BILL ANALYSIS

 

 

 

C.S.H.B. 1528

By: Smith

Criminal Jurisprudence

Committee Report (Substituted)

 

 

 

BACKGROUND AND PURPOSE

 

The Texas Indigent Defense Commission (TIDC) has brought to light the need to improve our state's indigent defense system. C.S.H.B. 1528 seeks to make such improvements by doing the following:

·         allowing Managed Assigned Counsel Programs (MAC) access to relevant Department of Public Safety criminal history information;

·         allowing counties to be reimbursed for representation provided by a public defender's office when the office is appointed to represent an indigent inmate in a situation where the State Counsel for Offenders cannot do so;

·         removing the requirement for a public defender attorney to inform the appointing judge of the results of any investigation into a defendant's financial circumstances;

·         allowing attorneys with a private criminal practice to work part-time for public defender offices to represent an arrestee at such a hearing;

·         requiring a court to appoint an attorney to represent an eligible indigent defendant to investigate a claim and file a writ of habeas corpus in limited instances when the state represents that the defendant may have a potentially meritorious claim of relief from a prior conviction;

·         enumerating and clarifying the duties of magistrates at hearings;

·         ensuring that magistration records are properly preserved;

·         providing for reimbursement for expenses for attorneys who meet with defendants held in out-of-county jails; and

·         modifying the membership of TIDC's board to add two members: a MAC director and a justice of the peace, municipal court judge, or an appointed magistrate who regularly presides at hearings.

 

CRIMINAL JUSTICE IMPACT

 

It is the committee's opinion that this bill does not expressly create a criminal offense, increase the punishment for an existing criminal offense or category of offenses, or change the eligibility of a person for community supervision, parole, or mandatory supervision.

 

RULEMAKING AUTHORITY

 

It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.

 

ANALYSIS

 

C.S.H.B. 1528 revises provisions relating to services and representation provided to indigent criminal defendants, the duties of an arresting magistrate, and the governance and administration of managed assigned counsel programs and the Texas Indigent Defense Commission.

 

Court-Appointed Representation for Indigent Defendants

 

C.S.H.B. 1528 amends the Code of Criminal Procedure to revise the conditions under which a court is required to appoint an attorney to represent an eligible indigent defendant for purposes of filing an application for a writ of habeas corpus. The bill requires the court to appoint an attorney for that purpose if the state represents to the court that the defendant has any claim the court determines is likely to provide relief, including a claim that the defendant:

  • is or may be actually innocent of the offense;
  • is or may be guilty of only a lesser offense;
  • was or may have been convicted or sentenced under a law that has been found unconstitutional by the court of criminal appeals or the U.S. Supreme Court; or
  • was or may have been convicted or sentenced in violation of the United States and Texas Constitutions.

The bill requires the appointed attorney to investigate any applicable claim. These provisions apply regardless of whether the offense for which the defendant is in custody was committed before, on, or after the bill's effective date.

 

Magistration Proceedings

 

C.S.H.B. 1528 requires a magistrate conducting an initial appearance proceeding for an arrested person to take the following actions:

·         ensure that the arrested person is able to connect to and understand the image and sound of a proceeding conducted through videoconference;

·         with respect to an arrested person the magistrate is unable to ensure is able to understand and participate in the proceeding:

o   appoint counsel for the person if the magistrate has appointing authority; or

o   notify the appointing authority for the arrested person of the person's inability to understand and participate in the proceeding; and

·         with respect to an arrested person the magistrate has reasonable cause to believe has a mental illness or is a person with an intellectual disability, follow certain early identification procedures.

The bill extends the period for which a record of communications between an arrested person and a magistrate must be retained to at least two years after final judgment is entered in the case or the proceedings are otherwise terminated and subjects a record of communications between an arrested person for an out-of-county offense and a magistrate to the same record preservation requirement. These provisions apply only to a person who is arrested on or after the bill's effective date.

 

Public Defender's Office

 

C.S.H.B. 1528 authorizes an attorney engaged in the private practice of criminal law to be employed by a public defender's office on a part-time basis for the sole purpose of providing counsel in relation to an indigent person's appearance before a magistrate. The bill removes the following:

·         the requirement for a public defender's office to report to the appointing judge the results of an investigation of the financial condition of any person the public defender's office is appointed to represent; and

·         the authorization for the appointing judge to hold a hearing to determine if the person is indigent and entitled to appointed representation.

 

C.S.H.B. 1528 gives a court the option to appoint a public defender's office for the defense of an indigent inmate if the court determines for certain reasons that a conflict of interest could arise from the use of another attorney provided by the Texas Board of Criminal Justice to represent the inmate. If appointed, the public defender's office must certify to the court the amount of expenses incurred in the defendant's representation and the court must submit the certified amount to the comptroller of public accounts for reimbursement by the state. The bill requires the state to reimburse a county for any such expenses.

 

Managed Assigned Counsel Programs

 

C.S.H.B. 1528 authorizes a managed assigned counsel program, in accordance with the program's guidelines, to do the following:

·         with good cause, remove counsel from representing an indigent defendant; or

·         remove counsel from an appointment list.

These provisions apply only to a person who is arrested on or after the bill's effective date.

 

C.S.H.B. 1528 includes in the definition of "managed assigned counsel program" a program operated with public funds for the following purposes:

·         appointing or providing an investigator, expert, or other support services for appointed counsel and their clients;

·         approving a payment to an attorney, investigator, or expert, and for other reasonable and necessary expenses for representing a defendant in a criminal proceeding, including a death penalty case; and

·         overseeing and improving the quality of representation provided to clients by attorneys appointed under a managed assigned counsel program.

The bill requires a plan of operation of such a program to include a policy describing the circumstances under which an attorney may withdraw from a case and good cause is established to remove an attorney from a case. The bill authorizes such a program to receive information necessary to perform the program's functions, including materials that are subject to attorney-client privilege, attorney work-product privilege, or otherwise protected by constitutional or statutory rights of a client represented by an appointed attorney. Such information and materials and information and materials relating to the appointment or provision of an investigator, expert, or other support services by appointed counsel for their client are confidential and not subject to disclosure, and the program, the appointed attorneys, and other individuals, as applicable, must maintain that confidentiality.

 

C.S.H.B. 1528 authorizes a managed assigned counsel program director's designee to complete certain responsibilities of the program director concerning the compensation of counsel appointed to represent a defendant in a noncapital criminal case, other than an attorney with a public defender's office or an attorney employed by the office of capital and forensic writs. The bill requires a counsel, other than an attorney with the public defender's office, appointed to represent a defendant in a noncapital criminal case who is confined in a correctional facility located more than 50 miles from the court in which the defendant's proceeding is pending to be reimbursed for travel to the defendant's location for a confidential communication and food and lodging related to that travel or any costs associated with remotely conducting such a communication. These provisions apply only to expenses incurred on or after the bill's effective date.

 

C.S.H.B. 1528 authorizes a county served by a managed assigned counsel program to appoint trial counsel in a capital case, including counsel for direct appeal or to apply for a writ of certiorari, in the manner provided by the program's written plan of operation. The bill requires an attorney appointed in this manner to be on the list of attorneys qualified for appointment in death penalty cases in the administrative judicial region in which the program operates. If a county is served by a public defender's office and a managed assigned counsel program, the presiding judge of the district court in which a capital felony is filed must give priority in appointing counsel from the public defender's office. In a county not served by a public defender's office or a managed assigned counsel program, counsel must be appointed following regular procedures for appointing counsel in cases in which the death penalty is sought. The bill authorizes a qualified managed assigned counsel program to appoint two attorneys to represent an indigent defendant as soon as practicable after charges are filed, unless the state gives written notice that it will not seek the death penalty.

 

Texas Indigent Defense Commission

 

C.S.H.B. 1528 amends the Government Code to revise provisions governing the membership of the board of the Texas Indigent Defense Commission. The bill increases the commission's overall membership by adding two gubernatorial appointees as follows:

·         one member who is a director of a managed assigned counsel program in Texas; and

·         one member who is a justice of the peace, municipal court judge, or appointed magistrate whose regular duties include presiding over magistration hearings.

The bill removes the option for a chief public defender's designee to serve as a member. The bill increases from two to three the number of members whose terms expire February 1 of each odd-numbered year and from three to four the number of members whose terms expire February 1 of each even-numbered year. The bill requires a board member to disclose if they are a director of a managed assigned counsel program before a vote by the board on whether to award that entity any technical support funds for indigent defense purposes. The bill prohibits the commission from awarding those funds to an entity served by a director of such a program who fails to make such a disclosure.

 

Retention of Criminal Records

 

C.S.H.B. 1528 prohibits the Department of Public Safety (DPS) from charging a fee for providing criminal history record information to a managed assigned counsel program and entitles such a program to obtain from DPS criminal history record information that relates to a criminal case in which a court has appointed an attorney compensated by the program.

 

EFFECTIVE DATE

 

September 1, 2023.

 

COMPARISON OF INTRODUCED AND SUBSTITUTE

 

While C.S.H.B. 1528 may differ from the introduced in minor or nonsubstantive ways, the following summarizes the substantial differences between the introduced and committee substitute versions of the bill.

 

The substitute and the introduced both include a provision requiring the retention of a record of communication between an arrested person and a magistrate for a specified period beyond the period currently required. However, the substitute requires retention for two years while the introduced specified retention for three years.

 

The substitute omits provisions in the introduced that authorized an attorney to be appointed to represent an indigent person for the sole purpose of providing counsel in relation to that person's appearance before a magistrate and authorized an attorney to represent the person in subsequent proceedings of that case, only if appointed for that purpose.

 

Both the introduced and the substitute establish that certain information and materials received by a program are confidential and not subject to disclosure, and that the program and appointed attorneys must maintain that confidentiality. However, the substitute includes in that confidential information and materials, information and materials relating to the appointment or provision of an investigator, expert, or other support services by appointed counsel for their client and provides that other individuals, as applicable, must also maintain that confidentiality.

 

The substitute does not include any of the provisions in the introduced related to its authorized establishment of an oversight board for a managed assigned counsel program.

 

The substitute and introduced both provide for reimbursement of travel expenses for a public defender when traveling to a defendant's location but the substitute specifies that expenses related to food and lodging are reimbursable and the introduced did not.