Ex Parte Rendon
Ex Parte Rendon
Opinion of the Court
OPINION
delivered the opinion of the court
This is a post-conviction application for writ of habeas corpus brought pursuant to Article 11.07.
PROCEDURAL POSTURE
The applicant was charged by indictment with the offense of possession of cocaine with intent to deliver in a drug-free zone in an amount of less than four grams but at least one gram. Pursuant to a plea bargain, the applicant pled guilty to the offense and was sentenced to five years’ imprisonment. The applicant filed a post-conviction application for writ of ha-beas corpus alleging a claim of ineffective assistance of counsel predicated upon erroneous advice about parole eligibility. The applicant alleged that he pled guilty based on trial counsel’s advice that he would be eligible for parole in twelve to eighteen months. But because the applicant committed his offense in a drug-free zone, he is not eligible for parole for the duration of his five-year sentence.
After the State filed its response, the convicting court ordered the applicant’s two trial attorneys to file affidavits addressing the applicant’s ineffective assistance of counsel claim. In their affidavits, the attorneys denied that they had ever advised the applicant that he would be eligible for ■ parole. After receiving the attorneys’ affidavits, the State filed a second response arguing that relief should be denied. The convicting court recommended that relief be denied, finding that the applicant’s trial lawyers never advised him that he would be eligible for parole during his sentence and concluding that, in any event, any erroneous advice about parole eligibility, assuming arguendo that there was any, would not have rendered the guilty plea involuntary.
We ordered that the application be filed and set for submission to address two issues: (1) whether Article 11.14 of the Code of Criminal Procedure requires an applicant to personally verify an application for writ of habeas corpus presented on his behalf, especially if he has exclusive personal knowledge regarding the allegations in the application, and (2) whether such an application requires an applicant’s signature in order to comply with Rule 73.1(d) of the Rules of Appellate Procedure. We hold that the applicant need not personally verify a post-conviction writ application; by express statutory provision, a petitioner who is not the applicant may verify the application, and may do so “according to [his] belief[.]”
ANALYSIS
Who May Verify a Post-Conviction Application for Writ of Habeas Corpus?
Chapter 11 of the Texas Code of Criminal Procedure governs habeas corpus proceedings. An application for writ of habeas corpus may be brought to the proper authority for the purpose of obtaining
Rule 73.1(d) requires that verification of a post-conviction application for writ of habeas corpus be accomplished either by (1) an oath made before a notary public or other officer authorized to administer oaths, or (2) if the person making the application is an inmate in the Institutional Division of the Department of Criminal Justice or in a county jail, an unsworn declaration in substantially the form required in Texas Civil Practice and Remedies Code Chapter 132.
Accordingly, it would have been permissible for the applicant’s attorney in this case to verify his writ application by swearing that the allegations contained therein are true and correct according to his belief, regardless of whether personal knowledge of the veracity of those allegations resided exclusively with the applicant himself. Unfortunately, as we will explain, that is not what the applicant’s attorney in this case did.
Defect in the Prescribed Verification Form
The Rules of Appellate Procedure also require that an 11.07 post-convic
The Remedy
The fault lies not with the applicant, or his attorney, but with our prescribed form. We therefore dismiss the present writ application without prejudice to re-file at a later date with a proper verification. The inmate/applicant may sign the “Oath Before a Notary Public” (and actually do so before a notary public) to verify the writ application according to his belief. Alternatively, he may sign the “Inmate’s Declaration” attesting to the truth of the allegations without a notary public — again, according to his belief. Or, finally, the applicant’s attorney (or any other person, for that matter), as petitioner, may sign the “Oath Before a Notary Public” in the presence of a notary public, attesting to the truth of the allegations according to his belief. But the petitioner-who-is-not-the-applicant should strike the word “Applicant” from beneath the prescribed signature line under “Oath Before a N otary Public” and interlinéate the word “Petitioner” there. Any of these three methods should serve to properly verify the writ application.
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VERIFICATION
(Complete EITHER the “oath before a notary public” OR the “inmate’s declaration.”)
OATH BEFORE NOTARY PUBLIC
STATE OF TEXAS, COUNTY OF _, BEING FIRST DULY SWORN, UNDER OATH, SAYS: THAT HE/SHE IS THE APPLICANT IN THIS ACTION AND KNOWS THE CONTENT OF THE ABOVE APPLICATION AND ACCORDING TO APPLICANT’S BELIEF, THE FACTS STATED IN THE APPLICATION ARE TRUE.
Signature of Applicant
SUBSCRIBED AND SWORN TO BEFORE ME THIS _ DAY OF
INMATE’S DECLARATION
I, _, BEING PRESENTLY INCARCERATED IN _DECLARE UNDER PENALTY OF PERJURY THAT, ACCORDING TO MY BELIEF, THE FACTS STATED IN THE APPLICATION ARE TRUE AND CORRECT. SIGNED ON
Signature of Applicant
Signature of Attorney
Attorney Name:
SBOT Number:
Address: _
Telephone: _
. Tex.Code Crim. Proc. art. 11.07.
. Section 481.134 of the Texas Health and Safety Code provides for enhanced punish
. Tex.Code Crim. Proc. art. 11.14(5) ("Oath must be made that the allegations of the petition are true, according to the belief of the petitioner.”).
. On closer inspection of the record we observe that the applicant’s allegations are not made solely on the basis of his own personal knowledge. At least two of his family members claim to have been present during the applicant’s consultations with counsel during which, they claim, counsel assured the applicant that he would be eligible for parole within eighteen months.
. Tex.Code Crim. Proc. art. 11.12 ("Either the party for whose relief the writ is intended, or any person for him, may present a petition to the proper authority for the purpose of obtaining relief.”).
. Tex.Code Crim. Proc. art. 11.13 ("The word applicant, as used in this Chapter, refers to the person for whose relief the writ is asked, though the petition may be signed and presented by any other person.”).
. Id.
. Tex Code Crim. Proc. art. 11.14(5).
. Tex.R.App. P. 73.1(d).
. Tex. Civ. Prac. & Rem.Code §§ 132.002 & 132.003. The form for an unsworn inmate declaration that appears in Section 132.003 requires simply that the inmate "declare under penalty of perjury that the foregoing is true and correct.” It does not specify whether that assertion is based upon personal knowledge or belief. In obvious deference to Article 11.14(5), however, we have modified the inmate declaration as applied to post-conviction writ applications in such a way that it still "substantially” conforms to Section 132.003, but includes the phrase "according to my belief.” In whole, the declaration as it appears in our form application reads: "I,_, being presently incarcerated in_, declare under penalty of perjury that, according to my belief, the facts stated in the application are true and correct.”
. Tex.R.App. P. 73.1(a).
. See Appendix to this opinion.
Dissenting Opinion
filed a dissenting opinion.
The difficulty in this case arose because this Court’s prescribed form for an application for a writ of habeas corpus did not require what is now held to be required. Today we change the rules, yet hold an applicant, who properly filed his application on the old form, to the new rules. On a basis of which he had no knowledge, we now dismiss his petition and tell him to refile. This strikes me as unjust. This Court’s form created the problem, and this Court should not use that court-created problem to place a new burden on this applicant and other applicants who, as of the date of the issuance of the Court’s opinion, had properly filed applications on the old form. I would consider the merits of this application, and all others that were properly filed as of this date, and publish an opinion that would resolve the merits of this application and set out the new rules and writ application form as the standard for applications not yet filed. Because the Court does not do so, I respectfully dissent.
Reference
- Full Case Name
- Ex Parte Frankie RENDON, Applicant
- Cited By
- 9 cases
- Status
- Published