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

(In the Senate - Filed March 8, 2007; March 21, 2007, read first time and referred to Committee on Criminal Justice; April 10, 2007, reported adversely, with favorable Committee Substitute by the following vote: Yeas 5, Nays 0; April 10, 2007, sent to printer.)

COMMITTEE SUBSTITUTE FOR S.B. No. 1655 By: Ellis

A BILL TO BE ENTITLED

AN ACT

relating to the establishment of the capital writs committee of the Texas Judicial Council and the creation of the office of capital writs.

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

SECTION 1. Subsection (c), Section 71.060, 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 any applicable [the] standards adopted [specified] under Subchapter F [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. Chapter 71, Government Code, is amended by adding Subchapters E and F to read as follows:

SUBCHAPTER E. CAPITAL WRITS COMMITTEE

Sec. 71.071. DEFINITIONS. In this subchapter:

(1) "Committee" means the capital writs committee established under this subchapter.

(2) "Office of capital writs" means the office of capital writs established under Subchapter F.

Sec. 71.072. ESTABLISHMENT OF COMMITTEE; DUTIES. (a) The capital writs committee is established as a standing committee of the council.

(b) The committee shall:

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

(2) recommend to the court of criminal appeals a director for the office of capital writs.

Sec. 71.073. APPOINTMENT AND COMPOSITION OF COMMITTEE. (a) The committee is composed of the following five members who are appointed by and serve at the pleasure of the president of the State Bar of Texas:

(1) three attorneys who are members of the State Bar of Texas and who are not employed as prosecutors or law enforcement officials, one of whom must have knowledge of and experience with habeas corpus proceedings in this state;

(2) one state district judge; and

(3) one state appellate judge who is not a member of the court of criminal appeals.

(b) The committee shall elect one member of the committee to serve as the presiding officer of the committee.

Sec. 71.074. RECOMMENDATION AND APPOINTMENT OF DIRECTOR OF OFFICE OF CAPITAL WRITS. (a) The committee shall submit to the court of criminal appeals, in order of the committee's preference, a list of the names of not fewer than three and not more than five persons the committee recommends that the court consider in appointing the director of the office of capital writs.

(b) Each person recommended to the court of criminal appeals by the committee under Subsection (a) must exhibit proficiency in 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.

(c) The court of criminal appeals shall appoint from the list of persons submitted to the court under Subsection (a) the director of the office of capital writs.

[Sections 71.075-71.090 reserved for expansion]

SUBCHAPTER F. OFFICE OF CAPITAL WRITS

Sec. 71.091. DEFINITIONS. In this subchapter:

(1) "Committee" means the capital writs committee established under Subchapter E.

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

Sec. 71.092. 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. 71.093. DIRECTOR; STAFF. (a) The court of criminal appeals shall employ a director to direct and supervise the operation of the office. The director serves a four-year term.

(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 subchapter.

Sec. 71.094. 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) The office may not represent a defendant in a federal habeas review. The office may not represent a defendant in an action or proceeding in state court other than an action or proceeding that:

(1) is conducted under Article 11.071, Code of Criminal Procedure;

(2) is collateral to the preparation of an application under Article 11.071, Code of Criminal Procedure; or

(3) concerns any other post-conviction matter, including an action or proceeding under Article 46.05 or Chapter 64, Code of Criminal Procedure.

(c) 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.

(d) 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 section 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.

(e) The office shall maintain a list of competent counsel available for appointment under Section 2(f), Article 11.071, Code of Criminal Procedure, if the office refuses an appointment under Subsection (a) or is prohibited from accepting an appointment under Subsection (d).

Sec. 71.095. 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 3. Subsections (b), (c), (e), and (f), Section 2, Article 11.071, Code of Criminal Procedure, are amended 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 as provided by Subsection (c).

(c) At the earliest practical time, but in no event later than 30 days, after the convicting court makes the findings required under Subsections (a) and (b), the convicting court shall appoint the office of capital writs or, if the office of capital writs refuses or is prohibited from accepting an appointment under Section 71.094, Government Code, other competent counsel, unless the applicant elects to proceed pro se or is represented by retained counsel. On appointing counsel under this section, the convicting court shall immediately notify the court of criminal appeals of the appointment, including in the notice a copy of the judgment and the name, address, and telephone number of the appointed counsel.

(e) If the court of criminal appeals denies an applicant relief under this article, an attorney appointed under this section to represent the applicant shall, not later than the 15th day after the date the court of criminal appeals denies relief or, if the case is filed and set for submission, the 15th day after the date the court of criminal appeals issues a mandate on the initial application for a writ of habeas corpus under this article, move for the appointment of [to be appointed as] counsel in federal habeas review under 21 U.S.C. Section 848(q) or equivalent provision [or, if necessary, move for the appointment of other counsel under 21 U.S.C. Section 848(q) or equivalent provision]. The attorney shall immediately file a copy of the motion with the court of criminal appeals, and if the attorney fails to do so, the court may take any action to ensure that the applicant's right to federal habeas review is protected, including initiating contempt proceedings against the attorney.

(f) If the office of capital writs refuses or is prohibited from accepting an appointment under Section 71.094, Government Code, the [The] convicting court shall appoint counsel from a list of competent counsel maintained by the office of capital writs. The convicting court shall reasonably compensate as provided by Section 2A an attorney appointed under this section, other than an attorney employed by the office of capital writs, regardless of whether the attorney is appointed by the convicting court or was appointed by the court of criminal appeals under prior law. An attorney appointed under this section who is employed by the office of capital writs shall be compensated in accordance with Subchapter F, Chapter 71, Government Code.

SECTION 4. Subsections (e) and (f), Section 4A, Article 11.071, Code of Criminal Procedure, are amended to read as follows:

(e) Sections 2A and 3 apply to compensation and reimbursement of counsel appointed under Subsection (b)(3) in the same manner as if counsel had been appointed by the convicting court, unless the attorney is employed by the office of capital writs, in which case the attorney is compensated in accordance with Subchapter F, Chapter 71, Government Code.

(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 F, Chapter 71, Government Code.

SECTION 5. Subsection (b), Article 26.04, 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 any applicable [the] requirements under Article 26.052 of this code, or Subchapters E and F, 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 6. Subsection (a), Article 26.044, 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 F, Chapter 71, Government Code.

SECTION 7. 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 8. Subsection (a), Article 26.05, 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 9. Subsection (d), Section 2, Article 11.071, Code of Criminal Procedure, is repealed.

SECTION 10. (a) Not later than January 15, 2008, the president of the State Bar of Texas shall appoint the members of the capital writs committee.

(b) Not later than May 15, 2008, the capital writs committee shall submit to the court of criminal appeals the list of candidates for the position of the director of the office of capital writs.

(c) Not later than September 1, 2008, the Court of Criminal Appeals shall employ the director of the office of capital writs under Subchapter F, Chapter 71, Government Code, as added by this Act.

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

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