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A BILL TO BE ENTITLED
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AN ACT
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relating to the establishment of the capital writs committee of the |
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Texas Judicial Council and the creation of the office of capital |
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writs. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subsection (c), Section 71.060, Government Code, |
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is amended to read as follows: |
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(c) Any qualification standards adopted by the Task Force on |
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Indigent Defense under Subsection (a) that relate to the |
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appointment of counsel in a death penalty case must be consistent |
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with any applicable [the] standards adopted [specified] under |
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Subchapter F [Article 26.052(d), Code of Criminal Procedure]. An |
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attorney who is identified by the task force as not satisfying |
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performance or qualification standards adopted by the task force |
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under Subsection (a) may not accept an appointment in a capital |
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case. |
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SECTION 2. Chapter 71, Government Code, is amended by |
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adding Subchapters E and F to read as follows: |
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SUBCHAPTER E. CAPITAL WRITS COMMITTEE |
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Sec. 71.071. DEFINITIONS. In this subchapter: |
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(1) "Committee" means the capital writs committee |
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established under this subchapter. |
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(2) "Office of capital writs" means the office of |
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capital writs established under Subchapter F. |
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Sec. 71.072. ESTABLISHMENT OF COMMITTEE; DUTIES. (a) The |
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capital writs committee is established as a standing committee of |
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the council. |
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(b) The committee shall: |
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(1) oversee the creation of the office of capital |
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writs; and |
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(2) recommend to the court of criminal appeals a |
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director for the office of capital writs. |
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Sec. 71.073. APPOINTMENT AND COMPOSITION OF COMMITTEE. |
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(a) The committee is composed of the following five members who |
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are appointed by and serve at the pleasure of the president of the |
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State Bar of Texas: |
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(1) three attorneys who are members of the State Bar of |
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Texas and who are not employed as prosecutors or law enforcement |
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officials, one of whom must have knowledge of and experience with |
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habeas corpus proceedings in this state; |
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(2) one state district judge; and |
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(3) one state appellate judge who is not a member of |
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the court of criminal appeals. |
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(b) The committee shall elect one member of the committee to |
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serve as the presiding officer of the committee. |
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Sec. 71.074. RECOMMENDATION AND APPOINTMENT OF DIRECTOR OF |
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OFFICE OF CAPITAL WRITS. (a) The committee shall submit to the |
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court of criminal appeals, in order of the committee's preference, |
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a list of the names of not fewer than three and not more than five |
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persons the committee recommends that the court consider in |
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appointing the director of the office of capital writs. |
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(b) Each person recommended to the court of criminal appeals |
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by the committee under Subsection (a) must exhibit proficiency in |
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and commitment to providing quality representation to defendants in |
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death penalty cases, as described by the Guidelines and Standards |
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for Texas Capital Counsel, as published by the State Bar of Texas. |
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(c) The court of criminal appeals shall appoint from the |
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list of persons submitted to the court under Subsection (a) the |
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director of the office of capital writs. |
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[Sections 71.075-71.090 reserved for expansion] |
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SUBCHAPTER F. OFFICE OF CAPITAL WRITS |
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Sec. 71.091. DEFINITIONS. In this subchapter: |
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(1) "Committee" means the capital writs committee |
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established under Subchapter E. |
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(2) "Office" means the office of capital writs |
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established and operated under this subchapter. |
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Sec. 71.092. ESTABLISHMENT; FUNDING. (a) The office of |
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capital writs is established as a standing committee of the council |
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and operates under the direction and supervision of the director of |
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the office. |
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(b) The office shall receive funds for personnel costs and |
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expenses as specified in the General Appropriations Act. |
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Sec. 71.093. DIRECTOR; STAFF. (a) The court of criminal |
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appeals shall employ a director to direct and supervise the |
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operation of the office. The director serves a four-year term. |
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(b) The director shall employ attorneys, licensed |
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investigators, and other personnel necessary to perform the duties |
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of the office. |
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(c) The director and any attorney employed by the office may |
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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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chapter for services rendered under this subchapter. |
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Sec. 71.094. POWERS AND DUTIES. (a) The office may refuse |
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an appointment under Article 11.071, Code of Criminal Procedure, |
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only if: |
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(1) a conflict of interest exists; |
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(2) the office has insufficient resources to provide |
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adequate representation for the defendant; |
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(3) the office is incapable of providing |
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representation for the defendant in accordance with the rules of |
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professional conduct; or |
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(4) the office shows other good cause for refusing the |
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appointment. |
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(b) The office may not represent a defendant in a federal |
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habeas review. The office may not represent a defendant in an |
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action or proceeding in state court other than an action or |
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proceeding that: |
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(1) is conducted under Article 11.071, Code of |
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Criminal Procedure; |
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(2) is collateral to the preparation of an application |
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under Article 11.071, Code of Criminal Procedure; or |
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(3) concerns any other post-conviction matter, |
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including an action or proceeding under Article 46.05 or Chapter |
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64, Code of Criminal Procedure. |
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(c) Notwithstanding Article 26.04(p), Code of Criminal |
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Procedure, the office may independently investigate the financial |
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condition of any person the office is appointed to represent. The |
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office shall report the results of the investigation to the |
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appointing judge. The judge may hold a hearing to determine if the |
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person is indigent and entitled to representation under this |
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article. |
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(d) The court may not appoint the office to represent a |
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defendant in an application for a writ of habeas corpus if: |
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(1) the court has previously appointed counsel other |
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than the office under this section in the case; or |
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(2) the defendant has previously retained counsel to |
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represent the defendant in an application for a writ of habeas |
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corpus in the case. |
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(e) The office shall maintain a list of competent counsel |
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available for appointment under Section 2(f), Article 11.071, Code |
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of Criminal Procedure, if the office refuses an appointment under |
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Subsection (a) or is prohibited from accepting an appointment under |
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Subsection (d). |
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Sec. 71.095. COMPENSATION OF OTHER APPOINTED ATTORNEYS. If |
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it is necessary that an attorney other than an attorney employed by |
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the office be appointed, that attorney shall be compensated as |
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provided by Article 26.05, Code of Criminal Procedure. |
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SECTION 3. Subsections (b), (c), (e), and (f), Section 2, |
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Article 11.071, Code of Criminal Procedure, are amended to read as |
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follows: |
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(b) If a defendant is sentenced to death the convicting |
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court, immediately after judgment is entered under Article 42.01, |
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shall determine if the defendant is indigent and, if so, whether the |
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defendant desires appointment of counsel for the purpose of a writ |
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of habeas corpus. If the defendant desires appointment of counsel |
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for the purpose of a writ of habeas corpus, the court shall appoint |
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the office of capital writs to represent the defendant as provided |
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by Subsection (c). |
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(c) At the earliest practical time, but in no event later |
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than 30 days, after the convicting court makes the findings |
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required under Subsections (a) and (b), the convicting court shall |
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appoint the office of capital writs or, if the office of capital |
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writs refuses or is prohibited from accepting an appointment under |
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Section 71.094, Government Code, other competent counsel, unless |
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the applicant elects to proceed pro se or is represented by retained |
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counsel. On appointing counsel under this section, the convicting |
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court shall immediately notify the court of criminal appeals of the |
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appointment, including in the notice a copy of the judgment and the |
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name, address, and telephone number of the appointed counsel. |
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(e) If the court of criminal appeals denies an applicant |
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relief under this article, an attorney appointed under this section |
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to represent the applicant shall, not later than the 15th day after |
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the date the court of criminal appeals denies relief or, if the case |
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is filed and set for submission, the 15th day after the date the |
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court of criminal appeals issues a mandate on the initial |
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application for a writ of habeas corpus under this article, move for |
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the appointment of [to be appointed as] counsel in federal habeas |
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review under 21 U.S.C. Section 848(q) or equivalent provision [or,
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if necessary, move for the appointment of other counsel under 21
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U.S.C. Section 848(q) or equivalent provision]. The attorney shall |
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immediately file a copy of the motion with the court of criminal |
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appeals, and if the attorney fails to do so, the court may take any |
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action to ensure that the applicant's right to federal habeas |
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review is protected, including initiating contempt proceedings |
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against the attorney. |
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(f) If the office of capital writs refuses or is prohibited |
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from accepting an appointment under Section 71.094, Government |
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Code, the [The] convicting court shall appoint counsel from a list |
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of competent counsel maintained by the office of capital writs. The |
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convicting court shall reasonably compensate as provided by Section |
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2A an attorney appointed under this section, other than an attorney |
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employed by the office of capital writs, regardless of whether the |
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attorney is appointed by the convicting court or was appointed by |
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the court of criminal appeals under prior law. An attorney |
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appointed under this section who is employed by the office of |
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capital writs shall be compensated in accordance with Subchapter F, |
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Chapter 71, Government Code. |
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SECTION 4. Subsections (e) and (f), Section 4A, Article |
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11.071, Code of Criminal Procedure, are amended to read as follows: |
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(e) Sections 2A and 3 apply to compensation and |
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reimbursement of counsel appointed under Subsection (b)(3) in the |
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same manner as if counsel had been appointed by the convicting |
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court, unless the attorney is employed by the office of capital |
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writs, in which case the attorney is compensated in accordance with |
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Subchapter F, Chapter 71, Government Code. |
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(f) Notwithstanding any other provision of this article, |
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the court of criminal appeals shall appoint counsel and establish a |
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new filing date for application, which may be no later than the |
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270th day after the date on which counsel is appointed, for each |
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applicant who before September 1, 1999, filed an untimely |
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application or failed to file an application before the date |
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required by Section 4(a) or (b). Section 2A applies to the |
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compensation and payment of expenses of counsel appointed by the |
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court of criminal appeals under this subsection, unless the |
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attorney is employed by the office of capital writs, in which case |
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the attorney is compensated in accordance with Subchapter F, |
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Chapter 71, Government Code. |
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SECTION 5. Subsection (b), Article 26.04, Code of Criminal |
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Procedure, is amended to read as follows: |
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(b) Procedures adopted under Subsection (a) shall: |
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(1) authorize only the judges of the county courts, |
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statutory county courts, and district courts trying criminal cases |
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in the county, or the judges' designee, to appoint counsel for |
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indigent defendants in the county; |
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(2) apply to each appointment of counsel made by a |
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judge or the judges' designee in the county; |
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(3) ensure that each indigent defendant in the county |
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who is charged with a misdemeanor punishable by confinement or with |
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a felony and who appears in court without counsel has an opportunity |
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to confer with appointed counsel before the commencement of |
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judicial proceedings; |
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(4) require appointments for defendants in capital |
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cases in which the death penalty is sought to comply with any |
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applicable [the] requirements under Article 26.052 of this code, or |
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Subchapters E and F, Chapter 71, Government Code; |
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(5) ensure that each attorney appointed from a public |
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appointment list to represent an indigent defendant perform the |
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attorney's duty owed to the defendant in accordance with the |
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adopted procedures, the requirements of this code, and applicable |
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rules of ethics; and |
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(6) ensure that appointments are allocated among |
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qualified attorneys in a manner that is fair, neutral, and |
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nondiscriminatory. |
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SECTION 6. Subsection (a), Article 26.044, Code of Criminal |
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Procedure, is amended by adding Subdivision (3) to read as follows: |
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(3) "Office of capital writs" means the office of |
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capital writs established under Subchapter F, Chapter 71, |
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Government Code. |
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SECTION 7. Article 26.044, Code of Criminal Procedure, is |
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amended by adding Subsection (n) to read as follows: |
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(n) A public defender may be appointed with respect to an |
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application for a writ of habeas corpus only if an attorney employed |
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by the office of capital writs is not appointed in the case. |
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SECTION 8. Subsection (a), Article 26.05, Code of Criminal |
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Procedure, is amended to read as follows: |
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(a) A counsel, other than an attorney with a public defender |
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or an attorney employed by the office of capital writs, appointed to |
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represent a defendant in a criminal proceeding, including a habeas |
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corpus hearing, shall be paid a reasonable attorney's fee for |
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performing the following services, based on the time and labor |
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required, the complexity of the case, and the experience and |
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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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SECTION 9. Subsection (d), Section 2, Article 11.071, Code |
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of Criminal Procedure, is repealed. |
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SECTION 10. (a) Not later than January 15, 2008, the |
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president of the State Bar of Texas shall appoint the members of the |
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capital writs committee. |
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(b) Not later than May 15, 2008, the capital writs committee |
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shall submit to the court of criminal appeals the list of candidates |
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for the position of the director of the office of capital writs. |
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(c) Not later than September 1, 2008, the Court of Criminal |
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Appeals shall employ the director of the office of capital writs |
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under Subchapter F, Chapter 71, Government Code, as added by this |
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Act. |
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SECTION 11. This Act takes effect September 1, 2007. |