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A BILL TO BE ENTITLED
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AN ACT
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relating to magistration proceedings for criminal defendants and |
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the retention of related records, to services and representation |
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provided to indigent criminal defendants and indigent juveniles, |
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and to the governance and administration of the Texas Indigent |
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Defense Commission. |
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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. 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 applicable, the magistrate shall inform the |
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person that the person may file the affidavit described by Article |
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17.028(f). |
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(4) 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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(5) 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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(6) 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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(7) 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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(8) 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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(9) If the [person] arrested person 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 [person] arrested person 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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(10) The magistrate shall allow the [person] arrested |
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person 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 and whether the bail decision is |
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subject to Article 17.027, admit the person [arrested] to bail if |
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allowed by law. |
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(11) 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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two 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 3. Article 26.04(f-1), Code of Criminal Procedure, |
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is amended to read as follows: |
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(f-1) In a county in which a managed assigned counsel |
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program is operated in accordance with Article 26.047, the managed |
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assigned counsel program may appoint counsel to represent the |
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defendant, remove counsel from representing a defendant, or remove |
|
counsel from an appointment list in accordance with the guidelines |
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established for the program. The managed assigned counsel program |
|
must have good cause to remove counsel from representing a |
|
defendant. |
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SECTION 4. Article 26.044, Code of Criminal Procedure, is |
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amended by adding Subsection (i-1) and amending Subsection (l) to |
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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 |
|
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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(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 5. Article 26.047(a)(2), Code of Criminal |
|
Procedure, is amended 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 |
|
Article 26.04 or 26.052 of this code or Section 51.10, Family Code; |
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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 and their clients; |
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(D) for the purpose of approving a payment to an |
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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 |
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the quality of representation provided to clients by attorneys |
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appointed under this article. |
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SECTION 6. Article 26.047, Code of Criminal Procedure, is |
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amended by amending Subsections (b), (c), and (f) and adding |
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Subsection (j) 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 |
|
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 |
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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 |
|
subsection, the commissioners court shall specify or the |
|
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. |
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(c) The commissioners court or commissioners courts shall |
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require a written plan of operation from an entity operating a |
|
program under this article. The plan of operation must include: |
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(1) a budget for the program, including salaries; |
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(2) a description of each personnel position, |
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including the program's director; |
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(3) the maximum allowable caseload for each attorney |
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appointed by the program; |
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(4) provisions for training personnel of the program |
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and attorneys appointed under the program; |
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(5) a description of anticipated overhead costs for |
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the program; |
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(6) a policy regarding licensed investigators and |
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expert witnesses used by attorneys appointed under the program; |
|
(7) a policy to ensure that appointments are |
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reasonably and impartially allocated among qualified attorneys; |
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[and] |
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(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 |
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(9) a policy describing the circumstances under which: |
|
(A) an attorney may withdraw from a case; and |
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(B) good cause is established to remove an |
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attorney from a case. |
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(f) The program's public appointment list from which an |
|
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 |
|
Article 26.04(a) or provided under Article 26.052 and any other |
|
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 |
|
committee, as applicable. |
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(j) A program may receive information necessary to perform |
|
the program's functions under this article, including materials |
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that are subject to attorney-client privilege, subject to attorney |
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work-product privilege, or otherwise protected by constitutional |
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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 |
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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. |
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(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 |
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into a confidential communication with the defendant. |
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(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 |
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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). |
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(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. |