NO. 73,064




Womack, J., filed a concurring opinion.

The Court's opinion on rehearing does not mention the allegations in the application. The applicant was convicted of burglary in 1975. He makes no allegation that the judgment in that case subjects him to unlawful confinement. His claim is that the Department of Criminal Justice is denying him credit for periods of time in 1988 and 1989 during which he was confined to jail under parole-revocation warrants issued by the Board of Pardons and Paroles.

The Court sees the issue as whether this is "a subsequent application for writ of habeas corpus" as that term is used in Code of Criminal Procedure article 11.07, section 4. I would first ask whether it should be considered as an application for writ of habeas corpus under Article 11.07 at all.

The same act that added Section 4 to Article 11.07(1) also added Section 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.(2)

Before 1995, the statute simply required, "After final conviction in any felony case, the writ must be made returnable to the Court of Criminal Appeals of Texas at Austin, Texas." By those terms, any request for habeas corpus relief in any felony case after final conviction fell under Article 11.07. Thus an application for relief from an action of the Board of Pardons and Paroles or the Department of Criminal Justice (at least arguably) was an Article 11.07 petition.

After 1995, the procedures of Article 11.07, Sections 3-7, apply only to an application in which the applicant seeks relief from a non-capital felony judgment. See id., Section 1. When Section 1 is kept in mind, most of the perceived difficulty with Section 4 disappears. Section 4 restricts a subsequent application that is filed after "an initial application challenging the same conviction." If we follow Section 1 and apply those restrictions only to applications that seek relief from a felony judgment, every (or almost every) subsequent application will follow "an initial application challenging the same conviction."

In other words, Section 1 and Section 4 should be construed in harmony. An initial application should be admitted to the post-conviction procedure only if (under Section 1) it "seeks relief from a felony judgment," and it will be an application that was "challenging the conviction" in the terms of Section 4. There is no reason to suppose, as the Court does today, that the Legislature wanted to create a class of post-conviction applications under Section 1 that were not subject to the restrictions of Section 4. Such a supposition is not called for by the language of the statute, and it is manifestly contrary to the intent of the Act of June 7, 1995, which was "to limit a convicted person to 'one bite at the apple'" under Article 11.07. Ex parte Torres, 943 S.W.2d 469, 474 (Tex. Cr. App. 1997). The restrictions on subsequent applications which were imposed in Section 4 make it imperative that this Court carefully consider whether an application falls within Article 11.07. A decision that an application qualifies under Section 1 works severe consequences on subsequent applications.

We need not develop further the jurisprudence, which began in Ex parte Evans, 964 S.W.2d 643 (Tex. Cr. App. 1998), about subsequent applications that follow initial applications that did not challenge the conviction but were still cognizable under Article 11.07, Section 1. There should not be any such initial applications.

I am aware that before 1995 habeas corpus petitions were received under Article 11.07 to challenge parole revocation and other executive actions. It seems plain to me that Article 11.07 no longer applies to such challenges after the 1995 amendments. I am aware also of our decision in Ex parte Evans, which I joined, that the restrictions of Section 4 did not apply to a subsequent application when the initial application was for relief from a order revoking parole. I agree that Evans' first application did not trigger the restrictions of Section 4; in fact, his first challenge to a parole revocation did not belong under Article 11.07 at all.

This application is like Evans' initial application. Whiteside's application does not seek relief from a felony judgment. The applicant neither complains of the 1975 judgment nor seeks relief from it. He seeks relief from agencies in the executive branch which are not giving him credit for a period of confinement in 1988 and 1989 pursuant to an executive warrant for parole violation. The procedures of Article 11.07, including the restrictions of Section 4, are not applicable to this application.

I would dismiss this application without prejudice to an action under other provisions of the Constitution or laws of the state.

En banc.

Delivered March 1, 2000.


1. Act of June 7, 1995, 74th Leg., R.S., ch. 319, 5, 1995 Tex. Gen. Laws 2764, 2771.

2. Id. at 2770 (emphasis added). Although Section 1 is correct, it is not complete; Article 11.07 also speaks to procedures for the writ of habeas corpus in a felony case before conviction. See Tex. Code Crim. Proc. art. 11.07, 2.