Texas Attorney General Opinion: JM-608 Page: 2 of 3
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Honorable John B. Holmes, 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 run, the provision does provide that "the attorney
representing the state . . . shall have 15 days in which it may
answer." Id. 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 arid make the appropriate response if he
chose to do so. See Code Crim. Proc. art. 1.26 (statute should be
construed to ascertain legislative intent).
If we 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.C. 2252 (federal statute requires that notice be given to the
state attorney general prior to a hearing). We do not believe that
the legislature could have intended such an 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 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.
SUMMAR Y
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.
Very truly yours
J IM MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney Generalp. 2717.
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JM-608, text, December 30, 1986; (https://texashistory.unt.edu/ark:/67531/metapth273046/m1/2/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.