Lead Opinion
OPINION
delivered the opinion of the Court,
Applicant A1 Smith waited over ten years to claim in an application for a writ of habeas corpus that his rights to direct appeal and effective assistance of counsel were denied. Although the State did not plead laches in its answer to Smith’s application, we hold that a court may consider sua sponte whether laches should bar an applicant’s claim. We further hold that the current record supports a sua sponte laches inquiry. Smith’s application is remanded to the habeas court to give Smith an opportunity to explain his delay and for the entry of findings of fact and conclusions of law.
I.
In June 2002, a jury found Smith guilty of assault on a public servant, and the judge sentenced him to a term of eight years’ confinement to run consecutively with another conviction. Appellate counsel was subsequently appointed, but no appeal was taken. In March 2013, Smith filed an application for a writ of habeas corpus pursuant to Texas Code of Criminal Procedure Article 11.07 alleging that he was denied his rights to appeal and effective
Smith’s application was forwarded to this Court without any findings of fact and conclusions of law entered by the habeas judge. We remanded the application to the habeas court to make findings and conclusions as to “whether [Smith] was denied his right to a meaningful appeal because [Smith’s] counsel failed to timely file a notice of appeal.”
II.
We have long acknowledged that the writ of habeas corpus is of common-law origin and governed by common-law equitable principles.
The concept that delay in seeking relief may, in certain instances, adversely affect an applicant’s request for habeas corpus relief was first expressed in terms other than a formal recognition of the equitable defense of laches. In Ex parte Young, we stated that, “While we do not desire to make an absolute rule concerning habeas corpus petitioners who do not assert their legal remedies promptly, we nevertheless feel that in some instances, a petitioner’s delay in seeking relief can prejudice the credibility of his claim.”
Our first direct exposition on the laches doctrine’s effect on an applicant’s request for habeas corpus relief is found in Ex parte Cando. In addressing the State’s pleaded theory of laches, the Cardo Court recognized that an applicant’s claim for relief had never before been denied under the laches doctrine and the Court has had no desire to impose upon an applicant a
The doctrine of laches is based upon the maxim that equity aids the vigilant and not those who slumber on their rights. It is defined as neglect to assert right or claim which, taken together with lapse of time and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity. Also, it is the neglect for an unreasonable and unexplained length of time under circumstances permitting diligence, to do what in law, should have been done.17
Concluding that “the doctrine of laches is a theory which we may, and should, employ in our determination of whether to grant relief in any given 11.07 case,” this Court in essence adopted the federal approach found in Rule 9(a) of the Rules Governing 28 U.S.C. § 2254 Cases.
Just two terms ago in Ex parte Perez, we abandoned Carrio’s embrace of the federal approach in favor of a return to the common law’s equitable principles that animate the laches doctrine.
“[T]he writ of habeas corpus is an extraordinary remedy, any grant of which must be underscored by elements of fairness and equity.”
For the same reasons that we abandoned the federal approach to laches, we now hold that a court may sua sponte consider and determine whether laches should bar relief. In a civil suit in equity, the United States Supreme Court stated long ago that,
To let in the defence that the claim is stale, and that the bill cannot, therefore, be supported, it is not necessary that a foundation shall be laid by any averment in the answer of the defendants. If the ease, as it appears at the hearing, is liable to the objection by reason of the laches of the complainants, the court will, upon that ground, be passive, and refuse relief....
A court of equity, which is never active in giving relief against conscience or public convenience, has always refused its aid to stale demands where a party has slept upon his rights, and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. Where these are wanting, the court is passive, and does nothing. Laches and neglect are always discountenanced; and, therefore, from the beginning of this jurisdiction there was always a limitation to suits in this court.30
More recently, the Supreme Court expressed a similar sentiment: “Among [the governing equitable principles of habeas corpus] is the principle that a suitor’s conduct in relation to the matter at hand may disentitle him to the relief he seeks. Narrowly circumscribed, in conformity to the historical role of the writ of habeas corpus as an effective and imperative remedy for detentions contrary to fundamental law, the principle is unexceptionable.”
Our holding should not be interpreted to suggest that all writ applications should be subjected to such scrutiny. Whether a habeas court properly raises laches calls for an elusive answer in the abstract. With its consideration' of the totality of circumstances, the nature of equity itself defies definitive parameters. However, the habeas court should act on its own sparingly, questioning only those applications demonstrating an excessive delay that undermines or obstructs the principles and virtues the criminal-justice system promotes.
Smith contends that permitting sua sponte consideration of laches is inappropriate because it discords with our statutes and that laches is considered an affirmative defense and must be pleaded by the State. Smith argues that a sua sponte review of laches conflicts with or is implicitly precluded by Texas Code of Criminal Procedure Articles 2.01 and 1.27. Article 2.01 provides, as Smith quotes, “It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done.” The argument goes that “the prosecutor may properly decide that, on the basis of [certain] information or even surmise, his or her ethical duty to ‘see that justice is done’ entails omitting laches from the pleadings.”
Smith next claims that habeas corpus proceedings are civil in nature, and as a result the pleading rules should be governed by the Texas Rules of Civil Procedure, namely Rule 94.
III.
While equity may ultimately require denying relief, it nonetheless requires giving the applicant an opportunity to explain his delay.
IV.
Smith was convicted of assault on a public servant in June 2002. Ten and a half years elapsed before Smith filed his March 2013 application for habeas corpus relief claiming that he was denied his right to appeal and effective assistance of appellate counsel. Relying on counsel’s affidavit, the habeas judge found that counsel had no independent recollection of the facts surrounding Smith’s appeal and counsel’s file did not contain a notice of appeal. From this, the habeas judge concluded that Smith’s right to appeal was denied and recommended that relief be granted.
From Smith’s application alone it appears quite clear that he was aware of his right to appeal. He states that he was advised of his right to appeal in July 2002. He further states that “On or about the 1st day of September, 2002” he “was concerned about his appeal and wrote to [the] State Counsel[] for Offenders regarding the stat[u]s of his appeal[.]”
A ten-and-a-half year delay is extraordinary. From the current state of the record and assuming Smith’s statements in his application are accurate, it is hard to escape the conclusion that he slept on his rights with full awareness of them. At a minimum, the delay is significant enough for this Court to justly ask- whether Smith’s claim should be precluded by lach-es.
Accordingly, we remand this application to the habeas court to make findings of
This application is held in abeyance pending further habeas-court proceedings.
. Ex parte Smith, Order, No. WR-79,465-01, 2013 WL 2731165 (Tex.Crim.App. June 12, 2013).
. Ex parte Smith, Order, No. WR-79,465-01, 2013 WL 6212199 (Tex.Crim.App. Nov. 24, 2013).
. Ex parte Perez, 398 S.W.3d 206, 210-11 (Tex.Crim.App.2013); Ex parte Gaither, 387 S.W.3d 643, 648 (Tex.Crim.App.2012).
. Plan and Powers of the Provisional Government of Texas, Ordinances and Decrees of the Consultation, Provisional Government of Texas, and the Convention: which Assembled at Washington, March 1, 1836 (Houston, Niles & Co. 1838), available at http://tarlton.law.utexas. edu/constitutions/dpppgtl 836/plan (last visited September 29, 2014).
. Bryan Garner, Black's Law Dictionary, 1845 (10th ed. 2014) ("A writ issued by a court exercising unusual or discretionary power. Examples are certiorari, habeas corpus, mandamus, and prohibition. — Also termed prerogative writ.").
. 2 Thomas Carl Spelling, A Treatise on Extraordinary Relief in Equity and at Law, § 1151 (Boston, Little, Brown & Co. 1893). Accord Ex parte Townsend, 137 S.W.3d 79, 81-82 (Tex.Crim.App.2004); Ex parte Wilcox, 128 Tex.Crim. 146, 79 S.W.2d 321, 321 (1935) ("Habeas corpus is an extraordinary writ, and the general rule is that it does not lie where relief may be had, or could have been procured by resort to another remedy.”).
. 1 Joseph Story, Commentaries on Equity Jurisprudence as Administered in England and America § 49 (Boston, Little, Brown & Co. 1918).
. See Ex parte Mines, 26 S.W.3d 910, 911 (Tex.Crim.App.2000).'
. See generally Tex.Code Crim. Proc. art. 11.01 et seq.; Tex.R.App. P. 73.1 et seq.
. See, e.g., Ex parte De Leon, 400 S.W.3d 83, 90 (Tex.Crim.App.2013) (citing, Shannon v. State, 708 S.W.2d 850, 851-52 (Tex.Crim.App. 1986), which concluded that fairness required specific performance, specifically a plea’s withdrawal, when a defendant successfully challenges a conviction); Ex parte Riley, 193 S.W.3d 900, 902 (Tex.Crim.App.2006) (finding that applicant's lack of notice of ability to file a petition for discretionary review did not rise to the level of ineffective assistance of counsel, but nonetheless granting relief on "a breakdown in the system”).
. Ex parte Mines, 26 S.W.3d at 914.
. See 2 A Treatise on Extraordinary Relief in Equity and Law § 1190 ("The real purpose for which habeas corpus was at first designed needs to be kept constantly in view in order to clearly understand the principles governing its use and the occasions when a party invoking it is entitled to relief though its instrumentality.”).
. 479 S.W.2d 45, 46 (Tex.Crim.App. 1972); accord Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App.2006).
. Ex parte Young, 479 S.W.2d at 46.
. Id. at 47.
. Ex parte Carrio, 992 S.W.2d 486, 487 (Tex. Crim.App.1999) (relying in part on Ex parte Young, 479 S.W.2d at 46).
. Id. at 487 n. 2 (citing Black's Law Dictionary 875 (6th ed.1990)).
. Ex parte Perez, 398 S.W.3d at 212.
. Id. at 212-13. See Ex parte Carrio, 992 S.W.2d at 487-88.
. 398 S.W.3d at 215.
. Id.
. Id. at 213-15.
. See id. at 216.
. Id. at 216.
. Id. at 218.
. Id. at 218.
. Id. at 216 (citing Ex parte Steptoe, 132 S.W.3d 434, 437-39 (Tex.Crim.App.2004) (Cochran, J., dissenting)).
. Id. at 217.
. Id. at 218 (citing Ex parte Scott, 190 S.W.3d 672, 675 (Tex.Crim.App.2006) (Cochran, J., dissenting) and Ex parte Blue, 230 S.W.3d 151, 170 (Tex.Crim.App.2007) (Keller, P.J., concurring)).
. Sullivan v. Portland & Kennebec R.R. Co., 94 U.S. 806, 811-12, 24 L.Ed. 324 (1876) (citations and quotations omitted).
. Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), overruled on other grounds by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).
. Steptoe, 132 S.W.3d at 437-38 (Cochran, J., dissenting).
. Id. at 438 (citing Custis v. United States, 511 U.S. 485, 497, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994)) (alterations omitted).
. Id. at 438-39
. Id. at 438. .
. Office of Court Administration, Annual Statistical Report for the Texas Judiciary, Fiscal Year 2013, 30 (2014), available at http://www. courts.state.tx.us/pubs/AR2013/cca/2-cca~ activity090113.pdf (last visited September 29, 2014)'.
. Cf. Day v. McDonough, 547 U.S. 198, 205-206, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006) (stating that the federal habeas corpus statute’s limitations period promotes judicial efficiency and' conservation of judicial resources, safeguards the accuracy of state-court judgments by requiring resolution of constitutional questions while the record is fresh, and lends finality to state court judgments within a reasonable time).
. John Norton Pomeroy, A Treatise on Equitable Remedies, § 21 (1905).
. Smith Br. at 8.
. Tex.R. Civ. P. 94 ("In pleading to a preceding pleading, a party shall set forth affirmatively ... laches ... and any other matter constituting an avoidance or affirmative defense.”).
. Ex parte Rieck, 144 S.W.3d 510, 516 (Tex. Crim.App.2004) ("Such proceedings are categorized as ‘criminal’ for jurisdictional purposes, and the Texas Rules of Civil Procedure do not ordinarily apply.”). But see Arnold v. State, 853 S.W.2d 543, 544 (Tex.Crim.App. 1993) (applying Rule of Civil Procedure 18(a) for judge recusals in criminal cases).
. See Tex.Code.Crim. Proc. art. 1.27 ("If this Code fails to provide a rule of procedure in any particular state of case which may arise, the rules of the common law shall be applied and'govem.”).
. Id. art.-11.07, §§ 3-7; Tex.R.App. P. 73.1 (providing an application must be on the form adopted by this Court, restricting the application’s contents, length, and typeface, and mandating a certificate of compliance and verification).
. See Ex parte Perez, 398 S.W.3d at 218.
. Smith Appl. Att. at 6.
. Id.
. See Ex parte Perez, 398 S.W.3d at 216 & n. 12 (generally accepting that an unexplained five-year delay will usually be considered unreasonable).
Dissenting Opinion
filed a dissenting opinion.
I disagreed with the majority when it expanded the doctrine of laches in writs of habeas corpus in Ex parte Perez, 398 S.W.3d 206, 219-20 (Tex.Crim.App.2013) (Meyers, J., dissenting), and I disagree with it again today. The majority is handicapping applicants and further aiding the State by not requiring the State to plead laches at all, but then forcing the applicant to show, in yet another court, why his application should not be barred.
This process is particularly unkind to those applicants who had no idea why their case was not being advanced in the courts, as occurred here. As a consequence of his counsel’s likely ineffective assistance, Applicant sat in jail for ten years before informing the courts that he never received his rightful appeal. Without a lawyer in jail with him, there is no reason an applicant should know the time limit for filing an application for a writ of habeas corpus. The majority talks in detail about using an equitable standard, but, considering that the alternative to filing a writ is being incarcerated, equity is clearly not on the side of applicants. And to excuse the State from having to assert laches at all, which may show that an application should be dismissed, further tips the balance of equity away from applicants. Further, there is nothing in the majority opinion that indicates what criteria one would follow in order to decide which cases warrant this sua sponte consideration. Reading the majority opinion, one can only draw the conclusion that this case is being returned for no reason other than the fact that a substantial amount of time has passed between the conviction and the application.
Instead of remanding this case for Applicant to explain his delay, we should be requiring the State to explain to us why it did not plead laches itself. Applicant now must overcome two burdens: proving he is not barred by laches, and proving he received ineffective assistance of counsel. Because I believe that the onus should be on the State and that we should not consider sua sponte whether laches bars an applicant’s claim, I respectfully dissent.
