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.