By Ellis S.B. No. 1080
75R7898 PEP-D
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. Article 1.051(c), Code of Criminal Procedure, is
1-6 amended to read as follows:
1-7 (c) An indigent defendant is entitled to have an attorney
1-8 appointed to represent him in any adversary judicial proceeding
1-9 that may result in punishment by confinement and in any other
1-10 criminal proceeding if the court concludes that the interests of
1-11 justice require representation. If an indigent defendant is
1-12 entitled to and requests appointed counsel, the court shall appoint
1-13 counsel to represent the defendant as soon as possible. If the
1-14 indigent defendant remains incarcerated pending trial after a
1-15 hearing under Article 15.17 of this code, the court shall appoint
1-16 counsel not later than the seventh day after the date on which the
1-17 defendant requests counsel. A failure to appoint counsel within
1-18 the seven-day period prescribed by this subsection is harmless
1-19 error unless the failure is intentional or the defendant
1-20 establishes that the failure resulted in prejudice to the
1-21 defendant.
1-22 SECTION 2. Article 15.17(a), Code of Criminal Procedure, is
1-23 amended to read as follows:
1-24 (a) In each case enumerated in this Code, the person making
2-1 the arrest shall without unnecessary delay take the person arrested
2-2 or have him taken before some magistrate of the county where the
2-3 accused was arrested or, if necessary to provide more expeditiously
2-4 to the person arrested the warnings described by this article,
2-5 before a magistrate in a county bordering the county in which the
2-6 arrest was made. The arrested person may be taken before the
2-7 magistrate in person or the image of the arrested person may be
2-8 broadcast by closed circuit television to the magistrate. The
2-9 magistrate shall inform in clear language the person arrested,
2-10 either in person or by closed circuit television, of the accusation
2-11 against him and of any affidavit filed therewith, of his right to
2-12 retain counsel, of his right to remain silent, of his right to have
2-13 an attorney present during any interview with peace officers or
2-14 attorneys representing the state, of his right to terminate the
2-15 interview at any time, of his right to request the appointment of
2-16 counsel if he is indigent and cannot afford counsel, and of his
2-17 right to have an examining trial. The magistrate shall orally
2-18 inform the person arrested of the procedures used in the county to
2-19 appoint counsel for indigent defendants and shall provide the
2-20 person with a written statement in a language understood by the
2-21 person: "If you cannot afford a lawyer to represent you in this
2-22 criminal case and you want to speak with a lawyer, you may submit a
2-23 request for appointed counsel to: (name, title, address, and
2-24 telephone number of an office or person presently designated by the
2-25 appropriate county officials to respond to counsel appointment
2-26 requests)." The magistrate [He] shall also inform the person
2-27 arrested that he is not required to make a statement and that any
3-1 statement made by him may be used against him. The magistrate
3-2 shall allow the person arrested reasonable time and opportunity to
3-3 consult counsel and shall admit the person arrested to bail if
3-4 allowed by law. A closed circuit television system may not be used
3-5 under this subsection unless the system provides for a two-way
3-6 communication of image and sound between the arrested person and
3-7 the magistrate. A recording of the communication between the
3-8 arrested person and the magistrate shall be made. The recording
3-9 shall be preserved until the earlier of the following dates:
3-10 (1) the date on which the pretrial hearing ends; or (2) the 91st
3-11 day after the date on which the recording is made if the person is
3-12 charged with a misdemeanor or the 120th day after the date on which
3-13 the recording is made if the person is charged with a felony. The
3-14 counsel for the defendant may obtain a copy of the recording on
3-15 payment of a reasonable amount to cover costs of reproduction.
3-16 SECTION 3. Chapter 26, Code of Criminal Procedure, is
3-17 amended by adding Article 26.049 to read as follows:
3-18 Art. 26.049. COUNTY AUTHORITY TO APPOINT PUBLIC DEFENDER;
3-19 COOPERATIVE EFFORTS. (a) The commissioners court of any county
3-20 may appoint an attorney to serve as the public defender. The
3-21 commissioners courts of two or more counties may enter a written
3-22 agreement to jointly appoint an attorney to serve as the regional
3-23 public defender. A public defender serves at the pleasure of the
3-24 appointing commissioners court or courts. A public defender
3-25 appointed under this article may hire and supervise other attorneys
3-26 and staff as necessary to carry out the duties of the office of
3-27 public defender.
4-1 (b) To be eligible for appointment as public defender under
4-2 this article, a person must:
4-3 (1) be a member of the State Bar of Texas;
4-4 (2) have practiced law for at least one year; and
4-5 (3) have experience in the practice of criminal law.
4-6 (c) The public defender is entitled to receive an annual
4-7 salary in an amount fixed by the commissioners court and paid out
4-8 of the appropriate county fund. If the commissioners courts of two
4-9 or more counties agree to jointly appoint a regional public
4-10 defender, those commissioners courts shall fix the amount of the
4-11 public defender's annual salary and the sources of payment for that
4-12 salary.
4-13 (d) Except as authorized by this article, a public defender
4-14 or an attorney employed by an office of public defender may not:
4-15 (1) engage in the private practice of criminal law; or
4-16 (2) accept anything of value not authorized by this
4-17 article for services rendered under this article.
4-18 (e) A public defender, attorney employed by the office of
4-19 public defender, or other attorney appointed by a court of
4-20 competent jurisdiction shall represent each indigent person who is
4-21 charged with a criminal offense and each indigent minor who is a
4-22 party to a juvenile delinquency proceeding in the county or
4-23 counties served.
4-24 (f) A public defender may investigate the financial
4-25 condition of any person the public defender is appointed to
4-26 represent and shall report the results of the investigation to the
4-27 appointing judge. The judge may hold a hearing to determine if the
5-1 person is indigent and entitled to representation under this
5-2 article.
5-3 (g) If an attorney other than a public defender is
5-4 appointed, the attorney is entitled to the compensation provided by
5-5 Article 26.05 of this code.
5-6 (h) This article does not apply to the appointment of a
5-7 public defender under Articles 26.042-26.048, 26.050, or 26.058 of
5-8 this chapter.
5-9 SECTION 4. Subchapter C, Chapter 72, Government Code, is
5-10 amended by adding Section 72.028 to read as follows:
5-11 Sec. 72.028. INDIGENT DEFENSE STATISTICS. (a) Each county
5-12 auditor and each county judge of a county for which an auditor has
5-13 not been appointed under Section 84.002, Local Government Code,
5-14 shall prepare and send to the office, not later than September 30th
5-15 of each year, a report that satisfies the requirements of
5-16 Subsection (b). As a duty of their office, each district and
5-17 county clerk shall cooperate with the county auditor or judge in
5-18 retrieving information for inclusion in the report. The county
5-19 auditor or judge shall send the report to the office in a form
5-20 prescribed by the office. The office may authorize the form to be
5-21 sent by electronic data transfer.
5-22 (b) The report shall include, with respect to legal services
5-23 provided by the county to indigent defendants during the preceding
5-24 fiscal year:
5-25 (1) a copy of all formal and informal rules and forms
5-26 that describe the procedures used in the county to provide indigent
5-27 defendants with counsel in accordance with the Code of Criminal
6-1 Procedure, including the schedule of fees required by Article
6-2 26.05(b) of that code;
6-3 (2) information on each criminal case in which county
6-4 funds were used to provide indigent defense services in accordance
6-5 with the Code of Criminal Procedure, including the case number,
6-6 court designation, name of the defendant and the attorney appointed
6-7 to represent the defendant, and the amount paid in attorney fees
6-8 and litigation costs; and
6-9 (3) the total amount expended by the county to provide
6-10 indigent defense services in a case in which:
6-11 (A) counsel is appointed for an indigent
6-12 juvenile under Section 51.10(i), Family Code;
6-13 (B) an issue concerning a defendant's competence
6-14 to stand trial has been raised under Article 46.02, Code of
6-15 Criminal Procedure; or
6-16 (C) a defendant is charged with the commission
6-17 of an offense punishable as a capital felony.
6-18 SECTION 5. This Act takes effect September 1, 1997. A
6-19 county auditor or county judge shall send to the Office of Court
6-20 Administration the first report required by Section 72.028,
6-21 Government Code, as added by this Act, on or before September 30,
6-22 1998.
6-23 SECTION 6. The importance of this legislation and the
6-24 crowded condition of the calendars in both houses create an
6-25 emergency and an imperative public necessity that the
6-26 constitutional rule requiring bills to be read on three several
6-27 days in each house be suspended, and this rule is hereby suspended.