Opinion
No. WR-63,549-01
December 14, 2005. DO NOT PUBLISH.
On Application for Writ of Habeas Corpus In Cause No. W01-00328-T In the 283rd Judicial District Court, Dallas County.
PER CURIAM. JOHNSON, J., would dissent.
ORDER
This is an untimely application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071. On November 20, 2003, the trial court appointed Allan Fishburn to represent applicant in a post-conviction writ of habeas corpus under Article 11.071. On March 28, 2005, the State filed in this Court its brief on applicant's direct appeal. Pursuant to Article 11.071, § 4(a), counsel should have filed applicant's application for writ of habeas corpus in the convicting court no later than May 12, 2005. On August 3, 2005, the convicting court received a motion from counsel requesting a 90-day extension for filing applicant's application. In the motion, applicant's counsel explained that applicant was the sixth of six co-defendants to be tried and that counsel needed time to review all of the co-defendants' cases as well as his client's. The trial court, without authority, granted counsel's motion and extended the filing deadline to September 23, 2005. On September 20, counsel filed a "Writ of Habeas Corpus Pursuant to 11.071" on applicant's behalf. Because applicant's motion for extension of time was filed well after it was statutorily permitted and because no application was filed on or before the initial due date of May 12, 2005, we find that the application filed on September 20, 2005, was untimely. See Art. 11.071, § 4(c). However, pursuant to Article 11.071, § 4A(b)(2), and counsel's showing of good cause in his motion for extension, we will allow Fishburn to continue representing applicant and hold applicant's application to be timely filed as of September 20, 2005. The trial court is ordered to proceed with its review of the application. The timelines set out in Article 11.071, § 7-9, shall start to run as of the day this order is issued. IT IS SO ORDERED.
Unless otherwise indicated all references to Articles refer to the Code of Criminal Procedure.
Under Article 11.071, § 4(d), the convicting court should have sent a statement to this Court within ten days of this initial deadline notifying the Court that no application had been timely filed.