82R251 VOO-D

By: Ellis S.B. No. 749

A BILL TO BE ENTITLED

AN ACT

relating to provision of notice regarding and limitation of attorney's fees for services provided in connection with the making of a wrongful imprisonment claim.

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

SECTION 1. The heading to Subchapter A, Chapter 103, Civil Practice and Remedies Code, is amended to read as follows:

SUBCHAPTER A. ELIGIBILITY; NOTICE OF ELIGIBILITY [AND CHOICE OF

COMPENSATION METHOD]

SECTION 2. Subchapter A, Chapter 103, Civil Practice and Remedies Code, is amended by adding Section 103.002 to read as follows:

Sec. 103.002. NOTICE TO WRONGFULLY IMPRISONED PERSON. (a) In this section:

(1) "Department" means the Texas Department of Criminal Justice.

(2) "Penal institution" has the meaning assigned by Article 62.001, Code of Criminal Procedure.

(3) "Wrongfully imprisoned person" has the meaning assigned by Section 501.091, Government Code, as added by Chapter 180 (H.B. 1736), Acts of the 81st Legislature, Regular Session, 2009.

(b) The department shall provide to each wrongfully imprisoned person information, both orally and in writing, that includes:

(1) guidance on how to obtain compensation under this chapter; and

(2) a list of and contact information for nonprofit advocacy groups, identified by the department, that assist wrongfully imprisoned persons in filing claims for compensation under this chapter.

(c) The department must provide the information required under Subsection (b):

(1) at the time of the release of the wrongfully imprisoned person from a penal institution; or

(2) if the wrongfully imprisoned person is not confined in a penal institution, as soon as is practicable after the date of the full pardon or granting of relief on the basis of innocence or actual innocence, respectively.

SECTION 3. Section 501.091, Government Code, as added by Chapter 180 (H.B. 1736), Acts of the 81st Legislature, Regular Session, 2009, is amended by adding Subsection (d-1) to read as follows:

(d-1) The department shall provide information to wrongfully imprisoned persons as required by Section 103.002, Civil Practice and Remedies Code.

SECTION 4. Chapter 103, Civil Practice and Remedies Code, is amended by adding Subchapter C to read as follows:

SUBCHAPTER C. ATTORNEY'S FEES

Sec. 103.101. ATTORNEY'S FEES LIMITED; PREREQUISITES TO FEE AGREEMENT. (a) An attorney may not charge or collect a fee at a rate that exceeds the maximum rate established under Section 103.102 for preparing, filing, or bringing a claimant's application or mandamus action under this chapter.

(b) An attorney may enter into a fee agreement with a claimant for services related to an application or mandamus action under this chapter only after the attorney has disclosed in writing to the claimant the maximum rates for fees established under Section 103.102.

(c) An attorney may not charge or collect a fee for preparing, filing, or bringing a claimant's application or mandamus action under this chapter before a final determination is made by the comptroller or the court, as applicable, that the claimant is eligible or ineligible for compensation under this chapter.

Sec. 103.102. MAXIMUM HOURLY RATES. (a) The comptroller by rule shall establish a maximum hourly rate for an attorney's services related to:

(1) preparing or filing an application under this chapter; and

(2) bringing a mandamus action under this chapter.

(b) In setting the rates under Subsection (a), the comptroller shall consider:

(1) rates charged for similar attorney's services; and

(2) compensation incentives necessary because of the delayed nature of payment of attorney's fees as required by Section 103.101(c).

Sec. 103.103. SUBMISSION OF FEE REPORT. (a) Together with an application for compensation under this chapter or not later than the 14th day after the date the application is filed, an attorney seeking payment for preparing or filing the application must file a fee report with the comptroller's judiciary section.

(b) An attorney seeking payment for bringing a mandamus action under this chapter must file a fee report with the comptroller's judiciary section not later than the 14th day after the date a final court order is issued.

(c) A fee report under this section must include:

(1) a sworn copy of the attorney's fee agreement, signed by the attorney and claimant;

(2) the total dollar amount sought for attorney's fees;

(3) the number of hours the attorney worked preparing, filing, or arguing the application or mandamus action; and

(4) a brief description of work done during those hours.

Sec. 103.104. VIOLATION. An attorney who charges or collects a fee for services described by Section 103.102 in an amount that exceeds a fee computed in accordance with the maximum rate established under that section violates Rule 1.04(a), Texas Disciplinary Rules of Professional Conduct.

SECTION 5. Before January 1, 2012, the comptroller shall establish the maximum hourly rates as provided by Section 103.102, Civil Practice and Remedies Code, as added by this Act.

SECTION 6. Subchapter C, Chapter 103, Civil Practice and Remedies Code, as added by this Act, applies only to an attorney's fee agreement entered into on or after January 1, 2012. An attorney's fee agreement entered into before January 1, 2012, is governed by the law as it existed immediately before the effective date of this Act, and that law is continued in effect for that purpose.

SECTION 7. This Act takes effect September 1, 2011.