By Coleman H.B. No. 3156
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to defense and pretrial information gathering standards
1-3 for indigent people who are accused of crime.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subarticles 1.051(a)-(d), Code of Criminal
1-6 Procedure, are amended to read as follows:
1-7 Art. 1.051. Right to representation by counsel. (a) A
1-8 defendant in a criminal matter is entitled to be represented by
1-9 counsel in an adversarial judicial proceeding. The right to be
1-10 represented by counsel includes the right to consult in private
1-11 with counsel sufficiently in advance of <a> the adversary judicial
1-12 proceedings described in this Code to allow adequate preparation
1-13 for <the> each proceeding.
1-14 (b) For the purposes of this article and <Articles 26.04
1-15 and 26.05> Chapter 15A of this Code, "indigent" means a person who
1-16 is not financially able to employ counsel.
1-17 (c) An indigent defendant is entitled to have an attorney
1-18 <appointed> assigned to represent him in any adversary judicial
1-19 proceeding conducted pursuant to this Code that may result in
1-20 <punishment by> confinement, and in any other criminal proceeding
1-21 if the court concludes that the interests of justice require
1-22 representation. If an indigent defendant is entitled to and
1-23 requests <appointed> assigned counsel after being formally accused
2-1 of a crime in a hearing conducted under Article 15.17 of this Code,
2-2 the <court> a pretrial services officer as defined in Article
2-3 15A.02(a) of this Code shall <appoint> assign counsel to represent
2-4 the defendant as soon as possible.
2-5 (d) An eligible indigent defendant is entitled to have <the
2-6 trial court appoint> an attorney assigned to represent him in the
2-7 following appellate and postconviction habeas corpus matters:
2-8 (1) an appeal to a court of appeals;
2-9 (2) an appeal to the Court of Criminal Appeals if the
2-10 appeal is made directly from the trial court or if a petition for
2-11 discretionary review has been granted;
2-12 (3) a habeas corpus proceeding if the court concludes
2-13 that the interests of justice require representation; and
2-14 (4) any other appellate proceeding if the court
2-15 concludes that the interests of justice require representation.
2-16 SECTION 2. Subarticle 15.17(a), Code of Criminal Procedure,
2-17 is amended and renumbered to read as follows:
2-18 Art. 15.17. Duties of arresting officer and magistrate.
2-19 (a) In each case enumerated in this Code, the person making the
2-20 arrest shall without unnecessary delay take the person arrested or
2-21 have him taken before some magistrate of the county where the
2-22 accused was arrested or, if necessary to provide more expeditiously
2-23 to the person arrested the warnings described by this Article,
2-24 before a magistrate in a county bordering the county in which the
2-25 arrest was made.
3-1 (1) The arrested person may be taken before the
3-2 magistrate in person or the image of the arrested person may be
3-3 broadcast by closed circuit television to the magistrate.
3-4 (2) The magistrate shall inform in clear language that
3-5 the person arrested understands, either in person or by closed
3-6 circuit television, of the accusation against him and of any
3-7 affidavit filed therewith, of his right to retain counsel, of his
3-8 right to remain silent, of his right to have an attorney present
3-9 during any interview with peace officers or attorneys representing
3-10 the state, of his right to terminate the interview at any time, of
3-11 his right to <request> counsel and precisely how he may secure the
3-12 <appointment> assignment of counsel if he is indigent and cannot
3-13 afford counsel, and of his right to have an examining trial. He
3-14 shall also inform in clear language that the person arrested
3-15 understands that he is not required to make a statement and that
3-16 any statement made by him may be used against him.
3-17 (3) The magistrate shall allow the person arrested
3-18 reasonable time and opportunity to consult counsel and shall admit
3-19 the person arrested to bail if allowed by law.
3-20 (4) A closed circuit television system may not be used
3-21 under this subsection unless the system provides for a two-way
3-22 communication of image and sound between the arrested person and
3-23 the magistrate. A recording of the communication between the
3-24 arrested person and the magistrate shall be made. The recording
3-25 shall be preserved until the earlier of the following dates:
4-1 <(1)>(A) the date on which the pretrial hearing ends; or
4-2 <(2)>(B) the 91st day after the date on which the recording is
4-3 made if the person is charged with a misdemeanor or the 120th day
4-4 after the date on which the recording is made if the person is
4-5 charged with a felony. The counsel for the defendant may obtain a
4-6 copy of the recording on payment of a reasonable amount to cover
4-7 costs of reproduction.
4-8 SECTION 3. The Code of Criminal Procedure is amended by
4-9 adding Chapter 15A to read as follows:
4-10 CHAPTER FIFTEEN A-PRETRIAL SERVICES
4-11 Art. 15A.01. Policy. This Chapter is intended and shall be
4-12 construed to further the objects stated in Article 1.03 of this
4-13 Code by:
4-14 (a) conserving judicial resources;
4-15 (b) providing accurate information to judges on fact
4-16 questions concerning bail and counsel assignment;
4-17 (c) preserving the independence of the judiciary in the
4-18 adversary criminal process; and
4-19 (d) ensuring constitutionally adequate systems of indigent
4-20 defense while allowing counties maximum flexibility in defining and
4-21 funding those systems.
4-22 Art. 15A.02. Definitions. Absent specific exception, the
4-23 following definitions apply throughout this Code:
4-24 (a) "pretrial services officer" means a person designated by
4-25 a county commissioners' court as responsible for timely assigning
5-1 counsel to represent indigent defendants and for providing
5-2 information concerning bail conditions to judges as required by
5-3 this Chapter;
5-4 (b) "pretrial services office" means the pretrial services
5-5 officer and any staff hired by county commissioners or a pretrial
5-6 services officer to assist the pretrial services officer in
5-7 performing duties stated in this Chapter;
5-8 (c) "public defender organization" means any corporation or
5-9 association that conforms with Article 15A.09(b);
5-10 (d) "indigent" means financially unable to afford retained
5-11 counsel to defend against criminal charges;
5-12 (e) "felony," "felony of the first degree," "capital
5-13 felony," "misdemeanor," and "offense category" mean the same things
5-14 as the offense classifications by the same names that are described
5-15 in sections 12.02, 12.03, and 12.04 of the Texas Penal Code; and
5-16 (f) "Article," "Chapter," and "Code" all refer to the Texas
5-17 Code of Criminal Procedure.
5-18 Art. 15A.03. Pretrial Services Officer. (a) Each county
5-19 commissioners' court shall designate one person as pretrial
5-20 services officer. Commissioners may elect to share a pretrial
5-21 services officer with any other county.
5-22 (b) County commissioners and pretrial services officers may
5-23 hire employees as necessary to perform the duties stated in this
5-24 Chapter, provided that:
5-25 (1) no peace officer, as defined by Article 2.12, no
6-1 employee of a district attorney's office, and no judge may be
6-2 assigned any duty of a pretrial services officer; and
6-3 (2) Subchapter B of Texas's Local Government Code
6-4 governs compensation and expenses for the employees of each
6-5 pretrial services office.
6-6 (c) If a court releases a defendant on bond on a
6-7 recommendation of a pretrial services office, that court shall
6-8 assess a bond fee of $20 or of three percent of the amount of the
6-9 bail fixed for the defendant, whichever is greater, provided that:
6-10 (1) the court may waive the fee or assess a lesser fee
6-11 if good cause is shown; and
6-12 (2) fees collected under this Article shall be
6-13 deposited in an appropriate account as specified by each
6-14 commissioners' court and used solely to defray pretrial services
6-15 expenses.
6-16 (d) Each county commissioners' court may support its
6-17 pretrial services office with county general funds and any grants,
6-18 federal and state funds, or other financial assistance that it
6-19 secures.
6-20 Art. 15A.04. Defendant Interviews. (a) The pretrial
6-21 services office must attempt to interview each person who is
6-22 formally accused of a crime pursuant to Article 15.17. The
6-23 pretrial services office must make a reasonable effort to complete
6-24 the interview no later than 24 hours after the Article 15.17
6-25 hearing, though the interview may be conducted before the hearing.
7-1 (b) Any statement elicited from a defendant under this
7-2 Article, or evidence derived from the statement, may not be used
7-3 for any purpose except to determine the defendant's indigence, to
7-4 determine conditions of pretrial release, or to impeach the
7-5 defendant's direct testimony. This Subarticle in no way prohibits
7-6 prosecution of the defendant under Chapter 37 of the Texas Penal
7-7 Code.
7-8 (c) The pretrial services officer shall attempt to
7-9 determine:
7-10 (1) the defendant's identification information,
7-11 including any alias, maiden, or other names used, date of birth,
7-12 social security number, telephone numbers, and mailing addresses;
7-13 (2) the defendant's income and employment history for
7-14 the previous two years;
7-15 (3) a statement of the liquid and non-liquid assets
7-16 available to the defendant;
7-17 (4) a statement of the defendant's outstanding debts,
7-18 obligations, and necessary expenses, including child support;
7-19 (5) the defendant's residence addresses for the past
7-20 two years;
7-21 (6) the names, addresses, telephone numbers,
7-22 relationships, and ages of all immediate family and dependents;
7-23 (7) the names, addresses, and telephone numbers of two
7-24 adults who are unrelated to the defendant and can attest to the
7-25 defendant's stability within the community;
8-1 (8) the physical condition, including mental health,
8-2 of the defendant;
8-3 (9) the defendant's immigration status, including any
8-4 alien identification number; and
8-5 (10) any further information intended by the pretrial
8-6 services officer to assist the office in determining indigence or
8-7 pretrial release conditions.
8-8 (d) During the interview, each defendant must be informed,
8-9 in clear language that the defendant understands, that before
8-10 counsel may be assigned, the defendant must sign under oath a
8-11 statement substantially in the following form:
8-12 "On this (date), I have been advised by pretrial services
8-13 officer (officer's name) of my right to representation by counsel
8-14 in the trial of the charge pending against me. I certify that I am
8-15 without means to employ counsel of my own choosing and I hereby
8-16 request the officer to assign counsel for me."
8-17 (e) The pretrial services officer must provide each
8-18 defendant an opportunity to execute a statement requesting counsel
8-19 during the interview. No pretrial services officer may communicate
8-20 any advice to a defendant on whether the defendant should or should
8-21 not request assigned counsel.
8-22 (f) Upon completing each interview, the pretrial services
8-23 officer shall inform the defendant how the defendant may contact
8-24 the pretrial services office regarding counsel-assignment or bail
8-25 information.
9-1 Art. 15A.05. Pretrial Services Investigations. A pretrial
9-2 services officer may conduct any investigation necessary to verify
9-3 information gathered in a pretrial services interview, and to
9-4 collect information from law enforcement agencies concerning the
9-5 nature and circumstances of charged offenses, any prior criminal
9-6 record of the defendant, and any record of the defendant's flight
9-7 to avoid prosecution or court proceedings.
9-8 Art. 15A.06. Recommendation on Bail Conditions. (a) The
9-9 pretrial services office shall prepare a pretrial release report
9-10 for each defendant no later than 24 hours after conducting the
9-11 interview specified by Article 15A.04.
9-12 (b) Each pretrial release report shall contain separate
9-13 statements addressing each of the following:
9-14 (1) information collected during the pretrial-services
9-15 interview;
9-16 (2) facts discovered by any investigation under
9-17 Article 15A.05; and
9-18 (3) the defendant's veracity and cooperativeness
9-19 during the pretrial-services interview.
9-20 (c) Each pretrial release report shall contain separate
9-21 recommendations of the pretrial services offices as to each of the
9-22 following:
9-23 (1) whether anti-stalking, drug-testing, or
9-24 HIV-testing conditions under Articles 17.44, 17.45, or 17.46 need
9-25 be placed on any bond allowed the defendant;
10-1 (2) the amount of bond required of the defendant, if
10-2 any;
10-3 (3) whether the defendant is an appropriate candidate
10-4 for personal bond under Articles 17.03, 17.031, or 17.032; and
10-5 (4) whether in lieu of cash or surety bond, the
10-6 defendant should be permitted to secure the bond obligation by
10-7 depositing a percentage of the bond amount with the court's
10-8 registry, and have this amount refunded upon satisfying the bond
10-9 conditions.
10-10 (d) Immediately upon completion of each pretrial release
10-11 report, the pretrial services office shall deliver the signed
10-12 original to a judge with jurisdiction over the defendant's criminal
10-13 cause, and copies to the state's attorney and to the defendant or
10-14 any defense counsel, including any public defender organization
10-15 that is obligated to review the defendant's case.
10-16 (e) Pretrial services offices may prepare and submit amended
10-17 reports upon discovering new information that changes a
10-18 recommendation for bail conditions.
10-19 (f) Pretrial release reports are entitled to due
10-20 consideration by judges in setting bail conditions under this Code,
10-21 but no judge shall be bound to act in accord with any pretrial
10-22 release recommendation.
10-23 Art. 15A.07. Election of Indigent Defense System. (a) Each
10-24 commissioners' court shall establish a system for the
10-25 representation of indigent defendants charged with a criminal
11-1 offense that falls within the jurisdiction of the county's district
11-2 and county courts.
11-3 (b) A commissioners' court may establish a representation
11-4 system from any combination of the assigned-counsel and
11-5 public-defender alternatives described in this Chapter.
11-6 (c) Commissioners may conduct necessary studies to assist
11-7 the county in planning for its indigent-defense needs, including:
11-8 (1) the number and character of criminal cases in the
11-9 county in prior and future years;
11-10 (2) assessments of current and projected costs for
11-11 each option considered;
11-12 (3) the number and experience of private attorneys who
11-13 are willing to accept assignments to represent indigent defendants;
11-14 and
11-15 (4) whether a regional defense system will best serve
11-16 the county's interest in efficiently providing adequate
11-17 indigent-defense services.
11-18 (d) No later than sixty days after the effective date of
11-19 this Act, each county judge shall provide a written report to the
11-20 Office of Court Administration of the Texas Judicial Council, in a
11-21 form to be prescribed by that office, describing the system
11-22 established by the county and the results of any studies conducted
11-23 prior to its establishment.
11-24 Art. 15A.08. Private Attorney Assignments. (a) Pretrial
11-25 services officers may only assign cases to attorneys who have
12-1 completed the registration process established in this Article.
12-2 (b) Attorneys must submit an application to each pretrial
12-3 services office from which they wish to receive assignments.
12-4 Attorneys must conform with the application procedure that shall by
12-5 specified by each pretrial services office.
12-6 (c) Each application must include the attorney's:
12-7 (1) name;
12-8 (2) office address;
12-9 (3) telephone and telecopier numbers;
12-10 (4) State Bar of Texas identification number;
12-11 (5) date of first admission to practice law under any
12-12 domestic state's law;
12-13 (6) descriptions of the attorney's education,
12-14 experience, or other qualifications for indigent-defense
12-15 assignments; and
12-16 (7) certification that the attorney's license to
12-17 practice law in Texas has not been suspended or revoked at any time
12-18 within the three months preceding the application date.
12-19 (d) The pretrial services office may verify and gather
12-20 public information about any applicant from the State Bar of Texas
12-21 or any other source. The pretrial services office must distribute
12-22 applications and all supplemental information to each judge of a
12-23 county and district court with criminal jurisdiction in the region
12-24 served by the pretrial services office.
12-25 (e) The judges of county and district courts with criminal
13-1 jurisdiction in each county shall classify each applicant according
13-2 to the offense categories for which the applicant may represent
13-3 defendants charged in that county.
13-4 (f) Each applicant shall be placed in one of the following:
13-5 (1) Category A, meaning "qualified to represent
13-6 juveniles or defendants accused of any offense;"
13-7 (2) Category B, meaning "qualified to represent
13-8 juveniles or defendants accused of any offense except capital
13-9 felonies and felonies of the first degree;"
13-10 (3) Category C, meaning "qualified to represent
13-11 defendants accused of misdemeanor offenses;" or
13-12 (4) Category D, meaning "presently not permitted to
13-13 receive assignments from the pretrial services office."
13-14 (g) Judges may classify and reclassify attorneys as they
13-15 deem appropriate, provided that:
13-16 (1) an attorney who has not been licensed to practice
13-17 law in any domestic state for more than nine months may only be
13-18 registered under categories D and C; and
13-19 (2) before any attorney may be registered under
13-20 category A, the attorney must have assisted in the preparation and
13-21 presentation of at least two felony cases that were decided by a
13-22 jury after full trial, must have practiced criminal law for more
13-23 than four years in any domestic jurisdiction, and must have been
13-24 licensed to practice law in Texas for more than one year.
13-25 (h) In addition to the rules of administration specified in
14-1 section 74.093(b)(1)-(5) of the Texas Government Code, the district
14-2 and statutory county court judges with criminal jurisdiction in
14-3 each county shall adopt a procedure according to which those judges
14-4 will classify applicants under this Article. The judges may assign
14-5 any administrative tasks necessitated by this Article to the
14-6 pretrial services office.
14-7 (i) No pretrial services officer may release any information
14-8 concerning any vote of any judge to any person, though the pretrial
14-9 services office shall inform each applicant of the applicant's
14-10 registration category.
14-11 (j) Each pretrial services office shall immediately
14-12 reclassify any attorney to category D upon ascertaining that the
14-13 attorney has been disbarred or suspended from the practice of law
14-14 in Texas.
14-15 Art. 15A.09. Public Defender. (a) A commissioners' court
14-16 may establish a public defender system in addition to any private
14-17 attorney assignment system by contracting with or creating a public
14-18 defender organization in accord with this Chapter.
14-19 (b) All public defender organizations must:
14-20 (1) limit attorney employment to those licensed to
14-21 practice law by the Supreme Court of Texas;
14-22 (2) prohibit all employees from engaging in the
14-23 practice of law for any profit;
14-24 (3) pay no person a greater salary than that earned by
14-25 any district attorney who serves a county that is served by the
15-1 public defender.
15-2 (c) The director of any public defender organization may
15-3 employ attorneys, investigators, secretaries, and other personnel,
15-4 and may expend such other sums as are reasonable and necessary to
15-5 provide constitutionally adequate representation to indigent
15-6 persons accused of criminal offenses in accord with this Chapter.
15-7 (d) Commissioners may restrict the representation of a
15-8 public defender organization in any way that does not violate legal
15-9 guarantees of equal protection or compel a public defender
15-10 organization to accept or reject cases based on any perception of
15-11 the merit of any charge or defense (i.e. commissioners may
15-12 restrict representation of a public defender organization to
15-13 specific offense categories, indigence standards, ages, or health
15-14 conditions of defendants).
15-15 (e) A county commissioners' court may provide reasonable and
15-16 necessary funds to a public defender organization in accord with
15-17 this Chapter, using county general funds and any grants, federal
15-18 and state funds, or other financial assistance that it secures.
15-19 Art. 15A.10. Initial Assignment of Counsel for Indigent
15-20 Defendants. (a) A pretrial services office must determine whether
15-21 a person accused of a crime is indigent no later than 24 hours
15-22 after receiving a request for assigned counsel. No pretrial
15-23 services office or court may deny assigned counsel to a defendant
15-24 solely because the defendant has posted or is capable of posting
15-25 bail.
16-1 (b) If a pretrial services office determines that a
16-2 defendant is not indigent, it shall inform the defendant of: the
16-3 determination, the name and address of the court with jurisdiction
16-4 over the defendant's criminal case, and the procedure that the
16-5 defendant must follow to have the court rule on the fact question
16-6 of indigence. This information shall be communicated to the
16-7 defendant in writing and, if the defendant does not understand the
16-8 writing, in clear language that the defendant understands.
16-9 (c) If a court or a pretrial services office determines that
16-10 a defendant who requests assigned counsel is indigent, the pretrial
16-11 services office shall immediately provide notice of this
16-12 determination to any public defender that is obligated to review
16-13 the defendant's case. Within 24 hours of receiving notice of a
16-14 defendant's indigence, the public defender must notify the pretrial
16-15 services office whether it accepts assignment as defendant's
16-16 counsel or whether it is unable to accept assignment due to a
16-17 conflict of interest, resource limitations, or other good cause.
16-18 (d) If no public defender is obligated to review an indigent
16-19 defendant's case, or if the public defender organization that
16-20 received notice of the assignment indicates that the organization
16-21 is unable to accept the assignment, the pretrial services office
16-22 shall promptly assign counsel from its list of registered
16-23 attorneys.
16-24 (e) In making assignments from its list of registered
16-25 attorneys, each pretrial services office must:
17-1 (1) not assign any category D attorney to represent
17-2 any defendant;
17-3 (2) not assign any category C attorney to represent
17-4 any defendant who is charged with an unadjudicated felony offense
17-5 unless the defendant is also represented by a category A or B
17-6 attorney;
17-7 (3) assign a category A attorney to represent all
17-8 defendants who are accused of offenses classified as capital or
17-9 felonies of the first degree; and
17-10 (4) attempt to assign all attorneys of equal
17-11 classification with the same frequency, though the pretrial
17-12 services office must respect attorneys' limitations on the number
17-13 or types of assignments that they will accept.
17-14 (f) If Subarticle (e) precludes a pretrial services office
17-15 from assigning a registered attorney to represent a defendant, the
17-16 office shall provide notice of this fact to the local
17-17 administrative judge of the county in which the defendant is
17-18 charged. The administrative judge may establish any appropriate
17-19 procedure for appointing qualified counsel upon receiving such
17-20 notice from the pretrial services office, including, but not
17-21 limited to, permitting the pretrial services office to contact
17-22 other pretrial services offices in search of an appropriately
17-23 categorized attorney who agrees to accept the assignment.
17-24 (g) Upon assigning defense counsel in accord with this
17-25 Article, the pretrial services office shall promptly notify the
18-1 clerk of the court with jurisdiction over the defendant's case, the
18-2 state's attorney, the defendant, and the defendant's assigned
18-3 attorney of the assignment and of the defendant's present location.
18-4 (h) All assigned attorneys must communicate with their
18-5 clients within 72 hours after receiving notice of their assignment.
18-6 (i) Each assigned attorney shall represent the defendant
18-7 until charges are dismissed, the defendant is acquitted, appeals
18-8 are exhausted, or the attorney is relieved of duties by a court or
18-9 replaced by other counsel.
18-10 Art. 15A.11. Removal, Withdrawal, and Addition of Assigned
18-11 Counsel. (a) The defendant, an assigned private attorney, or a
18-12 public defender organization may move the court for the removal or
18-13 withdrawal of assigned counsel, or for the assignment of additional
18-14 counsel, at any time that does not unreasonably delay or prejudice
18-15 the trial of the cause.
18-16 (b) Assigned counsel may be permitted to withdraw upon
18-17 demonstrating good cause for the withdrawal. Good cause includes,
18-18 but is not limited to: defendant's ability to afford retained
18-19 counsel, either because of a change in circumstances or an
18-20 intentional or deliberate failure by the defendant to accurately
18-21 report all income or assets; counsel's inability to effectively
18-22 represent the defendant due to other professional commitments; the
18-23 defendant's inability to effectively communicate with assigned
18-24 counsel; severe and irreconcilable discord between the defendant
18-25 and assigned counsel; a conflict of interest between the defendant
19-1 and assigned counsel; or other circumstances under which the
19-2 attorney's professional duty requires withdrawal.
19-3 (c) A defendant may be permitted to have an assigned counsel
19-4 removed and replacement counsel assigned upon demonstrating good
19-5 cause for the removal. Good cause includes, but is not limited to:
19-6 the defendant's desire to retain private counsel at the defendant's
19-7 own expense; neglect, inattention, or incompetence of assigned
19-8 counsel; discord or lack of trust and confidence between the
19-9 defendant and assigned counsel; or a conflict of interest between
19-10 the defendant and assigned counsel.
19-11 (d) A defendant may be permitted to have more than one
19-12 attorney assigned to the case upon demonstrating appropriate
19-13 circumstances for the addition of counsel. Appropriate
19-14 circumstances include, but are not limited to, complex cases where
19-15 the defendant articulates a specific need for additional assistance
19-16 of counsel.
19-17 (e) Upon granting a motion under this Article to remove,
19-18 permit withdrawal, or supplement counsel, the court shall notify
19-19 the pretrial services officer that assigned counsel is to be
19-20 removed, replaced, or supplemented. The court may direct the
19-21 pretrial services office to assign specific replacement or
19-22 additional counsel who are qualified and who have registered with
19-23 the pretrial services office.
19-24 (f) Upon assigning defense counsel in accord with the
19-25 court's order, the pretrial services officer shall promptly notify
20-1 the defendant, the defendant's former and present assigned
20-2 attorneys, and the state's attorney of the assignment and of the
20-3 defendant's present location. Subarticles 15A.10(h)-(i) apply to
20-4 counsel assigned under this Article.
20-5 (g) Upon receiving or discovering any evidence that a
20-6 defendant who has assigned counsel has available resources to
20-7 employ counsel, the pretrial services officer shall perform the
20-8 investigation necessary to form an opinion as to the extent to
20-9 which the defendant can pay for defense costs. The pretrial
20-10 services office shall immediately communicate any opinion formed
20-11 under this Article to both the commissioners' court and to assigned
20-12 counsel for the defendant. Commissioners may consider the timing
20-13 and content of such opinions in deciding whether to deny or limit
20-14 payments to assigned counsel under Article 15A.13.
20-15 Art. 15A.12. Defense Experts and Investigators. (a) A
20-16 counsel, other than an attorney employed by a public defender, who
20-17 is assigned to represent a defendant in a criminal proceeding,
20-18 including a habeas corpus hearing, may incur reasonable and
20-19 necessary expenses for the investigation of facts relevant to the
20-20 charges against the defendant and for securing the assistance of
20-21 expert witnesses in the preparation and presentation of the
20-22 defendant's case. Reasonable and necessary expenses shall be
20-23 reimbursed to the assigned counsel in accord with Article 15A.13.
20-24 (b) Assigned counsel may request prepayment of reasonable
20-25 and necessary investigation and expert fees from the commissioners'
21-1 court or its designated representative. Commissioners may await a
21-2 judicial decision on the appropriateness of the fees, but they
21-3 shall remit county general funds in accord with any instructions
21-4 provided by the court with jurisdiction over the cause for which
21-5 the fees are requested.
21-6 Art. 15A.13. Payment of Assigned Counsel. (a) A counsel,
21-7 other than an attorney employed by a public defender organization,
21-8 assigned to represent a defendant in a criminal proceeding,
21-9 including a habeas corpus hearing, shall be paid a reasonable
21-10 attorney's fee for performing the following services, based on the
21-11 time and labor required, the complexity of the case, and the
21-12 experience and ability of the assigned counsel:
21-13 (1) actual time spent in court representing the
21-14 defendant on criminal matters assigned by the pretrial services
21-15 office;
21-16 (2) reasonable and necessary time actually spent out
21-17 of court preparing the defendant's case, supported by any
21-18 documentation that a judge or a county commissioners' court
21-19 requires; and
21-20 (3) actual time spent preparing and presenting
21-21 appellate briefs, motions, and arguments to a court of appeals or
21-22 the Court of Criminal Appeals.
21-23 (b) A counsel, other than an attorney employed by a public
21-24 defender organization, assigned to represent a defendant in a
21-25 criminal proceeding shall be reimbursed according to this Article
22-1 for all expenses actually incurred in accord with Article 15A.12.
22-2 (c) No attorney is entitled to compensation or reimbursement
22-3 under this Article for services rendered to a defendant after the
22-4 attorney knew, or could have known from reasonable investigation of
22-5 known information, that a defendant had the financial resources to
22-6 compensate or reimburse the attorney for those services.
22-7 (d) All compensation under this Article shall be paid in
22-8 accord with a schedule of fees adopted by formal action of the
22-9 commissioners' court of each county. Each commissioners' court may
22-10 permit the judges of the county's district and county courts with
22-11 criminal jurisdiction to promulgate the fee schedule.
22-12 (e) Each fee schedule adopted shall include a fixed case
22-13 rate, minimum and maximum hourly rates, and minimum and maximum
22-14 daily rates, and shall provide a form for reporting the kinds,
22-15 quantities, and dates of services performed in each case.
22-16 (f) Each county commissioners' court shall formally
22-17 establish and publish a procedure for paying counsel assigned by
22-18 its pretrial services office.
22-19 (g) Assigned counsel may apply for interim payments for
22-20 services already rendered and expenses already incurred before
22-21 final disposition of a case. Commissioners shall provide payment
22-22 for services and expenses after a case is finally resolved and all
22-23 appeals exhausted, or when the pretrial services office indicates
22-24 that an attorney is no longer assigned to represent a defendant in
22-25 a pending case.
23-1 (h) If county officials and an assigned counsel cannot agree
23-2 on the proper amount of fees and expenses due the counsel under
23-3 this Article, either commissioners or the assigned counsel may
23-4 request ruling on this issue from the court in which the assigned
23-5 counsel claims to have spent the most time representing the
23-6 defendant.
23-7 (i) No agreement between county officials and assigned
23-8 counsel as to fee amount shall preclude the county officials from
23-9 demanding and collecting repayment of any amounts disbursed in
23-10 reliance on an inaccurate fee-report form.
23-11 (j) All disbursements under this Article shall be made from
23-12 the general fund of the county in which the prosecution was
23-13 instituted or habeas corpus hearing held.
23-14 (k) If a court determines that a defendant has financial
23-15 resources that enable the defendant to offset in part or in whole
23-16 the costs of legal services and related expenses provided under
23-17 this Chapter, the court may assess these costs against the
23-18 defendant in the amount that the court finds the defendant able to
23-19 pay.
23-20 SECTION 4. Article 16.01, Code of Criminal Procedure, is
23-21 amended to read as follows:
23-22 Art. 16.01. Examining trial. When the accused has been
23-23 brought before a magistrate for an examining trial that officer
23-24 shall proceed to examine into the truth of the accusation made,
23-25 allowing the accused, however, sufficient time to <procure> secure
24-1 counsel. <In a proper case, the magistrate may appoint counsel to
24-2 represent an accused in such examining trial only, to be
24-3 compensated as otherwise provided in this Code.> The accused in
24-4 any felony case shall have the right to an examining trial before
24-5 indictment in the county having jurisdiction of the offense,
24-6 whether he be in custody or on bail, at which time the magistrate
24-7 at the hearing shall determine the amount or sufficiency of bail,
24-8 if a bailable case. If the accused has been transferred for
24-9 criminal prosecution after a hearing under Section 54.02, Family
24-10 Code, the accused may be granted an examining trial at the
24-11 discretion of the court.
24-12 SECTION 5. Article 17.42, Code of Criminal Procedure, is
24-13 hereby repealed.
24-14 SECTION 6. Articles 26.04, 26.041, 26.042, 26.043, 26.044,
24-15 26.045, 26.046, 26.047, 26.048, 26.05, 26.050, Code of Criminal
24-16 Procedure, are hereby repealed.
24-17 SECTION 7. Article 26.051, Code of Criminal Procedure, is
24-18 amended and renumbered to read as follows:
24-19 Art. <26.051.> 15A.14. Indigent inmate defense. (a) In
24-20 this article:
24-21 (1) "Board" means the Texas Board of Criminal Justice.
24-22 (2) "Institutional division" means the institutional
24-23 division of the Texas Department of Criminal Justice.
24-24 (b) This article applies only to the appointment of
24-25 attorneys for indigent inmate defendants made on or after August 1,
25-1 1990.
25-2 (c) A county in which a facility of the institutional
25-3 division or a correctional facility authorized by Section 495.001,
25-4 Government Code, is located shall, except as provided by Subsection
25-5 (f) of this article, pay from its general fund the total costs of
25-6 the aggregate sum allowed and awarded <by the court> for
25-7 attorney's fees under Article <26.05> 15A.13 of this code for an
25-8 assigned attorney <appointed by the court>, other than an attorney
25-9 provided by the board in Subsection (e) of this article, to defend
25-10 an indigent inmate.
25-11 (d) A court or a pretrial services office may notify the
25-12 board <if it determines> upon determining that a defendant <before
25-13 the court> accused of a crime pursuant to Article 15.17 is indigent
25-14 and is an inmate charged with an offense committed while in the
25-15 custody of the institutional division, and request that the board
25-16 provide legal representation for the inmate.
25-17 (e) The board shall provide legal representation for inmates
25-18 described by Subsection (d) of this section. The board may employ
25-19 attorneys, support staff, and any other personnel required to
25-20 provide legal representation for those inmates. All personnel
25-21 employed under this article are directly responsible to the board
25-22 in the performance of their duties. The board shall pay all fees
25-23 and costs associated with providing legal representation for those
25-24 inmates.
25-25 <(f) Repealed by Acts 1993, 73rd Leg., ch. 988, REWRITE.
26-1 7.02, eff. Sept. 1, 1993.>
26-2 <(g)> (f) The court or the pretrial services office shall
26-3 <appoint> assign an attorney other than an attorney provided by
26-4 the board if the court determines for any of the following reasons
26-5 that a conflict of interest could arise from the use of an attorney
26-6 provided by the board under Subsection (e) of this article:
26-7 (1) the case involves more than one inmate and the
26-8 representation of more than one inmate could impair the attorney's
26-9 effectiveness;
26-10 (2) the case is appealed and the court is satisfied
26-11 that conflict of interest would prevent the presentation of a good
26-12 faith allegation of ineffective assistance of counsel by a trial
26-13 attorney provided by the board; or
26-14 (3) any conflict of interest exists under the Texas
26-15 Disciplinary Rules of Professional Conduct of the State Bar of
26-16 Texas that precludes representation by an attorney appointed by the
26-17 board.
26-18 <(h)> (g) When the court or pretrial services office assigns
26-19 <appoints> an attorney other than an attorney provided by the
26-20 board, the county shall pay from its general fund the first $250.00
26-21 of the aggregate sum allowed and awarded <by the court> for the
26-22 attorney fees under Article 15A.13 of this code. If the fees
26-23 awarded for an assigned <court-appointed> attorney in a case
26-24 described by this subsection exceed $250.00, the court shall
26-25 certify the amount in excess of $250.00 to the board. On request
27-1 of the board, the comptroller shall issue a warrant to the
27-2 <court-appointed> assigned attorney in the amount certified to the
27-3 board by the court.
27-4 SECTION 8. Article 26.055, Code of Criminal Procedure, is
27-5 renumbered, and Article 26.055(a), Code of Criminal Procedure, is
27-6 amended to read as follows:
27-7 Art. <26.055.> 15A.15. Contribution from state for defense
27-8 of indigent inmates.
27-9 Sec. 1. (a) This article applies only to an attorney
27-10 appointed <under Article 26.05 of this code> to defend an indigent
27-11 inmate before August 1, 1990 under the Article 26.05 of this Code
27-12 that was in effect on August 1, 1990.
27-13 SECTION 9. Articles 26.056 and 26.057, Code of Criminal
27-14 Procedure, are amended and renumbered to read as follows:
27-15 Art. <26.056.> 15A.16. Contribution from state in certain
27-16 counties
27-17 Sec. 1. A county in which a state training school for
27-18 delinquent children is located shall pay from its general fund the
27-19 first $250 of fees awarded for <court-appointed> assigned counsel
27-20 under <Article 26.05> this Chapter toward defending a child
27-21 committed to the school from another county who is being prosecuted
27-22 for a felony or misdemeanor in the county where the training school
27-23 is located.
27-24 Sec. 2. If the fees awarded for counsel compensation are in
27-25 excess of $250, the court shall certify the amount in excess of
28-1 $250 to the Comptroller of Public Accounts of the State of Texas.
28-2 The Comptroller shall issue a warrant to the <court-appointed>
28-3 assigned counsel in the amount certified to the comptroller by the
28-4 court.
28-5 Art. <26.057.> 15A.17. Cost of employment of counsel for
28-6 certain minors. If a juvenile has been transferred to a criminal
28-7 court under Section 54.02, Family Code, and if <a court appoints>
28-8 counsel is assigned for the juvenile under <Article 26.04 of> this
28-9 <code> Chapter, the county that pays for the counsel has a cause of
28-10 action against a parent or other person who is responsible for the
28-11 support of the juvenile and is financially able to employ counsel
28-12 for the juvenile but refuses to do so. The county may recover its
28-13 cost of payment to the <appointed> assigned counsel and may
28-14 recover attorney's fees necessary to prosecute the cause of action
28-15 against the parent or other person.
28-16 SECTION 10. Articles 26.058 and 26.06, Code of Criminal
28-17 Procedure, are hereby repealed.
28-18 SECTION 11. This bill is effective on September 1, 1995.
28-19 Nothing in this bill shall affect the validity or continuity of
28-20 appointments made or bail conditions established before September
28-21 1, 1995.
28-22 SECTION 12. The importance of this legislation and the
28-23 crowded condition of the calendars in both houses create an
28-24 emergency and an imperative public necessity that the
28-25 constitutional rule requiring bills to be read on three several
29-1 days in each house be suspended, and this rule is hereby suspended.