By: Ellis, et al. S.B. No. 7
Line and page numbers may not match official copy.
Bill not drafted by TLC or Senate E&E.
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 crimes.
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
2-1 article, article 15.17, and article 26.04 whether or not formal
2-2 charges have been filed with the court.
2-3 SECTION 2. Article 14.06(a), Code of Criminal Procedure, is
2-4 amended to read as follows:
2-5 (a) Except as provided by Subsection (b), in each case
2-6 enumerated in this Code, the person making the arrest shall take
2-7 the person arrested or have him taken without unnecessary delay,
2-8 but not later than 24 hours after making the arrest, before the
2-9 magistrate who may have ordered the arrest, before some magistrate
2-10 of the county where the arrest was made without an order, or, if
2-11 necessary to provide more expeditiously to the person arrested the
2-12 warnings described by Article 15.17 of this Code, before a
2-13 magistrate in a county bordering the county in which the arrest was
2-14 made. The magistrate shall immediately perform the duties
2-15 described in Article 15.17 of this Code.
2-16 SECTION 3. Article 15.17(a), Code of Criminal Procedure, is
2-17 amended to read as follows:
2-18 (a) In each case enumerated in this Code, the person making
2-19 the arrest shall without unnecessary delay, but not later than 24
2-20 hours after making the arrest, take the person arrested or have him
2-21 taken before some magistrate of the county where the accused was
2-22 arrested or, if necessary to provide more expeditiously to the
2-23 person arrested the warnings described by this article, before a
2-24 magistrate in a county bordering the county in which the arrest was
2-25 made. The arrested person may be taken before the magistrate in
2-26 person or the image of the arrested person may be broadcast by
3-1 closed circuit television to the magistrate. The magistrate shall
3-2 inform in clear language the person arrested, either in person or
3-3 by closed circuit television, of the accusation against him and of
3-4 any affidavit filed therewith, of his right to retain counsel, of
3-5 his right to remain silent, of his right to have an attorney
3-6 present during any interview with peace officers or attorneys
3-7 representing the state, of his right to terminate the interview at
3-8 any time, [of his right to request the appointment of counsel if he
3-9 is indigent and cannot afford counsel,] and of his right to have an
3-10 examining trial. The magistrate shall also clearly inform the
3-11 person arrested of the person's right to request the appointment of
3-12 counsel if the person cannot afford counsel. The magistrate shall
3-13 individually inform each arrested person how to request counsel in
3-14 a manner understood by the arrested person, and shall cause to be
3-15 rendered reasonable assistance to the arrested person in completing
3-16 any forms necessary to request counsel at that time. If the person
3-17 arrested requests appointment of counsel and is indigent and if the
3-18 magistrate is authorized under Article 26.04 to appoint counsel for
3-19 indigent defendants in the county, the magistrate shall appoint
3-20 counsel. If the magistrate is not authorized to appoint counsel,
3-21 the magistrate shall immediately transmit, or cause to be
3-22 transmitted, the forms requesting appointment of counsel to the
3-23 appointing authority designated under article 26.04 for appointment
3-24 of counsel. A record shall be made by written forms or other
3-25 method authorized and adopted pursuant to Article 26.04 documenting
3-26 that the person arrested was advised of his right to request the
4-1 appointment of counsel, that he was asked whether he wished to
4-2 request appointment of counsel, and whether or not he made such a
4-3 request. The magistrate [He] shall also inform the person arrested
4-4 that he is not required to make a statement and that any statement
4-5 made by him may be used against him. The magistrate shall allow
4-6 the person arrested reasonable time and opportunity to consult
4-7 counsel and shall admit the person arrested to bail if allowed by
4-8 law. A closed circuit television system may not be used under this
4-9 subsection unless the system provides for a two-way communication
4-10 of image and sound between the arrested person and the magistrate.
4-11 A recording of the communication between the arrested person and
4-12 the magistrate shall be made. The recording shall be preserved
4-13 until the earlier of the following dates: (1) the date on which
4-14 the pretrial hearing ends; or (2) the 91st day after the date on
4-15 which the recording is made if the person is charged with a
4-16 misdemeanor or the 120th day after the date on which the recording
4-17 is made if the person is charged with a felony. The counsel for
4-18 the defendant may obtain a copy of the recording on payment of a
4-19 reasonable amount to cover costs of reproduction.
4-20 SECTION 4. Article 26.04, Code of Criminal Procedure, is
4-21 amended to read as follows:
4-22 Art. 26.04. PROCEDURES FOR APPOINTING [COURT SHALL APPOINT]
4-23 COUNSEL. (a) The judges of the county courts, statutory county
4-24 courts, and district courts having jurisdiction over criminal cases
4-25 in each county, as a whole, by local rule, shall adopt and publish
4-26 written procedures for timely and fairly appointing counsel for
5-1 indigent defendants in the county consistent with the procedures
5-2 for appointing counsel under articles 1.051, 15.17(a), 26.04,
5-3 26.05, and 26.052 of this code.
5-4 (b) Procedures adopted under Subsection (a) shall:
5-5 (1) authorize only the judges of the county courts,
5-6 statutory county courts, and district courts having criminal
5-7 jurisdiction in the county or their authorized designee to appoint
5-8 counsel for indigent defendants in the county; and
5-9 (2) apply to each appointment of counsel made by a
5-10 judge or authorized designee in the county.
5-11 (c) Whenever a [the] court or designee authorized under
5-12 Subsection (a) to appoint counsel for indigent defendants in the
5-13 county determines that a defendant accused of [charged with] a
5-14 felony or a jailable misdemeanor [punishable by imprisonment] is
5-15 indigent or that the interests of justice require representation of
5-16 a defendant in a criminal proceeding, the court or designee shall
5-17 appoint one or more practicing attorneys to defend him or her in
5-18 accordance with procedures adopted and published pursuant to
5-19 Subsection (a). Except as provided by Subsections (d) and (e), the
5-20 court shall appoint an attorney from public appointment lists using
5-21 a fair system of rotation. A public appointment list of attorneys
5-22 qualified to provide representation in jailable misdemeanor cases
5-23 in the county shall be established by formal action of the judges
5-24 of the county courts and statutory county courts having
5-25 jurisdiction over misdemeanor cases in each county. Where deemed
5-26 appropriate, those judges may establish more than one appointment
6-1 list graduated according to the seriousness of the alleged
6-2 misdemeanor and the attorneys' qualifications to provide
6-3 representation in misdemeanor cases with that degree of
6-4 seriousness. A public appointment list of attorneys qualified to
6-5 provide representation in felony cases in the county shall be
6-6 established by formal action of the judges of the district courts
6-7 having jurisdiction over felony cases in each county. Where deemed
6-8 appropriate, those judges may establish more than one appointment
6-9 list graduated according to seriousness of the alleged felony and
6-10 the attorneys' qualifications to provide representation in felony
6-11 cases with that degree of seriousness. The court or designated
6-12 appointing authority shall appoint attorneys from among the next
6-13 four names on the authorized appointment list in the order in which
6-14 the attorneys' names appear on the list, unless the court states on
6-15 the record good cause for appointing anattorney out of order. Any
6-16 attorney who is not appointed in order shall remain next in order
6-17 on the rotation list. Each appointment list shall contain the
6-18 names of qualified attorneys who have applied to be included on the
6-19 list, have met the objective qualifications specified by the judges
6-20 authorized to establish that list, and have been approved by the
6-21 judges authorized to establish that list. In a death penalty case,
6-22 the court shall appoint counsel in accordance with the provisions
6-23 of article 26.052 of this code.
6-24 (d) In a county in which a public defender is appointed
6-25 under Article 26.044, the court or designee authorized under
6-26 Subsection (a) to appoint counsel for indigent defendants in the
7-1 county may appoint the public defender to represent the defendant
7-2 in accordance with guidelines established for the public defender.
7-3 (e) Two-thirds of the judges of the county courts, statutory
7-4 county courts, and district courts having jurisdiction over
7-5 criminal cases in a county, by formal action, may establish an
7-6 alternative procedure for appointing counsel for indigent
7-7 defendants in the county. In that event, the written procedures
7-8 adopted and published pursuant to subsection (a) shall specify
7-9 county-wide procedures that:
7-10 (1) ensure that attorneys appointed in jailable
7-11 misdemeanor and felony cases meet specified objective
7-12 qualifications for providing representation in such cases;
7-13 (2) ensure that attorneys appointed in death penalty
7-14 cases are appointed in accordance with the provisions of article
7-15 26.052 of this code;
7-16 (3) ensure that appointments are allocated among
7-17 qualified attorneys in a manner that is fair, neutral and
7-18 non-discriminatory; and
7-19 (4) ensure that defense counsel provide professional
7-20 representation to the defendant that is independent from any
7-21 conflict of interest with the court in which the case is pending.
7-22 (f) In a county in which an alternative procedure for
7-23 appointing counsel is established as provided by this subsection
7-24 and is approved by formal action of the county officials who
7-25 allocate funding for indigent defense services in the county,
7-26 courts may appoint attorneys to represent defendants by using the
8-1 alternative procedure.
8-2 (g) An attorney appointed under this article [subsection]
8-3 shall:
8-4 (1) make every reasonable effort to contact the
8-5 defendant not later than 24 hours after the attorney is appointed
8-6 and interview the defendant as soon as practicable; and
8-7 (2) represent the defendant until charges are
8-8 dismissed, the defendant is acquitted, appeals are exhausted, or
8-9 the attorney is relieved of his duties by the court or replaced by
8-10 other counsel for legal cause stated on the record.
8-11 (h) An attorney who fails to comply with subsection (f)(1)
8-12 is subject to being replaced by other counsel. An attorney's
8-13 repeated or willful failure to comply shall result in removal from
8-14 consideration for appointment to represent indigent defendants in
8-15 the future.
8-16 (i) The procedures adopted and published pursuant to
8-17 subsection (a) shall specify the procedures used in the county to
8-18 determine whether a defendant is indigent so as to warrant
8-19 appointment of counsel;
8-20 [(b)](j) In determining whether a defendant is
8-21 indigent, [the court shall consider such factors as] the only factors
8-22 which may be considered are the defendant's income, source(s) of
8-23 income, property owned, outstanding obligations, necessary
8-24 expenses, the number and ages of dependents, and spousal income[,
8-25 and whether the defendant has posted or is capable of posting bail].
8-26 The court may not [deny appointed counsel to a defendant solely
9-1 because] consider whether the defendant has posted or is capable of
9-2 posting bail as a factor in determining whether a defendant is
9-3 indigent. The standards and procedures established to determine
9-4 whether a defendant is indigent shall apply equally to all
9-5 defendants whether in custody or released on bail.
9-6 (k) In establishing standards and procedures for determining
9-7 whether a defendant is indigent as provided in subsections (h) and
9-8 (i) above, the appointing authority may adopt the standards
9-9 established by the Texas Equal Access to Justice Foundation or the
9-10 federal Legal Services Corporation for determining whether an
9-11 indigent person is eligible for civil legal assistance.
9-12 (l)[(c)] A defendant who requests a determination of
9-13 indigency and appointment of counsel shall:
9-14 (1) complete under oath a questionnaire concerning his
9-15 financial resources;
9-16 (2) respond under oath to an examination regarding his
9-17 financial resources by the judge or magistrate responsible for
9-18 determining whether the defendant is indigent; or
9-19 (3) complete the questionnaire and respond to
9-20 examination by the judge or magistrate.
9-21 (m)[(d)] Before making a determination of whether a
9-22 defendant is indigent, the court shall request the defendant to
9-23 sign under oath a statement substantially in the following form:
9-24 "On this _____ day of ___________, 20 [19]___, I have been advised
9-25 by the (name of the court) Court of my right to representation by
9-26 counsel in the prosecution of the charge pending against me. I
10-1 certify that I am without means to employ counsel of my own
10-2 choosing and I hereby request the court to appoint counsel for me.
10-3 (signature of the defendant)"
10-4 (n) [(c)] A person determined by the Court to be indigent is
10-5 presumed indigent unless there occurs a material change in
10-6 financial circumstances. If there is a material change in
10-7 financial circumstances after a determination of indigency or
10-8 nonindigency is made, the defendant, the defendant's counsel, or
10-9 the attorney representing the state may move for reconsideration of
10-10 the determination.
10-11 (o) The procedures adopted and published pursuant to
10-12 subsection (a) shall specify procedures that ensure that no
10-13 indigent defendant charged with a jailable misdemeanor or felony is
10-14 required to communicate with a prosecutor regarding the offense
10-15 prior to appointment of and an opportunity to confer with defense
10-16 counsel, or an informed waiver of counsel by the defendant on the
10-17 record in open court.
10-18 (p) [(f)] A written or oral statement elicited under this
10-19 article or evidence derived from the statement may not be used for
10-20 any purpose, except to determine the defendant's indigency or to
10-21 impeach the direct testimony of the defendant. This subsection
10-22 does not prohibit prosecution of the defendant under Chapter 37,
10-23 Penal Code.
10-24 SECTION 5. Article 26.044, Code of Criminal Procedure, is
10-25 amended to read as follows:
10-26 Art. 26.044. PUBLIC DEFENDER [IN COUNTY WITH FOUR COUNTY
11-1 COURTS AND FOUR DISTRICT COURTS]. (a) For purposes of this
11-2 article, "Public defender" means a governmental entity or a
11-3 not-for-profit corporation operating under agreement with a
11-4 governmental entity and with public funds, which provides legal
11-5 representation and services to indigent defendants charged with
11-6 crimes or juvenile offenses;
11-7 (b) The commissioners court of any county, on written
11-8 approval of a judge of the county courts, statutory county courts,
11-9 or district courts having jurisdiction over criminal cases in the
11-10 county, [having four county courts and four district courts] may
11-11 appoint a governmental entity or a nonprofit corporation [one or
11-12 more attorneys] to serve as a public defender. A public defender
11-13 may agree to serve more than one county [serves at the pleasure of
11-14 the commissioners court] and the commissioners courts of two or
11-15 more counties may enter a written agreement to jointly fund and
11-16 appoint a regional public defender. In appointing a public
11-17 defender under this subsection, the commissioners court shall
11-18 specify:
11-19 (1) the duties of the public defender office; and
11-20 (2) the types of cases to which the public defender
11-21 may be appointed under Article 26.04(d) and the courts in which the
11-22 public defender may be required to appear.
11-23 (c) Before appointing a public defender under Subsection
11-24 (b), other than public defender offices in existence on the
11-25 effective date of this statute, the commissioners court shall
11-26 solicit proposals for the public defender office. A proposal must
12-1 include:
12-2 (1) a budget for the office, including salaries;
12-3 (2) a description of each personnel position,
12-4 including the public defender position;
12-5 (3) the maximum allowable caseloads for each attorney
12-6 employed by the proponent;
12-7 (4) provisions for personnel training;
12-8 (5) a description of anticipated overhead costs for
12-9 the office; and
12-10 (6) policies regarding the use of investigators and
12-11 expert witnesses by the proponent.
12-12 (d) After considering each proposal for the public defender
12-13 office submitted by a governmental entity or nonprofit corporation,
12-14 the commissioners court shall select a proposal that reasonably
12-15 demonstrates that the proponent will provide adequate quality
12-16 representation for indigent defendants in the county. In selecting
12-17 a proposal, the commissioners court shall consider:
12-18 (1) the quality of representation the proponent will
12-19 provide;
12-20 (2) the reputation of the proponent; and
12-21 (3) the total cost of the proposal. Cost shall not be
12-22 the primary consideration in accepting a proposal.
12-23 (e) To be eligible for appointment as a public defender, the
12-24 appointee or the appointee's executive director, if the appointee
12-25 is a nonprofit corporation, [a person] must:
12-26 (1) be a member of the State Bar of Texas;
13-1 (2) have practiced law for at least three years [one
13-2 year]; and
13-3 (3) have substantial experience in the practice of
13-4 criminal law.
13-5 (f) A [(c) The] public defender is entitled to receive an
13-6 annual salary and reimbursement for expenses incurred in operating
13-7 the public defender office in amounts [an amount] fixed by the
13-8 commissioners court and paid out of the appropriate county fund.
13-9 (g) a public defender may employ and supervise attorneys,
13-10 investigators, and other personnel necessary to perform the duties
13-11 of the public defender office as specified by the commissioners
13-12 court under Subsection (a)(1).
13-13 (h) [(d)] Except as authorized by this article, an attorney
13-14 employed by a public defender may not:
13-15 (1) engage in the private practice of criminal law; or
13-16 (2) accept anything of value not authorized by this
13-17 article for services rendered under this article.
13-18 (i) The term of appointment for a chief public defender
13-19 shall be such term as the commissioners court shall designate, but
13-20 in no event less than four years.
13-21 (j) A public defender may be removed only if:
13-22 (1) the commissioners court and the judge of a court
13-23 having jurisdiction over criminal cases in the county file a joint
13-24 petition for removal;
13-25 (2) the petition is filed in a district court in the
13-26 county; and
14-1 (3) shows good cause for removal.
14-2 (k) A public defender may refuse an appointment under
14-3 Article 26.04(d) if:
14-4 (1) a conflict of interest exists;
14-5 (2) the public defender has insufficient resources to
14-6 provide adequate representation for the defendant;
14-7 (3) the public defender is incapable of providing
14-8 representation for the defendant in accordance with the rules of
14-9 professional conduct; or
14-10 (4) the public defender shows other good cause for
14-11 refusing the appointment.
14-12 (l) [(c) The judge may remove a public defender who violates
14-13 a provision of Subsection (d) of this article.]
14-14 [(f) A public defender or an attorney appointed by a court
14-15 of competent jurisdiction shall represent each indigent person who
14-16 is charged with a criminal offense in a county having at least four
14-17 county courts and at least four district courts and each indigent
14-18 minor who is a party to a juvenile delinquency proceeding in the
14-19 county.]
14-20 [(g)] A public defender may investigate the financial
14-21 condition of any person the public defender is appointed to
14-22 represent. The defender shall report the results of the
14-23 investigation to the appointing judge. The judge may hold a
14-24 hearing to determine if the person is indigent and entitled to
14-25 representation under this article;
14-26 (m) Notwithstanding the foregoing, a county operating a
15-1 public defender program on the effective date of this statue may
15-2 continue to do so according to existing policies and procedures.
15-3 [(h) If an attorney other than a public defender is
15-4 appointed, the attorney is entitled to the compensation provided by
15-5 Article 26.05 of this code.]
15-6 [(i) At any stage of the proceeding, including appeal or
15-7 other postconviction proceedings, the judge may appoint another
15-8 attorney to represent the person. The substitute attorney is
15-9 entitled to the compensation provided by Article 26.05 of this
15-10 code.]
15-11 [(j) Except for the provisions relating to daily appearance
15-12 fees, Article 26.05 of this code applies to a public defender
15-13 appointed under this article.]
15-14 SECTION 6. Article 26.05, Code of Criminal Procedure, is
15-15 amended to read as follows:
15-16 Art. 26.05. COMPENSATION OF COUNSEL APPOINTED TO DEFEND.
15-17 (a) A counsel, other than an attorney with a public defender,
15-18 appointed to represent a defendant in a criminal proceeding,
15-19 including a habeas corpus hearing, shall be [reimbursed for
15-20 reasonable expenses incurred with prior court approval for purposes
15-21 of investigation and expert testimony and shall be] paid a
15-22 reasonable attorney's fee for performing the following services,
15-23 based on the time and labor required, the complexity of the case,
15-24 and the experience and ability of the appointed counsel:
15-25 (1) time spent in court making an appearance on behalf
15-26 of the defendant as evidenced by a docket entry, time spent in
16-1 trial, and [or] time spent in a proceeding in which sworn oral
16-2 testimony is elicited;
16-3 (2) reasonable and necessary time spent out of court
16-4 on the case, including communicating with clients, supported by any
16-5 documentation that the court requires; and
16-6 (3) preparation of an appellate brief and preparation
16-7 and presentation of oral argument to a court of appeals or the
16-8 Court of Criminal Appeals[.]; and
16-9 (4) preparation of a motion for rehearing and petition
16-10 for discretionary review.
16-11 (b) All payments made under this article shall be paid in
16-12 accordance with a schedule of fees adopted by formal action of the
16-13 judges of the county courts, statutory county courts, and district
16-14 courts having jurisdiction over criminal cases in [county and
16-15 district criminal court judges within] each county[, except that in
16-16 a county with only one judge with criminal jurisdiction the
16-17 schedule will be adopted by the administrative judge for that
16-18 judicial district].
16-19 (c) Each fee schedule adopted shall state reasonable [will
16-20 include a fixed rate,] minimum and maximum hourly rates taking into
16-21 consideration overhead costs and customary rates charged for
16-22 similar legal services in the community[, and daily rates] and
16-23 shall [will] provide a form for the appointed counsel to itemize
16-24 [reporting] the types of services performed [in each one]. No
16-25 payment shall be made under this section until the form for
16-26 itemizing [reporting] the services performed is submitted to the
17-1 county auditor or the person designated by the commissioners court,
17-2 if the county does not have a county auditor, [and approved by the
17-3 court and is] in accordance with the fee schedule for that county.
17-4 Not later than the 30th day after the date an application for
17-5 payment of a fee is received under this article, the county auditor
17-6 or the person designated by the commissioners court shall determine
17-7 the amount due and pay that amount to the appointed counsel. In
17-8 determining the amount due, the county auditor or other designated
17-9 person may solicit the opinion of the presiding judge of the court
17-10 in which the criminal proceeding was held as to whether the
17-11 itemized services were reasonably necessary. The opinion of the
17-12 judge shall be included in the record of the criminal proceeding.
17-13 (d) A counsel in a non-capital case, other than an attorney
17-14 with a public defender, appointed to represent a defendant under
17-15 this code shall be reimbursed for reasonable expenses incurred with
17-16 prior court approval in the manner provided for capital cases by
17-17 Articles 26.052(f) and (g) and may be reimbursed for expenses
17-18 incurred without prior court approval in the manner provided for
17-19 capital cases by Article 26.052(h).
17-20 (e) All payments made under this article shall be paid from
17-21 the general fund of the county in which the prosecution was
17-22 instituted or habeas corpus hearing held and may be included as
17-23 costs of court.
17-24 (f)[(e)] If the court determines that a defendant has
17-25 financial resources that enable him to offset in part or in whole
17-26 the costs of the legal services provided, including any expenses
18-1 and costs, the court shall order the defendant to pay the amount
18-2 that it finds the defendant is able to pay.
18-3 (g)[(f)] Reimbursement of expenses incurred for purposes of
18-4 investigation or expert testimony may be paid directly to a private
18-5 investigator licensed under Chapter 1702, Occupations Code, [the
18-6 Private Investigators and Private Security Agencies Act (Article
18-7 4413(29bb), Vernon's Texas Civil Statutes)] or to an expert witness
18-8 in the manner designated by appointed counsel and approved by the
18-9 court.
18-10 SECTION 7. Subchapter C, Chapter 71, Government Code, is
18-11 amended by adding Section 71.0351 to read as follows:
18-12 Sec. 71.0351. INDIGENT DEFENSE INFORMATION. (a) In each
18-13 county, the county auditor or the person designated by the
18-14 commissioners court, if the county does not have a county auditor,
18-15 shall prepare and send to the Texas Judicial Council's Office of
18-16 Court Administration, not later than September 30 of each year, a
18-17 report that satisfies the requirements of Subsections (b) and (c).
18-18 As a duty of their office, each district and county clerk shall
18-19 cooperate with the county auditor or the person designated by the
18-20 commissioners court and the commissioners court in retrieving
18-21 information for inclusion in the report.
18-22 (b) The report shall be prepared in the form and manner
18-23 prescribed by the council's office of court administration and
18-24 shall include, with respect to legal services provided by the
18-25 county to indigent defendants during the preceding fiscal year:
18-26 (1) a copy of all formal and informal rules and forms
19-1 that describe the procedures used in the county to provide indigent
19-2 defendants with counsel in accordance with the Code of Criminal
19-3 Procedure, including the schedule of fees required under Article
19-4 26.05(b) of that code;
19-5 (2) information on each criminal case in which county
19-6 funds were used to provide indigent defense services in accordance
19-7 with the Code of Criminal Procedure, including: the case number;
19-8 court designation; name, age, race, and sex of the defendant; the
19-9 dates of arrest, appearance before the magistrate, and appointment
19-10 of counsel; the attorney appointed to represent the defendant; the
19-11 amount of time spent on the case in and out of court by the
19-12 attorney appointed to represent the defendant; the amounts
19-13 requested and paid in attorney's fees and litigation costs,
19-14 including investigation and expert witness costs; disposition of
19-15 the case; and
19-16 (3) the total amount expended by the county to provide
19-17 indigent defense services and an analysis of the amount expended by
19-18 the county:
19-19 (A) in each district, county, statutory county,
19-20 and appellate court;
19-21 (B) in cases for which a private attorney is
19-22 appointed for an indigent defendant;
19-23 (C) in cases for which a public defender is
19-24 appointed for an indigent defendant;
19-25 (D) in cases involving:
19-26 (i) a bench trial; or
20-1 (ii) a jury trial;
20-2 (E) in cases for which counsel is appointed for
20-3 an indigent juvenile under Section 51.10(f), Family Code;
20-4 (F) in cases, other than those for which a
20-5 public defender is appointed, in which:
20-6 (i) an issue concerning the defendant's
20-7 competence to stand trial has been raised under Article 46.02, Code
20-8 of Criminal Procedure, or the insanity defense has been submitted
20-9 under Article 46.03 of that code; or
20-10 (ii) a defendant is charged with the
20-11 commission of an offense punishable as a capital felony; and
20-12 (G) for:
20-13 (i) investigation expenses;
20-14 (ii) expert witness expenses; or
20-15 (iii) other litigation expenses.
20-16 (c) The report shall also include for each analysis under
20-17 Subsection (b)(3) the number of cases for which the amount was
20-18 expended.
20-19 SECTION 8. Sections 26.041, 26.042, 26.043, 26.045, 26.046,
20-20 26.047, 26.048, 26.049, 26.050, and 26.058, Code of Criminal
20-21 Procedure, are repealed.
20-22 SECTION 9. The change in law made by this Act applies only
20-23 to a person arrested for or charged with an offense committed on or
20-24 after the effective date of this Act and to the appointment of
20-25 counsel for that person. A person arrested for or charged with an
20-26 offense committed before the effective date of this Act is covered
21-1 by the law in effect when the offense was committed, and the former
21-2 law is continued in effect for that purpose.
21-3 SECTION 10. A county auditor or other person designated
21-4 under Section 71.0351, Government Code, as added by this Act, shall
21-5 send to the Office of Court Administration of the Texas Judicial
21-6 Council the first report required by that section on or before
21-7 September 30, 2002.
21-8 SECTION 11. Title 2 Judicial Branch of the Government Code
21-9 is amended by adding Chapter 85 as follows:
21-10 SECTION 85.001 DEFINITIONS. In this chapter:
21-11 (a) "Council" means the Indigent Defense Council established by
21-12 this chapter;
21-13 (b) "Member" means a member of the Indigent Defense Council;
21-14 (c) "Executive Administrator" means the Executive Administrator of
21-15 the Council;
21-16 (d) "Crimes" means misdemeanors punishable by imprisonment,
21-17 non-capital felonies, and capital felonies;
21-18 (e) "Juvenile offense" means a charge of delinquent conduct or
21-19 conduct indicating a need for supervision;
21-20 (f) "Counsel appointed to represent indigent persons" includes any
21-21 attorney compensated with public funds who is assigned to represent
21-22 an indigent defendant, whether under an ad hoc assigned counsel
21-23 program, a contract defender program, or a public defender program;
21-24 (g) "Ad hoc assigned counsel program" means a system under which a
21-25 private attorney, acting as an independent contractor and
21-26 compensated with public funds, is individually assigned to provide
22-1 legal representation and services to a specific indigent defendant
22-2 accused of a crime or juvenile offense;
22-3 (h) "Contract defender program" means a system under which a
22-4 private attorney, acting as an independent contractor and
22-5 compensated with public funds, is engaged to provide legal
22-6 representation and services to a group of unspecified indigent
22-7 defendants charged with crimes or juvenile offenses in a particular
22-8 court or group of courts;
22-9 (i) "Public defender program" means a governmental entity or a
22-10 not-for-profit corporation operating under agreement with a
22-11 governmental entity and with public funds, which provides legal
22-12 representation and services to indigent defendants charged with
22-13 crimes or juvenile offenses;
22-14 (j) "Indigent defense support services" means criminal defense
22-15 services that are provided by investigators, experts and similar
22-16 specialists and that are reasonably necessary to adequate
22-17 representation by counsel appointed to represent indigent persons.
22-18 SECTION 85.002. ESTABLISHMENT OF THE TEXAS INDIGENT DEFENSE
22-19 COUNCIL. (a) This Act establishes the Texas Indigent Defense
22-20 Council as an entity within the judicial branch of state government
22-21 administratively attached to the Office of Court Administration;
22-22 (b) The Indigent Defense Council shall exercise its prescribed
22-23 powers independently of the Executive Director of the Office of
22-24 Court Administration;
22-25 (c) The Council shall be a legal entity, may enter into contracts,
22-26 may own property, may accept funds, grants, and gifts from any
23-1 public or private source to pay expenses incident to implementing
23-2 its purposes, and may establish a principal office;
23-3 (d) The Executive Director of the Office of Court Administration
23-4 shall provide general administrative support to the Council. The
23-5 term "general administrative support" includes purchasing, payroll,
23-6 and similar administrative services;
23-7 (e) The budget of the Indigent Defense Council shall be a part of
23-8 the Judicial Council's budget. The Indigent Defense Council shall
23-9 consult with the Executive Director of the Office of Court
23-10 Administration, who shall assist the Council in preparing and
23-11 presenting to the Legislature the Council's budget, but the Council
23-12 shall have final authority with respect to preparation of its
23-13 budget and with respect to representation of matters pertaining to
23-14 the Council before the Legislature;
23-15 (f) The Executive Director of the Office of Court Administration
23-16 shall not reduce or modify the budget of the Indigent Defense
23-17 Council or use funds appropriated to the Council without the
23-18 approval of the Council;
23-19 SECTION 85.003. COMPOSITION OF THE COUNCIL.
23-20 (a) The Council shall be composed of 15 persons:
23-21 (i) one appointed by the Governor, who shall not be an
23-22 attorney;
23-23 (ii) one appointed by the Lieutenant Governor, who shall be a
23-24 member of the Senate;
23-25 (iii) one appointed by the Speaker of the House of
23-26 Representatives, who shall be a member of the House
24-1 of Representatives;
24-2 (iv) one appointed by the Governor, from a roster of names
24-3 provided by the Presiding Judge of the Court of
24-4 Criminal Appeals;
24-5 (v) one appointed by the Governor, from a roster of names
24-6 provided by the Chief Justice of the Supreme Court;
24-7 (vi) one appointed by the Governor, from a roster of names
24-8 provided by the Texas Criminal Defense Lawyers
24-9 Association;
24-10 (vii) one appointed by the Governor, from a roster of names
24-11 provided by the Texas Association of Counties;
24-12 (viii) one appointed by the Governor, from a roster of names
24-13 provided by the Texas Conference of Urban Counties;
24-14 (ix) one appointed by the Governor, from a roster of names
24-15 provided by the Texas Equal Access to Justice
24-16 Foundation
24-17 (x) one appointed by the Governor, from a roster of names
24-18 provided by the Texas affiliate of the National
24-19 Association for the Mentally Ill (NAMI Texas);
24-20 (xi) one appointed by Governor, from the membership of each
24-21 of the following Sections of the Texas Bar:
24-22 Criminal Justice, Individual Rights and
24-23 Responsibilities, and Juvenile Law; and
24-24 (xii) two appointed by the Council, at least one of whom
24-25 shall occupy a teaching position in a law school in
24-26 Texas.
25-1 (b) Members of the Council shall be appointed to serve staggered
25-2 terms of six years. No member of the Council may serve more than
25-3 two successive terms;
25-4 (c) Former judges or law professors appointed to the Council must
25-5 have significant specialized legal knowledge or expertise in
25-6 the area of indigent criminal defense or the administration
25-7 of indigent defense systems. All persons appointed to the
25-8 Council shall have demonstrated a strong commitment to
25-9 quality representation in indigent defense matters;
25-10 (d) No person currently employed or serving as a prosecutor, law
25-11 enforcement official, or any active employees of such persons, may
25-12 be nominated or appointed to or serve on the Council. No person
25-13 who has served as a prosecutor or law enforcement official, or as
25-14 an employee of such persons, within the five years preceding
25-15 appointment, may serve on the Council;
25-16 (e) No member of the Council may be an active or former judge,
25-17 except as provided in subsection (a) of this section;
25-18 (f) Each member of the Council shall serve until a successor in
25-19 office has been appointed. Vacancies shall be filled by
25-20 appointment for the unexpired term. Removal of Council members
25-21 shall be in accordance with policies and procedures adopted by the
25-22 Council;
25-23 (g) The council shall elect a Chair from among its members, to
25-24 serve for a term of one year. The Chair may serve up to three
25-25 successive terms as Chair.
25-26 (h) Initial appointments to the Council shall be made by September
26-1 1, 2001. Thereafter, appointments to the Council shall be made by
26-2 September 1st of the year in which a term has expired.
26-3 Appointments to fill vacancies for unexpired terms on the Council
26-4 shall be made within 90 days of the positions becoming vacant.
26-5 SECTION 85.004. CONDUCT OF COUNCIL BUSINESS.
26-6 (a) Eight members constitute a quorum for the transaction of
26-7 business. Action by the Council shall require a concurrence of a
26-8 majority of those present, but in no event less than six members of
26-9 the Council.
26-10 (b) The Council shall meet at least quarterly and at such other
26-11 times as it deems necessary or convenient to perform its duties.
26-12 Meetings of the Council shall be at such places as the Council
26-13 determines.
26-14 (c) All members of the Council are entitled to vote on any matters
26-15 coming before the Council unless otherwise provided by rules
26-16 adopted by the Council.
26-17 (d) Council members shall not receive compensation but are
26-18 entitled to be paid necessary subsistence and travel expenses in
26-19 accordance with the applicable provisions of the Government Code.
26-20 (e) The Council shall appoint an Executive Director to hire such
26-21 personnel as may be necessary to properly discharge the duties
26-22 assigned to the Council under this subchapter, and to supervise and
26-23 direct the Council's staff in carrying out those functions;
26-24 (f) The Council shall monitor and evaluate the performance of the
26-25 Executive Director and the Council's staff, and establish employee
26-26 personnel policies for the Council.
27-1 SECTION 85.005. POWERS AND DUTIES OF THE COUNCIL.
27-2 (a) Development of Standards. The Council shall have the
27-3 authority to develop standards governing the provision of services,
27-4 at trial, on appeal, and in post-conviction proceedings, under this
27-5 Article, including:
27-6 (1) performance standards for counsel appointed to represent
27-7 indigent defendants;
27-8 (2) qualification standards under which attorneys may
27-9 qualify for appointment to represent indigent persons in
27-10 proceedings described in subsection (a)(1); such standards shall
27-11 include, at a minimum, qualifications commensurate with the
27-12 seriousness of the nature of the proceeding, qualifications
27-13 appropriate for representation of mentally ill defendants and
27-14 non-citizen defendants and successful completion of relevant
27-15 continuing legal education programs approved by the Council; such
27-16 standards include testing and certification standards;
27-17 (3) standards for ensuring appropriate caseloads for counsel
27-18 appointed to represent indigent persons in proceedings described in
27-19 subsection (a)(1);
27-20 (4) standards for determining whether a person accused of a
27-21 crime or juvenile offense or facing civil commitment proceedings is
27-22 indigent;
27-23 (5) policies and standards for the organization and
27-24 operation of ad hoc assigned counsel programs;
27-25 (6) policies and standards for the organization and
27-26 operation of any public defender program which have been or may be
28-1 established by counties pursuant to other provisions of law, which
28-2 policies and standards shall be consistent with recognized national
28-3 policies and standards;
28-4 (7) standards governing the provision of indigent defense
28-5 services under a contract counsel program, which policies and
28-6 standards shall be consistent with recognized national policies and
28-7 standards;
28-8 (8) standards for reasonable compensation of counsel
28-9 appointed to represent indigent persons;
28-10 (9) standards for availability of and reasonable
28-11 compensation for support services for counsel appointed to
28-12 represent indigent persons, including services such as forensic
28-13 experts, mental health experts, and investigators;
28-14 (10) such other standards and policies governing the
28-15 administration of indigent defense services as the Council may deem
28-16 appropriate.
28-17 (b) Enforcement of Standards. The Council shall have the
28-18 authority to:
28-19 (1) establish procedures for reviewing and determining
28-20 appeals by appointed counsel of district or county court decisions
28-21 to award or deny compensation for services provided by counsel
28-22 appointed to represent indigent persons or providers of indigent
28-23 defense support services;
28-24 (2) grant or deny appeals by appointed counsel of district
28-25 or county court decisions to award or deny compensation for
28-26 services provided by counsel appointed to represent indigent
29-1 persons or providers of indigent defense support services;
29-2 (3) prohibit compensation practices that violate standards
29-3 promulgated by the Council for compensating counsel appointed to
29-4 represent indigent persons or providers of indigent defense support
29-5 services; and
29-6 (4) review lists of counsel promulgated by local selection
29-7 committees pursuant to Article 26.052 of the Texas Code of Criminal
29-8 Procedure and prohibit any attorney who fails to satisfy
29-9 performance and qualification standards promulgated by the local
29-10 selection committee or the Council from accepting appointment as
29-11 counsel in any capital case.
29-12 (5) receive and review complaints regarding adherence to
29-13 applicable indigent defense standards established by the Council or
29-14 the Legislature.
29-15 (6) establish appropriate procedures to monitor and enforce
29-16 compliance with applicable indigent defense standards established
29-17 by the Council or the Legislature.
29-18 (c) Compilation and Reporting of Information Regarding Indigent
29-19 Defense. The Council shall:
29-20 (1) collect data specified in Section 71.0351 of the
29-21 Government Code (as amended by Section 7 of the Fair Defense Act);
29-22 (2) collect data annually from each county in the State
29-23 regarding the provision of defense services to indigent persons
29-24 accused of crimes, including requiring local officials to
29-25 facilitate this process by timely completing and transmitting forms
29-26 created and disseminated by the Council; this shall include all
30-1 procedures adopted and published pursuant to Article 26.04 of the
30-2 Code of Criminal Procedure (as amended by Section 4 of the Fair
30-3 Defense Act);
30-4 (3) require annual reports regarding expenditures,
30-5 caseloads, and status of cases from any ad hoc assigned counsel
30-6 programs, contract counsel programs, or public defender programs;
30-7 (4) make an annual report to the Governor, the Lieutenant
30-8 Governor, the Speaker of the House of Representatives, the Chief
30-9 Justice of the Supreme Court, and the Presiding Judge of the Court
30-10 of Criminal Appeals regarding the quality of legal representation
30-11 provided by counsel appointed to represent indigent persons, the
30-12 current indigent defense practices in the state as compared to
30-13 state and national standards and the Council's efforts to improve
30-14 same; such report shall include all data specified in
30-15 subsections(c)(1) through (3) above; and
30-16 (5) publish in written and electronic form available to the
30-17 public all data specified in subsection(c)(1) through (4) above.
30-18 (6) issue such other reports as the Council may deem
30-19 appropriate.
30-20 (d) Supervision of Appointed Counsel Assistance Program. The
30-21 Council shall have the power and duty to:
30-22 (1) appoint the Chief Counsel of the Appointed Counsel
30-23 Assistance Program;
30-24 (2) advise the Chief Counsel of the Appointed Counsel
30-25 Assistance Program regarding hiring employees for that office, and
30-26 consent to same; and
31-1 (3) approve the budget of the Appointed Counsel Assistance
31-2 Program.
31-3 (e) Provision of Technical and Financial Assistance to Counties.
31-4 The Council shall have the power and duty to:
31-5 (1) provide technical support to assist counties in
31-6 improving their indigent defense system;
31-7 (2) grant funds to counties for making improvements in their
31-8 indigent defense systems, based on compliance with standards
31-9 developed by the Council and a demonstrated commitment to the
31-10 following factors, as further developed by the Council:
31-11 (i) independence of appointed counsel;
31-12 (ii) prompt appointment of counsel in misdemeanor and
31-13 felony cases, whether defendants are on bond or in
31-14 custody awaiting trial
31-15 (iii) use of a consistent procedure to determine
31-16 whether accused persons are indigent and to appoint
31-17 counsel within 72 hours of arrest;
31-18 (iv) use of reliable procedures to ensure that
31-19 attorneys appointed to represent indigent persons accused
31-20 of crimes are competent in the practice of criminal law,
31-21 including appropriate specialized competence in
31-22 representation of mentally ill defendants and non-citizen
31-23 defendants;
31-24 (v) an adequate rate of compensation and allowable
31-25 rate of expenses for counsel;
31-26 (vi) availability of, and attorney participation in,
32-1 appropriate and relevant training programs; and
32-2 (vii) maintenance of current county effort and
32-3 spending on provision of indigent defense services;
32-4 (3) monitor and enforce compliance by grantee counties with
32-5 the conditions upon which any grant was made, including enforcement
32-6 through withdrawal or reimbursement of grant funds in the event of
32-7 non-compliance.
32-8 SECTION 85.006 CREATION OF APPOINTED COUNSEL ASSISTANCE
32-9 PROGRAM; POWERS AND DUTIES OF PROGRAM.
32-10 (a) There is hereby established, within the Indigent Defense
32-11 Council, the Appointed Counsel Assistance Program (ACAP);
32-12 (b) Upon request, as provided in subsection 3 of this section, the
32-13 ACAP may provide defense services, including but not limited
32-14 to those specified in this section, in any criminal case in
32-15 any county in the State in which an indigent defendant is
32-16 charged with a capital or first-degree felony;
32-17 (c) The ACAP shall assist counties in meeting their constitutional
32-18 obligation to provide effective legal representation to
32-19 indigent persons accused of capital or first-degree felonies,
32-20 and promote the improvement of the quality and delivery of
32-21 defense services provided to such defendants by:
32-22 (1) contacting trial judges, court officials and employees,
32-23 and counsel qualified to accept appointments in capital
32-24 and first-degree felony cases, to provide information
32-25 about assistance and services available from the ACAP and
32-26 to obtain information about pending matters in which the
33-1 ACAP anticipates requests for assistance;
33-2 (2) organizing and presenting continuing legal education
33-3 programs on relevant topics, and regularly advising
33-4 judges and attorneys in each county of the availability
33-5 of such training opportunities;
33-6 (3) creating and disseminating model pleadings, which may be
33-7 provided upon request to appointed counsel in capital and
33-8 first-degree felony cases;
33-9 (4) consulting, upon request, with appointed counsel in
33-10 capital and first-degree felony cases;
33-11 (5) providing referrals to appropriately qualified forensic
33-12 experts and investigators, upon request from appointed
33-13 counsel;
33-14 (6) collecting and analyzing data concerning capital cases in
33-15 Texas;
33-16 (7) accepting appointment from time to time to serve as
33-17 counsel or co-counsel in a capital or first-degree felony
33-18 case, if (A) the presiding judge of the court in which
33-19 the case is pending wishes to appoint the ACAP, and (B)
33-20 the Chief Counsel of the ACAP determines that the
33-21 resources, funding, and staffing of the ACAP allow such
33-22 participation; and
33-23 (8) by performing any other task deemed appropriate by the
33-24 Chief Counsel, in consultation with the Chair of the
33-25 Indigent Defense Council.
33-26 (d) Office a legal entity; acceptance and use of funds
34-1 The ACAP shall be a legal entity and may contract, own property,
34-2 and establish a principal office. The ACAP may accept funds,
34-3 grants, and gifts from any public or private source. Any
34-4 funds received shall be used to carry out the purposes of the
34-5 ACAP.
34-6 (e) Composition of Appointed Counsel Assistance Program
34-7 The Chief Counsel of the ACAP shall employ, with the advice and
34-8 consent of the Indigent Defense Council and its Chair, as many
34-9 Assistant Counsel and other support staff as may be necessary to
34-10 discharge the ACAP's responsibilities under this Act.
34-11 (f) Chief Counsel of Appointed Counsel Assistance Program
34-12 (1) The Chief Counsel of the ACAP shall be appointed by the
34-13 Indigent Defense Council.
34-14 (2) The Chief Counsel of the ACAP shall serve a term of two (2)
34-15 years. The Chief Counsel may be removed by the Indigent
34-16 Defense Council for cause only.
34-17 (3) Not later than ninety (90) days prior to the end of the Chief
34-18 Counsel's term or upon removal of the Chief Counsel, the
34-19 Indigent Defense Council shall meet to select a successor. An
34-20 individual may be appointed Chief Counsel of the ACAP for more
34-21 than one term. The Chair of the Indigent Defense Council may
34-22 call a special meeting, with not less than forty-five (45)
34-23 days' notice to the Chief Counsel and the members of the
34-24 Indigent Defense Council, to consider removing the Chief
34-25 Counsel for cause and for selection of a successor upon
34-26 removal of the Chief Counsel. (g) Qualifications for Chief
35-1 Counsel of Appointed Counsel Assistance Program.
35-2 (1) The Chief Counsel of the ACAP shall have:
35-3 (A) Membership in good standing in the Texas Bar;
35-4 (B) At least ten (10) years' continuous experience
35-5 representing defendants in criminal cases;
35-6 (C) Experience as lead defense counsel in at least ten (10)
35-7 jury trials of serious or complex cases tried to
35-8 completion, including four (4) homicide cases and five
35-9 (5) felony jury trials of capital, first, or second
35-10 degree felonies; or experience as lead defense counsel in
35-11 two (2) capital murder cases tried to completion in which
35-12 the prosecution sought the death penalty and five (5)
35-13 felony jury trials of capital, first, or second-degree
35-14 felonies;
35-15 (D) Experience in the use of expert witnesses, including
35-16 forensic experts and mental health experts, in capital
35-17 cases;
35-18 (E) Experience in, and a demonstrated commitment to, the team
35-19 approach to defending capital cases;
35-20 (F) Experience in investigating and presenting mitigating
35-21 evidence at the penalty phase of capital cases;
35-22 (G) Proficiency in, and commitment to, the quality of
35-23 representation appropriate to capital cases, as
35-24 demonstrated by participation in relevant continuing
35-25 legal education programs, memberships and activity in
35-26 organizations dedicated to improving the quality of legal
36-1 representation in criminal cases, and reputation among
36-2 criminal defense attorneys defending capital cases;
36-3 (H) A demonstrated commitment to observe, at a minimum, the
36-4 American Bar Association Guidelines for the Appointment
36-5 and Performance of Counsel in Death Penalty Cases (ABA
36-6 Guidelines) and the NLADA Performance Guidelines for
36-7 Criminal Defense Representation (NLADA Guidelines).
36-8 (h) Qualifications for Assistant Counsel of the Appointed Counsel
36-9 Assistance Program.
36-10 (1) Assistant Counsel employed by the ACAP shall have:
36-11 (A) Membership in good standing in the Texas Bar;
36-12 (B) At least five (5) years' continuous experience
36-13 representing defendants in criminal cases;
36-14 (C) Experience as lead defense counsel in at least ten (10)
36-15 jury trials of serious or complex cases tried to
36-16 completion, including four (4) homicide cases and five
36-17 (5) felony jury trials of capital, first, or second
36-18 degree felonies; or experience as lead defense counsel in
36-19 two (2) capital murder cases tried to completion in which
36-20 the prosecution sought the death penalty and five (5)
36-21 felony jury trials of capital, first, or second-degree
36-22 felonies;
36-23 (D) Experience in the use of expert witnesses, including
36-24 forensic experts and mental health experts, in capital
36-25 cases;
36-26 (E) Experience in, and a demonstrated commitment to, the team
37-1 approach to defending capital cases;
37-2 (F) Experience in investigating and presenting mitigating
37-3 evidence at the penalty phase of capital cases;
37-4 (G) Proficiency in, and commitment to, the quality of
37-5 representation appropriate to capital cases, as
37-6 demonstrated by participation in relevant continuing
37-7 legal education programs, memberships and activity in
37-8 organizations dedicated to improving the quality of legal
37-9 representation in criminal cases, and reputation among
37-10 criminal defense attorneys defending capital cases;
37-11 (H) A demonstrated commitment to observe, at a minimum, the
37-12 American Bar Association Guidelines for the Appointment
37-13 and Performance of Counsel in Death Penalty Cases (ABA
37-14 Guidelines) and the NLADA Performance Guidelines for
37-15 Criminal Defense Representation (NLADA Guidelines).
37-16 SECTION 17. Art. 26.052, Code of Criminal Procedure,
37-17 is amended to read as follows:
37-18 (d) In consultation with the Indigent Defense Council, the
37-19 committee shall adopt standards for the qualification
37-20 of attorneys to be appointed to represent indigent
37-21 defendants in capital felony cases in which the State
37-22 is seeking the death penalty. Those standards must
37-23 include, at a minimum, that in order to be eligible
37-24 to be appointed to represent an indigent defendant in
37-25 a capital felony case in which the State is seeking
37-26 the death penalty, an attorney must have:
38-1 (A) membership in good standing in the Texas Bar;
38-2 (B) at least five (5) years' continuous experience
38-3 representing defendants in criminal cases;
38-4 (C) experience as lead defense counsel in at least
38-5 ten (10) jury trials of serious or complex cases
38-6 tried to completion, including four (4) homicide
38-7 cases and five (5) felony jury trials of
38-8 capital, first, or second degree felonies; or
38-9 experience as lead defense counsel in two (2)
38-10 capital murder cases tried to completion in
38-11 which the prosecution sought the death penalty
38-12 and five (5) felony jury trials of capital,
38-13 first, or second-degree felonies;
38-14 (D) experience in the use of expert witnesses,
38-15 including forensic experts and mental health
38-16 experts, in capital cases;
38-17 (E) experience in, and a demonstrated commitment to,
38-18 the team approach to defending capital cases;
38-19 (F) experience in investigating and presenting
38-20 mitigating evidence at the penalty phase of
38-21 capital cases; and
38-22 (G) proficiency in, and commitment to, the quality
38-23 of representation appropriate to capital cases,
38-24 as demonstrated by participation in relevant
38-25 continuing legal education programs, memberships
38-26 and activity in organizations dedicated to
39-1 improving the quality of legal representation in
39-2 criminal cases, and reputation among criminal
39-3 defense attorneys defending capital cases;
39-4 (H) a demonstrated commitment to observe, at a
39-5 minimum, the American Bar Association Guidelines
39-6 for the Appointment and Performance of Counsel
39-7 in Death Penalty Cases (ABA Guidelines) and the
39-8 NLADA Performance Guidelines for Criminal
39-9 Defense Representation (NLADA Guidelines);
39-10 (2) the committee shall prominently post the standards
39-11 in each district clerk's office in the region with
39-12 a list of attorneys qualified for appointment.
39-13 (3) upon request, the committee shall review the list
39-14 of attorneys qualified for appointment, in
39-15 consultation with the Indigent Defense Council, to
39-16 ensure that each attorney on the list is in
39-17 compliance with the requirements of this chapter.
39-18 (4) the presiding judge of the district court in which
39-19 a capital felony case is filed shall appoint two
39-20 attorneys qualified under this chapter to represent
39-21 an indigent defendant as soon as practicable after
39-22 charges are filed, unless the State gives notice in
39-23 writing that the death penalty will not be sought
39-24 in the case.
39-25 SECTION 85.007. ANNUAL BUDGET. The Chief Counsel shall
39-26 prepare and transmit to the Indigent Defense Council an annual
40-1 budget showing all anticipated expenses of the ACAP for the
40-2 following fiscal year, which shall be the same as the state's
40-3 fiscal year.
40-4 SECTION 12. This Act takes effect September 1, 2001.
40-5 SECTION 13. The importance of this legislation and the
40-6 crowded condition of the calendars in both houses create an
40-7 emergency and an imperative public necessity that the
40-8 constitutional rule requiring bills to be read on three several
40-9 days in each house be suspended, and this rule is hereby suspended.