Death Penalty: Texas Law - Subsequent Writs and Abuse of the Writ Doctrine in Texas

Abstract

The purpose and scope of this paper is to introduce the practitioner to the concept of the "abuse-of-writ" doctrine as made applicable to death penalty habeas litigation via the recent enactment of article 11.071, section 5(a) of the Texas Code of Criminal Procedure.' It is generally pertinent in the context of serial or subsequent writ filings by the applicant. It is hoped that this article will help guide both the State's and defendant's habeas attorney through the various intricacies of the subsequent application for a writ of habeas corpus in death penalty litigation. Part I of this article examines the subsequent writ from a historical perspective, revealing the necessity for a procedure that not only preserves the rights of the condemned, but promotes judicial economy and finality as well. Part II explains the "abuse-of-writ" doctrine and discusses the operation of the exceptions to procedural bar under the statute.