SECTION 1. Chapter 11, Code of Criminal Procedure,
is amended by adding Article 11.072 to read as follows:
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.
SECTION 2. Article 44.01, Code of Criminal Procedure,
is amended by adding Subsection (k) to read as follows:
(k) The state is entitled to appeal an order granting
relief to an applicant for a writ of habeas corpus
under Article 11.072.
SECTION 3. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected
to each house, as provided by Section 39, Article III,
Texas Constitution. If this Act does not receive the
vote necessary for immediate effect, this Act takes
effect September 1, 2003.