By Gallego H.B. No. 1516
76R4608 GWK-F
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),]
2-4 the [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 and standards for the appointment of attorneys [may not appoint an
2-25 attorney] as counsel under this section and the convicting court
2-26 may appoint an attorney as counsel under this section only if the
2-27 appointment is approved by the court of criminal appeals in any
3-1 manner provided by those rules and standards [attorney represented
3-2 the applicant at trial or on 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.
3-22 (f) [(h)] The convicting court [of criminal appeals] shall
3-23 reasonably compensate an attorney appointed [by the court] under
3-24 this section [from state funds]. [The court shall appoint and
3-25 reasonably compensate an attorney for representation in a
3-26 subsequent or untimely application for a writ of habeas corpus, if
3-27 the court determines that the requirements of Section 5 allowing
4-1 consideration of the application have been satisfied.]
4-2 [(i) If an attorney is representing an inmate under a
4-3 sentence of death for an initial application for a writ of habeas
4-4 corpus under Article 11.07 pending on September 1, 1995, the
4-5 attorney may request that the convicting court determine if the
4-6 defendant is indigent and, if so, whether the defendant desires
4-7 appointment of counsel for the purpose of the writ of habeas
4-8 corpus.]
4-9 SECTION 2. Article 11.071, Code of Criminal Procedure, is
4-10 amended by adding Section 2A to read as follows:
4-11 Sec. 2A. STATE REIMBURSEMENT; COUNTY OBLIGATION. (a) The
4-12 state shall reimburse a county for compensation of counsel under
4-13 Section 2 and payment of expenses under Section 3. The total
4-14 amount of reimbursement to which a county is entitled under this
4-15 section for an application under this article may not exceed
4-16 $25,000. Compensation and expenses in excess of the $25,000
4-17 reimbursement provided by the state are the obligation of the
4-18 county.
4-19 (b) A convicting court seeking reimbursement for a county
4-20 shall certify to the comptroller of public accounts the amount of
4-21 compensation that the county is entitled to receive under this
4-22 section. The comptroller of public accounts shall issue a warrant
4-23 to the county in the amount certified by the convicting court, not
4-24 to exceed $25,000.
4-25 SECTION 3. Section 3, Article 11.071, Code of Criminal
4-26 Procedure, is amended by amending Subsections (b) and (d) and
4-27 adding Subsection (f) to read as follows:
5-1 (b) Not later than the 30th day before the date the
5-2 application for a writ of habeas corpus is filed with the
5-3 convicting court, counsel may file with the convicting court [of
5-4 criminal appeals] an ex parte, verified, and confidential request
5-5 for prepayment of expenses, including expert fees, to investigate
5-6 and present potential habeas corpus claims. The request for
5-7 expenses must state:
5-8 (1) the claims of the application to be investigated;
5-9 (2) specific facts that suggest that a claim of
5-10 possible merit may exist; and
5-11 (3) an itemized list of anticipated expenses for each
5-12 claim.
5-13 (d) Counsel may incur expenses for habeas corpus
5-14 investigation, including expenses for experts, without prior
5-15 approval by the convicting court [of criminal appeals]. On
5-16 presentation of a claim for reimbursement, which may be presented
5-17 ex parte, the court shall order reimbursement of counsel for
5-18 expenses, if the expenses are reasonably necessary and reasonably
5-19 incurred. If the court denies in whole or in part the request for
5-20 expenses, the court shall briefly state the reasons for the denial
5-21 in a written order provided to the applicant. The applicant may
5-22 request reconsideration of the denial for reimbursement.
5-23 (f) On request of counsel appointed under this section, the
5-24 convicting court may order any counsel who represented the
5-25 applicant at trial or on direct appeal to produce for inspection
5-26 all trial files or appeals files relating to the applicant's case.
5-27 SECTION 4. Section 4, Article 11.071, Code of Criminal
6-1 Procedure, is amended to read as follows:
6-2 Sec. 4. FILING OF APPLICATION. (a) An application for a
6-3 writ of habeas corpus, returnable to the court of criminal appeals,
6-4 must be filed in the convicting court not later than the 180th day
6-5 after the date the convicting court [of criminal appeals] appoints
6-6 counsel under Section 2 or not later than the 45th day after the
6-7 date the state's [appellee's] original brief is filed on direct
6-8 appeal with the court of criminal appeals, whichever date is later.
6-9 [If an applicant who was convicted before September 1, 1995, does
6-10 not have an initial application for a writ of habeas corpus under
6-11 Article 11.07 pending on September 1, 1995, and has not previously
6-12 filed an application under Article 11.07, the applicant's initial
6-13 application must be filed not later than the 180th day after the
6-14 date the court of criminal appeals appoints counsel under Section 2
6-15 or not later than the 45th day after the date the appellee's
6-16 original brief is filed on direct appeal, whichever is later.]
6-17 (b) The convicting court, before the filing date that is
6-18 applicable to the applicant under Subsection (a), may for good
6-19 cause shown and after a hearing with notice to the attorney
6-20 representing the state grant one 90-day extension that begins on
6-21 the filing date applicable to the defendant under Subsection (a).
6-22 If the convicting court finds that the applicant cannot establish
6-23 good cause justifying the requested extension, the court shall make
6-24 a finding stating that fact and deny the request for the
6-25 extension.
6-26 (c) An application filed after the filing date that is
6-27 applicable to the applicant under Subsection (a) or (b) is
7-1 [presumed] untimely [unless the applicant establishes good cause by
7-2 showing particularized justifying circumstances].
7-3 [(c) If counsel has been appointed and a timely application
7-4 is not filed on or before the applicable filing date under
7-5 Subsection (a), the convicting court shall, before the 11th day
7-6 after the applicable filing date under Subsection (a), conduct a
7-7 hearing and determine if good cause exists for either the untimely
7-8 filing of an application or other necessary action.]
7-9 (d) If the convicting court receives an untimely application
7-10 or determines that after the filing date that is applicable to the
7-11 applicant under Subsection (a) or (b) no application has been
7-12 filed, the convicting court immediately [finds the applicant failed
7-13 to establish good cause for the delay, the court] shall send to the
7-14 court of criminal appeals and to the attorney representing the
7-15 state:
7-16 (1) a copy of the untimely application, with a
7-17 statement of the convicting court that the application is untimely,
7-18 or a statement of the convicting court that no application has been
7-19 filed within the time periods required by Subsections (a) and (b)
7-20 [make appropriate findings of fact];
7-21 (2) a copy of the order scheduling the applicant's
7-22 execution, if scheduled [enter an order to that effect]; and
7-23 (3) any order the judge of the convicting court
7-24 determines should be attached to an untimely application or
7-25 statement under Subdivision (1) [direct the clerk of the court to
7-26 enter a notation that the petition is untimely; and]
7-27 [(4) send a copy of the petition, findings, and
8-1 notation to the court of criminal appeals as provided by Section
8-2 5].
8-3 (e) [If the convicting court finds that the applicant has
8-4 established good cause for the delay, the convicting court shall
8-5 proceed as if the application was timely filed.]
8-6 [(f) Notwithstanding Subsection (b), (c), or (e), an
8-7 applicant cannot establish good cause for the untimely filing of an
8-8 application filed after the 91st day after the applicable filing
8-9 date under Subsection (a).]
8-10 [(g)] A failure to file an application before the [91st day
8-11 after the] filing date applicable to the applicant under Subsection
8-12 (a) or (b) constitutes a waiver of all grounds for relief that were
8-13 available to the applicant before the last date on which an
8-14 application could be timely filed, except as provided by Section 4A
8-15 [5].
8-16 [(h) If an amended or supplemental application is not filed
8-17 within the time specified under Subsection (a), the court shall
8-18 treat the application as a subsequent or untimely application for a
8-19 writ of habeas corpus under Section 5, unless the applicant:]
8-20 [(1) establishes good cause by showing particularized
8-21 justifying circumstances for not raising in the initial application
8-22 the facts or claims contained in the amended or supplemental
8-23 application; and]
8-24 [(2) the amended or supplemental application is filed
8-25 before the 91st day after the filing date applicable to the
8-26 applicant under Subsection (a).]
8-27 SECTION 5. Article 11.071, Code of Criminal Procedure, is
9-1 amended by adding Section 4A to read as follows:
9-2 Sec. 4A. UNTIMELY APPLICATION; APPLICATION NOT FILED. (a)
9-3 On command of the court of criminal appeals, a counsel who files an
9-4 untimely application or fails to file an application before the
9-5 filing date applicable under Section 4(a) or (b) shall show cause
9-6 as to why the application was untimely filed or not filed before
9-7 the filing date.
9-8 (b) At the conclusion of the counsel's presentation to the
9-9 court of criminal appeals, the court may:
9-10 (1) find that good cause has not been shown and
9-11 dismiss the application;
9-12 (2) permit the counsel to continue representation of
9-13 the applicant and establish a new filing date for the application,
9-14 which may be not more than 270 days from the date the court permits
9-15 the counsel to continue representation; or
9-16 (3) appoint new counsel to represent the applicant and
9-17 establish a new filing date for the application, which may be not
9-18 more than 270 days after the date the court appoints new counsel.
9-19 (c) The court of criminal appeals may hold in contempt
9-20 counsel who files an untimely application or fails to file an
9-21 application before the date required by Section 4(a) or (b). The
9-22 court of criminal appeals may punish as a separate instance of
9-23 contempt each day after the first day on which the counsel fails to
9-24 timely file the application. In addition to or in lieu of holding
9-25 counsel in contempt, the court of criminal appeals may enter an
9-26 order denying counsel compensation under Section 2A.
9-27 (d) If the court of criminal appeals establishes a new
10-1 filing date for the application, the court of criminal appeals
10-2 shall notify the convicting court of that fact and the convicting
10-3 court shall proceed under this article.
10-4 (e) Sections 2A and 3 apply to compensation and
10-5 reimbursement of counsel appointed under Subsection (b)(3) in the
10-6 same manner as if counsel had been appointed by the convicting
10-7 court.
10-8 (f) Notwithstanding any other provision of this article, the
10-9 court of criminal appeals shall appoint counsel and establish a new
10-10 filing date for application, which may be no later than the 270th
10-11 day after the date on which counsel is appointed, for each
10-12 applicant who before September 1, 1999, filed an untimely
10-13 application or failed to file an application before the date
10-14 required by Section 4(a) or (b). Section 2A applies to the
10-15 compensation and payment of expenses of counsel appointed by the
10-16 court of criminal appeals under this subsection. This subsection
10-17 expires September 1, 2000.
10-18 SECTION 6. Section 5, Article 11.071, Code of Criminal
10-19 Procedure, is amended by amending Subsections (a) and (b) and
10-20 adding Subsection (f) to read as follows:
10-21 (a) If [an initial application for a writ of habeas corpus
10-22 is untimely or if] a subsequent application is filed after filing
10-23 an initial application, a court may not consider the merits of or
10-24 grant relief based on the subsequent [or untimely initial]
10-25 application unless the application contains sufficient specific
10-26 facts establishing that:
10-27 (1) the current claims and issues have not been and
11-1 could not have been presented previously in a timely initial
11-2 application or in a previously considered application filed under
11-3 this article or Article 11.07 because the factual or legal basis
11-4 for the claim was unavailable[:]
11-5 [(A)] on the date the applicant filed the
11-6 previous application; [or]
11-7 [(B) if the applicant did not file an initial
11-8 application, on or before the last date for the timely filing of an
11-9 initial application;]
11-10 (2) by a preponderance of the evidence, but for a
11-11 violation of the United States Constitution no rational juror could
11-12 have found the applicant guilty beyond a reasonable doubt; or
11-13 (3) by clear and convincing evidence, but for a
11-14 violation of the United States Constitution no rational juror would
11-15 have answered in the state's favor one or more of the special
11-16 issues that were submitted to the jury in the applicant's trial
11-17 under Article 37.071 or 37.0711.
11-18 (b) If the convicting court receives a subsequent
11-19 application [or an untimely initial application], the clerk of the
11-20 court shall:
11-21 (1) attach a notation that the application is a
11-22 subsequent [or untimely initial] application;
11-23 (2) assign to the case a file number that is ancillary
11-24 to that of the conviction being challenged; and
11-25 (3) immediately send to the court of criminal appeals
11-26 a copy of:
11-27 (A) the application;
12-1 (B) the notation;
12-2 (C) the order scheduling the applicant's
12-3 execution, if scheduled; and
12-4 (D) any order the judge of the convicting court
12-5 directs to be attached to the application.
12-6 (f) If an amended or supplemental application is not filed
12-7 within the time specified under Section 4(a) or (b), the court
12-8 shall treat the application as a subsequent application under this
12-9 section.
12-10 SECTION 7. The section heading to Section 5, Article 11.071,
12-11 Code of Criminal Procedure, is amended to read as follows:
12-12 Sec. 5. SUBSEQUENT [OR UNTIMELY] APPLICATION.
12-13 SECTION 8. Section 6(b), Article 11.071, Code of Criminal
12-14 Procedure, is amended to read as follows:
12-15 (b) If the convicting court receives notice that the
12-16 requirements of Section 5 for consideration of a subsequent [or
12-17 untimely] application have been met, a writ of habeas corpus,
12-18 returnable to the court of criminal appeals, shall issue by
12-19 operation of law.
12-20 SECTION 9. Section 7(a), Article 11.071, Code of Criminal
12-21 Procedure, is amended to read as follows:
12-22 (a) The state shall file an answer to the application for a
12-23 writ of habeas corpus not later than the 30th day after the date
12-24 the state receives notice of issuance of the writ. The state shall
12-25 serve the answer on counsel for the applicant or, if the applicant
12-26 is proceeding pro se, on the applicant. The state may request from
12-27 the convicting court an extension of time in which to answer the
13-1 application by showing particularized justifying circumstances for
13-2 the extension, but in no event may the court permit the state to
13-3 file an answer later than the 120th day after the date the state
13-4 receives notice of issuance of the writ.
13-5 SECTION 10. Section 9(b), Article 11.071, Code of Criminal
13-6 Procedure, is amended to read as follows:
13-7 (b) The convicting court shall hold the [allow the
13-8 applicant and the state not less than 10 days to prepare for an]
13-9 evidentiary hearing not later than the 30th day after the date on
13-10 which the court enters the order designating issues under
13-11 Subsection (a). The convicting court may grant a motion to
13-12 postpone the hearing, but not for more than 30 days, and only if
13-13 [parties may waive the preparation time. If the state or the
13-14 applicant requests that an evidentiary hearing be held within 30
13-15 days after the date the court ordered the hearing, the hearing
13-16 shall be held within that period unless] the court states, on the
13-17 record, good cause for delay.
13-18 SECTION 11. This Act takes effect September 1, 1999.
13-19 SECTION 12. The importance of this legislation and the
13-20 crowded condition of the calendars in both houses create an
13-21 emergency and an imperative public necessity that the
13-22 constitutional rule requiring bills to be read on three several
13-23 days in each house be suspended, and this rule is hereby suspended.