87R7604 AJZ-D

By: Dutton H.B. No. 1605

A BILL TO BE ENTITLED

AN ACT

relating to the establishment of the inmate legal services office and to the appointment and compensation of certain legal counsel for certain indigent inmates and other persons in secure correctional facilities.

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

SECTION 1. Subtitle F, Title 2, Government Code, is amended by adding Chapter 78A to read as follows:

CHAPTER 78A. INMATE LEGAL SERVICES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 78A.001. DEFINITIONS. In this chapter:

(1) "Board" means the inmate legal services board of directors established under Subchapter B.

(2) "Office" means the inmate legal services office established under Subchapter C.

SUBCHAPTER B. INMATE LEGAL SERVICES BOARD

Sec. 78A.051. ESTABLISHMENT OF BOARD; DUTIES. (a) The inmate legal services board of directors is established. The provision of inmate legal services under this chapter is governed by the board.

(b) The board shall hire a director for the inmate legal services office as provided by Section 78A.053 when a vacancy exists for the position of director.

Sec. 78A.052. APPOINTMENT AND COMPOSITION OF BOARD. (a) The board is composed of the following nine members to be appointed by the president of the State Bar of Texas, with ratification by the executive committee of the State Bar of Texas:

(1) five attorneys who are employed as executive directors or chief public defenders of a public defender's office, as defined by Article 26.044(a), Code of Criminal Procedure; and

(2) four criminal defense attorneys each of whom:

(A) practices in a county in which there is a confinement facility operated by or under contract with the Texas Department of Criminal Justice; and

(B) has experience representing indigent defendants in this state.

(b) Each member of the board must be a member of the State Bar of Texas and may not be employed as or otherwise performing the functions of a prosecutor or a law enforcement official.

(c) The board shall elect one member of the board to serve as the presiding officer of the board.

(d) Board members serve two-year terms expiring February 1 of each even-numbered year.

(e) The board meets at least annually at the call of the presiding officer of the board.

Sec. 78A.053. APPOINTMENT OF DIRECTOR OF INMATE LEGAL SERVICES OFFICE. (a) The board, by a majority vote, shall hire a director of the inmate legal services office when a vacancy exists for the position of director.

(b) A person hired by the board under Subsection (a):

(1) must be committed to providing quality representation to indigent clients consistent with the principles of a public defense delivery system as established by the American Bar Association;

(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 criminal defense case;

(3) must be a member of the State Bar of Texas;

(4) must have practiced law for at least three years; and

(5) must have substantial experience in the practice of criminal law.

(c) The board shall determine the director's compensation, which must maintain parity with the compensation of the chief of the special prosecution unit under Subchapter E, Chapter 41.

SUBCHAPTER C. INMATE LEGAL SERVICES OFFICE

Sec. 78A.101. ESTABLISHMENT. The inmate legal services office is established and operates under the direction and supervision of the director of the office.

Sec. 78A.102. DIRECTOR; STAFF. (a) The board shall hire a director to direct and supervise the operation of the office as provided by Section 78A.053. The director serves a four-year term and continues to serve until a successor has been hired and qualified. The board may remove the director only for good cause. The director may be retained or rehired 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 and accomplish the purposes 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.

(d) The board shall determine the compensation of office employees, which must maintain parity with the compensation of employees of the special prosecution unit under Subchapter E, Chapter 41.

Sec. 78A.103. POWERS AND DUTIES. (a) The office may not accept an appointment under Article 26.051, Code of Criminal Procedure, or Section 841.005, Health and Safety Code, if:

(1) a conflict of interest exists that has not been waived by the client;

(2) the office has insufficient resources to provide adequate representation for the client;

(3) the office is incapable of providing representation for the client in accordance with the rules of professional conduct;

(4) the acceptance of the appointment would require attorneys at the office to have a caseload that exceeds the maximum allowable caseload established by the office; or

(5) other good cause is shown for not accepting the appointment.

(b) On refusing to accept an appointment, the director shall file with the court a written statement that identifies the reason for the refusal. The court shall determine whether the director has demonstrated adequate good cause for refusing the appointment and shall include the statement with the papers in the case.

(c) A director may not be terminated, removed, or sanctioned for refusing in good faith to accept an appointment under Article 26.051, Code of Criminal Procedure, or Section 841.005, Health and Safety Code.

Sec. 78A.104. 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 Article 26.051(h), Code of Criminal Procedure.

Sec. 78A.105. ACCESS TO CERTAIN FACILITIES, WITNESSES, AND DOCUMENTS FOR INVESTIGATION. Attorneys and investigators employed or retained by the office shall be allowed access to a facility operated by or under contract with the Texas Department of Criminal Justice as necessary to:

(1) confer with a client of the office or witness to an offense alleged to have been committed by a client of the office; or

(2) comply with a court's order.

SECTION 2. Articles 26.051(a), (d), (e), (g), and (h), Code of Criminal Procedure, are amended to read as follows:

(a) In this article:

(1) ["Board" means the Texas Board of Criminal Justice.

[(2)] "Correctional institutions division" means the correctional institutions division of the Texas Department of Criminal Justice.

(2) "Office" means the inmate legal services office established under Subchapter C, Chapter 78A, Government Code.

(d) A court shall:

(1) notify the office [board] if the court [it] determines that a defendant before the court is indigent and is an inmate charged with an offense committed while in the custody of the correctional institutions division or a correctional facility authorized by Section 495.001, Government Code; and

(2) request that the office [board] provide legal representation for the inmate.

(e) The office [board] shall provide legal representation for inmates described by Subsection (d) [of this section]. [The board may employ attorneys, support staff, and any other personnel required to provide legal representation for those inmates. All personnel employed under this article are directly responsible to the board in the performance of their duties.] The office [board] shall pay all fees and costs associated with providing legal representation for those inmates.

(g) The court shall appoint an attorney other than an attorney provided by the office [board] if the court determines for any of the following reasons that a conflict of interest could arise from the use of an attorney provided by the office [board] under Subsection (e) [of this article]:

(1) the case involves more than one inmate and the representation of more than one inmate could impair the attorney's effectiveness;

(2) the case is appealed and the court is satisfied that conflict of interest would prevent the presentation of a good faith allegation of ineffective assistance of counsel by a trial attorney provided by the office [board]; [or]

(3) any conflict of interest exists under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas that precludes representation by an attorney appointed by the office; or

(4) the office refuses to accept the appointment as provided by Section 78A.103(a), Government Code [board].

(h) When the court appoints an attorney other than an attorney provided by the office [board]:

(1) except as otherwise provided by this article, the inmate's legal defense is subject to Articles 1.051, 26.04, 26.05, and 26.052, as applicable; and

(2) the county in which a facility of the correctional institutions division or a correctional facility authorized by Section 495.001, Government Code, is located shall pay from its general fund the total costs of the aggregate amount allowed and awarded by the court for attorney compensation and expenses under Article 26.05 or 26.052, as applicable.

SECTION 3. Section 841.005, Health and Safety Code, is amended to read as follows:

Sec. 841.005. INMATE LEGAL SERVICES OFFICE [OF STATE COUNSEL FOR OFFENDERS]. (a) Except as provided by Subsection (b), the inmate legal services office established under Subchapter C, Chapter 78A, Government Code, [Office of State Counsel for Offenders] shall represent an indigent person subject to a civil commitment proceeding under this chapter.

(b) If for any reason the inmate legal services office [Office of State Counsel for Offenders] is unable to represent an indigent person described by Subsection (a) at a civil commitment proceeding under this chapter, the court shall appoint other counsel to represent the indigent person.

SECTION 4. (a) Not later than December 1, 2021, the president of the State Bar of Texas shall appoint and the executive committee of the State Bar of Texas shall ratify the members of the inmate legal services board of directors as required by Section 78A.052, Government Code, as added by this Act. Notwithstanding the terms of board member service provided by that section, the term of an initial member of the board of directors expires February 1, 2024.

(b) Not later than January 1, 2022, the inmate legal services board of directors shall hire a director for the inmate legal services office as required by Section 78A.053, Government Code, as added by this Act.

SECTION 5. Article 26.051, Code of Criminal Procedure, and Section 841.005, Health and Safety Code, as amended by this Act, apply only to legal representation appointed under those provisions on or after February 1, 2022. Legal representation appointed before February 1, 2022, is governed by the law in effect immediately before the effective date of this Act, and the former law is continued in effect for that purpose.

SECTION 6. (a) On the effective date of this Act, an employee of the Office of State Counsel for Offenders, other than the director of the office, becomes an employee of the inmate legal services office established under Subchapter C, Chapter 78A, Government Code, as added by this Act.

(b) On or after September 1, 2022, the director of the inmate legal services office shall evaluate the performance of each employee described by Subsection (a) of this section and determine whether there is good cause to remove an employee.

SECTION 7. This Act takes effect September 1, 2021.