88R4106 MEW-F
 
  By: Gervin-Hawkins, A. Johnson of Harris H.B. No. 1170
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to policies and standards for providing legal
  representation to indigent defendants in certain capital felony
  cases.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Article 26.052, Code of Criminal Procedure, is
  amended by adding Subsections (c-1) and (c-2) and amending
  Subsections (d) and (m) to read as follows:
         (c-1)  Each local selection committee described by
  Subsection (c) shall evaluate and determine the list of attorneys
  in the applicable administrative judicial region qualified under
  this article to be appointed to represent indigent defendants in
  capital cases in which the death penalty is sought and post the list
  on the Internet website of that administrative judicial region.
         (c-2)(1)  A statewide capital defense training and standards
  committee is created.  The committee must be composed of nine
  members, including:
                     (A)  two judges jointly selected by the presiding
  judges of the administrative judicial regions;
                     (B)  a criminal defense attorney appointed by the
  president of the Texas Criminal Defense Lawyers Association;
                     (C)  the chief public defender of the Regional
  Public Defender for Capital Cases office, or the chief public
  defender's designee;
                     (D)  the chief capital defender of a county public
  defender office appointed by the executive director of the Texas
  Indigent Defense Commission;
                     (E)  a member of the State Bar of Texas committee
  on legal services to the poor in criminal matters selected by the
  chair of the committee; and
                     (F)  three attorneys appointed by the executive
  director of the Texas Indigent Defense Commission.
               (2)  Each member of the statewide capital defense
  training and standards committee must be a licensed attorney and
  must have significant experience in capital defense or indigent
  criminal defense policy or practice. A member of the committee may
  not be a prosecutor, a law enforcement officer, or an employee of
  the office of capital and forensic writs.
               (3)  Members of the statewide capital defense training
  and standards committee serve four-year terms and may be
  reappointed. If a vacancy occurs, the appropriate appointing
  authority shall appoint a successor in the same manner as the
  original appointment to serve for the remainder of the unexpired
  term.
               (4)  The members of the statewide capital defense
  training and standards committee shall select a chair from among
  the committee's members.
               (5)  A member of the statewide capital defense training
  and standards committee may not receive compensation for service on
  the committee but is entitled to be reimbursed for actual and
  necessary expenses incurred in discharging committee duties. The
  expenses are paid from funds appropriated to the Texas Indigent
  Defense Commission.
               (6)  The Texas Indigent Defense Commission shall
  provide administrative support to the statewide capital defense
  training and standards committee as necessary to carry out the
  purposes of the committee.
         (d)(1)  The statewide capital defense training and standards
  committee created under Subsection (c-2) shall adopt policies and
  standards for providing legal representation [the qualification of
  attorneys to be appointed] to [represent] indigent defendants in
  capital cases in which the death penalty is sought. The policies and
  standards must include, with respect to the qualification of
  attorneys to be appointed in capital cases, the following:
                     (A)  training requirements and curricula;
                     (B)  qualification standards;
                     (C)  continuing legal education requirements; and
                     (D)  other policies and standards as necessary to
  ensure quality legal representation in capital cases.
               (2)  The standards described by Subdivision (1) must
  require that a trial attorney appointed as lead counsel to a capital
  case:
                     (A)  be a member of the State Bar of Texas;
                     (B)  exhibit proficiency and commitment to
  providing quality representation to defendants in death penalty
  cases;
                     (C)  have not been found by a local selection
  committee described by Subsection (c) to have provided deficient
  legal representation [a federal or state court to have rendered
  ineffective assistance of counsel] during the trial or appeal of
  any capital case if [, unless] the local selection committee has
  determined [determines under Subsection (n)] that the conduct
  underlying the deficient representation [finding no longer]
  accurately reflects the attorney's inability [ability] to provide
  effective representation in the future;
                     (D)  have at least five years of criminal law
  experience;
                     (E)  have tried to a verdict as lead defense
  counsel a significant number of felony cases, including homicide
  trials and other trials for offenses punishable as second or first
  degree felonies or capital felonies;
                     (F)  have trial experience in[:
                           [(i)]  the use of and challenges to mental
  health or forensic expert witnesses[;] and have:
                           (i)  trial experience in [(ii)]
  investigating and presenting mitigating evidence at the penalty
  phase of a death penalty trial, regardless of whether:
                                 (a)  the case resulted in a judgment or
  dismissal; or
                                 (b)  the state subsequently waived the
  death penalty in the case; or
                           (ii)  an equivalent amount of trial
  experience, as determined by the applicable local selection
  committee; and
                     (G)  have participated in continuing legal
  education courses or other training relating to criminal defense in
  death penalty cases.
               (3)  The standards described by Subdivision (1) must
  require that an attorney appointed as lead appellate counsel in the
  direct appeal of a capital case:
                     (A)  be a member of the State Bar of Texas;
                     (B)  exhibit proficiency and commitment to
  providing quality representation to defendants in death penalty
  cases;
                     (C)  have not been found by a local selection
  committee described by Subsection (c) to have provided deficient
  legal representation [a federal or state court to have rendered
  ineffective assistance of counsel] during the trial or appeal of
  any capital case if [, unless] the local selection committee has
  determined [determines under Subsection (n)] that the conduct
  underlying the deficient representation [finding no longer]
  accurately reflects the attorney's inability [ability] to provide
  effective representation in the future;
                     (D)  have at least five years of criminal law
  experience;
                     (E)  have authored a significant number of
  appellate briefs, including appellate briefs for homicide cases and
  other cases involving an offense punishable as a capital felony or a
  felony of the first degree or an offense described by Article
  42A.054(a);
                     (F)  have trial or appellate experience in[:
                           [(i)]  the use of and challenges to mental
  health or forensic expert witnesses[;] and have:
                           (i)  trial or appellate experience in [(ii)]
  the use of mitigating evidence at the penalty phase of a death
  penalty trial, regardless of whether:
                                 (a)  the case resulted in a judgment or
  dismissal; or
                                 (b)  the state subsequently waived the
  death penalty in the case; or
                           (ii)  an equivalent amount of trial or
  appellate experience, as determined by the applicable local
  selection committee; and
                     (G)  have participated in continuing legal
  education courses or other training relating to criminal defense in
  appealing death penalty cases.
               (4)  The Texas Indigent Defense Commission [committee]
  shall prominently post the policies and standards adopted by the
  statewide capital defense training and standards committee under
  Subdivision (1) on the commission's Internet website [in each
  district clerk's office in the region with a list of attorneys
  qualified for appointment].
               (5)  Not later than the second anniversary of the date
  an attorney is placed on a local selection committee's [the] list of
  attorneys qualified for appointment in death penalty cases and each
  year following the second anniversary, the attorney must present a
  list of death penalty trial, direct appeal, and habeas corpus cases
  in which the attorney served as counsel and proof to the local
  selection committee for the applicable administrative judicial
  region that the attorney has successfully completed the training,
  minimum continuing legal education requirements, and other
  standards adopted by the statewide capital defense training and
  standards committee under Subdivision (1) [of the State Bar of
  Texas, including a course or other form of training relating to
  criminal defense in death penalty cases or in appealing death
  penalty cases, as applicable]. The applicable local selection
  committee shall remove the attorney's name from the list of
  qualified attorneys if the attorney fails to provide the local
  selection committee with the materials required under this
  subsection [proof of completion of the continuing legal education
  requirements].
         (m)  Each [The] local selection committee shall annually
  review the list of attorneys posted under Subsection (c-1) [(d)] to
  ensure that each listed attorney satisfies the requirements under
  this chapter.
         SECTION 2.  Article 26.052(n), Code of Criminal Procedure,
  is repealed.
         SECTION 3.  The change in law made by this Act applies only
  to a capital felony case that is filed on or after the effective
  date of this Act. A capital felony case that is filed before the
  effective date of this Act is governed by the law in effect on the
  date the case was filed, and the former law is continued in effect
  for that purpose.
         SECTION 4.  This Act takes effect September 1, 2023.