| 1 | 1 | | 85R9274 AJZ-F |
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| 2 | 2 | | By: Smithee H.B. No. 2873 |
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| 3 | 3 | | |
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| 4 | 4 | | |
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| 5 | 5 | | A BILL TO BE ENTITLED |
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| 6 | 6 | | AN ACT |
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| 7 | 7 | | relating to the procedures for an application for a writ of habeas |
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| 8 | 8 | | corpus in certain felony cases where the state agrees to relief. |
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| 9 | 9 | | BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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| 10 | 10 | | SECTION 1. Chapter 11, Code of Criminal Procedure, is |
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| 11 | 11 | | amended by adding Article 11.075 to read as follows: |
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| 12 | 12 | | Art. 11.075. PROCEDURES IN CERTAIN FELONY CASES WHERE STATE |
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| 13 | 13 | | AGREES TO RELIEF |
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| 14 | 14 | | Sec. 1. Notwithstanding Article 11.07, this article |
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| 15 | 15 | | establishes the procedures for an application for a writ of habeas |
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| 16 | 16 | | corpus in a felony case in which: |
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| 17 | 17 | | (1) the applicant seeks relief from a judgment of |
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| 18 | 18 | | conviction that imposes a sentence of confinement that is not |
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| 19 | 19 | | suspended; and |
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| 20 | 20 | | (2) the state agrees that the applicant is entitled to |
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| 21 | 21 | | relief. |
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| 22 | 22 | | Sec. 2. An application for a writ of habeas corpus under |
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| 23 | 23 | | this article must be filed with the clerk of the convicting court. |
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| 24 | 24 | | Sec. 3. An application may not be filed under this article |
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| 25 | 25 | | if the applicant could obtain the requested relief by means of an |
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| 26 | 26 | | appeal under Article 44.02 and Rule 25.2, Texas Rules of Appellate |
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| 27 | 27 | | Procedure. |
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| 28 | 28 | | Sec. 4. (a) When an application is filed under this |
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| 29 | 29 | | article, a writ of habeas corpus issues by operation of law. |
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| 30 | 30 | | (b) At the time the application is filed, the clerk of the |
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| 31 | 31 | | court shall assign the case a file number ancillary to that of the |
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| 32 | 32 | | judgment of the conviction being challenged. |
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| 33 | 33 | | Sec. 5. (a) Not later than the 60th day after the date on |
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| 34 | 34 | | which the application is filed, the trial court shall enter a |
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| 35 | 35 | | written order granting or denying the relief sought in the |
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| 36 | 36 | | application. The court may grant the relief requested in the |
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| 37 | 37 | | application only to the extent that the relief is agreed to by the |
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| 38 | 38 | | state. |
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| 39 | 39 | | (b) In making its determination, the court may order |
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| 40 | 40 | | affidavits, depositions, interrogatories, or a hearing, and may |
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| 41 | 41 | | rely on the court's personal recollection. |
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| 42 | 42 | | (c) If a hearing is ordered, the hearing may not be held |
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| 43 | 43 | | before the eighth day after the date on which the applicant and the |
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| 44 | 44 | | state are provided notice of the hearing. |
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| 45 | 45 | | (d) The court may appoint an attorney or magistrate to hold |
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| 46 | 46 | | a hearing ordered under this article and make findings of fact. An |
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| 47 | 47 | | attorney appointed under this subsection is entitled to |
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| 48 | 48 | | compensation as provided by Article 26.05. |
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| 49 | 49 | | Sec. 6. If the application is denied, the applicant may |
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| 50 | 50 | | appeal under Article 44.02 and Rule 31, Texas Rules of Appellate |
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| 51 | 51 | | Procedure. |
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| 52 | 52 | | Sec. 7. (a) If a subsequent application for a writ of |
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| 53 | 53 | | habeas corpus is filed after final disposition of an initial |
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| 54 | 54 | | application under this article, a court may not consider the merits |
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| 55 | 55 | | of or grant relief based on the subsequent application unless the |
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| 56 | 56 | | application contains sufficient facts establishing that the |
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| 57 | 57 | | current claims and issues have not been and could not have been |
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| 58 | 58 | | presented previously in an original application or in a previously |
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| 59 | 59 | | considered application filed under this article because the factual |
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| 60 | 60 | | or legal basis for the claim was unavailable on the date the |
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| 61 | 61 | | applicant filed the previous application. |
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| 62 | 62 | | (b) For purposes of Subsection (a), a legal basis of a claim |
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| 63 | 63 | | is unavailable on or before a date described by that subsection if |
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| 64 | 64 | | the legal basis was not recognized by and could not have been |
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| 65 | 65 | | reasonably formulated from a final decision of the United States |
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| 66 | 66 | | Supreme Court, a court of appeals of the United States, or a court |
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| 67 | 67 | | of appellate jurisdiction of this state on or before that date. |
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| 68 | 68 | | (c) For purposes of Subsection (a), a factual basis of a |
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| 69 | 69 | | claim is unavailable on or before a date described by that |
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| 70 | 70 | | subsection if the factual basis was not ascertainable through the |
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| 71 | 71 | | exercise of reasonable diligence on or before that date. |
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| 72 | 72 | | SECTION 2. This Act takes effect immediately if it receives |
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| 73 | 73 | | a vote of two-thirds of all the members elected to each house, as |
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| 74 | 74 | | provided by Section 39, Article III, Texas Constitution. If this |
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| 75 | 75 | | Act does not receive the vote necessary for immediate effect, this |
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| 76 | 76 | | Act takes effect September 1, 2017. |
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