EX PARTE JOE LUNA (other)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. WR-70,511-01
EX PARTE JOE LUNA
ON NOTICE OF NO APPLICATION FOR WRIT OF HABEAS CORPUS
FILED IN CAUSE NO. 2006-CR-0033 
IN THE 379TH JUDICIAL DISTRICT COURT 
BEXAR COUNTY 
Per Curiam.
O R D E R

This case is before us because no application for writ of habeas corpus has been filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071. (1)

On March 9, 2006, the trial court appointed Suzanne Kramer to represent applicant in a post-conviction writ of habeas corpus under Article 11.071. On August 15, 2007, the State filed in this Court its brief on applicant's direct appeal. Pursuant to Article 11.071, 4(a), counsel should have filed applicant's application for writ of habeas corpus in the convicting court no later than October 1, 2007. If a motion for extension was timely filed and granted, then applicant's application would have been due in the convicting court no later than December 28, 2007. Art. 11.071, 4(b).

In August 2008, it was brought to the attention of this Court that no application had been filed on applicant's behalf. Pursuant to Article 11.071, 4A, because it was well past the statutory due date and no application had been filed, we ordered Kramer to file an affidavit with this Court setting out good cause for her failure to timely file the application. In her affidavit, counsel basically admits that she misunderstood the law, and that her misunderstanding resulted in the current situation. However, we find that the magnitude of counsel's misunderstanding is inexcusable and does not show good cause. Counsel is in contempt of Court. Within 30 days of the date of this order, Suzanne Kramer is ordered to pay to this Court a fine in the amount of $ 250.00. Further, although the trial court informed this Court that no payments have been made to counsel for any work done in connection with the filing of a writ application in this case, we hold that, should Bexar County have any outstanding claims from Kramer for attorney's fees in this case, they shall not be paid.

Michael Gross is appointed to represent applicant and to file a writ of habeas corpus on applicant's behalf. Counsel is ordered to file the application in the trial court on or before the 270th day from the date of this order.

IT IS SO ORDERED THIS THE 1ST DAY OF OCTOBER, 2008.

Do Not Publish

1. Unless otherwise indicated all references to Articles refer to the Code of Criminal Procedure.