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By: Ellis, et al. S.B. No. 1224
(In the Senate - Filed March 12, 2003; March 19, 2003, read
first time and referred to Committee on Criminal Justice;
April 3, 2003, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 5, Nays 0; April 3, 2003,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1224 By: Ellis
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. Section 2, Article 11.071, Code of Criminal
Procedure, is amended to read as follows:
Sec. 2. REPRESENTATION BY COUNSEL. (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.
(b) If a defendant is sentenced to death the convicting
court, immediately after judgment is entered under Article 42.01,
shall determine if the defendant is indigent and, if so, whether the
defendant desires appointment of counsel for the purpose of a writ
of habeas corpus. This chapter does not prohibit the convicting
court from appointing an attorney to act as second chair attorney to
the lead attorney.
(c)(1) The Texas Judicial Council shall establish a
committee to create and maintain a statewide list of attorneys
approved for appointment under this section. The committee shall
consist of:
(A) the chair of the Texas Judicial Council;
(B) two judges who are members of the Texas
Judicial Council and are appointed to the committee by the chair;
and
(C) two professors of law who have knowledge of
habeas corpus practice and are appointed to the committee by the
chair.
(2) In creating and maintaining the statewide list of
attorneys, the committee shall consider recommendations of
attorneys made by local selection committees created under Article
26.052(c) and by the statewide professional association of criminal
defense attorneys that is authorized to receive grants under
Section 56.003(f), Government Code, and whose members regularly
represent indigent defendants in criminal matters.
(3) The committee shall review and update the list of
attorneys at least quarterly.
(d) 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 attorneys maintained
under Subsection (c), unless the applicant elects to proceed pro se
or is represented by retained counsel. On appointing counsel under
this section, the convicting court shall immediately notify the
court of criminal appeals and the appointment committee established
under Subsection (c)(1) of the appointment, including in the notice
a copy of the judgment and the name, address, and telephone number
of the appointed counsel or counsels.
[(d) The court of criminal appeals shall adopt rules for the
appointment of attorneys as counsel under this section 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.]
(e) If the court of criminal appeals denies an applicant
relief under this article, an attorney appointed under this section
to represent the applicant shall, not later than the 15th day after
the date the court of criminal appeals denies relief or, if the case
is filed and set for submission, the 15th day after the date the
court of criminal appeals issues a mandate on the initial
application for a writ of habeas corpus under this article, move to
be appointed as counsel in federal habeas review under 21 U.S.C.
Section 848(q) or equivalent provision or, if necessary, move for
the appointment of other counsel under 21 U.S.C. Section 848(q) or
equivalent provision. The attorney shall immediately file a copy
of the motion with the court of criminal appeals and the appointment
committee established under Subsection (c)(1), and if the attorney
fails to do so, the court may take any action to ensure that the
applicant's right to federal habeas review is protected, including
initiating contempt proceedings against the attorney.
(f) The convicting court shall reasonably compensate an
attorney appointed under this section as provided by Section 2A.
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 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 date on which the itemized statement is submitted to the
convicting court or the date on which the presiding judge or fee
dispute committee approves a payment amount, whichever date is
later.
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 Subsections (a) and (b) and
adding Subsections (g), (h), and (i) 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 meritorious
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, the current
claims or issues were not raised previously in a timely initial
application under this article because the applicant was not
represented by competent counsel in filing the previous
application.
(b) If the convicting court receives a subsequent
application asserting specific facts establishing justifications
described by Subsection (a)(1), (2), or (3), the clerk of the court
shall:
(1) attach a notation that the application is a
subsequent application;
(2) assign to the case a file number that is ancillary
to that of the conviction being challenged; and
(3) immediately send to the court of criminal appeals
a copy of:
(A) the application;
(B) the notation;
(C) the order scheduling the applicant's
execution, if scheduled; and
(D) any order the judge of the convicting court
directs to be attached to the application.
(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 convicting court shall dismiss as an abuse of
writ an application filed later than the 60th day after the denial
of relief.
(h) An applicant may 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) If an applicant makes the prima facie showing described
by Subsection (h), the convicting court shall 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 date on which the convicting court appointed new counsel.
Sections 2A and 3 apply to the compensation and reimbursement of
counsel appointed under this subsection.
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)(1), (2), or (3) 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 8, Article 11.071, Code
of Criminal Procedure, is amended to read as follows:
(c) After argument of counsel, if requested by the court,
the convicting court, without the assistance of either party, shall
make appropriate written findings of fact and conclusions of law
not later than the 15th day after the date the parties filed
proposed findings or not later than the 45th day after the date the
court's determination is made under Subsection (a), whichever
occurs first.
SECTION 7. Subsection (e), Section 9, Article 11.071, Code
of Criminal Procedure, is amended to read as follows:
(e) The parties shall file proposed findings of fact and
conclusions of law for the convicting court to consider on or before
a date set by the court that is not later than the 30th day after the
date the transcript is filed. If the court requests argument of
counsel, after argument the court shall, without the assistance of
either party, make written findings of fact that are necessary to
resolve the previously unresolved facts and make conclusions of law
not later than the 15th day after the date the parties file proposed
findings or not later than the 45th day after the date the court
reporter files the transcript, whichever occurs first.
SECTION 8. (a) The Texas Judicial Council shall establish
an appointment committee, as required by Subdivision (1),
Subsection (c), Section 2, Article 11.071, Code of Criminal
Procedure, as amended by this Act, not later than October 1, 2003,
and the committee shall create 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.
(b) The change in law made by this Act applies to an initial
or subsequent application for a writ of habeas corpus filed on or
after January 1, 2004. An application filed before January 1, 2004,
is covered by the law in effect when the application was filed, and
the former law is continued in effect for that purpose.
SECTION 9. This Act takes effect September 1, 2003.
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