2023 Texas Statutes › Code of Criminal Procedure › Title 1 - Code of Criminal Procedure › Chapter 11 - Habeas Corpus › Article 11.071. Procedure in Death Penalty Case › Section 5. Subsequent Application

Sec. 5. SUBSEQUENT APPLICATION.    (a)  If a subsequent application for a writ of habeas corpus is filed after filing an initial application, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:
(1)  the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article or Article 11.07 because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application;
(2)  by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt; or
(3)  by clear and convincing evidence, but for a violation of the United States Constitution no rational juror would have answered in the state's favor one or more of the special issues that were submitted to the jury in the applicant's trial under Article 37.071, 37.0711, or 37.072.
(b) If the convicting court receives a subsequent application, the clerk of the court shall:
(1) attach a notation that the application is a subsequent application;
(2) assign to the case a file number that is ancillary to that of the conviction being challenged;  and
(3) immediately send to the court of criminal appeals a copy of:
(A) the application;
(B) the notation;
(C) the order scheduling the applicant's execution, if scheduled;  and
(D) any order the judge of the convicting court directs to be attached to the application.
(c) On receipt of the copies of the documents from the clerk, the court of criminal appeals shall determine whether the requirements of Subsection (a) have been satisfied.  The convicting court may not take further action on the application before the court of criminal appeals issues an order finding that the requirements have been satisfied.  If the court of criminal appeals determines that the requirements have not been satisfied, the court shall issue an order dismissing the application as an abuse of the writ under this section.
(d) For purposes of Subsection (a)(1), a legal basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the legal basis was not recognized by or could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or before that date.
(e) For purposes of Subsection (a)(1), a factual basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date.
(f) If an amended or supplemental application is not filed within the time specified under Section 4(a) or (b), the court shall treat the application as a subsequent application under this section.