By: Ellis, Duncan  S.B. No. 1091
         (In the Senate - Filed February 24, 2009; March 13, 2009,
  read first time and referred to Committee on Criminal Justice;
  March 30, 2009, reported adversely, with favorable Committee
  Substitute by the following vote:  Yeas 5, Nays 0; March 30, 2009,
  sent to printer.)
 
  COMMITTEE SUBSTITUTE FOR S.B. No. 1091 By:  Ellis
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to the establishment of the capital writs committee and
  the office of capital writs and to the appointment and compensation
  of certain counsel for indigent defendants in a capital case.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subtitle F, Title 2, Government Code, is amended
  by adding Chapter 78 to read as follows:
  CHAPTER 78.  CAPITAL WRITS COMMITTEE AND OFFICE OF CAPITAL WRITS
  SUBCHAPTER A. CAPITAL WRITS COMMITTEE
         Sec. 78.001.  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 B.
         Sec. 78.002.  ESTABLISHMENT OF COMMITTEE; DUTIES. (a)  The
  capital writs committee is established.
         (b)  The committee shall recommend to the court of criminal
  appeals as provided by Section 78.004 a director for the office of
  capital writs when a vacancy exists for the position of director.
         Sec. 78.003.  APPOINTMENT AND COMPOSITION OF COMMITTEE.  
  (a)  The committee is composed of the following five members who
  are appointed by the president of the State Bar of Texas, with
  ratification by the executive committee 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, all of whom must have criminal defense experience with
  death penalty proceedings in this state; and
               (2)  two state district judges, one of whom serves as
  presiding judge of an administrative judicial region.
         (b)  The committee shall elect one member of the committee to
  serve as the presiding officer of the committee.
         (c)  The committee members serve at the pleasure of the
  president of the State Bar of Texas, and the committee meets at the
  call of the presiding officer of the committee.
         Sec. 78.004.  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 more than five persons the committee
  recommends that the court consider in appointing the director of
  the office of capital writs when a vacancy exists for the position
  of director.  If the committee finds that three or more persons
  under the committee's consideration are qualified to serve as the
  director of the office of capital writs, the committee must include
  at least three names in the list submitted under this subsection.
         (b)  Each person recommended to the court of criminal appeals
  by the committee under Subsection (a):
               (1)  must 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; and
               (2)  may not have been found by a state or federal court
  to have rendered ineffective assistance of counsel during the trial
  or appeal of a death penalty case.
         (c)  When a vacancy for the position exists, 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 78.005-78.050 reserved for expansion]
  SUBCHAPTER B.  OFFICE OF CAPITAL WRITS
         Sec. 78.051.  DEFINITIONS.  In this subchapter:
               (1)  "Committee" means the capital writs committee
  established under Subchapter A.
               (2)  "Office" means the office of capital writs
  established under this subchapter.
         Sec. 78.052.  ESTABLISHMENT; FUNDING.  (a)  The office of
  capital writs is established and operates under the direction and
  supervision of the director of the office.
         (b)  The office shall receive funds for personnel costs and
  expenses:
               (1)  as specified in the General Appropriations Act;
  and
               (2)  from the fair defense account under Section
  71.058, in an amount sufficient to cover personnel costs and
  expenses not covered by appropriations described by Subdivision
  (1).
         Sec. 78.053.  DIRECTOR; STAFF.  (a)  The court of criminal
  appeals shall appoint a director to direct and supervise the
  operation of the office.  The director serves a four-year term and
  continues to serve until a successor has been appointed and
  qualified.  The court of criminal appeals may remove the director
  only for good cause.  The director may be reappointed for a second
  or subsequent term.
         (b)  The director shall employ attorneys and employ or retain
  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 law for
  services rendered under this subchapter.
         Sec. 78.054.  POWERS AND DUTIES.  (a)  The office may not
  accept an appointment under Article 11.071, Code of Criminal
  Procedure, 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)  other good cause is shown for not accepting 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 in a
  death penalty case other than a direct appeal, 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
  section.
         Sec. 78.055.  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 Articles 11.071 and 26.05, Code of Criminal Procedure.
         Sec. 78.056.  APPOINTMENT LIST.  (a)  The presiding judges
  of the administrative judicial regions shall maintain a statewide
  list of competent counsel available for appointment under Section
  2(f), Article 11.071, Code of Criminal Procedure, if the office
  does not accept or is prohibited from accepting an appointment
  under Section 78.054.  Each attorney on the list must 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.
         (b)  The Office of Court Administration of the Texas Judicial
  System and the Task Force on Indigent Defense shall provide
  administrative support necessary under this section.
         SECTION 2.  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 does not accept or is prohibited from accepting an
  appointment under Section 78.054, Government Code, other competent
  counsel under Subsection (f), 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 does not accept or is
  prohibited from accepting an appointment under Section 78.054,
  Government Code, the [The] convicting court shall appoint counsel
  from a list of competent counsel maintained by the presiding judges
  of the administrative judicial regions under Section 78.056,
  Government Code. 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 B, Chapter 78, Government Code.
         SECTION 3.  Subsection (a), Section 2A, Article 11.071, Code
  of Criminal Procedure, is amended to read as follows:
         (a)  The state shall reimburse a county for compensation of
  counsel under Section 2, other than for compensation of counsel
  employed by the office of capital writs, and for payment of expenses
  under Section 3, regardless of whether counsel is employed by the
  office of capital writs. The total amount of reimbursement to which
  a county is entitled under this section for an application under
  this article may not exceed $25,000.  Compensation and expenses in
  excess of the $25,000 reimbursement provided by the state are the
  obligation of the county.
         SECTION 4.  Section 3, Article 11.071, Code of Criminal
  Procedure, is amended by adding Subsection (f) to read as follows:
         (f)  This section applies to counsel's investigation of the
  factual and legal grounds for the filing of an application for a
  writ of habeas corpus, regardless of whether counsel is employed by
  the office of capital writs.
         SECTION 5.  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 compensation of that attorney is governed
  by Subchapter B, Chapter 78, 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 compensation of that attorney is governed by Subchapter B,
  Chapter 78, Government Code.
         SECTION 6.  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 Articles 11.071 and [Article]
  26.052;
               (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.  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 B, Chapter 78,
  Government Code.
         SECTION 8.  Article 26.044, Code of Criminal Procedure, is
  amended by adding Subsection (n) to read as follows:
         (n)  An attorney employed by a public defender's office may
  be appointed with respect to an application for a writ of habeas
  corpus only if:
               (1)  an attorney employed by the office of capital
  writs is not appointed in the case; and
               (2)  the attorney employed by the public defender's
  office is on the list of competent counsel maintained under Section
  78.056, Government Code.
         SECTION 9.  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 10.  Section 71.058, Government Code, is amended to
  read as follows:
         Sec. 71.058.  FAIR DEFENSE ACCOUNT.  The fair defense
  account is an account in the general revenue fund that may be
  appropriated only to:
               (1)  the Task Force on Indigent Defense for the purpose
  of implementing this subchapter; and
               (2)  the office of capital writs for the purpose of
  implementing Subchapter B, Chapter 78.
         SECTION 11.  Subsection (d), Section 2, Article 11.071, Code
  of Criminal Procedure, is repealed, effective January 1, 2010.
         SECTION 12.  (a)  Not later than January 1, 2010, in
  accordance with Section 78.056, Government Code, as added by this
  Act, the presiding judges of the administrative judicial regions
  shall complete the statewide list of competent counsel available
  for appointment to represent defendants in applications for writs
  of habeas corpus.
         (b)  Not later than January 15, 2010, the president of the
  State Bar of Texas shall appoint the members of the capital writs
  committee.
         (c)  Not later than May 15, 2010, 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.
         (d)  Not later than September 1, 2010, the court of criminal
  appeals shall appoint the director of the office of capital writs
  under Chapter 78, Government Code, as added by this Act.
         SECTION 13.  This Act takes effect September 1, 2009.
 
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