Timing is everything: “final convictions” and Article 11.07 writs

 Posted on September 05, 2018 in Writs of Habeas Corpus

New clients often ask me when they can apply for a writ of habeas corpus under Article 11.07. Unless they’ve been prison for awhile, my normal answer is, “Not yet.”

Article 11.07 refers to a section of the Texas Code of Criminal Procedure that establishes the procedures for filing an application for writ of habeas corpus afterbeing convicted of a felony offense. This may sound straight forward, but there are some procedural rules that limit when such an application can be filed.

First, your conviction has to be final. Or to use a technical phrase, “mandate” has to have issued. Mandate only issues when you have exhausted the direct appeals process. It’s probably easier to explain this with an example.

Let’s say a family member is convicted of felony aggravated assault (I’ll call this guy Paul). Once Paul finds out that he had been found guilty and is sentenced to prison, he has 30 days to file a notice of appeal (if Paul gets probation instead of prison, he can’t file a writ under Section 11.07, but must file under Section 11.072, a statute I will cover in a separate post). Filing the notice of appeal gives the intermediate appellate court jurisdiction over the case. If Paul doesn’t file the notice within 30 days of being sentenced, he loses the ability to file a direct appeal (unless an attorney sweeps in and manages to get a brief time extension), and mandate will issue. Paul can then file a writ of habeas corpus application under Section 11.07.

If Paul or his attorney does file a notice of appeal, then the intermediate appellate court will have jurisdiction over the case. A long, drawn-out process then ensues. It starts with the clerk and reporter’s record getting filed with the appellate court. Then Paul’s appellate lawyer will file a brief. Then the District Attorney’s Office will file a brief. Then the appellate court will docket the case and set it for submission. The court will on rare occasions grant oral argument. At some unknown date in the future the case will be considered and an opinion issued.

But even after an opinion is issued denying Paul’s appeal and overruling his points of error, the conviction is still not final! Paul still has the opportunity to file a petition for discretionary review with the Court of Criminal Appeals. Paul may also want to file a motion for the lower appellate court to reconsider his arguments (he can also file a motion for the appellate court to consider his case en banc, a term and tactic I will explain in a later post).

If the Court of Criminal Appeals decides to hear the case, this process essentially repeats. If you haven’t clued in yet, this all takes a substantial amount of time, which varies depending on which jurisdiction you’re in.

After all these courts have made final rulings and all motion and petition deadlines have run, only then is a conviction “final.” At this point mandate will issue and the article 11.07 writ will be procedurally available for Paul.

As a prosecutor in the appellate section, I always enjoyed getting an 11.07 writ application that had been filed while the inmate’s appeal was still pending. Such applications were always quickly dismissed.

What is important for you to remember is that the 11.07 writ is the “last shot” in your loved one’s case — at least at the State level. Make sure all other direct appeal remedies are exhausted before going to the trouble of filing one.

That being said, I often assist clients in preparing the groundwork for an 11.07 writ application while their direct appeal is still pending. It doesn’t hurt to start preparing early — as long as the client’s family understands that this tool can’t be deployed until we have a true final conviction.