HBA-JLV C.S.S.B. 7 77(R)    BILL ANALYSIS


Office of House Bill AnalysisC.S.S.B. 7
By: Ellis, Rodney
Criminal Jurisprudence
5/1/2001
Committee Report (Substituted)



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. C.S.S.B. 7
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

C.S.S.B. 7 amends the Code of Criminal Procedure, Government, and Family
codes to set forth provisions relating to the provision of legal services
for indigent defendants. The bill amends the Code of Criminal Procedure to
require the court or the courts' designee to appoint counsel to an indigent
defendant in the county not later than the end of the third working day
after the date on which the court or the courts' designee receives the
defendant's request for appointment of counsel and if adversarial judicial
proceedings have been initiated against the defendant. In a county with a
population of 250,000 or more, the court or the courts' designee is
required to appoint counsel as soon as possible, but not later than the end
of the first working day after the date on which the court or the courts'
designee receives the defendant's request for appointment of counsel and if
adversarial proceedings have been initiated against the defendant.   The
bill requires the court of the courts' designee to appoint counsel
immediately following the expiration of three working days after the date
on which the court or the courts' designee receives the defendant's request
for appointment of counsel and if adversarial judicial proceedings have not
yet been initiated against the defendant.  The bill requires the court or
the courts' designee to appoint counsel immediately following the
expiration of one working day after the date on which the court or the
courts' designee receives the defendant's request for appointment of
counsel in a county with a population of 250,000 or more and if adversarial
judicial proceedings have not been initiated against the defendant.  The
bill authorizes a court or the courts' designee without unnecessary delay
to appoint new counsel to represent an indigent defendant for whom counsel
is appointed if the defendant is subsequently charged in the case with an
offense different from the offense with which the defendant was initially
charged and good cause to appoint new counsel is stated on the record (Art.
1.051). The bill also requires the person making the arrest or the person
having custody of the person arrested to take the person arrested before
the magistrate not later than 48 hours after the person is arrested (Arts.
14.06 and 15.17). The bill sets forth provisions relating to the duties of
the magistrate. The bill requires a record to be made of the magistrate
informing the person of the person's right to request appointment of
counsel; the magistrate asking the person whether the person wants to
request appointment of counsel; and whether the person requested
appointment of counsel (Art.  15.17).  

The bill requires only the judges of the county courts, statutory county
courts, and district courts trying criminal cases in each county to adopt
and publish written procedures for timely and fairly appointing counsel for
an indigent defendant in the county arrested for or charged with a
misdemeanor punishable by confinement or a felony. Unless the court
appoints or the designee authorized to appoint counsel for an indigent
defendant in the county appoints a public defender to represent the
defendant in accordance with established guidelines or in accordance with
an alternative system, the bill requires the court to appoint an attorney
from a public appointment list, and establishes the method of appointment
using a system of rotation. The bill requires that the procedures adopted
and published are to specify procedures that ensure that an indigent
defendant charged with a misdemeanor punishable by confinement or with a
felony and who appears in court without counsel has an opportunity to
confer with appointed counsel before the commencement of judicial
proceedings. The bill requires that procedures adopted specify that
appointments for defendants in capital cases in which the death penalty is
sought comply with requirements under provisions relating to the
appointment and payment of counsel in death penalty cases. 

The bill requires that procedures adopted ensure that each attorney
appointed from a public appointment list to represent an indigent defendant
perform the attorney's duty owed to the defendant in accordance with the
adopted procedures, applicable provisions, and applicable rules of ethics.
The bill sets forth a county-wide alternative program for appointing
counsel for indigent defendants in criminal cases established by a formal
action in which two-thirds of the judges of the courts designated under
these provisions vote to establish the alternative program. The bill
specifies alternative program guidelines for procedural requirements that
are required to be adopted. 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 sets forth procedures
for the appointment of attorneys in misdemeanor, felony, and death penalty
cases. The bill requires the standards and procedures established to
determine whether a defendant is indigent to apply equally to all
defendants, whether or not the defendant is in custody or has been released
on bail. In determining whether a defendant is indigent, the court or the
court's designee is authorized to consider the assets and the defendant's
ability to obtain a loan, among other considerations. The bill prohibits
the judges of the courts establishing an alternative program, without the
consent of the commissioners court, from obligating the county by contract
or by the creation of new positions to cause an increase in expenditure of
county funds. The bill authorizes a court or the court's designee required
to appoint an attorney to represent a defendant accused of a felony to
appoint an attorney from any county located in the court's administrative
judicial region.  

The bill requires an appointed attorney to make every reasonable effort to
contact the defendant not later than the end of the first working day after
the date on which the attorney is appointed and interview the defendant as
soon as practicable after the attorney is appointed. The bill authorizes
the court to replace an attorney who violates these provisions. The bill
authorizes a majority of the judges of the county courts and statutory
county courts or the district courts, as appropriate, trying criminal cases
in the county to remove from consideration for appointment an attorney who
intentionally or repeatedly violates these provisions. 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 provides that a defendant who is
determined by the court to be indigent is presumed indigent for the
remainder of the proceedings in the case unless there occurs a material
change in financial circumstances of the defendant (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, licensed investigators, and
other personnel necessary to perform the duties of the public defender
office. The bill sets forth the terms 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 requires that each fee schedule adopted state reasonable fixed rates,
taking into consideration reasonable and necessary overhead costs and
customary rates charged for similar legal services in the community.  The
bill sets forth the method of payment of counsel and prohibits payments
from being made until the form for itemizing the services performed is
submitted to the judge presiding over the proceedings and the judge
approves the payment. The bill sets forth procedures for the submittal of
the request for payment, approval or disapproval by the judge, the appeal
by a requesting attorney, and a review of the appeal by the presiding judge
of the administrative judicial region. The bill requires the commissioners
court to pay to the appointed counsel the amount approved by the presiding
judge of the administrative judicial region, not later than the 45th day
after the date an application for payment of a fee is submitted. 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 and necessary expenses, including expenses for investigation and
for mental health and other experts, 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.  The bill authorizes a majority of the
judges of the county courts and statutory county courts or the district
courts trying criminal cases in the county to remove an attorney from
consideration for appointment if, after a hearing, it is shown that the
attorney submitted a claim for legal services not performed by the attorney
(Art. 26.05). 

The bill amends the Code of Criminal Procedure to set forth provisions
relating to indigent defense information, including procedures used to
provide indigent defendants with counsel and the schedule of fees, to be
prepared and sent to the Office of Court Administration of the Texas
Judicial System  (Sec. 71.0351).   

The bill requires the local selection 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).  

The bill requires the comptroller of public accounts to deposit 13.98
percent of money received under provisions relating to court costs for
special services into the fair defense account (Art. 102.075).  

The bill amends the Family Code to require the judges trying juvenile cases
in each county to adopt a counsel appointment plan that outlines attorney
qualifications, procedures for appointment, and procedures for the
determination of an indigent child (Sec. 51.101).  

The bill amends the Government Code to establish the Task Force on Indigent
Defense (task force) and sets forth provisions relating to the composition,
member appointments, vacancies, meetings, compensation, budget, fair
defense account, acceptance of gifts, grants, and other funds, policies and
standards, task force reports, and technical support to the counties by the
task force. The bill requires the task force to develop a plan that
establishes statewide requirements for counties to follow when reporting
indigent defense information. The bill authorizes the task force to revise
the plan as necessary to improve monitoring of indigent defense policies,
standards, and procedures. The bill requires the task force to distribute
funds, including grants, to counties providing indigent defense services,
and requires the task force to develop policies to ensure that those funds
are distributed in a fair manner (Secs. 71.051-71.062).  

The bill requires the county auditor or the person designated by the
commissioners court to prepare and send a report to the Office of Court
Administration, not later than September 1 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 14). 

 EFFECTIVE DATE

January 1, 2002.



COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.S.B. 7 amends the Code of Criminal Procedure and modifies the original
to require the court or the courts' designee to appoint counsel to an
indigent defendant if adversarial judicial proceedings have been initiated
against the defendant. The substitute provides a distinction between
defendants that have had adversarial judicial proceedings initiated against
them and defendants that have not had adversarial judicial proceedings
initiated against them.  The substitute removes provisions requiring a
court or a courts' designee to appoint counsel for an indigent defendant
regardless of whether charges have been filed against the defendant (Art.
1.051).    

The substitute provides that a record required of a person arrested and
taken before a magistrate may consist of electronic recordings (Art.
15.17).   

The substitute modifies the original to ensure that an indigent defendant
has an opportunity to confer with appointed counsel before the commencement
of judicial proceedings, rather than before any communication occurs
between the defendant and the prosecutor. The substitute modifies the
original to set forth additional procedures for appointing counsel to be
adopted.  The substitute requires that a public appointment list from which
an attorney is appointed shall contain the names of each attorney, each of
whom meets any applicable qualifications specified by the Task Force on
Indigent Defense (task force). In determining whether a defendant is
indigent, the court or the court's designee is authorized to consider the
assets and the defendant's ability to obtain a loan, among other
considerations.   The bill requires an appointed attorney to make every
reasonable effort to contact the defendant not later than the end of the
first working day after the date on which the attorney is appointed, rather
than not later than 24 hours.  The substitute requires the commissioners
court, in appointing a public defender, to specify whether the public
defender is appointed to serve a term or serve at the pleasure of the
commissioners court or the commissioners courts and if the public defender
is appointed to serve a term, the term of appointment and the procedures
for removing the public defender (Art. 26.04). 

The substitute requires that each adopted fee schedule take into
consideration reasonable and necessary overhead costs and customary rates
charged for similar legal services in the community.  The substitute
modifies the original by setting  forth provisions relating to the removal
of an attorney from consideration for appointment if, after a hearing, it
is shown that the attorney submitted a claim for legal services not
performed by the attorney (Art. 26.05).    

The substitute modifies the local selection committee qualification
standards for attorneys to be appointed to represent indigent defendants in
capital felony cases in which the state is seeking the death penalty.  The
substitute requires each attorney placed on the list of attorneys qualified
for appointment in death penalty cases to present proof that the attorney
has successfully completed the minimum continuing legal education
requirements of the state bar each year following the second anniversary of
the date the attorney was appointed to the list (Art. 26.052).  

The substitute amends the Government Code to remove provisions specifying
that certain information be included in the report to be sent to the Office
of Court Administration of the Texas Judicial System (office) (Sec.
71.0351).  The substitute modifies provisions relating to the composition
of the members of the task force (Sec. 71.052).  The substitute sets forth
additional policies and standards the task force is required to develop for
providing legal representation to indigent defendants at trial, on appeal,
and in postconviction proceedings (Sec. 71.060).  The substitute sets forth
provisions relating to the requirements of the task force to develop a
county reporting plan that establishes statewide requirements for counties
relating to reporting indigent defense information and sets forth
provisions relating to the plan (Sec. 71.061).  The  substitute requires
the task force to promote compliance by counties with the requirements of
state law relating to indigent defense and to direct the comptroller to
distribute funds to counties to provide indigent defense services in the
county.  The substitute removes provisions relating to the distribution of
funds to a county  based on the county's population, spending, and tax base
(Sec. 71.062).   

The substitute modifies the original to require the county auditor or the
person designated by the commissioners court to prepare and send a report
to the office not later than January 1 of each year and on a monthly,
quarterly, or annual basis with respect to legal services provided in the
county to indigent defendants during each fiscal year.  The substitute
requires a county auditor to begin sending the required information not
later than September 1, 2002, rather than by July 1, 2002.  The substitute
removes provisions requiring the crime records service of the Department of
Public Safety to begin sending required information to the office not later
than September 1, 2003 (SECTION  17).