The applicant filed this subsequent application for writ of habeas corpus under Texas Code of Criminal Procedure Article 11.071. He alleges that he is mentally retarded, that the United States Constitution prohibits execution of the mentally retarded, and that the legal basis for this claim, Atkins v. Virginia, 563 U.S. 304 (2002), was not available when his initial application was filed. According to the plain meaning of Article 11.071, the applicant's case should be remanded for the convicting court to determine the merits of his claim. Because a majority of the Court dismisses the application as an abuse of the writ, I dissent.

It is well settled that when we interpret a statute enacted by the legislature, we seek to effectuate the collective intent or purpose of the legislators who enacted the legislation. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). We do so because our duty under the state constitution is to interpret the law, not to make the law Ibid. (citing Tex. Const. art. II, § 1).

The first step in statutory construction, therefore, is to look at the literal text of the statute in question and attempt to discern the meaning of the text when the legislature enacted the law. Ibid. If the plain meaning of the statutory text, in light of the established canons of construction, should have been plain to the legislators who voted on it, we ordinarily give effect to that plain meaning. Ibid. If the meaning of the language is clear, we do not look beyond the words of the statute to extratextual sources to interpret it. Ibid.

The exception to the general rule comes into play when applying the statute's plain meaning would lead to an absurd result that the legislature could not possibly have intended. In that case, we should not apply the language literally. Ibid. This limited exception does not intrude on the legislature's constitutionally granted authority to enact laws; we assume that the legislature would not intend an absurd result. Ibid.

When interpreting the statute according to its plain meaning would lead to an absurd result or when the meaning of the statute is not clear, we resort to extratextual factors to effect the collective intent of the legislature. Id. at 785-86.

If we apply these principles to Article 11.071, the decision the Court makes today does not make sense. Article 11.071 sets out the requirements for review of the merits of a subsequent application in a case in which the death penalty has been imposed. Subsequent applications, although they are filed in the convicting court, must be forwarded for this Court to determine whether the applicant meets the requirements of section 5. Tex. Code Crim. Proc. art. 11.071, §5(c). ⁽¹⁾ If the requirements of section 5 are not met, then the application is dismissed as an abuse of the writ. Ibid.

According to the plain meaning of section 5, a subsequent application filed under Article 11.071 may be dismissed only if the application fails to satisfy section 5(a). That subsection names three reasons for allowing the review of a subsequent writ: (1) when the factual or legal basis for the claim was unavailable on the date the prior application was filed; (2) when but for a violation of the federal constitution no rational jury could have found the applicant guilty beyond a reasonable doubt; and (3) when but for a federal constitutional violation no rational jury could have imposed the death penalty. ⁽²⁾

According to section 5(d), the legal basis of the claim was unavailable if "it was not recognized by or could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or before that date." Tex. Code Crim. Proc. art. 11.071, § 5(d).

If we determine that an applicant has met one of the exceptions in section 5, the case is remanded for the convicting court to determine the merits of the case. Tex. Code Crim. Proc. art. 11.071 § 6(b). ⁽³⁾ It is the convicting court, not this court, that decides whether any "controverted, previously unresolved factual issues material to the legality of the applicant's confinement exist . . . ." Tex. Code Crim. Proc. art. 11.071 § 8(a). We review the convicting court's findings, but we do not make findings ourselves. Tex. Code Crim. Proc. art. 11.071, § 11.

The plain meaning of the language in Article 11.071 dictates that, if the applicant meets one of the section 5 exceptions, then the application is remanded to the convicting court to determine whether there are unresolved factual issues regarding the legality of the applicant's confinement. Applying the language according to its plain meaning does not lead to absurd results.

Traditionally, as this Court noted in Manzi v. State, 88 S.W.3d 240 (Tex. Crim. App. 2002), appellate courts do not determine questions of fact. See id. at 243. In Manzi, the trial court resolved a motion to suppress evidence solely on the basis of opposing affidavits. Id. at 241. Even though the trial court was not in an appreciably better position to determine who was telling the truth, the Court concluded, "[i]f the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as trier of fact, it would have weighed the evidence differently." Id. at 243. Trial courts are the traditional finders of facts, and this Court does not hear evidence. See ibid.; Ex parte Rodriguez, 169 Tex. Crim. 367, 334 S.W.2d 294 (1960).

Section 5 contains a procedural bar to review of the merits of a subsequent application. It also contains exceptions to the procedural bar, which includes when the legal basis of the claim was unavailable at the time the initial writ application was filed. Meeting the section 5 exception puts the applicant back in the procedural position that he was in before he filed his initial application. And that is all we have the authority or jurisdiction to decide in this case until after it is remanded for findings and conclusions from the convicting court.

Considering the plain meaning of Article 11.071, it is puzzling that the Court chooses to dismiss this case rather than remand to the trial court. The initial application was filed in the convicting court January 29, 1999. We denied relief February 9, 2000. The United States Supreme Court handed down its opinion in Atkins June 20, 2002. In Atkins, the Supreme Court reversed its prior holding in Penry v. Lynaugh, 492 U.S. 302 (1989), to hold that it violates the Eighth Amendment to the United States Constitution to execute a person who is mentally retarded. Atkins, 536 U.S. at ___, 122 S. Ct. at 2252.

The applicant filed his subsequent application with the convicting court. In it he alleges a claim, the legal basis of which was unavailable when he filed his initial application. He alleges that he is mentally retarded and that the Eighth Amendment to the United States Constitution prohibits the execution of people who are mentally retarded. He also alleges that the legal basis for his claim was unavailable when he filed his initial application for writ of habeas corpus.

Because the Supreme Court overturned its precedent after the applicant filed his initial application, the legal basis for the claim was unavailable at that time. See Tex. Code Crim. Proc. art. 11.071, § 5(d). Therefore, the application should be remanded to the trial court to determine whether "controverted, previously unresolved factual issues material to the applicant's confinement exist . . . ." We have done so in other cases. See, e.g., Ex parte Van Alstyne, 33,801-02 (remanded Feb. 13, 2003); Ex parte Taylor, 48,498-02 (remanded Jan. 21, 2003); Ex parte Modden, 11,364-05 (remanded Sep. 11, 2002); Ex parte Davis, 40,339-05 (remanded Aug. 9, 2002); Ex parte Clark, 37,288-02 (remanded Nov. 18, 2002); Ex parte Briseno, 29,819-03 (remanded Jul. 10, 2002). The law dictates that we do the same in this case.

Because I would grant the applicant's stay of execution and remand the case to the convicting court, I dissent.

Filed: February 24, 2003.

Do Not Publish.

1. On receipt of the copies of the documents from the clerk, the court of criminal appeals shall determine whether the requirements of Subsection (a) have been satisfied. The convicting court may not take further action on the application before the court of criminal appeals issues an order finding that the requirements have been satisfied. If the court of criminal appeals determines that the requirements have not been satisfied, the court shall issue an order dismissing the application as an abuse of the writ under this section.

Tex. Code Crim. Proc. art. 11.071, § 5(c) (emphasis added).

2. The full text of section 5(a) reads:

If a subsequent application for a writ of habeas corpus is filed after filing an initial application, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:

(1) the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article or Article 11.07 because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application;

(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt; or

(3) by clear and convincing evidence, but for a violation of the United States Constitution no rational juror would have answered in the state's favor one or more of the special issues that were submitted to the jury in the applicant's trial under Article 37.071 or 37.0711.

Tex. Code Crim. Proc. art. 11.071 § 5(a). The legal basis for a claim is unavailable if . . .

3. The text of section 6(b) reads:

If the convicting court receives notice that the requirements of Section 5 for consideration of a subsequent application have been met, a writ of habeas corpus, returnable to the court of criminal appeals, shall issue by operation of law.