Can a Texas prosecutor waive certified-mail service of a habeas corpus application?

Texas AG Opinion JC-0044: Waiving Certified-Mail Service of a Habeas Corpus Application

Plain-English summary

The Smith County Criminal District Attorney explained that his office and the county district clerk's office sat two floors apart in the same building, so the certified-mail rule for serving post-conviction habeas corpus applications wasted postage. He and the district clerk wanted to substitute hand delivery, with the clerk getting a written waiver of certified-mail service and an acknowledgment of receipt. He asked whether Code of Criminal Procedure article 11.07, section 3(b) allowed that.

The opinion split the question in two. First, does the statute require certified mail? Yes. The penultimate sentence of section 3(b) says the clerk "shall" send a copy of the application to the prosecutor "by certified mail, return receipt requested," and "shall" imposes a mandatory duty. A clerk cannot unilaterally pick a different method.

Second, can the prosecutor give up that protection? Also yes. The opinion reasoned that the certified-mail requirement exists to benefit the prosecutor, by making sure the State gets timely notice that an inmate is collaterally attacking a conviction the office worked to obtain. The party a rule is designed to protect can waive it. Drawing an analogy to an 1889 Texas Supreme Court case about a county officer waiving statutory notice meant to protect him, the opinion concluded the prosecutor may waive certified-mail service and agree to another method.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the opinion say the certified-mail rule is optional for the clerk?
No. The opinion read "shall send a copy . . . by certified mail, return receipt requested" as a mandatory duty on the clerk. A clerk could not, on its own, switch to a cheaper delivery method.

So how could hand delivery be allowed?
Through waiver by the prosecutor. The opinion treated the prosecutor as the intended beneficiary of the certified-mail rule. The party a statutory protection is designed for can waive it, so a prosecutor could agree to accept hand delivery instead.

Why does the statute require notice to the prosecutor at all?
The legislative history the opinion quoted explained that inmates have no duty to tell the prosecutor a habeas petition has been filed, so without the rule the State might never learn of a collateral attack on a conviction it spent time and money to obtain. The notice gives the district attorney a chance to answer.

Did this opinion change the statute?
No. An AG opinion interprets existing law; it does not amend it. The opinion noted two bills pending in the 1999 legislative session that, if passed, would have expressly let a clerk personally serve the prosecutor.

Background and statutory framework

Article 11.07 of the Code of Criminal Procedure sets out the procedure for a convicted, non-capital defendant to seek a writ of habeas corpus. Section 3(b) directs the clerk of the convicting court, once an application is filed, to transfer it to that court and to "send a copy of the application by certified mail, return receipt requested, to the attorney representing the state," who then has 15 days to answer.

The opinion treated "shall" as creating a mandatory duty, citing Government Code section 311.016(2) and standard legal-usage references. It then distinguished between the method of service being mandatory and the protected party's ability to waive it. Because the requirement protects the prosecutor's interest in timely notice, the opinion analogized to Kempner v. Galveston County, 11 S.W. 188 (Tex. 1889), where the Texas Supreme Court said a statutory notice designed to protect a county officer could be waived by that officer. The opinion noted, in a footnote, that two bills filed in the 1999 session (S.B. 577 and H.B. 1484) would have expressly permitted a clerk to personally serve the prosecutor.

Citations

Statutes and legislative materials:

• TEX. CODE CRIM. PROC. ANN. art. 11.07, §§ 1, 3(b) (Vernon Supp. 1999)
• TEX. GOV'T CODE ANN. § 311.016(2) (Vernon 1998)
• Act of May 26, 1977, 65th Leg., R.S., ch. 789, § 1, sec. 2(b), 1977 Tex. Gen. Laws 1974, renumbered by Act of May 24, 1995, 74th Leg., R.S., ch. 319, § 5, sec. 3(b), 1995 Tex. Gen. Laws 2764
• Tex. S.B. 577, 76th Leg., R.S. (1999); Tex. H.B. 1484, 76th Leg., R.S. (1999)

Cases:

• Kempner v. Galveston County, 11 S.W. 188, 189 (Tex. 1889)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0044
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0044.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL, STATE OF TEXAS
JOHN CORNYN

May 5, 1999

The Honorable Jack Skeen, Jr.
Smith County Criminal District Attorney
100 North Broadway, Room 304
Tyler, Texas 75702

Opinion No. JC-0044

Re: Whether, under the Texas Code of Criminal Procedure article 11.07, section 3(b), the prosecuting attorney and court clerk may agree to substitute another method of service for service by certified mail, return receipt requested (RQ-1227)

Dear Mr. Skeen:

You question whether, under Texas Code of Criminal Procedure article 11.07, section 3(b), a prosecuting attorney may waive service by certified mail, return receipt requested, of an application for writ of habeas corpus if the prosecutor and district clerk agree that the district clerk may instead have the writ personally served on the prosecutor. We conclude article 11.07, section 3(b) requires service by certified mail, return receipt requested, but the prosecutor may waive the method of service prescribed in the statute.

Article 11.07 of the Code of Criminal Procedure establishes a procedure for a convicted, noncapital defendant to apply for writ of habeas corpus. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 1 (Vernon Supp. 1999). Section 3(b) directs the clerk of the court in which the defendant was convicted to notify the prosecuting attorney that an application for writ of habeas corpus has been filed:

Whenever an application for writ of habeas corpus is filed after final conviction in a felony case, other than a case in which the death penalty is imposed, the clerk shall transfer or assign it to the court in which the conviction being challenged was obtained. . . . The clerk of that court shall . . . send a copy of the application by certified mail, return receipt requested, to the attorney representing the state in that court, who shall have 15 days in which it may answer the application.

Id. § 3(b) (emphasis added).

You advise that in your county the certified mail requirement is not cost-effective because your office and the county's district clerk office are in the same building and only two floors apart. See Letter from Honorable Jack Skeen, Jr., Smith County Criminal District Attorney, and Ms. Becky Dempsey, Smith County District Clerk, to Honorable Dan Morales, Attorney General of Texas (Nov. 1, 1998) (on file with Opinion Committee). In an effort to save public money spent on postage, you and the district clerk have agreed upon another method of service: "The [C]lerk will hand deliver the applications for writs of habeas corpus directly to the Appeals Attorney for the Smith County Criminal District Attorney. The Clerk would receive a written waiver of Certified Mail Service and an acknowledgment of receipt of application." Id.

In our opinion, article 11.07, section 3(b) requires a court clerk to serve the prosecuting attorney by certified mail, return receipt requested. The word "shall" imposes a mandatory duty. See TEX. GOV'T CODE ANN. § 311.016(2) (Vernon 1998); BRYAN A. GARNER, A DICTIONARY OF MODERN LEGAL USAGE 502 (1987); BLACK'S LAW DICTIONARY 1233 (5th ed. 1979).

While a clerk may not unilaterally use a substitute method of service, we see no reason to conclude that a prosecutor may not waive the method of service prescribed in the statute. The prosecutor is the intended beneficiary of the service required in article 11.07, section 3(b). The legislative history of that section indicates that the legislature wanted to ensure that a prosecutor receives timely notice that an application for writ of habeas corpus has been filed in a case he or she pursued:

[I]nmates don't have any ethical duty as would an attorney to inform the prosecutor of the filing of the petition. So the prosecutor never finds out that the . . . habeas corpus petition is filed, and here you've got the D.A. who's spent thousands of dollars and goodness knows how much manpower getting witnesses together and so forth to get a conviction [and] now the prisoner's collaterally attacking his conviction . . . but the prosecutor never finds out about it. That's the first problem, which the statute solves by saying that the clerk [must] make a copy of [the application for writ of habeas corpus], [and] serve the district attorney. . . . That gives the district attorney the chance to answer if he wants to.

Hearings on Tex. S.B. 1070 Before the Senate Comm. on Jurisprudence's Subcomm. on Criminal Matters, 65th Leg., R.S. (Apr. 19, 1977, indicated on tape recording; Apr. 20, 1977, indicated in bound bill history) (statement of Clyde F. Dewitt, Harris County District Attorney's Office) (tape available from Texas State Library & Archives Comm'n); see also Act of May 26, 1977, 65th Leg., R.S., ch. 789, § 1, sec. 2(b), 1977 Tex. Gen. Laws 1974, renumbered by Act of May 24, 1995, 74th Leg., R.S., ch. 319, § 5, sec. 3(b), 1995 Tex. Gen. Laws 2764, 2770-2771. We see no reason why the person intended to benefit from the service requirement cannot waive service by certified mail, return receipt requested. Cf. Kempner v. Galveston County, 11 S.W. 188, 189 (Tex. 1889) (stating that statute that permits surety upon a county officer's bond to terminate his liability if surety notifies the officer is designed to protect the officer, and "we see no reason why [the officer] may not waive the notice").

SUMMARY

The penultimate sentence of Texas Code of Criminal Procedure article 11.07, section 3(b), which directs a court clerk to "send a copy" of an application for writ of habeas corpus to the appropriate prosecutor "by certified mail, return receipt requested," is mandatory. The prosecutor may waive service by certified mail, return receipt requested, however.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General

Footnotes

1. Two bills have been filed in the current legislative session that, if either is approved, will expressly permit a clerk of court to personally serve the prosecutor. See Tex. S.B. 577, 76th Leg., R.S. (1999); Tex. H.B. 1484, 76th Leg., R.S. (1999).