1-1 By: Gallego (Senate Sponsor - Duncan) H.B. No. 1516
1-2 (In the Senate - Received from the House May 7, 1999;
1-3 May 10, 1999, read first time and referred to Committee on
1-4 Jurisprudence; May 10, 1999, rereferred to Committee on Criminal
1-5 Justice; May 13, 1999, reported favorably, as amended, by the
1-6 following vote: Yeas 7, Nays 0; May 13, 1999, sent to printer.)
1-7 COMMITTEE AMENDMENT NO. 1 By: Duncan
1-8 Amend H.B. 1516, SECTION 2, Article 11.071, Code of Criminal
1-9 Procedure, by striking Sec. 2A(a) and (b) (page 2, line 57-page 2,
1-10 line 68) and replacing it with the following:
1-11 Sec. 2A. STATE REIMBURSEMENT; COUNTY OBLIGATION. (a) The
1-12 state shall reimburse a county for compensation of counsel under
1-13 Section 2 and payment of expenses under Section 3. The total
1-14 amount of reimbursement to which a county is entitled under this
1-15 section for an application under this article may not exceed
1-16 $25,000. Compensation and expenses in excess of the $25,000
1-17 reimbursement provided by the state are the obligation of the
1-18 county.
1-19 (b) A convicting court seeking reimbursement for a county
1-20 shall certify to the comptroller of public accounts the amount of
1-21 compensation that the county is entitled to receive under this
1-22 section. The comptroller of public accounts shall issue a warrant
1-23 to the county in the amount certified by the convicting court, not
1-24 to exceed $25,000.
1-25 A BILL TO BE ENTITLED
1-26 AN ACT
1-27 relating to the representation of applicants for writs of habeas
1-28 corpus in capital cases.
1-29 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-30 SECTION 1. Section 2, Article 11.071, Code of Criminal
1-31 Procedure, is amended to read as follows:
1-32 Sec. 2. REPRESENTATION BY COUNSEL. (a) An applicant shall
1-33 be represented by competent counsel unless the applicant has
1-34 elected to proceed pro se and the convicting trial court finds,
1-35 after a hearing on the record, that the applicant's election is
1-36 intelligent and voluntary.
1-37 (b) If a defendant is sentenced to death [on or after
1-38 September 1, 1995,] the convicting court, immediately after
1-39 judgment is entered under Article 42.01, shall determine if the
1-40 defendant is indigent and, if so, whether the defendant desires
1-41 appointment of counsel for the purpose of a writ of habeas corpus.
1-42 [If a defendant is sentenced to death, does not have an initial
1-43 application for a writ of habeas corpus under Article 11.07 pending
1-44 on September 1, 1995, and has not been denied relief by the court
1-45 of criminal appeals in an initial habeas corpus proceeding under
1-46 Article 11.07, the convicting court, as soon as practicable, shall
1-47 determine whether the defendant is indigent and, if so, whether the
1-48 defendant desires the appointment of counsel for the purpose of a
1-49 writ of habeas corpus.]
1-50 (c) At the earliest practical time, but in no event later
1-51 than 30 days, [Immediately] after the convicting court makes the
1-52 findings required under Subsections (a) and [,] (b), [and (i),] the
1-53 [clerk of the] convicting court shall [forward to the court of
1-54 criminal appeals:]
1-55 [(1) a copy of the judgment;]
1-56 [(2) a list containing the name, address, and
1-57 telephone number of each counsel of record for the applicant at
1-58 trial and on direct appeal; and]
1-59 [(3) if the applicant elects to proceed pro se, any
1-60 findings made by the convicting court on the voluntariness of the
1-61 applicant's election.]
1-62 [(d) Unless an applicant elects to proceed pro se or is
1-63 represented by retained counsel, the court of criminal appeals
2-1 shall, under rules and standards adopted by the court,] appoint
2-2 competent counsel, unless the applicant elects to proceed pro se or
2-3 is represented by retained counsel [at the earliest practicable
2-4 time after receipt of the documents under Subsection (c)]. On
2-5 appointing counsel under this section, the convicting court shall
2-6 immediately notify the court of criminal appeals of the
2-7 appointment, including in the notice a copy of the judgment and the
2-8 name, address, and telephone number of the appointed counsel.
2-9 (d) [(e)] The court of criminal appeals shall adopt rules
2-10 for the appointment of attorneys [may not appoint an attorney] as
2-11 counsel under this section and the convicting court may appoint an
2-12 attorney as counsel under this section only if the appointment is
2-13 approved by the court of criminal appeals in any manner provided by
2-14 those rules [attorney represented the applicant at trial or on
2-15 direct appeal, unless:]
2-16 [(1) the applicant and the attorney request the
2-17 appointment on the record; or]
2-18 [(2) the court finds good cause to make the
2-19 appointment.]
2-20 [(f) If counsel is the same person appointed as counsel on
2-21 appeal under Article 26.052, the court of criminal appeals shall
2-22 appoint a second counsel to assist in the preparation of the appeal
2-23 and writ of habeas corpus].
2-24 (e) [(g)] If the court of criminal appeals denies an
2-25 applicant relief under this article, an attorney appointed under
2-26 this section to represent the applicant shall, not later than the
2-27 15th day after the date the court of criminal appeals denies relief
2-28 or, if the case is filed and set for submission, the 15th day after
2-29 the date the court of criminal appeals issues a mandate on the
2-30 initial application for a writ of habeas corpus under this article,
2-31 move to be appointed as counsel in federal habeas review under 21
2-32 U.S.C. Section 848(q) or equivalent provision or, if necessary,
2-33 move for the appointment of other counsel under 21 U.S.C. Section
2-34 848(q) or equivalent provision. The attorney shall immediately
2-35 file a copy of the motion with the court of criminal appeals, and
2-36 if the attorney fails to do so, the court may take any action to
2-37 ensure that the applicant's right to federal habeas review is
2-38 protected, including initiating contempt proceedings against the
2-39 attorney.
2-40 (f) [(h)] The convicting court [of criminal appeals] shall
2-41 reasonably compensate an attorney appointed [by the court] under
2-42 this section as provided by Section 2A [from state funds]. [The
2-43 court shall appoint and reasonably compensate an attorney for
2-44 representation in a subsequent or untimely application for a writ
2-45 of habeas corpus, if the court determines that the requirements of
2-46 Section 5 allowing consideration of the application have been
2-47 satisfied.]
2-48 [(i) If an attorney is representing an inmate under a
2-49 sentence of death for an initial application for a writ of habeas
2-50 corpus under Article 11.07 pending on September 1, 1995, the
2-51 attorney may request that the convicting court determine if the
2-52 defendant is indigent and, if so, whether the defendant desires
2-53 appointment of counsel for the purpose of the writ of habeas
2-54 corpus.]
2-55 SECTION 2. Article 11.071, Code of Criminal Procedure, is
2-56 amended by adding Section 2A to read as follows:
2-57 Sec. 2A. STATE REIMBURSEMENT; COUNTY OBLIGATION. (a) The
2-58 state shall reimburse a county for compensation of counsel under
2-59 Section 2 and payment of expenses under Section 3. The total
2-60 amount of reimbursement to which a county is entitled under this
2-61 section for an application under this article may not exceed the
2-62 maximum reimbursement provided by the state.
2-63 (b) A convicting court seeking reimbursement for a county
2-64 shall certify to the comptroller of public accounts the amount of
2-65 compensation that the county is entitled to receive under this
2-66 section. The comptroller of public accounts shall issue a warrant
2-67 to the county in the amount certified by the convicting court, not
2-68 to exceed the maximum reimbursement provided by the state.
2-69 (c) The limitation imposed by this section on the
3-1 reimbursement by the state to a county for compensation of counsel
3-2 and payment of reasonable expenses does not prohibit a county from
3-3 compensating counsel and reimbursing expenses in an amount that is
3-4 in excess of the amount the county receives from the state as
3-5 reimbursement, and a county is specifically granted discretion by
3-6 this subsection to make payments in excess of the state
3-7 reimbursement.
3-8 SECTION 3. Sections 3(b) and (d), Article 11.071, Code of
3-9 Criminal Procedure, are amended to read as follows:
3-10 (b) Not later than the 30th day before the date the
3-11 application for a writ of habeas corpus is filed with the
3-12 convicting court, counsel may file with the convicting court [of
3-13 criminal appeals] an ex parte, verified, and confidential request
3-14 for prepayment of expenses, including expert fees, to investigate
3-15 and present potential habeas corpus claims. The request for
3-16 expenses must state:
3-17 (1) the claims of the application to be investigated;
3-18 (2) specific facts that suggest that a claim of
3-19 possible merit may exist; and
3-20 (3) an itemized list of anticipated expenses for each
3-21 claim.
3-22 (d) Counsel may incur expenses for habeas corpus
3-23 investigation, including expenses for experts, without prior
3-24 approval by the convicting court [of criminal appeals]. On
3-25 presentation of a claim for reimbursement, which may be presented
3-26 ex parte, the court shall order reimbursement of counsel for
3-27 expenses, if the expenses are reasonably necessary and reasonably
3-28 incurred. If the court denies in whole or in part the request for
3-29 expenses, the court shall briefly state the reasons for the denial
3-30 in a written order provided to the applicant. The applicant may
3-31 request reconsideration of the denial for reimbursement.
3-32 SECTION 4. Section 4, Article 11.071, Code of Criminal
3-33 Procedure, is amended to read as follows:
3-34 Sec. 4. FILING OF APPLICATION. (a) An application for a
3-35 writ of habeas corpus, returnable to the court of criminal appeals,
3-36 must be filed in the convicting court not later than the 180th day
3-37 after the date the convicting court [of criminal appeals] appoints
3-38 counsel under Section 2 or not later than the 45th day after the
3-39 date the state's [appellee's] original brief is filed on direct
3-40 appeal with the court of criminal appeals, whichever date is later.
3-41 [If an applicant who was convicted before September 1, 1995, does
3-42 not have an initial application for a writ of habeas corpus under
3-43 Article 11.07 pending on September 1, 1995, and has not previously
3-44 filed an application under Article 11.07, the applicant's initial
3-45 application must be filed not later than the 180th day after the
3-46 date the court of criminal appeals appoints counsel under Section 2
3-47 or not later than the 45th day after the date the appellee's
3-48 original brief is filed on direct appeal, whichever is later.]
3-49 (b) The convicting court, before the filing date that is
3-50 applicable to the applicant under Subsection (a), may for good
3-51 cause shown and after notice and an opportunity to be heard by the
3-52 attorney representing the state grant one 90-day extension that
3-53 begins on the filing date applicable to the defendant under
3-54 Subsection (a). Either party may request that the court hold a
3-55 hearing on the request. If the convicting court finds that the
3-56 applicant cannot establish good cause justifying the requested
3-57 extension, the court shall make a finding stating that fact and
3-58 deny the request for the extension.
3-59 (c) An application filed after the filing date that is
3-60 applicable to the applicant under Subsection (a) or (b) is
3-61 [presumed] untimely [unless the applicant establishes good cause by
3-62 showing particularized justifying circumstances].
3-63 [(c) If counsel has been appointed and a timely application
3-64 is not filed on or before the applicable filing date under
3-65 Subsection (a), the convicting court shall, before the 11th day
3-66 after the applicable filing date under Subsection (a), conduct a
3-67 hearing and determine if good cause exists for either the untimely
3-68 filing of an application or other necessary action.]
3-69 (d) If the convicting court receives an untimely application
4-1 or determines that after the filing date that is applicable to the
4-2 applicant under Subsection (a) or (b) no application has been
4-3 filed, the convicting court immediately, but in any event within 10
4-4 days, [finds the applicant failed to establish good cause for the
4-5 delay, the court] shall send to the court of criminal appeals and
4-6 to the attorney representing the state:
4-7 (1) a copy of the untimely application, with a
4-8 statement of the convicting court that the application is untimely,
4-9 or a statement of the convicting court that no application has been
4-10 filed within the time periods required by Subsections (a) and (b)
4-11 [make appropriate findings of fact]; and
4-12 (2) any order the judge of the convicting court
4-13 determines should be attached to an untimely application or
4-14 statement under Subdivision (1) [enter an order to that effect;]
4-15 [(3) direct the clerk of the court to enter a notation
4-16 that the petition is untimely; and]
4-17 [(4) send a copy of the petition, findings, and
4-18 notation to the court of criminal appeals as provided by Section
4-19 5].
4-20 (e) [If the convicting court finds that the applicant has
4-21 established good cause for the delay, the convicting court shall
4-22 proceed as if the application was timely filed.]
4-23 [(f) Notwithstanding Subsection (b), (c), or (e), an
4-24 applicant cannot establish good cause for the untimely filing of an
4-25 application filed after the 91st day after the applicable filing
4-26 date under Subsection (a).]
4-27 [(g)] A failure to file an application before the [91st day
4-28 after the] filing date applicable to the applicant under Subsection
4-29 (a) or (b) constitutes a waiver of all grounds for relief that were
4-30 available to the applicant before the last date on which an
4-31 application could be timely filed, except as provided by Section 4A
4-32 [5].
4-33 [(h) If an amended or supplemental application is not filed
4-34 within the time specified under Subsection (a), the court shall
4-35 treat the application as a subsequent or untimely application for a
4-36 writ of habeas corpus under Section 5, unless the applicant:]
4-37 [(1) establishes good cause by showing particularized
4-38 justifying circumstances for not raising in the initial application
4-39 the facts or claims contained in the amended or supplemental
4-40 application; and]
4-41 [(2) the amended or supplemental application is filed
4-42 before the 91st day after the filing date applicable to the
4-43 applicant under Subsection (a).]
4-44 SECTION 5. Article 11.071, Code of Criminal Procedure, is
4-45 amended by adding Section 4A to read as follows:
4-46 Sec. 4A. UNTIMELY APPLICATION; APPLICATION NOT FILED. (a)
4-47 On command of the court of criminal appeals, a counsel who files an
4-48 untimely application or fails to file an application before the
4-49 filing date applicable under Section 4(a) or (b) shall show cause
4-50 as to why the application was untimely filed or not filed before
4-51 the filing date.
4-52 (b) At the conclusion of the counsel's presentation to the
4-53 court of criminal appeals, the court may:
4-54 (1) find that good cause has not been shown and
4-55 dismiss the application;
4-56 (2) permit the counsel to continue representation of
4-57 the applicant and establish a new filing date for the application,
4-58 which may be not more than 180 days from the date the court permits
4-59 the counsel to continue representation; or
4-60 (3) appoint new counsel to represent the applicant and
4-61 establish a new filing date for the application, which may be not
4-62 more than 270 days after the date the court appoints new counsel.
4-63 (c) The court of criminal appeals may hold in contempt
4-64 counsel who files an untimely application or fails to file an
4-65 application before the date required by Section 4(a) or (b). The
4-66 court of criminal appeals may punish as a separate instance of
4-67 contempt each day after the first day on which the counsel fails to
4-68 timely file the application. In addition to or in lieu of holding
4-69 counsel in contempt, the court of criminal appeals may enter an
5-1 order denying counsel compensation under Section 2A.
5-2 (d) If the court of criminal appeals establishes a new
5-3 filing date for the application, the court of criminal appeals
5-4 shall notify the convicting court of that fact and the convicting
5-5 court shall proceed under this article.
5-6 (e) Sections 2A and 3 apply to compensation and
5-7 reimbursement of counsel appointed under Subsection (b)(3) in the
5-8 same manner as if counsel had been appointed by the convicting
5-9 court.
5-10 (f) Notwithstanding any other provision of this article, the
5-11 court of criminal appeals shall appoint counsel and establish a new
5-12 filing date for application, which may be no later than the 270th
5-13 day after the date on which counsel is appointed, for each
5-14 applicant who before September 1, 1999, filed an untimely
5-15 application or failed to file an application before the date
5-16 required by Section 4(a) or (b). Section 2A applies to the
5-17 compensation and payment of expenses of counsel appointed by the
5-18 court of criminal appeals under this subsection.
5-19 SECTION 6. Section 5, Article 11.071, Code of Criminal
5-20 Procedure, is amended by amending Subsections (a) and (b) and
5-21 adding Subsection (f) to read as follows:
5-22 (a) If [an initial application for a writ of habeas corpus
5-23 is untimely or if] a subsequent application for a writ of habeas
5-24 corpus is filed after filing an initial application, a court may
5-25 not consider the merits of or grant relief based on the subsequent
5-26 [or untimely initial] application unless the application contains
5-27 sufficient specific facts establishing that:
5-28 (1) the current claims and issues have not been and
5-29 could not have been presented previously in a timely initial
5-30 application or in a previously considered application filed under
5-31 this article or Article 11.07 because the factual or legal basis
5-32 for the claim was unavailable[:]
5-33 [(A)] on the date the applicant filed the
5-34 previous application; [or]
5-35 [(B) if the applicant did not file an initial
5-36 application, on or before the last date for the timely filing of an
5-37 initial application;]
5-38 (2) by a preponderance of the evidence, but for a
5-39 violation of the United States Constitution no rational juror could
5-40 have found the applicant guilty beyond a reasonable doubt; or
5-41 (3) by clear and convincing evidence, but for a
5-42 violation of the United States Constitution no rational juror would
5-43 have answered in the state's favor one or more of the special
5-44 issues that were submitted to the jury in the applicant's trial
5-45 under Article 37.071 or 37.0711.
5-46 (b) If the convicting court receives a subsequent
5-47 application [or an untimely initial application], the clerk of the
5-48 court shall:
5-49 (1) attach a notation that the application is a
5-50 subsequent [or untimely initial] application;
5-51 (2) assign to the case a file number that is ancillary
5-52 to that of the conviction being challenged; and
5-53 (3) immediately send to the court of criminal appeals
5-54 a copy of:
5-55 (A) the application;
5-56 (B) the notation;
5-57 (C) the order scheduling the applicant's
5-58 execution, if scheduled; and
5-59 (D) any order the judge of the convicting court
5-60 directs to be attached to the application.
5-61 (f) If an amended or supplemental application is not filed
5-62 within the time specified under Section 4(a) or (b), the court
5-63 shall treat the application as a subsequent application under this
5-64 section.
5-65 SECTION 7. The section heading to Section 5, Article 11.071,
5-66 Code of Criminal Procedure, is amended to read as follows:
5-67 Sec. 5. SUBSEQUENT [OR UNTIMELY] APPLICATION.
5-68 SECTION 8. Section 6(b), Article 11.071, Code of Criminal
5-69 Procedure, is amended to read as follows:
6-1 (b) If the convicting court receives notice that the
6-2 requirements of Section 5 for consideration of a subsequent [or
6-3 untimely] application have been met, a writ of habeas corpus,
6-4 returnable to the court of criminal appeals, shall issue by
6-5 operation of law.
6-6 SECTION 9. Section 7(a), Article 11.071, Code of Criminal
6-7 Procedure, is amended to read as follows:
6-8 (a) The state shall file an answer to the application for a
6-9 writ of habeas corpus not later than the 120th [30th] day after the
6-10 date the state receives notice of issuance of the writ. The state
6-11 shall serve the answer on counsel for the applicant or, if the
6-12 applicant is proceeding pro se, on the applicant. The state may
6-13 request from the convicting court an extension of time in which to
6-14 answer the application by showing particularized justifying
6-15 circumstances for the extension, but in no event may the court
6-16 permit the state to file an answer later than the 180th day after
6-17 the date the state receives notice of issuance of the writ.
6-18 SECTION 10. Section 9(b), Article 11.071, Code of Criminal
6-19 Procedure, is amended to read as follows:
6-20 (b) The convicting court shall hold the [allow the
6-21 applicant and the state not less than 10 days to prepare for an]
6-22 evidentiary hearing not later than the 30th day after the date on
6-23 which the court enters the order designating issues under
6-24 Subsection (a). The convicting court may grant a motion to
6-25 postpone the hearing, but not for more than 30 days, and only if
6-26 [parties may waive the preparation time. If the state or the
6-27 applicant requests that an evidentiary hearing be held within 30
6-28 days after the date the court ordered the hearing, the hearing
6-29 shall be held within that period unless] the court states, on the
6-30 record, good cause for delay.
6-31 SECTION 11. This Act takes effect September 1, 1999, and
6-32 applies only to an application for a writ of habeas corpus filed
6-33 under Article 11.071, Code of Criminal Procedure, as amended by
6-34 this Act, on or after that date.
6-35 SECTION 12. The importance of this legislation and the
6-36 crowded condition of the calendars in both houses create an
6-37 emergency and an imperative public necessity that the
6-38 constitutional rule requiring bills to be read on three several
6-39 days in each house be suspended, and this rule is hereby suspended.
6-40 * * * * *