The Prosecutor, January-February 2014, Volume 44, No. 1

2013, the year of the writ apocalypse

Legislative creation of Art. 11.073 and Court of Criminal Appeals changes to TRAP Rule 73 made for some upheaval in the usually calm writ world. Here’s how to navigate these new waters.

2013 was an eventful year for the writ world. First, the Texas Legislature created article 11.073 applications for writ of habeas corpus (“11.073 writs”), providing relief for new science claims. Second, the Court of Criminal Appeals (CCA) announced major changes to TRAP Rule 73, which governs article 11.07 applications for writ of habeas corpus (“11.07 writs”). With these changes, the district clerk’s offices are losing discretion, the trial courts have a new deadline, and the State may or may not have to include a Certificate of Compliance in its responses. Now is definitely an exciting time to be an appellate prosecutor! (How often do we get to say that?)
    In reality, there has been very little change to the way post-conviction writs have been processed since the inception of the Code of Criminal Procedure in 1965. The two biggest changes have occurred in the last 15 years: the introduction of the 11.07 writ application form in 2001 and the creation of article 11.072 community supervision writs in 2003. Absent a few modifications to the 11.07 application form in 2005, 2007, 2011, and 2013, the rules of writs have sat stagnant. Until now.

Article 11.073 writs
The new 11.073 writ (nicknamed the “junk science law”) became effective on September 1, 2013. It governs post-conviction claims of new relevant scientific evidence.

Is the creation of 11.073 more noteworthy than 11.072?
Yes and no. From a relief standpoint, article 11.073 is more important because it provides a new vehicle for relief for the burgeoning field of exculpatory scientific evidence claims. The legislature created article 11.073 to address concerns that past convictions should be re-evaluated in light of new scientific understandings and discoveries. Cases where these arguments have been made include in Ex parte Robbins,1 (asphyxia), Ex parte Henderson,2 (head trauma), and the Cameron Willingham case (arson).
    Article 11.073 treats new, relevant, scientific evidence similar to “newly discovered evidence” of actual innocence. In a Herrera actual innocence claim, an applicant must show:
1)    by clear and convincing evidence that
2)    newly discovered evidence
3) is affirmative evidence of innocence and that
4) no rational juror would have found him guilty had it been presented to them.3
    In an article 11.073 writ, an applicant must show:
1)    by a preponderance of the evidence that
2)    new relevant scientific evidence admissible under the Texas Rules of Evidence at a trial held on the date of the application,
3)    was not available to be offered by the convicted person or contradicts scientific evidence relied on by the State, and
4)    if the new scientific evidence had been presented at trial, he would not have been convicted.4
    The primary differences between article 11.073 and the Herrera standard involves the burdens of proof: preponderance of the evidence versus clear and convincing evidence, and would not have been convicted (only one juror would not convict) versus no rational juror would have found him guilty (all jurors would not convict).

How does article 11.073 change the State’s practice?
From a “How does the State respond?” standpoint, the only difference between 11.073 writs and 11.07, 11.071, and 11.072 writs is the name. Article 11.073 requires the applicant to file the application “in the manner provided by Article 11.07, 11.071, or 11.072.”5 Therefore, the format of the State’s response need not change.
    However, due to the nature of the claims, an 11.073 writ will more likely require expert consultation than an 11.07 or 11.072 writ. Prudently, article 11.073 does not limit the term “scientific evidence.” It is not bound by what science we currently know. This also means that we cannot prepare or bank canned responses in anticipation of the next scientific claim. The best practice will be to be flexible and prepared to get extensions and consult or hire an expert as the need arises.

TRAP Rule 73
On December 11, 2013, the CCA finalized major changes to Rule 73 effective January 1, 2014. These changes affect every level of the 11.07 writ process.
    For district clerks, the rule changes remove any discretion regarding compliance with the application form. If an applicant files an 11.07 writ, the district clerk shall file it.6 Even if the writ is not filed on the form, it appears that the district clerk must process it.7 Only the Court of Criminal Appeals may dismiss non-compliant applications.8
    This change puts the dismissal of 11.07 writs for non-compliance in an uncomfortable gray area. On one hand, we are probably not going to see fully litigated, meritorious applications dismissed for non-compliance. On the other hand, it will be difficult to know when the CCA will dismiss the applications. Will the court dismiss writs when the trial court recommends dismissal, or will those be remanded back for litigation? Will the court dismiss for non-compliance fully litigated applications that have no merit? Or will the judges consider only those writs when the State concedes and trial court recommends relief, like in Ex parte Golden?9 Only the CCA knows for sure. In Ex parte Golden, the court noted as follows:
[W]e want it made clear that our holding today should not be interpreted as granting future habeas applicants carte blanche to ignore applicable pleading requirements. Our willingness in this case to address the merits of applicant’s claim is grounded on the particular facts of this case: first, the State has not moved to dismiss applicant’s application on the ground it is unsworn; second, the State concedes applicant is entitled to relief; third, the trial court has made relevant fact-findings; and fourth, there is adequate proof in the record to support applicant’s claim.10
    For the applicant, the rule changes modify the application instructions and include more pages per ground. More significantly, an applicant’s memorandum of law must conform to new rules of word and page limit, typeface, and include a certificate of compliance certifying the word count (if computer generated).11 It appears that the word and page limits apply to all memoranda combined and not individually.12 However, as written, these rules do not apply to the State’s responses (more on this below).
    For the trial courts, the rule changes impose a time limit for resolution of 11.07 claims.13 Article 11.07 does not place a time limit on the trial court.14 Before these changes, once the trial court signed an Order Designating Issues (ODI) within 20 days of the State’s deadline, there were no further deadlines. The lack of a firm deadline has created concerns that some trial courts were taking too long to resolve 11.07 writ claims.
    The trial court will now have only 180 days from the date the State receives the application to resolve the issues.15 On the 181st day, the district clerk is required to send the application to the CCA unless the CCA has granted the trial court an extension.16 Put simply:
•    The State still has 15 days to respond.17
•    The trial court still has 20 days from the State’s deadline to designate the issues.18
•    The trial court has 145 days (less than five months) to order affidavits and/or hold a hearing, order proposed findings of fact/conclusions of law, and resolve the issues.
    Because this is a hard and fast “lose jurisdiction” kind of deadline, the State should also calendar the 180 days to make sure there are no missed opportunities.

What 11.07 writs do these changes apply to?
The easy answer is all applications filed on or after January 1, 2014. But what about applications filed before January 1, 2014? Well, that answer is unclear, and it’s a source of confusion.
    Under the new rule changes, the district clerk must now send all ODIs to the CCA once signed by the trial court.19 Two CCA inquiries have yielded diametric responses: that district clerks must send down all ODIs in pre-2014 cases pending on January 1, 2014; and that the 180-day limit will not apply to pre-2014 cases (but those writs will still be subject to petitions for writ of mandamus).
    But it is likely that once applicants realize the rule changes, they will be filing petitions for writ of mandamus in older cases to get them to the CCA either way.
    It is unlikely that the new 180-day rule will apply to pending pre-2014 writs, but if it does, here are the two possible scenarios:
1)    All 11.07 writs over 180 days old must go to the CCA on Thursday, January 2, 2014; or
2) the clock for all outstanding 11.07 writs will start on January 1, 2014, and those writs must go to the CCA on Monday, June 30, 2014.
    Either way, the CCA would be inundated with hundreds (if not thousands) of 11.07 writs on one day. It is unlikely that the CCA will choose this path, but such a requirement would get the old 11.07 writs moving.

Effects on the State
With the inclusion of TRAP Rule 73.3, the State is in for big changes. The good news is that “[m]atters alleged in the application not admitted by the State are [still] deemed denied.”20 The proceeding will still not be affected by the State not filing a response. However, if the State chooses to respond, there are some differences.
    As stated above, an application will not automatically be dismissed for non-compliance.21 If your practice is to move to dismiss an application for non-compliance without considering the merits of the case, you may want to rethink it. That being said, there are now two more ways an application may be dismissed: 1) if a ground on the application form goes beyond two pages or 2) the memorandum of law goes over the word/page limit without a trial court finding of good cause.22 Our plan in Tarrant County is to look at the application on the merits, and if there is no question, based on the application, that he is not entitled to relief, we will move to dismiss it. For example, if the applicant files a non-compliant application and alleges ineffective assistance of counsel because counsel failed to investigate but does not present any affidavits, evidence, or specific information that counsel would have discovered had he done more investigation, we will move to dismiss it as a non-compliant application. But like our past moves to dismiss applications that were not on the proper 2011 form, we are prepared for the CCA to remand the writs for resolution.
    As of December 11, 2013, the CCA clarified that the formatting requirements placed on the applicants’ memoranda will also apply to any State’s responses.23 These changes include:
•    15,000 words (for computer-generated) or 50 pages (if not computer generated) not including appendices, exhibits, cover page, table of contents, table of authorities, and certificate of non-compliance;
•    14-point typeface (12-point typeface for footnotes); and
•    certificate of compliance certifying word count.24
    While the rule refers to “any response by the State,” we in Tarrant County are proceeding with the understanding that this refers to any filing, including any proposed findings of fact and conclusions of law.
    One small rule change is that both parties are now given 10 days from the date they receive the trial court’s findings of fact and conclusions of law to file objections.25 While the trial court may order the district clerk to transmit the record to the CCA within the 10 days, the CCA will allow the parties that time to object. Likewise, neither party can delay the proceedings by filing objections late. And though the rule does not specifically state it, the fact that the 10 days is listed under the duties of the district clerk, one can conclude that the objections are to be filed with the trial court and not directly with the CCA.
    Finally, even if it looks like the trial court will not be resolving the issues within the 180-day limit, try to file all of your responses and proposed findings of fact before that deadline. While the trial court may not make recommendations to the CCA, the CCA still “may deny relief based upon its own review of the application.”26 If possible, take the opportunity to show the CCA why the 11.07 writ should be denied. Regardless of the trial court’s involvement, never give up the chance to argue for the finality of a conviction.

Ultimately, like any other change in the law or the rules, only time will tell. We don’t know how many 11.073 writs will require serious investigation or lead to overturned convictions. And while the CCA recently clarified whether the new formatting requirements of the application would apply to the State’s responses, we hope that January 1, 2014, will bring some answers as to how the new rules will (if at all) apply to old writs.
    As full-time writ prosecutors, we are available to answer any questions you may have regarding this topic and any clarifications provided by the CCA.


1 360 S.W.3d 446 (Tex. Crim. App. 2011).
2 384 S.W.3d 833 (Tex. Crim. App. 2012).
3 See Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996) (citing Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)).
4 Tex. Code Crim. Proc. art. 11.073(a), (b).
5 Tex. Code Crim. Proc. art. 11.073(b)(1).
6 Tex. Rules App. Proc. 73.2; 73.3.
7 Tex. Rules App. Proc. 73.2; 73.3.
8 Tex. Rules App. Proc. 73.2.
9 991 S.W.2d 859 (Tex. Crim. App. 1999).
10 Id. at 862, fn. 2.
11 Tex. Rules App. Proc. 73.1.
12 Tex. Rules App. Proc. 73.1(d).
13 Tex. Rules App. Proc. 73.4.
14 Tex. Code Crim. Proc. art. 11.07 §3(b), (c).
15 Tex. Rules App. Proc. 73.4.
16 Tex. Rules App. Proc. 73.3(b) (5), 73.4.
17 Tex. Code Crim. Proc. art. 11.07 §3(b).
18 Tex. Code Crim. Proc. art. 11.07 §3(c).
19 Tex. Rules App. Proc. 73.3(b) (1).
20 Tex. Code Crim. Proc. art. 11.07 §3(b).
21 Tex. Rules App. Proc. 73.2.
22 Tex. Rules App. Proc. 73.1(d).
23 Tex. Rules App. Proc. 73.3.
24 Tex. Rules App. Proc. 73.1(d)-(f).
25 Tex. Rules App. Proc. 73.3(b) (2).
26 Tex. Rules App. Proc. 73.5.