EX PARTE RUSSELL v. << (2024)

ORDER

Applicant was convicted of failure to register as a sex offender and sentenced to eight years’ imprisonment. He did not file a direct appeal. Applicant, through habeas counsel, filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.

The trial court has issued findings of fact and conclusions of law, recommending dismissing or denying habeas relief. However, it appears that Applicant has not properly verified the prescribed form. If the application has not been properly verified, it is non-compliant with the requirements and will be dismissed as such.

To file an Article 11.07 writ application, an applicant must use the Article 11.07 form. Id. As stated in the form's definitions and instructions, the form must be signed and verified either by the applicant or by a petitioner filing on the applicant's behalf. This, in turn, means that the verification signature must be: (1) a “wet” signature, especially if the signing is done before a notary; or (2) a digital signature.¹ “Verifying” a document, in the legal sense, is swearing to it. “Signing” a document with a “/s/” signature or applying a “plain” electronic signature (that anyone could insert) does not rise to the level of “swearing to” implied by our verification requirements.

In this case, it does not appear that habeas counsel's signature on the application is either a wet signature or a digital signature. Indeed, habeas counsel's signature is practically identical in several documents filed with this Court, while the notary's signature ² appears to be a wet signature each time - it appears in different ink and has an expected variance in the signature. Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. Tex. Code Crim. Proc. art. 11.07, § 3(d). The trial court shall obtain a response from habeas counsel and the notary who certified that the signature was subscribed and sworn to in her presence. In developing the record, the trial court may use any means set out in Article 11.07, § 3(d).

The trial court shall make findings of fact and conclusions of law as to whether habeas counsel properly verified this application. The trial court shall make findings of fact and conclusions of law as to whether the notary properly certified counsel's signature on the application. The trial court may make any other findings and conclusions that it deems appropriate in response to this inquiry.

The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See Tex. R. App. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court.

FOOTNOTES

1.   A “wet” signature is a hand-signed ink signature; a digital signature is a type of electronic signature that works with encryption technology to verify the signer's identity and authenticity of the document.

2.   It appears each “signature” was notarized by the same person.

Per curiam.