Texas 2023 - 88th Regular

Texas Senate Bill SB1516 Compare Versions

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1	1	S.B. No. 1516
2	2
3	3
4	4	AN ACT
5	5	relating to the procedures for an application for a writ of habeas
6	6	corpus and the issuance of the writ.
7	7	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
8	8	SECTION 1. Article 11.05, Code of Criminal Procedure, is
9	9	amended to read as follows:
10	10	Art. 11.05. BY WHOM WRIT MAY BE ISSUED [GRANTED]. The court
11	11	[Court] of criminal appeals [Criminal Appeals], the district courts
12	12	[District Courts], the county courts [County Courts], or any judge
13	13	[Judge] of those courts may [said Courts, have power to] issue the
14	14	writ of habeas corpus,[;] and it is their duty, on [upon] proper
15	15	application [motion], to issue [grant] the writ under the rules
16	16	prescribed by law.
17	17	SECTION 2. Article 11.051, Code of Criminal Procedure, is
18	18	amended to read as follows:
19	19	Art. 11.051. FILING FEE PROHIBITED. Notwithstanding any
20	20	other law, a clerk of a court may not require a filing fee from an
21	21	individual who files an application [or petition] for a writ of
22	22	habeas corpus.
23	23	SECTION 3. Article 11.06, Code of Criminal Procedure, is
24	24	amended to read as follows:
25	25	Art. 11.06. WHERE WRIT IS RETURNABLE IN CASES NOT INVOLVING
26	26	FELONY CONVICTION [TO ANY COUNTY]. (a) If the applicant has not
27	27	been formally charged by [Before] indictment or information
28	28	[found], the writ must [may] be made returnable to the [any] county
29	29	in which:
30	30	(1) the applicant is confined to the custody of the
31	31	sheriff or other authority;
32	32	(2) the applicant is alleged, by any means including
33	33	the issuance of a warrant for the applicant's arrest or the
34	34	applicant's arrest pursuant to Chapter 14, to have committed a
35	35	criminal offense that provides the basis for the restraint from
36	36	which the application seeks relief; or
37	37	(3) if neither Subdivision (1) nor (2) applies, the
38	38	action imposing a restraint on the applicant's liberty occurred.
39	39	(b) After the applicant has been charged by indictment or
40	40	information, and before any conviction of the applicant, the writ
41	41	must be made returnable to the county in which the indictment or
42	42	information is pending.
43	43	(c) After final conviction in any misdemeanor case, the writ
44	44	must be made returnable to the county in which the applicant was
45	45	convicted [State].
46	46	SECTION 4. Article 11.08, Code of Criminal Procedure, is
47	47	amended to read as follows:
48	48	Art. 11.08. APPLICANT ACCUSED OF [CHARGED WITH] FELONY. If
49	49	the applicant is accused of committing a [person is confined after
50	50	indictment on a charge of] felony offense, whether by indictment,
51	51	information, warrant, arrest, or other means, and has not been
52	52	convicted of the offense, the applicant or petitioner[, he] may
53	53	apply:
54	54	(1) to the judge of the court in which the indictment
55	55	or information charging the applicant [he] is pending [indicted];
56	56	or
57	57	(2) if an indictment or information charging the
58	58	applicant has not been filed or the [if there be no] judge of the
59	59	court in which the indictment or information is pending is not
60	60	available:
61	61	(A) [within the district, then] to any [the]
62	62	judge with felony jurisdiction in a [of any district whose
63	63	residence is nearest to the court house of the] county to [in] which
64	64	the writ is returnable; or
65	65	(B) if there is no judge with felony jurisdiction
66	66	available in a county described by Paragraph (A), to any judge with
67	67	felony jurisdiction who presides over a court in any county that
68	68	adjoins a county described by Paragraph (A) [applicant is held in
69	69	custody].
70	70	SECTION 5. Article 11.09, Code of Criminal Procedure, is
71	71	amended to read as follows:
72	72	Art. 11.09. APPLICANT ACCUSED OR CONVICTED OF [CHARGED
73	73	WITH] MISDEMEANOR. (a) If the applicant is accused of committing a
74	74	[person is confined on a charge of] misdemeanor offense, whether by
75	75	information, warrant, complaint, arrest, or other means, and has
76	76	not been convicted of the offense, the applicant or petitioner[,
77	77	he] may apply:
78	78	(1) to the [county] judge of the court [county] in
79	79	which the information charging the applicant [misdemeanor] is
80	80	pending; or
81	81	(2) if an information charging the applicant has not
82	82	been filed [charged to have been committed,] or the [if there be no
83	83	county] judge of the court in which the information is pending is
84	84	not available:
85	85	(A) [in said county, then] to any [the county]
86	86	judge of a county court with criminal jurisdiction in a [whose
87	87	residence is nearest to the courthouse of the] county to [in] which
88	88	the writ is returnable; or
89	89	(B) if there is no judge of a county court with
90	90	criminal jurisdiction available in a county described by Paragraph
91	91	(A), to any judge of a county court with criminal jurisdiction who
92	92	presides over a court in any county that adjoins a county described
93	93	by Paragraph (A) [applicant is held in custody].
94	94	(b) After final conviction in any misdemeanor case, the
95	95	applicant or petitioner may apply to the judge of the court in which
96	96	the applicant was convicted.
97	97	SECTION 6. Article 11.10, Code of Criminal Procedure, is
98	98	amended to read as follows:
99	99	Art. 11.10. PROCEEDINGS UNDER THE WRIT. If an application
100	100	is [When motion has been] made to a judge under Article 11.08 or
101	101	11.09 [the circumstances set forth in the two preceding Articles],
102	102	the judge [he] shall appoint a time when the judge [he] will examine
103	103	the cause of the applicant, and issue the writ returnable at that
104	104	time, in a specified place in a [the] county to which the writ is
105	105	returnable [where the offense is charged in the indictment or
106	106	information to have been committed. He shall also specify some
107	107	place in the county where he will hear the motion].
108	108	SECTION 7. Article 11.12, Code of Criminal Procedure, is
109	109	amended to read as follows:
110	110	Art. 11.12. WHO MAY PRESENT APPLICATION [PETITION]. The
111	111	[Either the] party for whose relief the writ of habeas corpus is
112	112	intended, or any person on behalf of that party [for him], may
113	113	present an application for a writ of habeas corpus [a petition] to
114	114	the proper authority for the purpose of obtaining relief.
115	115	SECTION 8. Article 11.13, Code of Criminal Procedure, is
116	116	amended to read as follows:
117	117	Art. 11.13. APPLICANT AND PETITIONER. (a) The word
118	118	applicant, as used in this chapter [Chapter], refers to the person
119	119	for whose relief the application for a writ of habeas corpus is
120	120	presented.
121	121	(b) An application for a writ of habeas corpus [asked,
122	122	though the petition] may be signed and presented on behalf of an
123	123	applicant by any [other] person, who shall be referred to as the
124	124	petitioner.
125	125	(c) A petitioner is not a party to a proceeding under this
126	126	chapter.
127	127	(d) A petitioner who is not the applicant's attorney may not
128	128	take any additional actions on behalf of the applicant that would
129	129	constitute the practice of law.
130	130	SECTION 9. Article 11.14, Code of Criminal Procedure, is
131	131	amended to read as follows:
132	132	Art. 11.14. APPLICATION REQUIREMENTS [REQUISITES OF
133	133	PETITION]. (a) An application for a writ of habeas corpus [The
134	134	petition] must state substantially:
135	135	1. That the applicant [person for whose benefit the
136	136	application is made] is illegally restrained in the applicant's
137	137	[his] liberty, and by whom, naming both parties, if their names are
138	138	known, or if unknown, designating and describing them;
139	139	2. When the applicant [party] is confined or restrained
140	140	by virtue of any writ, order or process, or under color of either, a
141	141	copy shall be annexed to the application [petition], or it shall be
142	142	stated that a copy cannot be obtained;
143	143	3. When the confinement or restraint is not by virtue
144	144	of any writ, order or process, the application [petition] may state
145	145	only that the applicant [party] is illegally confined or restrained
146	146	in the applicant's [his] liberty;
147	147	4. There must be a prayer in the application [petition]
148	148	for the writ of habeas corpus; and
149	149	5. Oath must be made that the allegations of the
150	150	application [petition] are true, according to the belief of the
151	151	applicant or petitioner.
152	152	(b) In addition to the requirements under Subsection (a), a
153	153	petitioner must state in the application and under oath that the
154	154	petitioner is presenting the application with the applicant's
155	155	knowing and voluntary consent.
156	156	SECTION 10. Article 11.15, Code of Criminal Procedure, is
157	157	amended to read as follows:
158	158	Art. 11.15. WRIT ISSUED [GRANTED] WITHOUT DELAY. The writ
159	159	of habeas corpus shall be issued [granted] without delay by the
160	160	judge or court receiving the application [petition], unless it be
161	161	manifest from the application [petition] itself, or some documents
162	162	annexed to it, that the applicant [party] is not entitled to any
163	163	[no] relief [whatever].
164	164	SECTION 11. Article 11.16, Code of Criminal Procedure, is
165	165	amended to read as follows:
166	166	Art. 11.16. WRIT MAY ISSUE WITHOUT APPLICATION [MOTION]. A
167	167	judge of the district or county court who has knowledge that any
168	168	person is illegally confined or restrained in the person's [his]
169	169	liberty within the judge's [his] district or county may, if the case
170	170	is [be one] within the judge's [his] jurisdiction, issue the writ of
171	171	habeas corpus, without any application [motion] being made for the
172	172	writ [same].
173	173	SECTION 12. Article 11.24, Code of Criminal Procedure, is
174	174	amended to read as follows:
175	175	Art. 11.24. ONE COMMITTED IN DEFAULT OF BAIL. Where a
176	176	person has been committed to custody for failing to enter into bond,
177	177	the person [he] is entitled to the writ of habeas corpus, if it be
178	178	stated in the application [petition] that there was no sufficient
179	179	cause for requiring bail[,] or that the bail required is excessive.
180	180	If the proof sustains the application [petition], it will entitle
181	181	the person [party] to be discharged[,] or have the bail reduced.
182	182	SECTION 13. Article 11.25, Code of Criminal Procedure, is
183	183	amended to read as follows:
184	184	Art. 11.25. PERSON AFFLICTED WITH DISEASE. When a judge or
185	185	court authorized to issue [grant] writs of habeas corpus shall be
186	186	satisfied, upon investigation, that a person in legal custody is
187	187	afflicted with a disease which will render a removal necessary for
188	188	the preservation of life, an order may be made for the removal of
189	189	the person [prisoner] to some other place where the person's [his]
190	190	health will not be likely to suffer,[;] or the person [he] may be
191	191	admitted to bail when it appears that any manner [species] of
192	192	confinement will endanger the person's [his] life.
193	193	SECTION 14. Article 11.30, Code of Criminal Procedure, is
194	194	amended to read as follows:
195	195	Art. 11.30. HOW RETURN IS MADE. The return is made by
196	196	stating in plain language on [upon] the copy of the writ or some
197	197	paper connected with it:
198	198	1. Whether it is true or not, according to the
199	199	statement of the application [petition], that the person [he] has
200	200	in the person's [his] custody, or under the person's [his]
201	201	restraint, the applicant [person] named or described in the
202	202	application [such petition];
203	203	2. By virtue of what authority, or for what cause, the
204	204	person [he] took and detains the applicant [such person];
205	205	3. If the person [he] had the applicant [such person]
206	206	in the person's [his] custody or under restraint at any time before
207	207	the service of the writ, and has transferred the applicant [him] to
208	208	the custody of another, the person [he] shall state particularly to
209	209	whom, at what time, for what reason or by what authority the person
210	210	[he] made the [such] transfer;
211	211	4. The person [He] shall annex to the person's [his]
212	212	return the writ or warrant, if any, by virtue of which the person
213	213	[he] holds the applicant [person] in custody; and
214	214	5. The return must be signed and sworn to by the person
215	215	making it.
216	216	SECTION 15. Article 11.33, Code of Criminal Procedure, is
217	217	amended to read as follows:
218	218	Art. 11.33. COURT SHALL ALLOW TIME. The court or judge
219	219	issuing [granting] the writ of habeas corpus shall allow reasonable
220	220	time for the production of the person detained in custody.
221	221	SECTION 16. Article 11.38, Code of Criminal Procedure, is
222	222	amended to read as follows:
223	223	Art. 11.38. WHEN A PRISONER DIES. When a prisoner confined
224	224	in jail, or who is in legal custody, shall die, the officer having
225	225	charge of the prisoner [him] shall forthwith report the same to a
226	226	justice of the peace of the county, who shall hold an inquest to
227	227	ascertain the cause of the prisoner's [his] death. All the
228	228	proceedings had in such cases shall be reduced to writing,
229	229	certified and returned as in other cases of inquest; a certified
230	230	copy of which shall be sufficient proof of the death of the prisoner
231	231	at the hearing of an application for a writ of [a motion under]
232	232	habeas corpus.
233	233	SECTION 17. Article 11.51, Code of Criminal Procedure, is
234	234	amended to read as follows:
235	235	Art. 11.51. RECORD OF PROCEEDINGS. If a writ of habeas
236	236	corpus be made returnable before a court in session, all the
237	237	proceedings had shall be entered of record by the clerk of the court
238	238	[thereof], as in any other case in the [such] court. When the
239	239	application [motion] is heard out of the county where the offense
240	240	was committed, or in the court of criminal appeals [Court of
241	241	Criminal Appeals], the clerk shall transmit a certified copy of all
242	242	the proceedings on [upon] the application [motion] to the clerk of
243	243	the court which has jurisdiction of the offense.
244	244	SECTION 18. Article 11.54, Code of Criminal Procedure, is
245	245	amended to read as follows:
246	246	Art. 11.54. COURT MAY GRANT NECESSARY ORDERS. The court or
247	247	judge issuing [granting] a writ of habeas corpus may:
248	248	(1) grant all necessary orders to bring before the
249	249	court or judge [him] the testimony taken before the examining
250	250	court;[,] and
251	251	(2) [may] issue process to enforce the attendance of
252	252	witnesses.
253	253	SECTION 19. Article 11.59, Code of Criminal Procedure, is
254	254	amended to read as follows:
255	255	Art. 11.59. OBTAINING WRIT A SECOND TIME. An applicant [A
256	256	party] may obtain the writ of habeas corpus a second time by stating
257	257	in an application [a motion] therefor that since the hearing of the
258	258	applicant's [his] first application [motion] important testimony
259	259	has been obtained which it was not in the applicant's [his] power to
260	260	produce at the former hearing. The applicant [He] shall also set
261	261	forth the newly discovered testimony [so newly discovered]; and if
262	262	it be that of a witness, the affidavit of the witness shall also
263	263	accompany the application [such motion].
264	264	SECTION 20. Section 2, Article 11.07, Code of Criminal
265	265	Procedure, is repealed.
266	266	SECTION 21. The changes in law made by this Act apply only
267	267	to an application for a writ of habeas corpus filed on or after the
268	268	effective date of this Act. An application filed before the
269	269	effective date of this Act is governed by the law in effect when the
270	270	application was filed, and the former law is continued in effect for
271	271	that purpose.
272	272	SECTION 22. This Act takes effect September 1, 2023.
273	273	______________________________ ______________________________
274	274	President of the Senate Speaker of the House
275	275	I hereby certify that S.B. No. 1516 passed the Senate on
276	276	April 24, 2023, by the following vote: Yeas 30, Nays 0;
277	277	May 21, 2023, Senate refused to concur in House amendment and
278	278	requested appointment of Conference Committee; May 23, 2023, House
279	279	granted request of the Senate; May 27, 2023, Senate adopted
280	280	Conference Committee Report by the following vote: Yeas 31,
281	281	Nays 0.
282	282	______________________________
283	283	Secretary of the Senate
284	284	I hereby certify that S.B. No. 1516 passed the House, with
285	285	amendment, on May 17, 2023, by the following vote: Yeas 145,
286	286	Nays 0, one present not voting; May 23, 2023, House granted request
287	287	of the Senate for appointment of Conference Committee;
288	288	May 26, 2023, House adopted Conference Committee Report by the
289	289	following vote: Yeas 136, Nays 0, two present not voting.
290	290	______________________________
291	291	Chief Clerk of the House
292	292	Approved:
293	293	______________________________
294	294	Date
295	295	______________________________
296	296	Governor