An Unfulfilled Promise:

Assessing the Efficacy of Article 11.073

An Unfulfilled Promise: Assessing the Efficacy of Article 11.073 examines the effectiveness of Texas Code of Criminal Procedure Article 11.073, a law intended to grant relief to those wrongfully convicted based on flawed forensic evidence. Despite the law's intent, Texas Defender Service's systematic review of over 70 cases reveals that the law is not functioning as the Texas Legislature intended. Due to restrictive interpretations by the Texas Court of Criminal Appeals and procedural barriers, many innocent people remain imprisoned without the relief they deserve. This report outlines key issues with the law and recommends legislative changes to ensure it truly provides a pathway to justice for the wrongfully convicted.

Key Findings From The Report

  • The Statute Does Not Go Far Enough to Protect Innocent People Who Were Convicted Based on Junk Science
    • At the heart of 11.073 is the Texas Legislature’s recognition that an innocent person convicted based on flawed forensic evidence should be able to overturn their conviction if they can show (1) that the evidence was flawed and (2) that without this flawed evidence,the jury would have found them “not guilty.” But in practice, the Texas Court of Criminal Appeals (CCA) does not apply the legal standard in the actual statute. Instead, it usually only grants relief if a person can show evidence strong enough to eliminate any rational basis for their conviction, which places an impossibly high burden on innocent people convicted based on flawed forensic evidence
  • The CCA Largely Restricts Relief to Cases Involving New DNA Evidence, Even Though Most Wrongful Convictions Are Based On Other Types of Flawed Forensic Evidence
    • The CCA primarily grants relief in cases involving DNA evidence, ignoring many other cases involving false forensic evidence. DNA claims are significantly overrepresented in successful applications, constituting 73% of successful claims but only 43% of claims raised. This is concerning because nationwide data shows that false DNA evidence is only involved in a relatively small number of wrongful convictions. Of the 3,470 exonerations in the U.S. since 1989, only 594 involved DNA evidence.
  • The CCA is Not Granting Relief to Death-Sentenced People Under 11.073
    • The CCA has never granted 11.073 relief to a person sentenced to death, as compared to granting relief to 31% of people who seek relief and are serving non-death sentences. Of the 25 applications filed by people sentenced to death, most—64%—were dismissed or denied by an order no longer than a page and with no substantive discussion. Applications from death-sentenced people constituted 34% of all applications filed. Given the historically high rates of exonerations in capital cases, the total failure of the CCA to grant 11.073 claims for death-sentenced people—compared to nearly a quarter of all other people—is especially concerning. The deadly consequences of this pattern are clear: People may be executed following convictions that rest on faulty science because they are unable to obtain relief under 11.073.
  • People Without Counsel are Functionally Barred from Meaningfully Seeking Relief Under 11.073
    • People who represent themselves in their 11.073 applications are effectively denied access to relief under 11.073 due to their lack of legal counsel. Of the 74 applications filed and adjudicated between September 2013 and December 2023, 19 were filed by people without lawyers. Of those 19 people without lawyers, only one has ever been granted relief, a stark drop off from the 25% of people with counsel who receive relief.
  • Procedural Bars Prevent Large Numbers of 11.073 Applications from Being Considered on the Merits
    • Despite having valid claims, many people who seek relief under 11.073 never receive consideration of their claims on the merits because of procedural issues. These barriers especially impact people sentenced to death and people without lawyers. Of the 74 applications filed, 28 were dismissed based on procedural bars. This pattern disproportionately affects people sentenced to death and people without lawyers, two particularly vulnerable groups, who combined make up 23 of 28 procedurally barred applicants, or 82%.

Judge Elsa Alcala

Served on the Texas Court of Criminal Appeals from 2011 to 2018.

“Texas Defender Service’s report impressively presents a comprehensive examination of the more than 70 cases involving the junk science statute that were decided by the Court of Criminal Appeals.”

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