Texas 2009 - 81st Regular

Texas House Bill HB4382 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	By: Gallego H.B. No. 4382
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to standards of competency for attorneys appointed as
7	7	counsel to indigent applicants in certain habeas corpus
8	8	proceedings.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 2(d), Article 11.071, Code of Criminal
11	11	Procedure, is amended to read as follows:
12	12	(d)(1) The court of criminal appeals shall adopt rules for
13	13	the appointment of attorneys as counsel under this section.
14	14	(2) The rules must require that an attorney appointed
15	15	as counsel under this section:
16	16	(A) be a member of the State Bar of Texas;
17	17	(B) exhibit proficiency and commitment to
18	18	providing quality representation to applicants seeking relief in
19	19	death penalty cases;
20	20	(C) have at least five years of experience in
21	21	criminal litigation, appellate practice, or habeas corpus
22	22	practice;
23	23	(D) have appeared in federal or state court in a
24	24	significant number of habeas corpus proceedings for offenses
25	25	punished as second-degree or first-degree felonies or capital
26	26	felonies; and
27	27	(E) have in the 12 months preceding the
28	28	appointment participated in continuing legal education courses or
29	29	other training relating to habeas corpus proceedings, provided or
30	30	approved by a statewide association of criminal defense attorneys
31	31	who regularly represent indigent defendants and whose purposes
32	32	include providing continuing legal education, technical
33	33	assistance, and support programs.
34	34	(3) The [and the] convicting court may appoint an
35	35	attorney as counsel under this section only if the appointment is
36	36	approved by the court of criminal appeals in any manner provided by
37	37	those rules.
38	38	SECTION 2. Section 4A, Article 11.071, Code of Criminal
39	39	Procedure, is amended to read as follows:
40	40	Sec. 4A. UNTIMELY APPLICATION; APPLICATION NOT FILED;
41	41	CLAIMS NOT COGNIZABLE. (a) On command of the court of criminal
42	42	appeals, a counsel who files:
43	43	(1) an untimely application or fails to file an
44	44	application before the filing date applicable under Section 4(a) or
45	45	(b) shall show cause as to why the application was untimely filed or
46	46	not filed before the filing date; and
47	47	(2) an application containing a claim that is not
48	48	cognizable shall show cause as to why the application contains the
49	49	claim.
50	50	(b) At the conclusion of the counsel's presentation to the
51	51	court of criminal appeals, the court may:
52	52	(1) find that good cause has not been shown and dismiss
53	53	the application if the court finds that the untimely filing,
54	54	failure to file, or inclusion in the application of a claim that is
55	55	not cognizable is specifically due to an act or omission of the
56	56	applicant and not due to an act or omission of the counsel for the
57	57	applicant;
58	58	(2) permit the counsel to continue representation of
59	59	the applicant and establish a new filing date for the application,
60	60	which may be not more than 180 days from the date the court permits
61	61	the counsel to continue representation; or
62	62	(3) appoint new counsel to represent the applicant and
63	63	establish a new filing date for the application, which may be not
64	64	more than 270 days after the date the court appoints new counsel.
65	65	(c) The court of criminal appeals may hold in contempt
66	66	counsel who files an untimely application or fails to file an
67	67	application before the date required by Section 4(a) or (b) or who
68	68	files an application that contains a claim that is not cognizable.
69	69	The court of criminal appeals may punish as a separate instance of
70	70	contempt each day after the first day on which the counsel fails to
71	71	timely file the application. In addition to or in lieu of holding
72	72	counsel in contempt, the court of criminal appeals may enter an
73	73	order denying counsel compensation under Section 2A. If on more
74	74	than one occasion the court of criminal appeals finds that the
75	75	untimely filing, failure to file, or inclusion in the application
76	76	of a claim that is not cognizable is specifically due to an act or
77	77	omission of an attorney acting as counsel for the applicant and not
78	78	due to an act or omission of the applicant, the court shall prohibit
79	79	a trial court from subsequently appointing that attorney as counsel
80	80	under this section.
81	81	(d) If the court of criminal appeals establishes a new
82	82	filing date for the application, the court of criminal appeals
83	83	shall notify the convicting court of that fact and the convicting
84	84	court shall proceed under this article.
85	85	(e) Sections 2A and 3 apply to compensation and
86	86	reimbursement of counsel appointed under Subsection (b)(3) in the
87	87	same manner as if counsel had been appointed by the convicting
88	88	court.
89	89	(f) Notwithstanding any other provision of this article,
90	90	the court of criminal appeals shall appoint counsel and establish a
91	91	new filing date for application, which may be no later than the
92	92	270th day after the date on which counsel is appointed, for each
93	93	applicant who before September 1, 1999, filed an untimely
94	94	application or failed to file an application before the date
95	95	required by Section 4(a) or (b). Section 2A applies to the
96	96	compensation and payment of expenses of counsel appointed by the
97	97	court of criminal appeals under this subsection.
98	98	(g) It is the intent of the legislature that an applicant
99	99	not be penalized because counsel to the applicant has filed a
100	100	defective application under this article.
101	101	SECTION 3. The court of criminal appeals shall amend
102	102	standards previously adopted by the court to conform with the
103	103	requirements of Section 2(d), Article 11.071, Code of Criminal
104	104	Procedure, as amended by this Act, not later than the 60th day after
105	105	the effective date of this Act.
106	106	SECTION 4. An attorney appointed under Section 2, Article
107	107	11.071, Code of Criminal Procedure, as amended by this Act, on or
108	108	after January 1, 2010, must meet the standards adopted in
109	109	conformity with amended Section 2(d), Article 11.071, except that
110	110	the requirement that the attorney complete a course or training on
111	111	habeas corpus proceedings during the previous 12 months applies
112	112	only to an attorney appointed under Section 2 on or after January 1,
113	113	2011.
114	114	SECTION 5. The change in law made by this Act to Section 4A,
115	115	Article 11.071, Code of Criminal Procedure, applies only to an
116	116	application for a writ of habeas corpus filed on or after the
117	117	effective date of this Act. An application for a writ of habeas
118	118	corpus filed before the effective date of this Act is covered by the
119	119	law in effect when the application was filed, and the former law is
120	120	continued in effect for this purpose.
121	121	SECTION 6. This Act takes effect immediately if it receives
122	122	a vote of two-thirds of all the members elected to each house, as
123	123	provided by Section 39, Article III, Texas Constitution. If this
124	124	Act does not receive the vote necessary for immediate effect, this
125	125	Act takes effect September 1, 2009.