88R19969 AJZ-D

By: Smith H.B. No. 1528

A BILL TO BE ENTITLED

AN ACT

relating to magistration proceedings for criminal defendants and the retention of related records, to services and representation provided to indigent criminal defendants and indigent juveniles, and to the governance and administration of the Texas Indigent Defense Commission.

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

SECTION 1. Article 11.074, Code of Criminal Procedure, is amended by amending Subsection (b) and adding Subsection (b-1) to read as follows:

(b) If at any time the state represents to the convicting court that an eligible indigent defendant under Article 1.051 has under a writ of habeas corpus a potentially meritorious claim for relief from a judgment described by Subsection (a) [who was sentenced or had a sentence suspended is not guilty, is guilty of only a lesser offense, or was convicted or sentenced under a law that has been found unconstitutional by the court of criminal appeals or the United States Supreme Court], the court shall appoint an attorney to investigate the claim and represent the indigent defendant for purposes of filing an application for a writ of habeas corpus, if an application has not been filed, or to otherwise represent the indigent defendant in a proceeding based on the application for the writ.

(b-1) For purposes of Subsection (b), a potentially meritorious claim is any claim the court determines is likely to provide relief, including a claim that the defendant:

(1) is or may be actually innocent of the offense;

(2) is or may be guilty of only a lesser offense;

(3) was or may have been convicted or sentenced under a law that has been found unconstitutional by the court of criminal appeals or the United States Supreme Court; or

(4) was or may have been convicted or sentenced in violation of the constitution of this state or the United States.

SECTION 2. Articles 15.17(a) and (f), Code of Criminal Procedure, are amended to read as follows:

(a) (1) In each case enumerated in this Code, the person making the arrest or the person having custody of the person arrested shall without unnecessary delay, but not later than 48 hours after the person is arrested, take the person arrested or have the person [him] taken before some magistrate of the county where the person [accused] was arrested or, to provide more expeditiously to the person arrested the warnings described by this article, before a magistrate in any other county of this state. The arrested person may be taken before the magistrate in person or the image and sound of the arrested person may be presented to the magistrate by means of a videoconference. For purposes of this subsection, "videoconference" means a two-way electronic communication of image and sound between the arrested person and the magistrate and includes secure Internet videoconferencing.

(2) The magistrate shall inform in clear language the person arrested, either in person or through a videoconference, of:

(A) the accusation against the person [him] and of any affidavit filed with the accusation;

(B) the person's [therewith, of his] right to retain counsel;

(C) the person's [, of his] right to remain silent and to not make a statement;

(D) the fact that any statement the person makes may be used against the person;

(E) the person's [, of his] right to have an attorney present during any interview with peace officers or attorneys representing the state;

(F) the person's [, of his] right to terminate the interview at any time;

(G) the person's [, and of his] right to have an examining trial;

(H) [. The magistrate shall also inform the person arrested of] the person's right to request the appointment of counsel if the person cannot afford counsel; and

(I) [. The magistrate shall inform the person arrested of] the procedures for requesting appointment of counsel.

(3) If applicable, the magistrate shall inform the person that the person may file the affidavit described by Article 17.028(f).

(4) If the person does not speak and understand the English language or is deaf, the magistrate shall inform the person in a manner consistent with Articles 38.30 and 38.31, as appropriate.

(5) If the proceeding is conducted through a videoconference, the magistrate shall ensure that the arrested person is able to connect to and understand the image and sound of the videoconference.

(6) If the magistrate has reasonable cause to believe that the arrested person has a mental illness or is a person with an intellectual disability, the magistrate shall follow the procedures under Article 16.22.

(7) If the magistrate is unable to ensure that the arrested person is able to understand and participate in the proceeding, the magistrate shall:

(A) if the magistrate has appointing authority, appoint counsel for the person; or

(B) if the magistrate does not have appointing authority, notify the appointing authority of the person's inability to understand and participate in the proceeding.

(8) The magistrate shall ensure that reasonable assistance in completing the necessary forms for requesting appointment of counsel is provided to the arrested person at the same time the person is informed of the person's rights under this subsection.

(9) If the [person] arrested person is indigent and requests appointment of counsel and if the magistrate is authorized under Article 26.04 to appoint counsel for indigent defendants in the county, the magistrate shall appoint counsel in accordance with Article 1.051. If the magistrate is not authorized to appoint counsel, the magistrate shall without unnecessary delay, but not later than 24 hours after the [person] arrested person requests appointment of counsel, transmit, or cause to be transmitted to the court or to the courts' designee authorized under Article 26.04 to appoint counsel in the county, the necessary forms for requesting and ruling on the appointment of counsel. [The magistrate shall also inform the person arrested that he is not required to make a statement and that any statement made by him may be used against him.]

(10) The magistrate shall allow the [person] arrested person reasonable time and opportunity to consult counsel and shall, after determining whether the person is currently on bail for a separate criminal offense and whether the bail decision is subject to Article 17.027, admit the person [arrested] to bail if allowed by law.

(11) A record of the communication between the arrested person and the magistrate shall be made. [The record shall be preserved until the earlier of the following dates:

[(1) the date on which the pretrial hearing ends; or

[(2) the 91st day after the date on which the record is made if the person is charged with a misdemeanor or the 120th day after the date on which the record is made if the person is charged with a felony. For purposes of this subsection, "videoconference" means a two-way electronic communication of image and sound between the arrested person and the magistrate and includes secure Internet videoconferencing.]

(f) A record required under Subsection (a) or (e) may consist of written forms, electronic recordings, or other documentation as authorized by procedures adopted in the county under Article 26.04(a). The record must be retained for at least two years after final judgment is entered in the case or the proceedings are otherwise terminated. The counsel for the defendant may obtain a copy of the record on payment of a reasonable amount to cover the costs of reproduction or, if the defendant is indigent, the court shall provide a copy to the defendant without charging a cost for the copy.

SECTION 3. Article 26.04(f-1), Code of Criminal Procedure, is amended to read as follows:

(f-1) In a county in which a managed assigned counsel program is operated in accordance with Article 26.047, the managed assigned counsel program may appoint counsel to represent the defendant, remove counsel from representing a defendant, or remove counsel from an appointment list in accordance with the guidelines established for the program. The managed assigned counsel program must have good cause to remove counsel from representing a defendant.

SECTION 4. Article 26.044, Code of Criminal Procedure, is amended by adding Subsection (i-1) and amending Subsection (l) to read as follows:

(i-1) Notwithstanding Subsection (i)(1), an attorney engaged in the private practice of criminal law may 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 as required by Article 14.06(a), 15.17(a), or 15.18(a).

(l) A public defender's office may investigate the financial condition of any person the public defender's office is appointed to represent. [The public defender's office shall report the results of the investigation to the appointing judge. The judge may hold a hearing to determine if the person is indigent and entitled to representation under this article.]

SECTION 5. Article 26.047(a)(2), Code of Criminal Procedure, is amended to read as follows:

(2) "Managed assigned counsel program" or "program" means a program operated with public funds:

(A) by a governmental entity, nonprofit corporation, or bar association under a written agreement with a governmental entity, other than an individual judge or court; [and]

(B) for the purpose of appointing counsel under Article 26.04 or 26.052 of this code or Section 51.10, Family Code;

(C) for the purpose of appointing or providing an investigator, expert, or other support services for appointed counsel and their clients;

(D) for the purpose of approving a payment to an attorney, investigator, or expert, and for other reasonable and necessary expenses under Article 26.05 or 26.052; and

(E) for the purpose of overseeing and improving the quality of representation provided to clients by attorneys appointed under this article.

SECTION 6. Article 26.047, Code of Criminal Procedure, is amended by amending Subsections (b), (c), and (f) and adding Subsection (j) to read as follows:

(b) The commissioners court of any county, on written approval of a judge of the juvenile court of a county or a county court, statutory county court, or district court trying criminal cases in the county, may appoint a governmental entity, nonprofit corporation, or bar association to operate a managed assigned counsel program. The commissioners courts of two or more counties may enter into a written agreement to jointly appoint and fund a governmental entity, nonprofit corporation, or bar association to operate a managed assigned counsel program. In appointing an entity to operate a managed assigned counsel program under this subsection, the commissioners court shall specify or the commissioners courts shall jointly specify:

(1) the types of cases in which the program may appoint counsel under Article 26.04 or 26.052 of this code or Section 51.10, Family Code, and the courts in which the counsel appointed by the program may be required to appear; and

(2) the term of any agreement establishing a program and how the agreement may be terminated or renewed.

(c) The commissioners court or commissioners courts shall require a written plan of operation from an entity operating a program under this article. The plan of operation must include:

(1) a budget for the program, including salaries;

(2) a description of each personnel position, including the program's director;

(3) the maximum allowable caseload for each attorney appointed by the program;

(4) provisions for training personnel of the program and attorneys appointed under the program;

(5) a description of anticipated overhead costs for the program;

(6) a policy regarding licensed investigators and expert witnesses used by attorneys appointed under the program;

(7) a policy to ensure that appointments are reasonably and impartially allocated among qualified attorneys; [and]

(8) a policy to ensure that an attorney appointed under the program does not accept appointment in a case that involves a conflict of interest for the attorney that has not been waived by all affected clients; and

(9) a policy describing the circumstances under which:

(A) an attorney may withdraw from a case; and

(B) good cause is established to remove an attorney from a case.

(f) The program's public appointment list from which an attorney is appointed must contain the names of qualified attorneys, each of whom:

(1) applies to be included on the list;

(2) meets any applicable requirements specified by the procedures [procedure] for appointing counsel adopted under Article 26.04(a) or provided under Article 26.052 and any other requirements specified by the Texas Indigent Defense Commission; and

(3) is approved by the program director or review committee, as applicable.

(j) A program may receive information necessary to perform the program's functions under this article, including materials that are subject to attorney-client privilege, subject to attorney work-product privilege, or otherwise protected by constitutional or statutory rights of a client represented by an attorney appointed under this article. Information and materials described by this subsection and information and materials related to a purpose described by Subsection (a)(2)(C) are confidential and not subject to disclosure, and the program, the attorneys appointed under this article, and other individuals, as applicable, shall maintain the confidentiality of any information or materials described by this subsection.

SECTION 7. Article 26.05, Code of Criminal Procedure, is amended by amending Subsections (c) and (d) and adding Subsection (d-1) to read as follows:

(c) Each fee schedule adopted shall state reasonable fixed rates or minimum and maximum hourly rates, taking into consideration reasonable and necessary overhead costs and the availability of qualified attorneys willing to accept the stated rates, and shall provide a form for the appointed counsel to itemize the types of services performed. No payment shall be made under this article until the form for itemizing the services performed is submitted to the judge presiding over the proceedings or, if the county operates a managed assigned counsel program under Article 26.047, to the director of the program or the director's designee, and until the judge or the director or director's designee, as applicable, approves the payment. If the judge or the director or director's designee disapproves the requested amount of payment, the judge or the director or director's designee shall make written findings stating the amount of payment that the judge or the director or director's designee approves and each reason for approving an amount different from the requested amount. An attorney whose request for payment is disapproved or is not otherwise acted on by the 60th day after the date the request for payment is submitted may appeal the disapproval or failure to act by filing a motion with the presiding judge of the administrative judicial region. On the filing of a motion, the presiding judge of the administrative judicial region shall review the disapproval of payment or failure to act and determine the appropriate amount of payment. In reviewing the disapproval or failure to act, the presiding judge of the administrative judicial region may conduct a hearing. Not later than the 45th day after the date an application for payment of a fee is submitted under this article, the commissioners court shall pay to the appointed counsel the amount that is approved by the presiding judge of the administrative judicial region and that is in accordance with the fee schedule for that county.

(d) A counsel in a noncapital case, other than an attorney with a public defender's office, appointed to represent a defendant under this code shall be reimbursed for reasonable and necessary expenses, including expenses for:

(1) investigation;

(2) [and for] mental health and other experts; and

(3) if the defendant is confined in a correctional facility located more than 50 miles from the court in which the defendant's proceeding is pending:

(A) travel to the defendant's location for a confidential communication and food and lodging related to that travel; and

(B) any costs associated with remotely entering into a confidential communication with the defendant.

(d-1) Expenses under Subsection (d) incurred with prior court approval shall be reimbursed in the same manner provided for capital cases by Articles 26.052(f) and (g), and expenses under Subsection (d) incurred without prior court approval shall be reimbursed in the manner provided for capital cases by Article 26.052(h).

SECTION 8. Article 26.051, Code of Criminal Procedure, is amended by amending Subsections (g), (h), and (i) and adding Subsection (h-1) to read as follows:

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

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

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

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

(h) When the court appoints the public defender's office or an attorney other than an attorney provided by the board:

(1) except as otherwise provided by this article, the inmate's legal defense is subject to Articles 1.051, 26.04, 26.044, 26.05, and 26.052, as applicable; and

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

(h-1) If the court appoints a public defender's office under Subsection (g), the public defender's office shall certify to the court the amount of expenses incurred in the representation. The court shall submit the certified amount to the comptroller for reimbursement of the county by the state as described by Subsection (i).

(i) The state shall reimburse a county for attorney compensation and expenses awarded under Subsection (h) and for any expenses of a public defender's office that are certified under Subsection (h-1). A court seeking reimbursement for a county shall certify to the comptroller of public accounts the amount of compensation and expenses for which the county is entitled to be reimbursed under this article. Not later than the 60th day after the date the comptroller receives from the court the request for reimbursement, the comptroller shall issue a warrant to the county in the certified amount [certified by the court].

SECTION 9. Article 26.052, Code of Criminal Procedure, is amended by amending Subsections (b) and (e) and adding Subsections (b-1), (b-2), and (b-3) to read as follows:

(b) If a county is served by a public defender's office, trial counsel and counsel for direct appeal or to apply for a writ of certiorari may be appointed as provided by the guidelines established by the public defender's office. [In all other cases in which the death penalty is sought, counsel shall be appointed as provided by this article.]

(b-1) If a county is served by a managed assigned counsel program, trial counsel and counsel for direct appeal or to apply for a writ of certiorari may be appointed as provided by the written plan of operation for the managed assigned counsel program. An attorney appointed by a managed assigned counsel program in a death penalty case must be on the list of attorneys qualified for appointment in death penalty cases in the administrative judicial region in which the managed assigned counsel program operates.

(b-2) If a county is served by a public defender's office and a managed assigned counsel program, subject to Articles 26.04(f)(1), (2), and (3), the presiding judge of the district court in which a capital felony is filed shall give priority in appointing counsel from the public defender's office.

(b-3) In a county not served by a public defender's office or a managed assigned counsel program, counsel shall be appointed as provided by this article in each case in which the death penalty is sought.

(e) The presiding judge of the district court in which a capital felony case is filed or the managed assigned counsel program, if authorized by this article, shall appoint two attorneys[, at least one of whom must be qualified under this chapter,] to represent an indigent defendant as soon as practicable after charges are filed, unless the state gives notice in writing that the state will not seek the death penalty. At least one of the attorneys must be qualified under this chapter.

SECTION 10. Sections 79.014(a) and (b), Government Code, are amended to read as follows:

(a) The governor shall appoint with the advice and consent of the senate seven [five] members of the board as follows:

(1) one member who is a district judge serving as a presiding judge of an administrative judicial region;

(2) one member who is a judge of a constitutional county court or who is a county commissioner;

(3) one member who is a practicing criminal defense attorney;

(4) one member who is a chief public defender in this state [or the chief public defender's designee, who must be an attorney employed by the public defender's office]; [and]

(5) one member who is a judge of a constitutional county court or who is a county commissioner of a county with a population of 250,000 or more;

(6) one member who is a director of a managed assigned counsel program in this state; and

(7) one member who is a justice of the peace, municipal court judge, or appointed magistrate under Article 2.09, Code of Criminal Procedure, whose regular duties include presiding over hearings under Article 15.17, Code of Criminal Procedure.

(b) The board members serve staggered terms of two years, with three [two] members' terms expiring February 1 of each odd-numbered year and four [three] members' terms expiring February 1 of each even-numbered year.

SECTION 11. Sections 79.016(a) and (c), Government Code, are amended to read as follows:

(a) A board member who is a chief public defender or a director of a managed assigned counsel program for [or an attorney employed by] an entity that applies for funds under Section 79.037 shall disclose that fact before a vote by the board regarding an award of funds to that entity and may not participate in that vote.

(c) The commission may not award funds under Section 79.037 to an entity served by a chief public defender or a director of a managed assigned counsel program [other attorney] who fails to make a disclosure to the board as required by Subsection (a).

SECTION 12. Section 411.082, Government Code, is amended by adding Subdivision (4-a) to read as follows:

(4-a) "Managed assigned counsel program" has the meaning assigned by Article 26.047, Code of Criminal Procedure.

SECTION 13. Section 411.088(a-1), Government Code, is amended to read as follows:

(a-1) The department may not charge a fee under Subsection (a) for providing criminal history record information to:

(1) a criminal justice agency;

(2) the office of capital and forensic writs; [or]

(3) a public defender's office; or

(4) a managed assigned counsel program.

SECTION 14. Section 411.1272, Government Code, is amended to read as follows:

Sec. 411.1272. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION: OFFICE OF CAPITAL AND FORENSIC WRITS, [AND] PUBLIC DEFENDER'S OFFICES, AND MANAGED ASSIGNED COUNSEL PROGRAMS. The office of capital and forensic writs, [and] a public defender's office, and a managed assigned counsel program are entitled to obtain from the department criminal history record information maintained by the department that relates to a criminal case in which an attorney compensated by the office of capital and forensic writs or by the public defender's office has been appointed by the court or in which an attorney has been appointed by the managed assigned counsel program, as applicable [has been appointed].

SECTION 15. Article 11.074, Code of Criminal Procedure, as amended by this Act, applies regardless of whether the offense for which the applicant is in custody was committed before, on, or after the effective date of this Act.

SECTION 16. Article 15.17, Code of Criminal Procedure, as amended by this Act, applies only to a person who is arrested on or after the effective date of this Act. A person arrested before the effective date of this Act is governed by the law in effect immediately before the effective date of this Act, and the former law is continued in effect for that purpose.

SECTION 17. Article 26.05, Code of Criminal Procedure, as amended by this Act, applies only to expenses incurred on or after the effective date of this Act.

SECTION 18. This Act takes effect September 1, 2023.