Ex Parte Golden

991 S.W.2d 859, 1999 Tex. Crim. App. LEXIS 84, 1999 WL 308747

• Court: Court of Criminal Appeals of Texas
• Decided: May 12, 1999
• Docket: 73178
• Status: Published

Opinions

OPINION

MANSFIELD, J.,

delivered the opinion for the Court,

which was joined by MEYERS, PRICE, JOHNSON and KEASLER, JJ.

Applicant was convicted of two thefts and sentenced to six years in each case. No appeal was taken from these convictions. Applicant filed this pro se, post-conviction application for writ of habeas corpus pursuant to Article 11.07, V.A.C.C.P., contending he has not received all the time credit on his sentences to which he is entitled. Attached to his petition is a handwritten “sworn declaration” stating, “under penalty of perjury,” that his factual allegations are true to the best of his knowledge. Although lines for a signature, date, and year are provided, the blanks are not filled in.

Before addressing the merits of applicant’s claims, we must first determine whether he has satisfied the oath requirement of Article 11.14(5), V.A.C.C.P. Article 11.14 sets out the procedural requirements for applications for writs of habeas corpus. Section five states, “Oath must be made that the allegations are true, according to the belief of the petitioner.” Pursuant to V.T.C.A. Civ. Prac. & Rem.Code § 132.001, inmates may make an unsworn declaration in lieu of any oath required by statute. An unsworn declaration must be written and “subscribed by the person making the declaration as true under penalty of perjury.” V.T.C.A. Civ. Prac. & Rem.Code § 132.002. Section 132.003 of the Civil Practice and Remedies Code, entitled “Form of Declaration” provides, “The form of a declaration under this chapter must be substantially as follows:

“I, (insert name and inmate identifying number from the Texas Department of Corrections or county jail), being presently incarcerated in (insert Texas Department of Corrections unit name and or county jail name) in_County, Texas, declare under penalty of perjury that the foregoing is true and correct. Executed on (date), (signature).”

Since applicant has not signed his declaration, he has not satisfied the requisites of § 132.001. et seq. and has not made an oath as required by Article 11.14(5).

We must now determine . the proper disposition of an unsworn petition. In the past, we have denied relief in some cases and dismissed in others. See, e.g, Ex parte Jackson, 616 S.W.2d 625 (Tex.Crim.App.1981) (denied); Ex parte Kanaziz, 423 S.W.2d 319 (Tex.Crim.App.1968) (dismissed); Ex parte Eiland, 420 S.W.2d 955 (Tex.Crim.App.1967) (denied without prejudice); Ex parte Young, 418 S.W.2d 824 (Tex.Crim.App.1967)(denied without prejudice). A dismissal means the merits of the document were not considered. Ex parte Torres, 943 S.W.2d 469 (Tex.Crim.App.1997). Dismissal must occur when a court lacks jurisdiction over the case. See, e.g., Ex parte Rawlinson, 958 S.W.2d 198 (Tex.Crim.App.1997)(subsequent habeas corpus application dismissed for lack of jurisdiction under Art. 11.07, § 4 ); Ex parte Renter, 734 S.W.2d 349 (Tex.Crim.App.1987) (habeas corpus application dismissed; no jurisdiction over non-revoked probation); Ex parte Lockett, 956 S.W.2d 41 (Tex.Crim.App.1997) (habeas corpus application dismissed, no jurisdiction over drug tax). Dismissal does not always mean jurisdiction is lacking. See Torres, 943 S.W.2d at 472. We hold that Article 11.14 does not limit habeas corpus jurisdiction.

The Legislature may define, expand, or limit this Court’s original writ jurisdiction. Ex parte Davis, 947 S.W.2d 216, 221-223 (Tex.Crim.App.1996) (McCormick, P.J., concurring, joined by White, Meyers, Mansfield, and Keller, JJ.). Our subject matter jurisdiction is defined in Article 11.07, § 3(a), which states, “After final conviction in any felony case, the writ must be returnable to the Court of Criminal Appeals of Texas at Austin, Texas.” Therefore, § 3 vests this Court with habeas jurisdiction over all final felony convictions. However, in Davis, we recognized that by enacting Article 11.071, § 5, the Legislature intended to limit our jurisdiction over subsequent applications in death penalty cases, and we noted that in Article 11.07, § 4, the Legislature adopted a similar restriction on subsequent applications in non-death penalty cases. Id. at 220. Article 11.07, § 4, provides, “A court may not consider the merits of or grant relief’ based on a subsequent application filed after final disposition of an initial application challenging the same conviction.

Therefore, § 3 of the statute defines our subject matter jurisdiction as final felony convictions, and § 4 explicitly limits our jurisdiction to initial applications challenging final felony convictions, or subsequent applications which meet the exceptions of Art. 11.07, § 4(a)(l ) or (2). In contrast, nothing in Article 11.14 indicates it was intended to limit the jurisdiction of this Court to consider an application not in compliance with the oath requirement¹ or any of its other requisites, such as the prayer. See Art. 11.14(4). It is worded as a pleading requirement and does not contain words of prohibition such as the language found in section four of Article 11.07.

Had the Legislature intended the requirements of Article 11.14 to be jurisdictional, the drafters would have made that intent clear as they did in Article 11.07. Instead, Article 11.14 simply sets out procedural requirements for habeas corpus petitions. Although the instant application is not properly verified, we are not jurisdictionally barred from considering the merits of the issues raised. Under the peculiar circumstances of this case, we choose to address the merits and grant relief.²

The trial court has entered findings of fact and conclusions of law. Specifically, the trial court finds that applicant was released on mandatory supervision for these, offenses, but a pre-revocation warrant was issued, and applicant is was incarcerated on the warrant from August 18, 1997, until April 27,1998, when his mandatory supervision was revoked. The trial court’s fact findings are supported by the State’s response, which it has documented with the affidavit of an official from the Texas Department of Criminal Justice. Under Ex parte Canada, 754 S.W.2d 660 (Tex.Crim.App.1988), applicant is entitled to relief.

Relief is granted. Applicant’s sentences are ordered credited from August 18,1997, until April 27, 1998. All other relief sought is denied. Copies of this opinion shall be delivered to the Texas Department of Criminal Justice, Institutional Division.

1 . Because a former version of Art. 11.07 had its own oath requirement, we held in Ex parte Brooks, 637 S.W.2d 955 (Tex.Crim.App.1982), that Art. 11.14(5) did not apply to habeas corpus applications challenging final felony convictions. See Ex parte Johnson, 811 S.W.2d 93 (Tex.Crim.App.1991).

2 . When an applicant makes sworn allegations of fact which, if true, would entitle him to relief, we often remand the cause to the trial court to allow the applicant to prove his allegations through affidavits or an evidentiary hearing. See, e.g., Ex parte Thomas, 953 S.W.2d 286 (Tex.Crim.App.1997). An applicant’s failure to swear to the truth of the facts alleged in his petition deprives him of the opportunity to prove those allegations. In this case, due to the efforts of the trial court and the State, there is adequate proof in the record to enable this Court to address applicant's claim on the merits.

In addition, we want it made clear that our holding today should not be interpreted as granting future habeas applicants carte blanche to ignore applicable pleading requirements. Our willingness in this case to address the merits of applicant’s claim is grounded on the particular facts of this case: first, the State has not moved to dismiss applicant’s application on the ground it is un-sworn; second, the State concedes applicant is entitled to relief; third, the trial court has made relevant fact-findings; and fourth, there is adequate proof in the record to support applicant's claim.