SRC-LBB S.B. 1224 78(R)   BILL ANALYSIS


Senate Research Center   S.B. 1224
78R8190 GWK-FBy: Ellis, Rodney
Criminal Justice
3/24/2003
As Filed


DIGEST AND PURPOSE 

The Capital Habeas Corpus bill ensures that death row inmates are afforded
one full and fair opportunity to have any claims of innocence or
unfairness heard by the courts and ensures that inmates are represented by
competent lawyers.  Habeus Corpus is the only appeal in which an inmate
can raise new evidence, including new evidence of his innocence.  It is a
"safety net" designed to catch the innocent and those treated unfairly by
the system.  If the claim is not raised in state habeas, it is forever
lost.  The proper administration of justice requires a system that is
perceived to be fair and equitable.  As proposed, S.B. 1224 defines
"competent" counsel as counsel who performs competently, not counsel whose
name has been put on the list of approved lawyers.  This bill also
requires a statewide bar association to establish a death row
representation committee and makes changes to the fee cap. S.B. 1224
creates a limited remedy for those inmates who can prove they were not
represented by "competent" lawyers. 

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to
a state officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 2, Article 11.071, Code of Criminal Procedure,
as follows: 
 
(a)  Requires an attorney appointed or employed as counsel under this
section to provide competent representation during the course of
proceedings under this article and to perform all duties required of
counsel under this article. 

(b)  Provides that this chapter does not prohibit the convicting court
from appointing an attorney to act as second chair attorney to the lead
attorney. 

(c)  Requires the statewide professional association of criminal defense
attorneys that is authorized to receive grants under Section 56.003(f)
(Use of Funds), Government Code, and whose members regularly represent
indigent defendants in criminal matters to establish a death row
representation committee to create and maintain a list of attorneys
approved for appointment under this section.  Requires the committee to
review and update the list of attorneys at least quarterly. 

(d)  Creates this subsection from existing text.  Requires the convicting
court to appoint counsel from the list of attorneys maintained under
Subsection (c), unless the applicant elects to proceed pro se or is
represented by retained counsel.  Includes the death row representation
review committee as an entity to be notified by the convicting court on
appointing counsel under this section.  Makes a conforming change.
Deletes existing Subsection (d) requiring the court of criminal appeals to
adopt rules for the appointment of attorneys as counsel under this section
and authorizing the convicting court to appoint an attorney as counsel
under this section only if the appointment is approved by the court of
criminal appeals in any manner provided by those  rules. 

 (e)  Makes a conforming change.

 (f)   No changes to this subsection.

SECTION 2.  Amends Section 2A, Article 11.071, Code of Criminal Procedure,
by amending Subsections (a) and (b) and adding Subsection (d), as follows: 

(a)  Increases from $25,000 to $50,000 the maximum total amount of
reimbursement to which a county is entitled under this section for an
application under this article.  Makes a conforming change. 
 
 (b)  Makes a conforming change.

(d)(1)  Prohibits payment from being made under Subsection (c) until a
statement itemizing the services performed is submitted to the convicting
court and the convicting court approves the payment.  Requires the
convicting court to enter a finding in writing stating the amount of
payment that the court approves and the reason for approving a different
amount than the amount requested, if the convicting court disapproves the
amount requested for payment. Requires the commissioners court of the
county to pay the amount approved by the convicting court, if a convicting
court approves a payment or disapproves a payment and the attorney does
not within three days file an appeal of the disapproval under Subdivision
(2).  Requires payment to be made under this subdivision not later than
the 45th day after the date the convicting court approves an amount.  

(2)  Authorizes an attorney to appeal the disapproval by filing a motion
with the presiding judge of the administrative region in which the
convicting court is located or invoke the procedures of a fee dispute
committee established by a local bar association and recognized by the
State Bar of Texas.  Requires the judge to review the disapproval of
payment and determine, with or without a hearing, the appropriate amount
of payment, if a motion is filed under this subdivision with the presiding
judge of an administrative judicial region.  Requires the presiding judge
to approve an amount that the judge determines is proper.  Requires the
commissioners court of the county served by the convicting court to pay to
the attorney the amount determined to be proper by the presiding judge or
fee dispute committee.  Requires the payment to be made not later than the
45th day after the day on which the itemized statement is submitted to the
convicting court or the day on which the presiding judge or fee dispute
committee approves a payment amount, whichever date is later. 

SECTION 3.  Amends Section 3(b), Article 11.071, Code of Criminal
Procedure, to require the court to authorize the prepayment of expenses on
finding that the expenses are reasonably necessary for the investigation
of a potentially meritorious habeas corpus claim that could entitle the
applicant to relief. Deletes language regarding what the request for
expenses is required to state. 

SECTION 4.  Amends Section 5, Article 11.071, Code of Criminal Procedure,
by amending Subsections (a) and (b) and adding Subsections (g), (h), and
(i), as follows: 

(a)  Makes changes to a subsequent application for a writ of habeas corpus
that is filed after filing an initial application by including the term
"meritorious" in the description of a legal basis for a claim under
Subdivision (1).  Includes new Subdivision (4) to include an additional
procedure to be addressed in the application. 

(b)  Requires the clerk of the court, if the convicting court receives a
subsequent application asserting specific facts establishing
justifications described by Subsection (a)(1), (2), or (3), to  perform
certain tasks. 
  
(g)  Requires a subsequent application for a writ of habeas corpus
asserting specific facts establishing justifications described by
Subsection (a)(4), returnable to the court of criminal appeals, to be
filed in the convicting court not later than the 60th day after the day on
which the federal court of appeals denies the applicant relief.  Requires
the convicting court to dismiss as an abuse of writ an application filed
later than the 60th day after the denial of relief. 

(h)  Authorizes an applicant to make a prima facie showing of
justifications described by Subsection (a)(4) by establishing that the
attorney in the initial application for a writ of habeas corpus under this
article failed: 

(1)  to properly investigate the factual and legal grounds for the filing
of an application for a writ of habeas corpus; or 

(2)  for reasons other than exercising reasonable professional judgment,
to exercise due diligence in properly raising and presenting to the
convicting court material and cognizable claims that were available in the
applicant's case and the proper factual support for those claims. 

(i)  Requires the convicting court to appoint new counsel to represent the
applicant and establish a new filing date for a subsequent application,
which may not be later than the 270th day after the day on which the
convicting court appointed new counsel, if an applicant makes the prima
facie showing described by Subsection (h).  Provides that Sections 2A and
3 apply to the compensation and reimbursement of counsel appointed under
this subsection. 

SECTION 5.  Amends Section 6, Article 11.071, Code of Criminal Procedure,
by adding Subsection (b-1) to require the convicting court to appoint
counsel and provide for the compensation for time previously spent and
reimbursement of expenses previously incurred in the same manner as is
provided by Sections 2A and 3, regardless of whether the subsequent
application is ultimately dismissed, if the convicting court receives
notice that the requirements of Section 5(a)(1), (2), or (3) for
consideration of a subsequent application have been met. 

SECTION 6.  Amends Section 8(c), Article 11.071, Code of Criminal
Procedure, to include "without the assistance of either party" when
referring to the requirement of the convicting court to make appropriate
written findings of fact and conclusions of law. 

SECTION 7.  Amends Section 9(e), Article 11.071, Code of Criminal
Procedure, to make a conforming change. 

SECTION 8.  (a)  Requires the statewide association of criminal defense
attorneys described by Section 2, Article 11.071, Code of Criminal
Procedure, as amended by this Act, to establish a death row representation
committee not later than October 1, 2003, and requires the death row
representation committee to create an attorney appointment list, as
required by Section 2, Article 11.071, not later than January 1, 2004. 

 (b)  Makes application of this Act prospective to January 1, 2004.

SECTION 9.  Effective date:  September 1, 2003.