Tex.
Code of Crim. Proc. Article 11.071
Procedure in Death Penalty Case
(b)
If a defendant is sentenced to death the convicting court, immediately after judgment is entered under Article 42.01, shall determine if the defendant is indigent and, if so, whether the defendant desires appointment of counsel for the purpose of a writ of habeas corpus. If the defendant desires appointment of counsel for the purpose of a writ of habeas corpus, the court shall appoint the office of capital and forensic writs to represent the defendant as provided by Subsection (c).(c)
At the earliest practical time, but in no event later than 30 days, after the convicting court makes the findings required under Subsections (a) and (b), the convicting court shall appoint the office of capital and forensic writs or, if the office of capital and forensic writs does not accept or is prohibited from accepting an appointment under Section 78.054 (Powers and Duties), Government Code, other competent counsel under Subsection (f), unless the applicant elects to proceed pro se or is represented by retained counsel. On appointing counsel under this section, the convicting court shall immediately notify the court of criminal appeals of the appointment, including in the notice a copy of the judgment and the name, address, and telephone number of the appointed counsel.(d)
Repealed by Acts 2009, 81st Leg., R.S., Ch. 781, Sec. 11, eff. January 1, 2010.(e)
If the court of criminal appeals denies an applicant relief under this article, an attorney appointed under this section to represent the applicant shall, not later than the 15th day after the date the court of criminal appeals denies relief or, if the case is filed and set for submission, the 15th day after the date the court of criminal appeals issues a mandate on the initial application for a writ of habeas corpus under this article, move for the appointment of counsel in federal habeas review under 18 U.S.C. Section 3599. The attorney shall immediately file a copy of the motion with the court of criminal appeals, and if the attorney fails to do so, the court may take any action to ensure that the applicant’s right to federal habeas review is protected, including initiating contempt proceedings against the attorney.(f)
If the office of capital and forensic writs does not accept or is prohibited from accepting an appointment under Section 78.054 (Powers and Duties), Government Code, the convicting court shall appoint counsel from a list of competent counsel maintained by the presiding judges of the administrative judicial regions under Section 78.056 (Appointment List), Government Code. The convicting court shall reasonably compensate as provided by Section 2A an attorney appointed under this section, other than an attorney employed by the office of capital and forensic writs, regardless of whether the attorney is appointed by the convicting court or was appointed by the court of criminal appeals under prior law. An attorney appointed under this section who is employed by the office of capital and forensic writs shall be compensated in accordance with Subchapter B (Definitions), Chapter 78 (Capital and Forensic Writs Committee and Office of Capital and Forensic Writs), Government Code.(b)
A convicting court seeking reimbursement for a county shall certify to the comptroller of public accounts the amount of compensation that the county is entitled to receive under this section. The comptroller of public accounts shall issue a warrant to the county in the amount certified by the convicting court, not to exceed $25,000.(c)
The limitation imposed by this section on the reimbursement by the state to a county for compensation of counsel and payment of reasonable expenses does not prohibit a county from compensating counsel and reimbursing expenses in an amount that is in excess of the amount the county receives from the state as reimbursement, and a county is specifically granted discretion by this subsection to make payments in excess of the state reimbursement.(d)
The comptroller shall reimburse a county for the compensation and payment of expenses of an attorney appointed by the court of criminal appeals under prior law. A convicting court seeking reimbursement for a county as permitted by this subsection shall certify the amount the county is entitled to receive under this subsection for an application filed under this article, not to exceed a total amount of $25,000.(b)
Not later than the 30th day before the date the application for a writ of habeas corpus is filed with the convicting court, counsel may file with the convicting court an ex parte, verified, and confidential request for prepayment of expenses, including expert fees, to investigate and present potential habeas corpus claims. The request for expenses must state:(1)
the claims of the application to be investigated;(2)
specific facts that suggest that a claim of possible merit may exist; and(3)
an itemized list of anticipated expenses for each claim.(c)
The court shall grant a request for expenses in whole or in part if the request for expenses is timely and reasonable. If the court denies in whole or in part the request for expenses, the court shall briefly state the reasons for the denial in a written order provided to the applicant.(d)
Counsel may incur expenses for habeas corpus investigation, including expenses for experts, without prior approval by the convicting court or the court of criminal appeals. On presentation of a claim for reimbursement, which may be presented ex parte, the convicting court shall order reimbursement of counsel for expenses, if the expenses are reasonably necessary and reasonably incurred. If the convicting court denies in whole or in part the request for expenses, the court shall briefly state the reasons for the denial in a written order provided to the applicant. The applicant may request reconsideration of the denial for reimbursement by the convicting court.(e)
Materials submitted to the court under this section are a part of the court’s record.(f)
This section applies to counsel’s investigation of the factual and legal grounds for the filing of an application for a writ of habeas corpus, regardless of whether counsel is employed by the office of capital and forensic writs.(b)
The convicting court, before the filing date that is applicable to the applicant under Subsection (a), may for good cause shown and after notice and an opportunity to be heard by the attorney representing the state grant one 90-day extension that begins on the filing date applicable to the defendant under Subsection (a). Either party may request that the court hold a hearing on the request. If the convicting court finds that the applicant cannot establish good cause justifying the requested extension, the court shall make a finding stating that fact and deny the request for the extension.(c)
An application filed after the filing date that is applicable to the applicant under Subsection (a) or (b) is untimely.(d)
If the convicting court receives an untimely application or determines that after the filing date that is applicable to the applicant under Subsection (a) or (b) no application has been filed, the convicting court immediately, but in any event within 10 days, shall send to the court of criminal appeals and to the attorney representing the state:(1)
a copy of the untimely application, with a statement of the convicting court that the application is untimely, or a statement of the convicting court that no application has been filed within the time periods required by Subsections (a) and (b); and(2)
any order the judge of the convicting court determines should be attached to an untimely application or statement under Subdivision (1).(e)
A failure to file an application before the filing date applicable to the applicant under Subsection (a) or (b) constitutes a waiver of all grounds for relief that were available to the applicant before the last date on which an application could be timely filed, except as provided by Section 4A.(b)
At the conclusion of the counsel’s presentation to the court of criminal appeals, the court may:(1)
find that good cause has not been shown and dismiss the application;(2)
permit the counsel to continue representation of the applicant and establish a new filing date for the application, which may be not more than 180 days from the date the court permits the counsel to continue representation; or(3)
appoint new counsel to represent the applicant and establish a new filing date for the application, which may be not more than 270 days after the date the court appoints new counsel.(c)
The court of criminal appeals may hold in contempt counsel who files an untimely application or fails to file an application before the date required by Section 4(a) or (b). The court of criminal appeals may punish as a separate instance of contempt each day after the first day on which the counsel fails to timely file the application. In addition to or in lieu of holding counsel in contempt, the court of criminal appeals may enter an order denying counsel compensation under Section 2A.(d)
If the court of criminal appeals establishes a new filing date for the application, the court of criminal appeals shall notify the convicting court of that fact and the convicting court shall proceed under this article.(e)
Sections 2A and 3 apply to compensation and reimbursement of counsel appointed under Subsection (b)(3) in the same manner as if counsel had been appointed by the convicting court, unless the attorney is employed by the office of capital and forensic writs, in which case the compensation of that attorney is governed by Subchapter B (Definitions), Chapter 78 (Capital and Forensic Writs Committee and Office of Capital and Forensic Writs), Government Code.(f)
Notwithstanding any other provision of this article, the court of criminal appeals shall appoint counsel and establish a new filing date for application, which may be no later than the 270th day after the date on which counsel is appointed, for each applicant who before September 1, 1999, filed an untimely application or failed to file an application before the date required by Section 4(a) or (b). Section 2A applies to the compensation and payment of expenses of counsel appointed by the court of criminal appeals under this subsection, unless the attorney is employed by the office of capital and forensic writs, in which case the compensation of that attorney is governed by Subchapter B (Definitions), Chapter 78 (Capital and Forensic Writs Committee and Office of Capital and Forensic Writs), Government Code.(1)
the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article or Article 11.07 (Procedure After Conviction Without Death Penalty) because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application;(2)
by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt; or(3)
by clear and convincing evidence, but for a violation of the United States Constitution no rational juror would have answered in the state’s favor one or more of the special issues that were submitted to the jury in the applicant’s trial under Article 37.071 (Procedure in Capital Case), 37.0711 (Procedure in Capital Case for Offense Committed Before September 1, 1991), or 37.072 (Procedure in Repeat Sex Offender Capital Case).(b)
If the convicting court receives a subsequent application, the clerk of the court shall:(1)
attach a notation that the application is a subsequent application;(2)
assign to the case a file number that is ancillary to that of the conviction being challenged; and(3)
immediately send to the court of criminal appeals a copy of:(A)
the application;(B)
the notation;(C)
the order scheduling the applicant’s execution, if scheduled; and(D)
any order the judge of the convicting court directs to be attached to the application.(c)
On receipt of the copies of the documents from the clerk, the court of criminal appeals shall determine whether the requirements of Subsection (a) have been satisfied. The convicting court may not take further action on the application before the court of criminal appeals issues an order finding that the requirements have been satisfied. If the court of criminal appeals determines that the requirements have not been satisfied, the court shall issue an order dismissing the application as an abuse of the writ under this section.(d)
For purposes of Subsection (a)(1), a legal basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the legal basis was not recognized by or could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or before that date.(e)
For purposes of Subsection (a)(1), a factual basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date.(f)
If an amended or supplemental application is not filed within the time specified under Section 4(a) or (b), the court shall treat the application as a subsequent application under this section.(b)
If the convicting court receives notice that the requirements of Section 5 for consideration of a subsequent application have been met, a writ of habeas corpus, returnable to the court of criminal appeals, shall issue by operation of law.(b-1)
If the convicting court receives notice that the requirements of Section 5(a) for consideration of a subsequent application have been met and if the applicant has not elected to proceed pro se and is not represented by retained counsel, the convicting court shall appoint, in order of priority:(1)
the attorney who represented the applicant in the proceedings under Section 5, if the attorney seeks the appointment;(2)
the office of capital and forensic writs, if the office represented the applicant in the proceedings under Section 5 or otherwise accepts the appointment; or(3)
counsel from a list of competent counsel maintained by the presiding judges of the administrative judicial regions under Section 78.056 (Appointment List), Government Code, if the office of capital and forensic writs:(A)
did not represent the applicant as described by Subdivision (2); or(B)
does not accept or is prohibited from accepting the appointment under Section 78.054 (Powers and Duties), Government Code.(b-2)
Regardless of whether the subsequent application is ultimately dismissed, compensation and reimbursement of expenses for counsel appointed under Subsection (b-1) shall be provided as described by Section 2, 2A, or 3, including compensation for time previously spent and reimbursement of expenses previously incurred with respect to the subsequent application.(c)
The clerk of the convicting court shall:(1)
make an appropriate notation that a writ of habeas corpus was issued;(2)
assign to the case a file number that is ancillary to that of the conviction being challenged; and(3)
send a copy of the application by certified mail, return receipt requested, or by secure electronic mail to the attorney representing the state in that court.(d)
The clerk of the convicting court shall promptly deliver copies of documents submitted to the clerk under this article to the applicant and the attorney representing the state.(b)
Matters alleged in the application not admitted by the state are deemed denied.(b)
If the convicting court determines the issues do not exist, the parties shall file proposed findings of fact and conclusions of law for the court to consider on or before a date set by the court that is not later than the 30th day after the date the order is issued.(c)
After argument of counsel, if requested by the court, the convicting court shall make appropriate written findings of fact and conclusions of law not later than the 15th day after the date the parties filed proposed findings or not later than the 45th day after the date the court’s determination is made under Subsection (a), whichever occurs first.(d)
The clerk of the court shall immediately send to:(1)
the court of criminal appeals a copy of the:(A)
application;(B)
answer;(C)
orders entered by the convicting court;(D)
proposed findings of fact and conclusions of law; and(E)
findings of fact and conclusions of law entered by the court; and(2)
counsel for the applicant or, if the applicant is proceeding pro se, to the applicant, a copy of:(A)
orders entered by the convicting court;(B)
proposed findings of fact and conclusions of law; and(C)
findings of fact and conclusions of law entered by the court.(b)
The convicting court shall hold the evidentiary hearing not later than the 30th day after the date on which the court enters the order designating issues under Subsection (a). The convicting court may grant a motion to postpone the hearing, but not for more than 30 days, and only if the court states, on the record, good cause for delay.(c)
The presiding judge of the convicting court shall conduct a hearing held under this section unless another judge presided over the original capital felony trial, in which event that judge, if qualified for assignment under Section 74.054 (Judges Subject to Assignment) or 74.055 (List of Retired and Former Judges Subject to Assignment), Government Code, may preside over the hearing.(d)
The court reporter shall prepare a transcript of the hearing not later than the 30th day after the date the hearing ends and file the transcript with the clerk of the convicting court.(e)
The parties shall file proposed findings of fact and conclusions of law for the convicting court to consider on or before a date set by the court that is not later than the 30th day after the date the transcript is filed. If the court requests argument of counsel, after argument the court shall make written findings of fact that are necessary to resolve the previously unresolved facts and make conclusions of law not later than the 15th day after the date the parties file proposed findings or not later than the 45th day after the date the court reporter files the transcript, whichever occurs first.(f)
The clerk of the convicting court shall immediately transmit to:(1)
the court of criminal appeals a copy of:(A)
the application;(B)
the answers and motions filed;(C)
the court reporter’s transcript;(D)
the documentary exhibits introduced into evidence;(E)
the proposed findings of fact and conclusions of law;(F)
the findings of fact and conclusions of law entered by the court;(G)
the sealed materials such as a confidential request for investigative expenses; and(H)
any other matters used by the convicting court in resolving issues of fact; and(2)
counsel for the applicant or, if the applicant is proceeding pro se, to the applicant, a copy of:(A)
orders entered by the convicting court;(B)
proposed findings of fact and conclusions of law; and(C)
findings of fact and conclusions of law entered by the court.(g)
The clerk of the convicting court shall forward an exhibit that is not documentary to the court of criminal appeals on request of the court.(b)
At the time the application is filed, the applicant must be, or have been, on community supervision, and the application must challenge the legal validity of:(1)
the conviction for which or order in which community supervision was imposed; or(2)
the conditions of community supervision.(b)
An applicant seeking to challenge a particular condition of community supervision but not the legality of the conviction for which or the order in which community supervision was imposed must first attempt to gain relief by filing a motion to amend the conditions of community supervision.(c)
An applicant may challenge a condition of community supervision under this article only on constitutional grounds.(b)
At the time the application is filed, the clerk of the court shall assign the case a file number ancillary to that of the judgment of conviction or order being challenged.(1)
certified mail, return receipt requested;(2)
personal service;(3)
electronic service through the electronic filing manager authorized by Rule 21, Texas Rules of Civil Procedure; or(4)
a secure electronic transmission to the attorney’s e-mail address filed with the electronic filing system as required under Section 80.003 (Electronic Mail Address), Government Code.(b)
The state may file an answer within the period established by Subsection (c), but is not required to file an answer.(c)
The state may not file an answer after the 30th day after the date of service, except that for good cause the convicting court may grant the state one 30-day extension.(d)
Any answer, motion, or other document filed by the state must be served on the applicant by certified mail, return receipt requested, or by personal service.(e)
Matters alleged in the application not admitted by the state are considered to have been denied.(b)
In making its determination, the court may order affidavits, depositions, interrogatories, or a hearing, and may rely on the court’s personal recollection.(c)
If a hearing is ordered, the hearing may not be held before the eighth day after the day on which the applicant and the state are provided notice of the hearing.(d)
The court may appoint an attorney or magistrate to hold a hearing ordered under this section and make findings of fact. An attorney appointed under this subsection is entitled to compensation as provided by Article 26.05 (Compensation of Counsel Appointed to Defend).(b)
At the time an order is entered under this section, the clerk of the court shall immediately, by certified mail, return receipt requested, or by secure electronic mail, send a copy of the order to the applicant and to the state.(b)
For purposes of Subsection (a), a legal basis of a claim is unavailable on or before a date described by that subsection if the legal basis was not recognized by and could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or before that date.(c)
For purposes of Subsection (a), a factual basis of a claim is unavailable on or before a date described by that subsection if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date.
Source:
Article 11.071 — Procedure in Death Penalty Case, https://statutes.capitol.texas.gov/Docs/CR/htm/CR.11.htm#11.071 (accessed Apr. 20, 2024).
