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A BILL TO BE ENTITLED
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AN ACT
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relating to procedures applicable to waivers of the right to |
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counsel in certain adversary judicial proceedings that may result |
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in punishment by confinement. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Article 1.051, Code of Criminal Procedure, is |
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amended by amending Subsections (e), (f), and (g) and adding |
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Subsections (f-1) and (f-2) to read as follows: |
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(e) An appointed counsel is entitled to 10 days to prepare |
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for a proceeding but may waive the preparation time with the consent |
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of the defendant in writing or on the record in open court. If a |
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nonindigent defendant [or an indigent defendant who has refused
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appointed counsel in order to retain private counsel] appears |
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without counsel at a proceeding after having been given a |
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reasonable opportunity to retain counsel, the court, on 10 days' |
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notice to the defendant of a dispositive setting, may proceed with |
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the matter without securing a written waiver or appointing counsel. |
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If an indigent defendant who has refused appointed counsel in order |
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to retain private counsel appears without counsel after having been |
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given an opportunity to retain counsel, the court, after giving the |
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defendant a reasonable opportunity to request appointment of |
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counsel or, if the defendant elects not to request appointment of |
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counsel, after obtaining a waiver of the right to counsel pursuant |
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to Subsections (f) and (g), may proceed with the matter on 10 days' |
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notice to the defendant of a dispositive setting. |
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(f) A defendant may voluntarily and intelligently waive in |
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writing the right to counsel. A waiver obtained in violation of |
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Subsection (f-1) or (f-2) is presumed invalid. |
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(f-1) In any adversary judicial proceeding that may result |
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in punishment by confinement, the attorney representing the state |
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may not: |
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(1) initiate or encourage an attempt to obtain from a |
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defendant who is not represented by counsel a waiver of the right to |
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counsel; or |
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(2) communicate with a defendant who has requested the |
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appointment of counsel, unless the court or the court's designee |
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authorized under Article 26.04 to appoint counsel for indigent |
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defendants in the county has denied the request and, subsequent to |
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the denial, the defendant: |
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(A) has been given a reasonable opportunity to |
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retain and has failed to retain private counsel; or |
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(B) waives or has waived the opportunity to |
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retain private counsel. |
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(f-2) In any adversary judicial proceeding that may result |
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in punishment by confinement, the court may not direct or encourage |
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the defendant to communicate with the attorney representing the |
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state until the court advises the defendant of the right to counsel |
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and the procedure for requesting appointed counsel and the |
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defendant has been given a reasonable opportunity to request |
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appointed counsel. If the defendant has requested appointed |
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counsel, the court may not direct or encourage the defendant to |
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communicate with the attorney representing the state unless the |
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court or the court's designee authorized under Article 26.04 to |
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appoint counsel for indigent defendants in the county has denied |
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the request and, subsequent to the denial, the defendant: |
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(1) has been given a reasonable opportunity to retain |
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and has failed to retain private counsel; or |
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(2) waives or has waived the opportunity to retain |
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private counsel. |
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(g) If a defendant wishes to waive the [his] right to |
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counsel for purposes of entering a guilty plea or proceeding to |
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trial, the court shall advise the defendant [him] of the nature of |
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the charges against the defendant and, if the defendant is |
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proceeding to trial, the dangers and disadvantages of |
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self-representation. If the court determines that the waiver is |
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voluntarily and intelligently made, the court shall provide the |
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defendant with a statement substantially in the following form, |
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which, if signed by the defendant, shall be filed with and become |
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part of the record of the proceedings: |
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"I have been advised this ______ day of |
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__________, 2 [19] ____, by the (name of court) Court |
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of my right to representation by counsel in the case |
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[trial of the charge] pending against me. I have been |
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further advised that if I am unable to afford counsel, |
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one will be appointed for me free of charge. |
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Understanding my right to have counsel appointed for |
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me free of charge if I am not financially able to |
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employ counsel, I wish to waive that right and request |
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the court to proceed with my case without an attorney |
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being appointed for me. I hereby waive my right to |
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counsel. (signature of [the] defendant)" |
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SECTION 2. Article 17.09, Code of Criminal Procedure, is |
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amended by adding Section 4 to read as follows: |
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Sec. 4. Notwithstanding any other provision of this |
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article, the judge or magistrate in whose court a criminal action is |
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pending may not order the accused to be rearrested or require the |
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accused to give another bond in a higher amount because the accused: |
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(1) withdraws a waiver of the right to counsel; or |
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(2) requests the assistance of counsel, appointed or |
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retained. |
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SECTION 3. (a) The change in law made by this Act to Article |
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1.051(e), Code of Criminal Procedure, applies only to a proceeding |
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at which an indigent defendant appears without counsel after having |
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refused appointed counsel if the proceeding occurs on or after the |
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effective date of this Act. A proceeding at which an indigent |
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defendant appears without counsel after having refused appointed |
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counsel that occurs before the effective date of this Act is covered |
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by the law in effect at the time of the proceeding, and the former |
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law is continued in effect for that purpose. |
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(b) The change in law made by this Act to Article 1.051(f), |
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Code of Criminal Procedure, applies only to a waiver of counsel or a |
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communication with a defendant that occurs on or after the |
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effective date of this Act. A waiver of counsel or a communication |
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with a defendant that occurred before the effective date of this Act |
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is covered by the law in effect at the time the waiver or |
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communication occurred, and the former law is continued in effect |
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for that purpose. |
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SECTION 4. This Act takes effect September 1, 2007. |