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A BILL TO BE ENTITLED
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AN ACT
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relating to a local public defender's office that represents |
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indigent defendants in criminal cases. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Article 26.04(f), Code of Criminal Procedure, is |
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amended to read as follows: |
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(f) In a county in which a public defender's office is |
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created or designated [defender is appointed] under Article 26.044, |
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the court or the courts' designee may appoint an attorney employed |
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by that office [the public defender] to represent the defendant in |
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accordance with guidelines established for the office [public
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defender]. |
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SECTION 2. Article 26.044, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 26.044. PUBLIC DEFENDER'S OFFICE [DEFENDER]. (a) In |
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this chapter: |
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(1) "Governmental entity" includes a county, a group |
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of counties, a department [branch or agency] of a county, an |
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administrative judicial region created by Section 74.042, |
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Government Code, and any entity created under the Interlocal |
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Cooperation Act as permitted by Chapter 791, Government Code. |
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(2) "Public defender's office [defender]" means an |
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entity that: |
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(A) is either: |
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(i) a governmental entity; or |
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(ii) a nonprofit corporation[:
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[(A)] operating under a written agreement with a |
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governmental entity, other than an individual judge or court; and |
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(B) uses [using] public funds to provide[; and
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[(C)providing] legal representation and |
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services to indigent defendants accused of a crime or juvenile |
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offense, as those terms are defined by Section 71.001, Government |
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Code. |
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(b) The commissioners court of any county, on written |
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approval of a judge of a county court, statutory county court, or |
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district court trying criminal cases or cases under Title 3, Family |
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Code, in the county, may create a department of the county or by |
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contract may designate a [appoint a governmental entity or] |
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nonprofit corporation to serve as a public defender's office |
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[defender]. The commissioners courts of two or more counties may |
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enter into a written agreement to jointly create or designate |
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[appoint] and fund a regional public defender's office [defender]. |
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In creating or designating [appointing] a public defender's office |
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[defender] under this subsection, the commissioners court shall |
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specify or the commissioners courts shall jointly specify, if |
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creating or designating [appointing] a regional public defender's |
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office [defender]: |
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(1) the duties of the public defender's office |
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[defender]; |
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(2) the types of cases to which an attorney employed by |
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the public defender's office [defender] may be appointed under |
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Article 26.04(f) and the courts in which an attorney employed by the |
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public defender's office [defender] may be required to appear; and |
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(3) if the public defender's office is a nonprofit |
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corporation, the term during which the contract designating the |
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public defender's office is effective and how that contract may be |
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renewed on expiration of the term [whether the public defender is
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appointed to serve a term or serve at the pleasure of the
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commissioners court or the commissioners courts; and
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[(4) if the public defender is appointed to serve a
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term, the term of appointment and the procedures for removing the
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public defender]. |
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(b-1) The applicable commissioners court or commissioners |
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courts must require a written plan from the governmental entity |
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serving as a public defender's office. |
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(c) Before contracting with a nonprofit corporation to |
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serve as [appointing] a public defender's office [defender] under |
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Subsection (b), the commissioners court or commissioners courts |
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shall solicit proposals for the public defender's office |
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[defender]. |
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(c-1) A written plan under Subsection (b-1) or a proposal |
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under Subsection (c) must include: |
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(1) a budget for the public defender's office |
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[defender], including salaries; |
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(2) a description of each personnel position, |
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including the chief public defender position; |
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(3) the maximum allowable caseloads for each attorney |
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employed by the public defender's office [proponent]; |
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(4) provisions for personnel training; |
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(5) a description of anticipated overhead costs for |
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the public defender's office [defender]; [and] |
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(6) policies regarding the use of licensed |
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investigators and expert witnesses by the public defender's office; |
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and |
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(7) a policy to ensure that the chief public defender |
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and other attorneys employed by the public defender's office do not |
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provide representation to a defendant when doing so would create a |
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conflict of interest that has not been waived by the client |
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[proponent]. |
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(d) After considering each proposal for the public |
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defender's office [defender] submitted by a [governmental entity
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or] nonprofit corporation under Subsection (c), the commissioners |
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court or commissioners courts shall select a proposal that |
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reasonably demonstrates that the public defender's office |
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[proponent] will provide adequate quality representation for |
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indigent defendants in the county or counties. |
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(e) The total cost of the proposal under Subsection (c) may |
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not be the sole consideration in selecting a proposal. |
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(f) A [To be eligible for appointment as a] public |
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defender's office [defender, the governmental entity or nonprofit
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corporation] must be directed by a chief public defender who: |
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(1) is a member of the State Bar of Texas; |
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(2) has practiced law for at least three years; and |
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(3) has substantial experience in the practice of |
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criminal law. |
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(g) A public defender's office [defender] is entitled to |
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receive funds for personnel costs and expenses incurred in |
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operating as a public defender's office [defender] in amounts fixed |
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by the commissioners court and paid out of the appropriate county |
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fund, or jointly fixed by the commissioners courts and |
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proportionately paid out of each appropriate county fund if the |
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public defender's office [defender] serves more than one county. |
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(h) A public defender's office [defender] may employ |
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attorneys, licensed investigators, and other personnel necessary |
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to perform the duties of the public defender's office [defender] as |
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specified by the commissioners court or commissioners courts under |
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Subsection (b)(1). |
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(i) Except as authorized by this article, the chief public |
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defender and other attorneys [or an attorney] employed by a public |
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defender's office [defender] may not: |
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(1) engage in the private practice of criminal law; or |
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(2) accept anything of value not authorized by this |
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article for services rendered under this article. |
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(j) An attorney employed by a [A] public defender's office |
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[defender] may not accept [refuse] an appointment under Article |
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26.04(f) if: |
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(1) a conflict of interest exists that has not been |
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waived by the client; |
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(2) the public defender's office by which the attorney |
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is employed [defender] has insufficient resources to provide |
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adequate representation for the defendant; |
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(3) the attorney with the public defender's office |
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[defender] is incapable of providing representation for the |
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defendant in accordance with the rules of professional conduct; or |
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(4) the attorney with the public defender's office |
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[defender] shows other good cause for not accepting [refusing] the |
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appointment. |
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(k) The judge may remove from a case a person [public
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defender] who violates a provision of Subsection (i). |
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(l) A public defender's office [defender] may investigate |
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the financial condition of any person an attorney with the public |
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defender's office [defender] is appointed to represent. The public |
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defender's office [defender] shall report the results of the |
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investigation to the appointing judge. The judge may hold a hearing |
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to determine if the person is indigent and entitled to |
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representation under this article. |
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(m) If it is necessary that an attorney who is not employed |
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by [other than] a public defender's office [defender] be appointed, |
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the attorney is entitled to the compensation provided by Article |
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26.05 of this code. |
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SECTION 3. Articles 26.05(a) and (d), Code of Criminal |
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Procedure, are amended to read as follows: |
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(a) A counsel, other than an attorney with a public |
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defender's office [defender], appointed to represent a defendant in |
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a criminal proceeding, including a habeas corpus hearing, shall be |
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paid a reasonable attorney's fee for performing the following |
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services, based on the time and labor required, the complexity of |
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the case, and the experience and ability of the appointed counsel: |
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(1) time spent in court making an appearance on behalf |
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of the defendant as evidenced by a docket entry, time spent in |
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trial, and time spent in a proceeding in which sworn oral testimony |
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is elicited; |
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(2) reasonable and necessary time spent out of court |
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on the case, supported by any documentation that the court |
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requires; |
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(3) preparation of an appellate brief and preparation |
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and presentation of oral argument to a court of appeals or the Court |
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of Criminal Appeals; and |
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(4) preparation of a motion for rehearing. |
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(d) A counsel in a noncapital case, other than an attorney |
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with a public defender's office [defender], appointed to represent |
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a defendant under this code shall be reimbursed for reasonable and |
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necessary expenses, including expenses for investigation and for |
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mental health and other experts. Expenses incurred with prior |
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court approval shall be reimbursed in the same manner provided for |
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capital cases by Articles 26.052(f) and (g), and expenses incurred |
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without prior court approval shall be reimbursed in the manner |
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provided for capital cases by Article 26.052(h). |
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SECTION 4. Section 11(a), Article 42.12, Code of Criminal |
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Procedure, as amended by Chapters 956 and 1224, Acts of the 79th |
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Legislature, Regular Session, 2005, is reenacted and amended to |
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read as follows: |
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(a) The judge of the court having jurisdiction of the case |
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shall determine the conditions of community supervision and may, at |
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any time, during the period of community supervision alter or |
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modify the conditions. The judge may impose any reasonable |
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condition that is designed to protect or restore the community, |
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protect or restore the victim, or punish, rehabilitate, or reform |
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the defendant. Conditions of community supervision may include, |
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but shall not be limited to, the conditions that the defendant |
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shall: |
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(1) Commit no offense against the laws of this State or |
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of any other State or of the United States; |
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(2) Avoid injurious or vicious habits; |
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(3) Avoid persons or places of disreputable or harmful |
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character; |
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(4) Report to the supervision officer as directed by |
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the judge or supervision officer and obey all rules and regulations |
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of the community supervision and corrections department; |
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(5) Permit the supervision officer to visit him at his |
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home or elsewhere; |
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(6) Work faithfully at suitable employment as far as |
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possible; |
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(7) Remain within a specified place; |
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(8) Pay his fine, if one be assessed, and all court |
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costs whether a fine be assessed or not, in one or several sums; |
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(9) Support his dependents; |
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(10) Participate, for a time specified by the judge in |
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any community-based program, including a community-service work |
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program under Section 16 of this article; |
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(11) Reimburse the county in which the prosecution was |
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instituted for compensation paid to appointed counsel for defending |
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him in the case, if counsel was appointed, or if he was represented |
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by a county-paid attorney with a public defender's office |
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[defender], in an amount that would have been paid to an appointed |
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attorney had the county not had a public defender's office |
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[defender]; |
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(12) Remain under custodial supervision in a community |
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corrections facility, obey all rules and regulations of such |
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facility, and pay a percentage of his income to the facility for |
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room and board; |
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(13) Pay a percentage of his income to his dependents |
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for their support while under custodial supervision in a community |
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corrections facility; |
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(14) Submit to testing for alcohol or controlled |
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substances; |
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(15) Attend counseling sessions for substance abusers |
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or participate in substance abuse treatment services in a program |
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or facility approved or licensed by the Texas Commission on Alcohol |
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and Drug Abuse; |
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(16) With the consent of the victim of a misdemeanor |
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offense or of any offense under Title 7, Penal Code, participate in |
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victim-defendant mediation; |
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(17) Submit to electronic monitoring; |
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(18) Reimburse the general revenue fund for any |
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amounts paid from that fund to a victim, as defined by Article 56.01 |
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of this code, of the defendant's offense or if no reimbursement is |
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required, make one payment to the fund in an amount not to exceed |
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$50 if the offense is a misdemeanor or not to exceed $100 if the |
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offense is a felony; |
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(19) Reimburse a law enforcement agency for the |
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analysis, storage, or disposal of raw materials, controlled |
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substances, chemical precursors, drug paraphernalia, or other |
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materials seized in connection with the offense; |
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(20) Pay all or part of the reasonable and necessary |
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costs incurred by the victim for psychological counseling made |
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necessary by the offense or for counseling and education relating |
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to acquired immune deficiency syndrome or human immunodeficiency |
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virus made necessary by the offense; |
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(21) Make one payment in an amount not to exceed $50 to |
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a crime stoppers organization as defined by Section 414.001, |
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Government Code, and as certified by the Crime Stoppers Advisory |
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Council; |
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(22) Submit a DNA sample to the Department of Public |
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Safety under Subchapter G, Chapter 411, Government Code, for the |
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purpose of creating a DNA record of the defendant; [and] |
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(23) In any manner required by the judge, provide |
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public notice of the offense for which the defendant was placed on |
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community supervision in the county in which the offense was |
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committed; and |
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(24) Reimburse the county in which the prosecution was |
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instituted for compensation paid to any interpreter in the case. |
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SECTION 5. Section 71.001(9), Government Code, is amended |
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to read as follows: |
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(9) "Public defender's office [defender]" has the |
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meaning assigned by Article 26.044(a), Code of Criminal Procedure. |
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SECTION 6. Section 71.0351(e), Government Code, is amended |
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to read as follows: |
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(e) In each county, the county auditor, or the person |
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designated by the commissioners court if the county does not have a |
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county auditor, shall prepare and send to the Office of Court |
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Administration of the Texas Judicial System in the form and manner |
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prescribed by the Task Force on Indigent Defense and on a monthly, |
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quarterly, or annual basis, with respect to legal services provided |
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in the county to indigent defendants during each fiscal year, |
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information showing the total amount expended by the county to |
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provide indigent defense services and an analysis of the amount |
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expended by the county: |
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(1) in each district, county, statutory county, and |
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appellate court; |
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(2) in cases for which a private attorney is appointed |
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for an indigent defendant; |
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(3) in cases for which an attorney with a public |
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defender's office [defender] is appointed for an indigent |
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defendant; |
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(4) in cases for which counsel is appointed for an |
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indigent juvenile under Section 51.10(f), Family Code; and |
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(5) for investigation expenses, expert witness |
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expenses, or other litigation expenses. |
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SECTION 7. Section 71.053(a), Government Code, is amended |
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to read as follows: |
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(a) The governor shall appoint with the advice and consent |
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of the senate five members of the Task Force on Indigent Defense as |
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follows: |
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(1) one member who is a district judge serving as a |
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presiding judge of an administrative judicial region; |
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(2) one member who is a judge of a constitutional |
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county court or who is a county commissioner; |
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(3) one member who is a practicing criminal defense |
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attorney; |
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(4) one member who is a chief public defender or who is |
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an attorney employed by a public defender's office [defender]; and |
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(5) one member who is a judge of a constitutional |
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county court or who is a county commissioner of a county with a |
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population of 250,000 or more. |
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SECTION 8. Section 71.060(a), Government Code, is amended |
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to read as follows: |
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(a) The Task Force on Indigent Defense shall develop |
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policies and standards for providing legal representation and other |
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defense services to indigent defendants at trial, on appeal, and in |
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postconviction proceedings. The policies and standards may |
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include: |
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(1) performance standards for counsel appointed to |
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represent indigent defendants; |
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(2) qualification standards under which attorneys may |
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qualify for appointment to represent indigent defendants, |
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including: |
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(A) qualifications commensurate with the |
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seriousness of the nature of the proceeding; |
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(B) qualifications appropriate for |
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representation of mentally ill defendants and noncitizen |
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defendants; |
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(C) successful completion of relevant continuing |
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legal education programs approved by the council; and |
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(D) testing and certification standards; |
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(3) standards for ensuring appropriate appointed |
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caseloads for counsel appointed to represent indigent defendants; |
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(4) standards for determining whether a person accused |
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of a crime or juvenile offense is indigent; |
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(5) policies and standards governing the organization |
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and operation of an ad hoc assigned counsel program; |
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(6) policies and standards governing the organization |
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and operation of a public defender's office [defender] consistent |
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with recognized national policies and standards; |
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(7) standards for providing indigent defense services |
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under a contract defender program consistent with recognized |
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national policies and standards; |
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(8) standards governing the reasonable compensation |
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of counsel appointed to represent indigent defendants; |
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(9) standards governing the availability and |
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reasonable compensation of providers of indigent defense support |
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services for counsel appointed to represent indigent defendants; |
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(10) standards governing the operation of a legal |
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clinic or program that provides legal services to indigent |
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defendants and is sponsored by a law school approved by the supreme |
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court; |
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(11) policies and standards governing the appointment |
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of attorneys to represent children in proceedings under Title 3, |
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Family Code; and |
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(12) other policies and standards for providing |
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indigent defense services as determined by the task force to be |
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appropriate. |
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SECTION 9. This Act takes effect September 1, 2007. |