By Gallego                                            H.B. No. 1516
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the representation of applicants for writs of habeas
 1-3     corpus in capital cases.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  Section 2, Article 11.071, Code of Criminal
 1-6     Procedure, is amended to read as follows:
 1-7           Sec. 2.  REPRESENTATION BY COUNSEL.  (a)  An applicant shall
 1-8     be represented by competent counsel unless the applicant has
 1-9     elected to proceed pro se and the convicting trial court finds,
1-10     after a hearing on the record, that the applicant's election is
1-11     intelligent and voluntary.
1-12           (b)  If a defendant is sentenced to death [on or after
1-13     September 1, 1995,] the convicting court, immediately after
1-14     judgment is entered under Article 42.01, shall determine if the
1-15     defendant is indigent and, if so, whether the defendant desires
1-16     appointment of counsel for the purpose of a writ of habeas corpus.
1-17     [If a defendant is sentenced to death, does not have an initial
1-18     application for a writ of habeas corpus under Article 11.07 pending
1-19     on September 1, 1995, and has not been denied relief by the court
1-20     of criminal appeals in an initial habeas corpus proceeding under
1-21     Article 11.07, the convicting court, as soon as practicable, shall
1-22     determine whether the defendant is indigent and, if so, whether the
1-23     defendant desires the appointment of counsel for the purpose of a
1-24     writ of habeas corpus.]
 2-1           (c)  At the earliest practical time, but in no event later
 2-2     than 30 days, [Immediately] after the convicting court makes the
 2-3     findings required under Subsections (a) and [,] (b), [and (i),] the
 2-4     [clerk of the] convicting court shall [forward to the court of
 2-5     criminal appeals:]
 2-6                 [(1)  a copy of the judgment;]
 2-7                 [(2)  a list containing the name, address, and
 2-8     telephone number of each counsel of record for the applicant at
 2-9     trial and on direct appeal; and]
2-10                 [(3)  if the applicant elects to proceed pro se, any
2-11     findings made by the convicting court on the voluntariness of the
2-12     applicant's election.]
2-13           [(d)  Unless an applicant elects to proceed pro se or is
2-14     represented by retained counsel, the court of criminal appeals
2-15     shall, under rules and standards adopted by the court,] appoint
2-16     competent counsel, unless the applicant elects to proceed pro se or
2-17     is represented by retained counsel [at the earliest practicable
2-18     time after receipt of the documents under Subsection (c)].  On
2-19     appointing counsel under this section, the convicting court shall
2-20     immediately notify the court of criminal appeals of the
2-21     appointment, including in the notice a copy of the judgment and the
2-22     name, address, and telephone number of the appointed counsel.
2-23           (d) [(e)]  The court of criminal appeals shall adopt rules
2-24     for the appointment of attorneys [may not appoint an attorney] as
2-25     counsel under this section and the convicting court may appoint an
2-26     attorney as counsel under this section only if the appointment is
2-27     approved by the court of criminal appeals in any manner provided by
 3-1     those rules [attorney represented the applicant at trial or on
 3-2     direct appeal, unless:]
 3-3                 [(1)  the applicant and the attorney request the
 3-4     appointment on the record; or]
 3-5                 [(2)  the court finds good cause to make the
 3-6     appointment.]
 3-7           [(f)  If counsel is the same person appointed as counsel on
 3-8     appeal under Article 26.052, the court of criminal appeals shall
 3-9     appoint a second counsel to assist in the preparation of the appeal
3-10     and writ of habeas corpus].
3-11           (e) [(g)]  If the court of criminal appeals denies an
3-12     applicant relief under this article, an attorney appointed under
3-13     this section to represent the applicant shall, not later than the
3-14     15th day after the date the court of criminal appeals denies relief
3-15     or, if the case is filed and set for submission, the 15th day after
3-16     the date the court of criminal appeals issues a mandate on the
3-17     initial application for a writ of habeas corpus under this article,
3-18     move to be appointed as counsel in federal habeas review under 21
3-19     U.S.C.  Section 848(q) or equivalent provision or, if necessary,
3-20     move for the appointment of other counsel under 21 U.S.C. Section
3-21     848(q) or equivalent provision.  The attorney shall immediately
3-22     file a copy of the motion with the court of criminal appeals, and
3-23     if the attorney fails to do so, the court may take any action to
3-24     ensure that the applicant's right to federal habeas review is
3-25     protected, including initiating contempt proceedings against the
3-26     attorney.
3-27           (f) [(h)]  The convicting court [of criminal appeals] shall
 4-1     reasonably compensate an attorney appointed [by the court] under
 4-2     this section as provided by Section 2A [from state funds].  [The
 4-3     court shall appoint and reasonably compensate an attorney for
 4-4     representation in a subsequent or untimely application for a writ
 4-5     of habeas corpus, if the court determines that the requirements of
 4-6     Section 5 allowing consideration of the application have been
 4-7     satisfied.]
 4-8           [(i)  If an attorney is representing an inmate under a
 4-9     sentence of death for an initial application for a writ of habeas
4-10     corpus under Article 11.07 pending on September 1, 1995, the
4-11     attorney may request that the convicting court determine if the
4-12     defendant is indigent and, if so, whether the defendant desires
4-13     appointment of counsel for the purpose of the writ of habeas
4-14     corpus.]
4-15           SECTION 2.  Article 11.071, Code of Criminal Procedure, is
4-16     amended by adding Section 2A to read as follows:
4-17           Sec. 2A.  STATE REIMBURSEMENT; COUNTY OBLIGATION.  (a)  The
4-18     state shall reimburse a county for compensation of counsel under
4-19     Section 2 and  payment of expenses under Section 3.  The total
4-20     amount of reimbursement to which a county is entitled under this
4-21     section for an application under this article may not exceed the
4-22     maximum reimbursement provided by the state.
4-23           (b)  A convicting court seeking reimbursement for a county
4-24     shall certify to the comptroller of public accounts the amount of
4-25     compensation that the county is entitled to receive under this
4-26     section. The comptroller of public accounts shall issue a warrant
4-27     to the county in the amount certified by the convicting court, not
 5-1     to exceed the maximum reimbursement provided by the state.
 5-2           (c)  The limitation imposed by this section on the
 5-3     reimbursement by the state to a county for compensation of counsel
 5-4     and payment of reasonable expenses does not prohibit a county from
 5-5     compensating counsel and reimbursing expenses in an amount that is
 5-6     in excess of the amount the county receives from the state as
 5-7     reimbursement, and a county is specifically granted discretion by
 5-8     this subsection to make payments in excess of the state
 5-9     reimbursement.
5-10           SECTION 3.  Sections 3(b) and (d), Article 11.071, Code of
5-11     Criminal Procedure, are amended to read as follows:
5-12           (b)  Not later than the 30th day before the date the
5-13     application for a writ of habeas corpus is filed with the
5-14     convicting court, counsel may file with the convicting court [of
5-15     criminal appeals] an ex parte, verified, and confidential request
5-16     for prepayment of expenses, including expert fees, to investigate
5-17     and present potential habeas corpus claims.  The request for
5-18     expenses must state:
5-19                 (1)  the claims of the application to be investigated;
5-20                 (2)  specific facts that suggest that a claim of
5-21     possible merit may exist; and
5-22                 (3)  an itemized list of anticipated expenses for each
5-23     claim.
5-24           (d)  Counsel may incur expenses for habeas corpus
5-25     investigation, including expenses for experts, without prior
5-26     approval by the convicting court [of criminal appeals].  On
5-27     presentation of a claim for reimbursement, which may be presented
 6-1     ex parte, the court shall order reimbursement of counsel for
 6-2     expenses, if the expenses are reasonably necessary and reasonably
 6-3     incurred.  If the court denies in whole or in part the request for
 6-4     expenses, the court shall briefly state the reasons for the denial
 6-5     in a written order provided to the applicant.  The applicant may
 6-6     request reconsideration of the denial for reimbursement.
 6-7           SECTION 4.  Section 4, Article 11.071, Code of Criminal
 6-8     Procedure, is amended to read as follows:
 6-9           Sec. 4.  FILING OF APPLICATION.  (a)  An application for a
6-10     writ of habeas corpus, returnable to the court of criminal appeals,
6-11     must be filed in the convicting court not later than the 180th day
6-12     after the date the convicting court [of criminal appeals] appoints
6-13     counsel under Section 2 or not later than the 45th day after the
6-14     date the state's [appellee's] original brief is filed on direct
6-15     appeal with the court of criminal appeals, whichever date is later.
6-16     [If an applicant who was convicted before September 1, 1995, does
6-17     not have an initial application for a writ of habeas corpus under
6-18     Article 11.07 pending on September 1, 1995, and has not previously
6-19     filed an application under Article 11.07, the applicant's initial
6-20     application must be filed not later than the 180th day after the
6-21     date the court of criminal appeals appoints counsel under Section 2
6-22     or not later than the 45th day after the date the appellee's
6-23     original brief is filed on direct appeal, whichever is later.]
6-24           (b)  The convicting court, before the filing date that is
6-25     applicable to the applicant under Subsection (a), may for good
6-26     cause shown and after notice and an opportunity to be heard by the
6-27     attorney representing the state grant one 90-day extension that
 7-1     begins on the filing date applicable to the defendant under
 7-2     Subsection (a).  Either party may request that the court hold a
 7-3     hearing on the request.  If the convicting court finds that the
 7-4     applicant cannot establish good cause justifying the requested
 7-5     extension, the court shall make a finding  stating that fact and
 7-6     deny the request for the extension.
 7-7           (c)  An application filed after the filing date that is
 7-8     applicable to the applicant under Subsection (a) or (b) is
 7-9     [presumed] untimely [unless the applicant establishes good cause by
7-10     showing particularized justifying circumstances].
7-11           [(c)  If counsel has been appointed and a timely application
7-12     is not filed on or before the applicable filing date under
7-13     Subsection (a), the convicting court shall, before the 11th day
7-14     after the applicable filing date under Subsection (a), conduct a
7-15     hearing and determine if good cause exists for either the untimely
7-16     filing of an application or other necessary action.]
7-17           (d)  If the convicting court receives an untimely application
7-18     or determines that after the filing date that is applicable to the
7-19     applicant under Subsection (a) or (b) no application has been
7-20     filed, the convicting court immediately, but in any event within 10
7-21     days, [finds the applicant failed to establish good cause for the
7-22     delay, the court] shall send to the court of criminal appeals and
7-23     to the attorney representing the state:
7-24                 (1)  a copy of the untimely application, with a
7-25     statement of the convicting court that the application is untimely,
7-26     or a statement of the convicting court that no application has been
7-27     filed within the time periods required by Subsections (a) and (b)
 8-1     [make appropriate findings of fact]; and
 8-2                 (2)  any order the judge of the convicting court
 8-3     determines should be attached to an untimely application or
 8-4     statement under Subdivision (1) [enter an order to that effect;]
 8-5                 [(3)  direct the clerk of the court to enter a notation
 8-6     that the petition is untimely; and]
 8-7                 [(4)  send a copy of the petition, findings, and
 8-8     notation to the court of criminal appeals as provided by Section
 8-9     5].
8-10           (e)  [If the convicting court finds that the applicant has
8-11     established good cause for the delay, the convicting court shall
8-12     proceed as if the application was timely filed.]
8-13           [(f)  Notwithstanding Subsection (b), (c), or (e), an
8-14     applicant cannot establish good cause for the untimely filing of an
8-15     application filed after the 91st day after the applicable filing
8-16     date under Subsection (a).]
8-17           [(g)]  A failure to file an application before the [91st day
8-18     after the] filing date applicable to the applicant under Subsection
8-19     (a) or (b) constitutes a waiver of all grounds for relief that were
8-20     available to the applicant before the last date on which an
8-21     application could be timely filed, except as provided by Section 4A
8-22     [5].
8-23           [(h)  If an amended or supplemental application is not filed
8-24     within the time specified under Subsection (a), the court shall
8-25     treat the application as a subsequent or untimely application for a
8-26     writ of habeas corpus under Section 5, unless the applicant:]
8-27                 [(1)  establishes good cause by showing particularized
 9-1     justifying circumstances for not raising in the initial application
 9-2     the facts or claims contained in the amended or supplemental
 9-3     application; and]
 9-4                 [(2)  the amended or supplemental application is filed
 9-5     before the 91st day after the filing date applicable to the
 9-6     applicant under Subsection (a).]
 9-7           SECTION 5.  Article 11.071, Code of Criminal Procedure, is
 9-8     amended by adding Section 4A to read as follows:
 9-9           Sec. 4A.  UNTIMELY APPLICATION; APPLICATION NOT FILED.  (a)
9-10     On command of the court of criminal appeals, a counsel who files an
9-11     untimely application or fails to file an application before the
9-12     filing date applicable under Section 4(a) or (b) shall show cause
9-13     as to why the application was untimely filed or not filed before
9-14     the filing date.
9-15           (b)  At the conclusion of the counsel's presentation to the
9-16     court of criminal appeals, the court may:
9-17                 (1)  find that good cause has not been shown and
9-18     dismiss the application;
9-19                 (2)  permit the counsel to continue representation of
9-20     the applicant and establish a new filing date for the application,
9-21     which may be not more than 180 days from the date the court permits
9-22     the counsel to continue representation; or
9-23                 (3)  appoint new counsel to represent the applicant and
9-24     establish a new filing date for the application, which may be not
9-25     more than 270 days after the date the court appoints new counsel.
9-26           (c)  The court of criminal appeals may hold in contempt
9-27     counsel who files an untimely application or fails to file an
 10-1    application before the date required by Section 4(a) or (b). The
 10-2    court of criminal appeals may punish as a separate instance of
 10-3    contempt each day after the first day on which the counsel fails to
 10-4    timely file the application.  In addition to or in lieu of holding
 10-5    counsel in contempt, the court of criminal appeals may enter an
 10-6    order denying counsel compensation under Section 2A.
 10-7          (d)  If the court of criminal appeals establishes a new
 10-8    filing date for the application, the court of criminal appeals
 10-9    shall notify the convicting court of that fact and the convicting
10-10    court shall proceed under this article.
10-11          (e)  Sections 2A and 3 apply to compensation and
10-12    reimbursement of counsel appointed under Subsection (b)(3) in the
10-13    same manner as if counsel had been appointed by the convicting
10-14    court.
10-15          (f)  Notwithstanding any other provision of this article, the
10-16    court of criminal appeals shall appoint counsel and establish a new
10-17    filing date for application, which may be no later than the 270th
10-18    day after the date on which counsel is appointed, for each
10-19    applicant who before September 1, 1999, filed an untimely
10-20    application or failed to file an application before the date
10-21    required by Section 4(a) or (b).  Section 2A applies to the
10-22    compensation and payment of expenses of counsel appointed by the
10-23    court of criminal appeals under this subsection.
10-24          SECTION 6.  Section 5, Article 11.071, Code of Criminal
10-25    Procedure, is amended by amending Subsections (a) and (b) and
10-26    adding Subsection (f) to read as follows:
10-27          (a)  If [an initial application for a writ of habeas corpus
 11-1    is untimely or if] a subsequent application for a writ of habeas
 11-2    corpus is filed after filing an initial application, a court may
 11-3    not consider the merits of or grant relief based on the subsequent
 11-4    [or untimely initial] application unless the application contains
 11-5    sufficient specific facts establishing that:
 11-6                (1)  the current claims and issues have not been and
 11-7    could not have been presented previously in a timely initial
 11-8    application or in a previously considered application filed under
 11-9    this article or Article 11.07 because the factual or legal basis
11-10    for the claim was unavailable[:]
11-11                      [(A)]  on the date the applicant filed the
11-12    previous application; [or]
11-13                      [(B)  if the applicant did not file an initial
11-14    application, on or before the last date for the timely filing of an
11-15    initial application;]
11-16                (2)  by a preponderance of the evidence, but for a
11-17    violation of the United States Constitution no rational juror could
11-18    have found the applicant guilty beyond a reasonable doubt; or
11-19                (3)  by clear and convincing evidence, but for a
11-20    violation of the United States Constitution no rational juror would
11-21    have answered in the state's favor one or more of the special
11-22    issues that were submitted to the jury in the applicant's trial
11-23    under Article 37.071 or 37.0711.
11-24          (b)  If the convicting court receives a subsequent
11-25    application [or an untimely initial application], the clerk of the
11-26    court shall:
11-27                (1)  attach a notation that the application is a
 12-1    subsequent [or untimely initial] application;
 12-2                (2)  assign to the case a file number that is ancillary
 12-3    to that of the conviction being challenged; and
 12-4                (3)  immediately send to the court of criminal appeals
 12-5    a copy of:
 12-6                      (A)  the application;
 12-7                      (B)  the notation;
 12-8                      (C)  the order scheduling the applicant's
 12-9    execution, if scheduled; and
12-10                      (D)  any order the judge of the convicting court
12-11    directs to be attached to the application.
12-12          (f)  If an amended or supplemental application is not filed
12-13    within the time specified under Section 4(a) or (b), the court
12-14    shall treat the application as a subsequent application under this
12-15    section.
12-16          SECTION 7.  The section heading to Section 5, Article 11.071,
12-17    Code of Criminal Procedure, is amended to read as follows:
12-18          Sec. 5.  SUBSEQUENT [OR UNTIMELY] APPLICATION.
12-19          SECTION 8.  Section 6(b), Article 11.071, Code of Criminal
12-20    Procedure, is amended to read as follows:
12-21          (b)  If the convicting court receives notice that the
12-22    requirements of Section 5 for consideration of a subsequent [or
12-23    untimely] application have been met, a writ of habeas corpus,
12-24    returnable to the court of criminal appeals, shall issue by
12-25    operation of law.
12-26          SECTION 9.  Section 7(a), Article 11.071, Code of Criminal
12-27    Procedure, is amended to read as follows:
 13-1          (a)  The state shall file an answer to the application for a
 13-2    writ of habeas corpus not later than the 120th [30th] day after the
 13-3    date the state receives notice of issuance of the writ.  The state
 13-4    shall serve the answer on counsel for the applicant or, if the
 13-5    applicant is proceeding pro se, on the applicant.  The state may
 13-6    request from the convicting court an extension of time in which to
 13-7    answer the application by showing particularized justifying
 13-8    circumstances for the extension, but in no event may the court
 13-9    permit the state to file an answer later than the 180th day after
13-10    the date the state receives notice of issuance of the writ.
13-11          SECTION 10.  Section 9(b), Article 11.071, Code of Criminal
13-12    Procedure, is amended to read as follows:
13-13          (b)  The convicting court shall hold the  [allow the
13-14    applicant and the state not less than 10 days to prepare for an]
13-15    evidentiary hearing not later than the 30th day after the date on
13-16    which the court enters the order designating issues under
13-17    Subsection (a).  The convicting court may grant a motion to
13-18    postpone the hearing, but not for more than 30 days, and only if
13-19    [parties may waive the preparation time.  If the state or the
13-20    applicant requests that an evidentiary hearing be held within 30
13-21    days after the date the court ordered the hearing, the hearing
13-22    shall be held within that period unless] the court states, on the
13-23    record, good cause for delay.
13-24          SECTION 11.  This Act takes effect September 1, 1999, and
13-25    applies only to an application for a writ of habeas corpus filed
13-26    under Article 11.071, Code of Criminal Procedure, as amended by
13-27    this Act, on or after that date.
 14-1          SECTION 12.  The importance of this legislation and the
 14-2    crowded condition of the calendars in both houses create an
 14-3    emergency and an imperative public necessity that the
 14-4    constitutional rule requiring bills to be read on three several
 14-5    days in each house be suspended, and this rule is hereby suspended.