By Keel H.B. No. 747
77R4330 GWK-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to an application for a writ of habeas corpus to seek
1-3 relief related to community supervision.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 11, Code of Criminal Procedure, is
1-6 amended by adding Article 11.072 to read as follows:
1-7 Art. 11.072. PROCEDURE IN COMMUNITY SUPERVISION CASE
1-8 Sec. 1. This article establishes the procedures for an
1-9 application for a writ of habeas corpus in a felony or misdemeanor
1-10 case in which the applicant seeks relief from an order or a
1-11 judgment of conviction ordering community supervision.
1-12 Sec. 2. (a) An application for a writ of habeas corpus under
1-13 this article must be filed with the clerk of the court in which
1-14 community supervision was imposed.
1-15 (b) At the time the application is filed, the applicant must
1-16 be, or have been, on community supervision, and the application
1-17 must challenge the legal validity of:
1-18 (1) the conviction for which or order in which
1-19 community supervision was imposed; or
1-20 (2) the conditions of community supervision.
1-21 Sec. 3. (a) An application may not be filed under this
1-22 article if the applicant could obtain the requested relief by means
1-23 of an appeal under Article 44.02 and Rule 25.2, Texas Rules of
1-24 Appellate Procedure.
2-1 (b) An applicant seeking to challenge a particular condition
2-2 of community supervision but not the legality of the conviction for
2-3 which or the order in which community supervision was imposed must
2-4 first attempt to gain relief by filing a motion to amend the
2-5 conditions of community supervision.
2-6 (c) An applicant may challenge a condition of community
2-7 supervision under this article only on constitutional grounds.
2-8 Sec. 4. (a) When an application is filed under this article,
2-9 a writ of habeas corpus issues by operation of law.
2-10 (b) At the time the application is filed, the clerk of the
2-11 court shall assign the case a file number ancillary to that of the
2-12 judgment of conviction or order being challenged.
2-13 Sec. 5. (a) Immediately on filing an application, the
2-14 applicant shall serve a copy of the application on the attorney
2-15 representing the state, by either certified mail, return receipt
2-16 requested, or personal service.
2-17 (b) The state may file an answer within the period
2-18 established by Subsection (c), but is not required to file an
2-19 answer.
2-20 (c) The state may not file an answer after the 30th day
2-21 after the date of service, except that for good cause the
2-22 convicting court may grant the state one 30-day extension.
2-23 (d) Any answer, motion, or other document filed by the state
2-24 must be served on the applicant by certified mail, return receipt
2-25 requested, or by personal service.
2-26 (e) Matters alleged in the application not admitted by the
2-27 state are considered to have been denied.
3-1 Sec. 6. (a) Not later than the 60th day after the day on
3-2 which the state's answer is filed, the trial court shall enter a
3-3 written order granting or denying the relief sought in the
3-4 application.
3-5 (b) In making its determination, the court may order
3-6 affidavits, depositions, interrogatories, or a hearing, and may
3-7 rely on the court's personal recollection.
3-8 (c) If a hearing is ordered, the hearing may not be held
3-9 before the eighth day after the day on which the applicant and the
3-10 state are provided notice of the hearing.
3-11 (d) The court may appoint an attorney or magistrate to hold
3-12 a hearing ordered under this section and make findings of fact. An
3-13 attorney appointed under this subsection is entitled to
3-14 compensation as provided by Article 26.05.
3-15 Sec. 7. (a) If the court determines from the face of an
3-16 application or documents attached to the application that the
3-17 applicant is manifestly entitled to no relief, the court shall
3-18 enter a written order denying the application as frivolous. In any
3-19 other case, the court shall enter a written order including
3-20 findings of fact and conclusions of law. The court may require the
3-21 prevailing party to submit a proposed order.
3-22 (b) At the time an order is entered under this section, the
3-23 clerk of the court shall immediately, by certified mail, return
3-24 receipt requested, send a copy of the order to the applicant and to
3-25 the state.
3-26 Sec. 8. If the application is denied in whole or part, the
3-27 applicant may appeal under Article 44.02 and Rule 31, Texas Rules
4-1 of Appellate Procedure. If the application is granted in whole or
4-2 part, the state may appeal under Article 44.01 and Rule 31, Texas
4-3 Rules of Appellate Procedure.
4-4 Sec. 9. (a) If a subsequent application for a writ of habeas
4-5 corpus is filed after final disposition of an initial application
4-6 under this article, a court may not consider the merits of or grant
4-7 relief based on the subsequent application unless the application
4-8 contains sufficient specific facts establishing that the current
4-9 claims and issues have not been and could not have been presented
4-10 previously in an original application or in a previously considered
4-11 application filed under this article because the factual or legal
4-12 basis for the claim was unavailable on the date the applicant filed
4-13 the previous application.
4-14 (b) For purposes of Subsection (a), a legal basis of a claim
4-15 is unavailable on or before a date described by that subsection if
4-16 the legal basis was not recognized by and could not have been
4-17 reasonably formulated from a final decision of the United States
4-18 Supreme Court, a court of appeals of the United States, or a court
4-19 of appellate jurisdiction of this state on or before that date.
4-20 (c) For purposes of Subsection (a), a factual basis of a
4-21 claim is unavailable on or before a date described by that
4-22 subsection if the factual basis was not ascertainable through the
4-23 exercise of reasonable diligence on or before that date.
4-24 SECTION 2. Article 44.01, Code of Criminal Procedure, is
4-25 amended by adding Subsection (k) to read as follows:
4-26 (k) The state is entitled to appeal an order granting relief
4-27 to an applicant for a writ of habeas corpus under Article 11.072.
5-1 SECTION 3. This Act takes effect immediately if it receives
5-2 a vote of two-thirds of all the members elected to each house, as
5-3 provided by Section 39, Article III, Texas Constitution. If this
5-4 Act does not receive the vote necessary for immediate effect, this
5-5 Act takes effect September 1, 2001.