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A BILL TO BE ENTITLED
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AN ACT
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relating to standards of competency for attorneys appointed as |
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counsel to indigent applicants in certain habeas corpus |
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proceedings. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 2(d), Article 11.071, Code of Criminal |
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Procedure, is amended to read as follows: |
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(d)(1) The court of criminal appeals shall adopt rules for |
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the appointment of attorneys as counsel under this section. |
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(2) The rules must require that an attorney appointed |
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as counsel under this section: |
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(A) be a member of the State Bar of Texas; |
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(B) exhibit proficiency and commitment to |
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providing quality representation to applicants seeking relief in |
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death penalty cases; |
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(C) have at least five years of experience in |
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criminal litigation, appellate practice, or habeas corpus |
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practice; |
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(D) have appeared in federal or state court in a |
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significant number of habeas corpus proceedings for offenses |
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punished as second-degree or first-degree felonies or capital |
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felonies; and |
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(E) have in the 12 months preceding the |
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appointment participated in continuing legal education courses or |
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other training relating to habeas corpus proceedings, provided or |
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approved by a statewide association of criminal defense attorneys |
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who regularly represent indigent defendants and whose purposes |
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include providing continuing legal education, technical |
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assistance, and support programs. |
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(3) The [and the] convicting court may appoint an |
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attorney as counsel under this section only if the appointment is |
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approved by the court of criminal appeals in any manner provided by |
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those rules. |
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SECTION 2. Section 4A, Article 11.071, Code of Criminal |
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Procedure, is amended to read as follows: |
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Sec. 4A. UNTIMELY APPLICATION; APPLICATION NOT FILED; |
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CLAIMS NOT COGNIZABLE. (a) On command of the court of criminal |
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appeals, a counsel who files: |
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(1) an untimely application or fails to file an |
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application before the filing date applicable under Section 4(a) or |
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(b) shall show cause as to why the application was untimely filed or |
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not filed before the filing date; and |
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(2) an application containing a claim that is not |
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cognizable shall show cause as to why the application contains the |
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claim. |
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(b) At the conclusion of the counsel's presentation to the |
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court of criminal appeals, the court may: |
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(1) find that good cause has not been shown and dismiss |
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the application if the court finds that the untimely filing, |
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failure to file, or inclusion in the application of a claim that is |
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not cognizable is specifically due to an act or omission of the |
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applicant and not due to an act or omission of the counsel for the |
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applicant; |
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(2) permit the counsel to continue representation of |
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the applicant and establish a new filing date for the application, |
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which may be not more than 180 days from the date the court permits |
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the counsel to continue representation; or |
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(3) appoint new counsel to represent the applicant and |
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establish a new filing date for the application, which may be not |
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more than 270 days after the date the court appoints new counsel. |
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(c) The court of criminal appeals may hold in contempt |
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counsel who files an untimely application or fails to file an |
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application before the date required by Section 4(a) or (b) or who |
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files an application that contains a claim that is not cognizable. |
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The court of criminal appeals may punish as a separate instance of |
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contempt each day after the first day on which the counsel fails to |
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timely file the application. In addition to or in lieu of holding |
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counsel in contempt, the court of criminal appeals may enter an |
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order denying counsel compensation under Section 2A. If on more |
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than one occasion the court of criminal appeals finds that the |
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untimely filing, failure to file, or inclusion in the application |
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of a claim that is not cognizable is specifically due to an act or |
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omission of an attorney acting as counsel for the applicant and not |
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due to an act or omission of the applicant, the court shall prohibit |
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a trial court from subsequently appointing that attorney as counsel |
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under this section. |
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(d) If the court of criminal appeals establishes a new |
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filing date for the application, the court of criminal appeals |
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shall notify the convicting court of that fact and the convicting |
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court shall proceed under this article. |
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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. |
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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. |
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(g) It is the intent of the legislature that an applicant |
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not be penalized because counsel to the applicant has filed a |
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defective application under this article. |
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SECTION 3. The court of criminal appeals shall amend |
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standards previously adopted by the court to conform with the |
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requirements of Section 2(d), Article 11.071, Code of Criminal |
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Procedure, as amended by this Act, not later than the 60th day after |
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the effective date of this Act. |
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SECTION 4. An attorney appointed under Section 2, Article |
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11.071, Code of Criminal Procedure, as amended by this Act, on or |
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after January 1, 2010, must meet the standards adopted in |
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conformity with amended Section 2(d), Article 11.071, except that |
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the requirement that the attorney complete a course or training on |
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habeas corpus proceedings during the previous 12 months applies |
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only to an attorney appointed under Section 2 on or after January 1, |
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2011. |
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SECTION 5. The change in law made by this Act to Section 4A, |
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Article 11.071, Code of Criminal Procedure, applies only to an |
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application for a writ of habeas corpus filed on or after the |
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effective date of this Act. An application for a writ of habeas |
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corpus filed before the effective date of this Act is covered by the |
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law in effect when the application was filed, and the former law is |
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continued in effect for this purpose. |
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SECTION 6. This Act takes effect immediately if it receives |
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a vote of two-thirds of all the members elected to each house, as |
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provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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Act takes effect September 1, 2009. |