Burgess, Ex Parte David Max ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-74,950

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EX PARTE DAVID MAX BURGESS, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM DALLAS COUNTY

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   Hervey, J., delivered the opinion of the Court in which Keller, PJ., Meyers, Price, Womack, Keasler, Holcomb and Cochran, JJ., joined. Johnson, J., concurred.  



OPINION  

   Applicant was convicted of aggravated robbery in the 90^th District Court of Stephens County, where his deferred-adjudication community supervision for that offense had been transferred from the 194^th District Court of Dallas County. See Article 42.12, § 10(b), Tex. Code Crim. Proc. Applicant filed an Article 11.07, Tex. Code Crim. Proc., habeas corpus application with the Dallas County District Clerk for assignment to the 194^th District Court of Dallas County, which recommended that habeas corpus relief be denied based on its findings of fact and conclusions of law. The Dallas County District Clerk forwarded the habeas record to this Court. ⁽¹⁾ We filed and set this case to address the procedure to follow when, as here, an applicant files an Article 11.07 habeas corpus application with the district clerk of a county other than the county of conviction. We will dismiss applicant's writ of habeas corpus.

This Court last addressed the issue in Ex parte Alexander, 861 S.W.2d 921 (Tex.Cr.App. 1993). At that time, former Article 11.07, Section 2(b), ⁽²⁾ in relevant part, stated:

[W]henever a petition for writ of habeas corpus is filed after final conviction in a felony case, the clerk shall transfer or assign it to the court in which the conviction being challenged was obtained.

(Emphasis supplied).

Alexander decided that this passage referred to a district clerk of a specific county and that this district clerk "is the clerk of the court for all the district courts in that county." Alexander, 861 S.W.2d at 922. Alexander also decided that, under a "plain reading" of Section 2, "when an application is presented to a district clerk in a county in which the challenged conviction was not entered, the clerk shall transfer the application to the court in which the challenged conviction was obtained." Id. (emphasis in original). ⁽³⁾

In 1999, the Legislature amended this portion of Article 11.07 to delete the "transfer" language. ⁽⁴⁾ Current Article 11.07, Section 3(b), (which, at the time of Alexander, was section 2(b)), in relevant part, states:

An application for writ of habeas corpus filed after final conviction in a felony case . . . must be filed with the clerk of the court in which the conviction being challenged was obtained, and the clerk shall assign the application to that court.

(Emphasis supplied).

A "plain reading" of Section 3(b) bespeaks a legislative intent to no longer require a district clerk to transfer an Article 11.07 habeas corpus application "to the court in which the challenged conviction was obtained" when the application "is presented to a district clerk in a county in which the challenged conviction was not entered." Section 3(b) left intact the other holding in Alexander that "when an application is presented to the district clerk of the county in which the challenged conviction was entered, the clerk shall assign the application to the appropriate court." Alexander, 861 S.W.2d at 922 (emphasis in original).

The Legislature accomplished this by deleting the "transfer" language and retaining the "assign" language from former Article 11.07, Section 2(b). Any other interpretation of Section 3(b), would render the 1999 legislative amendment to Article 11.07 meaningless. See Ex parte Trahan, 591 S.W.2d 837, 842 (Tex.Cr.App. 1979) (in construing a statutory amendment, courts must presume that the Legislature intended to change the law, and courts should construe the amendment in a way that gives effect to the change rather than in a way that renders the amendment useless).

We dismiss applicant's habeas corpus application.

Hervey, J.

Delivered: December 15, 2004

Publish

1. Applicant filed an earlier Article 11.07 habeas corpus application in Dallas County. The Dallas County District Clerk forwarded that application to this Court, which dismissed the application without stating the reasons for doing so.

2. See Act of June 16, 1977, 65^th Leg., R.S., ch. 789, § 1, 1977 Tex. Gen. Laws 1974.

3. Alexander also decided that "when an application is presented to the district clerk of the county in which the challenged conviction was entered, the clerk shall assign the application to the appropriate district court." Alexander, 861 S.W.2d at 922 (emphasis in original).

4. See Act of June 18, 1999, 76^th Leg., R.S., ch. 580, § 2, 1999 Tex. Gen. Laws 3119, 3120.