1-1 By: Ellis, West S.B. No. 247
1-2 (In the Senate - Filed January 22, 1999; January 28, 1999,
1-3 read first time and referred to Committee on Criminal Justice;
1-4 April 26, 1999, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 7, Nays 0; April 26, 1999,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 247 By: Duncan
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to defense and pretrial information gathering standards
1-11 for indigent people who are accused of crime.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Subsection (c), Article 1.051, Code of Criminal
1-14 Procedure, is amended to read as follows:
1-15 (c) An indigent defendant is entitled to have an attorney
1-16 appointed to represent him in any adversary judicial proceeding
1-17 that may result in punishment by confinement and in any other
1-18 criminal proceeding if the court concludes that the interests of
1-19 justice require representation. If an indigent defendant is
1-20 entitled to and requests appointed counsel, the court shall appoint
1-21 counsel to represent the defendant as soon as possible. If the
1-22 indigent defendant remains incarcerated pending trial after a
1-23 hearing under Article 15.17, the appointing authority for the court
1-24 shall appoint counsel not later than the 20th day after the date on
1-25 which the defendant requests counsel. A failure to appoint counsel
1-26 within the 20-day period prescribed by this subsection may result
1-27 in a required release of the defendant under Article 17.151.
1-28 Release of the defendant under Article 17.151 is the exclusive
1-29 remedy for a failure to appoint counsel within the 20-day period.
1-30 SECTION 2. Subsection (a), Article 15.17, Code of Criminal
1-31 Procedure, is amended to read as follows:
1-32 (a) In each case enumerated in this Code, the person making
1-33 the arrest shall without unnecessary delay take the person arrested
1-34 or have him taken before some magistrate of the county where the
1-35 accused was arrested or, if necessary to provide more expeditiously
1-36 to the person arrested the warnings described by this article,
1-37 before a magistrate in a county bordering the county in which the
1-38 arrest was made. The arrested person may be taken before the
1-39 magistrate in person or the image of the arrested person may be
1-40 broadcast by closed circuit television to the magistrate. The
1-41 magistrate shall inform in clear language the person arrested,
1-42 either in person or by closed circuit television, of the accusation
1-43 against him and of any affidavit filed therewith, of his right to
1-44 retain counsel, of his right to remain silent, of his right to have
1-45 an attorney present during any interview with peace officers or
1-46 attorneys representing the state, of his right to terminate the
1-47 interview at any time, of his right to request the appointment of
1-48 counsel if he is indigent and cannot afford counsel, and of his
1-49 right to have an examining trial. The magistrate shall inform the
1-50 person arrested orally and in writing of the procedures used in the
1-51 county to appoint counsel for indigent defendants and shall provide
1-52 the person with the following written statement in a language
1-53 understood by the person: "If you want a lawyer to represent you
1-54 in this criminal case but you do not have enough money to hire a
1-55 lawyer, you can get a lawyer by submitting a request to: (name,
1-56 title, address, and telephone number of a person designated by the
1-57 appropriate county officials to respond to counsel appointment
1-58 requests)." The magistrate [He] shall also inform the person
1-59 arrested that he is not required to make a statement and that any
1-60 statement made by him may be used against him. The magistrate
1-61 shall allow the person arrested reasonable time and opportunity to
1-62 consult counsel and shall admit the person arrested to bail if
1-63 allowed by law. A closed circuit television system may not be used
1-64 under this subsection unless the system provides for a two-way
2-1 communication of image and sound between the arrested person and
2-2 the magistrate. A recording of the communication between the
2-3 arrested person and the magistrate shall be made. The recording
2-4 shall be preserved until the earlier of the following dates:
2-5 (1) the date on which the pretrial hearing ends; or (2) the 91st
2-6 day after the date on which the recording is made if the person is
2-7 charged with a misdemeanor or the 120th day after the date on which
2-8 the recording is made if the person is charged with a felony. The
2-9 counsel for the defendant may obtain a copy of the recording on
2-10 payment of a reasonable amount to cover costs of reproduction.
2-11 SECTION 3. Article 17.151, Code of Criminal Procedure, is
2-12 amended by amending Sections 1 and 2 and by adding Section 4 to
2-13 read as follows:
2-14 Sec. 1. A defendant who is detained in jail pending trial of
2-15 an accusation against him must be released either on personal bond
2-16 or by reducing the amount of bail required, if:
2-17 (1) the state is not ready for trial of the criminal
2-18 action for which he is being detained within:
2-19 (A) [(1)] 90 days from the commencement of his
2-20 detention if he is accused of a felony;
2-21 (B) [(2)] 30 days from the commencement of his
2-22 detention if he is accused of a misdemeanor punishable by a
2-23 sentence of imprisonment in jail for more than 180 days;
2-24 (C) [(3)] 15 days from the commencement of his
2-25 detention if he is accused of a misdemeanor punishable by a
2-26 sentence of imprisonment for 180 days or less; or
2-27 (D) [(4)] five days from the commencement of his
2-28 detention if he is accused of a misdemeanor punishable by a fine
2-29 only; or
2-30 (2) the appointing authority for the county fails to
2-31 appoint counsel before the 21st day after the date on which the
2-32 defendant requests counsel under Article 1.051(c).
2-33 Sec. 2. Subdivision (1) of Section 1 [The provisions] of
2-34 this article does [do] not apply to a defendant who is:
2-35 (1) serving a sentence of imprisonment for another
2-36 offense while he is serving that sentence;
2-37 (2) being detained pending trial of another accusation
2-38 against him as to which the applicable period has not yet elapsed;
2-39 or
2-40 (3) incompetent to stand trial, during the period of
2-41 his incompetence.
2-42 Sec. 4. Notwithstanding Subdivision (2) of Section 1 of this
2-43 article, if the appointing authority fails to appoint counsel
2-44 before the deadline specified by that subdivision, the defendant
2-45 may be detained at any time after counsel is appointed and the
2-46 defendant is provided an opportunity to confer with appointed
2-47 counsel.
2-48 SECTION 4. The heading to Article 26.04, Code of Criminal
2-49 Procedure, is amended to read as follows:
2-50 Art. 26.04. APPOINTMENT OF [COURT SHALL APPOINT] COUNSEL.
2-51 SECTION 5. Subsection (a), Article 26.04, Code of Criminal
2-52 Procedure, is amended to read as follows:
2-53 (a) The county commissioners court shall establish
2-54 procedures to govern the provision of legal services to an indigent
2-55 person accused of having committed a criminal offense in the county
2-56 and shall designate the appointing authority for the county.
2-57 Whenever the court determines that a defendant charged with a
2-58 felony or a misdemeanor punishable by imprisonment is indigent or
2-59 that the interests of justice require representation of a defendant
2-60 in a criminal proceeding, the appointing authority [court] shall
2-61 appoint one or more practicing attorneys to defend him. An
2-62 attorney appointed under this subsection may be a public defender
2-63 or a private attorney. The appointing authority shall evenly
2-64 distribute appointments among qualified attorneys according to a
2-65 public list, except that the appointing authority may appoint a
2-66 particular attorney out of order if the appointing authority
2-67 provides a written statement for the record stating the reason for
2-68 that appointment. An attorney appointed under this subsection
2-69 shall represent the defendant until charges are dismissed, the
3-1 defendant is acquitted, appeals are exhausted, or the attorney is
3-2 relieved of his duties by the court for cause stated in the record
3-3 or is replaced by other counsel.
3-4 SECTION 6. Article 26.044, Code of Criminal Procedure, is
3-5 amended to read as follows:
3-6 Art. 26.044. REGIONAL PUBLIC DEFENDERS [DEFENDER IN COUNTY
3-7 WITH FOUR COUNTY COURTS AND FOUR DISTRICT COURTS]. (a) The
3-8 commissioners court of any county [having four county courts and
3-9 four district courts] may appoint an attorney or a nonprofit
3-10 corporation established to provide legal services to the indigent
3-11 [one or more attorneys] to serve as the [a] public defender. A
3-12 public defender serves at the pleasure of the commissioners court.
3-13 The commissioners courts of two or more counties may enter a
3-14 written agreement to jointly fund and appoint a regional public
3-15 defender. Each public defender may hire and supervise other
3-16 attorneys and staff as necessary to carry out the duties of the
3-17 office of public defender.
3-18 (b) To be eligible for appointment as a public defender, the
3-19 appointee or the appointee's executive director, if the appointee
3-20 is a nonprofit corporation, [a person] must:
3-21 (1) be a member of the State Bar of Texas;
3-22 (2) have practiced law for at least one year; and
3-23 (3) have experience in the practice of criminal law.
3-24 (c) The public defender is entitled to receive an annual
3-25 salary in an amount fixed by the commissioners court and paid out
3-26 of the appropriate county fund.
3-27 (d) Except as authorized by this article, a public defender
3-28 or an attorney employed by the office of the public defender may
3-29 not:
3-30 (1) engage in the private practice of criminal law; or
3-31 (2) accept anything of value not authorized by this
3-32 article for services rendered under this article.
3-33 (e) The commissioners court [judge] may remove a public
3-34 defender who violates a provision of Subsection (d) of this
3-35 article.
3-36 (f) A public defender or an appointed attorney [appointed by
3-37 a court of competent jurisdiction] shall represent each indigent
3-38 person who is charged with a criminal offense in the [a] county or
3-39 counties served [having at least four county courts and at least
3-40 four district courts] and each indigent minor who is a party to a
3-41 juvenile delinquency proceeding in the county or counties served.
3-42 (g) A public defender may investigate the financial
3-43 condition of any person the public defender is appointed to
3-44 represent. The defender shall report the results of the
3-45 investigation to the appointing authority [judge]. The judge
3-46 having jurisdiction over the complaint or other charging instrument
3-47 may hold a hearing to determine if the person is indigent and
3-48 entitled to representation under this article.
3-49 (h) If an attorney other than a public defender is
3-50 appointed, the attorney is entitled to the compensation provided by
3-51 Article 26.05 of this code.
3-52 (i) At any stage of the proceeding, including appeal or
3-53 other postconviction proceedings, the appointing authority [judge]
3-54 may appoint another attorney to represent the person. The
3-55 substitute attorney is entitled to the compensation provided by
3-56 Article 26.05 of this code.
3-57 (j) Except for the provisions relating to daily appearance
3-58 fees, Article 26.05 of this code applies to a public defender
3-59 appointed under this article.
3-60 SECTION 7. Article 26.05, Code of Criminal Procedure, is
3-61 amended to read as follows:
3-62 Art. 26.05. COMPENSATION OF COUNSEL APPOINTED TO DEFEND.
3-63 (a) A counsel, other than an attorney with a public defender's
3-64 office, appointed to represent a defendant in a criminal
3-65 proceeding, including a habeas corpus hearing, shall be [reimbursed
3-66 for reasonable expenses incurred with prior court approval for
3-67 purposes of investigation and expert testimony and shall be] paid a
3-68 reasonable attorney's fee for performing the following services,
3-69 based on the time and labor required, the complexity of the case,
4-1 and the experience and ability of the appointed counsel:
4-2 (1) time spent in court making an appearance on behalf
4-3 of the defendant as evidenced by a docket entry, time spent in
4-4 trial, or time spent in a proceeding in which sworn oral testimony
4-5 is elicited;
4-6 (2) reasonable and necessary time spent out of court
4-7 on the case, supported by any documentation that the appointing
4-8 authority [court] requires; and
4-9 (3) preparation of an appellate brief to a court of
4-10 appeals or the Court of Criminal Appeals.
4-11 (b) All payments made under this article shall be paid in
4-12 accordance with a schedule of fees adopted by formal action of the
4-13 commissioners [county and district criminal] court [judges within
4-14 each county, except that in a county with only one judge with
4-15 criminal jurisdiction the schedule will be adopted by the
4-16 administrative judge for that judicial district].
4-17 (c) Each fee schedule adopted will include a fixed rate,
4-18 minimum and maximum hourly rates, and daily rates and will provide
4-19 a form for reporting the types of services performed in each one.
4-20 No payment shall be made under this section until the form for
4-21 reporting the services performed is submitted and approved by the
4-22 county auditor [court] and is in accordance with the fee schedule
4-23 for that county. Not later than the 30th day after the date on
4-24 which the county auditor receives an application for payment of a
4-25 fee under this article, the county auditor shall complete an
4-26 investigation of the amount due and shall issue the amount the
4-27 county auditor determines is appropriate. The county auditor may
4-28 establish an administrative procedure to be used to settle any
4-29 disagreement as to the appropriate amount of the fee. In a county
4-30 not served by a county auditor appointed under Section 84.002,
4-31 Local Government Code, the county commissioners court shall
4-32 designate a person to carry out the responsibilities described by
4-33 this subsection.
4-34 (d) A counsel, other than an attorney with a public
4-35 defender's office, appointed to represent a defendant in a criminal
4-36 proceeding shall be reimbursed for reasonable expenses incurred
4-37 with prior court approval in the manner provided by Articles
4-38 26.052(f) and (g) or may be reimbursed for expenses incurred
4-39 without prior court approval in the manner provided by Article
4-40 26.052(h).
4-41 (e) All payments made under this article shall be paid from
4-42 the general fund of the county in which the prosecution was
4-43 instituted or habeas corpus hearing held and may be included as
4-44 costs of court.
4-45 (f) [(e)] If the appointing authority [court] determines
4-46 that a defendant has financial resources that enable him to offset
4-47 in part or in whole the costs of the legal services provided,
4-48 including any expenses and costs, the appointing authority [court]
4-49 shall order the defendant to pay the amount that it finds the
4-50 defendant is able to pay.
4-51 SECTION 8. Subchapter C, Chapter 71, Government Code, is
4-52 amended by adding Section 71.0351 to read as follows:
4-53 Sec. 71.0351. INDIGENT DEFENSE INFORMATION. (a) Each
4-54 county auditor shall prepare and send to the council's office of
4-55 court administration, not later than September 30 of each year, a
4-56 report that satisfies the requirements of Subsection (b). In a
4-57 county for which an auditor has not been appointed under Section
4-58 84.002, Local Government Code, the county commissioners court shall
4-59 designate a person to carry out the responsibilities described by
4-60 this section. As a duty of their office, each district and county
4-61 clerk shall cooperate with the county auditor or judge in
4-62 retrieving information for inclusion in the report. The county
4-63 auditor or judge shall send the report to the office in a form
4-64 prescribed by the office. The office may authorize the form to be
4-65 sent by electronic data transfer.
4-66 (b) The report shall be prepared in the form and manner
4-67 prescribed by the council's office of court administration and
4-68 shall include, with respect to legal services provided by the
4-69 county to indigent defendants during the preceding fiscal year:
5-1 (1) a copy of all formal and informal rules and forms
5-2 that describe the procedures used in the county to provide indigent
5-3 defendants with counsel in accordance with the Code of Criminal
5-4 Procedure, including the schedule of fees required by Article
5-5 26.05(b) of that code;
5-6 (2) information on each criminal case in which county
5-7 funds were used to provide indigent defense services in accordance
5-8 with the Code of Criminal Procedure, including the case number,
5-9 court designation, name of the defendant and the attorney appointed
5-10 to represent the defendant, the amount of time spent on the case by
5-11 the attorney appointed to represent the defendant, and the amounts
5-12 requested and paid in attorney's fees and litigation costs,
5-13 including amounts expended to cover the costs of investigation and
5-14 expert witness fees; and
5-15 (3) the total amount expended by the county to provide
5-16 indigent defense services and an analysis of the amount expended by
5-17 the county:
5-18 (A) in each district and county court, as
5-19 reported by the court;
5-20 (B) in cases for which a public defender is
5-21 appointed and in cases for which a private attorney is appointed
5-22 for an indigent defendant;
5-23 (C) in cases, other than those for which a
5-24 public defender is appointed, in which:
5-25 (i) an issue concerning the defendant's
5-26 competence to stand trial has been raised under Article 46.02, Code
5-27 of Criminal Procedure; or
5-28 (ii) a defendant is charged with the
5-29 commission of an offense punishable as a capital felony; and
5-30 (D) in cases for which counsel is appointed for
5-31 an indigent juvenile under Section 51.10(i), Family Code.
5-32 SECTION 9. Articles 26.041, 26.042, 26.043, 26.045, 26.046,
5-33 26.047, 26.048, 26.049, and 26.050, Code of Criminal Procedure, are
5-34 repealed.
5-35 SECTION 10. (a) This Act takes effect September 1, 1999,
5-36 and applies only to a defendant charged with having committed an
5-37 offense on or after the effective date of this Act and to the
5-38 appointment of counsel for that defendant. A defendant charged
5-39 with having committed an offense before the effective date of this
5-40 Act is covered by the law when the offense was committed, and the
5-41 former law is continued in effect for that purpose.
5-42 (b) A county auditor or other person designated under
5-43 Section 71.0351, Government Code, as added by this Act, shall send
5-44 to the office of court administration of the Texas Judicial Council
5-45 the first report required by that section on or before September
5-46 30, 2000.
5-47 SECTION 11. The importance of this legislation and the
5-48 crowded condition of the calendars in both houses create an
5-49 emergency and an imperative public necessity that the
5-50 constitutional rule requiring bills to be read on three several
5-51 days in each house be suspended, and this rule is hereby suspended.
5-52 * * * * *