By: Gallego H.B. No. 4382
A BILL TO BE ENTITLED
AN ACT
relating to standards of competency for attorneys appointed as
counsel to indigent applicants in certain habeas corpus
proceedings.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 2(d), Article 11.071, Code of Criminal
Procedure, is amended to read as follows:
(d)(1) The court of criminal appeals shall adopt rules for
the appointment of attorneys as counsel under this section.
(2) The rules must require that an attorney appointed
as counsel under this section:
(A) be a member of the State Bar of Texas;
(B) exhibit proficiency and commitment to
providing quality representation to applicants seeking relief in
death penalty cases;
(C) have at least five years of experience in
criminal litigation, appellate practice, or habeas corpus
practice;
(D) have appeared in federal or state court in a
significant number of habeas corpus proceedings for offenses
punished as second-degree or first-degree felonies or capital
felonies; and
(E) have in the 12 months preceding the
appointment participated in continuing legal education courses or
other training relating to habeas corpus proceedings, provided or
approved by a statewide association of criminal defense attorneys
who regularly represent indigent defendants and whose purposes
include providing continuing legal education, technical
assistance, and support programs.
(3) The [and the] convicting court may appoint an
attorney as counsel under this section only if the appointment is
approved by the court of criminal appeals in any manner provided by
those rules.
SECTION 2. Section 4A, Article 11.071, Code of Criminal
Procedure, is amended to read as follows:
Sec. 4A. UNTIMELY APPLICATION; APPLICATION NOT FILED;
CLAIMS NOT COGNIZABLE. (a) On command of the court of criminal
appeals, a counsel who files:
(1) an untimely application or fails to file an
application before the filing date applicable under Section 4(a) or
(b) shall show cause as to why the application was untimely filed or
not filed before the filing date; and
(2) an application containing a claim that is not
cognizable shall show cause as to why the application contains the
claim.
(b) At the conclusion of the counsel's presentation to the
court of criminal appeals, the court may:
(1) find that good cause has not been shown and dismiss
the application if the court finds that the untimely filing,
failure to file, or inclusion in the application of a claim that is
not cognizable is specifically due to an act or omission of the
applicant and not due to an act or omission of the counsel for the
applicant;
(2) permit the counsel to continue representation of
the applicant and establish a new filing date for the application,
which may be not more than 180 days from the date the court permits
the counsel to continue representation; or
(3) appoint new counsel to represent the applicant and
establish a new filing date for the application, which may be not
more than 270 days after the date the court appoints new counsel.
(c) The court of criminal appeals may hold in contempt
counsel who files an untimely application or fails to file an
application before the date required by Section 4(a) or (b) or who
files an application that contains a claim that is not cognizable.
The court of criminal appeals may punish as a separate instance of
contempt each day after the first day on which the counsel fails to
timely file the application. In addition to or in lieu of holding
counsel in contempt, the court of criminal appeals may enter an
order denying counsel compensation under Section 2A. If on more
than one occasion the court of criminal appeals finds that the
untimely filing, failure to file, or inclusion in the application
of a claim that is not cognizable is specifically due to an act or
omission of an attorney acting as counsel for the applicant and not
due to an act or omission of the applicant, the court shall prohibit
a trial court from subsequently appointing that attorney as counsel
under this section.
(d) If the court of criminal appeals establishes a new
filing date for the application, the court of criminal appeals
shall notify the convicting court of that fact and the convicting
court shall proceed under this article.
(e) Sections 2A and 3 apply to compensation and
reimbursement of counsel appointed under Subsection (b)(3) in the
same manner as if counsel had been appointed by the convicting
court.
(f) Notwithstanding any other provision of this article,
the court of criminal appeals shall appoint counsel and establish a
new filing date for application, which may be no later than the
270th day after the date on which counsel is appointed, for each
applicant who before September 1, 1999, filed an untimely
application or failed to file an application before the date
required by Section 4(a) or (b). Section 2A applies to the
compensation and payment of expenses of counsel appointed by the
court of criminal appeals under this subsection.
(g) It is the intent of the legislature that an applicant
not be penalized because counsel to the applicant has filed a
defective application under this article.
SECTION 3. The court of criminal appeals shall amend
standards previously adopted by the court to conform with the
requirements of Section 2(d), Article 11.071, Code of Criminal
Procedure, as amended by this Act, not later than the 60th day after
the effective date of this Act.
SECTION 4. An attorney appointed under Section 2, Article
11.071, Code of Criminal Procedure, as amended by this Act, on or
after January 1, 2010, must meet the standards adopted in
conformity with amended Section 2(d), Article 11.071, except that
the requirement that the attorney complete a course or training on
habeas corpus proceedings during the previous 12 months applies
only to an attorney appointed under Section 2 on or after January 1,
2011.
SECTION 5. The change in law made by this Act to Section 4A,
Article 11.071, Code of Criminal Procedure, applies only to an
application for a writ of habeas corpus filed on or after the
effective date of this Act. An application for a writ of habeas
corpus filed before the effective date of this Act is covered by the
law in effect when the application was filed, and the former law is
continued in effect for this purpose.
SECTION 6. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2009.