Brad D. Levenson

Before becoming the Director of the Office of Capital Writs, Brad Levenson was a Deputy Federal Public Defender in the Capital Habeas Unit of the Federal Public Defender’s Los Angeles Office. There, he represented clients in state and federal court capital post-conviction proceedings. Brad graduated from Southwestern University School of Law in Los Angeles and received his undergraduate degree from New York University. He is also a member of the California bar.

Introduction to the Office of Capital Writs

The Office of Capital Writs (OCW) was created by the 81st Legislature in 2009 and officially opened on September 1, 2010. The OCW is a capital post-conviction office charged with representing death-sentenced persons in state post-conviction habeas corpus and related proceedings.

The Agency is located in Austin, Texas, and is housed in the Stephen F. Austin Building, steps away from the State Capitol Building and the Court of Criminal Appeals. The OCW, an independent state agency that reports directly to the Legislature, is currently staffed with five attorneys, two investigators, and two support staff members.

In addition to its full-time staff, the OCW has joined with law schools throughout the country in creating an internship program. To date, the OCW has worked with students from the following law schools: University of Texas, Harvard, University of Georgia, University of San Francisco, and the University of Wisconsin. The OCW has also partnered with the University of Texas at Austin School of Social Work. Students at the School of Social Work, both master’s level and bachelor’s level, are eligible to spend a semester with the OCW as investigative interns.

Based on its statutory mandate, the OCW is appointed to cases throughout Texas. Currently the office has cases in the following counties: Brazos, Dallas, Ft. Bend, Galveston, Harris, Harrison, Tarrant, and Travis. However, the OCW’s clients are housed on death row at the Polunsky Unit in Livingston, Texas—about a four-hour drive from Austin. OCW attorneys and investigators travel to death row two to three times a month to visit their clients.

Before the establishment of the OCW, state district court judges appointed post-conviction habeas counsel from a list of qualified local counsel. Since September 1, 2010, district court judges must appoint the OCW as post-conviction counsel. See Tex. Code of Crim. Proc. Art. 11.071, § 2(c). The OCW may turn down the appointment for a number of reasons, including if a conflict of interest exists or if the office has insufficient resources to provide adequate representation. See Tex. Govt. Code § 78.054(a). To date the OCW has not turned down any appointments.

For purposes of work load management, the OCW begins to gather information on cases even before a capital death sentence is rendered. To that end, the OCW maintains a list of individuals charged with a capital crime, and begins to gather information on the defendant and the parties involved. If and when the defendant is convicted and sentenced to death, the OCW will contact the trial attorneys to introduce itself and to set up a time to collect the trial files. (Realizing the strain of a capital trial and the need to prepare final billing vouchers, the OCW usually makes file requests 30 days in advance of file collection.) OCW attorneys like to collect the files in person so that they may sit down with counsel and talk about the case—OCW attorneys like to meet multiple times with defense counsel as the writ application is being prepared so that defense counsel can be kept informed regarding the actions being undertaken by the OCW.

The OCW will not only collect trial counsel’s file, but will also arrange for collection of the files in the possession of the mitigation specialist and the fact investigator. The OCW will also contact the defense team experts and arrange for collection of any material in their possession.

A writ application is filed by the OCW approximately one and a half to two years after the date of conviction (the time line is based upon the date the reporter’s record is completed, the appellate direct appeal opening brief is filed, and the state’s response on appeal is filed). During this time period of 18 to 24 months, the OCW will investigate the case, interview witnesses, hire experts, and draft the application.

The OCW is also authorized to file successor applications in state court. In the last ten months, the OCW has filed two successor applications in the CCA on behalf of clients with a scheduled execution date. Both applications were denied by the CCA and ultimately the United States Supreme Court. Sadly, both clients were executed.

In addition to filing post-conviction habeas applications, OCW attorneys are also available to advise trial counsel and appointed habeas counsel (from the prior appointment process) on legal matters as they arise. And starting this year, OCW attorneys are available to teach at capital-related trainings and seminars.

The OCW’s website is http://www.ocw.texas.gov. The website contains a listing of all OCW staff, their bios, and contact information.