FAQ: When is the best time to file an 11.07 writ?

 Posted on April 15, 2022 in Uncategorized

During consultations, potential clients and their family members often ask me when they should file an 11.07 writ to challenge a Texas felony conviction.

There’s a couple of things to keep in mind.

First, you can’t file it too soon.

The conviction you’re trying to challenge must be final. So if you have a trial and then appeal your conviction, you have to wait until the appellate court issues an opinion, the time has elapsed for all post-opinion motions has elapsed, such as petitions for discretionary review and motions for re-hearing, and mandate has issued. Mandate is just the official document announcing that the conviction is final. Mandate won’t issue until all appellate courts have had their final say on your appeal.

If you pled guilty and didn’t have a trial, then your conviction is final 30 days after you entered your plea, which is when trial court loses its plenary jurisdiction. Of course, if you file a motion for new trial, that time line will be extended.

Second, you shouldn’t file it too late.

If you wait too long to file an 11.07 writ you risk the State countering your claims with a laches argument. Laches is just a legal term that means you waited too long and have prejudiced the State’s ability to retry the case. For example, if you know that your attorney was ineffective, but you wait 10 years to allege that claim in a writ, the State can argue that you should have jumped on that claim sooner because now, 10 years later, the State’s witnesses’ memories and the physical evidence will be compromised. Since the State has the burden of proof, they are the ones prejudiced in this scenario.

So if you have a good 11.07 writ issue, you should not sit on it indefinitely, especially if the facts you need to prove your ground are discernible from the record or the State’s file and you have knowledge of them.

It’s important to remember that there is no “bright line” rule on how long you have to file a writ or when the State’s “laches” argument will prevail. There is no formal precedent on this matter, although in a concurring opinion in a Court of Criminal Appeals case one justice suggested that a reasonable time frame to file an 11.07 writ is 5 years from the date the conviction became final. But this suggestion is not binding precedent.

Generally, the Court of Criminal Appeals (“CCA”) will order the trial court’s to make findings of fact and conclusions of law on the merits of an applicant’s claim no matter how old the conviction is (assuming the applicant’s claims are cognizable, i.e. that they properly raise issues of fact that relate to the constitutionality of the conviction and could not have been raised previously).

The vibe I get from the CCA is that, when it comes to the State’s laches arguments, they will only feel compelled to address that issue if the applicant meets his burden of proof on his underlying claims. Since it’s rare for an applicant to meet his burden of proof, by extension it’s rare for the CCA to need to address the laches argument (which I think the Court is fine with). So the issue remains open at this point.

It’s also important to note that although the trial court can theoretically raise the issue of laches on its own, the best practice is for the District Attorney’s Office to make an argument as to how it would be prejudiced in a specific case for its laches claim to be strong. So just because a conviction is old does not necessarily mean the applicant is precluded from challenging it with an 11.07 writ application.

Finally, you should keep in mind that new evidence, or evidence that could not have been discovered earlier through reasonable diligence by the applicant, can potentially overcome a laches argument and justify a late-filed writ. In my opinion, there is a gray area worthy of further litigation concerning what facts an inmate could discover with “reasonable diligence.” If an inmate can’t afford to hire an attorney until years after his conviction, and the attorney discovers facts in the State’s file that substantiate a cognizable constitutional violation, I believe the applicant should be able to raise that claim even if, theoretically, he could have discovered the same facts himself through a public information request much earlier. I’ve yet to have to litigate this particular point, but I think this fact-specific issue will eventually need to be addressed by the Court of Criminal Appeals.

In the meantime, if you are researching 11.07 writs for a friend, family member, or loved one currently incarcerated in TDCJ, keep the above discussion in mind when deciding when to move forward with retaining counsel to file a writ.

I’m also deliberately not addressing the impact of AEDPA (Antiterrorism and Effective Death Penalty Act) and federal writ time lines on the timeliness of State writs in this post — that topic requires its own blog entry.

As always, this post is not legal advice. You’ll need to discuss the specifics of any conviction and the possibility of challenging it with retained counsel.