Ex parte Johnson

• Citation: 811 S.W.2d 93
• Decision Date: 30 January 1991
• Docket Number: No. 71133,71133
• Parties: Ex parte Willie JOHNSON, aka William E. Johnson.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 93

811 S.W.2d 93

Ex parte Willie JOHNSON, aka William E. Johnson.

No. 71133.

Court of Criminal Appeals of Texas,

En Banc.

Jan. 30, 1991.

Rehearing Overruled July 3, 1991.

Willie Johnson, pro se.

Ken Anderson, Dist. Atty., and Sally Ray, Asst. Dist. Atty., Georgetown, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MILLER, Judge.

Applicant was convicted of aggravated sexual assault ¹ and sentenced to 25 years imprisonment in the Texas Department of Criminal Justice, Institutional Division. No appeal was taken from this conviction.

In this application for writ of habeas corpus, filed in the convicting court on February 28, 1990, applicant alleges he was improperly admonished before he pled guilty, that he was denied the effective assistance of counsel, that he was denied due process, and, in an amendment to his application, that the trial court was without jurisdiction because the judge failed to hold an examining trial. On March 14, 1990, the trial judge issued an order directing the district clerk to take no further action on this application because it was not "made on oath as required by Article 11.14(5)", V.A.C.C.P. ² Subsequently, on July 2, 1990, applicant filed a motion to quash the trial judge's order alleging, inter alia, that he complied with Art. 11.14(5) by using the Unsworn Declaration as allowed by and set out in V.T.C.A. Civil Practice and Remedies Code §§ 132.001-132.003. ³ The State filed an answer on July 18, 1990, to applicant's writ application responding that the application does not contain the oath required by Art. 11.14(5) or the unqualified oath required by Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967), and its progeny. The State also asserted that the unsworn declaration in the Civil Practice and Remedies Code (see footnote 3 supra ) was insufficient in law and fact to raise factual allegations which must be assessed by either the district court or this Court pursuant to Art. 11.07, § 2.

On July 18, 1990, the trial judge entered another order, withdrawing his previous order of March 14, 1990, and including findings of fact and conclusions of law although no hearing was held on the writ application. The trial judge entered the following conclusions of law:

1. The application does not contain the oath required by Art. 11.14(5), Tex.Code Crim.Proc.; neither does it contain the unqualified oath required by Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967) and its progeny, Ex parte Brooks, 637 S.W.2d 744 (sic) (Tex.Cr.App.1982); Ex parte Burns, 635 S.W.2d 744 (Tex.Cr.App.1982); Ex parte Jackson, 616 S.W.2d 625 (Tex.Cr.App.1981).

2. The provisions of Sections 132.001-132.003, Civil Practice & Remedies Code, do not apply to Art. 11.07, Section 2, post-conviction applications for habeas corpus.

3. The total failure to state under oath that the allegations are true, (sic) is a defect which is so material in substance that the factual allegations do not create a justiciable case or controversy; therefore, the document filed does not constitute an application under Art. 11.07, Section 2.

4. The unsworn declaration contained in the purported application is insufficient in law to invoke this Court's Art. 11.07 Section 2, subject matter jurisdiction.

5. The jurisdiction of this Court is therefore limited to whether this Court has jurisdiction.

6. The application should be dismissed for want of jurisdiction under Art. 11.07, Section 2, without prejudice to the applicant's right to file a properly sworn application. See Ex parte Kanaziz, 423 S.W.2d 319 (Tex.Cr.App.1968).

7. In the alternative, if the application invokes the operation of Art. 11.07, the unsworn facts contained in the application are insufficient in law and in fact to raise factual allegations which are material to the legality of the applicant's confinement. Compare Ex parte Brooks, 637 S.W.2d 955 (Tex.Cr.App.1982).

Before addressing the merits of applicant's writ application, we must initially determine whether applicant has properly sworn to the facts alleged in his application.

In Ex parte Young, 418 S.W.2d 824, this Court construed Art. 11.07 of the 1965 Code of Criminal Procedure in light of "new concepts of the meaning of due process announced by the Supreme Court of the United States[.]" Id. at 826. The wording of the statute, which at that time had been amended by Acts 1967, 69th Leg., p. 1734, ch. 659, § 7, effective August 28, 1967, provided in relevant part:

When a petition for writ of habeas corpus presented to the judge of the convicting court contains sworn allegations of fact, which, if true, would render petitioner's confinement under the felony conviction illegal, the attorney representing the state in said court and the Attorney General of Texas shall be afforded an opportunity to answer such allegations, and if it appears that there are issues of fact which are material on the question of whether the petitioner is illegally restrained which have not been resolved, the petitioner may be granted a hearing on such issues of fact and the judge conducting such hearing shall make and file his findings of fact and conclusions of law. (emphasis added)

After reviewing Art. 11.07, the Court held inter alia, that Art. 11.07

[a]uthorizes the judge of the convicting court to require that the petition contain sworn allegations of fact rather than mere conclusions. Oath 'that the allegations of the petition are true, according to the belief of the petitioner,' Art. 11.14 V.A.C.C.P.[ ⁴, would not meet the requirement that the post conviction petition contain sworn allegations of fact, and allegations such as that petitioner was denied due process of law or effective aid of counsel would not be sufficient as 'allegations of fact.' (emphasis in original)

This Court thus interpreted Art. 11.07 to require an unqualified oath. See Ex parte Eiland, 420 S.W.2d 955 (Tex.Cr.App.1967) (petition sworn to be true only to best of applicant's belief fails to comply with Art. 11.07); Ex parte Jackson, 616 S.W.2d 625 (Tex.Cr.App.1981) (following Ex parte Young and Ex parte Eiland, court holds verification insufficient where allegations are "to the best of [applicant's] belief, true and correct"); Ex parte Burns, 635 S.W.2d 744 (Tex.Cr.App.1982) (qualified oath insufficient for application for habeas corpus relief from final felony conviction); and Ex parte Brooks, 637 S.W.2d 955 (Tex.Cr.App.1982) (Art. 11.14(5) oath does not meet requirement that post conviction petition contain sworn allegations of fact).

The Court, in Ex parte Young, 418 S.W.2d 824, obviously wrestled with reconciling the requirement in Art. 11.07, § 2, that the petition be made upon "sworn allegations of fact" with the requisite in Art. 11.14(5) that an "oath must be made that the allegations of the petition are true, according to belief of the petitioner." Indeed, in Ex parte Brooks, 637 S.W.2d at 955-956, the Court stated [Ex parte] Young examined the then-recent revision of V.A.C.C.P. Article 11.07, Sections 2 et seq., which govern applications for habeas corpus relief from final felony convictions. The court noted that, while a statute permits most habeas corpus petitions to be sworn on belief [Art. 11.14(5) ], such a qualified oath 'would not meet the requirement that the post conviction petition contain sworn allegations of fact ...' 418 S.W.2d at 829.

Thus, clearly the Court required an unqualified oath for habeas corpus petitions challenging final felony convictions pursuant to Art. 11.07 because of the express language requiring "sworn allegations of fact".

Article 11.07 was again amended in 1973, but only minor textual changes were made. The statute was divided into four sections, and the language regarding "sworn allegations of fact" was maintained in what was now labelled "Sec. 2(b)". Subsequently, however, Section 2(b) was substantially amended ⁵ to read:

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 operation 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.

The express language requiring "sworn allegations of fact" was deleted from Art. 11.07 by this amendment. Section 2(b) has not been further amended ⁶, and, the above version is that which was in effect at the time applicant filed his application for writ of habeas corpus in the convicting court on February 28, 1990. Thus, several issues remain, to-wit: whether the deletion of the "sworn allegations of fact" language, when coupled with the still effective Art. 11.14(5), changes the type oath required for applications for writs of habeas corpus; if yes, then whether the type oath required is the qualified oath of Art. 11.14(5); and, if the Art. 11.14(5) oath is legally sufficient, then whether the unsworn declaration in § 132.003 may be properly used therefor.

As we have discussed, the requirement from Ex parte Young, 418 S.W.2d 824, that applications for writs of habeas corpus be made on sworn allegations, and thus unqualified oaths, came from the express language of the statute requiring the petition "contain[ ] sworn allegations of fact". It was determined that the qualified oath of Art. 11.14(5) applied to habeas corpus applications challenging something other than a final felony conviction. See Ex parte Brooks, 637 S.W.2d 955. When section 2(b) was amended and the sworn allegations...