How long does a Texas district attorney have to answer a state prisoner's article 11.07 habeas corpus petition, and when does the clock start?

Texas AG Opinion JM-608: Habeas Answer Deadline

Plain-English summary

The Harris County District Attorney asked a timing question about post-conviction habeas corpus. Under article 11.07 of the Code of Criminal Procedure, when a state prisoner files a habeas petition after a felony conviction, the district clerk assigns it, a writ issues by operation of law, and the clerk mails a copy to the attorney for the state, "who shall have 15 days in which it may answer." The dispute was whether the district clerk could count those 15 days from the date the petition was filed with the clerk, or whether they run from the date the district attorney actually got a copy.

JM-608 sided with the receipt date. The opinion reasoned that the Legislature meant the district attorney to have at least a full 15 days to review a petition, which is usually written by a prisoner untrained in the law, and to prepare a response. If the clock ran from the clerk's filing date, the district attorney might not even receive notice until the 15 days had already passed, an outcome the opinion said the Legislature could not have intended. So the 15-day period begins when the district attorney receives notice of the filing. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0608.pdf

Currency note

This opinion was issued in 1986. Article 11.07 of the Code of Criminal Procedure has been amended several times since, including changes to the writ procedure and timelines. Treat this page as historical context, not current legal advice, and verify the current version of article 11.07 before relying on any deadline mentioned here.

Common questions

When does the state's 15-day clock to answer a habeas petition start?

When the district attorney receives notice, not when the petition is filed. The opinion concluded "the date on which the district attorney receives notice of the filing of the writ rather than the date of the filing in the district clerk's office is the date on which the 15-day answer period begins." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0608.pdf

Why not just count from the filing date?

Because that could leave the district attorney no time at all. The opinion warned that under the clerk's reading, "the district attorney might receive a notice after 15 days have passed from the date of the filing," which would defeat the purpose of giving the state time to respond. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0608.pdf

Background and statutory framework

Article 11.07 governs habeas corpus after a final felony conviction. Section 2(b) directs the clerk to transfer the petition to the convicting court, notes that a writ returnable to the Court of Criminal Appeals issues by operation of law, and requires the clerk to send a copy by certified mail, return receipt requested, to the attorney representing the state, who then has 15 days to answer, with unadmitted allegations deemed denied.

The statute does not spell out when the 15 days start, so the opinion read it in light of legislative intent, invoking the rule that a statute should be construed to ascertain that intent (Code of Criminal Procedure article 1.26). Giving the district attorney the benefit of receipt-based timing matched the evident purpose of allowing a meaningful chance to respond. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0608.pdf

Citations and references

Statutes:

• Code of Criminal Procedure article 11.07, section 2(b) (post-conviction habeas corpus)
• Code of Criminal Procedure article 1.26 (construction to ascertain legislative intent)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0608
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0608.pdf

Original opinion text

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

December 30, 1986

Honorable John B. Holmes, Jr.
District Attorney
201 Fannin, Suite 200
Houston, Texas 77002

Opinion No. JM-608

Re: Time allowed for state to file answer in an application for writ of habeas corpus under article 11.07 of the Code of Criminal Procedure

Dear Mr. Holmes:

You ask about the time period in which the district attorney is allowed to file an answer to a petition for writ of habeas corpus under article 11.07 of the Code of Criminal Procedure. You want to know whether it is appropriate for the district clerk's office to calculate the date the state's answer is due from the date of filing with the clerk's office, rather than the date of receipt of a copy of the writ by the district attorney's office.

Section 2(b) of article 11.07 of the Code of Criminal Procedure provides:

(b) Whenever 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. When the petition is received by that court, a writ of habeas corpus, returnable to the Court of Criminal Appeals, shall issue by operation of law. The clerk of that court shall make appropriate notation thereof, assign to the case a file number (ancillary to that of the conviction being challenged), and send a copy of the petition 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 petition. Matters alleged in the petition not admitted by the state are deemed denied. (Emphasis added).

You inform us that the district clerk's office maintains that the state's answer is due 15 days after the date of filing with their office. For the following reasons we disagree with the district clerk's construction of the provision.

Although the provisions do not clearly state when the fifteen days begins to run, the provision does provide that "the attorney representing the state . . . shall have 15 days in which it may answer." Id. It appears from the words of this statute that the legislature intended that the district attorney would have at least 15 days to review the petition and make the appropriate response if he chose to do so. See Code Crim. Proc. art. 1.26 (statute should be construed to ascertain legislative intent).

If we were to accept the district clerk's construction of the provision, the district attorney might be without sufficient time to make an adequate response to a writ which is normally written by a prisoner untrained in the law. The district attorney might receive a notice after 15 days have passed from the date of the filing. But see 28 U.S.C. section 2252 (federal statute requires that notice be given to the state attorney general prior to a hearing). We do not believe that the legislature could have intended such an inappropriate procedure.

Accordingly, section 2(b) of article 11.07 of the Code of Criminal Procedure requires that the district attorney shall have 15 days to file an answer to a petition for writ of habeas corpus. The date on which the district attorney receives notice of the filing of the writ rather than the date of the filing in the district clerk's office is the date on which the 15-day answer period begins.

SUMMARY

Section 2(b) of article 11.07 of the Code of Criminal Procedure requires that the district attorney shall have 15 days to file an answer to a petition for writ of habeas corpus. The date on which the district attorney receives notice of the filing of the writ rather than the date of the filing in the district clerk's office is the date on which the 15-day answer period begins.

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tony Guillory
Assistant Attorney General