            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                     NO. WR-79,465-01



                      EX PARTE AL LETROY SMITH, Applicant



          ON APPLICATION FOR A WRIT OF HABEAS CORPUS
     FROM THE CAUSE NO. 43,698-01-A IN THE 47TH DISTRICT COURT
                         POTTER COUNTY

      K EASLER, J., delivered the opinion of the Court, in which K ELLER, P.J., P RICE,
H ERVEY, C OCHRAN, and A LCALA, JJ., joined. M EYERS, J., filed a dissenting opinion.
W OMACK, J., concurred. J OHNSON, J., dissented.

                                       OPINION

       Applicant Al Smith waited over ten years to claim in an application for a writ of

habeas corpus that his rights to direct appeal and effective assistance of counsel were denied.

Although the State did not plead laches in its answer to Smith’s application, we hold that a

court may consider sua sponte whether laches should bar an applicant’s claim. We further

hold that the current record supports a sua sponte laches inquiry. Smith’s application is

remanded to the habeas court to give Smith an opportunity to explain his delay and for the

entry of findings of fact and conclusions of law.
                                                                                   SMITH—2

                                               I.

       In June 2002, a jury found Smith guilty of assault on a public servant, and the judge

sentenced him to a term of eight years’ confinement to run consecutively with another

conviction. Appellate counsel was subsequently appointed, but no appeal was taken. In

March 2013, Smith filed an application for a writ of habeas corpus pursuant to Texas Code

of Criminal Procedure Article 11.07 alleging that he was denied his rights to appeal and

effective assistance of appellate counsel. In April 2013, the State filed its answer generally

denying Smith’s allegations and further informing the trial court that the State requested a

response from appellate counsel it had not yet received. The State’s answer did not plead

laches or any theory of the case beyond a general denial.

       Smith’s application was forwarded to this Court without any findings of fact and

conclusions of law entered by the habeas judge. We remanded the application to the habeas

court to make findings and conclusions as to “whether [Smith] was denied his right to a

meaningful appeal because [Smith’s] counsel failed to timely file a notice of appeal.” 1 After

considering appellate counsel’s affidavit, in which he stated that he had no personal

recollection of the case and that his file did not contain a notice of appeal, the habeas judge

found that appellate counsel failed to invoke the court of appeals’ jurisdiction. The judge

concluded that Smith received ineffective assistance of appellate counsel and recommended

that Smith be permitted to file an out-of-time appeal. The State did not object to the findings


       1
           Ex parte Smith, Order, No. WR-79,465-01 (Tex. Crim. App. June 12, 2013).
                                                                                    SMITH—3

or conclusions. On our own motion, we ordered Smith’s application be filed and set to

determine “whether the State must plead laches for a court to consider it in determining

whether to grant equitable relief.” 2

                                               II.

       We have long acknowledged that the writ of habeas corpus is of common-law origin

and governed by common-law equitable principles.3 Indeed, the earliest government of an

independent Texas explicitly embraced English common law in this regard: “Every Judge,

so nominated and commissioned, shall have jurisdiction over all crimes and misdemeanors

recognized and known to the common law of England: he shall have power to grant writs of

‘habeas corpus’ in all cases known and practised, to and under the same laws[.]” 4 This

extraordinary and prerogative writ5 was so named because, while “it cannot be employed as

a substitute for appeal,” “it seeks to relieve the petitioner from a wrongful act by anticipating




       2
           Ex parte Smith, Order, No. WR-79,465-01 (Tex. Crim. App. Nov. 24, 2013).
       3
         Ex parte Perez, 398 S.W.3d 206, 210–11 (Tex. Crim. App. 2013); Ex parte
Gaither, 387 S.W.3d 643, 648 (Tex. Crim. App. 2012).
       4
          P LAN AND P OWERS OF THE P ROVISIONAL G OVERNMENT OF T EXAS, O RDINANCES
AND D ECREES OF THE C ONSULTATION, P ROVISIONAL G OVERNMENT OF T EXAS, AND THE
C ONVENTION: WHICH A SSEMBLED AT W ASHINGTON, M ARCH 1, 1836 (Houston, Niles &
Co. 1838), available at http://tarlton.law.utexas.edu/constitutions/dpppgt1836/plan (last
visited September 29, 2014).
       5
         B RYAN G ARNER, B LACK’S L AW D ICTIONARY, 1845 (10th ed. 2014) (“A writ
issued by a court exercising unusual or discretionary power. Examples are certiorari,
habeas corpus, mandamus, and prohibition.—Also termed prerogative writ.”).
                                                                                      SMITH—4

and superseding the ordinary course of legal procedure.”6              At common law, it was

“principally applied to remedy defects in the common-law proceedings; and therefore that

equity jurisprudence was entertained upon the same ground which now constitutes the

principal reason of its interference, viz., that a wrong is done, for which there is no plain,

adequate, and complete remedy [at law].”7 Without legislation or case law altering the scope

of habeas corpus and the relief that may be granted, we fall back on the contours of habeas

corpus at common law.8 Although the modern writ has been subjected to significant change,

it has predominantly been procedural, with the most noticeable exception of precluding

merits review of subsequent applications.9 On balance, the modern writ of habeas corpus

remains true to its ancient origins with its focus on fairness.10 As we have noted, the Texas


       6
          2 T HOMAS C ARL S PELLING, A T REATISE ON E XTRAORDINARY R ELIEF IN E QUITY
AND AT L AW, § 1151 (Boston, Little, Brown & Co. 1893). Accord Ex parte Townsend,
137 S.W.3d 79, 81–82 (Tex. Crim. App. 2004); Ex parte Wilcox, 79 S.W.2d 321, 321
(Tex. Crim. App. 1935) (“Habeas corpus is an extraordinary writ, and the general rule is
that it does not lie where relief may be had, or could have been procured by resort to
another remedy.”).
       7
         1 J OSEPH S TORY, C OMMENTARIES ON E QUITY J URISPRUDENCE AS A DMINISTERED
IN E NGLAND AND A MERICA § 49 (Boston, Little, Brown & Co. 1918).

       8
            See Ex parte Mines, 26 S.W.3d 910, 911 (Tex. Crim. App. 2000).
       9
            See generally T EX. C ODE C RIM. P ROC. art. 11.01 et seq.; T EX. R. A PP. P. 73.1 et
seq.
       10
          See, e.g., Ex parte De Leon, 400 S.W.3d 83, 90 (Tex. Crim. App. 2013) (citing,
Shannon v. State, 708 S.W.2d 850, 851–52 (Tex. Crim. App. 1986), which concluded that
fairness required specific performance, specifically a plea’s withdrawal, when a
defendant successfully challenges a conviction); Ex parte Riley, 193 S.W.3d 900, 902
(Tex. Crim. App. 2006) (finding that applicant’s lack of notice of ability to file a petition
                                                                                   SMITH—5

Constitution does not “guaranty a right to habeas corpus relief that is broader than that

available at common law.”11 It is with this origin in view that we address the issue before

us today.12

       The concept that delay in seeking relief may, in certain instances, adversely affect an

applicant’s request for habeas corpus relief was first expressed in terms other than a formal

recognition of the equitable defense of laches. In Ex parte Young, we stated that, “While we

do not desire to make an absolute rule concerning habeas corpus petitioners who do not assert

their legal remedies promptly, we nevertheless feel that in some instances, a petitioner’s

delay in seeking relief can prejudice the credibility of his claim.” 13 In Young, we noted that

Young had waited eight and a half years before complaining that counsel failed to file an

appeal on his behalf despite being aware that he had such a right.14 Our denial of Young’s

application turned in part on several factors owing to his delay to bring his complaint: the

unavailability of the trial record of his eleven-year-old conviction and the inability to fully



for discretionary review did not rise to the level of ineffective assistance of counsel, but
nonetheless granting relief on “a breakdown in the system”).
       11
            Ex parte Mines, 26 S.W.3d at 914.
       12
          See 2 A TREATISE ON EXTRAORDINARY RELIEF IN EQUITY AND LAW § 1190 (“The
real purpose for which habeas corpus was at first designed needs to be kept constantly in
view in order to clearly understand the principles governing its use and the occasions
when a party invoking it is entitled to relief though its instrumentality.”).
       13
         479 S.W.2d 45, 46 (Tex. Crim. App. 1972); accord Kniatt v. State, 206 S.W.3d
657, 664 (Tex. Crim. App. 2006).
       14
            Ex parte Young, 479 S.W.2d at 46.
                                                                                   SMITH—6

explore the failure to appeal because of participants’ death and the erased memories of

others.15

       Our first direct exposition on the laches doctrine’s effect on an applicant’s request for

habeas corpus relief is found in Ex parte Carrio. In addressing the State’s pleaded theory

of laches, the Carrio Court recognized that an applicant’s claim for relief had never before

been denied under the laches doctrine and the Court has had no desire to impose upon an

applicant a specific time period to assert his claim.16 We looked to Black’s Law Dictionary’s

definition of “laches”:

       The doctrine of laches is based upon the maxim that equity aids the vigilant
       and not those who slumber on their rights. It is defined as neglect to assert
       right or claim which, taken together with lapse of time and other circumstances
       causing prejudice to an adverse party, operates as a bar in a court of equity.
       Also, it is the neglect for an unreasonable and unexplained length of time
       under circumstances permitting diligence, to do what in law, should have been
       done.17

Concluding that “the doctrine of laches is a theory which we may, and should, employ in our

determination of whether to grant relief in any given 11.07 case,” this Court in essence

adopted the federal approach found in Rule 9(a) of the Rules Governing 28 U.S.C. § 2254

Cases.18 In effect, Carrio required the State to go beyond what would have been required to


       15
            Id. at 47.
       16
         Ex parte Carrio, 992 S.W.2d 486, 487 (Tex. Crim. App. 1999) (relying in part
on Ex parte Young, 479 S.W.2d at 46).
       17
            Id. at 487 n.2 (citing B LACK’S L AW D ICTIONARY 875 (6th ed.1990)).
       18
            Ex parte Perez, 398 S.W.3d at 212.
                                                                                    SMITH—7

raise laches at common law by (1) requiring the State to make a particularized showing of

prejudice and (2) limiting the type of prejudice the State may show to prejudice to its ability

to respond to the claims raised in an application.19

       Just two terms ago in Ex parte Perez, we abandoned Carrio’s embrace of the federal

approach in favor of a return to the common law’s equitable principles that animate the

laches doctrine.20 After Perez, the State is no longer required to make a particularized

showing of prejudice, and the definition of prejudice has now expanded to include anything

that places the State in a less favorable position, including prejudice to the State’s ability to

retry a defendant.21 The reasons for the restoration were many: The persuasiveness of the

authorities Carrio relied upon had been undermined by the imposition of a strict statute of

limitations for federal habeas claims, and the federal standard proved to be too rigid to serve

effectively as an equitable standard.22 But more importantly, the federal standard deviated

from the general principles of common-law equity.23

       “[T]he writ of habeas corpus is an extraordinary remedy, any grant of which must be




       19
            Id. at 212–13. See Ex parte Carrio, 992 S.W.2d at 487–88.
       20
            398 S.W.3d at 215.
       21
            Id.
       22
            Id. at 213–15.
       23
            See id. at 216.
                                                                                   SMITH—8

underscored by elements of fairness and equity.”24 To determine whether equitable relief

should be granted then, it behooves a court to determine whether an applicant has slept on

his rights and, if he has, whether it is fair and just to grant him the relief he seeks.25 The

expanded approach ensures that courts keep, at the fore, the State’s and society’s interest in

the finality of convictions,26 and consider the trial participants’ faded memories and the

diminished availability of evidence.27 In these case-by-case inquiries, courts should consider,

among other things, the length of applicant’s delay in requesting equitable relief, the reasons

for the delay, and the degree and type of prejudice borne by the State resulting from

applicant’s delay.28 But equity does not require that an applicant be barred from relief by

mere delay alone. In Perez, we held that delay may be excused when the record shows that

(1) an applicant’s delay was not unreasonable because it was due to a justifiable excuse or

excusable neglect; (2) the State would not be materially prejudiced as a result of the delay;

or (3) the applicant is entitled to equitable relief for other compelling reasons, such as new




       24
            Id. at 216.
       25
            Id. at 218.
       26
            Id. at 218.
       27
         Id. at 216 (citing Ex parte Steptoe, 132 S.W.3d 434, 437–39 (Tex. Crim. App.
2004) (Cochran, J., dissenting)).
       28
            Id. at 217.
                                                                                     SMITH—9

evidence that shows he is actually innocent of the offense.29 But in Perez, we specifically

declined to address the issue in the present case.

       For the same reasons that we abandoned the federal approach to laches, we now hold

that a court may sua sponte consider and determine whether laches should bar relief. In a

civil suit in equity, the United States Supreme Court stated long ago that,

              To let in the defence that the claim is stale, and that the bill cannot,
       therefore, be supported, it is not necessary that a foundation shall be laid by
       any averment in the answer of the defendants. If the case, as it appears at the
       hearing, is liable to the objection by reason of the laches of the complainants,
       the court will, upon that ground, be passive, and refuse relief. . . .

              A court of equity, which is never active in giving relief against
       conscience or public convenience, has always refused its aid to stale demands
       where a party has slept upon his rights, and acquiesced for a great length of
       time. Nothing can call forth this court into activity but conscience, good faith,
       and reasonable diligence. Where these are wanting, the court is passive, and
       does nothing. Laches and neglect are always discountenanced; and, therefore,
       from the beginning of this jurisdiction there was always a limitation to suits in
       this court.30

More recently, the Supreme Court expressed a similar sentiment: “Among [the governing

equitable principles of habeas corpus] is the principle that a suitor’s conduct in relation to the

matter at hand may disentitle him to the relief he seeks. Narrowly circumscribed, in

conformity to the historical role of the writ of habeas corpus as an effective and imperative



       29
          Id. at 218 (citing Ex parte Scott, 190 S.W.3d 672, 675 (Tex. Crim. App. 2006)
(Cochran, J., dissenting) and Ex parte Blue, 230 S.W.3d 151, 170 (Tex. Crim. App. 2007)
(Keller, P.J., concurring)).
       30
           Sullivan v. Portland & Kennebec R.R. Co., 94 U.S. 806, 811–12 (1876)
(citations and quotations omitted).
                                                                                  SMITH—10

remedy for detentions contrary to fundamental law, the principle is unexceptionable.” 31 And

as Judge Cochran has noted, the path to a habeas corpus remedy is a costly one, exacting

enormous societal and administrative costs.32 Protracted habeas corpus litigation defers

convictions’ finality, “undermines confidence in the integrity of our procedures and

inevitably delays and impairs the orderly administration of justice.”33 This in turn weakens

the criminal law’s deterrent and rehabilitative functions.34 “There must come a time when a

criminal conviction is final, when the deterrent effects of certainty and immediacy of

punishment outweigh an inmate’s right to endlessly litigate an appeal of his conviction.” 35

Moreover, a significant amount of judicial time, effort, and resources is expended in

addressing the nearly 5,000 applications for writs of habeas corpus this Court received just

last fiscal year,36 to say nothing about the equally taxing obligations of the lower courts in

conducting proceedings, entering findings of fact and conclusions of law, and making




       31
        Fay v. Noia, 372 U.S. 391, 438 (1963), overruled on other grounds by
Wainwright v. Skyes, 433 U.S. 72 (1977).
       32
            Steptoe, 132 S.W.3d at 437–38 (Cochran, J., dissenting).
       33
            Id. at 438 (citing Custis v. United States, 511 U.S. 485, 497 (1994)) (alterations
omitted).
       34
            Id. at 438–39
       35
            Id. at 438.
       36
          O FFICE OF C OURT A DMINISTRATION, A NNUAL S TATISTICAL R EPORT FOR THE
T EXAS J UDICIARY, F ISCAL Y EAR 2013, 30 (2014), available at http://www.courts.state.tx.
us/pubs/AR2013/cca/2-cca-activity090113.pdf (last visited September 29, 2014).
                                                                                    SMITH—11

recommendations on an applicant’s request for relief. When a court is called upon to issue

equitable relief, the State’s failure to formally plead laches does not restrict a court’s ability

to balance equities beyond those that the parties advocate. A court may consider sua sponte

the interests of the judicial system and society generally because they implicate values that

may stretch beyond the concerns of the parties.37 Permitting courts to freely inquire about

an applicant’s delay broadly effectuates the maxim that “he who seeks equity must do

equity.” 38

        Our holding should not be interpreted to suggest that all writ applications should be

subjected to such scrutiny. Whether a habeas court properly raises laches calls for an elusive

answer in the abstract. With its consideration of the totality of circumstances, the nature of

equity itself defies definitive parameters. However, the habeas court should act on its own

sparingly, questioning only those applications demonstrating an excessive delay that

undermines or obstructs the principles and virtues the criminal-justice system promotes.

        Smith contends that permitting sua sponte consideration of laches is inappropriate

because it discords with our statutes and that laches is considered an affirmative defense and

must be pleaded by the State. Smith argues that a sua sponte review of laches conflicts with



        37
          Cf. Day v. McDonough, 547 U.S. 198, 205–206 (2006) (stating that the federal
habeas corpus statute’s limitations period promotes judicial efficiency and conservation
of judicial resources, safeguards the accuracy of state-court judgments by requiring
resolution of constitutional questions while the record is fresh, and lends finality to state
court judgments within a reasonable time).
        38
              J OHN N ORTON P OMEROY, A T REATISE ON E QUITABLE R EMEDIES, § 21 (1905).
                                                                                  SMITH—12

or is implicitly precluded by Texas Code of Criminal Procedure Articles 2.01 and 1.27.

Article 2.01 provides, as Smith quotes, “It shall be the primary duty of all prosecuting

attorneys, including any special prosecutors, not to convict, but to see that justice is done.”

The argument goes that “the prosecutor may properly decide that, on the basis of [certain]

information or even surmise, his or her ethical duty to ‘see that justice is done’ entails

omitting laches from the pleadings.”39 We see no inherent conflict between a prosecutor’s

strategic motive and perceived ethical responsibility and a court’s ability to consider laches

sua sponte. This contention discounts society’s interest in finality of convictions, the

preservation of judicial resources, and the criminal law’s deterrent and rehabilitative

functions—values that may be beyond the concern of the parties in a particular case—and

misplaces the onus solely on the State to vindicate those interests. Society’s interests endure

despite the State’s silence on them. Nor does our holding run afoul of Article 1.27 stating

that “[i]f this Code fails to provide a rule of procedure in any particular state of case which

may arise, the rules of the common law shall be applied and govern.” As provided above,

our approach is consistent with the common-law notion that a habeas judge should balance

all equitable interests, pleaded and unpleaded.

       Smith next claims that habeas corpus proceedings are civil in nature, and as a result

the pleading rules should be governed by the Texas Rules of Civil Procedure, namely Rule




       39
            Smith Br. at 8.
                                                                                  SMITH—13

94.40 He argues that under Rule 94 the State’s failure to assert a laches theory barring relief

in its responsive pleading means that the laches doctrine has been forfeited and is not in the

case. Smith’s characterization of habeas corpus proceedings may be correct at least in terms

of the writ’s historical notions. His ultimate conclusions, however, are not. As Smith

concedes, we have held that habeas corpus is primarily a criminal proceeding and the Texas

Rules of Civil Procedure do not ordinarily apply.41 Despite Smith’s arguments to the

contrary, we decline to make an exception here, especially in light of the varied equity

interests at play that may extend beyond the parties’ arguments. To the extent Smith’s

arguments can be interpreted as asserting that laches’s common-law provenance carries with

it common-law pleading requirements, we find it unpersuasive. Whatever can be said about

the common law’s procedural requirements, they have not survived subsequent changes in

case law, the enactment of statutes, and the adoption of rules specifically addressing habeas

corpus pleadings and procedure.42 Code of Criminal Procedure Chapter 11 and Rule of



       40
          T EX. R. C IV. P. 94 (“In pleading to a preceding pleading, a party shall set forth
affirmatively . . . laches . . . and any other matter constituting an avoidance or affirmative
defense.”).
       41
          Ex parte Reick, 144 S.W.3d 510, 516 (Tex. Crim. App. 2004) (“Such
proceedings are categorized as ‘criminal’ for jurisdictional purposes, and the Texas Rules
of Civil Procedure do not ordinarily apply.”). But see Arnold v. State, 853 S.W.2d 543,
544 (Tex. Crim. App. 1993) (applying Rule of Civil Procedure 18(a) for judge recusals in
criminal cases).
       42
          See T EX. C ODE. C RIM. P ROC. art. 1.27 (“If this Code fails to provide a rule of
procedure in any particular state of case which may arise, the rules of the common law
shall be applied and govern.”).
                                                                                    SMITH—14

Appellate Procedure 73.1 explicitly detail how an applicant seeks habeas corpus relief, where

the application is to be filed, the form an application must take, and the procedural process

in the habeas court and this Court upon the application’s filing.43 Notable among these

requirements and most germane to Smith’s contention, is Article 11.07, § 3(b)’s language

that arguably does not require that the State file an answer to an application at all. Section

3(b) compels the clerk to forward a copy of the application to the State “who shall answer

the application not later than the 15th day after the date the copy of the application is

received.” But this passage is immediately followed by what amounts to a presumed general

denial even when the State fails to answer: “Matters alleged in the application not admitted

by the state are deemed denied.” It therefore makes little sense to obligate the State, contrary

to what the statute requires, to specifically plead a laches theory that bars an applicant relief.

                                               III.

       While equity may ultimately require denying relief, it nonetheless requires giving the

applicant an opportunity to explain his delay.44         An applicant must be afforded this

opportunity—irrespective of whether the State alleges the delay disadvantages its own

position—before a court recommends or concludes that laches compels the application’s

denial. In a sua sponte laches inquiry, a court may excuse an applicant’s delay when the



       43
          Id. art. 11.07, §§ 3–7; T EX. R. A PP. P. 73.1 (providing an application must be on
the form adopted by this Court, restricting the application’s contents, length, and
typeface, and mandating a certificate of compliance and verification).
       44
            See Ex parte Perez, 398 S.W.3d at 218.
                                                                                 SMITH—15

record demonstrates that his delay was the result of justifiable excuse or excusable neglect

based on the totality of circumstances, or other compelling reasons entitle him to relief, such

as newly available evidence or a new legal basis for relief.

                                             IV.

       Smith was convicted of assault on a public servant in June 2002. Ten and a half years

elapsed before Smith filed his March 2013 application for habeas corpus relief claiming that

he was denied his right to appeal and effective assistance of appellate counsel. Relying on

counsel’s affidavit, the habeas judge found that counsel had no independent recollection of

the facts surrounding Smith’s appeal and counsel’s file did not contain a notice of appeal.

From this, the habeas judge concluded that Smith’s right to appeal was denied and

recommended that relief be granted.

       From Smith’s application alone it appears quite clear that he was aware of his right

to appeal. He states that he was advised of his right to appeal in July 2002. He further states

that “On or about the 1st day of September, 2002” he “was concerned about his appeal and

wrote to [the] State Counsel[] for Offenders regarding the stat[u]s of his appeal[.]” 45 “On

numerous occasions” Smith attempted to contact his appointed appellate counsel to no avail,

although he does not place his attempts within a certain time period.46 Over nine years later

in March 2012, Smith contacted the Potter County District Clerk’s Office to ask about the



       45
            Smith Appl. Att. at 6.
       46
            Id.
                                                                                SMITH—16

status of his appeal. In August and September 2012, he learned from the District Clerk’s

Office and the court of appeals, respectively, that no notice of appeal had been filed in his

case. In March 2013, he filed the present application.

       A ten-and-a-half year delay is extraordinary. From the current state of the record and

assuming Smith’s statements in his application are accurate, it is hard to escape the

conclusion that he slept on his rights with full awareness of them. At a minimum, the delay

is significant enough for this Court to justly ask whether Smith’s claim should be precluded

by laches.47 However, because the record is silent on the circumstances that may excuse this

substantial delay, we reserve judgment as to whether laches bars Smith’s request for relief

until he is given an opportunity to explain his delayed application.

       Accordingly, we remand this application to the habeas court to make findings of fact

and conclusions of law consistent with this opinion, the resolution of which shall be

completed within 90 days of this opinion. In addition to the habeas judge’s supplemental

findings of fact and conclusions of law, a supplemental record containing all affidavits,

interrogatories, documents, and transcripts from any hearing or deposition shall be forwarded

to this Court within 120 days of this opinion.

       This application is held in abeyance pending further habeas-court proceedings.




       47
         See Ex parte Perez, 398 S.W.3d at 216 & n.12 (generally accepting that an
unexplained five-year delay will usually be considered unreasonable).
                             SMITH—17

DELIVERED: October 1, 2014

PUBLISH
