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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 and |
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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. Subtitle F, Title 2, Government Code, is amended |
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by adding Chapter 78 to read as follows: |
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CHAPTER 78. CAPITAL WRITS COMMITTEE AND OFFICE OF CAPITAL WRITS |
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SUBCHAPTER A. CAPITAL WRITS COMMITTEE |
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Sec. 78.001. 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 and operated under Subchapter B. |
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Sec. 78.002. ESTABLISHMENT OF COMMITTEE; DUTIES. (a) The |
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capital writs committee is established. |
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(b) The committee shall submit to the Court of Criminal |
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Appeals the committee's recommendations for the position of |
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director of the office of capital writs when a vacancy exists for |
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that position. |
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Sec. 78.003. APPOINTMENT AND COMPOSITION OF COMMITTEE. (a) |
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The committee is composed of the following five members who are |
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appointed by the president of the State Bar of Texas, with |
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ratification by the executive committee of the 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, all of whom must have criminal defense experience with |
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death penalty proceedings in this state; and |
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(2) two state district judges, one of whom serves as |
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presiding judge of an administrative judicial region. |
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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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(c) The committee members serve at the pleasure of the |
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president of the State Bar of Texas, and the committee meets at the |
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call of the presiding officer of the committee. |
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Sec. 78.004. 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 more than five individuals the committee |
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recommends that the court consider in appointing the director of |
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the office of capital writs when a vacancy exists for the position |
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of director. If the committee finds that three or more individuals |
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under the committee's consideration are qualified to serve as the |
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director of the office of capital writs, the committee must include |
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at least three names in the list submitted under this subsection. |
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(b) Each individual recommended to the Court of Criminal |
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Appeals by the committee under Subsection (a) must exhibit |
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proficiency and commitment to providing quality representation to |
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defendants in death penalty cases, as described by the Guidelines |
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and Standards for Texas Capital Counsel, as published by the State |
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Bar of Texas. |
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(c) When a vacancy for the position exists, the Court of |
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Criminal Appeals shall appoint from the list of individuals |
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submitted to the court under Subsection (a) the director of the |
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office of capital writs. |
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[Sections 78.005-78.050 reserved for expansion] |
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SUBCHAPTER B. OFFICE OF CAPITAL WRITS |
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Sec. 78.051. DEFINITIONS. In this subchapter: |
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(1) "Committee" means the capital writs committee |
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established under Subchapter A. |
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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. 78.052. ESTABLISHMENT; FUNDING. (a) The office of |
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capital writs is established and operates under the direction and |
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supervision of the director of 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. 78.053. DIRECTOR; STAFF. (a) The Court of Criminal |
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Appeals shall appoint a director to direct and supervise the |
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operation of the office. The director serves a four-year term and |
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continues to serve until a successor has been appointed and |
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qualified. The Court of Criminal Appeals may remove the director |
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only for good cause. The director may be reappointed for a second |
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or subsequent term. |
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(b) The director shall employ attorneys and employ or retain |
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licensed investigators and other personnel necessary to perform the |
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duties 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 law for |
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services rendered under this subchapter. |
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Sec. 78.054. POWERS AND DUTIES. (a) The office may not |
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accept an appointment under Article 11.071, Code of Criminal |
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Procedure, 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) other good cause is shown for not accepting 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 action |
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or proceeding in state court other than an action or proceeding |
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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 other |
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than a direct appeal, including an action or proceeding under |
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Article 46.05 or Chapter 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 individual the office is appointed to represent. |
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The 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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individual is indigent and entitled to representation under this |
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section. |
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Sec. 78.055. 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 Articles 11.071 and 26.05, Code of Criminal Procedure. |
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Sec. 78.056. APPOINTMENT LIST. (a) The presiding judges of |
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the administrative judicial regions shall maintain a statewide list |
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of competent counsel available for appointment under Section 2(f), |
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Article 11.071, Code of Criminal Procedure, if the office does not |
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accept or is prohibited from accepting an appointment under Section |
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78.054. Each attorney on the list must possess the qualifications |
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described by Section 78.004(b). |
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(b) The Office of Court Administration and the Task Force on |
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Indigent Defense shall provide administrative support necessary |
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under this section. |
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SECTION 2. Sections 2(b), (c), (e), and (f), Article |
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11.071, Code of Criminal Procedure, are amended 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 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 does not accept or is prohibited from accepting an |
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appointment under Section 78.054, Government Code, other competent |
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counsel under Subsection (f), unless the applicant elects to |
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proceed pro se or is represented by retained counsel. On appointing |
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counsel under this section, the convicting court shall immediately |
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notify the court of criminal appeals of the appointment, including |
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in the notice a copy of the judgment and the name, address, and |
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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 to |
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be appointed as counsel in federal habeas review under 21 U.S.C. |
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Section 848(q) or equivalent provision or, if the attorney is |
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employed by the office of capital writs or it is otherwise |
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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 does not accept or is |
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prohibited from accepting an appointment under Section 78.054, |
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Government Code, the [The] convicting court shall appoint counsel |
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from a list of competent counsel maintained by the presiding judges |
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of the administrative judicial regions under Section 78.056, |
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Government Code. The convicting court shall reasonably compensate |
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as provided by Section 2A an attorney appointed under this section, |
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other than an attorney employed by the office of capital writs, |
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regardless of whether the attorney is appointed by the convicting |
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court or was appointed by the court of criminal appeals under prior |
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law. An attorney appointed under this section who is employed by |
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the office of capital writs shall be compensated in accordance with |
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Subchapter B, Chapter 78, Government Code. |
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SECTION 3. Section 2A(a), Article 11.071, Code of Criminal |
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Procedure, is amended to read as follows: |
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(a) The state shall reimburse a county for compensation of |
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counsel under Section 2, other than for compensation of counsel |
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employed by the office of capital writs, and for payment of expenses |
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under Section 3, regardless of whether counsel is employed by the |
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office of capital writs. The total amount of reimbursement to which |
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a county is entitled under this section for an application under |
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this article may not exceed $25,000. Compensation and expenses in |
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excess of the $25,000 reimbursement provided by the state are the |
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obligation of the county. |
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SECTION 4. Section 3, Article 11.071, Code of Criminal |
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Procedure, is amended by adding Subsection (f) to read as follows: |
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(f) This section applies to counsel's investigation of the |
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factual and legal grounds for the filing of an application for a |
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writ of habeas corpus, regardless of whether counsel is employed by |
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the office of capital writs. |
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SECTION 5. Sections 4A(e) and (f), Article 11.071, Code of |
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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 compensation of that attorney is governed |
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by Subchapter B, Chapter 78, 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 compensation of that attorney is governed by Subchapter B, |
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Chapter 78, 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 any |
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applicable [the] requirements under Articles 11.071 and [Article] |
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26.052; |
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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 B, Chapter 78, |
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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) An attorney employed by a public defender's office may |
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be appointed with respect to an application for a writ of habeas |
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corpus only if: |
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(1) an attorney employed by the office of capital |
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writs is not appointed in the case; and |
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(2) the attorney employed by the public defender's |
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office is on the list of competent counsel maintained under Section |
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78.056, Government Code. |
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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. Section 2(d), Article 11.071, Code of Criminal |
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Procedure, is repealed, effective January 1, 2010. |
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SECTION 11. (a) Not later than January 1, 2010, in |
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accordance with Section 78.056, Government Code, as added by this |
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Act, the presiding judges of the administrative judicial regions |
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shall complete the statewide list of competent counsel available |
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for appointment to represent defendants in applications for writs |
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of habeas corpus. |
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(b) Not later than January 15, 2010, the president of the |
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State Bar of Texas shall appoint the members of the capital writs |
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committee. |
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(c) Not later than May 15, 2010, 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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(d) Not later than September 1, 2010, the Court of Criminal |
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Appeals shall appoint the director of the office of capital writs |
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under Chapter 78, Government Code, as added by this Act. |
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SECTION 12. This Act takes effect September 1, 2009. |