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.  Subsection (c), Article 1.051, Code of Criminal
 1-5     Procedure, is amended to read as follows:
 1-6           (c)  An indigent defendant is entitled to have an attorney
 1-7     appointed to represent him in any adversary judicial proceeding
 1-8     that may result in punishment by confinement and in any other
 1-9     criminal proceeding if the court concludes that the interests of
1-10     justice require representation.  If an indigent defendant is
1-11     entitled to and requests appointed counsel, the court shall appoint
1-12     counsel to represent the defendant as soon as possible. If the
1-13     indigent defendant remains incarcerated pending trial after a
1-14     hearing under Article 15.17, the appointing authority for the court
1-15     shall appoint counsel not later than the 20th day after the date on
1-16     which the defendant requests counsel.  A failure to appoint counsel
1-17     within the 20-day period prescribed by this subsection may result
1-18     in a required release of the defendant under Article 17.151.
1-19     Release of the defendant under Article 17.151 is the exclusive
1-20     remedy for a failure to appoint counsel within the 20-day period.
1-21           SECTION 2.  Subsection (a), Article 15.17, Code of Criminal
1-22     Procedure, is amended to read as follows:
1-23           (a)  In each case enumerated in this Code, the person making
1-24     the arrest shall without unnecessary delay take the person arrested
 2-1     or have him taken before some magistrate of the county where the
 2-2     accused was arrested or, if necessary to provide more expeditiously
 2-3     to the person arrested the warnings described by this article,
 2-4     before a magistrate in a county bordering the county in which the
 2-5     arrest was made.  The arrested person may be taken before the
 2-6     magistrate in person or the image of the arrested person may be
 2-7     broadcast by closed circuit television to the magistrate.  The
 2-8     magistrate shall inform in clear language the person arrested,
 2-9     either in person or by closed circuit television, of the accusation
2-10     against him and of any affidavit filed therewith, of his right to
2-11     retain counsel, of his right to remain silent, of his right to have
2-12     an attorney present during any interview with peace officers or
2-13     attorneys representing the state, of his right to terminate the
2-14     interview at any time, of his right to request the appointment of
2-15     counsel if he is indigent and cannot afford counsel, and of his
2-16     right to have an examining trial.  The magistrate shall inform the
2-17     person arrested orally and in writing of the procedures used in the
2-18     county to appoint counsel for indigent defendants and shall provide
2-19     the person with the following written statement in a language
2-20     understood by the person:  "If you want a lawyer to represent you
2-21     in this criminal case but you do not have enough money to hire a
2-22     lawyer, you can get a lawyer by submitting a request to:  (name,
2-23     title, address, and telephone number of a person designated by the
2-24     appropriate county officials to respond to counsel appointment
2-25     requests)."  The magistrate [He] shall also inform the person
2-26     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.  Article 17.151, Code of Criminal Procedure, is
3-17     amended by amending Sections 1 and 2 and by adding Section 4 to
3-18     read as follows:
3-19           Sec. 1.  A defendant who is detained in jail pending trial of
3-20     an accusation against him must be released either on personal bond
3-21     or by reducing the amount of bail required, if:
3-22                 (1)  the state is not ready for trial of the criminal
3-23     action for which he is being detained within:
3-24                       (A) [(1)]  90 days from the commencement of his
3-25     detention if he is accused of a felony;
3-26                       (B) [(2)]  30 days from the commencement of his
 4-1     detention if he is accused of a misdemeanor punishable by a
 4-2     sentence of imprisonment in jail for more than 180 days;
 4-3                       (C) [(3)]  15 days from the commencement of his
 4-4     detention if he is accused of a misdemeanor punishable by a
 4-5     sentence of imprisonment for 180 days or less; or
 4-6                       (D) [(4)]  five days from the commencement of his
 4-7     detention if he is accused of a misdemeanor punishable by a fine
 4-8     only; or
 4-9                 (2)  the appointing authority for the county fails to
4-10     appoint counsel before the 21st day after the date on which the
4-11     defendant requests counsel under Article 1.051(c).
4-12           Sec. 2.  Subdivision (1) of Section 1 [The provisions] of
4-13     this article does [do] not apply to a defendant who is:
4-14                 (1)  serving a sentence of imprisonment for another
4-15     offense while he is serving that sentence;
4-16                 (2)  being detained pending trial of another accusation
4-17     against him as to which the applicable period has not yet elapsed;
4-18     or
4-19                 (3)  incompetent to stand trial, during the period of
4-20     his incompetence.
4-21           Sec. 4.  Notwithstanding Subdivision (2) of Section 1 of this
4-22     article, if the appointing authority fails to appoint counsel
4-23     before the deadline specified by that subdivision, the defendant
4-24     may be detained at any time after counsel is appointed and the
4-25     defendant is provided an opportunity to confer with appointed
4-26     counsel.
 5-1           SECTION 4.  The heading to Article 26.04, Code of Criminal
 5-2     Procedure, is amended to read as follows:
 5-3           Art. 26.04.  APPOINTMENT OF [COURT SHALL APPOINT] COUNSEL.
 5-4           SECTION 5.  Subsection (a), Article 26.04, Code of Criminal
 5-5     Procedure, is amended to read as follows:
 5-6           (a)  The county commissioners court shall establish
 5-7     procedures to govern the provision of legal services to an indigent
 5-8     person accused of having committed a criminal offense in the county
 5-9     and shall designate the appointing authority for the county.
5-10     Whenever the court determines that a defendant charged with a
5-11     felony or a misdemeanor punishable by imprisonment is indigent or
5-12     that the interests of justice require representation of a defendant
5-13     in a criminal proceeding, the appointing authority [court] shall
5-14     appoint one or more practicing attorneys to defend him.  An
5-15     attorney appointed under this subsection may be a  public defender
5-16     or a private attorney.  The appointing authority shall evenly
5-17     distribute appointments among qualified attorneys according to a
5-18     public list, except that the appointing authority may appoint a
5-19     particular attorney out of order if the appointing authority
5-20     provides a written statement for the record stating the reason for
5-21     that appointment.  An attorney appointed under this subsection
5-22     shall represent the defendant until charges are dismissed, the
5-23     defendant is acquitted, appeals are exhausted, or the attorney is
5-24     relieved of his duties by the court for cause stated in the record
5-25     or is replaced by other counsel.
5-26           SECTION 6.  Article 26.044, Code of Criminal Procedure, is
 6-1     amended to read as follows:
 6-2           Art. 26.044.  REGIONAL PUBLIC DEFENDERS [DEFENDER IN COUNTY
 6-3     WITH FOUR COUNTY COURTS AND FOUR DISTRICT COURTS].  (a)  The
 6-4     commissioners court of any county [having four county courts and
 6-5     four district courts] may appoint an attorney or a nonprofit
 6-6     corporation established to provide legal services to the indigent
 6-7     [one or more attorneys] to serve as the [a] public defender.  A
 6-8     public defender serves at the pleasure of the commissioners court.
 6-9     The commissioners courts of two or more counties may enter a
6-10     written agreement to jointly fund and appoint a regional public
6-11     defender.  Each public defender may hire and supervise other
6-12     attorneys and staff as necessary to carry out the duties of the
6-13     office of public defender.
6-14           (b)  To be eligible for appointment as a public defender, the
6-15     appointee or the appointee's executive director, if the appointee
6-16     is a nonprofit corporation, [a person] must:
6-17                 (1)  be a member of the State Bar of Texas;
6-18                 (2)  have practiced law for at least one year; and
6-19                 (3)  have experience in the practice of criminal law.
6-20           (c)  The public defender is entitled to receive an annual
6-21     salary in an amount fixed by the commissioners court and paid out
6-22     of the appropriate county fund.
6-23           (d)  Except as authorized by this article, a public defender
6-24     or an attorney employed by the office of the public defender may
6-25     not:
6-26                 (1)  engage in the private practice of criminal law; or
 7-1                 (2)  accept anything of value not authorized by this
 7-2     article for services rendered under this article.
 7-3           (e)  The commissioners court [judge] may remove a public
 7-4     defender who violates a provision of Subsection (d) of this
 7-5     article.
 7-6           (f)  A public defender or an appointed attorney [appointed by
 7-7     a court of competent jurisdiction] shall represent each indigent
 7-8     person who is charged with a criminal offense in the [a] county or
 7-9     counties served [having at least four county courts and at least
7-10     four district courts] and each indigent minor who is a party to a
7-11     juvenile delinquency proceeding in the county or counties served.
7-12           (g)  A public defender may investigate the financial
7-13     condition of any person the public defender is appointed to
7-14     represent.  The defender shall report the results of the
7-15     investigation to the appointing authority [judge].  The judge
7-16     having jurisdiction over the complaint or other charging instrument
7-17     may hold a hearing to determine if the person is indigent and
7-18     entitled to representation under this article.
7-19           (h)  If an attorney other than a public defender is
7-20     appointed, the attorney is entitled to the compensation provided by
7-21     Article 26.05 of this code.
7-22           (i)  At any stage of the proceeding, including appeal or
7-23     other postconviction proceedings, the appointing authority [judge]
7-24     may appoint another attorney to represent the person.  The
7-25     substitute attorney is entitled to the compensation provided by
7-26     Article 26.05 of this code.
 8-1           (j)  Except for the provisions relating to daily appearance
 8-2     fees, Article 26.05 of this code applies to a public defender
 8-3     appointed under this article.
 8-4           SECTION 7.  Article 26.05, Code of Criminal Procedure, is
 8-5     amended to read as follows:
 8-6           Art. 26.05.  COMPENSATION OF COUNSEL APPOINTED TO DEFEND.
 8-7     (a)  A counsel, other than an attorney with a public defender's
 8-8     office, appointed to represent a defendant in a criminal
 8-9     proceeding, including a habeas corpus hearing, shall be [reimbursed
8-10     for reasonable expenses incurred with prior court approval for
8-11     purposes of investigation and expert testimony and shall be] paid a
8-12     reasonable attorney's fee for performing the following services,
8-13     based on the time and labor required, the complexity of the case,
8-14     and the experience and ability of the appointed counsel:
8-15                 (1)  time spent in court making an appearance on behalf
8-16     of the defendant as evidenced by a docket entry, time spent in
8-17     trial, or time spent in a proceeding in which sworn oral testimony
8-18     is elicited;
8-19                 (2)  reasonable and necessary time spent out of court
8-20     on the case, supported by any documentation that the appointing
8-21     authority [court] requires; and
8-22                 (3)  preparation of an appellate brief to a court of
8-23     appeals or the Court of Criminal Appeals.
8-24           (b)  All payments made under this article shall be paid in
8-25     accordance with a schedule of fees adopted by formal action of the
8-26     commissioners [county and district criminal] court [judges within
 9-1     each county, except that in a county with only one judge with
 9-2     criminal jurisdiction the schedule will be adopted by the
 9-3     administrative judge for that judicial district].
 9-4           (c)  Each fee schedule adopted will include a fixed rate,
 9-5     minimum and maximum hourly rates, and daily rates and will provide
 9-6     a form for reporting the types of services performed in each one.
 9-7     No payment shall be made under this section until the form for
 9-8     reporting the services performed is submitted and approved by the
 9-9     county auditor [court] and is in accordance with the fee schedule
9-10     for that county.  Not later than the 30th day after the date on
9-11     which the county auditor receives an application for payment of a
9-12     fee under this article, the county auditor shall complete an
9-13     investigation of the amount due and shall issue the amount the
9-14     county auditor determines is appropriate.  The county auditor may
9-15     establish an administrative procedure to be used to settle any
9-16     disagreement as to the appropriate amount of the fee.  In a county
9-17     not served by a county auditor appointed under Section 84.002,
9-18     Local Government Code, the county commissioners court shall
9-19     designate a person to carry out the responsibilities described by
9-20     this subsection.
9-21           (d)  A counsel, other than an attorney with a public
9-22     defender's office, appointed to represent a defendant in a criminal
9-23     proceeding shall be reimbursed for reasonable expenses incurred
9-24     with prior court approval in the manner provided by Articles
9-25     26.052(f) and (g) or may be reimbursed for expenses incurred
9-26     without prior court approval in the manner provided by Article
 10-1    26.052(h).
 10-2          (e)  All payments made under this article shall be paid from
 10-3    the general fund of the county in which the prosecution was
 10-4    instituted or habeas corpus hearing held and may be included as
 10-5    costs of court.
 10-6          (f) [(e)]  If the appointing authority [court] determines
 10-7    that a defendant has financial resources that enable him to offset
 10-8    in part or in whole the costs of the legal services provided,
 10-9    including any expenses and costs, the appointing authority [court]
10-10    shall order the defendant to pay the amount that it finds the
10-11    defendant is able to pay.
10-12          SECTION 8.  Subchapter C, Chapter 71, Government Code, is
10-13    amended by adding Section 71.0351 to read as follows:
10-14          Sec. 71.0351.  INDIGENT DEFENSE INFORMATION.  (a)  Each
10-15    county auditor shall prepare and send to the council's office of
10-16    court administration, not later than September 30 of each year, a
10-17    report that satisfies the requirements of Subsection (b).  In a
10-18    county for which an auditor has not been appointed under Section
10-19    84.002, Local Government Code, the county commissioners court shall
10-20    designate a person to carry out the responsibilities described by
10-21    this section.  As a duty of their office, each district and county
10-22    clerk shall cooperate with the county auditor or judge in
10-23    retrieving information for inclusion in the report.  The county
10-24    auditor or judge shall send the report to the office in a form
10-25    prescribed by the office.  The office may authorize the form to be
10-26    sent by electronic data transfer.
 11-1          (b)  The report shall be prepared in the form and manner
 11-2    prescribed by the council's office of court administration and
 11-3    shall include, with respect to legal services provided by the
 11-4    county to indigent defendants during the preceding fiscal year:
 11-5                (1)  a copy of all formal and informal rules and forms
 11-6    that describe the procedures used in the county to provide indigent
 11-7    defendants with counsel in accordance with the Code of Criminal
 11-8    Procedure, including the schedule of fees required by Article
 11-9    26.05(b) of that code;
11-10                (2)  information on each criminal case in which county
11-11    funds were used to provide indigent defense services in accordance
11-12    with the Code of Criminal Procedure, including the case number,
11-13    court designation, name of the defendant and the attorney appointed
11-14    to represent the defendant, the amount of time spent on the case by
11-15    the attorney appointed to represent the defendant, and the amounts
11-16    requested and paid in attorney's fees and litigation costs,
11-17    including amounts expended to cover the costs of investigation and
11-18    expert witness fees; and
11-19                (3)  the total amount expended by the county to provide
11-20    indigent defense services and an analysis of the amount expended by
11-21    the county:
11-22                      (A)  in each district and county court, as
11-23    reported by the court;
11-24                      (B)  in cases for which a public defender is
11-25    appointed and in cases for which a private attorney is appointed
11-26    for an indigent defendant;
 12-1                      (C)  in cases, other than those for which a
 12-2    public defender is appointed, in which:
 12-3                            (i)  an issue concerning the defendant's
 12-4    competence to stand trial has been raised under Article 46.02, Code
 12-5    of Criminal Procedure; or
 12-6                            (ii)  a defendant is charged with the
 12-7    commission of an offense punishable as a capital felony; and
 12-8                      (D)  in cases for which counsel is appointed for
 12-9    an indigent juvenile under Section 51.10(i), Family Code.
12-10          SECTION 9.  Articles 26.041, 26.042, 26.043, 26.045, 26.046,
12-11    26.047, 26.048, 26.049, and 26.050, Code of Criminal Procedure, are
12-12    repealed.
12-13          SECTION 10.  (a)  This Act takes effect September 1, 1999,
12-14    and applies only to a defendant charged with having committed an
12-15    offense on or after the effective date of this Act and to the
12-16    appointment of counsel for that defendant.  A defendant charged
12-17    with having committed an offense before the effective date of this
12-18    Act is covered by the law when the offense was committed, and the
12-19    former law is continued in effect for that purpose.
12-20          (b)  A county auditor or other person designated under
12-21    Section 71.0351, Government Code, as added by this Act, shall send
12-22    to the office of court administration of the Texas Judicial Council
12-23    the first report required by that section on or before September
12-24    30, 2000.
12-25          SECTION 11.  The importance of this legislation and the
12-26    crowded condition of the calendars in both houses create an
 13-1    emergency and an imperative public necessity that the
 13-2    constitutional rule requiring bills to be read on three several
 13-3    days in each house be suspended, and this rule is hereby suspended.
         _______________________________     _______________________________
             President of the Senate              Speaker of the House
               I hereby certify that S.B. No. 247 passed the Senate on
         April 30, 1999, by a viva-voce vote.
                                             _______________________________
                                                 Secretary of the Senate
               I hereby certify that S.B. No. 247 passed the House on
         May 25, 1999, by a non-record vote.
                                             _______________________________
                                                 Chief Clerk of the House
         Approved:
         _______________________________
                     Date
         _______________________________
                   Governor