CODE OF CRIMINAL PROCEDURE CHAPTER 11.

HABEAS CORPUS

Art. 11.01. [113] [160-161] What writ is

The writ of habeas corpus is the remedy to be used when any person is
restrained in his liberty. It is an order issued by a court or judge
of competent jurisdiction, directed to any one having a person in
his custody, or under his restraint, commanding him to produce such
person, at a time and place named in the writ, and show why he is
held in custody or under restraint.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.02. [114] [162] [152] To whom directed

The writ runs in the name of "The State of Texas". It is addressed
to a person having another under restraint, or in his custody,
describing, as near as may be, the name of the office, if any, of the
person to whom it is directed, and the name of the person said to be
detained. It shall fix the time and place of return, and be signed
by the judge, or by the clerk with his seal, where issued by a court.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.03. [115] [163] [153] Want of form

The writ of habeas corpus is not invalid, nor shall it be disobeyed
for any want of form, if it substantially appear that it is issued
by competent authority, and the writ sufficiently show the object
of its issuance.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.04. [116] [164] [154] Construction

Every provision relating to the writ of habeas corpus shall be most
favorably construed in order to give effect to the remedy, and
protect the rights of the person seeking relief under it.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.05. [117] [69-84-92-100-165] By whom writ may be granted

The Court of Criminal Appeals, the District Courts, the County
Courts, or any Judge of said Courts, have power to issue the writ of
habeas corpus; and it is their duty, upon proper motion, to grant
the writ under the rules prescribed by law.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.051. Filing Fee Prohibited

Notwithstanding any other law, a clerk of a court may not require a
filing fee from an individual who files an application or petition
for a writ of habeas corpus.

Added by Acts 1999, 76th Leg., ch. 392, Sec. 1, eff. Aug. 30, 1999.

Art. 11.06. [118] [166] [156] Returnable to any county

Before indictment found, the writ may be made returnable to any
county in the State.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.07. [119] [167] [157] Procedure after conviction without
death penalty

Sec. 1. This article establishes the procedures for an application
for writ of habeas corpus in which the applicant seeks relief from a
felony judgment imposing a penalty other than death.

Sec. 2. After indictment found in any felony case, other than a case
in which the death penalty is imposed, and before conviction, the
writ must be made returnable in the county where the offense has
been committed.

Sec. 3. (a) After final conviction in any felony case, the writ must
be made returnable to the Court of Criminal Appeals of Texas at
Austin, Texas.

(b) An application for writ of habeas corpus filed after final
conviction in a felony case, other than a case in which the death
penalty is imposed, must be filed with the clerk of the court in
which the conviction being challenged was obtained, and the clerk
shall assign the application to that court. When the application is
received by that court, a writ of habeas corpus, returnable to the
Court of Criminal Appeals, shall issue by operation of law. The
clerk of that court shall make appropriate notation thereof, assign
to the case a file number (ancillary to that of the conviction being
challenged), and forward a copy of the application by certified
mail, return receipt requested, or by personal service to the
attorney representing the state in that court, who shall answer the
application not later than the 15th day after the date the copy of
the application is received. Matters alleged in the application
not admitted by the state are deemed denied.

(c) Within 20 days of the expiration of the time in which the state
is allowed to answer, it shall be the duty of the convicting court
to decide whether there are controverted, previously unresolved
facts material to the legality of the applicant's confinement.
Confinement means confinement for any offense or any collateral
consequence resulting from the conviction that is the basis of the
instant habeas corpus. If the convicting court decides that there
are no such issues, the clerk shall immediately transmit to the
Court of Criminal Appeals a copy of the application , any answers
filed, and a certificate reciting the date upon which that finding
was made. Failure of the court to act within the allowed 20 days
shall constitute such a finding.

(d) If the convicting court decides that there are controverted,
previously unresolved facts which are material to the legality of
the applicant's confinement, it shall enter an order within 20 days
of the expiration of the time allowed for the state to reply,
designating the issues of fact to be resolved. To resolve those
issues the court may order affidavits, depositions,
interrogatories, and hearings, as well as using personal
recollection. Also, the convicting court may appoint an attorney
or a magistrate to hold a hearing and make findings of fact. An
attorney so appointed shall be compensated as provided in Article
26.05 of this code. It shall be the duty of the reporter who is
designated to transcribe a hearing held pursuant to this article to
prepare a transcript within 15 days of its conclusion. After the
convicting court makes findings of fact or approves the findings of
the person designated to make them, the clerk of the convicting
court shall immediately transmit to the Court of Criminal Appeals,
under one cover, the application, any answers filed, any motions
filed, transcripts of all depositions and hearings, any affidavits,
and any other matters such as official records used by the court in
resolving issues of fact.

Sec. 4. (a) If a subsequent application for writ of habeas corpus is
filed after final disposition of an initial application challenging
the same conviction, a court may not consider the merits of or grant
relief based on the subsequent application unless the application
contains sufficient specific facts establishing that:

(1) 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; or

(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.

(b) 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 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)(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.

Sec. 5. The Court of Criminal Appeals may deny relief upon the
findings and conclusions of the hearing judge without docketing the
cause, or may direct that the cause be docketed and heard as though
originally presented to said court or as an appeal. Upon reviewing
the record the court shall enter its judgment remanding the
applicant to custody or ordering his release, as the law and facts
may justify. The mandate of the court shall issue to the court
issuing the writ, as in other criminal cases. After conviction the
procedure outlined in this Act shall be exclusive and any other
proceeding shall be void and of no force and effect in discharging
the prisoner.

Sec. 6. Upon any hearing by a district judge by virtue of this Act,
the attorney for applicant, and the state, shall be given at least
seven full days' notice before such hearing is held.

Sec. 7. When the attorney for the state files an answer, motion, or
other pleading relating to an application for a writ of habeas
corpus or the court issues an order relating to an application for a
writ of habeas corpus, the clerk of the court shall mail or deliver
to the applicant a copy of the answer, motion, pleading, or order.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1967,
60th Leg., p. 1734, ch. 659, Sec. 7, eff. Aug. 28, 1967; Acts 1973,
63rd Leg., p. 1271, ch. 465, Sec. 2, eff. June 14, 1973.

Sec. 2 amended by Acts 1977, 65th Leg., p. 1974, ch. 789, Sec. 1,
eff. Aug. 29, 1977; Sec. 5 added by Acts 1979, 66th Leg., p. 1017,
ch. 451, Sec. 1, eff. Sept. 1, 1979. Amended by Acts 1995, 74th
Leg., ch. 319, Sec. 5, eff. Sept. 1, 1995; Sec. 3(b) amended by Acts
1999, 76th Leg., ch. 580, Sec. 2, eff. Sept. 1, 1999.

Art. 11.071. Procedure in death penalty case

Application to Death Penalty Case

Sec. 1. Notwithstanding any other provision of this chapter, this
article establishes the procedures for an application for a writ of
habeas corpus in which the applicant seeks relief from a judgment
imposing a penalty of death.

Representation by Counsel

Sec. 2. (a) An applicant shall be represented by competent counsel
unless the applicant has elected to proceed pro se and the
convicting trial court finds, after a hearing on the record, that
the applicant's election is intelligent and voluntary.

(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.

(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
competent counsel, 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) The court of criminal appeals shall adopt rules for the
appointment of attorneys as counsel under this section and the
convicting court may appoint an attorney as counsel under this
section only if the appointment is approved by the court of criminal
appeals in any manner provided by those rules.

(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 to be appointed as
counsel in federal habeas review under 21 U.S.C. Section 848(q) or
equivalent provision or, if necessary, move for the appointment of
other counsel under 21 U.S.C. Section 848(q) or equivalent
provision. 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) The convicting court shall reasonably compensate as provided by
Section 2A an attorney appointed under this section, regardless of
whether the attorney is appointed by the convicting court or was
appointed by the court of criminal appeals under prior law.

State Reimbursement; County Obligation

Sec. 2A. (a) The state shall reimburse a county for compensation of
counsel under Section 2 and payment of expenses under Section 3.
The total amount of reimbursement to which a county is entitled
under this section for an application under this article may not
exceed $25,000. Compensation and expenses in excess of the $25,000
reimbursement provided by the state are the obligation of the
county.

(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.

Investigation of Grounds for Application

Sec. 3. (a) On appointment, counsel shall investigate
expeditiously, before and after the appellate record is filed in
the court of criminal appeals, the factual and legal grounds for the
filing of an application for a writ of habeas corpus.

(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.

Filing of Application

Sec. 4. (a) An application for a writ of habeas corpus, returnable
to the court of criminal appeals, must be filed in the convicting
court not later than the 180th day after the date the convicting
court appoints counsel under Section 2 or not later than the 45th
day after the date the state's original brief is filed on direct
appeal with the court of criminal appeals, whichever date is later.

(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.

Untimely Application; Application Not Filed

Sec. 4A. (a) On command of the court of criminal appeals, a counsel
who files an untimely application or fails to file an application
before the filing date applicable under Section 4(a) or (b) shall
show cause as to why the application was untimely filed or not filed
before the filing date.

(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.

(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.

Subsequent Application

Sec. 5. (a) If a subsequent application for a writ of habeas corpus
is filed after filing an initial application, a court may not
consider the merits of or grant relief based on the subsequent
application unless the application contains sufficient specific
facts establishing that:

(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 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
or 37.0711.

(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.

Issuance of Writ

Sec. 6. (a) If a timely application for a writ of habeas corpus is
filed in the convicting court, a writ of habeas corpus, returnable
to the court of criminal appeals, shall issue by operation of law.

(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.

(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, 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.

Answer to Application

Sec. 7. (a) The state shall file an answer to the application for a
writ of habeas corpus not later than the 120th day after the date
the state receives notice of issuance of the writ. The state shall
serve the answer on counsel for the applicant or, if the applicant
is proceeding pro se, on the applicant. The state may request from
the convicting court an extension of time in which to answer the
application by showing particularized justifying circumstances for
the extension, but in no event may the court permit the state to
file an answer later than the 180th day after the date the state
receives notice of issuance of the writ.

(b) Matters alleged in the application not admitted by the state are
deemed denied.

Findings of Fact Without Evidentiary Hearing

Sec. 8. (a) Not later than the 20th day after the last date the state
answers the application, the convicting court shall determine
whether controverted, previously unresolved factual issues
material to the legality of the applicant's confinement exist and
shall issue a written order of the determination.

(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.

Hearing

Sec. 9. (a) If the convicting court determines that controverted,
previously unresolved factual issues material to the legality of
the applicant's confinement exist, the court shall enter an order,
not later than the 20th day after the last date the state answers
the application, designating the issues of fact to be resolved and
the manner in which the issues shall be resolved. To resolve the
issues, the court may require affidavits, depositions,
interrogatories, and evidentiary hearings and may use personal
recollection.

(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 or 74.055, 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.

Rules of Evidence

 

Sec. 10. The Texas Rules of Criminal Evidence apply to a hearing
held under this article.

Review by Court of Criminal Appeals

Sec. 11. The court of criminal appeals shall expeditiously review
all applications for a writ of habeas corpus submitted under this
article. The court may set the cause for oral argument and may
request further briefing of the issues by the applicant or the
state. After reviewing the record, the court shall enter its
judgment remanding the applicant to custody or ordering the
applicant's release, as the law and facts may justify.

Added by Acts 1995, 74th Leg., ch. 319, Sec. 1, eff. Sept. 1, 1995.
Sec. 4(a), (h) amended by Acts 1997, 75th Leg., ch. 1336, Sec. 1,
eff. Sept. 1, 1997; Sec. 5(a), (b) amended by Acts 1997, 75th Leg.,
ch. 1336, Sec. 2, eff. Sept. 1, 1997; Sec. 7(a) amended by Acts
1997, 75th Leg., ch. 1336, Sec. 3, eff. Sept. 1, 1997; Sec. 8
amended by Acts 1997, 75th Leg., ch. 1336, Sec. 4, eff. Sept. 1,
1997; Sec. 9(a), (e) amended by Acts 1997, 75th Leg., ch. 1336,
Sec. 5, eff. Sept. 1, 1997; Sec. 2 amended by Acts 1999, 76th Leg.,
ch. 803, Sec. 1, eff. Sept. 1, 1999; Sec. 2A added by Acts 1999,
76th Leg., ch. 803, Sec. 2, eff. Sept. 1, 1999; Sec. 3(b), (d)
amended by Acts 1999, 76th Leg., ch. 803, Sec. 3, eff. Sept. 1,
1999; Sec. 4 amended by Acts 1999, 76th Leg., ch. 803, Sec. 4, eff.
Sept. 1, 1999; Sec. 4A added by Acts 1999, 76th Leg., ch. 803, Sec.
5, eff. Sept. 1, 1999; Sec. 5 heading amended by Acts 1999, 76th
Leg., ch. 803, Sec. 7, eff. Sept. 1, 1999; Sec. 5(a), (b) amended by
and Sec. 5(f) added by Acts 1999, 76th Leg., ch. 803, Sec. 6, eff.
Sept. 1, 1999; Sec. 6(b) amended by Acts 1999, 76th Leg., ch. 803,
Sec. 8, eff. Sept. 1, 1999; Sec. 7(a) amended by Acts 1999, 76th
Leg., ch. 803, Sec. 9, eff. Sept. 1, 1999; Sec. 9(b) amended by Acts
1999, 76th Leg., ch. 803, Sec. 10, eff. Sept. 1, 1999; Sec. 2(f)
amended by Acts 2003, 78th Leg., ch. 315, Sec. 1, eff. Sept. 1,
2003; Sec. 2A(d) added by Acts 2003, 78th Leg., ch. 315, Sec. 2,
eff. Sept. 1, 2003; Sec. 3(d) amended by Acts 2003, 78th Leg., ch.
315, Sec. 3, eff. Sept. 1, 2003.

Art. 11.072. Procedure in Community Supervision Case

Sec. 1. This article establishes the procedures for an application
for a writ of habeas corpus in a felony or misdemeanor case in which
the applicant seeks relief from an order or a judgment of conviction
ordering community supervision.

Sec. 2. (a) An application for a writ of habeas corpus under this
article must be filed with the clerk of the court in which community
supervision was imposed.

(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.

Sec. 3. (a) 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.

(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.

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 conviction or order being challenged.

Sec. 5. (a) Immediately on filing an application, the applicant
shall serve a copy of the application on the attorney representing
the state, by either certified mail, return receipt requested, or
personal service.

(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.

Sec. 6. (a) Not later than the 60th day after the day on which the
state's answer is filed, the trial court shall enter a written order
granting or denying the relief sought in the application.

(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.

Sec. 7. (a) If the court determines from the face of an application
or documents attached to the application that the applicant is
manifestly entitled to no relief, the court shall enter a written
order denying the application as frivolous. In any other case, the
court shall enter a written order including findings of fact and
conclusions of law. The court may require the prevailing party to
submit a proposed order.

(b) At the time an order is entered under this section, the clerk of
the court shall immediately, by certified mail, return receipt
requested, send a copy of the order to the applicant and to the
state.

Sec. 8. If the application is denied in whole or part, the applicant
may appeal under Article 44.02 and Rule 31, Texas Rules of Appellate
Procedure. If the application is granted in whole or part, the
state may appeal under Article 44.01 and Rule 31, Texas Rules of
Appellate Procedure.

Sec. 9. (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 specific 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.

Added by Acts 2003, 78th Leg., ch. 587, Sec. 1, eff. June 20, 2003.

Art. 11.08. [120] [168] [158] Applicant charged with felony

If a person is confined after indictment on a charge of felony, he
may apply to the judge of the court in which he is indicted; or if
there be no judge within the district, then to the judge of any
district whose residence is nearest to the court house of the county
in which the applicant is held in custody.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.09. [121] [169] [159] Applicant charged with misdemeanor

If a person is confined on a charge of misdemeanor, he may apply to
the county judge of the county in which the misdemeanor is charged
to have been committed, or if there be no county judge in said
county, then to the county judge whose residence is nearest to the
courthouse of the county in which the applicant is held in custody.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.10. [122] [170] [160] Proceedings under the writ

When motion has been made to a judge under the circumstances set
forth in the two preceding Articles, he shall appoint a time when he
will examine the cause of the applicant, and issue the writ
returnable at that time, in the county where the offense is charged
in the indictment or information to have been committed. He shall
also specify some place in the county where he will hear the motion.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.11. [123] [171] [161] Early hearing

The time so appointed shall be the earliest day which the judge can
devote to hearing the cause of the applicant.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.12. [124] [172] [162] Who may present petition

Either the party for whose relief the writ is intended, or any
person for him, may present a petition to the proper authority for
the purpose of obtaining relief.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.13. [125] [173] [163] Applicant

The word applicant, as used in this Chapter, refers to the person
for whose relief the writ is asked, though the petition may be
signed and presented by any other person.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.14. [126] [174] [164] Requisites of petition

The petition must state substantially:

1. That the person for whose benefit the application is made is
illegally restrained in his liberty, and by whom, naming both
parties, if their names are known, or if unknown, designating and
describing them;

2. When the party is confined or restrained by virtue of any writ,
order or process, or under color of either, a copy shall be annexed
to the petition, or it shall be stated that a copy cannot be
obtained;

3. When the confinement or restraint is not by virtue of any writ,
order or process, the petition may state only that the party is
illegally confined or restrained in his liberty;

4. There must be a prayer in the petition for the writ of habeas
corpus; and

5. Oath must be made that the allegations of the petition are true,
according to the belief of the petitioner.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.15. [127] [175] [165] Writ granted without delay

The writ of habeas corpus shall be granted without delay by the
judge or court receiving the petition, unless it be manifest from
the petition itself, or some documents annexed to it, that the party
is entitled to no relief whatever.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.16. [128] [176] [166] Writ may issue without motion

A judge of the district or county court who has knowledge that any
person is illegally confined or restrained in his liberty within
his district or county may, if the case be one within his
jurisdiction, issue the writ of habeas corpus, without any motion
being made for the same.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.17. [129] [177] [167] Judge may issue warrant of arrest

Whenever it appears by satisfactory evidence to any judge
authorized to issue such writ that any one is held in illegal
confinement or custody, and there is good reason to believe that he
will be carried out of the State, or suffer some irreparable injury
before he can obtain relief in the usual course of law, or whenever
the writ of habeas corpus has been issued and disregarded, the said
judge may issue a warrant to any peace officer, or to any person
specially named by said judge, directing him to take and bring such
person before such judge, to be dealt with according to law.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.18. [130] [178] [168] May arrest detainer

Where it appears by the proof offered, under circumstances
mentioned in the preceding Article, that the person charged with
having illegal custody of the prisoner is, by such act, guilty of an
offense against the law, the judge may, in the warrant, order that
he be arrested and brought before him; and upon examination, he may
be committed, discharged, or held to bail, as the law and the nature
of the case may require.

Acts 1965, 59th, Leg., vol. 2, p. 317, ch. 722.

Art. 11.19. [131] [179] [169] Proceedings under the warrant

The officer charged with the execution of the warrant shall bring
the persons therein mentioned before the judge or court issuing the
same, who shall inquire into the cause of the imprisonment or
restraint, and make an order thereon, as in cases of habeas corpus,
either remanding into custody, discharging or admitting to bail the
party so imprisoned or restrained.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.20. [132] [180] [170] Officer executing warrant

The same power may be exercised by the officer executing the warrant
in cases arising under the foregoing Articles as is exercised in the
execution of warrants of arrest.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.21. [133] [181] [171] Constructive custody

The words "confined", "imprisoned", "in custody", "confinement",
"imprisonment", refer not only to the actual, corporeal and
forcible detention of a person, but likewise to any coercive
measures by threats, menaces or the fear of injury, whereby one
person exercises a control over the person of another, and detains
him within certain limits.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.22. [134] [182] [172] Restraint

By "restraint" is meant the kind of control which one person
exercises over another, not to confine him within certain limits,
but to subject him to the general authority and power of the person
claiming such right.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.23. [135] [183] [173] Scope of writ

The writ of habeas corpus is intended to be applicable to all such
cases of confinement and restraint, where there is no lawful right
in the person exercising the power, or where, though the power in
fact exists, it is exercised in a manner or degree not sanctioned by
law.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.24. [136] [184] [174] One committed in default of bail

Where a person has been committed to custody for failing to enter
into bond, he is entitled to the writ of habeas corpus, if it be
stated in the petition that there was no sufficient cause for
requiring bail, or that the bail required is excessive. If the
proof sustains the petition, it will entitle the party to be
discharged, or have the bail reduced.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.25. [137] [185] [175] Person afflicted with disease

When a judge or court authorized to grant writs of habeas corpus
shall be satisfied, upon investigation, that a person in legal
custody is afflicted with a disease which will render a removal
necessary for the preservation of life, an order may be made for the
removal of the prisoner to some other place where his health will
not be likely to suffer; or he may be admitted to bail when it
appears that any species of confinement will endanger his life.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.26. [138] [186] [176] Who may serve writ

The service of the writ may be made by any person competent to
testify.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.27. [139] [187] [177] How writ may be served and returned

The writ may be served by delivering a copy of the original to the
person who is charged with having the party under restraint or in
custody, and exhibiting the original, if demanded; if he refuse to
receive it, he shall be informed verbally of the purport of the
writ. If he refuses admittance to the person wishing to make the
service, or conceals himself, a copy of the writ may be fixed upon
some conspicuous part of the house where such person resides or
conceals himself, or of the place where the prisoner is confined;
and the person serving the writ of habeas corpus shall, in all
cases, state fully, in his return, the manner and the time of the
service of the writ.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.28. [140] [188] [178] Return under oath

The return of a writ of habeas corpus, under the provisions of the
preceding Article, if made by any person other than an officer,
shall be under oath.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.29. [141] [189] [179] Must make return

The person on whom the writ of habeas corpus is served shall
immediately obey the same, and make the return required by law upon
the copy of the original writ served on him, and this, whether the
writ be directed to him or not.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.30. [142] [190] [180] How return is made

The return is made by stating in plain language upon the copy of the
writ or some paper connected with it:

1. Whether it is true or not, according to the statement of the
petition, that he has in his custody, or under his restraint, the
person named or described in such petition;

2. By virtue of what authority, or for what cause, he took and
detains such person;

3. If he had such person in his custody or under restraint at any
time before the service of the writ, and has transferred him to the
custody of another, he shall state particularly to whom, at what
time, for what reason or by what authority he made such transfer;

4. He shall annex to his return the writ or warrant, if any, by
virtue of which he holds the person in custody; and

5. The return must be signed and sworn to by the person making it.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.31. [143] [191] [181] Applicant brought before judge

The person on whom the writ is served shall bring before the judge
the person in his custody, or under his restraint, unless it be made
to appear that by reason of sickness he cannot be removed; in which
case, another day may be appointed by the judge or court for hearing
the cause, and for the production of the person confined; or the
application may be heard and decided without the production of the
person detained, by the consent of his counsel.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.32. [144] [192] [182] Custody pending examination

When the return of the writ has been made, and the applicant brought
before the court, he is no longer detained on the original warrant
or process, but under the authority of the habeas corpus. The
safekeeping of the prisoner, pending the examination or hearing, is
entirely under the direction and authority of the judge or court
issuing the writ, or to which the return is made. He may be bailed
from day to day, or be remanded to the same jail whence he came, or
to any other place of safekeeping under the control of the judge or
court, till the case is finally determined.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.33. [145] [193] [183] Court shall allow time

The court or judge granting the writ of habeas corpus shall allow
reasonable time for the production of the person detained in
custody.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.34. [146] [194] [184] Disobeying writ

When service has been made upon a person charged with the illegal
custody of another, if he refuses to obey the writ and make the
return required by law, or, if he refuses to receive the writ, or
conceals himself, the court or judge issuing the writ shall issue a
warrant directed to any officer or other suitable person willing to
execute the same, commanding him to arrest the person charged with
the illegal custody or detention of another, and bring him before
such court or judge. When such person has been arrested and brought
before the court or judge, if he still refuses to return the writ,
or does not produce the person in his custody, he shall be committed
to jail and remain there until he is willing to obey the writ of
habeas corpus, and until he pays all the costs of the proceeding.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.35. [147] [195] [185] Further penalty for disobeying writ

Any person disobeying the writ of habeas corpus shall also be liable
to a civil action at the suit of the party detained, and shall pay in
such suit fifty dollars for each day of illegal detention and
restraint, after service of the writ. It shall be deemed that a
person has disobeyed the writ who detains a prisoner a longer time
than three days after service thereof, unless where further time is
allowed in the writ for making the return thereto.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.36. [148] [196] [186] Applicant may be brought before court

In case of disobedience of the writ of habeas corpus, the person for
whose relief it is intended may also be brought before the court or
judge having competent authority, by an order for that purpose,
issued to any peace officer or other proper person specially named.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.37. [149] [197] [187] Death, etc., sufficient return of
writ

It is a sufficient return of the writ of habeas corpus that the
person, once detained, has died or escaped, or that by some superior
force he has been taken from the custody of the person making the
return; but where any such cause shall be assigned, the court or
judge shall proceed to hear testimony; and the facts stated in the
return shall be proved by satisfactory evidence.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.38. [150] [198] [188] When a prisoner dies

When a prisoner confined in jail, or who is in legal custody, shall
die, the officer having charge of him shall forthwith report the
same to a justice of the peace of the county, who shall hold an
inquest to ascertain the cause of his death. All the proceedings
had in such cases shall be reduced to writing, certified and
returned as in other cases of inquest; a certified copy of which
shall be sufficient proof of the death of the prisoner at the
hearing of a motion under habeas corpus.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.39. [151] [199] [189] Who shall represent the State

If neither the county nor the district attorney be present, the
judge may appoint some qualified practicing attorney to represent
the State, who shall be paid the same fee allowed district attorneys
for like services.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.40. [152] [200] [190] Prisoner discharged

The judge or court before whom a person is brought by writ of habeas
corpus shall examine the writ and the papers attached to it; and if
no legal cause be shown for the imprisonment or restraint, or if it
appear that the imprisonment or restraint, though at first legal,
cannot for any cause be lawfully prolonged, the applicant shall be
discharged.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.41. [153] [201] [191] Where party is indicted for capital
offense

If it appears by the return and papers attached that the party
stands indicted for a capital offense, the judge or court having
jurisdiction of the case shall, nevertheless, proceed to hear such
testimony as may be offered on the part of the State and the
applicant, and may either remand or admit him to bail, as the law
and the facts may justify.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.42. [154] [202] [192] If court has no jurisdiction

If it appear by the return and papers attached that the judge or
court has no jurisdiction, such court or judge shall at once remand
the applicant to the person from whose custody he has been taken.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.43. [155] [203] [193] Presumption of innocence

No presumption of guilt arises from the mere fact that a criminal
accusation has been made before a competent authority.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.44. [156] [204] [194] Action of court upon examination

The judge or court, after having examined the return and all
documents attached, and heard the testimony offered on both sides,
shall, according to the facts and circumstances of the case,
proceed either to remand the party into custody, admit him to bail
or discharge him; provided, that no defendant shall be discharged
after indictment without bail.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.45. [157] [205] [195] Void or informal

If it appears that the applicant is detained or held under a warrant
of commitment which is informal, or void; yet, if from the document
on which the warrant was based, or from the proof on the hearing of
the habeas corpus, it appears that there is probable cause to
believe that an offense has been committed by the prisoner, he shall
not be discharged, but shall be committed or held to bail.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.46. [158] [206] [196] If proof shows offense

Where, upon an examination under habeas corpus, it appears to the
court or judge that there is probable cause to believe that an
offense has been committed by the prisoner, he shall not be
discharged, but shall be committed or admitted to bail.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.47. [159] [207] [197] May summon magistrate

To ascertain the grounds on which an informal or void warrant has
been issued, the judge or court may cause to be summoned the
magistrate who issued the warrant, and may, by an order, require him
to bring with him all the papers and proceedings touching the
matter. The attendance of such magistrate and the production of
such papers may be enforced by warrant of arrest.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.48. [160] [208] [198] Written issue not necessary

It shall not be necessary, on the trial of any cause arising under
habeas corpus, to make up a written issue, though it may be done by
the applicant for the writ. He may except to the sufficiency of, or
controvert the return or any part thereof, or allege any new matter
in avoidance. If written denial on his part be not made, it shall be
considered, for the purpose of investigation, that the statements
of said return are contested by a denial of the same; and the proof
shall be heard accordingly, both for and against the applicant for
relief.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.49. [161] [209] [199] Order of argument

The applicant shall have the right by himself or counsel to open and
conclude the argument upon the trial under habeas corpus.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.50. [162] [210] [200] Costs

The judge trying the cause under habeas corpus may make such order
as is deemed right concerning the cost of bringing the defendant
before him, and all other costs of the proceeding, awarding the same
either against the person to whom the writ was directed, the person
seeking relief, or may award no costs at all.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.51. [163] [211] [201] Record of proceedings

If a writ of habeas corpus be made returnable before a court in
session, all the proceedings had shall be entered of record by the
clerk thereof, as in any other case in such court. When the motion
is heard out of the county where the offense was committed, or in
the Court of Criminal Appeals, the clerk shall transmit a certified
copy of all the proceedings upon the motion to the clerk of the
court which has jurisdiction of the offense.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.52. [164] [212] [202] Proceedings had in vacation

If the return is made and the proceedings had before a judge of a
court in vacation, he shall cause all of the proceedings to be
written, shall certify to the same, and cause them to be filed with
the clerk of the court which has jurisdiction of the offense, who
shall keep them safely.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.53. [165] [213] [203] Construing the two preceding Articles

The two preceding Articles refer only to cases where an applicant is
held under accusation for some offense; in all other cases the
proceedings had before the judge shall be filed and kept by the
clerk of the court hearing the case.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.54. [166] [214] [204] Court may grant necessary orders

The court or judge granting a writ of habeas corpus may grant all
necessary orders to bring before him the testimony taken before the
examining court, and may issue process to enforce the attendance of
witnesses.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.55. [167] [215] [205] Meaning of "return"

The word "return", as used in this Chapter, means the report made by
the officer or person charged with serving the writ of habeas
corpus, and also the answer made by the person served with such
writ.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.56. [168] [216] [206] Effect of discharge before indictment

Where a person, before indictment found against him, has been
discharged or held to bail on habeas corpus by order of a court or
judge of competent jurisdiction, he shall not be again imprisoned
or detained in custody on an accusation for the same offense, until
after he shall have been indicted, unless surrendered by his bail.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.57. [169] [217] [207] Writ after indictment

Where a person once discharged or admitted to bail is afterward
indicted for the same offense for which he has been once arrested,
he may be committed on the indictment, but shall be again entitled
to the writ of habeas corpus, and may be admitted to bail, if the
facts of the case render it proper; but in cases where, after
indictment is found, the cause of the defendant has been
investigated on habeas corpus, and an order made, either remanding
him to custody, or admitting him to bail, he shall neither be
subject to be again placed in custody, unless when surrendered by
his bail, nor shall he be again entitled to the writ of habeas
corpus, except in the special cases mentioned in this Chapter.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.58. [170] [218] [208] Person committed for a capital
offense

If the accusation against the defendant for a capital offense has
been heard on habeas corpus before indictment found, and he shall
have been committed after such examination, he shall not be
entitled to the writ, unless in the special cases mentioned in
Articles 11.25 and 11.59.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.59. [171] [219] [209] Obtaining writ a second time

A party may obtain the writ of habeas corpus a second time by
stating in a motion therefor that since the hearing of his first
motion important testimony has been obtained which it was not in his
power to produce at the former hearing. He shall also set forth the
testimony so newly discovered; and if it be that of a witness, the
affidavit of the witness shall also accompany such motion.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.60. [172] [220] [210] Refusing to execute writ

Any officer to whom a writ of habeas corpus, or other writ, warrant
or process authorized by this Chapter shall be directed, delivered
or tendered, who refuses to execute the same according to his
directions, or who wantonly delays the service or execution of the
same, shall be liable to fine as for contempt of court.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.61. [173] [221] [211] Refusal to obey writ

Any one having another in his custody, or under his power, control
or restraint who refuses to obey a writ of habeas corpus, or who
evades the service of the same, or places the person illegally
detained under the control of another, removes him, or in any other
manner attempts to evade the operation of the writ, shall be dealt
with as provided in Article 11.34 of this Code.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.62. [174] [222] [212] Refusal to give copy of process

Any jailer, sheriff or other officer who has a prisoner in his
custody and refuses, upon demand, to furnish a copy of the process
under which he holds the person, is guilty of an offense, and shall
be dealt with as provided in Article 11.34 of this Code for refusal
to return the writ therein required.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.63. [175] [223] [213] Held under Federal authority

No person shall be discharged under the writ of habeas corpus who is
in custody by virtue of a commitment for any offense exclusively
cognizable by the courts of the United States, or by order or
process issuing out of such courts in cases where they have
jurisdiction, or who is held by virtue of any legal engagement or
enlistment in the army, or who, being rightfully subject to the
rules and articles of war, is confined by any one legally acting
under the authority thereof, or who is held as a prisoner of war
under the authority of the United States.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.64. [176] [224] [214] Application of Chapter

This Chapter applies to all cases of habeas corpus for the
enlargement of persons illegally held in custody or in any manner
restrained in their personal liberty, for the admission of
prisoners to bail, and for the discharge of prisoners before
indictment upon a hearing of the testimony. Instead of a writ of
habeas corpus in other cases heretofore used, a simple order shall
be substituted.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.65. Bond for Certain Applicants

(a) This article applies to an applicant for a writ of habeas corpus
seeking relief from the judgment in a criminal case, other than an
applicant seeking relief from a judgment imposing a penalty of
death.

(b) On making proposed findings of fact and conclusions of law
jointly stipulated to by the applicant and the state, or on
approving proposed findings of fact and conclusions of law made by
an attorney or magistrate appointed by the court to perform that
duty and jointly stipulated to by the applicant and the state, the
convicting court may order the release of the applicant on bond,
subject to conditions imposed by the convicting court, until the
applicant is denied relief, remanded to custody, or ordered
released.

(c) For the purposes of this chapter, an applicant released on bond
under this article remains restrained in his liberty.

(d) Article 44.04(b) does not apply to the release of an applicant
on bond under this article.

Added by Acts 2003, 78th Leg., ch. 197, Sec. 1, eff. June 2, 2003.

 

 

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