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.