This case is before us because an application for writ of habeas corpus has been untimely filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071. ⁽¹⁾

On March 19, 2007, the trial court appointed Jack V. Strickland to represent applicant in a post-conviction writ of habeas corpus under Article 11.071. On April 10, 2008, the State filed in this Court its brief on applicant's direct appeal. Pursuant to Article 11.071, §§ 4(a) and 4(b), applicant's application for writ of habeas corpus was due in the convicting court on or before August 25, 2008. See also Ex parte Reynoso, 257 S.W.3d 715 (Tex. Crim. App. 2008).

In late September 2008, it was brought to this Court's attention that counsel filed an application on applicant's behalf on September 5, 2008, some eleven days after the date it was due. Pursuant to Article 11.071, § 4A(a), this Court could order counsel to show cause why he failed to file the application in a timely manner. However, at the same time that he filed applicant's writ application, counsel filed in the trial court a motion setting out his reasons for the untimely filing. Instead of duplicating the effort here, this Court will consider that filing, and the findings issued by the trial court, as counsel's showing of good cause.

In the motion filed in the trial court, counsel stated that he had been in the hospital for four days in July which was followed by a two-week recuperation period. He also noted that he began a new death penalty trial right after his recuperation period, was in the process of preparing another death penalty writ application which was due mid-September, was preparing for trial in another case, and had presented five lectures and papers in the previous sixty days. Counsel noted that the State was not disadvantaged by the untimely filing, nor did the State oppose the finding of good cause. The convicting court found these facts to be true and further found that they sufficiently demonstrated good cause for the untimely filing.

Because counsel suffered a period of hospitalization and recuperation, and because the State apparently does not oppose a finding of good cause, we find that applicant has shown good cause for his failure to timely file an application. We hold that the application shall be considered timely filed as of September 5, 2008, and the trial court is ordered to proceed with its review of the application. The timelines set out in Article 11.071, §§ 6-9, shall start to run as of the day this order is issued.

IT IS SO ORDERED THIS THE 28^TH DAY OF JANUARY, 2009.

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1. Unless otherwise indicated all references to Articles refer to the Code of Criminal Procedure.