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A BILL TO BE ENTITLED
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AN ACT
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relating to appointing a court attorney using the Texas Indigent |
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Defense software |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Article 26.04, Chapter 26, Title 1, Code of |
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Criminal Procedure is amended to read as follows: |
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Art. 26.04. PROCEDURES FOR APPOINTING COUNSEL (a) The |
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judges of the county courts, statutory county courts, and district |
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courts trying criminal cases in each county, by local rule, shall |
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adopt and publish written countywide procedures for timely and |
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fairly appointing counsel for an indigent defendant in the county |
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arrested for, charged with, or taking an appeal from a conviction of |
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a misdemeanor punishable by confinement or a felony. The procedures |
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must be consistent with this article and Articles 1.051, 15.17, |
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15.18, 26.05, and 26.052 and must provide for the priority |
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appointment of a public defender's office as described by |
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Subsection (f). A court shall appoint an attorney from a public |
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appointment list using a system of rotation, unless the court |
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appoints an attorney under Subsection (f), (f-1), (h), or (i). The |
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court shall appoint attorneys using the method of appointment in |
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the Indigent Defense software approved by the Texas Indigent |
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Defense Commission or from among the next five names on the |
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appointment list in the order in which the attorneys' names appear |
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on the list, unless the court makes a finding of good cause on the |
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record or in the appointment system for appointing an attorney out |
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of order. An attorney who is not appointed in the order in which the |
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attorney's name appears on the list shall remain next in order on |
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the list. |
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(b) Procedures adopted under Subsection (a) shall: |
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(1) authorize only the judges of the county courts, |
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statutory county courts, and district courts trying criminal cases |
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in the county, or the judges' 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 the judges' designee 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 or with |
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a felony and who appears in court without counsel has an opportunity |
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to confer with appointed counsel before the commencement of |
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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 or pursuant to section (f) below to represent an |
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indigent defendant perform the attorney's duty owed to the |
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defendant in accordance with the adopted procedures, the |
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requirements of this code, and applicable 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 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 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 who |
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established the appointment list under Subsection (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 of the county courts and statutory |
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county courts trying misdemeanor cases in the county, by formal |
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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 |
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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; 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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(f) In a county with a public defender's office, the court |
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or the courts' designee may appoint from the public defender's |
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office. The courts shall determine qualifications for appointment |
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of the public defender pursuant to section (d) above. Section (d) |
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above also applies to including a proceeding in a capital murder |
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case except a public defender who is appointed to represent a |
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defendant in a death penalty case must also meet the qualifications |
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of Article 26.052.However, the court is not required to appoint the |
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public defender's office if: |
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(1) the court makes a finding of good cause for |
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appointing other counsel, provided that in a capital murder case, |
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the court makes a finding of good cause on the record for appointing |
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that counsel; |
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(2) the appointment would be contrary to the office's |
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written plan under Article 26.044; |
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(3) the office is prohibited from accepting the |
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appointment under Article 26.044(j); or |
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(4) a managed assigned counsel program also exists in |
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the county and an attorney will be appointed under that program. |
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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 the guidelines established for the |
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program. |
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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 of the courts |
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designated under this subsection vote to establish the alternative |
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program. An alternative program for appointing counsel in |
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misdemeanor and felony cases may be established in the manner |
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provided by this subsection by the judges of the county courts, |
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statutory county courts, and district courts trying criminal cases |
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in the county. An alternative program for appointing counsel in |
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misdemeanor cases may be established in the manner provided by this |
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subsection by the judges of the county courts and statutory county |
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courts trying criminal cases in the county. An alternative program |
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for appointing counsel in felony cases may be established in the |
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manner provided by this subsection by the judges of the district |
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courts trying criminal cases in the county. In a county in which an |
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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 of the county courts and statutory county courts trying |
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misdemeanor 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) Subject to Subsection (f), In a county in which an |
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alternative program for appointing counsel is established as |
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provided by Subsection (g) and is approved by the presiding judge of |
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the administrative judicial region, a court or the courts' designee |
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may appoint an attorney to represent an indigent defendant by using |
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the alternative program. In establishing an alternative program |
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under Subsection (g), the judges of the courts establishing the |
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program may not, without the approval of the commissioners court, |
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obligate the county by contract or by the creation of new positions |
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that cause an increase in expenditure of county funds. |
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(i) Subject to Subsection (f), A court or the courts' |
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designee required under Subsection (c) to appoint an attorney to |
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represent a defendant accused or convicted of a felony may appoint |
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an attorney from any county located in the court's administrative |
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judicial region. |
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(j) An attorney appointed under this article shall: |
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(1) make every reasonable effort to contact the |
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defendant not later than the end of the first working day after the |
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date on which the attorney is appointed and to interview the |
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defendant as soon as practicable after the attorney is appointed; |
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(2) represent the defendant until charges are |
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dismissed, the defendant is acquitted, appeals are exhausted, or |
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the attorney is permitted or ordered by the court to withdraw as |
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counsel for the defendant after a finding of good cause is entered |
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on the record; |
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(3) with respect to a defendant not represented by |
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other counsel, before withdrawing as counsel for the defendant |
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after a trial or the entry of a plea of guilty: |
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(A) advise the defendant of the defendant's right |
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to file a motion for new trial and a notice of appeal; |
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(B) if the defendant wishes to pursue either or |
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both remedies described by Paragraph (A), assist the defendant in |
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requesting the prompt appointment of replacement counsel; and |
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(C) if replacement counsel is not appointed |
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promptly and the defendant wishes to pursue an appeal, file a timely |
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notice of appeal; and |
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(4) not later than October 15 of each year and on a |
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form prescribed by the Texas Indigent Defense Commission, submit to |
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the county information, for the preceding fiscal year, that |
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describes the percentage of the attorney's practice time that was |
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dedicated to work based on appointments accepted in the county |
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under this article and Title 3, Family Code. |
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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 of the county |
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courts and statutory county courts or 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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(l) Procedures adopted under Subsection (a) must include |
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procedures and financial standards for determining whether a |
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defendant is indigent. The procedures and standards shall apply to |
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each defendant in the county equally, regardless of whether the |
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defendant is in custody or has been released on bail. |
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(m) In determining whether a defendant is indigent, the |
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court or the courts' designee may consider the defendant's income, |
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source of income, assets, property owned, outstanding obligations, |
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necessary expenses, the number and ages of dependents, and spousal |
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income that is available to the defendant. The court or the courts' |
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designee may not consider whether the defendant has posted or is |
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capable of posting bail, except to the extent that it reflects the |
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defendant's financial circumstances as measured by the |
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considerations listed in this subsection. |
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(n) A defendant who requests a determination of indigency |
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and appointment of counsel shall: |
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(1) complete under oath a questionnaire concerning his |
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financial resources; |
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(2) respond under oath to an examination regarding his |
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financial resources by the judge or magistrate responsible for |
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determining whether the defendant is indigent; or |
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(3) complete the questionnaire and respond to |
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examination by the judge or magistrate. |
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(o) Before making a determination of whether a defendant is |
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indigent, the court shall request the defendant to sign under oath a |
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statement substantially in the following form: |
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"On this ____________ day of _______________________, 20_____, I |
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have been advised by the (name of the court) Court of my right to |
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representation by counsel in connection with the charge pending |
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against me. I am without means to employ counsel of my own choosing |
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and I hereby request the court to appoint counsel for me. (signature |
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of the defendant)" |
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(p) A defendant who is determined by the court to be |
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indigent is presumed to remain indigent for the remainder of the |
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proceedings in the case unless a material change in the defendant's |
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financial circumstances occurs. If there is a material change in |
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financial circumstances after a determination of indigency or |
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nonindigency is made, the defendant, the defendant's counsel, or |
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the attorney representing the state may move for reconsideration of |
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the determination. |
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(q) A written or oral statement elicited under this article |
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or evidence derived from the statement may not be used for any |
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purpose, except to determine the defendant's indigency or to |
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impeach the direct testimony of the defendant. This subsection does |
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not prohibit prosecution of the defendant under Chapter 37, Penal |
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Code. |
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(r) A court may not threaten to arrest or incarcerate a |
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person solely because the person requests the assistance of |
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counsel. |
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SECTION 2. This Act takes effect September 1, 2021. |