[Habeas counsel] has filed only one claim for relief, essentially challenging the unitary review process of Art. 11.071 Code Crim. Proc. Ann. (Vernon Supp. 1997). I don't know whether this is a debatable issue, but I do know under all the "new habeas laws" prevent repeated writs and it is very important that counsel be as thorough as possible.

I am sure if [habeas counsel] would have at least research the records and investigated the facts (which he is require[d] to do) he could have presented a complete post conviction writ of habeas corpus, now I am face[d] with the possibility of loosing [sic] all state and federal constitutional claims.

After this Court denied habeas relief, the trial court set an execution date for February 25, 1998. Shortly before that appointed day, applicant filed a "Motion for Stay of Execution, Application for Writ of Habeas Corpus Pursuant to Art. V, Sec. 5 of the Texas Constitution or, in the Alternative, Motion to Vacate Prior Judgment and for Appointment of Competent Counsel Pursuant to Tex. Code Crim. Proc. Art. 11.071." ⁽⁵⁾ This Court dismissed that motion in a short per curiam order on February 23, 1998. ⁽⁶⁾ Judge Overstreet dissented, arguing that applicant had not received effective assistance of counsel on his first "writ."He noted that:

On the same day that this Court dismissed applicant's motion for stay of execution, applicant filed- again, via current habeas counsel- for a stay in federal district court which was granted. The federal court then appointed current habeas counsel as federal writ counsel and granted several filing extensions to permit counsel sufficient time to investigate and raise appropriate habeas claims. On February 24, 1999, the federal district court dismissed, without prejudice, applicant's federal writ of habeas corpus, stating that "the courts of the State of Texas should be given an opportunity to address each of petitioner's numerous unexhausted claims for federal habeas corpus relief, as well as the cornucopia of new evidence supporting same that petitioner proposes to present to this Court." ⁽⁷⁾

On March 1, 2000, applicant filed the instant third "writ" application with the convicting court which was transmitted to this Court under art. 11.071, § 5 to determine whether this is a subsequent writ barred by Section 5. We conclude that this is not a subsequent writ. It is, in fact, the first writ application that Mr. Kerr has filed which comports with the requirements of article 11.071 in that it "seeks relief from a judgment imposing a penalty of death." ⁽⁸⁾

The Habeas Corpus Reform Act of 1995 was enacted to implement more efficiently the Texas Constitutional mandate that "[t]he Legislature shall enact laws to render the remedy [of habeas corpus] speedy and effectual." ⁽⁹⁾ As Senator Montford explained in laying out the bill to the Senate Criminal Justice Committee, ⁽¹⁰⁾ the Habeas Corpus Reform Act made three major changes to Texas law: 1) it adopts a unitary system for death penalty habeas review in which direct appeals and habeas review proceeded along parallel paths at roughly the same time; 2) "it adopts the abuse of the writ doctrine currently used in federal court ⁽¹¹⁾ which limits an inmate to a one-time application for a writ of habeas corpus except, and I want to emphasize, except in exceptional circumstances"; and 3) it provides for the appointment and payment of counsel to represent all those convicted of capital murder and sentenced to death in their habeas petitions. ⁽¹²⁾ Representative Pete Gallego, in presenting the same habeas bill to the Texas House of Representatives stated:

And we tell individuals that everything you can possibly raise the first time, we expect you to raise it initially, one bite of the apple, one shot. ... What we're attempting to do here is to say "raise everything at one time." You get one bite of the apple. If you have to stick the kitchen sink in there, put it all in there, and we will go through those claims one at a time and make a decision. But none of this "every week you file a new petition" which is currently basically what happens. ... The idea is this: you're going to be able to fund counsel in these instances and we are going to give you one very well-represented run at a habeas corpus proceeding. And unless you meet a very fine-tuned exception, you're not going to be able to come back time after time after time. ⁽¹³⁾

To constitute a document worthy of the title "writ application" filed pursuant to article 11.071, the writ must seek "relief from a judgment imposing a penalty of death." ⁽¹⁴⁾ A death penalty "writ" that does not challenge the validity of the underlying judgment and which, even if meritorious, would not result in immediate relief from his capital murder conviction or death sentence, is not an "initial application" for purposes of art. 11.071, § 5 which generally bars consideration of a subsequent writ after filing the "initial application." This same rule applies to non-capital writs filed under Article 11.07. See Ex parte Evans, 964 S.W.2d 643, 646-47 (Tex. Crim. App. 1998) (an "initial application" for a writ under art. 11.07 pertaining to a parole revocation hearing does not challenge the underlying conviction and thus does not bar a subsequent writ which does challenge the conviction). ⁽¹⁵⁾

Under this definition, neither of applicant's first two filings qualified as an "initial application" for a writ of habeas corpus seeking "relief from a judgment imposing a penalty of death." Even if Mr. Kerr's first motion challenging the constitutionality of article 11.071 had been granted and the habeas statute disappeared, he would not obtain any relief from his capital murder conviction or death sentence. He is not being restrained under the habeas corpus statute. He is restrained by virtue of the judgment and sentence from the underlying capital murder trial. Similarly, the second habeas filing dealt solely with a stay of execution and an allegation of ineffective assistance of the original habeas counsel. Applicant is not being restrained because of the conduct of his original habeas counsel. Even if a majority of this Court were to recognize an allegation of ineffective assistance of habeas counsel, ⁽¹⁶⁾ that is a purely derivative claim, one which would simply avoid a procedural bar and allow the habeas applicant to have the merits of his underlying constitutional claim heard.

We decline to place blame upon anyone for Mr. Kerr's present situation. The original habeas counsel was competent and qualified to handle this matter when he was appointed. See Ex parte Mines, 26 S.W.3d 910, 912 (Tex. Crim. App. 2000) (stating that, for purposes of appointment of "competent counsel" in context of art. 11.071, "competent" refers to an attorney's qualifications and abilities). He made what we characterize as an innocent mistake in filing an initial document entitled "application for post-conviction writ of habeas corpus" which was, in its substance, akin to a motion for extension of time: counsel believed that he should not be required to file a substantive writ of habeas corpus until his writ of certiorari to the United States Supreme Court had been accepted or rejected. ⁽¹⁷⁾

We are confident that this sort of mistake will not be made by other counsel after today. Although it is possible to characterize the original habeas attorney's filing as a Machiavellian strategy designed to thwart the proper statutory procedure for filing a death penalty writ, we have no reason to make that conclusion in this particular case. If future habeas counsel were to indulge in such a strategy (which we doubt), we have both the statutory and plenary authority to hold that attorney accountable via our powers of contempt, ⁽¹⁸⁾ orders removing or denying compensation to dilatory counsel, ⁽¹⁹⁾ reporting violations of the Texas Disciplinary Rules of Professional Conduct to the appropriate State Bar officials, as well as other remedies. ⁽²⁰⁾

Similarly, trial courts who make the original appointment of habeas counsel under art. 11.071, § 2(c), have the authority to monitor the progress and timely filing of an initial application for a writ which qualifies as one which "seeks relief from a judgment imposing a penalty of death." ⁽²¹⁾ We are confident that Texas trial judges can identify and deal appropriately with any recalcitrant or dilatory habeas counsel.

Johnson, J., filed a concurring opinion.

We have construed the non-capital habeas statute, Article 11.07, on several occasions. Before the enactment of Article 11.071 in 1995, Article 11.07 covered both death penalty and non-death penalty cases. Within the same bill that enacted Article 11.071, the Legislature added §§1 and 4 to Article 11.07. ⁽¹⁾ The death penalty and non-death penalty amendments were discussed together by their sponsor in committee. ⁽²⁾ Given the common history of the death penalty and non-death penalty provisions, they should be construed the same, except where differences in the language of the provisions dictate otherwise.

Applicant's first application was styled an "application for writ of habeas corpus" under Texas Code of Criminal Procedure, Article 11.071. The attorney who drafted that application was appointed in accordance with the provisions of Article 11.071. ⁽³⁾ The Court contends that the application nevertheless does not constitute a true writ application under Article 11.071 because "it did not attack applicant's capital murder conviction or death sentence. It raised no constitutional or jurisdictional claims concerning the fundamental fairness of the underlying trial or the accuracy of the verdict." ⁽⁴⁾ The Court asserts that this type of claim fails to satisfy Article 11.071, §1's requirement that the application seek "relief from a judgment imposing a penalty of death." ⁽⁵⁾

However, we have construed parallel language in Article 11.07 in a manner contrary to this conclusion. Article 11.07, §1 contains language virtually identical to the Article 11.071, §1 language referenced by the Court, to wit: "This article establishes the procedures for an application for writ of habeas corpus in which the applicant seeks relief from a...judgment...." ⁽⁶⁾ The two provisions differ only in the type of judgment referenced, with Article 11.071, §1 referring to "a judgment imposing a penalty of death" and Article 11.07, §1 referring to "a felony judgment imposing a penalty other than death." Yet, in the Article 11.07 context, we have recognized as cognizable claims that do not attack the underlying trial or the verdict, including attacks upon parole revocation procedures ⁽⁷⁾ and requests for out-of-time appeals. ⁽⁸⁾ In Ex parte Whiteside, we stated that the wording in Article 11.07, §1 was simply meant to "indicate that, after the enactment of Article 11.071, Article 11.07 would apply only to non-capital habeas applications, as distinguished from capital habeas applications." ⁽⁹⁾ In so concluding, we rejected the contention in Judge Womack's concurring opinion that after 1995, Article 11.07 no longer applied to claims that did not seek relief from a judgment. ⁽¹⁰⁾ Under the same reasoning, the Article 11.071, §1 "seeks relief from a judgment" language was not meant to narrow the class of claims cognizable in the death penalty habeas setting, but was instead simply meant to designate Article 11.071 as the provision applicable to death penalty cases. ⁽¹¹⁾ It follows that an applicant's claims need not attack the trial, verdict, or sentence to be cognizable in a capital habeas corpus setting.

The two habeas corpus statutes do differ in one significant respect: Article 11.071 does not contain the "challenging the conviction" language that limits subsequent applications. While Article 11.07 §4 bars a subsequent application for writ of habeas corpus if it is filed "after final disposition of an initial application challenging the same conviction," Article 11.071 §5 bars a subsequent application if it is filed "after filing an initial application." ⁽¹²⁾ In Evans, we found the presence of the "challenging the same conviction" language to be controlling in our determination that certain types of claims made in an initial application would not bar a subsequent application. ⁽¹³⁾ In Whiteside, we found the absence of that language with reference to subsequent applications to mean that the "challenging the same conviction" limitation did not apply to subsequent applications. ⁽¹⁴⁾ As a result, in non-death penalty cases, once an initial application challenging the conviction has been finally disposed, all subsequent applications are barred (unless they meet one of the enumerated exceptions) regardless of whether the subsequent application constitutes a challenge to the conviction. ⁽¹⁵⁾ We said in Whiteside that the fact that the Legislature placed the "challenging the conviction" limitation in one part of the statute but not another indicated the Legislature's intent that the limitation not apply in the part of the statute in which it is absent. ⁽¹⁶⁾ The same logic applies to Article 11.071. Given that Articles 11.071 and the revisions to Article 11.07 were adopted together in the same bill and contain some parallel language, we should assume that the differences in language are material and intended by the Legislature. Because the "challenging the conviction" language is wholly absent from Article 11.071, §5, the logical conclusion is that, in death penalty cases, any initial application, regardless of whether it attacks the conviction, triggers the §5 bar for all subsequent applications.

For these reasons, I conclude that the present application is indeed a subsequent application subject to §5. Because applicant fails to meet the enumerated exceptions, ⁽¹⁷⁾ this application should be barred. I respectfully dissent.

17. See Article 11.071(a)(1) - (3).