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.