By: Ellis S.B. No. 1383
A BILL TO BE ENTITLED
AN ACT
1-1 relating to defense and pretrial information gathering standards
1-2 for indigent people who are accused of crime.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1: Subarticles 1.051(a)-(d), Code of Criminal
1-5 Procedure, are amended to read as follows:
1-6 Art. 1.051. Right to Representation by Counsel
1-7 (a) A defendant in a criminal matter is entitled to be
1-8 represented by counsel in an adversarial judicial proceeding. The
1-9 right to be represented by counsel includes the right to consult in
1-10 private with counsel sufficiently in advance of <a> the adversary
1-11 judicial proceedings described in this Code to allow adequate
1-12 preparation for <the> each proceeding.
1-13 (b) For the purposes of this article and <Articles 26.04
1-14 and 26.05> Chapter 15A of this Code, "indigent" means a person who
1-15 is not financially able to employ counsel.
1-16 (c) An indigent defendant is entitled to have an attorney
1-17 <appointed> assigned to represent him in any adversary judicial
1-18 proceeding conducted pursuant to this Code that may result in
1-19 <punishment by> confinement, and in any other criminal proceeding
1-20 if the court concludes that the interests of justice require
1-21 representation. If an indigent defendant is entitled to and
1-22 requests <appointed> assigned counsel after being formally accused
1-23 of a crime in a hearing conducted under Article 15.17 of this Code,
2-1 the <court> a pretrial services officer as defined in Article
2-2 15A.02(a) of this Code shall <appoint> assign counsel to represent
2-3 the defendant as soon as possible.
2-4 (d) An eligible indigent defendant is entitled to have <the
2-5 trial court appoint> an attorney assigned to represent him in the
2-6 following appellate and postconviction habeas corpus matters:
2-7 (1) an appeal to a court of appeals;
2-8 (2) an appeal to the Court of Criminal Appeals if the
2-9 appeal is made directly from the trial court or if a petition for
2-10 discretionary review has been granted;
2-11 (3) a habeas corpus proceeding if the court concludes
2-12 that the interests of justice require representation; and
2-13 (4) any other appellate proceeding if the court
2-14 concludes that the interests of justice require representation.
2-15 SECTION 2: Subarticle 15.17(a), Code of Criminal Procedure,
2-16 is amended and renumbered to read as follows:
2-17 Art. 15.17. Duties of Arresting Officer and Magistrate
2-18 (a) In each case enumerated in this Code, the person making
2-19 the arrest shall without unnecessary delay take the person arrested
2-20 or have him taken before some magistrate of the county where the
2-21 accused was arrested or, if necessary to provide more expeditiously
2-22 to the person arrested the warnings described by this Article,
2-23 before a magistrate in a county bordering the county in which the
2-24 arrest was made.
2-25 (1) The arrested person may be taken before the
3-1 magistrate in person or the image of the arrested person may be
3-2 broadcast by closed circuit television to the magistrate.
3-3 (2) The magistrate shall inform in clear language that
3-4 the person arrested understands, either in person or by closed
3-5 circuit television, of the accusation against him and of any
3-6 affidavit filed therewith, of his right to retain counsel, of his
3-7 right to remain silent, of his right to have an attorney present
3-8 during any interview with peace officers or attorneys representing
3-9 the state, of his right to terminate the interview at any time, of
3-10 his right to <request> counsel and precisely how he may secure the
3-11 <appointment> assignment of counsel if he is indigent and cannot
3-12 afford counsel, and of his right to have an examining trial. He
3-13 shall also inform in clear language that the person arrested
3-14 understands that he is not required to make a statement and that
3-15 any statement made by him may be used against him.
3-16 (3) The magistrate shall allow the person arrested
3-17 reasonable time and opportunity to consult counsel and shall admit
3-18 the person arrested to bail if allowed by law.
3-19 (4) A closed circuit television system may not be used
3-20 under this subsection unless the system provides for a two-way
3-21 communication of image and sound between the arrested person and
3-22 the magistrate. A recording of the communication between the
3-23 arrested person and the magistrate shall be made. The recording
3-24 shall be preserved until the earlier of the following dates:
3-25 <(1)>(A) the date on which the pretrial hearing ends; or
4-1 <(2)>(B) the 91st day after the date on which the recording is
4-2 made if the person is charged with a misdemeanor or the 120th day
4-3 after the date on which the recording is made if the person is
4-4 charged with a felony. The counsel for the defendant may obtain a
4-5 copy of the recording on payment of a reasonable amount to cover
4-6 costs of reproduction.
4-7 SECTION 3: The Code of Criminal Procedure is amended by
4-8 adding Chapter 15A to read as follows:
4-9 CHAPTER FIFTEEN A - PRETRIAL SERVICES
4-10 Art. 15A.01. Policy
4-11 This Chapter is intended and shall be construed to further
4-12 the objects stated in Article 1.03 of this Code by:
4-13 (a) conserving judicial resources;
4-14 (b) providing accurate information to judges on fact
4-15 questions concerning bail and counsel assignment;
4-16 (c) preserving the independence of the judiciary in the
4-17 adversary criminal process; and
4-18 (d) ensuring constitutionally adequate systems of indigent
4-19 defense while allowing counties maximum flexibility in defining and
4-20 funding those systems.
4-21 Art. 15A.02. Definitions
4-22 Absent specific exception, the following definitions apply
4-23 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
5-19 (a) Each county commissioners' court shall designate one
5-20 person as pretrial services officer. Commissioners may elect to
5-21 share a pretrial 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
6-21 (a) The pretrial services office must attempt to interview
6-22 each person who is formally accused of a crime pursuant to Article
6-23 15.17. The pretrial services office must make a reasonable effort
6-24 to complete the interview no later than 24 hours after the Article
6-25 15.17 hearing, though the interview may be conducted before the
7-1 hearing.
7-2 (b) Any statement elicited from a defendant under this
7-3 Article, or evidence derived from the statement, may not be used
7-4 for any purpose except to determine the defendant's indigence, to
7-5 determine conditions of pretrial release, or to impeach the
7-6 defendant's direct testimony. This Subarticle in no way prohibits
7-7 prosecution of the defendant under Chapter 37 of the Texas Penal
7-8 Code.
7-9 (c) The pretrial services officer shall attempt to
7-10 determine:
7-11 (1) the defendant's identification information,
7-12 including any alias, maiden, or other names used, date of birth,
7-13 social security number, telephone numbers, and mailing addresses;
7-14 (2) the defendant's income and employment history for
7-15 the previous two years;
7-16 (3) a statement of the liquid and non-liquid assets
7-17 available to the defendant;
7-18 (4) a statement of the defendant's outstanding debts,
7-19 obligations, and necessary expenses, including child support;
7-20 (5) the defendant's residence addresses for the past
7-21 two years;
7-22 (6) the names, addresses, telephone numbers,
7-23 relationships, and ages of all immediate family and dependents;
7-24 (7) the names, addresses, and telephone numbers of two
7-25 adults who are unrelated to the defendant and can attest to the
8-1 defendant's stability within the community;
8-2 (8) the physical condition, including mental health,
8-3 of the defendant;
8-4 (9) the defendant's immigration status, including any
8-5 alien identification number; and
8-6 (10) any further information intended by the pretrial
8-7 services officer to assist the office in determining indigence or
8-8 pretrial release conditions.
8-9 (d) During the interview, each defendant must be informed,
8-10 in clear language that the defendant understands, that before
8-11 counsel may be assigned, the defendant must sign under oath a
8-12 statement substantially in the following form:
8-13 "On this (date), I have been advised by pretrial services
8-14 officer (officer's name) of my right to representation by counsel
8-15 in the trial of the charge pending against me. I certify that I am
8-16 without means to employ counsel of my own choosing and I hereby
8-17 request the officer to assign counsel for me."
8-18 (e) The pretrial services officer must provide each
8-19 defendant an opportunity to execute a statement requesting counsel
8-20 during the interview. No pretrial services officer may communicate
8-21 any advice to a defendant on whether the defendant should or should
8-22 not request assigned counsel.
8-23 (f) Upon completing each interview, the pretrial services
8-24 officer shall inform the defendant how the defendant may contact
8-25 the pretrial services office regarding counsel-assignment or bail
9-1 information.
9-2 Art. 15A.05. Pretrial Services Investigations
9-3 A pretrial services officer may conduct any investigation
9-4 necessary to verify information gathered in a pretrial services
9-5 interview, and to collect information from law enforcement agencies
9-6 concerning the nature and circumstances of charged offenses, any
9-7 prior criminal record of the defendant, and any record of the
9-8 defendant's flight to avoid prosecution or court proceedings.
9-9 Art. 15A.06. Recommendation on Bail Conditions
9-10 (a) The pretrial services office shall prepare a pretrial
9-11 release report for each defendant no later than 24 hours after
9-12 conducting the interview specified by Article 15A.04.
9-13 (b) Each pretrial release report shall contain separate
9-14 statements addressing each of the following:
9-15 (1) information collected during the pretrial-services
9-16 interview;
9-17 (2) facts discovered by any investigation under
9-18 Article 15A.05; and
9-19 (3) the defendant's veracity and cooperativeness
9-20 during the pretrial-services interview.
9-21 (c) Each pretrial release report shall contain separate
9-22 recommendations of the pretrial services offices as to each of the
9-23 following:
9-24 (1) whether anti-stalking, drug-testing, or
9-25 HIV-testing conditions under Articles 17.44, 17.45, or 17.46 need
10-1 be placed on any bond allowed the defendant;
10-2 (2) the amount of bond required of the defendant, if
10-3 any;
10-4 (3) whether the defendant is an appropriate candidate
10-5 for personal bond under Articles 17.03, 17.031, or 17.032; and
10-6 (4) whether in lieu of cash or surety bond, the
10-7 defendant should be permitted to secure the bond obligation by
10-8 depositing a percentage of the bond amount with the court's
10-9 registry, and have this amount refunded upon satisfying the bond
10-10 conditions.
10-11 (d) Immediately upon completion of each pretrial release
10-12 report, the pretrial services office shall deliver the signed
10-13 original to a judge with jurisdiction over the defendant's criminal
10-14 cause, and copies to the state's attorney and to the defendant or
10-15 any defense counsel, including any public defender organization
10-16 that is obligated to review the defendant's case.
10-17 (e) Pretrial services offices may prepare and submit amended
10-18 reports upon discovering new information that changes a
10-19 recommendation for bail conditions.
10-20 (f) Pretrial release reports are entitled to due
10-21 consideration by judges in setting bail conditions under this Code,
10-22 but no judge shall be bound to act in accord with any pretrial
10-23 release recommendation.
10-24 Art. 15A.07. Election of Indigent Defense System
10-25 (a) Each commissioners' court shall establish a system for
11-1 the representation of indigent defendants charged with a criminal
11-2 offense that falls within the jurisdiction of the county's district
11-3 and county courts.
11-4 (b) A commissioners' court may establish a representation
11-5 system from any combination of the assigned-counsel and
11-6 public-defender alternatives described in this Chapter.
11-7 (c) Commissioners may conduct necessary studies to assist
11-8 the county in planning for its indigent-defense needs, including:
11-9 (1) the number and character of criminal cases in the
11-10 county in prior and future years;
11-11 (2) assessments of current and projected costs for
11-12 each option considered;
11-13 (3) the number and experience of private attorneys who
11-14 are willing to accept assignments to represent indigent defendants;
11-15 and
11-16 (4) whether a regional defense system will best serve
11-17 the county's interest in efficiently providing adequate
11-18 indigent-defense services.
11-19 (d) No later than sixty days after the effective date of
11-20 this Act, each county judge shall provide a written report to the
11-21 Office of Court Administration of the Texas Judicial Council, in a
11-22 form to be prescribed by that office, describing the system
11-23 established by the county and the results of any studies conducted
11-24 prior to its establishment.
11-25 Art. 15A.08. Private Attorney Assignments
12-1 (a) Pretrial services officers may only assign cases to
12-2 attorneys who have completed the registration process established
12-3 in this Article.
12-4 (b) Attorneys must submit an application to each pretrial
12-5 services office from which they wish to receive assignments.
12-6 Attorneys must conform with the application procedure that shall be
12-7 specified by each pretrial services office.
12-8 (c) Each application must include the attorney's:
12-9 (1) name;
12-10 (2) office address;
12-11 (3) telephone and telecopier numbers;
12-12 (4) State Bar of Texas identification number;
12-13 (5) date of first admission to practice law under any
12-14 domestic state's law;
12-15 (6) descriptions of the attorney's education,
12-16 experience, or other qualifications for indigent-defense
12-17 assignments; and
12-18 (7) certification that the attorney's license to
12-19 practice law in Texas has not been suspended or revoked at any time
12-20 within the three months preceding the application date.
12-21 (d) The pretrial services office may verify and gather
12-22 public information about any applicant from the State Bar of Texas
12-23 or any other source. The pretrial services office must distribute
12-24 applications and all supplemental information to each judge of a
12-25 county and district court with criminal jurisdiction in the region
13-1 served by the pretrial services office.
13-2 (e) The judges of county and district courts with criminal
13-3 jurisdiction in each county shall classify each applicant according
13-4 to the offense categories for which the applicant may represent
13-5 defendants charged in that county.
13-6 (f) Each applicant shall be placed in one of the following:
13-7 (1) Category A, meaning "qualified to represent
13-8 juveniles or defendants accused of any offense;"
13-9 (2) Category B, meaning "qualified to represent
13-10 juveniles or defendants accused of any offense except capital
13-11 felonies and felonies of the first degree;"
13-12 (3) Category C, meaning "qualified to represent
13-13 defendants accused of misdemeanor offenses;" or
13-14 (4) Category D, meaning "presently not permitted to
13-15 receive assignments from the pretrial services office."
13-16 (g) Judges may classify and reclassify attorneys as they
13-17 deem appropriate, provided that:
13-18 (1) an attorney who has not been licensed to practice
13-19 law in any domestic state for more than nine months may only be
13-20 registered under categories D and C; and
13-21 (2) before any attorney may be registered under
13-22 category A, the attorney must have assisted in the preparation and
13-23 presentation of at least two felony cases that were decided by a
13-24 jury after full trial, must have practiced criminal law for more
13-25 than four years in any domestic jurisdiction, and must have been
14-1 licensed to practice law in Texas for more than one year.
14-2 (h) In addition to the rules of administration specified in
14-3 section 74.093(b)(1)-(5) of the Texas Government Code, the district
14-4 and statutory county court judges with criminal jurisdiction in
14-5 each county shall adopt a procedure according to which those judges
14-6 will classify applicants under this Article. The judges may assign
14-7 any administrative tasks necessitated by this Article to the
14-8 pretrial services office.
14-9 (i) No pretrial services officer may release any information
14-10 concerning any vote of any judge to any person, though the pretrial
14-11 services office shall inform each applicant of the applicant's
14-12 registration category.
14-13 (j) Each pretrial services office shall immediately
14-14 reclassify any attorney to category D upon ascertaining that the
14-15 attorney has been disbarred or suspended from the practice of law
14-16 in Texas.
14-17 Art. 15A.09. Public Defender
14-18 (a) A commissioners' court may establish a public defender
14-19 system in addition to any private attorney assignment system by
14-20 contracting with or creating a public defender organization in
14-21 accord with this Chapter.
14-22 (b) All public defender organizations must:
14-23 (1) limit attorney employment to those licensed to
14-24 practice law by the Supreme Court of Texas;
14-25 (2) prohibit all employees from engaging in the
15-1 practice of law for any profit;
15-2 (3) pay no person a greater salary than that earned by
15-3 any district attorney who serves a county that is served by the
15-4 public defender.
15-5 (c) The director of any public defender organization may
15-6 employ attorneys, investigators, secretaries, and other personnel,
15-7 and may expend such other sums as are reasonable and necessary to
15-8 provide constitutionally adequate representation to indigent
15-9 persons accused of criminal offenses in accord with this Chapter.
15-10 (d) Commissioners may restrict the representation of a
15-11 public defender organization in any way that does not violate legal
15-12 guarantees of equal protection or compel a public defender
15-13 organization to accept or reject cases based on any perception of
15-14 the merit of any charge or defense (i.e. commissioners may
15-15 restrict representation of a public defender organization to
15-16 specific offense categories, indigence standards, ages, or health
15-17 conditions of defendants).
15-18 (e) A county commissioners' court may provide reasonable and
15-19 necessary funds to a public defender organization in accord with
15-20 this Chapter, using county general funds and any grants, federal
15-21 and state funds, or other financial assistance that it secures.
15-22 Art. 15A.10. Initial Assignment of Counsel for Indigent Defendants
15-23 (a) A pretrial services office must determine whether a
15-24 person accused of a crime is indigent no later than 24 hours after
15-25 receiving a request for assigned counsel. No pretrial services
16-1 office or court may deny assigned counsel to a defendant solely
16-2 because the defendant has posted or is capable of posting bail.
16-3 (b) If a pretrial services office determines that a
16-4 defendant is not indigent, it shall inform the defendant of: the
16-5 determination, the name and address of the court with jurisdiction
16-6 over the defendant's criminal case, and the procedure that the
16-7 defendant must follow to have the court rule on the fact question
16-8 of indigence. This information shall be communicated to the
16-9 defendant in writing and, if the defendant does not understand the
16-10 writing, in clear language that the defendant understands.
16-11 (c) If a court or a pretrial services office determines that
16-12 a defendant who requests assigned counsel is indigent, the pretrial
16-13 services office shall immediately provide notice of this
16-14 determination to any public defender that is obligated to review
16-15 the defendant's case. Within 24 hours of receiving notice of a
16-16 defendant's indigence, the public defender must notify the pretrial
16-17 services office whether it accepts assignment as defendant's
16-18 counsel or whether it is unable to accept assignment due to a
16-19 conflict of interest, resource limitations, or other good cause.
16-20 (d) If no public defender is obligated to review an indigent
16-21 defendant's case, or if the public defender organization that
16-22 received notice of the assignment indicates that the organization
16-23 is unable to accept the assignment, the pretrial services office
16-24 shall promptly assign counsel from its list of registered
16-25 attorneys.
17-1 (e) In making assignments from its list of registered
17-2 attorneys, each pretrial services office must:
17-3 (1) not assign any category D attorney to represent
17-4 any defendant;
17-5 (2) not assign any category C attorney to represent
17-6 any defendant who is charged with an unadjudicated felony offense
17-7 unless the defendant is also represented by a category A or B
17-8 attorney;
17-9 (3) assign a category A attorney to represent all
17-10 defendants who are accused of offenses classified as capital or
17-11 felonies of the first degree; and
17-12 (4) attempt to assign all attorneys of equal
17-13 classification with the same frequency, though the pretrial
17-14 services office must respect attorneys' limitations on the number
17-15 or types of assignments that they will accept.
17-16 (f) If Subarticle (e) precludes a pretrial services office
17-17 from assigning a registered attorney to represent a defendant, the
17-18 office shall provide notice of this fact to the local
17-19 administrative judge of the county in which the defendant is
17-20 charged. The administrative judge may establish any appropriate
17-21 procedure for appointing qualified counsel upon receiving such
17-22 notice from the pretrial services office, including, but not
17-23 limited to, permitting the pretrial services office to contact
17-24 other pretrial services offices in search of an appropriately
17-25 categorized attorney who agrees to accept the assignment.
18-1 (g) Upon assigning defense counsel in accord with this
18-2 Article, the pretrial services office shall promptly notify the
18-3 clerk of the court with jurisdiction over the defendant's case, the
18-4 state's attorney, the defendant, and the defendant's assigned
18-5 attorney of the assignment and of the defendant's present location.
18-6 (h) All assigned attorneys must communicate with their
18-7 clients within 72 hours after receiving notice of their assignment.
18-8 (i) Each assigned attorney shall represent the defendant
18-9 until charges are dismissed, the defendant is acquitted, appeals
18-10 are exhausted, or the attorney is relieved of duties by a court or
18-11 replaced by other counsel.
18-12 Art. 15A.11. Removal, Withdrawal, and Addition of Assigned Counsel
18-13 (a) The defendant, an assigned private attorney, or a public
18-14 defender organization may move the court for the removal or
18-15 withdrawal of assigned counsel, or for the assignment of additional
18-16 counsel, at any time that does not unreasonably delay or prejudice
18-17 the trial of the cause.
18-18 (b) Assigned counsel may be permitted to withdraw upon
18-19 demonstrating good cause for the withdrawal. Good cause includes,
18-20 but is not limited to: defendant's ability to afford retained
18-21 counsel, either because of a change in circumstances or an
18-22 intentional or deliberate failure by the defendant to accurately
18-23 report all income or assets; counsel's inability to effectively
18-24 represent the defendant due to other professional commitments; the
18-25 defendant's inability to effectively communicate with assigned
19-1 counsel; severe and irreconcilable discord between the defendant
19-2 and assigned counsel; a conflict of interest between the defendant
19-3 and assigned counsel; or other circumstances under which the
19-4 attorney's professional duty requires withdrawal.
19-5 (c) A defendant may be permitted to have an assigned counsel
19-6 removed and replacement counsel assigned upon demonstrating good
19-7 cause for the removal. Good cause includes, but is not limited to:
19-8 the defendant's desire to retain private counsel at the defendant's
19-9 own expense; neglect, inattention, or incompetence of assigned
19-10 counsel; discord or lack of trust and confidence between the
19-11 defendant and assigned counsel; or a conflict of interest between
19-12 the defendant and assigned counsel.
19-13 (d) A defendant may be permitted to have more than one
19-14 attorney assigned to the case upon demonstrating appropriate
19-15 circumstances for the addition of counsel. Appropriate
19-16 circumstances include, but are not limited to, complex cases where
19-17 the defendant articulates a specific need for additional assistance
19-18 of counsel.
19-19 (e) Upon granting a motion under this Article to remove,
19-20 permit withdrawal, or supplement counsel, the court shall notify
19-21 the pretrial services officer that assigned counsel is to be
19-22 removed, replaced, or supplemented. The court may direct the
19-23 pretrial services office to assign specific replacement or
19-24 additional counsel who are qualified and who have registered with
19-25 the pretrial services office.
20-1 (f) Upon assigning defense counsel in accord with the
20-2 court's order, the pretrial services officer shall promptly notify
20-3 the defendant, the defendant's former and present assigned
20-4 attorneys, and the state's attorney of the assignment and of the
20-5 defendant's present location. Subarticles 15A.10(h)-(i) apply to
20-6 counsel assigned under this Article.
20-7 (g) Upon receiving or discovering any evidence that a
20-8 defendant who has assigned counsel has available resources to
20-9 employ counsel, the pretrial services officer shall perform the
20-10 investigation necessary to form an opinion as to the extent to
20-11 which the defendant can pay for defense costs. The pretrial
20-12 services office shall immediately communicate any opinion formed
20-13 under this Article to both the commissioners' court and to assigned
20-14 counsel for the defendant. Commissioners may consider the timing
20-15 and content of such opinions in deciding whether to deny or limit
20-16 payments to assigned counsel under Article 15A.13.
20-17 Art. 15A.12. Defense Experts and Investigators
20-18 (a) A counsel, other than an attorney employed by a public
20-19 defender, who is assigned to represent a defendant in a criminal
20-20 proceeding, including a habeas corpus hearing, may incur reasonable
20-21 and necessary expenses for the investigation of facts relevant to
20-22 the charges against the defendant and for securing the assistance
20-23 of expert witnesses in the preparation and presentation of the
20-24 defendant's case. Reasonable and necessary expenses shall be
20-25 reimbursed to the assigned counsel in accord with Article 15A.13.
21-1 (b) Assigned counsel may request prepayment of reasonable
21-2 and necessary investigation and expert fees from the commissioners'
21-3 court or its designated representative. Commissioners may await a
21-4 judicial decision on the appropriateness of the fees, but they
21-5 shall remit county general funds in accord with any instructions
21-6 provided by the court with jurisdiction over the cause for which
21-7 the fees are requested.
21-8 Art. 15A.13. Payment of Assigned Counsel
21-9 (a) A counsel, other than an attorney employed by a public
21-10 defender organization, assigned to represent a defendant in a
21-11 criminal proceeding, including a habeas corpus hearing, shall be
21-12 paid a reasonable attorney's fee for performing the following
21-13 services, based on the time and labor required, the complexity of
21-14 the case, and the experience and ability of the assigned counsel:
21-15 (1) actual time spent in court representing the
21-16 defendant on criminal matters assigned by the pretrial services
21-17 office;
21-18 (2) reasonable and necessary time actually spent out
21-19 of court preparing the defendant's case, supported by any
21-20 documentation that a judge or a county commissioners' court
21-21 requires; and
21-22 (3) actual time spent preparing and presenting
21-23 appellate briefs, motions, and arguments to a court of appeals or
21-24 the Court of Criminal Appeals.
21-25 (b) A counsel, other than an attorney employed by a public
22-1 defender organization, assigned to represent a defendant in a
22-2 criminal proceeding shall be reimbursed according to this Article
22-3 for all expenses actually incurred in accord with Article 15A.12.
22-4 (c) No attorney is entitled to compensation or reimbursement
22-5 under this Article for services rendered to a defendant after the
22-6 attorney knew, or could have known from reasonable investigation of
22-7 known information, that a defendant had the financial resources to
22-8 compensate or reimburse the attorney for those services.
22-9 (d) All compensation under this Article shall be paid in
22-10 accord with a schedule of fees adopted by formal action of the
22-11 commissioners' court of each county. Each commissioners' court may
22-12 permit the judges of the county's district and county courts with
22-13 criminal jurisdiction to promulgate the fee schedule.
22-14 (e) Each fee schedule adopted shall include a fixed case
22-15 rate, minimum and maximum hourly rates, and minimum and maximum
22-16 daily rates, and shall provide a form for reporting the kinds,
22-17 quantities, and dates of services performed in each case.
22-18 (f) Each county commissioners' court shall formally
22-19 establish and publish a procedure for paying counsel assigned by
22-20 its pretrial services office.
22-21 (g) Assigned counsel may apply for interim payments for
22-22 services already rendered and expenses already incurred before
22-23 final disposition of a case. Commissioners shall provide payment
22-24 for services and expenses after a case is finally resolved and all
22-25 appeals exhausted, or when the pretrial services office indicates
23-1 that an attorney is no longer assigned to represent a defendant in
23-2 a pending case.
23-3 (h) If county officials and an assigned counsel cannot agree
23-4 on the proper amount of fees and expenses due the counsel under
23-5 this Article, either commissioners or the assigned counsel may
23-6 request ruling on this issue from the court in which the assigned
23-7 counsel claims to have spent the most time representing the
23-8 defendant.
23-9 (i) No agreement between county officials and assigned
23-10 counsel as to fee amount shall preclude the county officials from
23-11 demanding and collecting repayment of any amounts disbursed in
23-12 reliance on an inaccurate fee-report form.
23-13 (j) All disbursements under this Article shall be made from
23-14 the general fund of the county in which the prosecution was
23-15 instituted or habeas corpus hearing held.
23-16 (k) If a court determines that a defendant has financial
23-17 resources that enable the defendant to offset in part or in whole
23-18 the costs of legal services and related expenses provided under
23-19 this Chapter, the court may assess these costs against the
23-20 defendant in the amount that the court finds the defendant able to
23-21 pay.
23-22 SECTION 4: Article 16.01, Code of Criminal Procedure, is
23-23 amended to read as follows:
23-24 Art. 16.01. Examining Trial
23-25 When the accused has been brought before a magistrate for an
24-1 examining trial that officer shall proceed to examine into the
24-2 truth of the accusation made, allowing the accused, however,
24-3 sufficient time to <procure> secure counsel. <In a proper case,
24-4 the magistrate may appoint counsel to represent an accused in such
24-5 examining trial only, to be compensated as otherwise provided in
24-6 this Code.> The accused in any felony case shall have the right to
24-7 an examining trial before indictment in the county having
24-8 jurisdiction of the offense, whether he be in custody or on bail,
24-9 at which time the magistrate at the hearing shall determine the
24-10 amount or sufficiency of bail, if a bailable case. If the accused
24-11 has been transferred for criminal prosecution after a hearing under
24-12 Section 54.02, Family Code, the accused may be granted an examining
24-13 trial at the discretion of the court.
24-14 SECTION 5: Article 17.42, Code of Criminal Procedure, is
24-15 hereby repealed.
24-16 SECTION 6: Articles 26.04, 26.041, 26.042, 26.043, 26.044,
24-17 26.045, 26.046, 26.047, 26.048, 26.05, 26.050, Code of Criminal
24-18 Procedure, are hereby repealed.
24-19 SECTION 7: Article 26.051, Code of Criminal Procedure, is
24-20 amended and renumbered to read as follows:
24-21 Art. <26.051.> 15A.14. Indigent Inmate Defense
24-22 (a) In this article:
24-23 (1) "Board" means the Texas Board of Criminal Justice.
24-24 (2) "Institutional division" means the institutional
24-25 division of the Texas Department of Criminal Justice.
25-1 (b) This article applies only to the appointment of
25-2 attorneys for indigent inmate defendants made on or after August 1,
25-3 1990.
25-4 (c) A county in which a facility of the institutional
25-5 division or a correctional facility authorized by Section 495.001,
25-6 Government Code, is located shall, except as provided by Subsection
25-7 (f) of this article, pay from its general fund the total costs of
25-8 the aggregate sum allowed and awarded <by the court> for
25-9 attorney's fees under Article <26.05> 15A.13 of this code for an
25-10 assigned attorney <appointed by the court>, other than an attorney
25-11 provided by the board in Subsection (e) of this article, to defend
25-12 an indigent inmate.
25-13 (d) A court or a pretrial services office may notify the
25-14 board <if it determines> upon determining that a defendant <before
25-15 the court> accused of a crime pursuant to Article 15.17 is indigent
25-16 and is an inmate charged with an offense committed while in the
25-17 custody of the institutional division, and request that the board
25-18 provide legal representation for the inmate.
25-19 (e) The board shall provide legal representation for inmates
25-20 described by Subsection (d) of this section. The board may employ
25-21 attorneys, support staff, and any other personnel required to
25-22 provide legal representation for those inmates. All personnel
25-23 employed under this article are directly responsible to the board
25-24 in the performance of their duties. The board shall pay all fees
25-25 and costs associated with providing legal representation for those
26-1 inmates.
26-2 <(f) Repealed by Acts 1993, 73rd Leg., ch. 988, REWRITE
26-3 7.02, eff. Sept. 1, 1993.>
26-4 <(g)> (f) The court or the pretrial services office shall
26-5 <appoint> assign an attorney other than an attorney provided by
26-6 the board if the court determines for any of the following reasons
26-7 that a conflict of interest could arise from the use of an attorney
26-8 provided by the board under Subsection (e) of this article:
26-9 (1) the case involves more than one inmate and the
26-10 representation of more than one inmate could impair the attorney's
26-11 effectiveness;
26-12 (2) the case is appealed and the court is satisfied
26-13 that conflict of interest would prevent the presentation of a good
26-14 faith allegation of ineffective assistance of counsel by a trial
26-15 attorney provided by the board; or
26-16 (3) any conflict of interest exists under the Texas
26-17 Disciplinary Rules of Professional Conduct of the State Bar of
26-18 Texas that precludes representation by an attorney appointed by the
26-19 board.
26-20 <(h)> (g) When the court or pretrial services office assigns
26-21 <appoints> an attorney other than an attorney provided by the
26-22 board, the county shall pay from its general fund the first $250.00
26-23 of the aggregate sum allowed and awarded <by the court> for the
26-24 attorney fees under Article 15A.13 of this code. If the fees
26-25 awarded for an assigned <court-appointed> attorney in a case
27-1 described by this subsection exceed $250.00, the court shall
27-2 certify the amount in excess of $250.00 to the board. On request
27-3 of the board, the comptroller shall issue a warrant to the
27-4 <court-appointed> assigned attorney in the amount certified to the
27-5 board by the court.
27-6 SECTION 8: Article 26.055, Code of Criminal Procedure, is
27-7 renumbered, and Article 26.055(a), Code of Criminal Procedure, is
27-8 amended to read as follows:
27-9 Art. <26.055.> 15A.15. Contribution From State for Defense of
27-10 Indigent Inmates
27-11 Sec. 1. (a) This article applies only to an attorney
27-12 appointed <under Article 26.05 of this code> to defend an indigent
27-13 inmate before August 1, 1990 under the Article 26.05 of this Code
27-14 that was in effect on August 1, 1990.
27-15 SECTION 9: Articles 26.056 and 26.057, Code of Criminal
27-16 Procedure, are amended and renumbered to read as follows:
27-17 Art. <26.056.> 15A.16. Contribution From State in Certain Counties
27-18 Sec. 1. A county in which a state training school for delinquent
27-19 children is located shall pay from its general fund the first $250
27-20 of fees awarded for <court-appointed> assigned counsel under
27-21 <Article 26.05> this Chapter toward defending a child committed to
27-22 the school from another county who is being prosecuted for a felony
27-23 or misdemeanor in the county where the training school 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 Certain
28-6 Minors
28-7 If a juvenile has been transferred to a criminal court under
28-8 Section 54.02, Family Code, and if <a court appoints> counsel is
28-9 assigned for the juvenile under <Article 26.04 of> this <code>
28-10 Chapter, the county that pays for the counsel has a cause of action
28-11 against a parent or other person who is responsible for the support
28-12 of the juvenile and is financially able to employ counsel for the
28-13 juvenile but refuses to do so. The county may recover its cost of
28-14 payment to the <appointed> assigned counsel and may recover
28-15 attorney's fees necessary to prosecute the cause of action against
28-16 the parent or other person.
28-17 SECTION 10: Articles 26.058 and 26.06, Code of Criminal
28-18 Procedure, are hereby repealed.
28-19 SECTION 11: This bill is effective on September 1, 1995.
28-20 Nothing in this bill shall affect the validity or continuity of
28-21 appointments made or bail conditions established before September
28-22 1, 1995.
28-23 SECTION 12: The importance of this legislation and the
28-24 crowded condition of the calendars in both houses create an
28-25 emergency and an imperative public necessity that the
29-1 constitutional rule requiring bills to be read on three several
29-2 days in each house be suspended, and this rule is hereby suspended.