85R9274 AJZ-F
By: Smithee H.B. No. 2873
A BILL TO BE ENTITLED
AN ACT
relating to the procedures for an application for a writ of habeas
corpus in certain felony cases where the state agrees to relief.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 11, Code of Criminal Procedure, is
amended by adding Article 11.075 to read as follows:
Art. 11.075. PROCEDURES IN CERTAIN FELONY CASES WHERE STATE
AGREES TO RELIEF
Sec. 1. Notwithstanding Article 11.07, this article
establishes the procedures for an application for a writ of habeas
corpus in a felony case in which:
(1) the applicant seeks relief from a judgment of
conviction that imposes a sentence of confinement that is not
suspended; and
(2) the state agrees that the applicant is entitled to
relief.
Sec. 2. An application for a writ of habeas corpus under
this article must be filed with the clerk of the convicting court.
Sec. 3. An application may not be filed under this article
if the applicant could obtain the requested relief by means of an
appeal under Article 44.02 and Rule 25.2, Texas Rules of Appellate
Procedure.
Sec. 4. (a) When an application is filed under this
article, a writ of habeas corpus issues by operation of law.
(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 the conviction being challenged.
Sec. 5. (a) Not later than the 60th day after the date on
which the application is filed, the trial court shall enter a
written order granting or denying the relief sought in the
application. The court may grant the relief requested in the
application only to the extent that the relief is agreed to by the
state.
(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 date 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 article and make findings of fact. An
attorney appointed under this subsection is entitled to
compensation as provided by Article 26.05.
Sec. 6. If the application is denied, the applicant may
appeal under Article 44.02 and Rule 31, Texas Rules of Appellate
Procedure.
Sec. 7. (a) If a subsequent application for a writ of
habeas corpus is filed after final disposition of an initial
application under this article, a court may not consider the merits
of or grant relief based on the subsequent application unless the
application contains sufficient facts establishing that the
current claims and issues have not been and could not have been
presented previously in an original application or in a previously
considered application filed under this article because the factual
or legal basis for the claim was unavailable on the date the
applicant filed the previous application.
(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.
SECTION 2. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2017.