EX PARTE SLY v. << (2026)

Reconsideration of dismissal of habeas corpus denied.

DISSENTING OPINION

Applicant filed a compliant original habeas application but later filed a non-compliant amended habeas application. The non-compliant amended application was filed after: (1) the trial court issued findings of fact, (2) the case was forwarded to this Court, (3) we had given Applicant 180 days to conduct further investigation and amend his application, and (4) we had denied a further request for extension of time. The amended application was likely timely under the prisoner mailbox rule but was received outside of the 180-day period. The Court dismissed the habeas application (both original and amended) as non-compliant. The State has suggested that we reconsider our dismissal because the aforementioned events implicate our late-stage dismissal rules under Ex parte Speckman.¹ I agree. In allowing non-compliance in filing an amended application to effectively result in a late-stage dismissal of the original application, the Court ran afoul of Speckman.

Under at least some circumstances, a non-compliant late-stage amended application should be split from the original application for disposition purposes. Under circumstances like those present here, I would issue an order giving Applicant 15 days to turn his non-compliant amended application into a compliant one, if he so desires. If, after such an order, he failed to timely make the application compliant, I would split the application dispositions—dismissing the amended application and, in accordance with the trial court's findings, denying relief on the original application. The denial of the original application would then count as a final disposition of an initial application for purposes of the subsequent-writ bar.² If he timely made his amended application compliant under my proposed order, I would consider the case further, though I express no opinion on what I would ultimately decide.

I. BACKGROUND

On April 4, 2025, Applicant filed a compliant habeas application in the trial court. On September 8 of that year, the State filed proposed findings. On September 25, the habeas trial court issued an order adopting the State's findings. The next day, the case was transmitted to this Court. On October 31, we received from Applicant a motion for extension of time to conduct further investigation. We dismissed that motion, but in a letter dated December 4, 2025, we informed Applicant that we would take no action on the application for 180 days (from the date of the letter) to allow Applicant time “to file amendments and supplements with the trial court.”

On May 11, 2026, we received from Applicant a second motion for extension of time. We denied that motion. On June 8, we received from Applicant a letter saying that he had mailed an amended habeas application to the Tarrant County District Clerk on June 1. The envelope the letter came in was postmarked June 3, 2026. On June 9, the district clerk stamped Applicant's amended habeas application as filed. The record does not contain a legible postmark date for the mailing of the amended application. Applicant filled out the unsworn-declaration jurat for the amended application, which purported to be executed on June 1, but failed to sign it. His failure to sign the jurat rendered his amended application non-compliant. We subsequently dismissed Applicant's entire application, including both his original and amended filings, for noncompliance.

II. ANALYSIS

In Speckman, we held that “late-stage motions to dismiss without prejudice will, in general, be denied in the absence of good cause for the dismissal.”³ We reasoned that a policy of liberally permitting late-stage dismissals without prejudice “is largely inconsistent with the Legislature's enactment of a procedural scheme envisioning a single bite at the habeas apple that fully and finally resolves all habeas claims.”⁴ We further concluded that “liberally permitting late-stage dismissals could result in considerable wasted judicial resources” and “would defeat the Legislature's efforts at creating an efficient system for the resolution of habeas complaints.”⁵

What happened in the present case raises the same concerns. Applicant did not ask for a late-stage dismissal, but we essentially gave him one. In doing so, we also effectively gave him the motion for extension of time that we had previously denied. And we did this after the habeas trial court fully addressed the claims in his original compliant application. With Applicant apparently on the verge of losing (under the trial court's findings), we effectively gave him a do-over—another bite at the apple. And in doing so, we rendered the trial court's effort meaningless and negated our own decision not to grant him an extension. So we wasted judicial resources and mucked up the efficiency of the system.

I suspect Applicant did not intend to cause a late-stage dismissal. The prison-mailbox rule deems a matter filed by an incarcerated inmate when he deposits the matter with the prison authorities,⁶ and it is likely that the amended application was timely filed (within the 180 days) under that rule.⁷ Applicant likely filed at nearly the last possible moment because he was running out of time. His failure to sign the jurat was likely inadvertent, perhaps caused by a frantic, last-minute rush to get his application mailed. But if we allow this sort of situation to occur, then someone could intentionally file a non-compliant application to obtain a late-stage dismissal. And while Applicant likely did not harbor that nefarious intent, his procrastinating and careless conduct is not a reason to give him a windfall.

The best solution in Applicant's case is to afford Applicant a brief time-window to cure the defect in his pleadings. Had Applicant filed his amended application significantly earlier, I would have been willing to give him more time. If for example, a habeas applicant, after being given 180 days, took only 60 days to file his amended application, it would be fair to give him the rest of the 180-day period to cure a defect. Ideally, when faced with a late-stage amendment, this Court should quickly notify the habeas applicant of the defect and afford him an amount of time (that comports with fairness under the circumstances) to cure it. Even accepting Applicant's assertion that he mailed his amended application on June 1, he did so within a mere day of the deadline. Had we handled this better at the time, we should have given him 15 days to cure the defect, so as to minimize any delay in processing his application. The defect at issue—failing to sign the verification form—could have been easily and quickly fixed. And we could have sent him a copy of the page containing the jurat, so that he could have simply signed it and sent it back to us. In all likelihood, Applicant would have signed it and returned it with dispatch. If he failed to do so, however, then we could legitimately conclude that he was unwilling to swear to the allegations, and proceed accordingly.

The above discussion assumes that the habeas applicant has not clearly flouted any deadlines. If, for example, a habeas applicant, after being given 180 days, filed a habeas application 230 days later, I would not be inclined to give him an opportunity to cure the defect. He would certainly have a lot of explaining to do to persuade me otherwise. And if he could not, then I would dismiss his defective amended application and dispose of his original application as if it had been the only one filed. But that is not this case.

And while the present case has been delayed because we did not handle the situation in an ideal way, this is the first time we have faced this situation, so our fumbling of it was understandable. I would issue the order that I now think we should have issued—giving Applicant 15 days to cure the defect—and I would enclose a copy of the page containing the jurat to make quick compliance easy. I would grant reconsideration to do so.

I respectfully dissent.

FOOTNOTES

1.   537 S.W.3d 49 (Tex. Crim. App. 2017).

2.   See Tex. Code Crim. Proc. art. 11.07, § 4(a) (“If a subsequent application for writ of habeas corpus is filed after final disposition of an initial application ․”); Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997). And because the original application raised claims that unquestionably constituted challenges to the conviction, its denial would cause any later-filed application to be treated as a subsequent application. See Ex parte Evans, 964 S.W.2d 643 (Tex. Crim. App. 1998).

3.   Speckman, 537 S.W.3d at 52.

4.   Id.

5.   Id.

6.   Campbell v. State, 320 S.W.3d 338, 343-44 (Tex. Crim. App. 2010).

7.   His allegation that he mailed the amended application on June 1, if true, would make it timely, because June 2 would have been the 180th day after the date of our December 4 letter. (Applicant asserted that June 4 would have been timely, but he forgot that four of the intervening months contain 31 days, with February subtracting two days, so that 180 days comes two days earlier than the same date of the month.) The postmark on his envelope for the letter he sent to us was just one day past the June 2 deadline, and given his incarceration, almost certainly means he deposited his letter with the prison authorities by June 2. If he had already mailed his amended habeas application to the trial court when he sent his letter to us, then he almost certainly met the deadline. Of course, it is possible that he lied in his letter about when the amended habeas application was mailed, and he did not sign the jurat swearing to the truth of the contents of his habeas application, which means he has not sworn to the jurat being executed on June 1. Nevertheless, the documentation before us points in favor of the filing being timely.