolved
2-67 factual issues material to the legality of the applicant's
2-68 confinement do not exist.]
2-69 SECTION 5. Subsections (a) and (e), Section 9, Article
3-1 11.071, Code of Criminal Procedure, are amended to read as follows:
3-2 (a) If the convicting court determines that controverted,
3-3 previously unresolved factual issues material to the legality of
3-4 the applicant's confinement exist, the court shall enter an order,
3-5 not later than the 20th day after the last date the state answers
3-6 [may answer] the application, designating the issues of fact to be
3-7 resolved and the manner in which the issues shall be resolved. To
3-8 resolve the issues, the court may require affidavits, depositions,
3-9 interrogatories, and evidentiary hearings and may use personal
3-10 recollection.
3-11 (e) The parties shall [may] file proposed findings of fact
3-12 and conclusions of law for the convicting court to consider on or
3-13 before a date set by the court that is not later than the 30th day
3-14 after the date the transcript is filed. If the court requests
3-15 argument of counsel, after argument the court shall make written
3-16 findings of fact that are necessary to resolve the previously
3-17 unresolved facts and make conclusions of law not later than the
3-18 15th day after the date the parties file proposed findings or not
3-19 later than the 45th day after the date the court reporter files the
3-20 transcript, whichever occurs first.
3-21 SECTION 6. This Act takes effect September 1, 1997.
3-22 SECTION 7. The importance of this legislation and the
3-23 crowded condition of the calendars in both houses create an
3-24 emergency and an imperative public necessity that the
3-25 constitutional rule requiring bills to be read on three several
3-26 days in each house be suspended, and this rule is hereby suspended.
3-27 * * * * *