Texas Code of Criminal Procedure - Article 11.072. Procedure In Community Supervision Case
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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.
Last modified: August 11, 2007