Untitled Texas Attorney General Opinion ( 1999 )


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  •    OFFICEOF THEATTORNEYGENERAL STATEOF TEXAS
    JOHN CORNYN
    May 5, 1999
    The Honorable Jack Skeen, Jr.                      Opinion No. JC-0044
    Smith County Criminal District Attorney
    100 North Broadway, Room 304                       Re: Whether, under the Texas Code of Criminal
    Tyler, Texas 75702                                 Procedure     article   11.07, section    3(b), the
    prosecuting attorney and court clerk may agree to
    substitute another method of service for service by
    certified mail, return receipt requested (RQ-1227)
    Dear Mr. Skeen:
    You question whether, under Texas Code of Criminal Procedure article 11.07, section 3(b),
    a prosecuting attorney may waive service by certified mail, returnreceipt requested, ofan application
    for writ of habeas corpus if the prosecutor and district clerk agree that the district clerk may instead
    have the writ personally served on the prosecutor. We conclude article 11.07, section 3(b) requires
    service by certified mail, return receipt requested, but the prosecutor may waive the method of
    service prescribed in the statute.
    Article 11.07 of the Code of Criminal Procedure establishes a procedure for a convicted,
    noncapital defendant to apply for writ of habeas corpus. See TEX. CODE GRIM. PROC. ANN. art.
    11.07, 5 1 (Vernon Supp. 1999). Section 3(b) directs the clerk of the court in which the defendant
    was convicted to notify the prosecuting attorney that an application for writ of habeas corpus has
    been filed:
    Whenever an application for writ of habeas corpus is tiled
    after final conviction in a felony case, other than a case in which the
    death penalty is imposed, the clerk shall transfer or assign it to the
    court in which the conviction being challenged was obtained.       . The
    clerk of that court shall . send a copy of the application by certified
    mail, return receipt requested, to the attorney representing the state
    in that court, who shall have 15 days in which it may answer the
    application.
    
    Id. 5 3(b)
    (emphasis   added).
    You advise that in your county the certified mail requirement is not cost-effective because
    your office and the county’s district clerk offtce are in the same building and only two floors
    The Honorable    Jack Skeen, Jr. - Page 2              (X-0044)
    apart. See Letter from Honorable Jack Skeen, Jr., Smith County Criminal District Attorney, and Ms.
    Becky Dempsey, Smith County District Clerk, to Honorable Dan Morales, Attorney General of
    Texas (Nov. 1,1998) (on tile with Opinion Committee). In an effort to save public money spent on
    postage, you and the district clerk have agreed upon another method of service: “The [Cllerk will
    hand deliver the applications for writs of habeas corpus directly to the Appeals Attorney for the
    Smith County Criminal District Attorney. The Clerk would receive a written waiver of Certified
    Mail Service and an acknowledgment of receipt of application.” 
    Id. In our
    opinion, article 11.07, section 3(b) requires a court clerk to serve the prosecuting
    attorney by certified mail, return receipt requested.’ The word “shall” imposes a mandatory duty.
    See TEX. GOV’T CODE ANN. 4 311.016(2) (Vernon 1998); BRYAN A. GARNER, A DICTIONARY OF
    MODERN LEGAL USAGE 502 (1987);            BLACK’S LAW DICTIONARY 1233 (5th ed. 1979).
    While a clerk may not unilaterally use a substitute method of service, we see no reason to
    conclude that a prosecutor may not waive the method of service prescribed in the statute. The
    prosecutor is the intended beneficiary of the service required in article 11.07, section 3(b). The
    legislative history of that section indicates that the legislature wanted to ensure that a prosecutor
    receives timely notice that an application for writ of habeas corpus has been tiled in a case he or she
    pursued:
    [IInmates don’t have any ethical duty as would an attorney to
    inform the prosecutor of the filing of the petition. So the prosecutor
    never finds out that the . habeas corpus petition is tiled, and here
    you’ve got the D.A. who’s spent thousands of dollars and goodness
    knows how much manpower getting witnesses together and so forth
    to get a conviction [and] now the prisoner’s collaterally attacking his
    conviction . . but the prosecutor never finds out about it.       That’s
    the first problem, which the statute solves by saying that the clerk
    [must] make a copy of [the application for writ of habeas corpus],
    [and] serve the district attorney      That gives the district attorney
    the chance to answer if he wants to.
    Hearings on Tex. S.B. 1070 Before the Senate Comm. on Jurisprudence’s Subcomm. on Criminal
    Matters, 65th Leg., R.S. (Apr. 19, 1977, indicated on tape recording; Apr. 20, 1977, indicated in
    bound bill history) (statement of Clyde F. Dewitt, Harris County District Attorney’s Office) (tape
    available from Texas State Library & Archives Comm’n); see also Act ofMay 26,1977,65th Leg.,
    R.S., ch. 789, $ 1, sec. 2(b), 1977 Tex. Gen. Laws 1974, renumbered by Act ofMay 24, 1995,74th
    Leg., R.S., ch. 319, $5, sec. 3(b), 1995 Tex. Gen. Laws 2764,2770-2771.     We see no reason why
    the person intended to benefit from the service requirement cannot waive service by certified mail,
    ‘Two bills havebeen filed in thecurrentlegislativesessionthat,if eitheris approved,will expresslypermita
    clerkof courtto personallyservetheprosecutor.See Tex. S.B. 577,76th Leg., R.S. (1999); Tex. H.B. 1484,76th Leg.,
    R.S. (1999).
    The Honorable Jack Skeen, Jr. - Page 3               (X-0044)
    return receipt requested. C$ Kempner v. Galveston County, 11 S.W. 188,189 (Tex. 1889) (stating
    that statute that permits surety upon a county officer’s bond to terminate his liability if surety notifies
    the officer is designed to protect the officer, and “we see no reason why [the officer] may not waive
    the notice”).
    The Honorable   Jack Skeen, Jr. - Page 4         (X-0044)
    SUMMARY
    The penultimate    sentence of Texas Code of Criminal
    Procedure article 11.07, section 3(b), which directs a court clerk to
    “send a copy” of an application for writ of habeas corpus to the
    appropriate prosecutor “by certified mail, return receipt requested,”
    is mandatory. The prosecutor may waive service by certified mail,
    return receipt requested, however.
    CORNYN
    Attorney General of Texas
    ANDY TAYLOR
    First Assistant Attorney General
    CLARK KENT ERVIN
    Deputy Attorney General - General Counsel
    ELIZABETH ROBINSON
    Chair, Opinion Committee
    Prepared by Kymberly K. Oltrogge
    Assistant Attorney General
    

Document Info

Docket Number: JC-44

Judges: John Cornyn

Filed Date: 7/2/1999

Precedential Status: Precedential

Modified Date: 2/18/2017