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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 standards |
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subcommittee of the Task Force on Indigent Defense and the creation |
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of the office of capital writs. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 71.060(c), Government Code, is amended |
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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 the standards specified under Section 71.064 [Article
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26.052(d), Code of Criminal Procedure]. An attorney who is |
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identified by the task force as not satisfying performance or |
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qualification standards adopted by the task force under Subsection |
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(a) may not accept an appointment in a capital case. |
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SECTION 2. Subchapter D, Chapter 71, Government Code, is |
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amended by adding Section 71.064 to read as follows: |
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Sec. 71.064. CAPITAL WRITS STANDARDS SUBCOMMITTEE. (a) In |
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this section: |
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(1) "Office of capital writs" means the office of |
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capital writs established under Subchapter E. |
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(2) "Subcommittee" means the capital writs standards |
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subcommittee established under Subsection (b). |
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(b) The capital writs standards subcommittee is established |
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as a subcommittee of the Task Force on Indigent Defense. |
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(c) The subcommittee is composed of seven members to be |
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selected by majority vote of the Task Force on Indigent Defense. |
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(d) The subcommittee shall elect one member to serve as the |
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presiding officer of the subcommittee. |
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(e) The subcommittee shall: |
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(1) oversee the creation of the office of capital |
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writs; |
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(2) recommend to the Task Force on Indigent Defense a |
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director for the office of capital writs; |
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(3) adopt standards and qualifications necessary for |
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attorneys to be employed by the office of capital writs; and |
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(4) adopt standards and qualifications necessary for |
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attorneys to be appointed to represent indigent defendants in |
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applications for writs of habeas corpus with respect to which the |
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office of capital writs is unable to represent the defendant. |
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(f) The standards adopted under Subsections (e)(3) and (4) |
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must require that an attorney employed by the office of capital |
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writs or appointed as lead counsel in applications for writs of |
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habeas corpus: |
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(1) be a member of the State Bar of Texas; |
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(2) exhibit proficiency and commitment to providing |
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quality representation to defendants in death penalty cases, as |
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described by the Guidelines and Standards for Texas Capital |
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Counsel, as published by the State Bar of Texas in the November 2006 |
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issue of the Texas Bar Journal; |
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(3) not have been found by a federal or state court to |
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have rendered ineffective assistance of counsel during the trial or |
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appeal of a death penalty case or any other capital case; and |
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(4) have participated in continuing legal education |
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courses or other training relating to criminal defense in death |
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penalty cases. |
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SECTION 3. Chapter 71, Government Code, is amended by |
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adding Subchapter E to read as follows: |
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SUBCHAPTER E. OFFICE OF CAPITAL WRITS |
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Sec. 71.071. DEFINITIONS. In this subchapter: |
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(1) "Office" means the office of capital writs |
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established and operated under this subchapter. |
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(2) "Subcommittee" means the capital writs standards |
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subcommittee established under Section 71.064. |
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Sec. 71.072. 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. 71.073. DIRECTOR; STAFF. (a) The Task Force on |
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Indigent Defense shall employ a director to direct and supervise |
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the operation of the office. The director serves at the pleasure of |
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the Task Force on Indigent Defense, except that the task force may |
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only terminate the director's employment for good cause. |
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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 article. |
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Sec. 71.074. 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) 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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(c) 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 subsection 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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Sec. 71.075. COMPENSATION OF OTHER APPOINTED |
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ATTORNEYS. If it is necessary that an attorney other than an |
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attorney employed by the office be appointed, that attorney shall |
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be compensated as provided by Article 26.05, Code of Criminal |
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Procedure. |
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SECTION 4. Section 2, Article 11.071, Code of Criminal |
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Procedure, is amended by amending Subsection (b) and adding |
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Subsection (g) to read as 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. |
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(g) Subsections (d) and (f) apply only to an attorney |
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appointed to represent an applicant who is not employed by the |
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office of capital writs. An attorney appointed under this section |
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who is employed by the office of capital writs shall be compensated |
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in accordance with Subchapter E, Chapter 71, Government Code, and |
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any rules adopted under that subchapter. |
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SECTION 5. Section 4A(f), Article 11.071, Code of Criminal |
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Procedure, is amended to read as follows: |
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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 E, |
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Chapter 71, Government Code. |
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SECTION 6. Article 26.04(b), Code of Criminal Procedure, is |
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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 applicable |
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[the] requirements under Article 26.052 of this code, Section |
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71.064, Government Code, and Subchapter E, Chapter 71, Government |
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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 7. Article 26.044(a), Code of Criminal Procedure, |
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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 E, Chapter 71, |
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Government Code. |
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SECTION 8. 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 9. Article 26.05(a), Code of Criminal Procedure, is |
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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 10. (a) Not later than the 60th day after the |
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effective date of this Act, the Task Force on Indigent Defense shall |
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designate seven members of the task force to serve as the capital |
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writs standards subcommittee. |
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(b) Not later than June 1, 2009, the Task Force on Indigent |
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Defense shall employ the director of the office of capital writs |
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under Subchapter E, 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. |