OPINION
OVERSTREET, Judge.
Applicant has filed a subsequent application for post-conviction writ of habeas corpus raising two allegations challenging the validity of his conviction and resulting death sentence. He had previously filed an application which this Court denied in 1992. He has also filed a motion seeking to declare certain portions of the newly-enacted Article 11.071, § 5, V.A.C.C.P. unconstitutional. We filed and set this cause for submission and directed the parties in briefing “to provide particular attention and emphasis on applicant’s motion to declare certain portions of Art. 11.071, supra, unconstitutional.” The parties have provided such briefing.
At issue is the constitutionality of Art. 11.071, § 5’s provisions for subsequent applications for writ of habeas corpus, specifically that a court may not consider such subsequent application unless the application contains sufficient specific facts establishing various things. Applicant insists that such restriction on consideration of subsequent application is unconstitutional in various ways, while the State insists that such is not.
I.
Applicant’s allegations throughout number one avers that the provisions of Article 11.071, V.A.C.C.P., violate the separation of powers clause of Tex. Const., art. II, § 1, which provides for the separation of powers of the three departments of Texas government; Judicial, Legislative, and Executive. Applicant suggests that Art. 11.071’s provisions infringe upon the inherent judicial pow[219]*219ers of this Court which are granted in Tex. Const., art. V, § 5. He insists that the statute attempts to legislate solely judicial functions of interpretation, application and construction, and are thus not procedural in nature since absolute limitations are placed in considering the merits of a habeas corpus application without regard to the reasons these issues had not been presented previously.
Tex. Const., art. I, § 12 while providing that the writ of habeas corpus is a writ of right and shall never be suspended, also explicitly states that “[t]he Legislature shall enact laws to render the remedy speedy and effectual.” Thus, by constitutional mandate, the Legislature is empowered to enact, and obviously has enacted, laws effecting the implementation of the right to writ of habeas corpus. The separation of powers provision may be violated in either of two ways: 1) when one branch of government assumes, or is delegated, to whatever degree, a power that is more properly attached to another branch; or 2) when one branch unduly interferes with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers. Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex.Cr. App.1990).
Article 11.071 simply provides for the methodology for rendering the writ of habeas corpus and does not prevent this Court from exercising its constitutional powers over the writ of habeas corpus. Article 11.071, while containing some directions and requirements for filing applications for such writs, does not prevent the filing and consideration thereof by this Court if those directions and requirements are complied with. This is comparable to Tex. Const., art. I, § 15 providing for the right to trial by jury and that the Legislature shall pass such laws as needed to regulate such, with the Legislature then passing Chapters 33 through 37 of the Code of Criminal Procedure setting out procedures and requirements for employing that right.
We find no violation of the separation of powers clause and overrule applicant’s first ground of error.
II.
Applicant’s ground of error number two claims that the provisions of Article 11.071 violate the provisions of Tex. Const., art. I, § 12, in improperly suspending certain fundamental rights to habeas corpus relief to a certain class of litigants without constitutional amendment. As noted above, Tex. Const., art. I, § 12 provides that the writ of habeas corpus is a writ of right and shall never be suspended. Applicant insists that Article 11.071 “suspends” certain rights by limiting a capital applicant to a single habeas corpus application, sometimes under specific time guidelines, particularly in view that traditionally subsequent applications for habeas corpus relief in death penalty cases have been common and routine. Nevertheless, he does acknowledge that frivolous and repeated attempts to invoke the habeas corpus remedy have been held to be an abuse of the writ by this Court. Applicant also points to Tex. Const., art. I, § 29 which declares that everything in the Texas Bill of Rights, including art. I, § 12, is excepted out of the general powers of government and shall forever remain inviolate, with all laws contrary thereto being void.
However, Article 11.071 does not “suspend” the right to writ of habeas corpus. As stated above, Article 11.071, pursuant to the constitutional mandate to the Legislature to enact laws to render the remedy speedy and effectual, simply provides for the methodology for rendering and effecting the implementation of the right to writ of habeas corpus and does not prevent this Court from exercising its constitutional powers over the writ of habeas corpus. Accordingly, we overrule applicant’s second ground of error.
III.
Applicant’s ground of error number three claims that the provisions of Article 11.071, in being applied retroactively to death penalty litigants, limits certain fundamental rights to habeas corpus, thus violating Tex. Const., art. I, § 16’s prohibition against ex post facto or retroactive laws. Under Texas or United States constitutional analysis, an ex post facto law: 1) punishes as a crime an act previously committed which was innocent [220]*220when done; 2) changes the punishment and inflicts a greater punishment than the law attached to a criminal offense when committed; or 3) deprives a person charged with a crime of any defense available at the time the act was committed. Ex parte Hallmark, 883 S.W.2d 672, 674 (Tex.Cr.App.1994); Lopez v. State, 928 S.W.2d 528, 533 (Tex.Cr.App.1996); Johnson v. State, 930 S.W.2d 589, 591 (Tex.Cr.App.1996). Clearly Article 11.071 does not do any of those things, thus it does not operate as an ex post facto law. French v. State, 830 S.W.2d 607, 608 (Tex.Cr.App.1992).
In Grimes v. State, 807 S.W.2d 582, 587-88 (Tex.Cr.App.1991) we noted that the Texas constitutional prohibition against a “retroactive law” has never been made applicable to statutes merely affecting matters of procedure which do not disturb vested, substantive rights, and that applying Article 44.29(b), V.A.C.C.P. to eases that had been tried prior to its effective date did not violate that prohibition. In light of our holding above that Article 11.071’s provisions are the Legislature’s enactment effecting and implementing the constitutional right of writ of habeas corpus, we are constrained to hold that such provisions in the Code of Criminal Procedure are indeed procedural and are thus outside the purview of the “retroactive law” prohibition. Accordingly, we overrule applicant’s third ground of error.
IV.
Applicant’s ground of error number four claims that the provisions of Article 11.071 violate the equal protection clauses of Tex. Const., art. I, § 3 and U.S. Const., amend.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
OVERSTREET, Judge.
Applicant has filed a subsequent application for post-conviction writ of habeas corpus raising two allegations challenging the validity of his conviction and resulting death sentence. He had previously filed an application which this Court denied in 1992. He has also filed a motion seeking to declare certain portions of the newly-enacted Article 11.071, § 5, V.A.C.C.P. unconstitutional. We filed and set this cause for submission and directed the parties in briefing “to provide particular attention and emphasis on applicant’s motion to declare certain portions of Art. 11.071, supra, unconstitutional.” The parties have provided such briefing.
At issue is the constitutionality of Art. 11.071, § 5’s provisions for subsequent applications for writ of habeas corpus, specifically that a court may not consider such subsequent application unless the application contains sufficient specific facts establishing various things. Applicant insists that such restriction on consideration of subsequent application is unconstitutional in various ways, while the State insists that such is not.
I.
Applicant’s allegations throughout number one avers that the provisions of Article 11.071, V.A.C.C.P., violate the separation of powers clause of Tex. Const., art. II, § 1, which provides for the separation of powers of the three departments of Texas government; Judicial, Legislative, and Executive. Applicant suggests that Art. 11.071’s provisions infringe upon the inherent judicial pow[219]*219ers of this Court which are granted in Tex. Const., art. V, § 5. He insists that the statute attempts to legislate solely judicial functions of interpretation, application and construction, and are thus not procedural in nature since absolute limitations are placed in considering the merits of a habeas corpus application without regard to the reasons these issues had not been presented previously.
Tex. Const., art. I, § 12 while providing that the writ of habeas corpus is a writ of right and shall never be suspended, also explicitly states that “[t]he Legislature shall enact laws to render the remedy speedy and effectual.” Thus, by constitutional mandate, the Legislature is empowered to enact, and obviously has enacted, laws effecting the implementation of the right to writ of habeas corpus. The separation of powers provision may be violated in either of two ways: 1) when one branch of government assumes, or is delegated, to whatever degree, a power that is more properly attached to another branch; or 2) when one branch unduly interferes with another branch so that the other branch cannot effectively exercise its constitutionally assigned powers. Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239 (Tex.Cr. App.1990).
Article 11.071 simply provides for the methodology for rendering the writ of habeas corpus and does not prevent this Court from exercising its constitutional powers over the writ of habeas corpus. Article 11.071, while containing some directions and requirements for filing applications for such writs, does not prevent the filing and consideration thereof by this Court if those directions and requirements are complied with. This is comparable to Tex. Const., art. I, § 15 providing for the right to trial by jury and that the Legislature shall pass such laws as needed to regulate such, with the Legislature then passing Chapters 33 through 37 of the Code of Criminal Procedure setting out procedures and requirements for employing that right.
We find no violation of the separation of powers clause and overrule applicant’s first ground of error.
II.
Applicant’s ground of error number two claims that the provisions of Article 11.071 violate the provisions of Tex. Const., art. I, § 12, in improperly suspending certain fundamental rights to habeas corpus relief to a certain class of litigants without constitutional amendment. As noted above, Tex. Const., art. I, § 12 provides that the writ of habeas corpus is a writ of right and shall never be suspended. Applicant insists that Article 11.071 “suspends” certain rights by limiting a capital applicant to a single habeas corpus application, sometimes under specific time guidelines, particularly in view that traditionally subsequent applications for habeas corpus relief in death penalty cases have been common and routine. Nevertheless, he does acknowledge that frivolous and repeated attempts to invoke the habeas corpus remedy have been held to be an abuse of the writ by this Court. Applicant also points to Tex. Const., art. I, § 29 which declares that everything in the Texas Bill of Rights, including art. I, § 12, is excepted out of the general powers of government and shall forever remain inviolate, with all laws contrary thereto being void.
However, Article 11.071 does not “suspend” the right to writ of habeas corpus. As stated above, Article 11.071, pursuant to the constitutional mandate to the Legislature to enact laws to render the remedy speedy and effectual, simply provides for the methodology for rendering and effecting the implementation of the right to writ of habeas corpus and does not prevent this Court from exercising its constitutional powers over the writ of habeas corpus. Accordingly, we overrule applicant’s second ground of error.
III.
Applicant’s ground of error number three claims that the provisions of Article 11.071, in being applied retroactively to death penalty litigants, limits certain fundamental rights to habeas corpus, thus violating Tex. Const., art. I, § 16’s prohibition against ex post facto or retroactive laws. Under Texas or United States constitutional analysis, an ex post facto law: 1) punishes as a crime an act previously committed which was innocent [220]*220when done; 2) changes the punishment and inflicts a greater punishment than the law attached to a criminal offense when committed; or 3) deprives a person charged with a crime of any defense available at the time the act was committed. Ex parte Hallmark, 883 S.W.2d 672, 674 (Tex.Cr.App.1994); Lopez v. State, 928 S.W.2d 528, 533 (Tex.Cr.App.1996); Johnson v. State, 930 S.W.2d 589, 591 (Tex.Cr.App.1996). Clearly Article 11.071 does not do any of those things, thus it does not operate as an ex post facto law. French v. State, 830 S.W.2d 607, 608 (Tex.Cr.App.1992).
In Grimes v. State, 807 S.W.2d 582, 587-88 (Tex.Cr.App.1991) we noted that the Texas constitutional prohibition against a “retroactive law” has never been made applicable to statutes merely affecting matters of procedure which do not disturb vested, substantive rights, and that applying Article 44.29(b), V.A.C.C.P. to eases that had been tried prior to its effective date did not violate that prohibition. In light of our holding above that Article 11.071’s provisions are the Legislature’s enactment effecting and implementing the constitutional right of writ of habeas corpus, we are constrained to hold that such provisions in the Code of Criminal Procedure are indeed procedural and are thus outside the purview of the “retroactive law” prohibition. Accordingly, we overrule applicant’s third ground of error.
IV.
Applicant’s ground of error number four claims that the provisions of Article 11.071 violate the equal protection clauses of Tex. Const., art. I, § 3 and U.S. Const., amend. XIV, in that Article 11.071 is being applied retroactively to death penalty litigants while being applied prospectively only to non-death penalty litigants in Article 11.07, V.A.C.C.P., in an arbitrary and capricious fashion without rational reason therefor. Applicant quotes the amendatory act, Acts 1995, 74th Leg., ch. 319, § 7(c), which states that the change in law by Article 11.07 as amended applies, as to felons not under a sentence of death, only to an application for a writ of habeas corpus filed on or after the effective date of the Act while those filed before the effective date of the Act would be covered by the law in effect when such an application was filed.
Applicant suggests that that language indicates that under Article 11.07, non-death sentenced felons are not being retroactively penalized for having previously filed post-conviction applications for habeas corpus, while under Article 11.071, death-sentenced felons are being so penalized. However, Articles 11.07 and 11.071 both include similar restrictions and limitations on the filing of subsequent applications for writ of habeas corpus with both statutes becoming effective September 1, 1995. Both contain provisions that the merits of a subsequent application may not be considered unless the application contains sufficient specific facts establishing that certain conditions have been met. See Article 11.07, § 4 and Article 11.071, § 5. The amendatory act’s provisions, for applying the prior statutory procedures for applications filed prior to the September 1, 1995 effective date of amended Article 11.07 in no way annuls the applicability of the amended § 4 provisions for applications filed after that effective date. Death penalty felons face similar restrictions when filing applications after the same September 1,1995 effective date of Article 11.071. Applicant’s fourth ground is overruled.
V.
Applicant's ground of error number five claims that the provisions of Article 11.071 violate the due process and due course of law provisions of Tex. Const., art. I, §§ 19 and 26 and U.S. Const., amend. XIV, in that the statute is made retroactive to a certain class of litigant, improperly limiting fundamental rights to habeas corpus consideration. He suggests that under the new statute the trial court is ordered “completely ‘out of the loop’” with regard to the determination of any relevant issues on a second application for writ of habeas corpus. He notes that while Article 11.071 sets out a series of exceptions to the barring of consideration of a second application, it provides for no trial court evidentiary process to allow an applicant to present evidence for the record in support of a claim that he falls under one of the exceptions. He also points out that the [221]*221trial court is deprived of the opportunity to appoint counsel for the applicant on the subsequent application. He avers that the legislative statutory definition for the unavailability of the factual basis for a claim usurps the judicial function of providing definitions based upon common law considerations, and that the determination of “reasonable diligence” is a factual issue itself which can only be proven by some sort of evidentiary hearing conducted in the trial court, which is now prohibited.
Applicant’s argument for a violation of due process and due course of law is not persuasive. The gist of his claim appears to be that the new Article 11.071 requirements for filing a subsequent application for habeas corpus are in some instances too stringent to be met; however, he makes no showing as to the particulars of his situation in meeting those requirements. He also makes no showing of traditional procedural due process analysis. See, e.g., Ex parte Montgomery, 894 S.W.2d 324 (Tex.Cr.App.1995). We overrule applicant’s fifth ground.
VI.
Applicant’s ground of error number six claims that the provisions of Article 11.071 violate the provisions of Tex. Const., art. I, § 10 and U.S. Const., amends. VI and XIV, in that said statute retroactively renders him without full effective assistance of counsel during the first habeas corpus case. He claims that with the new statute providing that an applicant “shall be represented by competent counsel” unless he, after a hearing, has intelligently and voluntarily elected to proceed pro se, counsel must be competent and constitutionally “effective,” but that his counsel for his initial habeas corpus application did not provide effective assistance of counsel. He insists that this retroactive scheme of Article 11.071 has denied him the right of effective assistance of counsel in that it deprived counsel at that time of the benefits of being properly appointed and funded in order to provide sufficient time and resources to adequately investigate his case.
Applicant’s initial application for habeas corpus relief was received in 1992 and denied by this Court. We do not see how this statute, effective September 1, 1995, could have rendered applicant’s representation by counsel in 1992 ineffective. Ground six is overruled.
VII.
Applicant’s ground of error number seven claims that the provisions of Article 11.071 violate the provisions of Tex. Const., art. I, § 13’s open courts provision in that he “is being denied a full and fair ‘remedy’ for his new habeas claims.” Tex. Const., art. I, § 13 includes provisions that “[a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” Applicant insists that such requires meaningful legal remedies and that the restrictions of Article 11.071 do not provide such. As discussed above, Article 11.071 does not create an absolute bar to a second application for habeas corpus, but rather places restrictions and conditions on how and when one can exercise the right of habeas corpus; however, the right is in no way abrogated. Accordingly, we overrule applicant’s seventh ground.
VIII.
After having overruled all seven of applicant’s grounds of error, and observing that applicant’s “Second Application for Post-conviction Habeas Corpus” does not make Article 11.071, § 5’s requisite showing for a subsequent application, we dismiss the application as an abuse of writ under that section. Therefore, our order of January 2, 1996 granting a stay of execution is hereby vacated.