                        December 30, 1986




Honorable John B. Holmes, Jr.       Opinion.No. ~~-608
District Attorney
201 Pannin, Suite 200               Re:   Time allowed for state to file
Eouston, Texas   77002              answer in an application for writ of
                                    habeas corpus under article 11.07 of
                                    the Code of Criminal Procedure

Dear Mr. Holmes:

     You ask about the time period in which the district attorney is
allowed to file an ausver to a petition for wit of habeas corpus
under article 11.07 of the Code of 'Criminal Procedure. You want to
know whether it   is appropriate for the district clerk's office to
calculate the date the state's answer is due from the date of filing
with the clerk's office, rather than the date of receipt of a copy of
the writ by the district attorney's office.

     Section 2(b) of article 11.07 of the Code of Criminal Procedure
provides:

            (b) Whenever a petition for writ of habeas
         corpus is filed after final conviction in a felony
         case, the clerk shall transfer or assign it to the
         court in which the conviction being challenged was
         obtained. When the petition is ,received by that
         court, a writ of habeas corpus, returnable to the
         Court of Criminal Appeals, shall issue by opera-
         tion of law. The clerk of that.court shall make
         appropriate notation thereof, assign to the case a
         file number (ancillary to that of the conviction
         being challenged), and send a copy of the petition
         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
         petition. Matters alleged in the petition not
         admitted by    the   state are    deemed denied.
         (Emphasis added).

You inform us that the district clerk's office maintains that the
state's answer is due 15 days after the date of filing with their




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Honorable John B. Eolmes, Jr. - Page 2    (JM-608)




office. For the following reasons we       disagree with   the district
clerk's construction of the provision.

     Although the provisions do not clearly state when the fifteen
days begins to mu. the provision does provide that "the attorney
representing the state . . . shall have 15 days in which it may
answer." &&     It appears from the words of this statute that the
legislature intended that the district attorney would have at least 15
days to review the petition add make the appropriate response if he
chose to do so. See Code Grim. Proc. art. 1.26 (statute should be
construed to ascertain legislative intent).

     If wa were to accept the district clerk's construction of the
provision, the district attorney might be.without sufficient time to
make an adequate response to a writ which is normally written by a
prisoner untrained in the law. The district attorney might receive a
notice after 15 days have passed from the date of the filing. But see
28 U.S.=2252    (federal statute requires that notice be given to the
state attorney general prior to a hearing). We do uot believe that
the legislature could have intended such au inappropriate procedure.

     Accordingly,. section 2(b) of article 11.07 of the Code of
Criminal Procedure requires that the district attorney shall have 15
days to file an answer to a petition for writ of habeas corpus. The
date on which tha district attorney receives notice of the filing of
the writ rather than the date of the filing in the district clerk's
office is the date on which the 15-day auswer period begins.

                            SUMMARY

            Section 2(b) of article 11.07 of the Code of
         Criminal Procedure requires .that the district
         attorney shall have 15 days to file an answer to a
         petition for writ of habeas corpus. The date on
         which the district attorney receives notice of the
         filing of the writ rather than the date of the
         filing in the district clerk's office is the date
         on which the 15-day answer period begins.




                                         JIM     MATTOX
                                         Attorney General of Texas

JACK EIGHTOWER
First Assistant Attorney General




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Honorable John B. Eolmes, Jr. - Page 3   (JM-608)




NARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tony Guillory
Assistant Attorney General




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