80R5437 SLO-F

By: Ellis S.B. No. 1823

A BILL TO BE ENTITLED

AN ACT

relating to representation of applicants for writs of habeas corpus in cases involving the death penalty.

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

SECTION 1. Section 2, Article 11.071, Code of Criminal Procedure, is amended by amending Subsections (c) and (d) and adding Subsection (g) to read as follows:

(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 competent counsel, unless the applicant elects to proceed pro se or is represented by retained counsel. Counsel appointed under this subsection may include counsel appointed to assist an attorney appointed as lead counsel under this section. 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.

(d) The court of criminal appeals shall adopt rules for the appointment of attorneys as counsel under this article [section] and the convicting court may appoint an attorney as counsel under this article [section] only if the appointment is approved by the court of criminal appeals in any manner provided by those rules. The rules must require that an attorney appointed as lead counsel under this section not have been found by a federal or state court to have rendered ineffective assistance of counsel during the trial or appeal of any capital case, unless the conduct underlying the finding fails to accurately reflect the attorney's current ability to provide effective representation.

(g) An attorney appointed or employed as counsel under this article shall provide effective representation during the course of proceedings under this article.

SECTION 2. Subsections (a), (b), and (d), Section 2A, Article 11.071, Code of Criminal Procedure, are amended to read as follows:

(a) The state shall reimburse a county for compensation of counsel under Section 2 and payment of expenses under Section 3. The total amount of reimbursement to which a county is entitled under this section for attorney compensation for an application under this article may not exceed $100,000 [$25,000]. The total amount of reimbursement to which a county is entitled under this section for reasonable expenses incurred by an attorney appointed with respect to an application under this article may not exceed $50,000. Compensation and expenses in excess of the $150,000 [$25,000] reimbursement that may be provided by the state are the obligation of the county.

(b) A convicting court seeking reimbursement for a county shall certify to the comptroller of public accounts the amount of compensation that the county is entitled to receive under this section. The comptroller of public accounts shall issue a warrant to the county in the amount certified by the convicting court, not to exceed a total amount of $100,000 for attorney compensation and $50,000 for expenses [$25,000].

(d) The comptroller shall reimburse a county for the compensation and payment of expenses of an attorney appointed by the court of criminal appeals under prior law. A convicting court seeking reimbursement for a county as permitted by this subsection shall certify the amount the county is entitled to receive under this subsection for an application filed under this article, not to exceed a total amount of $100,000 for attorney compensation and $50,000 for expenses [$25,000].

SECTION 3. Section 5(a), Article 11.071, Code of Criminal Procedure, is amended to read as follows:

(a) If a subsequent application for a writ of habeas corpus is filed after filing an initial application, a court may not consider the merits of or grant relief based on the subsequent application unless the court determines that considering the merits or granting relief is in the best interest of justice or the application contains sufficient specific facts establishing that:

(1) the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article or Article 11.07 because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application;

(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt; [or]

(3) by clear and convincing evidence, but for a violation of the United States Constitution no rational juror would have answered in the state's favor one or more of the special issues that were submitted to the jury in the applicant's trial under Article 37.071 or 37.0711;

(4) by clear and convincing evidence, the current claims or issues were not raised previously in a timely initial application under this article because the applicant was not represented by competent counsel in filing the previous application; or

(5) by clear and convincing evidence, the counsel who prepared the initial application was subsequently found by the court of criminal appeals to be ineligible for appointments under rules adopted for appointment of attorneys as counsel under Section 2(d).

SECTION 4. Section 6, Article 11.071, Code of Criminal Procedure, is amended by adding Subsection (b-1) to read as follows:

(b-1) If the convicting court receives notice that the requirements of Section 5(a) for consideration of a subsequent application have been met, the convicting court shall appoint counsel and provide for the compensation and reimbursement of expenses of the counsel as is provided by Sections 2A and 3, including compensation for time previously spent and reimbursement of expenses previously incurred and regardless of whether the subsequent application is ultimately dismissed.

SECTION 5. The change in law made by this Act applies to an initial or subsequent application for a writ of habeas corpus filed on or after January 1, 2008. An application filed before January 1, 2008, is covered by the law in effect when the application was filed, and the former law is continued in effect for that purpose.

SECTION 6. This Act takes effect September 1, 2007.