79R2612 PEP-D
By: Keel H.B. No. 268
A BILL TO BE ENTITLED
AN ACT
relating to the qualifications and appointment of counsel for
indigent defendants in capital cases.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 2(c) and (d), Article 11.071, Code of
Criminal Procedure, are amended to read as follows:
(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 that meets the requirements of Subsection
(d)(2), 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. The assisting attorney is required to meet the
requirements of Subsections (d)(2)(A)-(D) but is not required to
meet the requirements of Subsection (d)(2)(E) or (F). 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 [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) The standards must require that an attorney
appointed as lead counsel under this section:
(A) be a member of the State Bar of Texas;
(B) exhibit proficiency and commitment to
providing quality representation to defendants in death penalty
cases;
(C) have participated in continuing legal
education courses or other training relating to criminal defense in
death penalty cases;
(D) not have been found by a federal or state
court to have rendered ineffective assistance of counsel during the
trial or appeal of any criminal case;
(E) have at least five years of experience in
criminal trial or appellate litigation or habeas corpus practice;
and
(F) have participated in the preparation of
appellate briefs for the prosecution or defense, or in the drafting
of appellate opinions as a staff attorney for an appellate court, in
felony cases, including homicide cases and other cases involving an
offense punishable as a capital felony or a felony of the first or
second degree.
(3) The Task Force on Indigent Defense may maintain a
list of attorneys qualified for appointment under this section and
make that list available to a convicting court for the purpose of
assisting that court with the appointment of qualified counsel
under this section.
(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. Subsection (d), Article 26.052, Code of Criminal
Procedure, is amended to read as follows:
(d)(1) The committee shall adopt standards for the
qualification of attorneys to be appointed to represent indigent
defendants in capital cases in which the death penalty is sought.
(2) The standards must require that a trial [an]
attorney appointed as lead counsel to a death penalty case:
(A) be a member of the State Bar of Texas;
(B) exhibit proficiency and commitment to
providing quality representation to defendants in death penalty
cases;
(C) have participated in continuing legal
education courses or other training related to criminal defense in
death penalty cases;
(D) have not been found by a federal or state
court to have rendered ineffective assistance of counsel during the
trial or appeal of any criminal case;
(E) have at least five years of experience in
criminal trial or appellate litigation;
(F) [(D)] have tried felony cases to a verdict as
lead prosecutor or lead defense counsel [a significant number of
felony cases], including homicide trials and other trials for
offenses punishable as second or first degree felonies or capital
felonies; and
(G) [(E)] have previous [trial] experience as a
member of the prosecution or defense trial counsel team in:
(i) jury selection in a capital case in
which the death penalty is sought;
(ii) the direct examination or
cross-examination [use] of [and challenges to] mental health or
forensic expert witnesses; and
(iii) the presentation or
cross-examination of [(ii) investigating and presenting]
mitigating evidence at the penalty phase of a homicide [death
penalty] trial[; and
[(F) have participated in continuing legal
education courses or other training relating to criminal defense in
death penalty cases].
(3) The standards must require that an attorney
appointed as lead appellate counsel in the direct appeal of a death
penalty case:
(A) be a member of the State Bar of Texas;
(B) exhibit proficiency and commitment to
providing quality representation to defendants in death penalty
cases;
(C) have participated in continuing legal
education courses or other training related to criminal defense in
death penalty cases;
(D) have not been found by a federal or state
court to have rendered ineffective assistance of counsel during the
trial or appeal of any criminal case;
(E) have at least five years of experience in
criminal trial or appellate litigation; and
(F) have participated in the preparation of
appellate briefs for the prosecution or defense, or in the drafting
of appellate opinions as a staff attorney for an appellate court, in
felony cases, including homicide cases and other cases involving an
offense punishable as a capital felony or a felony of the first or
second degree.
(4) The committee shall prominently post the standards
in each district clerk's office in the region with a list of
attorneys qualified for appointment.
(5) [(4)] Not later than the second anniversary of the
date an attorney is placed on the list of attorneys qualified for
appointment in death penalty cases and each year following the
second anniversary, the attorney must present proof to the
committee that the attorney has successfully completed the minimum
continuing legal education requirements of the State Bar of Texas,
including a course or other form of training relating to the defense
of death penalty cases. The committee shall remove the attorney's
name from the list of qualified attorneys if the attorney fails to
provide the committee with proof of completion of the continuing
legal education requirements.
SECTION 3. Section 71.060(c), 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 4. The Task Force on Indigent Defense shall adopt
standards described by Section 2(d), Article 11.071, Code of
Criminal Procedure, as amended by this Act, not later than the 60th
day after the effective date of this Act.
SECTION 5. A convicting court that appoints counsel under
Section 2, Article 11.071, Code of Criminal Procedure, on or after
the 75th day after the effective date of this Act shall appoint the
counsel in conformity with this Act. Counsel appointed under
Section 2, Article 11.071, Code of Criminal Procedure, before the
75th day after the effective date of this Act must be appointed in
conformity with Section 2, Article 11.071, Code of Criminal
Procedure, as that section existed immediately before the effective
date of this Act, and the former law is continued in effect for that
purpose.
SECTION 6. A local selection committee shall amend
standards previously adopted by the committee to conform with the
requirements of Subsection (d), Article 26.052, Code of Criminal
Procedure, as amended by this Act, not later than the 75th day after
the effective date of this Act. An attorney appointed to a death
penalty case on or after the 75th day after the effective date of
this Act must meet the standards adopted in conformity with the
amended Subsection (d), Article 26.052. An attorney appointed to a
death penalty case before the 75th day after the effective date of
this Act is covered by the law in effect when the attorney was
appointed, and the former law is continued in effect for that
purpose.
SECTION 7. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2005.