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Statutes > Texas > Code-of-criminal-procedure > Title-1-code-of-criminal-procedure > Chapter-11-habeas-corpus

CODE OF CRIMINAL PROCEDURE

TITLE 1. CODE OF CRIMINAL PROCEDURE

CHAPTER 11. HABEAS CORPUS

Art. 11.01. WHAT WRIT IS. The writ of habeas corpus is the

remedy to be used when any person is restrained in his liberty.

It is an order issued by a court or judge of competent

jurisdiction, directed to any one having a person in his custody,

or under his restraint, commanding him to produce such person, at

a time and place named in the writ, and show why he is held in

custody or under restraint.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.02. TO WHOM DIRECTED. The writ runs in the name of "The

State of Texas". It is addressed to a person having another under

restraint, or in his custody, describing, as near as may be, the

name of the office, if any, of the person to whom it is directed,

and the name of the person said to be detained. It shall fix the

time and place of return, and be signed by the judge, or by the

clerk with his seal, where issued by a court.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.03. WANT OF FORM. The writ of habeas corpus is not

invalid, nor shall it be disobeyed for any want of form, if it

substantially appear that it is issued by competent authority,

and the writ sufficiently show the object of its issuance.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.04. CONSTRUCTION. Every provision relating to the writ

of habeas corpus shall be most favorably construed in order to

give effect to the remedy, and protect the rights of the person

seeking relief under it.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.05. BY WHOM WRIT MAY BE GRANTED. The Court of Criminal

Appeals, the District Courts, the County Courts, or any Judge of

said Courts, have power to issue the writ of habeas corpus; and

it is their duty, upon proper motion, to grant the writ under the

rules prescribed by law.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.051. FILING FEE PROHIBITED. Notwithstanding any other

law, a clerk of a court may not require a filing fee from an

individual who files an application or petition for a writ of

habeas corpus.

Added by Acts 1999, 76th Leg., ch. 392, Sec. 1, eff. Aug. 30,

1999.

Art. 11.06. RETURNABLE TO ANY COUNTY. Before indictment found,

the writ may be made returnable to any county in the State.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.07. PROCEDURE AFTER CONVICTION WITHOUT DEATH PENALTY.

Sec. 1. This article establishes the procedures for an

application for writ of habeas corpus in which the applicant

seeks relief from a felony judgment imposing a penalty other than

death.

Sec. 2. After indictment found in any felony case, other than a

case in which the death penalty is imposed, and before

conviction, the writ must be made returnable in the county where

the offense has been committed.

Sec. 3. (a) After final conviction in any felony case, the writ

must be made returnable to the Court of Criminal Appeals of Texas

at Austin, Texas.

(b) An application for writ of habeas corpus filed after final

conviction in a felony case, other than a case in which the death

penalty is imposed, must be filed with the clerk of the court in

which the conviction being challenged was obtained, and the clerk

shall assign the application to that court. When the application

is received by that court, a writ of habeas corpus, returnable to

the Court of Criminal Appeals, shall issue by operation of law.

The clerk of that court shall make appropriate notation thereof,

assign to the case a file number (ancillary to that of the

conviction being challenged), and forward a copy of the

application by certified mail, return receipt requested, or by

personal service to the attorney representing the state in that

court, who shall answer the application not later than the 15th

day after the date the copy of the application is received.

Matters alleged in the application not admitted by the state are

deemed denied.

(c) Within 20 days of the expiration of the time in which the

state is allowed to answer, it shall be the duty of the

convicting court to decide whether there are controverted,

previously unresolved facts material to the legality of the

applicant's confinement. Confinement means confinement for any

offense or any collateral consequence resulting from the

conviction that is the basis of the instant habeas corpus. If the

convicting court decides that there are no such issues, the clerk

shall immediately transmit to the Court of Criminal Appeals a

copy of the application , any answers filed, and a certificate

reciting the date upon which that finding was made. Failure of

the court to act within the allowed 20 days shall constitute such

a finding.

(d) If the convicting court decides that there are controverted,

previously unresolved facts which are material to the legality of

the applicant's confinement, it shall enter an order within 20

days of the expiration of the time allowed for the state to

reply, designating the issues of fact to be resolved. To resolve

those issues the court may order affidavits, depositions,

interrogatories, additional forensic testing, and hearings, as

well as using personal recollection. The state shall pay the cost

of additional forensic testing ordered under this subsection,

except that the applicant shall pay the cost of the testing if

the applicant retains counsel for purposes of filing an

application under this article. The convicting court may appoint

an attorney or a magistrate to hold a hearing and make findings

of fact. An attorney so appointed shall be compensated as

provided in Article 26.05 of this code. It shall be the duty of

the reporter who is designated to transcribe a hearing held

pursuant to this article to prepare a transcript within 15 days

of its conclusion. After the convicting court makes findings of

fact or approves the findings of the person designated to make

them, the clerk of the convicting court shall immediately

transmit to the Court of Criminal Appeals, under one cover, the

application, any answers filed, any motions filed, transcripts of

all depositions and hearings, any affidavits, and any other

matters such as official records used by the court in resolving

issues of fact.

(e) For the purposes of Subsection (d), "additional forensic

testing" does not include forensic DNA testing as provided for in

Chapter 64.

Sec. 4. (a) If a subsequent application for writ of habeas corpus

is filed after final disposition of an initial application

challenging the same conviction, 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:

(1) 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; or

(2) by a preponderance of the evidence, but for a violation of

the United States Constitution no rational juror could have found

the applicant guilty beyond a reasonable doubt.

(b) For purposes of Subsection (a)(1), a legal basis of a claim

is unavailable on or before a date described by Subsection (a)(1)

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)(1), a factual basis of a claim

is unavailable on or before a date described by Subsection (a)(1)

if the factual basis was not ascertainable through the exercise

of reasonable diligence on or before that date.

Sec. 5. The Court of Criminal Appeals may deny relief upon the

findings and conclusions of the hearing judge without docketing

the cause, or may direct that the cause be docketed and heard as

though originally presented to said court or as an appeal. Upon

reviewing the record the court shall enter its judgment remanding

the applicant to custody or ordering his release, as the law and

facts may justify. The mandate of the court shall issue to the

court issuing the writ, as in other criminal cases. After

conviction the procedure outlined in this Act shall be exclusive

and any other proceeding shall be void and of no force and effect

in discharging the prisoner.

Sec. 6. Upon any hearing by a district judge by virtue of this

Act, the attorney for applicant, and the state, shall be given at

least seven full days' notice before such hearing is held.

Sec. 7. When the attorney for the state files an answer, motion,

or other pleading relating to an application for a writ of habeas

corpus or the court issues an order relating to an application

for a writ of habeas corpus, the clerk of the court shall mail or

deliver to the applicant a copy of the answer, motion, pleading,

or order.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts

1967, 60th Leg., p. 1734, ch. 659, Sec. 7, eff. Aug. 28, 1967;

Acts 1973, 63rd Leg., p. 1271, ch. 465, Sec. 2, eff. June 14,

1973.

Sec. 2 amended by Acts 1977, 65th Leg., p. 1974, ch. 789, Sec. 1,

eff. Aug. 29, 1977; Sec. 5 added by Acts 1979, 66th Leg., p.

1017, ch. 451, Sec. 1, eff. Sept. 1, 1979. Amended by Acts 1995,

74th Leg., ch. 319, Sec. 5, eff. Sept. 1, 1995; Sec. 3(b) amended

by Acts 1999, 76th Leg., ch. 580, Sec. 2, eff. Sept. 1, 1999.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

1006, Sec. 1, eff. September 1, 2007.

Art. 11.071. PROCEDURE IN DEATH PENALTY CASE.

Application to Death Penalty Case

Sec. 1. Notwithstanding any other provision of this chapter, this

article establishes the procedures for an application for a writ

of habeas corpus in which the applicant seeks relief from a

judgment imposing a penalty of death.

Representation by Counsel

Sec. 2. (a) An applicant shall be represented by competent

counsel unless the applicant has elected to proceed pro se and

the convicting trial court finds, after a hearing on the record,

that the applicant's election is intelligent and voluntary.

(b) If a defendant is sentenced to death the convicting court,

immediately after judgment is entered under Article 42.01, shall

determine if the defendant is indigent and, if so, whether the

defendant desires appointment of counsel for the purpose of a

writ of habeas corpus. If the defendant desires appointment of

counsel for the purpose of a writ of habeas corpus, the court

shall appoint the office of capital writs to represent the

defendant as provided by Subsection (c).

(c) At the earliest practical time, but in no event later than

30 days, after the convicting court makes the findings required

under Subsections (a) and (b), the convicting court shall appoint

the office of capital writs or, if the office of capital writs

does not accept or is prohibited from accepting an appointment

under Section 78.054, Government Code, other competent counsel

under Subsection (f), unless the applicant elects to proceed pro

se or is represented by retained counsel. On appointing counsel

under this section, the convicting court shall immediately notify

the court of criminal appeals of the appointment, including in

the notice a copy of the judgment and the name, address, and

telephone number of the appointed counsel.

(d) Repealed by Acts 2009, 81st Leg., R.S., Ch. 781, Sec. 11,

eff. January 1, 2010.

(e) If the court of criminal appeals denies an applicant relief

under this article, an attorney appointed under this section to

represent the applicant shall, not later than the 15th day after

the date the court of criminal appeals denies relief or, if the

case is filed and set for submission, the 15th day after the date

the court of criminal appeals issues a mandate on the initial

application for a writ of habeas corpus under this article, move

for the appointment of counsel in federal habeas review under 18

U.S.C. Section 3599. The attorney shall immediately file a copy

of the motion with the court of criminal appeals, and if the

attorney fails to do so, the court may take any action to ensure

that the applicant's right to federal habeas review is protected,

including initiating contempt proceedings against the attorney.

(f) If the office of capital writs does not accept or is

prohibited from accepting an appointment under Section 78.054,

Government Code, the convicting court shall appoint counsel from

a list of competent counsel maintained by the presiding judges of

the administrative judicial regions under Section 78.056,

Government Code. The convicting court shall reasonably

compensate as provided by Section 2A an attorney appointed under

this section, other than an attorney employed by the office of

capital writs, regardless of whether the attorney is appointed by

the convicting court or was appointed by the court of criminal

appeals under prior law. An attorney appointed under this

section who is employed by the office of capital writs shall be

compensated in accordance with Subchapter B, Chapter 78,

Government Code.

State Reimbursement; County Obligation

Sec. 2A. (a) The state shall reimburse a county for

compensation of counsel under Section 2, other than for

compensation of counsel employed by the office of capital writs,

and for payment of expenses under Section 3, regardless of

whether counsel is employed by the office of capital writs. The

total amount of reimbursement to which a county is entitled under

this section for an application under this article may not exceed

$25,000. Compensation and expenses in excess of the $25,000

reimbursement provided by the state are the obligation of the

county.

(b) A convicting court seeking reimbursement for a county shall

certify to the comptroller of public accounts the amount of

compensation that the county is entitled to receive under this

section. The comptroller of public accounts shall issue a warrant

to the county in the amount certified by the convicting court,

not to exceed $25,000.

(c) The limitation imposed by this section on the reimbursement

by the state to a county for compensation of counsel and payment

of reasonable expenses does not prohibit a county from

compensating counsel and reimbursing expenses in an amount that

is in excess of the amount the county receives from the state as

reimbursement, and a county is specifically granted discretion by

this subsection to make payments in excess of the state

reimbursement.

(d) The comptroller shall reimburse a county for the compensation

and payment of expenses of an attorney appointed by the court of

criminal appeals under prior law. A convicting court seeking

reimbursement for a county as permitted by this subsection shall

certify the amount the county is entitled to receive under this

subsection for an application filed under this article, not to

exceed a total amount of $25,000.

Investigation of Grounds for Application

Sec. 3. (a) On appointment, counsel shall investigate

expeditiously, before and after the appellate record is filed in

the court of criminal appeals, the factual and legal grounds for

the filing of an application for a writ of habeas corpus.

(b) Not later than the 30th day before the date the application

for a writ of habeas corpus is filed with the convicting court,

counsel may file with the convicting court an ex parte, verified,

and confidential request for prepayment of expenses, including

expert fees, to investigate and present potential habeas corpus

claims. The request for expenses must state:

(1) the claims of the application to be investigated;

(2) specific facts that suggest that a claim of possible merit

may exist; and

(3) an itemized list of anticipated expenses for each claim.

(c) The court shall grant a request for expenses in whole or in

part if the request for expenses is timely and reasonable. If the

court denies in whole or in part the request for expenses, the

court shall briefly state the reasons for the denial in a written

order provided to the applicant.

(d) Counsel may incur expenses for habeas corpus investigation,

including expenses for experts, without prior approval by the

convicting court or the court of criminal appeals. On

presentation of a claim for reimbursement, which may be presented

ex parte, the convicting court shall order reimbursement of

counsel for expenses, if the expenses are reasonably necessary

and reasonably incurred. If the convicting court denies in whole

or in part the request for expenses, the court shall briefly

state the reasons for the denial in a written order provided to

the applicant. The applicant may request reconsideration of the

denial for reimbursement by the convicting court.

(e) Materials submitted to the court under this section are a

part of the court's record.

(f) This section applies to counsel's investigation of the

factual and legal grounds for the filing of an application for a

writ of habeas corpus, regardless of whether counsel is employed

by the office of capital writs.

Filing of Application

Sec. 4. (a) An application for a writ of habeas corpus,

returnable to the court of criminal appeals, must be filed in the

convicting court not later than the 180th day after the date the

convicting court appoints counsel under Section 2 or not later

than the 45th day after the date the state's original brief is

filed on direct appeal with the court of criminal appeals,

whichever date is later.

(b) The convicting court, before the filing date that is

applicable to the applicant under Subsection (a), may for good

cause shown and after notice and an opportunity to be heard by

the attorney representing the state grant one 90-day extension

that begins on the filing date applicable to the defendant under

Subsection (a). Either party may request that the court hold a

hearing on the request. If the convicting court finds that the

applicant cannot establish good cause justifying the requested

extension, the court shall make a finding stating that fact and

deny the request for the extension.

(c) An application filed after the filing date that is applicable

to the applicant under Subsection (a) or (b) is untimely.

(d) If the convicting court receives an untimely application or

determines that after the filing date that is applicable to the

applicant under Subsection (a) or (b) no application has been

filed, the convicting court immediately, but in any event within

10 days, shall send to the court of criminal appeals and to the

attorney representing the state:

(1) a copy of the untimely application, with a statement of the

convicting court that the application is untimely, or a statement

of the convicting court that no application has been filed within

the time periods required by Subsections (a) and (b); and

(2) any order the judge of the convicting court determines should

be attached to an untimely application or statement under

Subdivision (1).

(e) A failure to file an application before the filing date

applicable to the applicant under Subsection (a) or (b)

constitutes a waiver of all grounds for relief that were

available to the applicant before the last date on which an

application could be timely filed, except as provided by Section

4A.

Untimely Application; Application Not Filed

Sec. 4A. (a) On command of the court of criminal appeals, a

counsel who files an untimely application or fails to file an

application before the filing date applicable under Section 4(a)

or (b) shall show cause as to why the application was untimely

filed or not filed before the filing date.

(b) At the conclusion of the counsel's presentation to the court

of criminal appeals, the court may:

(1) find that good cause has not been shown and dismiss the

application;

(2) permit the counsel to continue representation of the

applicant and establish a new filing date for the application,

which may be not more than 180 days from the date the court

permits the counsel to continue representation; or

(3) appoint new counsel to represent the applicant and establish

a new filing date for the application, which may be not more than

270 days after the date the court appoints new counsel.

(c) The court of criminal appeals may hold in contempt counsel

who files an untimely application or fails to file an application

before the date required by Section 4(a) or (b). The court of

criminal appeals may punish as a separate instance of contempt

each day after the first day on which the counsel fails to timely

file the application. In addition to or in lieu of holding

counsel in contempt, the court of criminal appeals may enter an

order denying counsel compensation under Section 2A.

(d) If the court of criminal appeals establishes a new filing

date for the application, the court of criminal appeals shall

notify the convicting court of that fact and the convicting court

shall proceed under this article.

(e) Sections 2A and 3 apply to compensation and reimbursement of

counsel appointed under Subsection (b)(3) in the same manner as

if counsel had been appointed by the convicting court, unless the

attorney is employed by the office of capital writs, in which

case the compensation of that attorney is governed by Subchapter

B, Chapter 78, Government Code.

(f) Notwithstanding any other provision of this article, the

court of criminal appeals shall appoint counsel and establish a

new filing date for application, which may be no later than the

270th day after the date on which counsel is appointed, for each

applicant who before September 1, 1999, filed an untimely

application or failed to file an application before the date

required by Section 4(a) or (b). Section 2A applies to the

compensation and payment of expenses of counsel appointed by the

court of criminal appeals under this subsection, unless the

attorney is employed by the office of capital writs, in which

case the compensation of that attorney is governed by Subchapter

B, Chapter 78, Government Code.

Subsequent Application

Sec. 5. (a) If a subsequent application for a writ of habeas

corpus is filed after filing an initial application, 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:

(1) the current claims and issues have not been and could not

have been presented previously in a timely initial application or

in a previously considered application filed under this article

or Article 11.07 because the factual or legal basis for the claim

was unavailable on the date the applicant filed the previous

application;

(2) by a preponderance of the evidence, but for a violation of

the United States Constitution no rational juror could have found

the applicant guilty beyond a reasonable doubt; or

(3) by clear and convincing evidence, but for a violation of the

United States Constitution no rational juror would have answered

in the state's favor one or more of the special issues that were

submitted to the jury in the applicant's trial under Article

37.071, 37.0711, or 37.072.

(b) If the convicting court receives a subsequent application,

the clerk of the court shall:

(1) attach a notation that the application is a subsequent

application;

(2) assign to the case a file number that is ancillary to that of

the conviction being challenged; and

(3) immediately send to the court of criminal appeals a copy of:

(A) the application;

(B) the notation;

(C) the order scheduling the applicant's execution, if scheduled;

and

(D) any order the judge of the convicting court directs to be

attached to the application.

(c) On receipt of the copies of the documents from the clerk, the

court of criminal appeals shall determine whether the

requirements of Subsection (a) have been satisfied. The

convicting court may not take further action on the application

before the court of criminal appeals issues an order finding that

the requirements have been satisfied. If the court of criminal

appeals determines that the requirements have not been satisfied,

the court shall issue an order dismissing the application as an

abuse of the writ under this section.

(d) For purposes of Subsection (a)(1), a legal basis of a claim

is unavailable on or before a date described by Subsection (a)(1)

if the legal basis was not recognized by or 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.

(e) For purposes of Subsection (a)(1), a factual basis of a claim

is unavailable on or before a date described by Subsection (a)(1)

if the factual basis was not ascertainable through the exercise

of reasonable diligence on or before that date.

(f) If an amended or supplemental application is not filed within

the time specified under Section 4(a) or (b), the court shall

treat the application as a subsequent application under this

section.

Issuance of Writ

Sec. 6. (a) If a timely application for a writ of habeas corpus

is filed in the convicting court, a writ of habeas corpus,

returnable to the court of criminal appeals, shall issue by

operation of law.

(b) If the convicting court receives notice that the requirements

of Section 5 for consideration of a subsequent application have

been met, a writ of habeas corpus, returnable to the court of

criminal appeals, shall issue by operation of law.

(c) The clerk of the convicting court shall:

(1) make an appropriate notation that a writ of habeas corpus was

issued;

(2) assign to the case a file number that is ancillary to that of

the conviction being challenged; and

(3) send a copy of the application by certified mail, return

receipt requested, to the attorney representing the state in that

court.

(d) The clerk of the convicting court shall promptly deliver

copies of documents submitted to the clerk under this article to

the applicant and the attorney representing the state.

Answer to Application

Sec. 7. (a) The state shall file an answer to the application for

a writ of habeas corpus not later than the 120th day after the

date the state receives notice of issuance of the writ. The state

shall serve the answer on counsel for the applicant or, if the

applicant is proceeding pro se, on the applicant. The state may

request from the convicting court an extension of time in which

to answer the application by showing particularized justifying

circumstances for the extension, but in no event may the court

permit the state to file an answer later than the 180th day after

the date the state receives notice of issuance of the writ.

(b) Matters alleged in the application not admitted by the state

are deemed denied.

Findings of Fact Without Evidentiary Hearing

Sec. 8. (a) Not later than the 20th day after the last date the

state answers the application, the convicting court shall

determine whether controverted, previously unresolved factual

issues material to the legality of the applicant's confinement

exist and shall issue a written order of the determination.

(b) If the convicting court determines the issues do not exist,

the parties shall file proposed findings of fact and conclusions

of law for the court to consider on or before a date set by the

court that is not later than the 30th day after the date the

order is issued.

(c) After argument of counsel, if requested by the court, the

convicting court shall make appropriate written findings of fact

and conclusions of law not later than the 15th day after the date

the parties filed proposed findings or not later than the 45th

day after the date the court's determination is made under

Subsection (a), whichever occurs first.

(d) The clerk of the court shall immediately send to:

(1) the court of criminal appeals a copy of the:

(A) application;

(B) answer;

(C) orders entered by the convicting court;

(D) proposed findings of fact and conclusions of law; and

(E) findings of fact and conclusions of law entered by the court;

and

(2) counsel for the applicant or, if the applicant is proceeding

pro se, to the applicant, a copy of:

(A) orders entered by the convicting court;

(B) proposed findings of fact and conclusions of law; and

(C) findings of fact and conclusions of law entered by the court.

Hearing

Sec. 9. (a) If the convicting court determines that controverted,

previously unresolved factual issues material to the legality of

the applicant's confinement exist, the court shall enter an

order, not later than the 20th day after the last date the state

answers the application, designating the issues of fact to be

resolved and the manner in which the issues shall be resolved. To

resolve the issues, the court may require affidavits,

depositions, interrogatories, and evidentiary hearings and may

use personal recollection.

(b) The convicting court shall hold the evidentiary hearing not

later than the 30th day after the date on which the court enters

the order designating issues under Subsection (a). The convicting

court may grant a motion to postpone the hearing, but not for

more than 30 days, and only if the court states, on the record,

good cause for delay.

(c) The presiding judge of the convicting court shall conduct a

hearing held under this section unless another judge presided

over the original capital felony trial, in which event that

judge, if qualified for assignment under Section 74.054 or

74.055, Government Code, may preside over the hearing.

(d) The court reporter shall prepare a transcript of the hearing

not later than the 30th day after the date the hearing ends and

file the transcript with the clerk of the convicting court.

(e) The parties shall file proposed findings of fact and

conclusions of law for the convicting court to consider on or

before a date set by the court that is not later than the 30th

day after the date the transcript is filed. If the court requests

argument of counsel, after argument the court shall make written

findings of fact that are necessary to resolve the previously

unresolved facts and make conclusions of law not later than the

15th day after the date the parties file proposed findings or not

later than the 45th day after the date the court reporter files

the transcript, whichever occurs first.

(f) The clerk of the convicting court shall immediately transmit

to:

(1) the court of criminal appeals a copy of:

(A) the application;

(B) the answers and motions filed;

(C) the court reporter's transcript;

(D) the documentary exhibits introduced into evidence;

(E) the proposed findings of fact and conclusions of law;

(F) the findings of fact and conclusions of law entered by the

court;

(G) the sealed materials such as a confidential request for

investigative expenses; and

(H) any other matters used by the convicting court in resolving

issues of fact; and

(2) counsel for the applicant or, if the applicant is proceeding

pro se, to the applicant, a copy of:

(A) orders entered by the convicting court;

(B) proposed findings of fact and conclusions of law; and

(C) findings of fact and conclusions of law entered by the court.

(g) The clerk of the convicting court shall forward an exhibit

that is not documentary to the court of criminal appeals on

request of the court.

Rules of Evidence

Sec. 10. The Texas Rules of Criminal Evidence apply to a hearing

held under this article.

Review by Court of Criminal Appeals

Sec. 11. The court of criminal appeals shall expeditiously review

all applications for a writ of habeas corpus submitted under this

article. The court may set the cause for oral argument and may

request further briefing of the issues by the applicant or the

state. After reviewing the record, the court shall enter its

judgment remanding the applicant to custody or ordering the

applicant's release, as the law and facts may justify.

Added by Acts 1995, 74th Leg., ch. 319, Sec. 1, eff. Sept. 1,

1995. Sec. 4(a), (h) amended by Acts 1997, 75th Leg., ch. 1336,

Sec. 1, eff. Sept. 1, 1997; Sec. 5(a), (b) amended by Acts 1997,

75th Leg., ch. 1336, Sec. 2, eff. Sept. 1, 1997; Sec. 7(a)

amended by Acts 1997, 75th Leg., ch. 1336, Sec. 3, eff. Sept. 1,

1997; Sec. 8 amended by Acts 1997, 75th Leg., ch. 1336, Sec. 4,

eff. Sept. 1, 1997; Sec. 9(a), (e) amended by Acts 1997, 75th

Leg., ch. 1336, Sec. 5, eff. Sept. 1, 1997; Sec. 2 amended by

Acts 1999, 76th Leg., ch. 803, Sec. 1, eff. Sept. 1, 1999; Sec.

2A added by Acts 1999, 76th Leg., ch. 803, Sec. 2, eff. Sept. 1,

1999; Sec. 3(b), (d) amended by Acts 1999, 76th Leg., ch. 803,

Sec. 3, eff. Sept. 1, 1999; Sec. 4 amended by Acts 1999, 76th

Leg., ch. 803, Sec. 4, eff. Sept. 1, 1999; Sec. 4A added by Acts

1999, 76th Leg., ch. 803, Sec. 5, eff. Sept. 1, 1999; Sec. 5

heading amended by Acts 1999, 76th Leg., ch. 803, Sec. 7, eff.

Sept. 1, 1999; Sec. 5(a), (b) amended by and Sec. 5(f) added by

Acts 1999, 76th Leg., ch. 803, Sec. 6, eff. Sept. 1, 1999; Sec.

6(b) amended by Acts 1999, 76th Leg., ch. 803, Sec. 8, eff. Sept.

1, 1999; Sec. 7(a) amended by Acts 1999, 76th Leg., ch. 803, Sec.

9, eff. Sept. 1, 1999; Sec. 9(b) amended by Acts 1999, 76th Leg.,

ch. 803, Sec. 10, eff. Sept. 1, 1999; Sec. 2(f) amended by Acts

2003, 78th Leg., ch. 315, Sec. 1, eff. Sept. 1, 2003; Sec. 2A(d)

added by Acts 2003, 78th Leg., ch. 315, Sec. 2, eff. Sept. 1,

2003; Sec. 3(d) amended by Acts 2003, 78th Leg., ch. 315, Sec. 3,

eff. Sept. 1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch.

787, Sec. 13, eff. September 1, 2005.

Acts 2005, 79th Leg., Ch.

965, Sec. 5, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch.

593, Sec. 3.06, eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch.

781, Sec. 2, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch.

781, Sec. 3, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch.

781, Sec. 4, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch.

781, Sec. 5, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch.

781, Sec. 11, eff. January 1, 2010.

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.

Art. 11.08. APPLICANT CHARGED WITH FELONY. If a person is

confined after indictment on a charge of felony, he may apply to

the judge of the court in which he is indicted; or if there be no

judge within the district, then to the judge of any district

whose residence is nearest to the court house of the county in

which the applicant is held in custody.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.09. APPLICANT CHARGED WITH MISDEMEANOR. If a person is

confined on a charge of misdemeanor, he may apply to the county

judge of the county in which the misdemeanor is charged to have

been committed, or if there be no county judge in said county,

then to the county judge whose residence is nearest to the

courthouse of the county in which the applicant is held in

custody.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.10. PROCEEDINGS UNDER THE WRIT. When motion has been

made to a judge under the circumstances set forth in the two

preceding Articles, he shall appoint a time when he will examine

the cause of the applicant, and issue the writ returnable at that

time, in the county where the offense is charged in the

indictment or information to have been committed. He shall also

specify some place in the county where he will hear the motion.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.11. EARLY HEARING. The time so appointed shall be the

earliest day which the judge can devote to hearing the cause of

the applicant.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.12. WHO MAY PRESENT PETITION. Either the party for whose

relief the writ is intended, or any person for him, may present a

petition to the proper authority for the purpose of obtaining

relief.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.13. APPLICANT. The word applicant, as used in this

Chapter, refers to the person for whose relief the writ is asked,

though the petition may be signed and presented by any other

person.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.14. REQUISITES OF PETITION. The petition must state

substantially:

1. That the person for whose benefit the application is made is

illegally restrained in his liberty, and by whom, naming both

parties, if their names are known, or if unknown, designating and

describing them;

2. When the party is confined or restrained by virtue of any

writ, order or process, or under color of either, a copy shall be

annexed to the petition, or it shall be stated that a copy cannot

be obtained;

3. When the confinement or restraint is not by virtue of any

writ, order or process, the petition may state only that the

party is illegally confined or restrained in his liberty;

4. There must be a prayer in the petition for the writ of habeas

corpus; and

5. Oath must be made that the allegations of the petition are

true, according to the belief of the petitioner.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.15. WRIT GRANTED WITHOUT DELAY. The writ of habeas

corpus shall be granted without delay by the judge or court

receiving the petition, unless it be manifest from the petition

itself, or some documents annexed to it, that the party is

entitled to no relief whatever.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.16. WRIT MAY ISSUE WITHOUT MOTION. A judge of the

district or county court who has knowledge that any person is

illegally confined or restrained in his liberty within his

district or county may, if the case be one within his

jurisdiction, issue the writ of habeas corpus, without any motion

being made for the same.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.17. JUDGE MAY ISSUE WARRANT OF ARREST. Whenever it

appears by satisfactory evidence to any judge authorized to issue

such writ that any one is held in illegal confinement or custody,

and there is good reason to believe that he will be carried out

of the State, or suffer some irreparable injury before he can

obtain relief in the usual course of law, or whenever the writ of

habeas corpus has been issued and disregarded, the said judge may

issue a warrant to any peace officer, or to any person specially

named by said judge, directing him to take and bring such person

before such judge, to be dealt with according to law.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.18. MAY ARREST DETAINER. Where it appears by the proof

offered, under circumstances mentioned in the preceding Article,

that the person charged with having illegal custody of the

prisoner is, by such act, guilty of an offense against the law,

the judge may, in the warrant, order that he be arrested and

brought before him; and upon examination, he may be committed,

discharged, or held to bail, as the law and the nature of the

case may require.

Acts 1965, 59th, Leg., vol. 2, p. 317, ch. 722.

Art. 11.19. PROCEEDINGS UNDER THE WARRANT. The officer charged

with the execution of the warrant shall bring the persons therein

mentioned before the judge or court issuing the same, who shall

inquire into the cause of the imprisonment or restraint, and make

an order thereon, as in cases of habeas corpus, either remanding

into custody, discharging or admitting to bail the party so

imprisoned or restrained.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.20. OFFICER EXECUTING WARRANT. The same power may be

exercised by the officer executing the warrant in cases arising

under the foregoing Articles as is exercised in the execution of

warrants of arrest.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.21. CONSTRUCTIVE CUSTODY. The words "confined",

"imprisoned", "in custody", "confinement", "imprisonment", refer

not only to the actual, corporeal and forcible detention of a

person, but likewise to any coercive measures by threats, menaces

or the fear of injury, whereby one person exercises a control

over the person of another, and detains him within certain

limits.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.22. RESTRAINT. By "restraint" is meant the kind of

control which one person exercises over another, not to confine

him within certain limits, but to subject him to the general

authority and power of the person claiming such right.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.23. SCOPE OF WRIT. The writ of habeas corpus is intended

to be applicable to all such cases of confinement and restraint,

where there is no lawful right in the person exercising the

power, or where, though the power in fact exists, it is exercised

in a manner or degree not sanctioned by law.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.24. ONE COMMITTED IN DEFAULT OF BAIL. Where a person has

been committed to custody for failing to enter into bond, he is

entitled to the writ of habeas corpus, if it be stated in the

petition that there was no sufficient cause for requiring bail,

or that the bail required is excessive. If the proof sustains the

petition, it will entitle the party to be discharged, or have the

bail reduced.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.25. PERSON AFFLICTED WITH DISEASE. When a judge or court

authorized to grant writs of habeas corpus shall be satisfied,

upon investigation, that a person in legal custody is afflicted

with a disease which will render a removal necessary for the

preservation of life, an order may be made for the removal of the

prisoner to some other place where his health will not be likely

to suffer; or he may be admitted to bail when it appears that any

species of confinement will endanger his life.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.26. WHO MAY SERVE WRIT. The service of the writ may be

made by any person competent to testify.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.27. HOW WRIT MAY BE SERVED AND RETURNED. The writ may be

served by delivering a copy of the original to the person who is

charged with having the party under restraint or in custody, and

exhibiting the original, if demanded; if he refuse to receive it,

he shall be informed verbally of the purport of the writ. If he

refuses admittance to the person wishing to make the service, or

conceals himself, a copy of the writ may be fixed upon some

conspicuous part of the house where such person resides or

conceals himself, or of the place where the prisoner is confined;

and the person serving the writ of habeas corpus shall, in all

cases, state fully, in his return, the manner and the time of the

service of the writ.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.28. RETURN UNDER OATH. The return of a writ of habeas

corpus, under the provisions of the preceding Article, if made by

any person other than an officer, shall be under oath.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.29. MUST MAKE RETURN. The person on whom the writ of

habeas corpus is served shall immediately obey the same, and make

the return required by law upon the copy of the original writ

served on him, and this, whether the writ be directed to him or

not.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.30. HOW RETURN IS MADE. The return is made by stating in

plain language upon the copy of the writ or some paper connected

with it:

1. Whether it is true or not, according to the statement of the

petition, that he has in his custody, or under his restraint, the

person named or described in such petition;

2. By virtue of what authority, or for what cause, he took and

detains such person;

3. If he had such person in his custody or under restraint at any

time before the service of the writ, and has transferred him to

the custody of another, he shall state particularly to whom, at

what time, for what reason or by what authority he made such

transfer;

4. He shall annex to his return the writ or warrant, if any, by

virtue of which he holds the person in custody; and

5. The return must be signed and sworn to by the person making

it.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.31. APPLICANT BROUGHT BEFORE JUDGE. The person on whom

the writ is served shall bring before the judge the person in his

custody, or under his restraint, unless it be made to appear that

by reason of sickness he cannot be removed; in which case,

another day may be appointed by the judge or court for hearing

the cause, and for the production of the person confined; or the

application may be heard and decided without the production of

the person detained, by the consent of his counsel.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.32. CUSTODY PENDING EXAMINATION. When the return of the

writ has been made, and the applicant brought before the court,

he is no longer detained on the original warrant or process, but

under the authority of the habeas corpus. The safekeeping of the

prisoner, pending the examination or hearing, is entirely under

the direction and authority of the judge or court issuing the

writ, or to which the return is made. He may be bailed from day

to day, or be remanded to the same jail whence he came, or to any

other place of safekeeping under the control of the judge or

court, till the case is finally determined.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.33. COURT SHALL ALLOW TIME. The court or judge granting

the writ of habeas corpus shall allow reasonable time for the

production of the person detained in custody.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.34. DISOBEYING WRIT. When service has been made upon a

person charged with the illegal custody of another, if he refuses

to obey the writ and make the return required by law, or, if he

refuses to receive the writ, or conceals himself, the court or

judge issuing the writ shall issue a warrant directed to any

officer or other suitable person willing to execute the same,

commanding him to arrest the person charged with the illegal

custody or detention of another, and bring him before such court

or judge. When such person has been arrested and brought before

the court or judge, if he still refuses to return the writ, or

does not produce the person in his custody, he shall be committed

to jail and remain there until he is willing to obey the writ of

habeas corpus, and until he pays all the costs of the proceeding.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.35. FURTHER PENALTY FOR DISOBEYING WRIT. Any person

disobeying the writ of habeas corpus shall also be liable to a

civil action at the suit of the party detained, and shall pay in

such suit fifty dollars for each day of illegal detention and

restraint, after service of the writ. It shall be deemed that a

person has disobeyed the writ who detains a prisoner a longer

time than three days after service thereof, unless where further

time is allowed in the writ for making the return thereto.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.36. APPLICANT MAY BE BROUGHT BEFORE COURT. In case of

disobedience of the writ of habeas corpus, the person for whose

relief it is intended may also be brought before the court or

judge having competent authority, by an order for that purpose,

issued to any peace officer or other proper person specially

named.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.37. DEATH, ETC., SUFFICIENT RETURN OF WRIT. It is a

sufficient return of the writ of habeas corpus that the person,

once detained, has died or escaped, or that by some superior

force he has been taken from the custody of the person making the

return; but where any such cause shall be assigned, the court or

judge shall proceed to hear testimony; and the facts stated in

the return shall be proved by satisfactory evidence.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.38. WHEN A PRISONER DIES. When a prisoner confined in

jail, or who is in legal custody, shall die, the officer having

charge of him shall forthwith report the same to a justice of the

peace of the county, who shall hold an inquest to ascertain the

cause of his death. All the proceedings had in such cases shall

be reduced to writing, certified and returned as in other cases

of inquest; a certified copy of which shall be sufficient proof

of the death of the prisoner at the hearing of a motion under

habeas corpus.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.39. WHO SHALL REPRESENT THE STATE. If neither the county

nor the district attorney be present, the judge may appoint some

qualified practicing attorney to represent the State, who shall

be paid the same fee allowed district attorneys for like

services.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.40. PRISONER DISCHARGED. The judge or court before whom

a person is brought by writ of habeas corpus shall examine the

writ and the papers attached to it; and if no legal cause be

shown for the imprisonment or restraint, or if it appear that the

imprisonment or restraint, though at first legal, cannot for any

cause be lawfully prolonged, the applicant shall be discharged.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.41. WHERE PARTY IS INDICTED FOR CAPITAL OFFENSE. If it

appears by the return and papers attached that the party stands

indicted for a capital offense, the judge or court having

jurisdiction of the case shall, nevertheless, proceed to hear

such testimony as may be offered on the part of the State and the

applicant, and may either remand or admit him to bail, as the law

and the facts may justify.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.42. IF COURT HAS NO JURISDICTION. If it appear by the

return and papers attached that the judge or court has no

jurisdiction, such court or judge shall at once remand the

applicant to the person from whose custody he has been taken.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.43. PRESUMPTION OF INNOCENCE. No presumption of guilt

arises from the mere fact that a criminal accusation has been

made before a competent authority.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.44. ACTION OF COURT UPON EXAMINATION. The judge or

court, after having examined the return and all documents

attached, and heard the testimony offered on both sides, shall,

according to the facts and circumstances of the case, proceed

either to remand the party into custody, admit him to bail or

discharge him; provided, that no defendant shall be discharged

after indictment without bail.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.45. VOID OR INFORMAL. If it appears that the applicant

is detained or held under a warrant of commitment which is

informal, or void; yet, if from the document on which the warrant

was based, or from the proof on the hearing of the habeas corpus,

it appears that there is probable cause to believe that an

offense has been committed by the prisoner, he shall not be

discharged, but shall be committed or held to bail.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.46. IF PROOF SHOWS OFFENSE. Where, upon an examination

under habeas corpus, it appears to the court or judge that there

is probable cause to believe that an offense has been committed

by the prisoner, he shall not be discharged, but shall be

committed or admitted to bail.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.47. MAY SUMMON MAGISTRATE. To ascertain the grounds on

which an informal or void warrant has been issued, the judge or

court may cause to be summoned the magistrate who issued the

warrant, and may, by an order, require him to bring with him all

the papers and proceedings touching the matter. The attendance of

such magistrate and the production of such papers may be enforced

by warrant of arrest.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.48. WRITTEN ISSUE NOT NECESSARY. It shall not be

necessary, on the trial of any cause arising under habeas corpus,

to make up a written issue, though it may be done by the

applicant for the writ. He may except to the sufficiency of, or

controvert the return or any part thereof, or allege any new

matter in avoidance. If written denial on his part be not made,

it shall be considered, for the purpose of investigation, that

the statements of said return are contested by a denial of the

same; and the proof shall be heard accordingly, both for and

against the applicant for relief.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.49. ORDER OF ARGUMENT. The applicant shall have the

right by himself or counsel to open and conclude the argument

upon the trial under habeas corpus.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.50. COSTS. The judge trying the cause under habeas

corpus may make such order as is deemed right concerning the cost

of bringing the defendant before him, and all other costs of the

proceeding, awarding the same either against the person to whom

the writ was directed, the person seeking relief, or may award no

costs at all.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.51. RECORD OF PROCEEDINGS. If a writ of habeas corpus be

made returnable before a court in session, all the proceedings

had shall be entered of record by the clerk thereof, as in any

other case in such court. When the motion is heard out of the

county where the offense was committed, or in the Court of

Criminal Appeals, the clerk shall transmit a certified copy of

all the proceedings upon the motion to the clerk of the court

which has jurisdiction of the offense.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.52. PROCEEDINGS HAD IN VACATION. If the return is made

and the proceedings had before a judge of a court in vacation, he

shall cause all of the proceedings to be written, shall certify

to the same, and cause them to be filed with the clerk of the

court which has jurisdiction of the offense, who shall keep them

safely.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 11.53. CONSTRUING THE TWO PRECEDING ARTICLES. The two

preceding Articles refer only to cases where an applicant is held<