Question 1

Who does OCFW represent?

Accepted Answer

OCFW has the privilege of representing death-sentenced persons and
persons convicted on the bases of flawed forensic science in Texas state
court post-conviction proceedings. OCFW does not represent persons on
direct appeal from their convictions or in federal habeas corpus proceedings.

Question 2

What kinds of claims are raised in post-conviction proceedings?

Accepted Answer

The only claims that may generally be raised in Texas post-conviction
proceedings are claims that a conviction or sentence is unconstitutional.
Typically, these claims might involve questions of ineffective assistance of
counsel, prosecutorial misconduct, intellectual disability, competency to stand
trial or to be executed, false evidence, unreliable forensic evidence, or
innocence.

Question 3

Are there guidelines that govern OCFW’s work?

Accepted Answer

OCFW is committed to providing excellent post-conviction representation and
following best practices as described in State Bar of Texas Guidelines and
Standards for Texas Capital Counsel (2006), and the Supplementary
Guidelines and Standards for the Mitigation Function of Defense Teams in
Texas Death Penalty Cases (2015).

Question 4

How does OCFW become involved in a case?

Accepted Answer

Two ways. In death penalty cases, Texas law provides a right to post-
conviction representation. Where a death-sentenced person is in need of
representation, the convicting court will appoint OCFW or other qualified
counsel. See Tex. Code Crim. Proc. art. 11.071 sec. 2.

In non-capital cases involving forensic science, OCFW handles cases referred
to it by the Texas Forensic Science Commission. Once a case is referred,
OCFW reviews the case to determine whether it can represent the individual
and investigates to determine whether questionable forensic science,
negligence, or misconduct contributed to the conviction. See Tex. Code Crim.
Proc. art. 38.01 sec. 4(h); Tex. Admin. Code §651.307.

Question 5

Is a Court required to appoint OCFW where the need for post-conviction
representation exists in death penalty cases?

Accepted Answer

When a person is sentenced to death, they have the right to have an attorney
appointed to investigate and litigate all possible constitutional claims affecting
their conviction or sentence. In these cases, the convicting court must appoint
OCFW to provide this representation, unless OCFW communicates to the
court that it is unable to accept a case due to other case obligations, a conflict
of interest, a lack of resources, or other good cause. See Tex. Code Crim.
Proc. art. 11.071 sec. 2; Tex. Govt. Code 78.054.

Death sentenced persons challenging their conviction or sentence in second
or successive post-conviction challenges are entitled to representation. In
these cases, OCFW will be appointed, if it is able to accept an assignment,
only if the attorney who has filed the successive post-conviction writ is unable
to continue  representing their client. See Tex. Code Crim. Proc. art. 11.071
sec. 6(b-1).

Question 6

What happens if OCFW cannot take a death penalty case?

Accepted Answer

A convicting court is required to appoint other qualified counsel off a list
maintained by the presiding judges of the Texas Administrative Judicial
Regions. That list is available here. Where OCFW is unable to provide
representation, the costs of representation are borne by the county of
conviction.

Question 7

How is OCFW funded?

Accepted Answer

OCFW receives appropriations from the Texas Legislature, largely from a
general revenue-dedicated account that is restricted to the funding of indigent
defense in Texas.

Question 8

Who else represents death-sentenced persons in Texas?

Accepted Answer

In Texas state courts, capital post-conviction representation is provided by
OCFW and other appointed counsel.

Death-sentenced persons are also entitled to representation in federal court in
federal habeas proceedings. In federal habeas, representation is provided by
a combination of Federal Public Defender Capital Habeas Units (“CHUs”) and
private counsel appointed under 18 U.S.C. 3599. There are two CHUs
located in Texas; one in Austin, the other in Dallas.

Question 9

Must OCFW be notified of every execution-date setting in Texas?

Accepted Answer

In 2015, in order to ensure that the attorneys representing death-sentenced
persons have notice of an execution date being scheduled, the Texas
Legislature amended Texas Code of Criminal Procedure article 43.141 to
require that, no later than the second business day after the date on which a
convicting court sets an execution date, a copy of the order must be served on
the attorney representing the death-sentenced person and the Office of
Capital and Forensic Writs. Failure to comply with this requirement may result
in the execution date-setting order being vacated. Service of orders and other
process pursuant to Texas Code of Criminal Procedure 43.141 may be
accomplished electronically at service@ocfw.texas.gov.

Question 10

Where can I find out who represents a particular person?

Accepted Answer

The best place to find out who represents a death-sentenced person in Texas
state court is to check the online dockets of the Texas Court of Criminal
Appeals or those maintained by District Clerk in the county of conviction.

To find out who might represent someone in federal habeas corpus
proceedings, the best place to look is on PACER, the federal court records
look-up system.

Question 11

I think the forensic science evidence in my case was problematic. Can
OCFW represent me?

Accepted Answer

The Texas Government Code only permits OCFW to handle non-capital cases
that are referred to it by the Forensic Science Commission. See Tex. Govt.
Code 78.054. If you believe that the forensic evidence used to convict you
was false, misleading, or the product of negligence or misconduct, you might
consider filing a complaint with the Forensic Science Commission. If there
were problems with the science underlying your conviction, you may have
grounds to file an application for writ of habeas corpus.

Question 12

I think the forensic science evidence in my case was problematic. What
does the Texas Forensic Science Commission do and how do I file a
complaint?

Accepted Answer

The Forensic Science Commission investigates complaints alleging
professional negligence or misconduct that would substantially affect the
integrity of the results of a forensic analysis conducted by an accredited crime
laboratory. The Commission also has jurisdiction to investigate non-
accredited forensic disciplines and non-accredited entitles under more limited
circumstances, such as to make observations regarding best practices or for
educational purposes. For the purposes of the Commission’s jurisdiction, the
term “forensic analysis” includes any medical, chemical, toxicological, ballistic,
or other expert examination or test performed on physical evidence, including
DNA evidence, for the purpose of determining the connection of the evidence
to a criminal action. For more information about the Forensic Science
Commission, please  visit their website. To file a complaint with the Forensic
Science Commission, please visit here.

Question 13

How do I find court decisions in Texas criminal cases?

Accepted Answer

The Texas Court of Criminal Appeals will have case information relating to
post-conviction writs, capital direct appeals, and petitions for discretionary
review, among other matters. Opinions in Court of Criminal Appeals cases
can be found here, or through a commercial legal research service.

Opinions by federal courts can be searched through PACER or a commercial
legal research service.

Opinions from the Supreme Court can be found here or through a commercial
legal research service.

Trial court docket information can generally be found online by visiting the
district clerk of a particular county.

Question 14

Where can I look up the statutes that apply to post-conviction in Texas?

Accepted Answer

Article 11 of the Code of Criminal Procedure contains the law governing writs
in Texas.

Article 43.141 governs the setting of execution dates.

Article 46.05 governs competency to be executed proceedings.

Article 64 governs post-conviction DNA testing.

The Texas Rules of Appellate Procedure govern appellate practice in Texas.

Question 15

I am confined on a non-capital felony. How do I challenge my conviction
or sentence?

Accepted Answer

Article 11.07 governs writs of habeas corpus seeking relief from final felony
convictions. Please note that Texas Rule of Appellate Procedure 73.1 requires
that all Article 11.07 applications be on a form prescribed for that purpose by
the Texas Court of Criminal Appeals.

Question 16

Where can I get help with filing a writ in a non-capital case?

Accepted Answer

Texas courts may appoint counsel to help an indigent person litigate a non-
capital writ, see, e.g., Tex. Code Crim. Proc. art. 11.07 sec. 3, and are
empowered to appoint counsel to represent indigent persons in any criminal
proceeding where the interests of justice require it. See Tex. Code Crim. Proc.
art. 1.051(c).

In addition, there are other organizations in the state that may be able to help.
The Harris County Public Defender represents a limited number of persons
convicted in that county on post-conviction writs. In addition, the Innocence
Project of Texas and innocence clinics housed within Texas law schools may
be able to help.

Frequently Asked Questions