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.

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.

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).

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.