HBA-JLV H.B. 1745 77(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 1745 By: Hinojosa Criminal Jurisprudence 3/11/2001 Introduced BACKGROUND AND PURPOSE Under federal law, defendants in criminal prosecutions are guaranteed to have legal assistance for their defense. Texas law echoes this federal guarantee by requiring courts to appoint attorneys for indigent defendants charged with crimes that are punishable by imprisonment. In most Texas counties, judges appoint attorneys for indigent defendants and decide how much each lawyer will be paid. However, the statutes authorize a few jurisdictions to create public defender offices. The counties pay the entire cost of indigent defense, except that the state provides funds for certain appeals of death penalty cases. Because there are no uniform statewide indigent defense standards, it is not uncommon for abuse of the system to occur or for incompetent attorneys to be appointed. House Bill 1745 provides guidelines and standards for the implementation of an indigent defense system. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. ANALYSIS House Bill 1745 amends the Code of Criminal Procedure and Government Code to set forth provisions relating to the provision of legal services for indigent persons accused of a crime. The bill amends the Code of Criminal Procedure to require the court to appoint counsel to an indigent defendant in the county not later than 72 hours after the defendant's request for appointment of counsel is received by the court or designated entity if the county has fewer than 250,000 residents, or not later than 24 hours after the defendant's request for appointment of counsel is received by the court or designated entity if the county has 250,000 or more residents. The bill requires the court to appoint an attorney to represent a person accused of a criminal offense whether or not formal charges have been filed with the court (Art. 1.051). The bill also requires the person making the arrest to take the person arrested before the magistrate not later than 24 hours after making the arrest (Arts. 14.06 and 15.17). The bill sets forth provisions relating to the duties of the magistrate (Art. 15.17). The bill requires only the judges of the county courts, statutory county courts, and district courts having jurisdiction over criminal cases in each county to adopt and publish written procedures for timely and fairly appointing counsel for indigent defendants in the county. The bill requires the court to appoint an attorney from a public appointment list, and establishes the method of appointment using a fair system of rotation. The bill authorizes the court or designee authorized to appoint counsel for indigent defendants in the county to appoint the public defender to represent the defendant in accordance with established guidelines. The bill requires an appointed attorney to make every reasonable effort to contact the defendant not later than 24 hours after the attorney is appointed and interview the defendant as soon as practicable. An attorney who fails to comply is subject to being replaced by other counsel and will result in removal from consideration for appointment to represent indigent defendants in the future. The bill authorizes two-thirds of the judges of the county courts, statutory county courts, and district courts having jurisdiction over criminal cases in a county to establish an alternative procedure for appointing counsel for indigent defendants in the county. In that event, the bill specifies guidelines for procedural requirements that are required to be adopted and published. These procedures are required to specify the procedures used in the county to determine whether a defendant is indigent so as to warrant the appointment of counsel. The bill requires the standards and procedures established to determine whether a defendant is indigent to apply equally to all defendants whether in custody or released on bail. The appointing authority is authorized to adopt the standards established by the Texas Equal Access to Justice Foundation or the federal Legal Services Corporation for determining whether an indigent person is eligible for civil legal assistance. The bill requires that the procedures adopted and published are to specify procedures that ensure that no indigent defendant charged with a jailable misdemeanor or felony is required to communicate with a prosecutor regarding the offense prior to appointment of and an opportunity to confer with the defense counsel, or an informed waiver of counsel by the defendant on the record in open court. The bill provides that a person determined by the court to be indigent is presumed indigent unless there occurs a material change in financial circumstances of the person (Art. 26.04). The bill sets forth requirements relating to the appointment of a public defender by the commissioner's court. An appointed public defender is authorized to employ and supervise attorneys, investigators, and other personnel necessary to perform the duties of the public defender office. The bill sets forth the term of appointment for the chief public defender, provides for the removal of a public defender, and sets forth provisions under which a public defender is authorized to refuse an appointment (Art. 26.044). The bill removes provisions providing for the reimbursement of reasonable expenses for purposes of investigation and expert testimony for counsel, other than an attorney with a public defender, appointed to represent a defendant in a criminal hearing or habeas corpus hearing. The bill requires counsel to be paid a reasonable attorney's fee for the preparation and presentation of an oral argument and for the preparation of a motion for rehearing and petition for discretionary review. The bill requires all payments to counsel to be made in accordance with a schedule of fees. The bill sets forth the method of payment of counsel and requires the county auditor or other designated person, not later than the 30th day after the date an application for payment of a fee is received, to determine the amount due and pay that amount to the appointed counsel. The bill requires that counsel in a noncapital case, other than an attorney with a public defender, appointed to represent a defendant be reimbursed for reasonable expenses incurred with prior court approval in the manner provided for in capital cases. Counsel is authorized to be reimbursed for expenses incurred without prior court approval in the manner provided for in capital cases (Art. 26.05). The bill amends the Government Code to require the county auditor or the person designated by the commissioner's court to prepare and send a report to the Texas Judicial Council's Office of Court Administration, not later than September 30 of each year. The bill sets forth provisions governing the form and content of the report (Sec. 71.0351). The bill repeals provisions governing public defenders in specific counties (SECTION 8). The bill sets forth provisions establishing the Texas Indigent Defense Council (council), the composition of the council, the conduct of the council, the powers and duties of the council, the Appointed Council Assistance Program (program) within the council, and the powers and duties of the program (Secs. 85.001, 85.002, 85.003, 85.004, 85.005, and 85.006). The bill amends the Code of Criminal Procedure to require the committee to adopt standards for the qualification of attorneys to be appointed to represent indigent defendants in capital felony cases in which the state is seeking the death penalty. The bill sets forth the standards for the qualification of attorneys to be appointed in such cases (Art. 26.052). EFFECTIVE DATE September 1, 2001.