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A BILL TO BE ENTITLED
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AN ACT
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relating to indigent defense. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Article 11.074, Code of Criminal Procedure, is |
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amended by amending Subsection (b) and adding Subsection (b-1) to |
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read as follows: |
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(b) If at any time the state represents to the convicting |
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court that an eligible indigent defendant under Article 1.051 has |
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under a writ of habeas corpus a potentially meritorious claim for |
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relief from a judgment described by Subsection (a) [who was |
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sentenced or had a sentence suspended is not guilty, is guilty of |
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only a lesser offense, or was convicted or sentenced under a law |
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that has been found unconstitutional by the court of criminal |
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appeals or the United States Supreme Court], the court shall |
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appoint an attorney to investigate the claim and represent the |
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indigent defendant for purposes of filing an application for a writ |
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of habeas corpus, if an application has not been filed, or to |
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otherwise represent the indigent defendant in a proceeding based on |
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the application for the writ. |
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(b-1) For purposes of Subsection (b), a potentially |
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meritorious claim is any claim the court determines is likely to |
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provide relief, including a claim that the defendant: |
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(1) is or may be actually innocent of the offense; |
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(2) is or may be guilty of only a lesser offense; |
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(3) was or may have been convicted or sentenced under a |
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law that has been found unconstitutional by the court of criminal |
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appeals or the United States Supreme Court; or |
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(4) was or may have been convicted or sentenced in |
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violation of the constitution of this state or the United States. |
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SECTION 2. The change in law made by this Act relating to |
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the application of writ of habeas corpus applies regardless of |
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whether the offense for which the applicant is in custody was |
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committed before, on, or after the effective date of this Act. |
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SECTION 3. Articles 15.17(a) and (f), Code of Criminal |
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Procedure, are amended to read as follows: |
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(a) (1) In each case enumerated in this Code, the person |
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making the arrest or the person having custody of the person |
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arrested shall without unnecessary delay, but not later than 48 |
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hours after the person is arrested, take the person arrested or have |
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the person [him] taken before some magistrate of the county where |
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the person [accused] was arrested or, to provide more expeditiously |
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to the person arrested the warnings described by this article, |
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before a magistrate in any other county of this state. The arrested |
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person may be taken before the magistrate in person or the image and |
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sound of the arrested person may be presented to the magistrate by |
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means of a videoconference. For purposes of this subsection, |
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"videoconference" means a two-way electronic communication of |
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image and sound between the arrested person and the magistrate and |
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includes secure Internet videoconferencing. |
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(2) The magistrate shall inform in clear language the |
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person arrested, either in person or through a videoconference, of: |
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(A) the accusation against the person [him] and |
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of any affidavit filed with the accusation; |
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(B) the person's [therewith, of his] right to |
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retain counsel; |
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(C) the person's [, of his] right to remain |
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silent and to not make a statement; |
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(D) the fact that any statement the person makes |
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may be used against the person; |
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(E) the person's [, of his] right to have an |
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attorney present during any interview with peace officers or |
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attorneys representing the state; |
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(F) the person's [, of his] right to terminate |
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the interview at any time; |
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(G) the person's [, and of his] right to have an |
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examining trial; |
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(H) [. The magistrate shall also inform the |
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person arrested of] the person's right to request the appointment |
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of counsel if the person cannot afford counsel; and |
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(I) [. The magistrate shall inform the person |
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arrested of] the procedures for requesting appointment of counsel. |
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(3) If the person does not speak and understand the |
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English language or is deaf, the magistrate shall inform the person |
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in a manner consistent with Articles 38.30 and 38.31, as |
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appropriate. |
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(4) If the proceeding is conducted through a |
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videoconference, the magistrate shall ensure that the arrested |
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person is able to connect to and understand the image and sound of |
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the videoconference. |
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(5) If the magistrate has reasonable cause to believe |
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that the arrested person has a mental illness or is a person with an |
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intellectual disability, the magistrate shall follow the |
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procedures under Article 16.22. |
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(6) If the magistrate is unable to ensure that the |
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arrested person is able to understand and participate in the |
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proceeding, the magistrate shall: |
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(A) if the magistrate has appointing authority, |
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appoint counsel for the person; or |
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(B) if the magistrate does not have appointing |
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authority, notify the appointing authority of the person's |
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inability to understand and participate in the proceeding. |
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(7) The magistrate shall ensure that reasonable |
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assistance in completing the necessary forms for requesting |
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appointment of counsel is provided to the arrested person at the |
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same time the person is informed of the person's rights under this |
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subsection. |
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(8) If the arrested person [arrested] is indigent and |
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requests appointment of counsel and if the magistrate is authorized |
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under Article 26.04 to appoint counsel for indigent defendants in |
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the county, the magistrate shall appoint counsel in accordance with |
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Article 1.051. If the magistrate is not authorized to appoint |
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counsel, the magistrate shall without unnecessary delay, but not |
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later than 24 hours after the arrested person [arrested] requests |
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appointment of counsel, transmit, or cause to be transmitted to the |
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court or to the courts' designee authorized under Article 26.04 to |
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appoint counsel in the county, the necessary forms for requesting |
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and ruling on the appointment of counsel. [The magistrate shall |
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also inform the person arrested that he is not required to make a |
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statement and that any statement made by him may be used against |
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him.] |
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(9) The magistrate shall allow the arrested person |
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[arrested] reasonable time and opportunity to consult counsel and |
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shall, after determining whether the person is currently on bail |
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for a separate criminal offense, admit the person [arrested] to |
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bail if allowed by law. |
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(10) A record of the communication between the |
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arrested person and the magistrate shall be made. [The record shall |
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be preserved until the earlier of the following dates: |
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[(1) the date on which the pretrial hearing ends; or |
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[(2) the 91st day after the date on which the record is |
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made if the person is charged with a misdemeanor or the 120th day |
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after the date on which the record is made if the person is charged |
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with a felony. For purposes of this subsection, "videoconference" |
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means a two-way electronic communication of image and sound between |
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the arrested person and the magistrate and includes secure Internet |
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videoconferencing.] |
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(f) A record required under Subsection (a) or (e) may |
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consist of written forms, electronic recordings, or other |
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documentation as authorized by procedures adopted in the county |
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under Article 26.04(a). The record must be retained for at least |
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three years after final judgment is entered in the case or the |
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proceedings are otherwise terminated. The counsel for the defendant |
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may obtain a copy of the record on payment of a reasonable amount to |
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cover the costs of reproduction or, if the defendant is indigent, |
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the court shall provide a copy to the defendant without charging a |
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cost for the copy. |
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SECTION 4. The change in law made by this Act applies only |
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to a person who is arrested on or after the effective date of this |
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Act. A person arrested before the effective date of this Act is |
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governed by the law in effect immediately before the effective date |
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of this Act, and the former law is continued in effect for that |
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purpose. |
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SECTION 5. Article 26.05, Code of Criminal Procedure, is |
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amended by amending Subsection (d) and adding Subsection (d-1) to |
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read as follows: |
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(d) A counsel in a noncapital case, other than an attorney |
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with a public defender's office, appointed to represent a defendant |
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under this code shall be reimbursed for reasonable and necessary |
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expenses, including expenses for: |
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(1) investigation; |
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(2) [and for] mental health and other experts; and |
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(3) if the defendant is imprisoned in a correctional |
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facility located more than 50 miles from the court in which the |
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defendant's proceeding is pending: |
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(A) travel to the defendant's location for a |
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confidential interview; or |
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(B) any costs associated with remotely |
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conducting a confidential interview with the defendant. |
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(d-1) Expenses under Subsection (d) incurred with prior |
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court approval shall be reimbursed in the same manner provided for |
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capital cases by Articles 26.052(f) and (g), and expenses under |
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that subsection incurred without prior court approval shall be |
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reimbursed in the manner provided for capital cases by Article |
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26.052(h). |
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SECTION 6. The change in law made by this Act applies only |
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to expenses incurred on or after the effective date of this Act. |
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SECTION 7. Article 26.047(a), Code of Criminal Procedure, |
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is amended by amending Subdivision (2) and adding Subdivision (3) |
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to read as follows: |
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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 26.052 of this code or Section 51.10, Family Code; |
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and |
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(C) for the purpose of appointing or providing an |
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investigator, expert, or other support services for appointed |
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counsel or indigent defendants. |
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(3) "Oversight board" means an oversight board |
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established under Article 26.048. |
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SECTION 8. Articles 26.047(b) and (f), Code of Criminal |
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Procedure, are amended to read as follows: |
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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 26.052 of this code or Section 51.10, |
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Family Code, and the courts in which the counsel appointed by the |
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program may be required 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; and |
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(3) if an oversight board is established under Article |
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26.048 for the managed assigned counsel program, the powers and |
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duties that have been delegated to the oversight board. |
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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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procedures [procedure] for appointing counsel adopted under |
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Article 26.04(a) or provided under Article 26.052 and any other |
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requirements specified by the Texas Indigent Defense Commission; |
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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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SECTION 9. Chapter 26, Code of Criminal Procedure, is |
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amended by adding Article 26.048 to read as follows: |
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Art. 26.048. MANAGED ASSIGNED COUNSEL OVERSIGHT BOARD. (a) |
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The commissioners court of a county or the commissioners courts of |
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two or more counties may establish an oversight board for a managed |
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assigned counsel program established in accordance with this |
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chapter. |
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(b) The commissioners court or courts that establish an |
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oversight board under this article shall appoint members of the |
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board. The following persons participating in the criminal justice |
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system may not serve on the board: |
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(1) a criminal trial judge; |
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(2) a prosecutor; |
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(3) an attorney who receives appointments through the |
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managed assigned counsel program; or |
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(4) a peace officer. |
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(c) The commissioners court or courts may delegate to the |
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board any power or duty of the commissioners court to provide |
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oversight of the program under Article 26.047, including: |
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(1) recommending selection and removal of a director; |
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(2) setting policy for the program; and |
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(3) developing a budget proposal for the program. |
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(d) An oversight board established under this article may |
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not gain access to privileged or confidential communication. |
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SECTION 10. Article 26.052, Code of Criminal Procedure, is |
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amended by amending Subsections (b) and (e) and adding Subsections |
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(b-1), (b-2), and (b-3) to read as follows: |
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(b) If a county is served by a public defender's office, |
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trial counsel and counsel for direct appeal or to apply for a writ |
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of certiorari may be appointed as provided by the guidelines |
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established by the public defender's office. [In all other cases in |
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which the death penalty is sought, counsel shall be appointed as |
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provided by this article.] |
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(b-1) If a county is served by a managed assigned counsel |
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program, trial counsel and counsel for direct appeal or to apply for |
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a writ of certiorari may be appointed as provided by the written |
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plan of operation for the managed assigned counsel program. An |
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attorney appointed by a managed assigned counsel program in a death |
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penalty case must be on the list of attorneys qualified for |
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appointment in death penalty cases in the administrative judicial |
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region in which the managed assigned counsel program operates. |
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(b-2) If a county is served by a public defender's office |
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and a managed assigned counsel program, subject to Articles |
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26.04(f)(1), (2), and (3), the presiding judge of the district |
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court in which a capital felony is filed shall give priority in |
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appointing counsel from the public defender's office. |
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(b-3) In a county not served by a public defender's office |
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or a managed assigned counsel program, counsel shall be appointed |
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as provided by this article in each case in which the death penalty |
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is sought. |
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(e) The presiding judge of the district court in which a |
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capital felony case is filed or the managed assigned counsel |
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program, if authorized by this article, shall appoint two |
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attorneys[, at least one of whom must be qualified under this |
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chapter,] to represent an indigent defendant as soon as practicable |
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after charges are filed, unless the state gives notice in writing |
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that the state will not seek the death penalty. At least one of the |
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attorneys must be qualified under this chapter. |
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SECTION 11. Sections 79.014(a) and (b), Government Code, |
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are amended to read as follows: |
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(a) The governor shall appoint with the advice and consent |
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of the senate seven [five] members of the board as follows: |
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(1) one member who is a district judge serving as a |
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presiding judge of an administrative judicial region; |
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(2) one member who is a judge of a constitutional |
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county court or who is a county commissioner; |
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(3) one member who is a practicing criminal defense |
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attorney; |
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(4) one member who is a chief public defender in this |
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state [or the chief public defender's designee, who must be an |
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attorney employed by the public defender's office]; [and] |
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(5) one member who is a judge of a constitutional |
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county court or who is a county commissioner of a county with a |
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population of 250,000 or more; |
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(6) one member who is a director of a managed assigned |
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counsel program in this state; and |
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(7) one member who is a justice of the peace, municipal |
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court judge, or appointed magistrate under Article 2.09, Code of |
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Criminal Procedure, whose regular duties include presiding over |
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hearings under Article 15.17, Code of Criminal Procedure. |
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(b) The board members serve staggered terms of two years, |
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with three [two] members' terms expiring February 1 of each |
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odd-numbered year and four [three] members' terms expiring February |
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1 of each even-numbered year. |
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SECTION 12. Sections 79.016(a) and (c), Government Code, |
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are amended to read as follows: |
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(a) A board member who is a chief public defender or a |
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director of a managed assigned counsel program for [or an attorney |
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employed by] an entity that applies for funds under Section 79.037 |
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shall disclose that fact before a vote by the board regarding an |
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award of funds to that entity and may not participate in that vote. |
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(c) The commission may not award funds under Section 79.037 |
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to an entity served by a chief public defender or a director of a |
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managed assigned counsel program [other attorney] who fails to make |
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a disclosure to the board as required by Subsection (a). |
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SECTION 13. Article 26.044(l), Code of Criminal Procedure, |
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is amended to read as follows: |
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(l) A public defender's office may investigate the |
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financial condition of any person the public defender's office is |
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appointed to represent. [The public defender's office shall report |
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the results of the investigation to the appointing judge. The judge |
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may hold a hearing to determine if the person is indigent and |
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entitled to representation under this article.] |
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SECTION 15. Article 26.04, Code of Criminal Procedure, is |
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amended by adding Subsection (i-1) to read as follows: |
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(i-1) Notwithstanding Subsection (j)(2) or any other law, |
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an attorney may be appointed under this article to represent an |
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indigent person for the sole purpose of providing counsel in |
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relation to that person's appearance before a magistrate as |
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required by Article 14.06(a), 15.17(a), or 15.18(a). The attorney |
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may represent the person in subsequent proceedings of that case, |
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only if appointed for that purpose under the other provisions of |
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this article. |
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SECTION 16. Article 26.044, Code of Criminal Procedure, is |
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amended by adding Subsection (i-1) to read as follows: |
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(i-1) Notwithstanding Subsection (i)(1), an attorney |
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engaged in the private practice of criminal law may be employed by a |
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public defender's office on a part-time basis for the sole purpose |
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of providing counsel in relation to an indigent person's appearance |
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before a magistrate as required by Article 14.06(a), 15.17(a), or |
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15.18(a). |
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SECTION 17. Article 26.04(i-1), Code of Criminal Procedure, |
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as added by this Act, applies only to a person who is arrested on or |
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after the effective date of this Act. A person arrested before the |
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effective date of this Act is governed by the law in effect on the |
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date the person was arrested, and the former law is continued in |
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effect for that purpose. |
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SECTION 18. Section 79.037(a), Government Code, is amended |
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to read as follows: |
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(a) The commission shall: |
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(1) provide technical support to: |
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(A) assist counties in improving their systems |
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for providing indigent defense services, including indigent |
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defense support services [systems]; and |
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(B) promote compliance by counties with the |
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requirements of state law relating to indigent defense; |
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(2) to assist a county in providing or improving the |
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provision of indigent defense services in the county, distribute in |
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the form of grants any funds appropriated for the purposes of this |
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section to one or more of the following entities: |
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(A) the county; |
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(B) a law school's legal clinic or program that |
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provides indigent defense services in the county; [and] |
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(C) a regional public defender that meets the |
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requirements of Subsection (e) and provides indigent defense |
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services in the county; [and] |
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(D) an entity described by Section 791.013 that |
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provides to a county administrative services under an interlocal |
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contract entered into for the purpose of providing or improving the |
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provision of indigent defense services in the county; and |
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(E) a nonprofit corporation that provides |
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indigent defense services or indigent defense support services in |
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the county; and |
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(3) monitor each entity that receives a grant under |
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Subdivision (2) and enforce compliance with the conditions of the |
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grant, including enforcement by: |
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(A) withdrawing grant funds; or |
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(B) requiring reimbursement of grant funds by the |
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entity. |
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SECTION 19. Section 79.037(b), Government Code, as amended |
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by Chapters 56 (S.B. 1353) and 476 (S.B. 1057), Acts of the 84th |
|
Legislature, Regular Session, 2015, is reenacted and amended to |
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read as follows: |
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(b) The commission shall determine for each county the |
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entity or entities [within the county] that are eligible to receive |
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funds for the provision of or improvement in the provision of |
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indigent defense services under Subsection (a)(2). The |
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determination must be made based on the entity's: |
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(1) compliance with standards adopted by the board; |
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and |
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(2) demonstrated commitment to compliance with the |
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requirements of state law relating to indigent defense. |
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SECTION 20. Section 79.037(c), Government Code, as amended |
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by Chapters 56 (S.B. 1353) and 476 (S.B. 1057), Acts of the 84th |
|
Legislature, Regular Session, 2015, is reenacted to read as |
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follows: |
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(c) The board shall adopt policies to ensure that funds |
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under Subsection (a)(2) are allocated and distributed in a fair |
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manner. |
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SECTION 21. Section 79.037(e), Government Code, as added by |
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Chapter 56 (S.B. 1353), Acts of the 84th Legislature, Regular |
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Session, 2015, is repealed. |
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SECTION 22. This Act takes effect September 1, 2021. |