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A BILL TO BE ENTITLED
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AN ACT
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relating to the creation of managed assigned counsel programs. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Article 26.04, Code of Criminal Procedure, is |
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amended by amending Subsection (a) and adding Subsection (f-1) to |
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read as follows: |
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(a) The judges of the county courts, statutory county |
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courts, and district courts trying criminal cases in each county, |
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by local rule, shall adopt and publish written countywide |
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procedures for timely and fairly appointing counsel for an indigent |
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defendant in the county arrested for or charged with a misdemeanor |
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punishable by confinement or a felony. The procedures must be |
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consistent with this article and Articles 1.051, 15.17, 26.05, and |
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26.052. A court shall appoint an attorney from a public appointment |
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list using a system of rotation, unless the court appoints an |
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attorney under Subsection (f), (f-1), (h), or (i). The court shall |
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appoint attorneys from among the next five names on the appointment |
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list in the order in which the attorneys' names appear on the list, |
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unless the court makes a finding of good cause on the record for |
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appointing an attorney out of order. An attorney who is not |
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appointed in the order in which the attorney's name appears on the |
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list shall remain next in order on the list. |
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(f-1) In a county in which a managed assigned counsel |
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program is operated in accordance with Article 26.047, the managed |
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assigned counsel program may appoint counsel to represent the |
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defendant in accordance with guidelines established for the |
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program. |
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SECTION 2. Chapter 26, Code of Criminal Procedure, is |
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amended by adding Article 26.047 to read as follows: |
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Art. 26.047. MANAGED ASSIGNED COUNSEL PROGRAM. (a) In |
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this article: |
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(1) "Governmental entity" has the meaning assigned by |
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Article 26.044. |
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(2) "Managed assigned counsel program" or "program" |
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means a program operated with public funds: |
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(A) by a governmental entity, nonprofit |
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corporation, or bar association under a written agreement with a |
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governmental entity, other than an individual judge or court; and |
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(B) for the purpose of appointing counsel under |
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Article 26.04 or Section 51.10, Family Code. |
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(b) The commissioners court of any county, on written |
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approval of a judge of the juvenile court of a county or a county |
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court, statutory county court, or district court trying criminal |
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cases in the county, may appoint a governmental entity, nonprofit |
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corporation, or bar association to operate a managed assigned |
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counsel program. The commissioners courts of two or more counties |
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may enter into a written agreement to jointly appoint and fund a |
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governmental entity, nonprofit corporation, or bar association to |
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operate a managed assigned counsel program. In appointing an |
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entity to operate a managed assigned counsel program under this |
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subsection, the commissioners court shall specify or the |
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commissioners courts shall jointly specify: |
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(1) the types of cases in which the program may appoint |
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counsel under Article 26.04 or Section 51.10, Family Code, and the |
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courts in which the counsel appointed by the program may be required |
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to appear; and |
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(2) the term of any agreement establishing a program |
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and how the agreement may be terminated or renewed. |
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(c) The commissioners court or commissioners courts shall |
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require a written plan of operation from an entity operating a |
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program under this article. The plan of operation must include: |
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(1) a budget for the program, including salaries; |
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(2) a description of each personnel position, |
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including the program's director; |
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(3) the maximum allowable caseload for each attorney |
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appointed by the program; |
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(4) provisions for training personnel of the program |
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and attorneys appointed under the program; |
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(5) a description of anticipated overhead costs for |
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the program; |
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(6) a policy regarding licensed investigators and |
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expert witnesses used by attorneys appointed under the program; |
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(7) a policy to ensure that appointments are |
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reasonably and impartially allocated among qualified attorneys; |
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and |
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(8) a policy to ensure that an attorney appointed |
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under the program does not accept appointment in a case that |
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involves a conflict of interest for the attorney that has not been |
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waived by all affected clients. |
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(d) A program under this article must have a director. |
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Unless the program uses a review committee appointed under |
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Subsection (e), a program under this article must be directed by a |
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person who: |
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(1) is a member of the State Bar of Texas; |
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(2) has practiced law for at least three years; and |
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(3) has substantial experience in the practice of |
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criminal law. |
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(e) The governmental entity, nonprofit corporation, or bar |
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association appointed under Subsection (b) may appoint a review |
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committee of three or more individuals to appoint attorneys to the |
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program's public appointment list described by Subsection (f). |
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Each member of the committee: |
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(1) must meet the requirements described by Subsection |
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(d); |
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(2) may not be employed as a prosecutor; and |
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(3) may not be included on or apply for inclusion on |
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the public appointment list described by Subsection (f). |
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(f) The program's public appointment list from which an |
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attorney is appointed must contain the names of qualified |
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attorneys, each of whom: |
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(1) applies to be included on the list; |
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(2) meets any applicable requirements specified by the |
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procedure for appointing counsel adopted under Article 26.04(a) and |
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the Task Force on Indigent Defense; and |
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(3) is approved by the program director or review |
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committee, as applicable. |
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(g) A court may replace an attorney appointed by the program |
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for the same reasons and in the same manner described by Article |
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26.04(k). |
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(h) A managed assigned counsel program is entitled to |
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receive funds for personnel costs and expenses incurred in amounts |
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fixed by the commissioners court and paid out of the appropriate |
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county fund, or jointly fixed by the commissioners courts and |
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proportionately paid out of each appropriate county fund if the |
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program serves more than one county. |
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(i) A managed assigned counsel program may employ personnel |
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and enter into contracts necessary to perform the program's duties |
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as specified by the commissioners court or commissioners courts |
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under this article. |
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SECTION 3. Subsection (c), Article 26.05, Code of Criminal |
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Procedure, is amended to read as follows: |
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(c) Each fee schedule adopted shall state reasonable fixed |
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rates or minimum and maximum hourly rates, taking into |
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consideration reasonable and necessary overhead costs and the |
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availability of qualified attorneys willing to accept the stated |
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rates, and shall provide a form for the appointed counsel to itemize |
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the types of services performed. No payment shall be made under |
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this article until the form for itemizing the services performed is |
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submitted to the judge presiding over the proceedings or, if the |
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county operates a managed assigned counsel program under Article |
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26.047, the director of the program, and the judge or director, as |
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applicable, approves the payment. If the judge or director |
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disapproves the requested amount of payment, the judge or director |
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shall make written findings stating the amount of payment that the |
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judge or director approves and each reason for approving an amount |
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different from the requested amount. An attorney whose request for |
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payment is disapproved or is not otherwise acted on by the 60th day |
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after the date the request for payment is submitted may appeal the |
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disapproval or failure to act by filing a motion with the presiding |
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judge of the administrative judicial region. On the filing of a |
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motion, the presiding judge of the administrative judicial region |
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shall review the disapproval of payment or failure to act and |
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determine the appropriate amount of payment. In reviewing the |
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disapproval or failure to act, the presiding judge of the |
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administrative judicial region may conduct a hearing. Not later |
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than the 45th day after the date an application for payment of a fee |
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is submitted under this article, the commissioners court shall pay |
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to the appointed counsel the amount that is approved by the |
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presiding judge of the administrative judicial region and that is |
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in accordance with the fee schedule for that county. |
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SECTION 4. Section 71.001, Government Code, is amended by |
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adding Subdivision (8-a) to read as follows: |
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(8-a) "Managed assigned counsel program" has the |
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meaning assigned by Article 26.047, Code of Criminal Procedure. |
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SECTION 5. Subsection (a), Section 71.060, Government Code, |
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is amended to read as follows: |
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(a) The Task Force on Indigent Defense shall develop |
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policies and standards for providing legal representation and other |
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defense services to indigent defendants at trial, on appeal, and in |
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postconviction proceedings. The policies and standards may |
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include: |
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(1) performance standards for counsel appointed to |
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represent indigent defendants; |
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(2) qualification standards under which attorneys may |
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qualify for appointment to represent indigent defendants, |
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including: |
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(A) qualifications commensurate with the |
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seriousness of the nature of the proceeding; |
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(B) qualifications appropriate for |
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representation of mentally ill defendants and noncitizen |
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defendants; |
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(C) successful completion of relevant continuing |
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legal education programs approved by the council; and |
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(D) testing and certification standards; |
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(3) standards for ensuring appropriate appointed |
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caseloads for counsel appointed to represent indigent defendants; |
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(4) standards for determining whether a person accused |
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of a crime or juvenile offense is indigent; |
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(5) policies and standards governing the organization |
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and operation of an assigned counsel program; |
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(6) policies and standards governing the organization |
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and operation of a public defender consistent with recognized |
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national policies and standards; |
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(7) standards for providing indigent defense services |
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under a contract defender program consistent with recognized |
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national policies and standards; |
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(8) standards governing the reasonable compensation |
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of counsel appointed to represent indigent defendants; |
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(9) standards governing the availability and |
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reasonable compensation of providers of indigent defense support |
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services for counsel appointed to represent indigent defendants; |
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(10) standards governing the operation of a legal |
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clinic or program that provides legal services to indigent |
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defendants and is sponsored by a law school approved by the supreme |
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court; |
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(11) policies and standards governing the appointment |
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of attorneys to represent children in proceedings under Title 3, |
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Family Code; [and] |
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(12) policies and standards governing the |
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organization and operation of a managed assigned counsel program |
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consistent with nationally recognized policies and standards; and |
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(13) other policies and standards for providing |
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indigent defense services as determined by the task force to be |
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appropriate. |
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SECTION 6. This Act takes effect September 1, 2011. |