80R5439 KCR-D

By: Ellis, Duncan S.B. No. 1655

A BILL TO BE ENTITLED

AN ACT

relating to the establishment of the capital writs standards subcommittee of the Task Force on Indigent Defense and the creation of the office of capital writs.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 71.060(c), Government Code, is amended to read as follows:

(c) Any qualification standards adopted by the Task Force on Indigent Defense under Subsection (a) that relate to the appointment of counsel in a death penalty case must be consistent with the standards specified under Section 71.064 [Article 26.052(d), Code of Criminal Procedure]. An attorney who is identified by the task force as not satisfying performance or qualification standards adopted by the task force under Subsection (a) may not accept an appointment in a capital case.

SECTION 2. Subchapter D, Chapter 71, Government Code, is amended by adding Section 71.064 to read as follows:

Sec. 71.064. CAPITAL WRITS STANDARDS SUBCOMMITTEE. (a) In this section:

(1) "Office of capital writs" means the office of capital writs established under Subchapter E.

(2) "Subcommittee" means the capital writs standards subcommittee established under Subsection (b).

(b) The capital writs standards subcommittee is established as a subcommittee of the Task Force on Indigent Defense.

(c) The subcommittee is composed of seven members to be selected by majority vote of the Task Force on Indigent Defense.

(d) The subcommittee shall elect one member to serve as the presiding officer of the subcommittee.

(e) The subcommittee shall:

(1) oversee the creation of the office of capital writs;

(2) recommend to the Task Force on Indigent Defense a director for the office of capital writs;

(3) adopt standards and qualifications necessary for attorneys to be employed by the office of capital writs; and

(4) adopt standards and qualifications necessary for attorneys to be appointed to represent indigent defendants in applications for writs of habeas corpus with respect to which the office of capital writs is unable to represent the defendant.

(f) The standards adopted under Subsections (e)(3) and (4) must require that an attorney employed by the office of capital writs or appointed as lead counsel in applications for writs of habeas corpus:

(1) be a member of the State Bar of Texas;

(2) exhibit proficiency and commitment to providing quality representation to defendants in death penalty cases, as described by the Guidelines and Standards for Texas Capital Counsel, as published by the State Bar of Texas in the November 2006 issue of the Texas Bar Journal;

(3) not have been found by a federal or state court to have rendered ineffective assistance of counsel during the trial or appeal of a death penalty case or any other capital case; and

(4) have participated in continuing legal education courses or other training relating to criminal defense in death penalty cases.

SECTION 3. Chapter 71, Government Code, is amended by adding Subchapter E to read as follows: SUBCHAPTER E. OFFICE OF CAPITAL WRITS

Sec. 71.071. DEFINITIONS. In this subchapter:

(1) "Office" means the office of capital writs established and operated under this subchapter.

(2) "Subcommittee" means the capital writs standards subcommittee established under Section 71.064.

Sec. 71.072. ESTABLISHMENT; FUNDING. (a) The office of capital writs is established as a standing committee of the council and operates under the direction and supervision of the director of the office.

(b) The office shall receive funds for personnel costs and expenses as specified in the General Appropriations Act.

Sec. 71.073. DIRECTOR; STAFF. (a) The Task Force on Indigent Defense shall employ a director to direct and supervise the operation of the office. The director serves at the pleasure of the Task Force on Indigent Defense, except that the task force may only terminate the director's employment for good cause.

(b) The director shall employ attorneys, licensed investigators, and other personnel necessary to perform the duties of the office.

(c) The director and any attorney employed by the office may not:

(1) engage in the private practice of criminal law; or

(2) accept anything of value not authorized by this chapter for services rendered under this article.

Sec. 71.074. POWERS AND DUTIES. (a) The office may refuse an appointment under Article 11.071, Code of Criminal Procedure, only if:

(1) a conflict of interest exists;

(2) the office has insufficient resources to provide adequate representation for the defendant;

(3) the office is incapable of providing representation for the defendant in accordance with the rules of professional conduct; or

(4) the office shows other good cause for refusing the appointment.

(b) Notwithstanding Article 26.04(p), Code of Criminal Procedure, the office may independently investigate the financial condition of any person the office is appointed to represent. The office shall report the results of the investigation to the appointing judge. The judge may hold a hearing to determine if the person is indigent and entitled to representation under this article.

(c) The court may not appoint the office to represent a defendant in an application for a writ of habeas corpus if:

(1) the court has previously appointed counsel other than the office under this subsection in the case; or

(2) the defendant has previously retained counsel to represent the defendant in an application for a writ of habeas corpus in the case.

Sec. 71.075. COMPENSATION OF OTHER APPOINTED ATTORNEYS. If it is necessary that an attorney other than an attorney employed by the office be appointed, that attorney shall be compensated as provided by Article 26.05, Code of Criminal Procedure.

SECTION 4. Section 2, Article 11.071, Code of Criminal Procedure, is amended by amending Subsection (b) and adding Subsection (g) to read as follows:

(b) If a defendant is sentenced to death the convicting court, immediately after judgment is entered under Article 42.01, shall determine if the defendant is indigent and, if so, whether the defendant desires appointment of counsel for the purpose of a writ of habeas corpus. If the defendant desires appointment of counsel for the purpose of a writ of habeas corpus, the court shall appoint the office of capital writs to represent the defendant.

(g) Subsections (d) and (f) apply only to an attorney appointed to represent an applicant who is not employed by the office of capital writs. An attorney appointed under this section who is employed by the office of capital writs shall be compensated in accordance with Subchapter E, Chapter 71, Government Code, and any rules adopted under that subchapter.

SECTION 5. Section 4A(f), Article 11.071, Code of Criminal Procedure, is amended to read as follows:

(f) Notwithstanding any other provision of this article, the court of criminal appeals shall appoint counsel and establish a new filing date for application, which may be no later than the 270th day after the date on which counsel is appointed, for each applicant who before September 1, 1999, filed an untimely application or failed to file an application before the date required by Section 4(a) or (b). Section 2A applies to the compensation and payment of expenses of counsel appointed by the court of criminal appeals under this subsection, unless the attorney is employed by the office of capital writs, in which case the attorney is compensated in accordance with Subchapter E, Chapter 71, Government Code.

SECTION 6. Article 26.04(b), Code of Criminal Procedure, is amended to read as follows:

(b) Procedures adopted under Subsection (a) shall:

(1) authorize only the judges of the county courts, statutory county courts, and district courts trying criminal cases in the county, or the judges' designee, to appoint counsel for indigent defendants in the county;

(2) apply to each appointment of counsel made by a judge or the judges' designee in the county;

(3) ensure that each indigent defendant in the county who is charged with a misdemeanor punishable by confinement or with a felony and who appears in court without counsel has an opportunity to confer with appointed counsel before the commencement of judicial proceedings;

(4) require appointments for defendants in capital cases in which the death penalty is sought to comply with applicable [the] requirements under Article 26.052 of this code, Section 71.064, Government Code, and Subchapter E, Chapter 71, Government Code;

(5) ensure that each attorney appointed from a public appointment list to represent an indigent defendant perform the attorney's duty owed to the defendant in accordance with the adopted procedures, the requirements of this code, and applicable rules of ethics; and

(6) ensure that appointments are allocated among qualified attorneys in a manner that is fair, neutral, and nondiscriminatory.

SECTION 7. Article 26.044(a), Code of Criminal Procedure, is amended by adding Subdivision (3) to read as follows:

(3) "Office of capital writs" means the office of capital writs established under Subchapter E, Chapter 71, Government Code.

SECTION 8. Article 26.044, Code of Criminal Procedure, is amended by adding Subsection (n) to read as follows:

(n) A public defender may be appointed with respect to an application for a writ of habeas corpus only if an attorney employed by the office of capital writs is not appointed in the case.

SECTION 9. Article 26.05(a), Code of Criminal Procedure, is amended to read as follows:

(a) A counsel, other than an attorney with a public defender or an attorney employed by the office of capital writs, appointed to represent a defendant in a criminal proceeding, including a habeas corpus hearing, shall be paid a reasonable attorney's fee for performing the following services, based on the time and labor required, the complexity of the case, and the experience and ability of the appointed counsel:

(1) time spent in court making an appearance on behalf of the defendant as evidenced by a docket entry, time spent in trial, and time spent in a proceeding in which sworn oral testimony is elicited;

(2) reasonable and necessary time spent out of court on the case, supported by any documentation that the court requires;

(3) preparation of an appellate brief and preparation and presentation of oral argument to a court of appeals or the Court of Criminal Appeals; and

(4) preparation of a motion for rehearing.

SECTION 10. (a) Not later than the 60th day after the effective date of this Act, the Task Force on Indigent Defense shall designate seven members of the task force to serve as the capital writs standards subcommittee.

(b) Not later than June 1, 2009, the Task Force on Indigent Defense shall employ the director of the office of capital writs under Subchapter E, Chapter 71, Government Code, as added by this Act.

SECTION 11. This Act takes effect September 1, 2007.