          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                                NOS. AP-76,749 & 76,750



                 Ex parte WILLIAM ELMER HASTINGS, Applicant



             ON APPLICATION FOR A WRIT OF HABEAS CORPUS
              IN CAUSE NOS. W08-56619-V(A) & W09-00729-V(A)
                        FROM DALLAS COUNTY



       Per curiam. K ELLER, P.J., not participating.

                                       OPINION

       These cases deal with whether an application for a writ of habeas corpus filed under

Article 11.07 is timely when the applicant files it on the same day that a court of appeals

issues its mandate in the applicant’s direct appeal. We hold that, absent contrary evidence,

a mandate is presumed to issue at 9:00 a.m. on the day the court of appeals issues it, thereby

making any writ application filed later in the day timely.

       On February 19, 2010, applicant entered a plea of nolo contendere to two indictments

alleging aggravated sexual assault of a child under fourteen years of age. The trial judge
                                                                       Ex parte Hastings    Page 2

sentenced him to fifteen years in prison on each conviction. The Fifth Court of Appeals

upheld his convictions in an unpublished opinion on April 7, 2011.1 This Court denied

applicant’s petitions for discretionary review on October 12, 2011. The Court of Appeals

issued its mandate on January 10, 2012. Applicant filed his writ applications with the

convicting court on that same day at 12:38 p.m.            The State filed its response to the

applications, addressing the merits of applicant’s claims, on January 25, 2012. But, on

February 8, 2012, the habeas judge signed an order stating that it did not have jurisdiction

to address the merits of applicant’s claims, asserting that applicant “did not file his

application[s] after the mandate from the court of appeals issued.” Finding that applicant

filed his applications too soon, the trial judge sent the applications and all associated

documents to this Court without addressing the merits of applicant’s claim.

       The convicting court does not have jurisdiction to consider a post-conviction

application for a writ of habeas corpus under Article 11.07 2 until after the court of appeals

issues the mandate in the underlying direct appeal. Ex parte Johnson, 12 S.W.3d 472, 473

(Tex. Crim. App. 2000) (“Prior to the mandate, a judgment is not final.”). In this case, the

mandate issued on the same day the applications were filed, but the record fails to show




       1
         Hastings v. State, No. 05-10-00264-CR & No. 05-10-00265-CR (Tex. App.–Dallas
April 7, 2011 pet. denied) (not designated for publication).
       2
        TEX . CODE CRIM . PROC. art. 11.07, § 3(a) (“After final conviction in any felony case, the
writ must be made returnable to the Court of Criminal Appeals of Texas at Austin, Texas”).
                                                                       Ex parte Hastings    Page 3

which event occurred first.3

       This is a common situation that requires a uniform rule to provide guidance to the

bench, bar, and prospective habeas applicants and to reduce unnecessary and duplicative

filings, which waste scarce judicial time and resources without apparent benefit.4

       We therefore hold that, absent evidence to the contrary, a direct-appeal mandate is

presumed to have issued at 9:00 a.m. on the date it issues. This presumption may be rebutted

with evidence that the mandate actually issued later in the day and after the writ application

was filed in the convicting court. A district court will therefore have jurisdiction over a writ

application filed after 9:00 a.m. on the day the mandate issues in the underlying direct appeal

unless evidence to the contrary appears in the habeas record.

       Applying this presumption in these cases, we conclude that the convicting court did

have jurisdiction to address the merits of applicant’s claims. We remand these cases so that

the judge of the convicting court may address the merits of applicant’s claims.

Delivered: May 16, 2012
Publish




       3
         The applications were time-stamped at 12:38 p.m., but there is no copy of the mandate
in the habeas corpus record. Thus we do not know the precise time that it was issued.
       4
          An application that is filed before the mandate issues requires the State to respond, the
convicting court to make a determination of timeliness, and transmittal of all papers to this Court
to make a final determination of jurisdiction. If this Court dismisses the original application for
want of jurisdiction, the applicant simply begins all over again, refiling another application and
starting the process anew.
