Texas 2023 - 88th Regular

Texas House Bill HB3871 Compare Versions

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1	1	88R4782 JRR-F
2	2	By: Cook H.B. No. 3871
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the procedures for an application for a writ of habeas
8	8	corpus and the issuance of the writ.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Article 11.05, Code of Criminal Procedure, is
11	11	amended to read as follows:
12	12	Art. 11.05. BY WHOM WRIT MAY BE ISSUED [GRANTED]. The court
13	13	[Court] of criminal appeals [Criminal Appeals], the district courts
14	14	[District Courts], the county courts [County Courts], or any judge
15	15	[Judge] of those courts may [said Courts, have power to] issue the
16	16	writ of habeas corpus,[;] and it is their duty, on [upon] proper
17	17	application [motion], to issue [grant] the writ under the rules
18	18	prescribed by law.
19	19	SECTION 2. Article 11.051, Code of Criminal Procedure, is
20	20	amended to read as follows:
21	21	Art. 11.051. FILING FEE PROHIBITED. Notwithstanding any
22	22	other law, a clerk of a court may not require a filing fee from an
23	23	individual who files an application [or petition] for a writ of
24	24	habeas corpus.
25	25	SECTION 3. Article 11.06, Code of Criminal Procedure, is
26	26	amended to read as follows:
27	27	Art. 11.06. WHERE WRIT IS RETURNABLE IN CASES NOT INVOLVING
28	28	FELONY CONVICTION [TO ANY COUNTY]. (a) If the applicant has not
29	29	been formally charged by [Before] indictment or information
30	30	[found], the writ must [may] be made returnable to the [any] county
31	31	in which:
32	32	(1) the applicant is confined to the custody of the
33	33	sheriff or other authority;
34	34	(2) the applicant is alleged, by any means including
35	35	the issuance of a warrant for the applicant's arrest or the
36	36	applicant's arrest pursuant to Chapter 14, to have committed a
37	37	criminal offense that provides the basis for the restraint from
38	38	which the application seeks relief; or
39	39	(3) if neither Subdivision (1) nor (2) applies, the
40	40	action imposing a restraint on the applicant's liberty occurred.
41	41	(b) After the applicant has been charged by indictment or
42	42	information, and before any conviction of the applicant, the writ
43	43	must be made returnable to the county in which the indictment or
44	44	information is pending.
45	45	(c) After final conviction in any misdemeanor case, the writ
46	46	must be made returnable to the county in which the applicant was
47	47	convicted [State].
48	48	SECTION 4. Article 11.08, Code of Criminal Procedure, is
49	49	amended to read as follows:
50	50	Art. 11.08. APPLICANT ACCUSED OF [CHARGED WITH] FELONY. If
51	51	the applicant is accused of committing a [person is confined after
52	52	indictment on a charge of] felony offense, whether by indictment,
53	53	information, warrant, arrest, or other means, and has not been
54	54	convicted of the offense, the applicant or petitioner [, he] may
55	55	apply:
56	56	(1) to the judge of the court in which the indictment
57	57	or information charging the applicant [he] is pending [indicted];
58	58	or
59	59	(2) if an indictment or information charging the
60	60	applicant has not been filed or the [if there be no] judge of the
61	61	court in which the indictment or information is pending is not
62	62	available:
63	63	(A) [within the district, then] to any [the]
64	64	judge with felony jurisdiction in a [of any district whose
65	65	residence is nearest to the court house of the] county to [in] which
66	66	the writ is returnable; or
67	67	(B) if there is no judge with felony jurisdiction
68	68	available in a county described by Paragraph (A), to any judge with
69	69	felony jurisdiction who presides over a court in any county that
70	70	adjoins a county described by Paragraph (A) [applicant is held in
71	71	custody].
72	72	SECTION 5. Article 11.09, Code of Criminal Procedure, is
73	73	amended to read as follows:
74	74	Art. 11.09. APPLICANT ACCUSED OR CONVICTED OF [CHARGED
75	75	WITH] MISDEMEANOR. (a) If the applicant is accused of committing a
76	76	[person is confined on a charge of] misdemeanor offense, whether by
77	77	information, warrant, complaint, arrest, or other means, and has
78	78	not been convicted of the offense, the applicant or petitioner [,
79	79	he] may apply:
80	80	(1) to the [county] judge of the court [county] in
81	81	which the information charging the applicant [misdemeanor] is
82	82	pending; or
83	83	(2) if an information charging the applicant has not
84	84	been filed [charged to have been committed,] or the [if there be no
85	85	county] judge of the court in which the information is pending is
86	86	not available:
87	87	(A) [in said county, then] to any [the county]
88	88	judge of a county court with criminal jurisdiction in a [whose
89	89	residence is nearest to the courthouse of the] county to [in] which
90	90	the writ is returnable; or
91	91	(B) if there is no judge of a county court with
92	92	criminal jurisdiction available in a county described by Paragraph
93	93	(A), to any judge of a county court with criminal jurisdiction who
94	94	presides over a court in any county that adjoins a county described
95	95	by Paragraph (A) [applicant is held in custody].
96	96	(b) After final conviction in any misdemeanor case, the
97	97	applicant or petitioner may apply to the judge of the court in which
98	98	the applicant was convicted.
99	99	SECTION 6. Article 11.10, Code of Criminal Procedure, is
100	100	amended to read as follows:
101	101	Art. 11.10. PROCEEDINGS UNDER THE WRIT. If an application
102	102	is [When motion has been] made to a judge under Article 11.08 or
103	103	11.09 [the circumstances set forth in the two preceding Articles],
104	104	the judge [he] shall appoint a time when the judge [he] will examine
105	105	the cause of the applicant, and issue the writ returnable at that
106	106	time, in a specified place in a [the] county to which the writ is
107	107	returnable [where the offense is charged in the indictment or
108	108	information to have been committed. He shall also specify some
109	109	place in the county where he will hear the motion].
110	110	SECTION 7. Article 11.12, Code of Criminal Procedure, is
111	111	amended to read as follows:
112	112	Art. 11.12. WHO MAY PRESENT APPLICATION [PETITION]. The
113	113	[Either the] party for whose relief the writ of habeas corpus is
114	114	intended, or any person on behalf of that party [for him], may
115	115	present an application for a writ of habeas corpus [a petition] to
116	116	the proper authority for the purpose of obtaining relief.
117	117	SECTION 8. Article 11.13, Code of Criminal Procedure, is
118	118	amended to read as follows:
119	119	Art. 11.13. APPLICANT AND PETITIONER. (a) The word
120	120	applicant, as used in this chapter [Chapter], refers to the person
121	121	for whose relief the application for a writ of habeas corpus is
122	122	presented.
123	123	(b) An application for a writ of habeas corpus [asked,
124	124	though the petition] may be signed and presented on behalf of an
125	125	applicant by any [other] person, who shall be referred to as the
126	126	petitioner.
127	127	(c) A petitioner is not a party to a proceeding under this
128	128	chapter.
129	129	(d) A petitioner who is not the applicant's attorney may not
130	130	take any additional actions on behalf of the applicant that would
131	131	constitute the practice of law.
132	132	SECTION 9. Article 11.14, Code of Criminal Procedure, is
133	133	amended to read as follows:
134	134	Art. 11.14. APPLICATION REQUIREMENTS [REQUISITES OF
135	135	PETITION]. (a) An application for a writ of habeas corpus [The
136	136	petition] must state substantially:
137	137	1. That the applicant [person for whose benefit the
138	138	application is made] is illegally restrained in the applicant's
139	139	[his] liberty, and by whom, naming both parties, if their names are
140	140	known, or if unknown, designating and describing them;
141	141	2. When the applicant [party] is confined or restrained
142	142	by virtue of any writ, order or process, or under color of either, a
143	143	copy shall be annexed to the application [petition], or it shall be
144	144	stated that a copy cannot be obtained;
145	145	3. When the confinement or restraint is not by virtue
146	146	of any writ, order or process, the application [petition] may state
147	147	only that the applicant [party] is illegally confined or restrained
148	148	in the applicant's [his] liberty;
149	149	4. There must be a prayer in the application [petition]
150	150	for the writ of habeas corpus; and
151	151	5. Oath must be made that the allegations of the
152	152	application [petition] are true, according to the belief of the
153	153	applicant or petitioner.
154	154	(b) In addition to the requirements under Subsection (a), a
155	155	petitioner must state in the application and under oath that the
156	156	petitioner is presenting the application with the applicant's
157	157	knowing and voluntary consent.
158	158	SECTION 10. Article 11.15, Code of Criminal Procedure, is
159	159	amended to read as follows:
160	160	Art. 11.15. WRIT ISSUED [GRANTED] WITHOUT DELAY. The writ
161	161	of habeas corpus shall be issued [granted] without delay by the
162	162	judge or court receiving the application [petition], unless it be
163	163	manifest from the application [petition] itself, or some documents
164	164	annexed to it, that the applicant [party] is not entitled to any
165	165	[no] relief [whatever].
166	166	SECTION 11. Article 11.16, Code of Criminal Procedure, is
167	167	amended to read as follows:
168	168	Art. 11.16. WRIT MAY ISSUE WITHOUT APPLICATION [MOTION]. A
169	169	judge of the district or county court who has knowledge that any
170	170	person is illegally confined or restrained in the person's [his]
171	171	liberty within the judge's [his] district or county may, if the case
172	172	is [be one] within the judge's [his] jurisdiction, issue the writ of
173	173	habeas corpus, without any application [motion] being made for the
174	174	writ [same].
175	175	SECTION 12. Article 11.24, Code of Criminal Procedure, is
176	176	amended to read as follows:
177	177	Art. 11.24. ONE COMMITTED IN DEFAULT OF BAIL. Where a
178	178	person has been committed to custody for failing to enter into bond,
179	179	the person [he] is entitled to the writ of habeas corpus, if it be
180	180	stated in the application [petition] that there was no sufficient
181	181	cause for requiring bail[,] or that the bail required is excessive.
182	182	If the proof sustains the application [petition], it will entitle
183	183	the person [party] to be discharged[,] or have the bail reduced.
184	184	SECTION 13. Article 11.25, Code of Criminal Procedure, is
185	185	amended to read as follows:
186	186	Art. 11.25. PERSON AFFLICTED WITH DISEASE. When a judge or
187	187	court authorized to issue [grant] writs of habeas corpus shall be
188	188	satisfied, upon investigation, that a person in legal custody is
189	189	afflicted with a disease which will render a removal necessary for
190	190	the preservation of life, an order may be made for the removal of
191	191	the person [prisoner] to some other place where the person's [his]
192	192	health will not be likely to suffer, [;] or the person [he] may be
193	193	admitted to bail when it appears that any manner [species] of
194	194	confinement will endanger the person's [his] life.
195	195	SECTION 14. Article 11.30, Code of Criminal Procedure, is
196	196	amended to read as follows:
197	197	Art. 11.30. HOW RETURN IS MADE. The return is made by
198	198	stating in plain language on [upon] the copy of the writ or some
199	199	paper connected with it:
200	200	1. Whether it is true or not, according to the
201	201	statement of the application [petition], that the person [he] has
202	202	in the person's [his] custody, or under the person's [his]
203	203	restraint, the applicant [person] named or described in the
204	204	application [such petition];
205	205	2. By virtue of what authority, or for what cause, the
206	206	person [he] took and detains the applicant [such person];
207	207	3. If the person [he] had the applicant [such person]
208	208	in the person's [his] custody or under restraint at any time before
209	209	the service of the writ, and has transferred the applicant [him] to
210	210	the custody of another, the person [he] shall state particularly to
211	211	whom, at what time, for what reason or by what authority the person
212	212	[he] made the [such] transfer;
213	213	4. The person [He] shall annex to the person's [his]
214	214	return the writ or warrant, if any, by virtue of which the person
215	215	[he] holds the applicant [person] in custody; and
216	216	5. The return must be signed and sworn to by the person
217	217	making it.
218	218	SECTION 15. Article 11.33, Code of Criminal Procedure, is
219	219	amended to read as follows:
220	220	Art. 11.33. COURT SHALL ALLOW TIME. The court or judge
221	221	issuing [granting] the writ of habeas corpus shall allow reasonable
222	222	time for the production of the person detained in custody.
223	223	SECTION 16. Article 11.38, Code of Criminal Procedure, is
224	224	amended to read as follows:
225	225	Art. 11.38. WHEN A PRISONER DIES. When a prisoner confined
226	226	in jail, or who is in legal custody, shall die, the officer having
227	227	charge of the prisoner [him] shall forthwith report the same to a
228	228	justice of the peace of the county, who shall hold an inquest to
229	229	ascertain the cause of the prisoner's [his] death. All the
230	230	proceedings had in such cases shall be reduced to writing,
231	231	certified and returned as in other cases of inquest; a certified
232	232	copy of which shall be sufficient proof of the death of the prisoner
233	233	at the hearing of an application for a writ of [a motion under]
234	234	habeas corpus.
235	235	SECTION 17. Article 11.51, Code of Criminal Procedure, is
236	236	amended to read as follows:
237	237	Art. 11.51. RECORD OF PROCEEDINGS. If a writ of habeas
238	238	corpus be made returnable before a court in session, all the
239	239	proceedings had shall be entered of record by the clerk of the court
240	240	[thereof], as in any other case in the [such] court. When the
241	241	application [motion] is heard out of the county where the offense
242	242	was committed, or in the court of criminal appeals [Court of
243	243	Criminal Appeals], the clerk shall transmit a certified copy of all
244	244	the proceedings on [upon] the application [motion] to the clerk of
245	245	the court which has jurisdiction of the offense.
246	246	SECTION 18. Article 11.54, Code of Criminal Procedure, is
247	247	amended to read as follows:
248	248	Art. 11.54. COURT MAY GRANT NECESSARY ORDERS. The court or
249	249	judge issuing [granting] a writ of habeas corpus may:
250	250	(1) grant all necessary orders to bring before the
251	251	court or judge [him] the testimony taken before the examining
252	252	court; [,] and
253	253	(2) [may] issue process to enforce the attendance of
254	254	witnesses.
255	255	SECTION 19. Article 11.59, Code of Criminal Procedure, is
256	256	amended to read as follows:
257	257	Art. 11.59. OBTAINING WRIT A SECOND TIME. An applicant [A
258	258	party] may obtain the writ of habeas corpus a second time by stating
259	259	in an application [a motion] therefor that since the hearing of the
260	260	applicant's [his] first application [motion] important testimony
261	261	has been obtained which it was not in the applicant's [his] power to
262	262	produce at the former hearing. The applicant [He] shall also set
263	263	forth the newly discovered testimony [so newly discovered]; and if
264	264	it be that of a witness, the affidavit of the witness shall also
265	265	accompany the application [such motion].
266	266	SECTION 20. Section 2, Article 11.07, Code of Criminal
267	267	Procedure, is repealed.
268	268	SECTION 21. The changes in law made by this Act apply only
269	269	to an application for a writ of habeas corpus filed on or after the
270	270	effective date of this Act. An application filed before the
271	271	effective date of this Act is governed by the law in effect when the
272	272	application was filed, and the former law is continued in effect for
273	273	that purpose.
274	274	SECTION 22. This Act takes effect September 1, 2023.