By Hinojosa H.B. No. 1745
77R6971 T
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the provision of legal services for indigent persons
1-3 accused of a crime.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Article 1.051, Code of Criminal Procedure, is
1-6 amended by amending Subsection (c) and adding Subsection (i) to
1-7 read as follows:
1-8 (c) An indigent defendant is entitled to have an attorney
1-9 appointed to represent him in any adversary judicial proceeding
1-10 that may result in punishment by confinement and in any other
1-11 criminal proceeding if the court concludes that the interests of
1-12 justice require representation. If an indigent defendant is
1-13 entitled to and requests appointed counsel, a [the] court
1-14 authorized under Article 26.04 to appoint counsel for indigent
1-15 defendants in the county shall appoint counsel [to represent the
1-16 defendant] as soon as possible, but not later than 72 hours after
1-17 the defendant's request for appointment of counsel is received by
1-18 the court or designated appointing authority if the county has
1-19 fewer than 250,000 residents, and not later than 24 hours after the
1-20 defendant's request for appointment of counsel is received by the
1-21 court or designated appointing authority if the county has 250,000
1-22 or more residents. The court shall appoint an attorney to
1-23 represent a person accused of a criminal offense pursuant to this
1-24 article, article 15.17, and article 26.04 whether or not formal
2-1 charges have been filed with the court.
2-2 SECTION 2. Article 14.06(a), Code of Criminal Procedure, is
2-3 amended to read as follows:
2-4 (a) Except as provided by Subsection (b), in each case
2-5 enumerated in this Code, the person making the arrest shall take
2-6 the person arrested or have him taken without unnecessary delay,
2-7 but not later than 24 hours after making the arrest, before the
2-8 magistrate who may have ordered the arrest, before some magistrate
2-9 of the county where the arrest was made without an order, or, if
2-10 necessary to provide more expeditiously to the person arrested the
2-11 warnings described by Article 15.17 of this Code, before a
2-12 magistrate in a county bordering the county in which the arrest was
2-13 made. The magistrate shall immediately perform the duties
2-14 described in Article 15.17 of this Code.
2-15 SECTION 3. Article 15.17(a), Code of Criminal Procedure, is
2-16 amended to read as follows:
2-17 (a) In each case enumerated in this Code, the person making
2-18 the arrest shall without unnecessary delay, but not later than 24
2-19 hours after making the arrest, take the person arrested or have him
2-20 taken before some magistrate of the county where the accused was
2-21 arrested or, if necessary to provide more expeditiously to the
2-22 person arrested the warnings described by this article, before a
2-23 magistrate in a county bordering the county in which the arrest was
2-24 made. The arrested person may be taken before the magistrate in
2-25 person or the image of the arrested person may be broadcast by
2-26 closed circuit television to the magistrate. The magistrate shall
2-27 inform in clear language the person arrested, either in person or
3-1 by closed circuit television, of the accusation against him and of
3-2 any affidavit filed therewith, of his right to retain counsel, of
3-3 his right to remain silent, of his right to have an attorney
3-4 present during any interview with peace officers or attorneys
3-5 representing the state, of his right to terminate the interview at
3-6 any time, [of his right to request the appointment of counsel if he
3-7 is indigent and cannot afford counsel,] and of his right to have an
3-8 examining trial. The magistrate shall also clearly inform the
3-9 person arrested of the person's right to request the appointment of
3-10 counsel if the person cannot afford counsel. The magistrate shall
3-11 individually inform each arrested person how to request counsel in
3-12 a manner understood by the arrested person, and shall cause to be
3-13 rendered reasonable assistance to the arrested person in completing
3-14 any forms necessary to request counsel at that time. If the person
3-15 arrested requests appointment of counsel and is indigent and if the
3-16 magistrate is authorized under Article 26.04 to appoint counsel for
3-17 indigent defendants in the county, the magistrate shall appoint
3-18 counsel. If the magistrate is not authorized to appoint counsel,
3-19 the magistrate shall immediately transmit, or cause to be
3-20 transmitted, the forms requesting appointment of counsel to the
3-21 appointing authority designated under article 26.04 for appointment
3-22 of counsel. A record shall be made by written forms or other
3-23 method authorized and adopted pursuant to Article 26.04 documenting
3-24 that the person arrested was advised of his right to request the
3-25 appointment of counsel, that he was asked whether he wished to
3-26 request appointment of counsel, and whether or not he made such a
3-27 request. The magistrate [He] shall also inform the person arrested
4-1 that he is not required to make a statement and that any statement
4-2 made by him may be used against him. The magistrate shall allow
4-3 the person arrested reasonable time and opportunity to consult
4-4 counsel and shall admit the person arrested to bail if allowed by
4-5 law. A closed circuit television system may not be used under this
4-6 subsection unless the system provides for a two-way communication
4-7 of image and sound between the arrested person and the magistrate.
4-8 A recording of the communication between the arrested person and
4-9 the magistrate shall be made. The recording shall be preserved
4-10 until the earlier of the following dates: (1) the date on which
4-11 the pretrial hearing ends; or (2) the 91st day after the date on
4-12 which the recording is made if the person is charged with a
4-13 misdemeanor or the 120th day after the date on which the recording
4-14 is made if the person is charged with a felony. The counsel for
4-15 the defendant may obtain a copy of the recording on payment of a
4-16 reasonable amount to cover costs of reproduction.
4-17 SECTION 4. Article 26.04, Code of Criminal Procedure, is
4-18 amended to read as follows:
4-19 Art. 26.04. PROCEDURES FOR APPOINTING [COURT SHALL APPOINT]
4-20 COUNSEL. (a) The judges of the county courts, statutory county
4-21 courts, and district courts having jurisdiction over criminal cases
4-22 in each county, as a whole, by local rule, shall adopt and publish
4-23 written procedures for timely and fairly appointing counsel for
4-24 indigent defendants in the county consistent with the procedures
4-25 for appointing counsel under articles 1.051, 15.17(a), 26.04,
4-26 26.05, and 26.052 of this code.
4-27 (b) Procedures adopted under Subsection (a) shall:
5-1 (1) authorize only the judges of the county courts,
5-2 statutory county courts, and district courts having criminal
5-3 jurisdiction in the county or their authorized designee to appoint
5-4 counsel for indigent defendants in the county; and
5-5 (2) apply to each appointment of counsel made by a
5-6 judge or authorized designee in the county.
5-7 (c) Whenever a [the] court or designee authorized under
5-8 Subsection (a) to appoint counsel for indigent defendants in the
5-9 county determines that a defendant accused of [charged with] a
5-10 felony or a jailable misdemeanor [punishable by imprisonment] is
5-11 indigent or that the interests of justice require representation of
5-12 a defendant in a criminal proceeding, the court or designee shall
5-13 appoint one or more practicing attorneys to defend him or her in
5-14 accordance with procedures adopted and published pursuant to
5-15 Subsection (a). Except as provided by Subsections (d) and (e), the
5-16 court shall appoint an attorney from public appointment lists using
5-17 a fair system of rotation. A public appointment list of attorneys
5-18 qualified to provide representation in jailable misdemeanor cases
5-19 in the county shall be established by formal action of the judges
5-20 of the county courts and statutory county courts having
5-21 jurisdiction over misdemeanor cases in each county. Where deemed
5-22 appropriate, those judges may establish more than one appointment
5-23 list graduated according to the seriousness of the alleged
5-24 misdemeanor and the attorneys' qualifications to provide
5-25 representation in misdemeanor cases with that degree of
5-26 seriousness. A public appointment list of attorneys qualified to
5-27 provide representation in felony cases in the county shall be
6-1 established by formal action of the judges of the district courts
6-2 having jurisdiction over felony cases in each county. Where deemed
6-3 appropriate, those judges may establish more than one appointment
6-4 list graduated according to seriousness of the alleged felony and
6-5 the attorneys' qualifications to provide representation in felony
6-6 cases with that degree of seriousness. The court or designated
6-7 appointing authority shall appoint attorneys from among the next
6-8 four names on the authorized appointment list in the order in which
6-9 the attorneys' names appear on the list, unless the court states on
6-10 the record good cause for appointing an attorney out of order. Any
6-11 attorney who is not appointed in order shall remain next in order
6-12 on the rotation list. Each appointment list shall contain the
6-13 names of qualified attorneys who have applied to be included on the
6-14 list, have met the objective qualifications specified by the judges
6-15 authorized to establish that list, and have been approved by the
6-16 judges authorized to establish that list. In a death penalty case,
6-17 the court shall appoint counsel in accordance with the provisions
6-18 of article 26.052 of this code.
6-19 (d) In a county in which a public defender is appointed
6-20 under Article 26.044, the court or designee authorized under
6-21 Subsection (a) to appoint counsel for indigent defendants in the
6-22 county may appoint the public defender to represent the defendant
6-23 in accordance with guidelines established for the public defender.
6-24 (e) Two-thirds of the judges of the county courts, statutory
6-25 county courts, and district courts having jurisdiction over
6-26 criminal cases in a county, by formal action, may establish an
6-27 alternative procedure for appointing counsel for indigent
7-1 defendants in the county. In that event, the written procedures
7-2 adopted and published pursuant to subsection (a) shall specify
7-3 county-wide procedures that:
7-4 (1) ensure that attorneys appointed in jailable
7-5 misdemeanor and felony cases meet specified objective
7-6 qualifications for providing representation in such cases;
7-7 (2) ensure that attorneys appointed in death penalty
7-8 cases are appointed in accordance with the provisions of article
7-9 26.052 of this code;
7-10 (3) ensure that appointments are allocated among
7-11 qualified attorneys in a manner that is fair, neutral and
7-12 non-discriminatory; and
7-13 (4) ensure that defense counsel provide professional
7-14 representation to the defendant that is independent from any
7-15 conflict of interest with the court in which the case is pending.
7-16 (f) In a county in which an alternative procedure for
7-17 appointing counsel is established as provided by this subsection
7-18 and is approved by formal action of the county officials who
7-19 allocate funding for indigent defense services in the county,
7-20 courts may appoint attorneys to represent defendants by using the
7-21 alternative procedure.
7-22 (g) An attorney appointed under this article [subsection]
7-23 shall:
7-24 (1) make every reasonable effort to contact the
7-25 defendant not later than 24 hours after the attorney is appointed
7-26 and interview the defendant as soon as practicable; and
7-27 (2) represent the defendant until charges are dismissed, the
8-1 defendant is acquitted, appeals are exhausted, or the attorney is
8-2 relieved of his duties by the court or replaced by other counsel
8-3 for legal cause stated on the record.
8-4 (h) An attorney who fails to comply with subsection (f)(1)
8-5 is subject to being replaced by other counsel. An attorney's
8-6 repeated or willful failure to comply shall result in removal from
8-7 consideration for appointment to represent indigent defendants in
8-8 the future.
8-9 (i) The procedures adopted and published pursuant to
8-10 subsection (a) shall specify the procedures used in the county to
8-11 determine whether a defendant is indigent so as to warrant
8-12 appointment of counsel.
8-13 [(b)] (j) In determining whether a defendant is indigent,
8-14 [the court shall consider such factors as] the only factors which
8-15 may be considered are the defendant's income, source(s) of income,
8-16 property owned, outstanding obligations, necessary expenses, the
8-17 number and ages of dependents, and spousal income[, and whether the
8-18 defendant has posted or is capable of posting bail]. The court may
8-19 not [deny appointed counsel to a defendant solely because] consider
8-20 whether the defendant has posted or is capable of posting bail as a
8-21 factor in determining whether a defendant is indigent. The
8-22 standards and procedures established to determine whether a
8-23 defendant is indigent shall apply equally to all defendants whether
8-24 in custody or released on bail.
8-25 (k) In establishing standards and procedures for determining
8-26 whether a defendant is indigent as provided in subsections (h) and
8-27 (i) above, the appointing authority may adopt the standards
9-1 established by the Texas Equal Access to Justice Foundation or the
9-2 federal Legal Services Corporation for determining whether an
9-3 indigent person is eligible for civil legal assistance.
9-4 (l) [(c)] A defendant who requests a determination of
9-5 indigency and appointment of counsel shall:
9-6 (1) complete under oath a questionnaire concerning his
9-7 financial resources;
9-8 (2) respond under oath to an examination regarding his
9-9 financial resources by the judge or magistrate responsible for
9-10 determining whether the defendant is indigent; or
9-11 (3) complete the questionnaire and respond to
9-12 examination by the judge or magistrate.
9-13 (m) [(d)] Before making a determination of whether a
9-14 defendant is indigent, the court shall request the defendant to
9-15 sign under oath a statement substantially in the following form:
9-16 "On this ________ day of ____________, 20 [19]___, I have been
9-17 advised by the (name of the court) Court of my right to
9-18 representation by counsel in the prosecution of the charge pending
9-19 against me. I certify that I am without means to employ counsel of
9-20 my own choosing and I hereby request the court to appoint counsel
9-21 for me. (signature of the defendant)"
9-22 (n) [(e)] A person determined by the Court to be indigent is
9-23 presumed indigent unless there occurs a material change in
9-24 financial circumstances. If there is a material change in
9-25 financial circumstances after a determination of indigency or
9-26 nonindigency is made, the defendant, the defendant's counsel, or
9-27 the attorney representing the state may move for reconsideration of
10-1 the determination.
10-2 (o) The procedures adopted and published pursuant to
10-3 subsection (a) shall specify procedures that ensure that no
10-4 indigent defendant charged with a jailable misdemeanor or felony is
10-5 required to communicate with a prosecutor regarding the offense
10-6 prior to appointment of and an opportunity to confer with defense
10-7 counsel, or an informed waiver of counsel by the defendant on the
10-8 record in open court.
10-9 (p) [(f)] A written or oral statement elicited under this
10-10 article or evidence derived from the statement may not be used for
10-11 any purpose, except to determine the defendant's indigency or to
10-12 impeach the direct testimony of the defendant. This subsection
10-13 does not prohibit prosecution of the defendant under Chapter 37,
10-14 Penal Code.
10-15 SECTION 5. Article 26.044, Code of Criminal Procedure, is
10-16 amended to read as follows:
10-17 Art. 26.044. PUBLIC DEFENDER [IN COUNTY WITH FOUR COUNTY
10-18 COURTS AND FOUR DISTRICT COURTS]. (a) For purposes of this
10-19 article, "Public defender" means a governmental entity or a
10-20 not-for-profit corporation operating under agreement with a
10-21 governmental entity and with public funds, which provides legal
10-22 representation and services to indigent defendants charged with
10-23 crimes or juvenile offenses;
10-24 (b) The commissioners court of any county, on written
10-25 approval of a judge of the county courts, statutory county courts,
10-26 or district courts having jurisdiction over criminal cases in the
10-27 county, [having four county courts and four district courts] may
11-1 appoint a governmental entity or a nonprofit corporation [one or
11-2 more attorneys] to serve as a public defender. A public defender
11-3 may agree to serve more than one county [serves at the pleasure of
11-4 the commissioners court] and the commissioners courts of two or
11-5 more counties may enter a written agreement to jointly fund and
11-6 appoint a regional public defender. In appointing a public
11-7 defender under this subsection, the commissioners court shall
11-8 specify:
11-9 (1) the duties of the public defender office; and
11-10 (2) the types of cases to which the public defender
11-11 may be appointed under Article 26.04(d) and the courts in which the
11-12 public defender may be required to appear.
11-13 (c) Before appointing a public defender under Subsection
11-14 (b), other than public defender offices in existence on the
11-15 effective date of this statute, the commissioners court shall
11-16 solicit proposals for the public defender office. A proposal must
11-17 include:
11-18 (1) a budget for the office, including salaries;
11-19 (2) a description of each personnel position,
11-20 including the public defender position;
11-21 (3) the maximum allowable caseloads for each attorney
11-22 employed by the proponent;
11-23 (4) provisions for personnel training;
11-24 (5) a description of anticipated overhead costs for
11-25 the office; and
11-26 (6) policies regarding the use of investigators and
11-27 expert witnesses by the proponent.
12-1 (d) After considering each proposal for the public defender
12-2 office submitted by a governmental entity or nonprofit corporation,
12-3 the commissioners court shall select a proposal that reasonably
12-4 demonstrates that the proponent will provide adequate quality
12-5 representation for indigent defendants in the county. In selecting
12-6 a proposal, the commissioners court shall consider:
12-7 (1) the quality of representation the proponent will
12-8 provide;
12-9 (2) the reputation of the proponent; and
12-10 (3) the total cost of the proposal. Cost shall not be
12-11 the primary consideration in accepting a proposal.
12-12 (e) To be eligible for appointment as a public defender, the
12-13 appointee or the appointee's executive director, if the appointee
12-14 is a nonprofit corporation, [a person] must:
12-15 (1) be a member of the State Bar of Texas;
12-16 (2) have practiced law for at least three years [one
12-17 year]; and
12-18 (3) have substantial experience in the practice of
12-19 criminal law.
12-20 (f) A [(c) The] public defender is entitled to receive an
12-21 annual salary and reimbursement for expenses incurred in operating
12-22 the public defender office in amounts [an amount] fixed by the
12-23 commissioners court and paid out of the appropriate county fund.
12-24 (g) A public defender may employ and supervise attorneys,
12-25 investigators, and other personnel necessary to perform the duties
12-26 of the public defender office as specified by the commissioners
12-27 court under Subsection (a)(1).
13-1 (h) [(d)] Except as authorized by this article, an attorney
13-2 employed by a public defender may not:
13-3 (1) engage in the private practice of criminal law; or
13-4 (2) accept anything of value not authorized by this
13-5 article for services rendered under this article.
13-6 (i) The term of appointment for a chief public defender
13-7 shall be such term as the commissioners court shall designate, but
13-8 in no event less than four years.
13-9 (j) A public defender may be removed only if:
13-10 (1) the commissioners court and the judge of a court
13-11 having jurisdiction over criminal cases in the county file a joint
13-12 petition for removal;
13-13 (2) the petition is filed in a district court in the
13-14 county; and
13-15 (3) shows good cause for removal.
13-16 (k) A public defender may refuse an appointment under
13-17 Article 26.04(d) if:
13-18 (1) a conflict of interest exists;
13-19 (2) the public defender has insufficient resources to
13-20 provide adequate representation for the defendant;
13-21 (3) the public defender is incapable of providing
13-22 representation for the defendant in accordance with the rules of
13-23 professional conduct; or
13-24 (4) the public defender shows other good cause for
13-25 refusing the appointment.
13-26 (l) [(e) The judge may remove a public defender who violates
13-27 a provision of Subsection(d) of this article.]
14-1 [(f) A public defender or an attorney appointed by a court
14-2 of competent jurisdiction shall represent each indigent person who
14-3 is charged with a criminal offense in a county having at least four
14-4 county courts and at least four district courts and each indigent
14-5 minor who is a party to a juvenile delinquency proceeding in the
14-6 county.]
14-7 [(g)] A public defender may investigate the financial
14-8 condition of any person the public defender is appointed to
14-9 represent. The defender shall report the results of the
14-10 investigation to the appointing judge. The judge may hold a
14-11 hearing to determine if the person is indigent and entitled to
14-12 representation under this article;
14-13 (m) Notwithstanding the foregoing, a county operating a
14-14 public defender program on the effective date of this statute may
14-15 continue to do so according to existing policies and procedures.
14-16 [(h) If an attorney other than a public defender is
14-17 appointed, the attorney is entitled to the compensation provided by
14-18 Article 26.05 of this code.]
14-19 [(i) At any stage of the proceeding, including appeal or
14-20 other postconviction proceedings, the judge may appoint another
14-21 attorney to represent the person. The substitute attorney is
14-22 entitled to the compensation provided by Article 26.05 of this
14-23 code.]
14-24 [(j) Except for the provisions relating to daily appearance
14-25 fees, Article 26.05 of this code applies to a public defender
14-26 appointed under this article.]
14-27 SECTION 6. Article 26.05, Code of Criminal Procedure, is
15-1 amended to read as follows:
15-2 Art. 26.05. COMPENSATION OF COUNSEL APPOINTED TO DEFEND. (a)
15-3 A counsel, other than an attorney with a public defender, appointed
15-4 to represent a defendant in a criminal proceeding, including a
15-5 habeas corpus hearing, shall be [reimbursed for reasonable expenses
15-6 incurred with prior court approval for purposes of investigation
15-7 and expert testimony and shall be] paid a reasonable attorney's fee
15-8 for performing the following services, based on the time and labor
15-9 required, the complexity of the case, and the experience and
15-10 ability of the appointed counsel:
15-11 (1) time spent in court making an appearance on behalf
15-12 of the defendant as evidenced by a docket entry, time spent in
15-13 trial, and [or] time spent in a proceeding in which sworn oral
15-14 testimony is elicited;
15-15 (2) reasonable and necessary time spent out of court
15-16 on the case, including communicating with clients, supported by any
15-17 documentation that the court requires; and
15-18 (3) preparation of an appellate brief and preparation
15-19 and presentation of oral argument to a court of appeals or the
15-20 Court of Criminal Appeals [.]; and
15-21 (4) preparation of a motion for rehearing and petition
15-22 for discretionary review.
15-23 (b) All payments made under this article shall be paid in
15-24 accordance with a schedule of fees adopted by formal action of the
15-25 judges of the county courts, statutory county courts, and district
15-26 courts having jurisdiction over criminal cases in [county and
15-27 district criminal court judges within] each county [,except that in
16-1 a county with only one judge with criminal jurisdiction the
16-2 schedule will be adopted by the administrative judge for that
16-3 judicial district].
16-4 (c) Each fee schedule adopted shall state reasonable [will
16-5 include a fixed rate,] minimum and maximum hourly rates taking into
16-6 consideration overhead costs and customary rates charged for
16-7 similar legal services in the community[, and daily rates] and
16-8 shall [will] provide a form for the appointed counsel to itemize
16-9 [reporting] the types of services performed [in each one]. No
16-10 payment shall be made under this section until the form for
16-11 itemizing [reporting] the services performed is submitted to the
16-12 county auditor or the person designated by the commissioners court,
16-13 if the county does not have a county auditor, [and approved by the
16-14 court and is] in accordance with the fee schedule for that county.
16-15 Not later than the 30th day after the date an application for
16-16 payment of a fee is received under this article, the county auditor
16-17 or the person designated by the commissioners court shall determine
16-18 the amount due and pay that amount to the appointed counsel. In
16-19 determining the amount due, the county auditor or other designated
16-20 person may solicit the opinion of the presiding judge of the court
16-21 in which the criminal proceeding was held as to whether the
16-22 itemized services were reasonably necessary. The opinion of the
16-23 judge shall be included in the record of the criminal proceeding.
16-24 (d) A counsel in a non-capital case, other than an attorney
16-25 with a public defender, appointed to represent a defendant under
16-26 this code shall be reimbursed for reasonable expenses incurred with
16-27 prior court approval in the manner provided for capital cases by
17-1 Articles 26.052(f) and (g) and may be reimbursed for expenses
17-2 incurred without prior court approval in the manner provided for
17-3 capital cases by Article 26.052(h).
17-4 (e) All payments made under this article shall be paid from
17-5 the general fund of the county in which the prosecution was
17-6 instituted or habeas corpus hearing held and may be included as
17-7 costs of court.
17-8 (f) [(e)] If the court determines that a defendant has
17-9 financial resources that enable him to offset in part or in whole
17-10 the costs of the legal services provided, including any expenses
17-11 and costs, the court shall order the defendant to pay the amount
17-12 that it finds the defendant is able to pay.
17-13 (g) [(f)] Reimbursement of expenses incurred for purposes of
17-14 investigation or expert testimony may be paid directly to a private
17-15 investigator licensed under Chapter 1702, Occupations Code, [the
17-16 Private Investigators and Private Security Agencies Act (Article
17-17 4413(29bb), Vernon's Texas Civil Statutes)] or to an expert witness
17-18 in the manner designated by appointed counsel and approved by the
17-19 court.
17-20 SECTION 7. Subchapter C, Chapter 71, Government Code, is
17-21 amended by adding Section 71.0351 to read as follows:
17-22 Sec. 71.0351. INDIGENT DEFENSE INFORMATION. (a) In each
17-23 county, the county auditor or the person designated by the
17-24 commissioners court, if the county does not have a county auditor,
17-25 shall prepare and send to the Texas Judicial Council's Office of
17-26 Court Administration, not later than September 30 of each year, a
17-27 report that satisfies the requirements of Subsections (b) and (c).
18-1 As a duty of their office, each district and county clerk shall
18-2 cooperate with the county auditor or the person designated by the
18-3 commissioners court and the commissioners court in retrieving
18-4 information for inclusion in the report.
18-5 (b) The report shall be prepared in the form and manner
18-6 prescribed by the council's office of court administration and
18-7 shall include, with respect to legal services provided by the
18-8 county to indigent defendants during the preceding fiscal year:
18-9 (1) a copy of all formal and informal rules and forms
18-10 that describe the procedures used in the county to provide indigent
18-11 defendants with counsel in accordance with the Code of Criminal
18-12 Procedure, including the schedule of fees required under Article
18-13 26.05(b) of that code;
18-14 (2) information on each criminal case in which county
18-15 funds were used to provide indigent defense services in accordance
18-16 with the Code of Criminal Procedure, including: the case number;
18-17 court designation; name, age, race, and sex of the defendant; the
18-18 dates of arrest, appearance before the magistrate, and appointment
18-19 of counsel; the attorney appointed to represent the defendant; the
18-20 amount of time spent on the case in and out of court by the
18-21 attorney appointed to represent the defendant; the amounts
18-22 requested and paid in attorney's fees and litigation costs,
18-23 including investigation and expert witness costs; disposition of
18-24 the case; and
18-25 (3) the total amount expended by the county to provide
18-26 indigent defense services and an analysis of the amount expended by
18-27 the county:
19-1 (A) in each district, county, statutory county,
19-2 and appellate court;
19-3 (B) in cases for which a private attorney is
19-4 appointed for an indigent defendant;
19-5 (C) in cases for which a public defender is
19-6 appointed for an indigent defendant;
19-7 (D) in cases involving:
19-8 (i) a bench trial; or
19-9 (ii) a jury trial;
19-10 (E) in cases for which counsel is appointed for
19-11 an indigent juvenile under Section 51.10(f), Family Code;
19-12 (F) in cases, other than those for which a
19-13 public defender is appointed, in which:
19-14 (i) an issue concerning the defendant's
19-15 competence to stand trial has been raised under Article 46.02, Code
19-16 of Criminal Procedure, or the insanity defense has been submitted
19-17 under Article 46.03 of that code; or
19-18 (ii) a defendant is charged with the
19-19 commission of an offense punishable as a capital felony; and
19-20 (G) for:
19-21 (i) investigation expenses;
19-22 (ii) expert witness expenses; or
19-23 (iii) other litigation expenses.
19-24 (c) The report shall also include for each analysis under
19-25 Subsection (b)(3) the number of cases for which the amount was
19-26 expended.
19-27 SECTION 8. Sections 26.041, 26.042, 26.043, 26.045, 26.046,
20-1 26.047, 26.048, 26.049, 26.050, and 26.058, Code of Criminal
20-2 Procedure, are repealed.
20-3 SECTION 9. The change in law made by this Act applies only
20-4 to a person arrested for or charged with an offense committed on or
20-5 after the effective date of this Act and to the appointment of
20-6 counsel for that person. A person arrested for or charged with an
20-7 offense committed before the effective date of this Act is covered
20-8 by the law in effect when the offense was committed, and the former
20-9 law is continued in effect for that purpose.
20-10 SECTION 10. A county auditor or other person designated
20-11 under Section 71.0351, Government Code, as added by this Act, shall
20-12 send to the Office of Court Administration of the Texas Judicial
20-13 Council the first report required by that section on or before
20-14 September 30, 2002.
20-15 SECTION 11. Title 2 Judicial Branch of the Government Code is
20-16 amended by adding Chapter 85 as follows:
20-17 Sec. 85.001. DEFINITIONS. In this chapter:
20-18 (a) "Council" means the Indigent Defense Council established
20-19 by this chapter;
20-20 (b) "Member" means a member of the Indigent Defense Council;
20-21 (c) "Executive Administrator" means the Executive
20-22 Administrator of the Council;
20-23 (d) "Crimes" means misdemeanors punishable by imprisonment,
20-24 non-capital felonies, and capital felonies;
20-25 (e) "Juvenile offense" means a charge of delinquent conduct
20-26 or conduct indicating a need for supervision;
20-27 (f) "Counsel appointed to represent indigent persons"
21-1 includes any attorney compensated with public funds who is assigned
21-2 to represent an indigent defendant, whether under an ad hoc
21-3 assigned counsel program, a contract defender program, or a public
21-4 defender program;
21-5 (g) "Ad hoc assigned counsel program" means a system under
21-6 which a private attorney, acting as an independent contractor and
21-7 compensated with public funds, is individually assigned to provide
21-8 legal representation and services to a specific indigent defendant
21-9 accused of a crime or juvenile offense;
21-10 (h) "Contract defender program" means a system under which a
21-11 private attorney, acting as an independent contractor and
21-12 compensated with public funds, is engaged to provide legal
21-13 representation and services to a group of unspecified indigent
21-14 defendants charged with crimes or juvenile offenses in a particular
21-15 court or group of courts;
21-16 (i) "Public defender program" means a governmental entity or
21-17 a not-for-profit corporation operating under agreement with a
21-18 governmental entity and with public funds, which provides legal
21-19 representation and services to indigent defendants charged with
21-20 crimes or juvenile offenses;
21-21 (j) "Indigent defense support services" means criminal
21-22 defense services that are provided by investigators, experts and
21-23 similar specialists and that are reasonably necessary to adequate
21-24 representation by counsel appointed to represent indigent persons.
21-25 Sec. 85.002. ESTABLISHMENT OF THE TEXAS INDIGENT DEFENSE
21-26 COUNCIL. (a) This Act establishes the Texas Indigent Defense
21-27 Council as an entity within the judicial branch of state government
22-1 administratively attached to the Office of Court Administration;
22-2 (b) The Indigent Defense Council shall exercise its
22-3 prescribed powers independently of the Executive Director of the
22-4 Office of Court Administration;
22-5 (c) The Council shall be a legal entity, may enter into
22-6 contracts, may own property, may accept funds, grants, and gifts
22-7 from any public or private source to pay expenses incident to
22-8 implementing its purposes, and may establish a principal office;
22-9 (d) The Executive Director of the Office of Court
22-10 Administration shall provide general administrative support to the
22-11 Council. The term "general administrative support" includes
22-12 purchasing, payroll, and similar administrative services;
22-13 (e) The budget of the Indigent Defense Council shall be a
22-14 part of the Judicial Council's budget. The Indigent Defense
22-15 Council shall consult with the Executive Director of the Office of
22-16 Court Administration, who shall assist the Council in preparing and
22-17 presenting to the Legislature the Council's budget, but the Council
22-18 shall have final authority with respect to preparation of its
22-19 budget and with respect to representation of matters pertaining to
22-20 the Council before the Legislature;
22-21 (f) The Executive Director of the Office of Court
22-22 Administration shall not reduce or modify the budget of the
22-23 Indigent Defense Council or use funds appropriated to the Council
22-24 without the approval of the Council;
22-25 Sec. 85.003. COMPOSITION OF THE COUNCIL. (a) The Council
22-26 shall be composed of 15 persons:
22-27 (i) one appointed by the Governor, who shall not be an
23-1 attorney;
23-2 (ii) one appointed by the Lieutenant Governor, who
23-3 shall be a member of the Senate;
23-4 (iii) one appointed by the Speaker of the House of
23-5 Representatives, who shall be a member of the House of
23-6 Representatives;
23-7 (iv) one appointed by the Governor, from a roster of
23-8 names provided by the Presiding Judge of the Court of Criminal
23-9 Appeals;
23-10 (v) one appointed by the Governor, from a roster of
23-11 names provided by the Chief Justice of the Supreme Court;
23-12 (vi) one appointed by the Governor, from a roster of
23-13 names provided by the Texas Criminal Defense Lawyers Association;
23-14 (vii) one appointed by the Governor, from a roster of
23-15 names provided by the Texas Association of Counties;
23-16 (viii) one appointed by the Governor, from a roster of
23-17 names provided by the Texas Conference of Urban Counties;
23-18 (ix) one appointed by the Governor, from a roster of
23-19 names provided by the Texas Equal Access to Justice Foundation
23-20 (x) one appointed by the Governor, from a roster of
23-21 names provided by the Texas affiliate of the National Association
23-22 for the Mentally Ill (NAMI Texas);
23-23 (xi) one appointed by Governor, from the membership of
23-24 each of the following Sections of the Texas Bar: Criminal Justice,
23-25 Individual Rights and Responsibilities, and Juvenile Law; and
23-26 (xii) two appointed by the Council, at least one of
23-27 whom shall occupy a teaching position in a law school in Texas.
24-1 (b) Members of the Council shall be appointed to serve
24-2 staggered terms of six years. No member of the Council may serve
24-3 more than two successive terms;
24-4 (c) Former judges or law professors appointed to the Council
24-5 must have significant specialized legal knowledge or expertise in
24-6 the area of indigent criminal defense or the administration of
24-7 indigent defense systems. All persons appointed to the Council
24-8 shall have demonstrated a strong commitment to quality
24-9 representation in indigent defense matters;
24-10 (d) No person currently employed or serving as a prosecutor,
24-11 law enforcement official, or any active employees of such persons,
24-12 may be nominated or appointed to or serve on the Council. No
24-13 person who has served as a prosecutor or law enforcement official,
24-14 or as an employee of such persons, within the five years preceding
24-15 appointment, may serve on the Council;
24-16 (e) No member of the Council may be an active or former
24-17 judge, except as provided in subsection (a) of this section;
24-18 (f) Each member of the Council shall serve until a successor
24-19 in office has been appointed. Vacancies shall be filled by
24-20 appointment for the unexpired term. Removal of Council members
24-21 shall be in accordance with policies and procedures adopted by the
24-22 Council;
24-23 (g) The Council shall elect a Chair from among its members,
24-24 to serve for a term of one year. The Chair may serve up to three
24-25 successive terms as Chair.
24-26 (h) Initial appointments to the Council shall be made by
24-27 September 1, 2001. Thereafter, appointments to the Council shall
25-1 be made by September 1st of the year in which a term has expired.
25-2 Appointments to fill vacancies for unexpired terms on the Council
25-3 shall be made within 90 days of the positions becoming vacant.
25-4 Sec. 85.004. CONDUCT OF COUNCIL BUSINESS. (a) Eight members
25-5 constitute a quorum for the transaction of business. Action by the
25-6 Council shall require a concurrence of a majority of those present,
25-7 but in no event less than six members of the Council.
25-8 (b) The Council shall meet at least quarterly and at such
25-9 other times as it deems necessary or convenient to perform its
25-10 duties. Meetings of the Council shall be at such places as the
25-11 Council determines.
25-12 (c) All members of the Council are entitled to vote on any
25-13 matters coming before the Council unless otherwise provided by
25-14 rules adopted by the Council.
25-15 (d) Council members shall not receive compensation but are
25-16 entitled to be paid necessary subsistence and travel expenses in
25-17 accordance with the applicable provisions of the Government Code.
25-18 (e) The Council shall appoint an Executive Director to hire
25-19 such personnel as may be necessary to properly discharge the duties
25-20 assigned to the Council under this subchapter, and to supervise and
25-21 direct the Council's staff in carrying out those functions;
25-22 (f) The Council shall monitor and evaluate the performance
25-23 of the Executive Director and the Council's staff, and establish
25-24 employee personnel policies for the Council.
25-25 Sec. 85.005. POWERS AND DUTIES OF THE COUNCIL. (a)
25-26 Development of Standards. The Council shall have the authority to
25-27 develop standards governing the provision of services, at trial, on
26-1 appeal, and in post-conviction proceedings, under this Article,
26-2 including:
26-3 (1) performance standards for counsel appointed to
26-4 represent indigent defendants;
26-5 (2) qualification standards under which attorneys may
26-6 qualify for appointment to represent indigent persons in
26-7 proceedings described in subsection (a)(1); such standards shall
26-8 include, at a minimum, qualifications commensurate with the
26-9 seriousness of the nature of the proceeding, qualifications
26-10 appropriate for representation of mentally ill defendants and
26-11 non-citizen defendants and successful completion of relevant
26-12 continuing legal education programs approved by the Council; such
26-13 standards include testing and certification standards;
26-14 (3) standards for ensuring appropriate caseloads for
26-15 counsel appointed to represent indigent persons in proceedings
26-16 described in subsection (a)(1);
26-17 (4) standards for determining whether a person accused
26-18 of a crime or juvenile offense or facing civil commitment
26-19 proceedings is indigent;
26-20 (5) policies and standards for the organization and
26-21 operation of ad hoc assigned counsel programs;
26-22 (6) policies and standards for the organization and
26-23 operation of any public defender program which have been or may be
26-24 established by counties pursuant to other provisions of law, which
26-25 policies and standards shall be consistent with recognized national
26-26 policies and standards;
26-27 (7) standards governing the provision of indigent
27-1 defense services under a contract counsel program, which policies
27-2 and standards shall be consistent with recognized national policies
27-3 and standards;
27-4 (8) standards for reasonable compensation of counsel
27-5 appointed to represent indigent persons;
27-6 (9) standards for availability of and reasonable
27-7 compensation for support services for counsel appointed to
27-8 represent indigent persons, including services such as forensic
27-9 experts, mental health experts, and investigators;
27-10 (10) such other standards and policies governing the
27-11 administration of indigent defense services as the Council may deem
27-12 appropriate.
27-13 (b) Enforcement of Standards. The Council shall have the
27-14 authority to:
27-15 (1) establish procedures for reviewing and determining
27-16 appeals by appointed counsel of district or county court decisions
27-17 to award or deny compensation for services provided by counsel
27-18 appointed to represent indigent persons or providers of indigent
27-19 defense support services;
27-20 (2) grant or deny appeals by appointed counsel of
27-21 district or county court decisions to award or deny compensation
27-22 for services provided by counsel appointed to represent indigent
27-23 persons or providers of indigent defense support services;
27-24 (3) prohibit compensation practices that violate
27-25 standards promulgated by the Council for compensating counsel
27-26 appointed to represent indigent persons or providers of indigent
27-27 defense support services; and
28-1 (4) review lists of counsel promulgated by local
28-2 selection committees pursuant to Article 26.052 of the Texas Code
28-3 of Criminal Procedure and prohibit any attorney who fails to
28-4 satisfy performance and qualification standards promulgated by the
28-5 local selection committee or the Council from accepting appointment
28-6 as counsel in any capital case.
28-7 (5) receive and review complaints regarding adherence
28-8 to applicable indigent defense standards established by the Council
28-9 or the Legislature.
28-10 (6) establish appropriate procedures to monitor and
28-11 enforce compliance with applicable indigent defense standards
28-12 established by the Council or the Legislature.
28-13 (c) Compilation and Reporting of Information Regarding
28-14 Indigent Defense. The Council shall:
28-15 (1) collect data specified in Section 71.0351 of the
28-16 Government Code (as amended by Section 7 of the Fair Defense Act);
28-17 (2) collect data annually from each county in the
28-18 State regarding the provision of defense services to indigent
28-19 persons accused of crimes, including requiring local officials to
28-20 facilitate this process by timely completing and transmitting forms
28-21 created and disseminated by the Council; this shall include all
28-22 procedures adopted and published pursuant to Article 26.04 of the
28-23 Code of Criminal Procedure (as amended by Section 4 of the Fair
28-24 Defense Act);
28-25 (3) require annual reports regarding expenditures,
28-26 caseloads, and status of cases from any ad hoc assigned counsel
28-27 programs, contract counsel programs, or public defender programs;
29-1 (4) make an annual report to the Governor, the
29-2 Lieutenant Governor, the Speaker of the House of Representatives,
29-3 the Chief Justice of the Supreme Court, and the Presiding Judge of
29-4 the Court of Criminal Appeals regarding the quality of legal
29-5 representation provided by counsel appointed to represent indigent
29-6 persons, the current indigent defense practices in the state as
29-7 compared to state and national standards and the Council's efforts
29-8 to improve same; such report shall include all data specified in
29-9 subsections (c)(1) through (3) above; and
29-10 (5) publish in written and electronic form available
29-11 to the public all data specified in subsection (c)(1) through (4)
29-12 above.
29-13 (6) issue such other reports as the Council may deem
29-14 appropriate.
29-15 (d) Supervision of Appointed Counsel Assistance Program.
29-16 The Council shall have the power and duty to:
29-17 (1) appoint the Chief Counsel of the Appointed Counsel
29-18 Assistance Program;
29-19 (2) advise the Chief Counsel of the Appointed Counsel
29-20 Assistance Program regarding hiring employees for that office, and
29-21 consent to same; and
29-22 (3) approve the budget of the Appointed Counsel
29-23 Assistance Program.
29-24 (e) Provision of Technical and Financial Assistance to
29-25 Counties. The Council shall have the power and duty to:
29-26 (1) provide technical support to assist counties in
29-27 improving their indigent defense systems;
30-1 (2) grant funds to counties for making improvements in
30-2 their indigent defense systems, based on compliance with standards
30-3 developed by the Council and a demonstrated commitment to the
30-4 following factors, as further developed by the Council:
30-5 (i) independence of appointed counsel;
30-6 (ii) prompt appointment of counsel in
30-7 misdemeanor and felony cases, whether defendants are on bond or in
30-8 custody awaiting trial
30-9 (iii) use of a consistent procedure to determine
30-10 whether accused persons are indigent and to appoint counsel within
30-11 72 hours of arrest;
30-12 (iv) use of reliable procedures to ensure that
30-13 attorneys appointed to represent indigent persons accused of crimes
30-14 are competent in the practice of criminal law, including
30-15 appropriate specialized competence in representation of mentally
30-16 ill defendants and non-citizen defendants;
30-17 (v) an adequate rate of compensation and
30-18 allowable rate of expenses for counsel;
30-19 (vi) availability of, and attorney participation
30-20 in, appropriate and relevant training programs; and
30-21 (vii) maintenance of current county effort and
30-22 spending on provision of indigent defense services;
30-23 (3) monitor and enforce compliance by grantee counties
30-24 with the conditions upon which any grant was made, including
30-25 enforcement through withdrawal or reimbursement of grant funds in
30-26 the event of non-compliance.
30-27 Sec. 85.006. CREATION OF APPOINTED COUNSEL ASSISTANCE
31-1 PROGRAM; POWERS AND DUTIES OF PROGRAM. (a) There is hereby
31-2 established, within the Indigent Defense Council, the Appointed
31-3 Counsel Assistance Program (ACAP);
31-4 (b) Upon request, as provided in subsection 3 of this
31-5 section, the ACAP may provide defense services, including but not
31-6 limited to those specified in this section, in any criminal case in
31-7 any county in the State in which an indigent defendant is charged
31-8 with a capital or first-degree felony;
31-9 (c) The ACAP shall assist counties in meeting their
31-10 constitutional obligation to provide effective legal representation
31-11 to indigent persons accused of capital or first-degree felonies,
31-12 and promote the improvement of the quality and delivery of defense
31-13 services provided to such defendants by:
31-14 (1) contacting trial judges, court officials and
31-15 employees, and counsel qualified to accept appointments in capital
31-16 and first-degree felony cases, to provide information about
31-17 assistance and services available from the ACAP and to obtain
31-18 information about pending matters in which the ACAP anticipates
31-19 requests for assistance;
31-20 (2) organizing and presenting continuing legal
31-21 education programs on relevant topics, and regularly advising
31-22 judges and attorneys in each county of the availability of such
31-23 training opportunities;
31-24 (3) creating and disseminating model pleadings, which
31-25 may be provided upon request to appointed counsel in capital and
31-26 first-degree felony cases;
31-27 (4) consulting, upon request, with appointed counsel
32-1 in capital and first-degree felony cases;
32-2 (5) providing referrals to appropriately qualified
32-3 forensic experts and investigators, upon request from appointed
32-4 counsel;
32-5 (6) collecting and analyzing data concerning capital
32-6 cases in Texas;
32-7 (7) accepting appointment from time to time to serve
32-8 as counsel or co-counsel in a capital or first-degree felony case,
32-9 if (A) the presiding judge of the court in which the case is
32-10 pending wishes to appoint the ACAP, and (B) the Chief Counsel of
32-11 the ACAP determines that the resources, funding, and staffing of
32-12 the ACAP allow such participation; and
32-13 (8) by performing any other task deemed appropriate by
32-14 the Chief Counsel, in consultation with the Chair of the Indigent
32-15 Defense Council.
32-16 (d) Office of legal entity; acceptance and use of funds. The
32-17 ACAP shall be a legal entity and may contract, own property, and
32-18 establish a principal office. The ACAP may accept funds, grants,
32-19 and gifts from any public or private source. Any funds received
32-20 shall be used to carry out the purposes of the ACAP.
32-21 (e) Composition of Appointed Counsel Assistance Program. The
32-22 Chief Counsel of the ACAP shall employ, with the advice and consent
32-23 of the Indigent Defense Council and its Chair, as many Assistant
32-24 Counsel and other support staff as may be necessary to discharge
32-25 the ACAP's responsibilities under this Act.
32-26 (f) Chief Counsel of Appointed Counsel Assistance Program.
32-27 (1) The Chief Counsel of the ACAP shall be appointed
33-1 by the Indigent Defense Council.
33-2 (2) The Chief Counsel of the ACAP shall serve a term
33-3 of two (2) years. The Chief Counsel may be removed by the Indigent
33-4 Defense Council for cause only.
33-5 (3) Not later than ninety (90) days prior to the end
33-6 of the Chief Counsel's term or upon removal of the Chief Counsel,
33-7 the Indigent Defense Council shall meet to select a successor. An
33-8 individual may be appointed Chief Counsel of the ACAP for more than
33-9 one term. The Chair of the Indigent Defense Council may call a
33-10 special meeting, with not less than forty-five (45) days' notice to
33-11 the Chief Counsel and the members of the Indigent Defense Council,
33-12 to consider removing the Chief Counsel for cause and for selection
33-13 of a successor upon removal of the Chief Counsel.
33-14 (g) Qualifications for Chief Counsel of Appointed Counsel
33-15 Assistance Program.
33-16 (1) The Chief Counsel of the ACAP shall have:
33-17 (A) Membership in good standing in the Texas
33-18 Bar;
33-19 (B) At least ten (10) years' continuous
33-20 experience representing defendants in criminal cases;
33-21 (C) Experience as lead defense counsel in at
33-22 least ten (10) jury trials of serious or complex cases tried to
33-23 completion, including four (4) homicide cases and five (5) felony
33-24 jury trials of capital, first, or second degree felonies; or
33-25 experience as lead defense counsel in two (2) capital murder cases
33-26 tried to completion in which the prosecution sought the death
33-27 penalty and five (5) felony jury trials of capital, first, or
34-1 second-degree felonies;
34-2 (D) Experience in the use of expert witnesses,
34-3 including forensic experts and mental health experts, in capital
34-4 cases;
34-5 (E) Experience in, and a demonstrated commitment
34-6 to, the team approach to defending capital cases;
34-7 (F) Experience in investigating and presenting
34-8 mitigating evidence at the penalty phase of capital cases;
34-9 (G) Proficiency in, and commitment to, the
34-10 quality of representation appropriate to capital cases, as
34-11 demonstrated by participation in relevant continuing legal
34-12 education programs, memberships and activity in organizations
34-13 dedicated to improving the quality of legal representation in
34-14 criminal cases, and reputation among criminal defense attorneys
34-15 defending capital cases;
34-16 (H) A demonstrated commitment to observe, at a
34-17 minimum, the American Bar Association Guidelines for the
34-18 Appointment and Performance of Counsel in Death Penalty Cases (ABA
34-19 Guidelines) and the NLADA Performance Guidelines for Criminal
34-20 Defense Representation (NLADA Guidelines).
34-21 (h) Qualifications for Assistant Counsel of the Appointed
34-22 Counsel Assistance Program.
34-23 (1) Assistant Counsel employed by the ACAP shall have:
34-24 (A) Membership in good standing in the Texas
34-25 Bar;
34-26 (B) At least five (5) years' continuous
34-27 experience representing defendants in criminal cases;
35-1 (C) Experience as lead defense counsel in at
35-2 least ten (10) jury trials of serious or complex cases tried to
35-3 completion, including four (4) homicide cases and five (5) felony
35-4 jury trials of capital, first, or second degree felonies; or
35-5 experience as lead defense counsel in two (2) capital murder cases
35-6 tried to completion in which the prosecution sought the death
35-7 penalty and five (5) felony jury trials of capital, first, or
35-8 second-degree felonies;
35-9 (D) Experience in the use of expert witnesses,
35-10 including forensic experts and mental health experts, in capital
35-11 cases;
35-12 (E) Experience in, and a demonstrated commitment
35-13 to, the team approach to defending capital cases;
35-14 (F) Experience in investigating and presenting
35-15 mitigating evidence at the penalty phase of capital cases;
35-16 (G) Proficiency in, and commitment to, the
35-17 quality of representation appropriate to capital cases, as
35-18 demonstrated by participation in relevant continuing legal
35-19 education programs, memberships and activity in organizations
35-20 dedicated to improving the quality of legal representation in
35-21 criminal cases, and reputation among criminal defense attorneys
35-22 defending capital cases;
35-23 (H) A demonstrated commitment to observe, at a
35-24 minimum, the American Bar Association Guidelines for the
35-25 Appointment and Performance of Counsel in Death Penalty Cases (ABA
35-26 Guidelines) and the NLADA Performance Guidelines for Criminal
35-27 Defense Representation (NLADA Guidelines).
36-1 SECTION 12. Art. 26.052, Code of Criminal Procedure, is
36-2 amended to read as follows:
36-3 (d) In consultation with the Indigent Defense Council, the
36-4 committee shall adopt standards for the qualification of attorneys
36-5 to be appointed to represent indigent defendants in capital felony
36-6 cases in which the State is seeking the death penalty. Those
36-7 standards must include, at a minimum, that in order to be eligible
36-8 to be appointed to represent an indigent defendant in a capital
36-9 felony case in which the State is seeking the death penalty, an
36-10 attorney must have:
36-11 (A) membership in good standing in the Texas
36-12 Bar;
36-13 (B) at least five (5) years' continuous
36-14 experience representing defendants in criminal cases;
36-15 (C) experience as lead defense counsel in at
36-16 least ten (10) jury trials of serious or complex cases tried to
36-17 completion, including four (4) homicide cases and five (5) felony
36-18 jury trials of capital, first, or second degree felonies; or
36-19 experience as lead defense counsel in two (2) capital murder cases
36-20 tried to completion in which the prosecution sought the death
36-21 penalty and five (5) felony jury trials of capital, first, or
36-22 second-degree felonies;
36-23 (D) experience in the use of expert witnesses,
36-24 including forensic experts and mental health experts, in capital
36-25 cases;
36-26 (E) experience in, and a demonstrated commitment
36-27 to, the team approach to defending capital cases;
37-1 (F) experience in investigating and presenting
37-2 mitigating evidence at the penalty phase of capital cases; and
37-3 (G) proficiency in, and commitment to, the
37-4 quality of representation appropriate to capital cases, as
37-5 demonstrated by participation in relevant continuing legal
37-6 education programs, memberships and activity in organizations
37-7 dedicated to improving the quality of legal representation in
37-8 criminal cases, and reputation among criminal defense attorneys
37-9 defending capital cases;
37-10 (H) a demonstrated commitment to observe, at a
37-11 minimum, the American Bar Association Guidelines for the
37-12 Appointment and Performance of Counsel in Death Penalty Cases (ABA
37-13 Guidelines) and the NLADA Performance Guidelines for Criminal
37-14 Defense Representation (NLADA Guidelines);
37-15 (2) the committee shall prominently post the standards
37-16 in each district clerk's office in the region with a list of
37-17 attorneys qualified for appointment.
37-18 (3) upon request, the committee shall review the list
37-19 of attorneys qualified for appointment, in consultation with the
37-20 Indigent Defense Council, to ensure that each attorney on the list
37-21 is in compliance with the requirements of this chapter.
37-22 (4) the presiding judge of the district court in which
37-23 a capital felony case is filed shall appoint two attorneys
37-24 qualified under this chapter to represent an indigent defendant as
37-25 soon as practicable after charges are filed, unless the State gives
37-26 notice in writing that the death penalty will not be sought in the
37-27 case.
38-1 Sec. 85.007. ANNUAL BUDGET. The Chief Counsel shall prepare
38-2 and transmit to the Indigent Defense Council an annual budget
38-3 showing all anticipated expenses of the ACAP for the following
38-4 fiscal year, which shall be the same as the state's fiscal year.
38-5 SECTION 13. This Act takes effect September 1, 2001.
38-6 SECTION 14. The importance of this legislation and the
38-7 crowded condition of the calendars in both houses creates an
38-8 emergency and an imperative public necessity that the
38-9 constitutional rule requiring bills to be read on three several
38-10 days in each house be suspended, and this rule is hereby suspended.