When Is a Habeas Writ Still Available in Texas?

When Is a Habeas Writ Still Available in Texas?

At Blizzard & Zimmerman Attorneys, we frequently get asked: "After conviction, how much longer can a client still pursue relief via a habeas corpus writ in Texas?"

The short answer is: it depends - but in many cases, a post-conviction habeas writ can remain viable long after direct appeal. Below, we explain when Texas law allows a habeas writ, what limitations apply, and when urgent action is required.

What Is a Post-Conviction Habeas Writ in Texas?

A writ of habeas corpus is a legal mechanism by which someone convicted of a crime can challenge the legality of their confinement. In Texas, post-conviction writs permit a convicted person to raise issues that could not be raised (or were not raised) on direct appeal, especially constitutional violations or newly discovered evidence.

Habeas relief is NOT a “second appeal” - courts generally do not allow arguments based on the trial record that were or could have been raised on direct appeal.

Instead, habeas is a safety valve to address:

• Constitutional errors so fundamental they were not properly considered on direct appeal,
• New or newly discovered evidence (e.g. DNA results) that casts doubt on guilt (actual innocence claims)
• Violations of rights outside the appellate record (for example, ineffective assistance of counsel not evident from the record)

Key Texas Statutes Governing Habeas Writs

Article 11.07 - Felony Convictions (non-death-penalty)

• After final conviction in a felony (other than death), the writ must be filed in the convicting court and made returnable to the Texas Court of Criminal Appeals.
• After the state files its answer, the convicting court has to determine whether there are controverted, previously unresolved facts material to the legality of confinement.
• If such facts exist, the court can designate them for resolution (via affidavits, depositions, hearings, etc.).

Article 11.071 - Death Penalty Cases

• If the conviction is for a capital offense, the rules are more strict. The habeas application must be filed within specific deadlines: either within 180 days after appointment of habeas counsel or 45 days after the state’s original brief is filed on direct appeal - whichever is later.
• The state must file an answer within 120 days, though extensions may be granted under particular circumstances.
• The convicting court must determine whether there are disputed, material factual issues within 20 days after the state’s answer.

Article 11.09 - Misdemeanor Post-Conviction

• Even for misdemeanor convictions, a post-conviction writ under 11.09 may be possible, though these are rare.
• The applicant must show the claim was not previously raised and could not have been raised earlier, or newly available.

When Is a Writ No Longer Available (or Severely Limited)?

While Texas law allows habeas petitions long after conviction in many cases, there are critical limitations and triggering deadlines to keep in mind:

1. Claims Must Be New or Unforeseen
   You cannot use a habeas writ to rehash issues that were or could have been raised on direct appeal or are obvious from the record. Courts often summarily dismiss such arguments.
2. “Reasonable Time” Requirement / Doctrine of Laches (prounounced "latch-iz")
   Although there is no strict statutory deadline for many habeas filings in Texas, courts may deny a writ on grounds of laches (undue delay) or prejudice to the State if the applicant waited unreasonably long without justification.
3. One Shot Rule / Unique Application / One Bite of The Apple
   For many felony cases, a criminal defendant is allowed only one meaningful state habeas application under 11.07, barring very exceptional circumstances.
   A subsequent (later) writ must show that the claims could not have been presented earlier or that new evidence is newly available, and even then the court has discretion to refuse.
4. Impact on Federal Review (28 U.S.C. § 2254)
   To preserve the right to federal habeas review, a state writ typically must be filed within one year of the exhaustion of direct review (i.e. after the Court of Criminal Appeals issues its mandate) or within the federal statute of limitations. If the state writ is not timely, federal review may be barred even if the state court would hear the claim.

What Triggers the Need for Urgent Action?

• The closer you get to finality in your case, the more likely you lose meaningful opportunities for relief.
• In death-penalty cases, strict deadlines apply; missing them may foreclose relief permanently.
• If new evidence emerges (e.g. DNA exoneration, recanting testimony), acting quickly helps counter laches arguments.
• If the state court or the Court of Criminal Appeals issues a decision rejecting your writ, you have a limited window to pursue federal review (if properly preserved).

How Blizzard & Zimmerman Attorneys Can Help

Because the rules governing habeas writs are intricate and time-sensitive, having experienced post-conviction counsel is essential. At Blizzard & Zimmerman Attorneys, we:

• Analyze the trial record, direct appeal, and possible unraised claims
• Evaluate whether new evidence supports a strong actual innocence or constitutional claim
• File the petition under correct procedure (11.07, 11.071, or 11.09, as applicable)
• Manage the state’s answer, respond with briefing, and push for evidentiary hearings when needed
• If state relief is denied, guide you through possible federal habeas review

A habeas writ in Texas may still be available long after your conviction - but only if you act wisely and timely. The window for meaningful relief narrows as time passes.

If you or someone you care about is considering Texas Criminal court post-conviction options or Federal court post-conviction options here in Texas, contact Blizzard & Zimmerman Attorneys today and request a free evaluation of your habeas petition potential.  We will review your case, identify potential issues, and advise your best route forward.