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Delayed Order Designating Issues in Texas Habeas Action Has No Effect
On June 4, 2008, the Texas Court of Criminal Appeals (CCA) held that an untimely order designating issues entered by a state district court in a state habeas action is of no effect and the district clerk was under a ministerial duty to immediately forward the application and related records to the CCA.
John F. Dejean, a Texas state prisoner, simultaneously filed four state applications for a writ of habeas corpus pursuant to Article 11.07, Texas Code of Criminal Procedure, challenging four separate criminal convictions in state district court. Article 11.07 allows the state 15 days to file an answer to the application and the trial court another 20 days to issue an order designating any controverted, previously unresolved issues of material facts. If no such order is issued within 35 days after the filing of the application, Article 11.07 instructs the district clerk to forward the application to the CCA. The district court has no authority to delay the forwarding of the writ application except by timely entry of an order designating issues. If a district court fails to enter such an order, the inaction is deemed to be a finding that no issues of fact require further resolution.
Dejean waited the 35 days, but no order was entered and the application was not forwarded. Five months after the application was filed, the district court entered orders designating issues. Dejean filed a petition for a writ of mandamus with the CCA asking that the district clerk be instructed to forward the applications and related documents to the CCA because timely orders designating issues were not entered.
The CCA held that the “untimely orders interfered with the district clerk's duty to transmit these applications to this Court and are therefore without effect.” It noted that the district clerk had no authority to continue to hold the writ applications and was under a ministerial duty to immediately forward the applications to the CCA. Therefore, the CCA conditionally granted the writ of mandamus if the district clerk did not immediately forward the writ applications. See: Dejean v. District Clerk, 259 S.W.3d 183 (Tex.Crim.App. 2008). The court subsequently found that the writs contained meritorious challenges requiring further factual development and ordered an evidentiary hearing before the district court. See: Ex parte Dejean, Tex. Ct. Crim. App., Nos. WR-69,610-02, WR-69,610-03, WR-69,610-04 & WR-69,610-05 (Aug. 20, 2008).
John F. Dejean, a Texas state prisoner, simultaneously filed four state applications for a writ of habeas corpus pursuant to Article 11.07, Texas Code of Criminal Procedure, challenging four separate criminal convictions in state district court. Article 11.07 allows the state 15 days to file an answer to the application and the trial court another 20 days to issue an order designating any controverted, previously unresolved issues of material facts. If no such order is issued within 35 days after the filing of the application, Article 11.07 instructs the district clerk to forward the application to the CCA. The district court has no authority to delay the forwarding of the writ application except by timely entry of an order designating issues. If a district court fails to enter such an order, the inaction is deemed to be a finding that no issues of fact require further resolution.
Dejean waited the 35 days, but no order was entered and the application was not forwarded. Five months after the application was filed, the district court entered orders designating issues. Dejean filed a petition for a writ of mandamus with the CCA asking that the district clerk be instructed to forward the applications and related documents to the CCA because timely orders designating issues were not entered.
The CCA held that the “untimely orders interfered with the district clerk's duty to transmit these applications to this Court and are therefore without effect.” It noted that the district clerk had no authority to continue to hold the writ applications and was under a ministerial duty to immediately forward the applications to the CCA. Therefore, the CCA conditionally granted the writ of mandamus if the district clerk did not immediately forward the writ applications. See: Dejean v. District Clerk, 259 S.W.3d 183 (Tex.Crim.App. 2008). The court subsequently found that the writs contained meritorious challenges requiring further factual development and ordered an evidentiary hearing before the district court. See: Ex parte Dejean, Tex. Ct. Crim. App., Nos. WR-69,610-02, WR-69,610-03, WR-69,610-04 & WR-69,610-05 (Aug. 20, 2008).
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Related legal cases
Dejean v. District Clerk
| Year | 2008 |
|---|---|
| Cite | 259 S.W.3d 183 (Tex.Crim.App. 2008) |
| Level | State Supreme Court |
JOHN F. DEJEAN, Relator v. DISTRICT CLERK, DALLAS COUNTY, Respondent
NO. AP-75,928
COURT OF CRIMINAL APPEALS OF TEXAS
259 S.W.3d 183; 2008 Tex. Crim. App. LEXIS 684
June 4, 2008, Filed
[*183] Per curiam.
Relator has filed a motion for leave to file a writ of mandamus pursuant to the original jurisdiction of this Court. In it, he contends that he filed four 11.07 applications for writs of habeas corpus in the trial court on October 19, 2007. He alleges that more than 35 days have elapsed since the filing date and that timely orders designating issues have not been entered. He wants this Court to order the district clerk to forward his 11.07 applications.
On April 9, 2008, this Court held this application in abeyance and ordered the district clerk to respond because more than 35 days had elapsed since the alleged filing dates and this Court had no record of timely entered orders designating issues. In response to this Court's order, the district clerk forwarded copies of orders designating issues which had been entered on March 19, 2008. This Court has still not received these 11.07 applications for writs of habeas corpus and now grants this motion for leave to file an application for a writ of mandamus because [**2] the orders designating issues were untimely entered.
Upon receipt of an application for a writ of habeas corpus challenging a final felony conviction, the attorney representing the State has 15 days to respond. See TEX. CODE CRIM. PROC. Art. 11.07, §3(b). After the expiration of the time allowed for the State to respond, the trial court is allowed 20 days to determine whether the application contains allegations of controverted, previously unresolved facts material to the legality of the applicant's confinement. Art. 11.07, §3(c). If the trial court [*184] determines that the application for writ of habeas corpus presents such issues it "shall enter an order within 20 days of the expiration of the time allowed for the state to reply, designating issues of fact to be resolved." Id. Thus, the trial court has 35 days to enter an order designating issues after the filing date of an 11.07 application for a writ of habeas corpus. Article 11.07 does not authorize the trial court to extend the time limitations imposed by the statute, other than by a timely entry of an order designating issues. McCree v. Hampton, 824 S.W.2d 578, 579 (Tex. Crim. App. 1992)(emphasis added). Without a timely entry of an [**3] order designating issues, Article 11.07 imposes a duty upon the clerk of the trial court to immediately transmit to this Court the record from the application for a writ of habeas corpus, deeming the trial court's inaction a finding that no issues of fact require further resolution. Art. 11.07, §3(c).
In this case, Relator filed these applications for writs of habeas corpus in the trial court on October 19, 2007. The trial court entered order designating issues on March 19, 2008, which was more than 35 days after the filing date of these 11.07 applications. These untimely orders interfered with the district clerk's duty to transmit these applications to this Court and are therefore without effect. See Martin v. Hamlin, 25 S.W.3d 718, (Tex. Crim. App. 2000). The district clerk has no authority to continue to hold Relator's applications for writs of habeas corpus and is under a ministerial duty to immediately forward the applications and related records in cause nos. W05-00958-K(A), W05-00949K(A), W05-00944-K(A), and W05-00937-(K)A filed in Criminal District Court no. 4 of Dallas County to this Court.
We conditionally grant mandamus relief and direct the Respondent to comply with this [**4] opinion. The writ of mandamus will issue only in the event the Respondent fails to comply.
Filed: June 4, 2008
Publish
NO. AP-75,928
COURT OF CRIMINAL APPEALS OF TEXAS
259 S.W.3d 183; 2008 Tex. Crim. App. LEXIS 684
June 4, 2008, Filed
[*183] Per curiam.
Relator has filed a motion for leave to file a writ of mandamus pursuant to the original jurisdiction of this Court. In it, he contends that he filed four 11.07 applications for writs of habeas corpus in the trial court on October 19, 2007. He alleges that more than 35 days have elapsed since the filing date and that timely orders designating issues have not been entered. He wants this Court to order the district clerk to forward his 11.07 applications.
On April 9, 2008, this Court held this application in abeyance and ordered the district clerk to respond because more than 35 days had elapsed since the alleged filing dates and this Court had no record of timely entered orders designating issues. In response to this Court's order, the district clerk forwarded copies of orders designating issues which had been entered on March 19, 2008. This Court has still not received these 11.07 applications for writs of habeas corpus and now grants this motion for leave to file an application for a writ of mandamus because [**2] the orders designating issues were untimely entered.
Upon receipt of an application for a writ of habeas corpus challenging a final felony conviction, the attorney representing the State has 15 days to respond. See TEX. CODE CRIM. PROC. Art. 11.07, §3(b). After the expiration of the time allowed for the State to respond, the trial court is allowed 20 days to determine whether the application contains allegations of controverted, previously unresolved facts material to the legality of the applicant's confinement. Art. 11.07, §3(c). If the trial court [*184] determines that the application for writ of habeas corpus presents such issues it "shall enter an order within 20 days of the expiration of the time allowed for the state to reply, designating issues of fact to be resolved." Id. Thus, the trial court has 35 days to enter an order designating issues after the filing date of an 11.07 application for a writ of habeas corpus. Article 11.07 does not authorize the trial court to extend the time limitations imposed by the statute, other than by a timely entry of an order designating issues. McCree v. Hampton, 824 S.W.2d 578, 579 (Tex. Crim. App. 1992)(emphasis added). Without a timely entry of an [**3] order designating issues, Article 11.07 imposes a duty upon the clerk of the trial court to immediately transmit to this Court the record from the application for a writ of habeas corpus, deeming the trial court's inaction a finding that no issues of fact require further resolution. Art. 11.07, §3(c).
In this case, Relator filed these applications for writs of habeas corpus in the trial court on October 19, 2007. The trial court entered order designating issues on March 19, 2008, which was more than 35 days after the filing date of these 11.07 applications. These untimely orders interfered with the district clerk's duty to transmit these applications to this Court and are therefore without effect. See Martin v. Hamlin, 25 S.W.3d 718, (Tex. Crim. App. 2000). The district clerk has no authority to continue to hold Relator's applications for writs of habeas corpus and is under a ministerial duty to immediately forward the applications and related records in cause nos. W05-00958-K(A), W05-00949K(A), W05-00944-K(A), and W05-00937-(K)A filed in Criminal District Court no. 4 of Dallas County to this Court.
We conditionally grant mandamus relief and direct the Respondent to comply with this [**4] opinion. The writ of mandamus will issue only in the event the Respondent fails to comply.
Filed: June 4, 2008
Publish
Ex parte Dejean
| Year | 2008 |
|---|---|
| Cite | Tex. Ct. Crim. App., Nos. WR-69,610-02, WR-69,610-03, WR-69,610-04 & WR-69,610-05 (Aug. 20, 2008) |
| Level | State Supreme Court |
EX PARTE JOHN FELIX DEJEAN, Applicant
NOS. WR-69,610-02, WR-69,610-03, WR-69,610-04 & WR-69,610-05
COURT OF CRIMINAL APPEALS OF TEXAS
2008 Tex. Crim. App. Unpub. LEXIS 541
August 20, 2008, Filed
NOTICE: DO NOT PUBLISH.
PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE FOR CITATION OF UNPUBLISHED OPINIONS.
Per curiam.
ORDER
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to three charges of falsely holding oneself out to be a lawyer and one count of theft, and was sentenced as a habitual felony offender to twenty-five years' imprisonment for each of the falsely holding oneself out to be a lawyer charges, and twenty years' imprisonment for the theft charge, to be served concurrently. He did not appeal his convictions.
Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel failed to meet with or discuss defenses with Applicant, failed to investigate or interview witnesses, failed to prepare any defense, and coerced Applicant into believing he had no choice but to plead guilty.
Applicant has alleged facts that, if true, might entitle to relief. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); [*2] Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 169 Tex. Crim. 367, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall provide Applicant's trial counsel with the opportunity to respond to Applicant's claims of ineffective assistance of counsel. The trial court may use any means set out in TEX. CODE CRIM. PROC. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.
If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. TEX. CODE CRIM. PROC. art. 26.04.
The trial court shall make findings of fact as to whether Applicant's trial attorney met with Applicant and discussed possible defenses with him prior to trial. The trial court shall also make findings as to what steps counsel took to investigate the facts of these cases, and as to what steps counsel took to seek out and interview potential defense witnesses. [*3] The trial court shall make findings as to whether counsel was prepared for trial, and as to what defensive theory, if any, counsel planned to advance. The trial court shall make findings as to whether counsel advised Applicant that he would receive stacked 45-year sentences in each of these cases if he did not plead guilty. The trial court shall make findings as to whether defense counsel requested that an incriminating tape recording be played in front of the trial judge, and if so, why defense counsel made such a request. The trial court shall make findings as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all [*4] affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.
Filed: August 20, 2008
Do not publish
NOS. WR-69,610-02, WR-69,610-03, WR-69,610-04 & WR-69,610-05
COURT OF CRIMINAL APPEALS OF TEXAS
2008 Tex. Crim. App. Unpub. LEXIS 541
August 20, 2008, Filed
NOTICE: DO NOT PUBLISH.
PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE FOR CITATION OF UNPUBLISHED OPINIONS.
Per curiam.
ORDER
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to three charges of falsely holding oneself out to be a lawyer and one count of theft, and was sentenced as a habitual felony offender to twenty-five years' imprisonment for each of the falsely holding oneself out to be a lawyer charges, and twenty years' imprisonment for the theft charge, to be served concurrently. He did not appeal his convictions.
Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel failed to meet with or discuss defenses with Applicant, failed to investigate or interview witnesses, failed to prepare any defense, and coerced Applicant into believing he had no choice but to plead guilty.
Applicant has alleged facts that, if true, might entitle to relief. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); [*2] Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 169 Tex. Crim. 367, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall provide Applicant's trial counsel with the opportunity to respond to Applicant's claims of ineffective assistance of counsel. The trial court may use any means set out in TEX. CODE CRIM. PROC. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.
If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. TEX. CODE CRIM. PROC. art. 26.04.
The trial court shall make findings of fact as to whether Applicant's trial attorney met with Applicant and discussed possible defenses with him prior to trial. The trial court shall also make findings as to what steps counsel took to investigate the facts of these cases, and as to what steps counsel took to seek out and interview potential defense witnesses. [*3] The trial court shall make findings as to whether counsel was prepared for trial, and as to what defensive theory, if any, counsel planned to advance. The trial court shall make findings as to whether counsel advised Applicant that he would receive stacked 45-year sentences in each of these cases if he did not plead guilty. The trial court shall make findings as to whether defense counsel requested that an incriminating tape recording be played in front of the trial judge, and if so, why defense counsel made such a request. The trial court shall make findings as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all [*4] affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.
Filed: August 20, 2008
Do not publish