I respectfully dissent. The majority concludes that Tex. Code Crim. Proc. art. 11.071 does not require that an applicant be competent to assist his counsel in filing an application for a writ of habeas corpus. I disagree. ⁽¹⁾

It is true, as the majority notes, that our code of criminal procedure "contains no mention of a defendant's incompetence to bring habeas corpus proceedings." Ante, at ___ (slip op. at 3). Citing to other provisions of art. 11.071 that are not directly related to the issue of competence, ⁽²⁾ the majority concludes that such competence is not statutorily required.

That, however, is not the end of our inquiry. Although art. 11.071 does not explicitly contain a provision dealing with an applicant's competence, it does, as the majority acknowledges, ⁽³⁾ mandate that "counsel shall investigate expeditiously. . .the factual and legal grounds for the filing of an application for a writ of habeas corpus." Tex. Code Crim. Proc. art. 11.071, § 3(a). While it is not necessarily so in every habeas application, the circumstances of a particular application may dictate that in order for counsel to be able to fully comply with this provision of the code, he must be able to communicate with and be assisted by the applicant. That is, an applicant's competence to assist his/her counsel may be necessary in order for counsel to comply with art. 11.071, § 3(a). In such a case, our code of criminal procedure does implicitly and necessarily require that an applicant be competent to assist his counsel in filing a writ application.

As at least two other state supreme courts have recognized, an applicant's ability to communicate with counsel may be particularly important in the development of factual grounds. See Carter v. State, 706 So. 2d 873, 875 (Fla. 1997); State v. Debra A.E., 523 N.W.2d 727, 732 (Wis. 1994). However, not all habeas petitions will necessarily require development of grounds which require counsel to communicate with and be assisted by applicant. Therefore, following the rationale of the Florida Supreme Court in Carter, I would hold that a habeas court be required to hold a competency hearing when an applicant has shown that there are "specific factual matters at issue that require applicant to competently consult with counsel," i.e., "when there are reasonable grounds to believe that a capital defendant is incompetent to proceed in postconviction proceedings in which factual matters are at issue, the development or resolution of which require [applicant's] input." Carter, 706 So. 2d at 875. Such an approach would aid in ensuring adherence to the legislative directive of art. 11.071, § 3(a). ⁽⁴⁾

In the instant application, counsel for applicant filed a motion with the habeas court for a competency hearing. The court did not rule on the motion by the time the writ was filed with this court. Therefore, I would remand this cause to the habeas court to give applicant the opportunity to demonstrate that there are specific factual matters at issue which would require that applicant be competent to consult with counsel. Because the court does not do so, I dissent.

Johnson, J.

Date Delivered: September 13, 2000

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1. The majority also finds that such competence is not constitutionally required. Because I find that it is statutorily required, I do not reach the constitutional issue.

2. Ante, at ___ (slip op. at 3-5).

3. Ante, at ___ (slip op. at 4).

4. Though based on a legislative, rather than constitutional, mandate, this approach is also generally consistent with our recent decision in Potter v. State, 21 SW.3d 290, ___ (Tex. Crim. App. 2000), in which we held that within the context of extradition proceedings, "the accused must be sufficiently competent to discuss with his counsel facts relating to the limited defenses [of identity and presence] that may be raised."