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By: Ellis, et al. S.B. No. 1224
A BILL TO BE ENTITLED
AN ACT
relating to representation of applicants for writs of habeas corpus
in cases involving the death penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subsections (a), (c), and (d), Section 2,
Article 11.071, Code of Criminal Procedure, are amended to read as
follows:
(a) An applicant shall be represented by competent counsel
unless the applicant has elected to proceed pro se and the
convicting trial court finds, after a hearing on the record, that
the applicant's election is intelligent and voluntary. An attorney
appointed or employed as counsel under this section shall provide
competent representation during the course of proceedings under
this article and shall perform all duties required of counsel under
this article.
(c) At the earliest practical time, but in no event later
than 30 days, after the convicting court makes the findings
required under Subsections (a) and (b), the convicting court shall
appoint competent counsel from the list of qualified attorneys
maintained under Subsection (d), unless the applicant elects to
proceed pro se or is represented by retained counsel. The
convicting court may also appoint an attorney to assist an attorney
appointed as lead counsel in the case. On appointing counsel under
this section, the convicting court shall immediately notify the
court of criminal appeals of the appointment, including in the
notice a copy of the judgment and the name, address, and telephone
number of the appointed counsel.
(d)(1) The Task Force on Indigent Defense [court of criminal
appeals] shall adopt standards [rules] for the appointment of
attorneys as counsel under this section, compile and maintain a
list of attorneys qualified for appointment, and make the list
available to convicting courts [and the convicting court may
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].
(2) In adopting the standards required by Subdivision
(1), the Task Force on Indigent Defense shall establish minimums
for:
(A) years of practice;
(B) proficiency and commitment to providing
quality representation to defendants or applicants seeking relief
in death penalty cases;
(C) experience in trial, appellate, or habeas
corpus proceedings for offenses punished as capital felonies;
(D) participation in continuing legal education
courses or other training relating to criminal defense or habeas
corpus proceedings in capital cases; and
(E) permissible history relating to:
(i) previous instances of having been found
to have rendered ineffective assistance of counsel during the trial
or appeal of any felony case; and
(ii) disciplinary proceedings before the
State Bar of Texas or an equivalent body in another state.
(3) The Task Force on Indigent Defense shall adopt a
procedure that permits placing on the list of qualified attorneys
an attorney who does not meet all requirements of this subsection,
but only if the task force determines that the attorney possesses
background, knowledge, or experience that would enable the attorney
to properly represent an applicant, with due consideration to the
seriousness of the possible punishment and the unique and complex
nature of the litigation.
(4) The convicting court may not appoint an attorney
as counsel under this section if the attorney represented the
applicant at trial or on direct appeal, unless:
(A) the applicant and the attorney request the
appointment on the record; and
(B) the court finds good cause to make the
appointment.
SECTION 2. Section 2A, Article 11.071, Code of Criminal
Procedure, is amended by adding Subsection (d) to read as follows:
(d)(1) Payment may not be made under Subsection (c) until a
statement itemizing the services performed is submitted to the
convicting court and the convicting court approves the payment. If
the convicting court disapproves the amount requested for payment,
the convicting court shall 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 a
convicting court approves a payment or disapproves a payment and
the attorney does not within three days of notice of the disapproval
file an appeal of the disapproval under Subdivision (2), the
commissioners court of the county shall pay the amount approved by
the convicting court. Payment must be made under this subdivision
not later than the 45th day after the date the convicting court
approves an amount.
(2) The attorney may appeal the disapproval by filing
a motion with the presiding judge of the administrative region in
which the convicting court is located or may invoke the procedures
of a fee dispute committee established by a local bar association
and recognized by the State Bar of Texas. If a motion is filed under
this subdivision with the presiding judge of an administrative
judicial region, the judge shall review the disapproval of payment
and determine, with or without a hearing, the appropriate amount of
payment. The presiding judge shall approve an amount that the judge
determines is proper. The commissioners court of the county served
by the convicting court shall pay to the attorney the amount
determined to be proper by the presiding judge or fee dispute
committee. The payment must be made not later than the 45th day
after the later of:
(A) the date on which the itemized statement is
submitted to the convicting court; or
(B) the date on which the presiding judge or fee
dispute committee approves a payment amount.
SECTION 3. Subsection (b), Section 3, Article 11.071, Code
of Criminal Procedure, is amended to read as follows:
(b) Not later than the 30th day before the date the
application for a writ of habeas corpus is filed with the convicting
court, counsel may file with the convicting court an ex parte,
verified, and confidential request for prepayment of expenses,
including expert fees, to investigate and present potential habeas
corpus claims. The court shall 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 [The request for
expenses must state:
[(1) the claims of the application to be investigated;
[(2) specific facts that suggest that a claim of
possible merit may exist; and
[(3) an itemized list of anticipated expenses for each
claim].
SECTION 4. Section 5, Article 11.071, Code of Criminal
Procedure, is amended by amending Subsection (a) and adding
Subsection (g) to read as follows:
(a) If a subsequent application for a writ of habeas corpus
is filed after filing an initial application, a court may not
consider the merits of or grant relief based on the subsequent
application unless the application contains sufficient specific
facts establishing that:
(1) the current claims and issues have not been and
could not have been presented previously in a timely initial
application or in a previously considered application filed under
this article or Article 11.07 because the factual or legal basis for
the claim was unavailable on the date the applicant filed the
previous application;
(2) by a preponderance of the evidence, but for a
violation of the United States Constitution no rational juror could
have found the applicant guilty beyond a reasonable doubt; [or]
(3) by clear and convincing evidence, but for a
violation of the United States Constitution no rational juror would
have answered in the state's favor one or more of the special issues
that were submitted to the jury in the applicant's trial under
Article 37.071 or 37.0711; or
(4) by clear and convincing evidence:
(A) the applicant was represented by incompetent
counsel during the initial application;
(B) as a direct result of the incompetence, a
meritorious claim or issue raised in the current application was
not raised in the initial application; and
(C) the claim or issue alleges sufficient facts
that, if proven in the convicting court, could entitle the
applicant to relief.
(g) 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,
must be filed in the convicting court not later than the 60th day
after the date on which the federal court of appeals denies the
applicant relief. The court of criminal appeals shall dismiss as an
abuse of writ an application filed later than the 60th day after the
denial of relief.
SECTION 5. Section 6, Article 11.071, Code of Criminal
Procedure, is amended by adding Subsection (b-1) to read as
follows:
(b-1) If the convicting court receives notice that the
requirements of Section 5(a) for consideration of a subsequent
application have been met, the convicting court shall 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.
SECTION 6. Subsection (c), Section 71.060, Government Code,
is amended to read as follows:
(c) Any qualification standards adopted by the Task Force on
Indigent Defense under Subsection (a) that relate to the
appointment of counsel in a death penalty case must be consistent
with the standards specified under Section 2, Article 11.071, or
Article 26.052(d), Code of Criminal Procedure, as appropriate. An
attorney who is identified by the task force as not satisfying
performance or qualification standards adopted by the task force
under Subsection (a) may not accept an appointment in a capital
case.
SECTION 7. Subsection (f), Section 4A, Article 11.071, Code
of Criminal Procedure, is repealed.
SECTION 8. The Task Force on Indigent Defense shall adopt
standards and create and maintain an attorney appointment list as
required by Section 2, Article 11.071, Code of Criminal Procedure,
as amended by this Act, not later than January 1, 2004.
SECTION 9. A convicting court that appoints counsel under
Section 2, Article 11.071, Code of Criminal Procedure, on or after
January 1, 2004, shall appoint the counsel in conformity with this
Act. Counsel appointed under Section 2, Article 11.071, Code of
Criminal Procedure, before January 1, 2004, must be appointed in
conformity with Section 2, Article 11.071, as that section existed
when the appointment was made, and the former law is continued in
effect for that purpose.
SECTION 10. This Act takes effect September 1, 2003.