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