I'm a newb to the world of Texas law so if y'all see me say, or do, something grossly and profoundly stupid, please do let me know. In fact, if I say something even somewhat unintelligent, which I'm bound to do, let me know.
With that disclaimer out of the way, I shall now move on to my reason for posting: time limits on writs. Why doesn't Texas have codified time limits for the filing of 11.07 and 11.072 writs? We've got one for 11.071, and the Feds have theirs in 28 USCS sec. 2244, why not a time limit for 11.07 and 11.072 claims?
While I do know that the Court of Criminal Appeals has held in Carrio that the "doctrine of laches is a theory which we may, and should, employ in our determination of whether to grant relief in any given 11.07 case"; it still would be nice to have some sort of bright-line rule to prevent some of these completely frivolous applications that seem to make their way onto my desk ten plus years after conviction.
Don't know the answer, but having worked in the AG's office on post-conviction writs before the DA office it certainly would be a good idea. Since the tolling of limitations on federal writs is based on the state's writs.
It will be an uphill battle now to place time limits on these writs because of all the inidividuals who have recently been released for DNA exoneration. I think there should be an additional remedy other than a writ for actual innocence which has no time limit (or another type of writ - 11.07x). The 11.07 and 11.072 writ should contain all other constitutional errors and have a set time limit like the federal statute.
Just my two cents.
Aggregation you bring up a good point with the DNA evidence and actual innocence. Perhaps instead of a whole new writ category it could be done just as it is in an 11.071 with a late writ having to go through a gate-keeping check as to why it's being filed late with the burden of production on the applicant.
As it stands, if an applicant files an 11.07 or 11.072 writ ten, or often more, years after his conviction the burden shifts to the State to show laches. That to me seems to be backwards. Why should the State have an affirmative burden to show that the delay is prejudicial? The burden should be squarely on the applicant to show why he did not bring his claim within the allotted reasonable time, say 180 days as in an 11.071.
The present system is quite frustrating and creates a great deal of needless, and often tedious, work for prosecutors throughout the state of Texas.
Oh, and while I'm on my soapbox, the tacit burden shifting done by the court of criminal appeals on ineffective assistance of counsel writ claims is maddening. It appears that on any writ application, no matter how frivolous the IAC claim is, the State has the burden of disproving it by obtaining affidavits from the defense attorney called into question by the applicant. Whatever happened to the burden of proof being on the applicant to prove his claim by a preponderance of the evidence???
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