I have a problem with certain loose language in the Court of Criminal Appeals' June 4, 2008 published per curiam opinion in DeJean v. District Clerk, Dallas County and wonder if anyone else shares my concerns.

DeJean had filed an application for writ of mandamus complaining that he had filed three 11.07 writ applications on October 19, 2007; that 35 days had elapsed since they were filed; and that timely orders designating issues had not been entered. In response to the C.C.A.'s typical order to respond to said complaint, the Dallas County District Clerk had submitted copies of Orders Designating Issues entered on March 19, 2008.

In ruling that those Orders Designating Issues were too late and deciding to conditionally grant the mandamus request, the C.C.A. correctly describes the relevant statutes indicating that the State has 15 days to respond upon receipt of an 11.07 application and that the trial court then has 20 days following expiration of the time allowed the State to respond within which to determine if there are controverted, previously unresolved issues of fact and, if so, enter an Order Designating Issues.

The problem is that the published per curiam C.C.a. then says "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".

My understanding, based on over 25 years of appellate and writ experience, is that this statement is not correct.

Clearly, the relevant time trigger under the applicable statutes is service of the application on the State, either via certified mail, return receipt requested, or by personal service, and not the filing date.

Significantly, DeJean does not even mention the date the State was served with the applications for writ.

In that particular case, involving a 5 month delay between filing and entry of the Orders Designating Issues, the distinction between time of filing and date of service may not have made any difference. Of course, there is also a possibility that the Orders Designating Issues were entered within 35 days after the State was served with the applications and were thus actually timely. (Perhaps someone from Dallas County can educate us).

Nonetheless, my experience is that the difference between the filing date and the date of service is, depending on the circumstances involved and the efficiency of the clerk, often significant.

I also have a grave concern that the C.C.A.'s inaccurate language in DeJean will aggreviate the problem of inmates mistakenly believing that their 11.07 writ application has to be addressed within 35 days after it is filed. The C.C.A. hardly needs to encourage more of the type of mandamus request DeJean filed than it is already dealing with each week.

I would appreciate any thoughts about this subject which other prosecutors might have.

My understanding comports with yours. In three different counties we have always started the thirty-five day clock from the date the State is served.

JAS

The court obviously errs in equating the date of receipt of the writ by the State's attorney with the date of the filing of the writ with the clerk. But, doesn't the problem usually arise during the 20 day time period rather than the 15 day time period? In the case at hand it seems a fair assumption that the delivery of the writ to the State's attorney was not delayed from October to February. But, it would certainly be nice if the court had made that clear.

That's the way I read it, too. But you never like to have to make those assumptions, particularly when the written text seems so clear.

I have roughly one-and-a-half years' experience with 11.07 writs. Still, based on my many years of experience as a literate individual, I concur with these posts - the CCA has misread section 3(c)'s time requirements for ODIs. It's bizarre.

I filed the State's responses in Dejean. To address Ted's concern, the ODI really was late... by several months. The State received the application on the date it was filed, and timely filed its response within 15 days.

Anyway, while annoying, I don't find the CCA's erroneous construction of section 3(c) all that disturbing. In Dallas, the secretaries in our division make daily stops to the District Clerk and pick up whatever applications that were filed since their last stop. So our receipt date is generally the same date as the filing date (or one day thereafter). Under our system, I don't think a miscalculation by one or two days should affect us significantly.

I also wonder if it would make a significant difference in counties where there may be greater discrepancies between the filing date and receipt date. For one, isn't it pretty rare for an applicant to file a mandamus action on such a ground? Especially where the alleged delay is only by a few days? (I'm assuming, of course, that the discrepancy between the filing and receipt dates in most other counties is a few days at most).

Additionally, the purported 35-day rule made no difference in Dejean since the delay was by months. But I think the statutory language on the ODI deadline is pretty clear. So if this issue were to go before the CCA on a matter where the purported 35-day deadline actually made a difference, I can't imagine the CCA maintaining the erroneous construction set out in the Dejean opinion. That would be crazy.

Wouldn't it?

Thanks to all for your responses to my earlier post.

I especially appreciate the clarification about the actual facts in the DeJean case, which only add to my point that the offending language was not significant to the result in that case.

However, I must make a few further comments.

Clearly, Dallas County is more efficient than Hidalgo County and other counties. However, situations in which there is a significant difference betweeon the date of filing and date of service of an 11.07 application for writ are, far any number of reasons, not uncommon. Anyone who doubts this fact only needs to look at the C.C.A.'s hand-down lists. Virtually every Wednesday's list includes orders calling for responses to prisoner mandamus requests based on a claim that 35 days has elapsed since an application for writ was filed.

My point was, and remains, that the C.C.A.'s incorrect language will only aggravate this problem.

The answer to all those mandamus petitions is for the clerks to recognize that "failure of the court to act within the allowed 20 days shall constitute a finding" "that there are no" "unresolved facts material to the legality of the applicant's confinement," meaning that they must "immediately transmit to the Court of Criminal Appeals . . . ". The problem will still ultimately be solved with a remand as in Campos, 613 S.W.2d 745. If it happens repeatedly, then arguably the clerk is neglecting the duties of the office. That claim would get their attention.

Today's published C.C.A. opinion in Gibson v. Dallas County District Clerk clarifies somewhat the imprecise language used in the DeJean case.

That is, it mentions the relevant statutes; says that the Order Designating Issues entered by the trial court on November 17, 2008 was entered after the time limitations provided by the statutes had expired; and that the clerk thus had a ministerial duty to forward the applica-tion for writ and related records to the C.C.A. unless the clerk can certify that the applica-tion was delivered to the State after October 12, 2008.

By use of this date, 35 days before entry of the Order Designating Issues, the Court of Criminal Appeals is indirectly acknowledging that the relevant time frame for entry of an O.D.I. is 35 days after the date of service upon the State via certified mail or personal service (repere-senting the State's 15 day period within which to file an answer plus the additional 20 days allowed for the trial court to decide whether the application asserts controverted, previously unresolved facts).

The issue is now clear. See 20 vs. 35

Not surprising.