   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
