Ex Parte Smith ( 1998 )

OPINION

WOMACK, Judge,

delivered the opinion of

the Court which McCORMICK, Presiding Judge, and MANSFIELD, KELLER, PRICE and HOLLAND, Judges, joined.

Our previous opinions are withdrawn.

By a separate order which was entered on April 22, 1998, the Court has dismissed this application for post-conviction habeas corpus relief because it was filed 129 days late.

The statute which was enacted in 1995 to regulate the procedure for these cases requires the application to be filed within 180 days. Code of Criminal Procedure article 11.071, § 4(a). The convicting court may find good cause to file the petition as late as 90 days thereafter, but “an applicant cannot establish good cause for untimely filing of an application filed after the 91st day after the applicable filing date.” Id., § 4(f).

In this case the convicting court not only gave the applicant the 90-day extension, it gave the applicant another, unauthorized, 30-day extension. On the day that the trial court granted the unauthorized, 30-day extension, the Executive Administrator of this Court informed the applicant’s counsel that such an extension was unauthorized and advised counsel not to rely on it. The reliability of the 30-day extension was mooted when the applicant failed to meet even that deadline. The petition was filed 9 days after the unauthorized, 30-day extension expired. There is no claim that the applicant relied in good faith on an improper order of the trial court. Cf. Ex parte Ramos, 977 S.W.2d 616 (Tex.Cr.App.1998).¹

Late filing is permitted only if the claims could not have been presented timely or if there was a violation of the United States Constitution, but for which the applicant would not have been found guilty or sentenced to death.² The application does not suggest either of these exceptions or any excuse for late filing. The statute says that in such circumstances “th[is] court shall issue an order dismissing the application as an abuse of the writ under this section.”³

Two dissenting judges say that we do not have to obey this law. We write to respond to their statements.

Judge Baird wants us to do something that neither the convicting court nor the applicant has asked us to do: to entertain this application as an original matter, filed directly in this court. The short answer is that we may not employ such a procedure. “Article 11.071 now contains the exclusive procedures for the exercise of this Court’s original habeas corpus jurisdiction in death penalty cases.” Ex parte Davis, 947 S.W.2d 216, 221, 223 (Tex.Cr.App.1996) (opinion of McCormick, P.J.) (emphasis in original).⁴

Nothing more need be said of Judge Baird’s opinion, but it is difficult to leave unremarked the assertion that the legislative intent behind Article 11.071 would be furthered by our entertaining a late-filed application in defiance of that statute.⁵ The screamingly obvious intent of Article 11.071 is to speed up the habeas corpus procedures for capital eases, while retaining exceptions which permit late filings only for applicants who should not have been convicted or sentenced to death. This applicant is not such a person, nor does anyone contend that he is. The answer to Judge Baird’s question, “[Wjhy is the State allowed an unlimited time, upon request, to respond to a habeas application?”⁶ is, we suppose, the legislature’s recognition that it need not impose time limits on the plaintiff who has no incentive to delay the execution of the judgment it obtained.

Judge Overstreet says that our action in obeying the statute by dismissing the application “borders on barbarism,” and that we should do what he thinks is “fair” rather than what is lawful. Post at 614. Our oaths are to uphold the constitutions and laws of this country and state; they are not a commission to do what a majority of us think is fair. This law was passed by the legislature and approved by the governor, in accordance with our constitutional form of government. The law is clear: this court shall dismiss this application because it was filed late. If the law is barbarous, the legislature should repeal it or the governor should commute or pardon those who are subjected to it. In the meantime, we must follow it.

1 . The applicant has filed a suggestion for reconsideration in which he claims that his late filing was authorized by this Court's order of April 22, 1997, which gave him permission to file a skeletal application so that the time limits of the federal Antiterrorism and Effective Death Penalty Act could be tolled. His claim is not supported by the record. His motion and our order contemplated that the skeletal application would be supplemented, and our order specified, "Any supplemented application shall be deemed an original, not a successor, application.” No other action was taken on the skeletal application by the parties, the convicting court, or this Court. The application that was untimely filed has been treated by all participants as the original application to which the statutory requirements applied.

2 . See Tex.Code Crim. Pro. art. 11.071, § 5(a).

3 . Id., § 5(c) (emphasis added).

4 . Although Presiding Judge McCormick's opinion is labeled a concurring opinion, it was joined by a majority of the Court and may be regarded as an opinion for the Court. Since 1997 we have instituted internal procedures to prevent such misleading labels from being attached to opinions.

5 . See post at 614.

6 . Post at 615.