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A BILL TO BE ENTITLED
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AN ACT
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relating to the appointment of counsel for indigent defendants |
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arrested for, charged with, or taking appeal from a conviction of an |
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assault punishable by fine only. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Articles 1.051(c), (f-1), and (f-2), Code of |
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Criminal Procedure, are amended to read as follows: |
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(c) An indigent defendant is entitled to have an attorney |
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appointed to represent the defendant [him] in any adversary |
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judicial proceeding that may result in punishment by confinement, |
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in any criminal proceeding for an offense under Section 22.01, |
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Penal Code, punishable by fine only, and in any other criminal |
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proceeding if the court concludes that the interests of justice |
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require representation. Except as otherwise provided by this |
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subsection, if an indigent defendant is entitled to and requests |
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appointed counsel and if adversarial judicial proceedings have been |
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initiated against the defendant, a court or the courts' designee |
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authorized under Article 26.04 to appoint counsel for indigent |
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defendants in the county shall appoint counsel as soon as possible, |
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but not later than the end of the third working day after the date on |
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which the court or the courts' designee receives the defendant's |
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request for appointment of counsel. In a county with a population |
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of 250,000 or more, the court or the courts' designee shall appoint |
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counsel as required by this subsection as soon as possible, but not |
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later than the end of the first working day after the date on which |
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the court or the courts' designee receives the defendant's request |
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for appointment of counsel. |
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(f-1) In any adversary judicial proceeding that may result |
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in punishment by confinement or in a criminal proceeding for an |
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offense under Section 22.01, Penal Code, punishable by fine only, |
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the attorney representing the state may not: |
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(1) initiate or encourage an attempt to obtain from a |
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defendant who is not represented by counsel a waiver of the right to |
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counsel; or |
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(2) communicate with a defendant who has requested the |
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appointment of counsel, unless the court or the court's designee |
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authorized under Article 26.04 to appoint counsel for indigent |
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defendants in the county has denied the request and, subsequent to |
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the denial, the defendant: |
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(A) has been given a reasonable opportunity to |
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retain and has failed to retain private counsel; or |
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(B) waives or has waived the opportunity to |
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retain private counsel. |
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(f-2) In any adversary judicial proceeding that may result |
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in punishment by confinement or in a criminal proceeding for an |
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offense under Section 22.01, Penal Code, punishable by fine only, |
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the court may not direct or encourage the defendant to communicate |
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with the attorney representing the state until the court advises |
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the defendant of the right to counsel and the procedure for |
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requesting appointed counsel and the defendant has been given a |
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reasonable opportunity to request appointed counsel. If the |
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defendant has requested appointed counsel, the court may not direct |
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or encourage the defendant to communicate with the attorney |
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representing the state unless the court or the court's designee |
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authorized under Article 26.04 to appoint counsel for indigent |
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defendants in the county has denied the request and, subsequent to |
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the denial, the defendant: |
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(1) has been given a reasonable opportunity to retain |
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and has failed to retain private counsel; or |
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(2) waives or has waived the opportunity to retain |
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private counsel. |
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SECTION 2. Articles 26.04(a), (b), (c), (d), (e), (g), (h), |
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and (k), Code of Criminal Procedure, are amended to read as follows: |
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(a) The judges and magistrates of the county courts, |
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statutory county courts, municipal courts, justice courts, and |
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district courts trying criminal cases in each county, by local |
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rule, shall adopt and publish written countywide procedures for |
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timely and fairly appointing counsel for an indigent defendant in |
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the county arrested for, charged with, or taking an appeal from a |
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conviction of a misdemeanor punishable by confinement, an offense |
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under Section 22.01, Penal Code, punishable by fine only, or a |
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felony. The procedures must be consistent with this article and |
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Articles 1.051, 15.17, 26.05, and 26.052. A court shall appoint an |
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attorney from a public appointment list using a system of rotation, |
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unless the court appoints an attorney under Subsection (f), (f-1), |
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(h), or (i). The court shall appoint attorneys from among the next |
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five names on the appointment list in the order in which the |
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attorneys' names appear on the list, unless the court makes a |
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finding of good cause on the record for appointing an attorney out |
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of order. An attorney who is not appointed in the order in which |
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the attorney's name appears on the list shall remain next in order |
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on the list. |
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(b) Procedures adopted under Subsection (a) shall: |
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(1) authorize only the judges or magistrates of the |
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county courts, statutory county courts, municipal courts, justice |
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courts, and district courts trying criminal cases in the county, or |
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the judges' or magistrates' 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 magistrate or [the judges'] designee of the judge or |
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magistrate 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, with |
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an offense under Section 22.01, Penal Code, punishable by fine |
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only, or with a felony and who appears in court without counsel has |
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an opportunity to confer with appointed counsel before the |
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commencement of 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 requirements under Articles 11.071 and 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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(c) Whenever a court or the courts' designee authorized |
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under Subsection (b) to appoint counsel for indigent defendants in |
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the county determines for purposes of a criminal proceeding that a |
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defendant charged with or appealing a conviction of a felony, [or] a |
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misdemeanor punishable by confinement, or an offense under Section |
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22.01, Penal Code, punishable by fine only is indigent or that the |
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interests of justice require representation of a defendant in the |
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proceeding, the court or the courts' designee shall appoint one or |
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more practicing attorneys to represent the defendant in accordance |
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with this subsection and the procedures adopted under Subsection |
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(a). If the court or the courts' designee determines that the |
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defendant does not speak and understand the English language or |
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that the defendant is deaf, the court or the courts' designee shall |
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make an effort to appoint an attorney who is capable of |
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communicating in a language understood by the defendant. |
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(d) A public appointment list from which an attorney is |
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appointed as required by Subsection (a) shall contain the names of |
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qualified attorneys, each of whom: |
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(1) applies to be included on the list; |
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(2) meets the objective qualifications specified by |
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the judges and magistrates under Subsection (e); |
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(3) meets any applicable qualifications specified by |
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the Texas Indigent Defense Commission; and |
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(4) is approved by a majority of the judges and |
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magistrates who established the appointment list under Subsection |
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(e). |
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(e) In a county in which a court is required under |
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Subsection (a) to appoint an attorney from a public appointment |
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list: |
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(1) the judges and magistrates of the county courts, |
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[and] statutory county courts, municipal courts, and justice courts |
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trying misdemeanor cases in the county, by formal action: |
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(A) shall: |
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(i) establish a public appointment list of |
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attorneys qualified to provide representation in the county in |
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misdemeanor cases punishable by confinement and in misdemeanor |
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assaults punishable by fine only; and |
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(ii) specify the objective qualifications |
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necessary for an attorney to be included on the list; and |
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(B) may establish, if determined by the judges |
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and magistrates to be appropriate, more than one appointment list |
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graduated according to the degree of seriousness of the offense, |
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the attorneys' qualifications, and whether representation will be |
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provided in trial court proceedings, appellate proceedings, or |
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both; and |
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(2) the judges of the district courts trying felony |
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cases in the county, by formal action: |
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(A) shall: |
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(i) establish a public appointment list of |
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attorneys qualified to provide representation in felony cases in |
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the county; and |
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(ii) specify the objective qualifications |
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necessary for an attorney to be included on the list; and |
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(B) may establish, if determined by the judges to |
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be appropriate, more than one appointment list graduated according |
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to the degree of seriousness of the offense, the attorneys' |
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qualifications, and whether representation will be provided in |
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trial court proceedings, appellate proceedings, or both. |
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(g) A countywide alternative program for appointing counsel |
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for indigent defendants in criminal cases is established by a |
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formal action in which two-thirds of the judges and magistrates of |
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the courts designated under this subsection vote to establish the |
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alternative program. An alternative program for appointing |
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counsel in misdemeanor and felony cases may be established in the |
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manner provided by this subsection by the judges of the county |
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courts, statutory county courts, and district courts trying |
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criminal cases in the county. An alternative program for |
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appointing counsel in misdemeanor cases may be established in the |
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manner provided by this subsection by the judges and magistrates of |
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the county courts, [and] statutory county courts, municipal courts, |
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and justice courts trying criminal cases in the county. An |
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alternative program for appointing counsel in felony cases may be |
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established in the manner provided by this subsection by the judges |
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of the district courts trying criminal cases in the county. In a |
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county in which an alternative program is established: |
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(1) the alternative program may: |
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(A) use a single method for appointing counsel or |
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a combination of methods; and |
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(B) use a multicounty appointment list using a |
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system of rotation; and |
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(2) the procedures adopted under Subsection (a) must |
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ensure that: |
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(A) attorneys appointed using the alternative |
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program to represent defendants in misdemeanor cases punishable by |
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confinement: |
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(i) meet specified objective |
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qualifications for that representation, which may be graduated |
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according to the degree of seriousness of the offense and whether |
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representation will be provided in trial court proceedings, |
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appellate proceedings, or both; and |
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(ii) are approved by a majority of the |
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judges and magistrates of the county courts, [and] statutory county |
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courts, municipal courts, and justice courts trying misdemeanor |
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cases in the county; |
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(B) attorneys appointed using the alternative |
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program to represent defendants in felony cases: |
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(i) meet specified objective |
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qualifications for that representation, which may be graduated |
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according to the degree of seriousness of the offense and whether |
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representation will be provided in trial court proceedings, |
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appellate proceedings, or both; and |
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(ii) are approved by a majority of the |
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judges of the district courts trying felony cases in the county; |
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(C) appointments for defendants in capital cases |
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in which the death penalty is sought comply with the requirements of |
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Article 26.052; and |
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(D) appointments are reasonably and impartially |
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allocated among qualified attorneys. |
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(h) In a county in which an alternative program for |
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appointing counsel is established as provided by Subsection (g) and |
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is approved by the presiding judge of the administrative judicial |
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region, a court or the courts' designee may appoint an attorney to |
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represent an indigent defendant by using the alternative program. |
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In establishing an alternative program under Subsection (g), the |
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judges and magistrates of the courts establishing the program may |
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not, without the approval of the commissioners court, obligate the |
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county by contract or by the creation of new positions that cause an |
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increase in expenditure of county funds. |
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(k) A court may replace an attorney who violates Subsection |
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(j)(1) with other counsel. A majority of the judges and magistrates |
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of the county courts, [and] statutory county courts, municipal |
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courts, and justice courts or of the district courts, as |
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appropriate, trying criminal cases in the county may remove from |
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consideration for appointment an attorney who intentionally or |
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repeatedly violates Subsection (j)(1). |
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SECTION 3. Articles 26.05(b), (c), and (e), Code of |
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Criminal Procedure, are amended to read as follows: |
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(b) All payments made under this article shall be paid in |
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accordance with a schedule of fees adopted by formal action of the |
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judges and magistrates of the county courts, statutory county |
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courts, municipal courts, justice courts, and district courts |
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trying criminal cases in each county. On adoption of a schedule of |
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fees as provided by this subsection, a copy of the schedule shall be |
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sent to the commissioners court of the county. |
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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 or magistrate presiding over the proceedings |
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or, if the county operates a managed assigned counsel program under |
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Article 26.047, to the director of the program, and until the judge, |
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magistrate, or director, as applicable, approves the payment. If |
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the judge, magistrate, or director disapproves the requested amount |
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of payment, the judge, magistrate, or director shall make written |
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findings stating the amount of payment that the judge, magistrate, |
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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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(e) A majority of the judges and magistrates of the county |
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courts, [and] statutory county courts, municipal courts, and |
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justice courts or of the district courts, as appropriate, trying |
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criminal cases in the county may remove an attorney from |
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consideration for appointment if, after a hearing, it is shown that |
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the attorney submitted a claim for legal services not performed by |
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the attorney. |
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SECTION 4. Sections 79.001(6) and (10), Government Code, |
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are amended to read as follows: |
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(6) "Crime" means: |
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(A) an offense under Section 22.01, Penal Code, |
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punishable by fine only; |
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(B) a misdemeanor punishable by confinement; or |
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(C) [(B)] a felony. |
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(10) "Juvenile offense" means conduct committed by a |
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person while younger than 17 years of age that constitutes: |
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(A) an offense under Section 22.01, Penal Code, |
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punishable by fine only; |
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(B) a misdemeanor punishable by confinement; or |
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(C) [(B)] a felony. |
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SECTION 5. The change in law made by this Act applies only |
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to a defendant arrested for, charged with, or taking an appeal from |
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a conviction of an offense under Section 22.01, Penal Code, |
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punishable by fine only on or after the effective date of this Act, |
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regardless of whether the offense that was the subject of the |
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arrest, charge, or conviction was committed before, on, or after |
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that date. |
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SECTION 6. This Act takes effect September 1, 2015. |