By: Keel, Hodge (Senate Sponsor - Hinojosa) H.B. No. 268
(In the Senate - Received from the House March 22, 2005;
March 30, 2005, read first time and referred to Committee on
Criminal Justice; May 20, 2005, reported favorably, as amended, by
the following vote: Yeas 4, Nays 0; May 20, 2005, sent to
printer.)
COMMITTEE AMENDMENT NO. 1 By: Hinojosa
Amend C.S.H.B. No. 268 (engrossed version) as follows:
(1) In SECTION 1 of the bill, in proposed Subsection (c),
Section 2, Article 11.071, Code of Criminal Procedure, on page 2,
lines 22-23, strike "that meets the requirements of Subsection
(d)(2)" and substitute "from the list of qualified attorneys
maintained by the Task Force on Indigent Defense under Subsection
(d)(3)".
(2) In SECTION 1 of the bill, in proposed Subsection (c),
Section 2, Article 11.071, Code of Criminal Procedure, strike the
language between "The assisting attorney" on page 2, line 26, and "
Subsection (d)(2)(E) or (F)" on page 2, line 27, and substitute "is
not subject to the guidelines applicable to an attorney appointed
as lead counsel under".
(3) In SECTION 1 of the bill, strike proposed Subsection
(d)(1), Section 2, Article 11.071, Code of Criminal Procedure, on
page 2, line 33, to page 2, line 38, and substitute the following:
(d)(1) The Task Force on Indigent Defense may [court of
criminal appeals shall] adopt discretionary guidelines [rules] for
the appointment of attorneys as counsel under this section and may
consider the guidelines in determining whether an attorney is
qualified for an appointment [the convicting court may appoint an
attorney as counsel under this section only if the appointment is
approved by the court of ciminal appeals in any manner provided by
those rules]. The Task Force on Indigent Defense:
(A) may not adopt mandatory standards for the
appointment of attorneys under this section; and
(B) shall determine whether an attorney is qualified
for an appointment on a case-by-case basis.
(4) In SECTION 1 of the bill, in proposed Subdivision (2),
Subsection (d), Section 2, Article 11.071, Code of Criminal
Procedure, on page 2, line 39, strike "standards must require" and
substitute "discretionary guidelines may include".
(5) In SECTION 1 of the bill, in proposed Paragraph (D),
Subdivision (2), Subsection (d), Section 2, Article 11.071, Code of
Criminal Procedure, on page 2, line 50, strike "criminal" and
substitute "capital".
(6) In SECTION 2 of the bill, in proposed Paragraph (D),
Subdivision (2), Subsection (d), Article 26.052, Code of Criminal
Procedure, on page 3, line 28, strike "criminal" and substitute "
capital".
(7) In SECTION 2 of the bill, in proposed Paragraph (D),
Subdivision (3), Subsection (d), Article 26.052, Code of Criminal
Procedure, on page 3, line 62, strike "criminal" and substitute "
capital".
(8) Strike SECTIONS 3 and 4 of the bill on page 4, lines
16-32, and substitute the following:
SECTION 3. The Task Force on Indigent Defense shall prepare
the list of qualified attorneys required by Section 2(d), Article
11.071, Code of Criminal Procedure, as amended by this Act, not
later than March 1, 2006.
(9) Renumber subsequent SECTIONS of the bill accordingly.
COMMITTEE AMENDMENT NO. 2 By: Hinojosa
Amend H.B. No. 268 (engrossed version) in SECTION 2 of the
bill, in amended Subsection (d), Article 26.052, Code of Criminal
Procedure, as follows:
(1) In the proposed Paragraph (F), Subdivision (2), on page
3, lines 32-33, strike "[a significant number of felony cases]" and
substitute "a significant number of felony cases".
(2) In proposed Subparagraph (iii), Paragraph (G),
Subdivision (2), on page 3, lines 45-46, strike "homicide [death
penalty]" and substitute "death penalty".
(3) In proposed Paragraph (F), Subdivision (3), on page 3,
lines 68-69, and page 4, line 1, strike the language between "
including" and the period and substitute "at least one capital
felony case".
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. Section 2, Article 11.071, Code of Criminal
Procedure, is amended by amending Subsections (c) and (d) and
adding Subsection (d-1) 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 shall 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.
(d-1) The court of criminal appeals may annually review the
list of attorneys qualified for appointment under this section to
ensure that the attorneys included on the list are suitably
qualified and proficient to be eligible for appointment. The court
may determine whether an attorney is eligible for appointment on a
case-by-case basis. The court may remove an attorney from the list
if the attorney is determined to be ineligible for 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 January
1, 2006. The Task Force on Indigent Defense shall prepare the list
of qualified attorneys required by that section not later than
March 1, 2006.
SECTION 5. A convicting court that appoints counsel under
Section 2, Article 11.071, Code of Criminal Procedure, on or after
May 1, 2006, shall appoint the counsel in conformity with this Act.
Counsel appointed under Section 2, Article 11.071, Code of Criminal
Procedure, before May 1, 2006, must be appointed in conformity with
Section 2, Article 11.071, Code of Criminal Procedure, as that
section existed immediately before that date, 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.
* * * * *