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.