Texas 2009 - 81st Regular

Texas Senate Bill SB1091 Compare Versions

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1	1	S.B. No. 1091
2	2
3	3
4	4	AN ACT
5	5	relating to the establishment of the capital writs committee and
6	6	the office of capital writs and to the appointment and compensation
7	7	of certain counsel for indigent defendants in a capital case.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Subtitle F, Title 2, Government Code, is amended
10	10	by adding Chapter 78 to read as follows:
11	11	CHAPTER 78. CAPITAL WRITS COMMITTEE AND OFFICE OF CAPITAL WRITS
12	12	SUBCHAPTER A. CAPITAL WRITS COMMITTEE
13	13	Sec. 78.001. DEFINITIONS. In this subchapter:
14	14	(1) "Committee" means the capital writs committee
15	15	established under this subchapter.
16	16	(2) "Office of capital writs" means the office of
17	17	capital writs established under Subchapter B.
18	18	Sec. 78.002. ESTABLISHMENT OF COMMITTEE; DUTIES. (a) The
19	19	capital writs committee is established.
20	20	(b) The committee shall recommend to the court of criminal
21	21	appeals as provided by Section 78.004 a director for the office of
22	22	capital writs when a vacancy exists for the position of director.
23	23	Sec. 78.003. APPOINTMENT AND COMPOSITION OF COMMITTEE. (a)
24	24	The committee is composed of the following five members who are
25	25	appointed by the president of the State Bar of Texas, with
26	26	ratification by the executive committee of the State Bar of Texas:
27	27	(1) three attorneys who are members of the State Bar of
28	28	Texas and who are not employed as prosecutors or law enforcement
29	29	officials, all of whom must have criminal defense experience with
30	30	death penalty proceedings in this state; and
31	31	(2) two state district judges, one of whom serves as
32	32	presiding judge of an administrative judicial region.
33	33	(b) The committee shall elect one member of the committee to
34	34	serve as the presiding officer of the committee.
35	35	(c) The committee members serve at the pleasure of the
36	36	president of the State Bar of Texas, and the committee meets at the
37	37	call of the presiding officer of the committee.
38	38	Sec. 78.004. RECOMMENDATION AND APPOINTMENT OF DIRECTOR OF
39	39	OFFICE OF CAPITAL WRITS. (a) The committee shall submit to the
40	40	court of criminal appeals, in order of the committee's preference,
41	41	a list of the names of not more than five persons the committee
42	42	recommends that the court consider in appointing the director of
43	43	the office of capital writs when a vacancy exists for the position
44	44	of director. If the committee finds that three or more persons
45	45	under the committee's consideration are qualified to serve as the
46	46	director of the office of capital writs, the committee must include
47	47	at least three names in the list submitted under this subsection.
48	48	(b) Each person recommended to the court of criminal appeals
49	49	by the committee under Subsection (a):
50	50	(1) must exhibit proficiency and commitment to
51	51	providing quality representation to defendants in death penalty
52	52	cases, as described by the Guidelines and Standards for Texas
53	53	Capital Counsel, as published by the State Bar of Texas; and
54	54	(2) may not have been found by a state or federal court
55	55	to have rendered ineffective assistance of counsel during the trial
56	56	or appeal of a death penalty case.
57	57	(c) When a vacancy for the position exists, the court of
58	58	criminal appeals shall appoint from the list of persons submitted
59	59	to the court under Subsection (a) the director of the office of
60	60	capital writs.
61	61	[Sections 78.005-78.050 reserved for expansion]
62	62	SUBCHAPTER B. OFFICE OF CAPITAL WRITS
63	63	Sec. 78.051. DEFINITIONS. In this subchapter:
64	64	(1) "Committee" means the capital writs committee
65	65	established under Subchapter A.
66	66	(2) "Office" means the office of capital writs
67	67	established under this subchapter.
68	68	Sec. 78.052. ESTABLISHMENT; FUNDING. (a) The office of
69	69	capital writs is established and operates under the direction and
70	70	supervision of the director of the office.
71	71	(b) The office shall receive funds for personnel costs and
72	72	expenses:
73	73	(1) as specified in the General Appropriations Act;
74	74	and
75	75	(2) from the fair defense account under Section
76	76	71.058, in an amount sufficient to cover personnel costs and
77	77	expenses not covered by appropriations described by Subdivision
78	78	(1).
79	79	Sec. 78.053. DIRECTOR; STAFF. (a) The court of criminal
80	80	appeals shall appoint a director to direct and supervise the
81	81	operation of the office. The director serves a four-year term and
82	82	continues to serve until a successor has been appointed and
83	83	qualified. The court of criminal appeals may remove the director
84	84	only for good cause. The director may be reappointed for a second
85	85	or subsequent term.
86	86	(b) The director shall employ attorneys and employ or retain
87	87	licensed investigators and other personnel necessary to perform the
88	88	duties of the office. To be employed by the director, an attorney
89	89	may not have been found by a state or federal court to have rendered
90	90	ineffective assistance of counsel during the trial or appeal of a
91	91	death penalty case.
92	92	(c) The director and any attorney employed by the office may
93	93	not:
94	94	(1) engage in the private practice of criminal law; or
95	95	(2) accept anything of value not authorized by law for
96	96	services rendered under this subchapter.
97	97	Sec. 78.054. POWERS AND DUTIES. (a) The office may not
98	98	accept an appointment under Article 11.071, Code of Criminal
99	99	Procedure, if:
100	100	(1) a conflict of interest exists;
101	101	(2) the office has insufficient resources to provide
102	102	adequate representation for the defendant;
103	103	(3) the office is incapable of providing
104	104	representation for the defendant in accordance with the rules of
105	105	professional conduct; or
106	106	(4) other good cause is shown for not accepting the
107	107	appointment.
108	108	(b) The office may not represent a defendant in a federal
109	109	habeas review. The office may not represent a defendant in an
110	110	action or proceeding in state court other than an action or
111	111	proceeding that:
112	112	(1) is conducted under Article 11.071, Code of
113	113	Criminal Procedure;
114	114	(2) is collateral to the preparation of an application
115	115	under Article 11.071, Code of Criminal Procedure; or
116	116	(3) concerns any other post-conviction matter in a
117	117	death penalty case other than a direct appeal, including an action
118	118	or proceeding under Article 46.05 or Chapter 64, Code of Criminal
119	119	Procedure.
120	120	(c) Notwithstanding Article 26.04(p), Code of Criminal
121	121	Procedure, the office may independently investigate the financial
122	122	condition of any person the office is appointed to represent. The
123	123	office shall report the results of the investigation to the
124	124	appointing judge. The judge may hold a hearing to determine if the
125	125	person is indigent and entitled to representation under this
126	126	section.
127	127	Sec. 78.055. COMPENSATION OF OTHER APPOINTED ATTORNEYS. If
128	128	it is necessary that an attorney other than an attorney employed by
129	129	the office be appointed, that attorney shall be compensated as
130	130	provided by Articles 11.071 and 26.05, Code of Criminal Procedure.
131	131	Sec. 78.056. APPOINTMENT LIST. (a) The presiding judges of
132	132	the administrative judicial regions shall maintain a statewide list
133	133	of competent counsel available for appointment under Section 2(f),
134	134	Article 11.071, Code of Criminal Procedure, if the office does not
135	135	accept or is prohibited from accepting an appointment under Section
136	136	78.054. Each attorney on the list:
137	137	(1) must exhibit proficiency and commitment to
138	138	providing quality representation to defendants in death penalty
139	139	cases; and
140	140	(2) may not have been found by a state or federal court
141	141	to have rendered ineffective assistance of counsel during the trial
142	142	or appeal of a death penalty case.
143	143	(b) The Office of Court Administration of the Texas Judicial
144	144	System and the Task Force on Indigent Defense shall provide
145	145	administrative support necessary under this section.
146	146	SECTION 2. Subsections (b), (c), (e), and (f), Section 2, Article
147	147	11.071, Code of Criminal Procedure, are amended to read as follows:
148	148	(b) If a defendant is sentenced to death the convicting
149	149	court, immediately after judgment is entered under Article 42.01,
150	150	shall determine if the defendant is indigent and, if so, whether the
151	151	defendant desires appointment of counsel for the purpose of a writ
152	152	of habeas corpus. If the defendant desires appointment of counsel
153	153	for the purpose of a writ of habeas corpus, the court shall appoint
154	154	the office of capital writs to represent the defendant as provided
155	155	by Subsection (c).
156	156	(c) At the earliest practical time, but in no event later
157	157	than 30 days, after the convicting court makes the findings
158	158	required under Subsections (a) and (b), the convicting court shall
159	159	appoint the office of capital writs or, if the office of capital
160	160	writs does not accept or is prohibited from accepting an
161	161	appointment under Section 78.054, Government Code, other competent
162	162	counsel under Subsection (f), unless the applicant elects to
163	163	proceed pro se or is represented by retained counsel. On appointing
164	164	counsel under this section, the convicting court shall immediately
165	165	notify the court of criminal appeals of the appointment, including
166	166	in the notice a copy of the judgment and the name, address, and
167	167	telephone number of the appointed counsel.
168	168	(e) If the court of criminal appeals denies an applicant
169	169	relief under this article, an attorney appointed under this section
170	170	to represent the applicant shall, not later than the 15th day after
171	171	the date the court of criminal appeals denies relief or, if the case
172	172	is filed and set for submission, the 15th day after the date the
173	173	court of criminal appeals issues a mandate on the initial
174	174	application for a writ of habeas corpus under this article, move for
175	175	the appointment of [to be appointed as] counsel in federal habeas
176	176	review under 18 U.S.C. Section 3599 [21 U.S.C. Section 848(q) or
177	177	equivalent provision or, if necessary, move for the appointment of
178	178	other counsel under 21 U.S.C. Section 848(q) or equivalent
179	179	provision]. The attorney shall immediately file a copy of the
180	180	motion with the court of criminal appeals, and if the attorney fails
181	181	to do so, the court may take any action to ensure that the
182	182	applicant's right to federal habeas review is protected, including
183	183	initiating contempt proceedings against the attorney.
184	184	(f) If the office of capital writs does not accept or is
185	185	prohibited from accepting an appointment under Section 78.054,
186	186	Government Code, the [The] convicting court shall appoint counsel
187	187	from a list of competent counsel maintained by the presiding judges
188	188	of the administrative judicial regions under Section 78.056,
189	189	Government Code. The convicting court shall reasonably compensate
190	190	as provided by Section 2A an attorney appointed under this section,
191	191	other than an attorney employed by the office of capital writs,
192	192	regardless of whether the attorney is appointed by the convicting
193	193	court or was appointed by the court of criminal appeals under prior
194	194	law. An attorney appointed under this section who is employed by
195	195	the office of capital writs shall be compensated in accordance with
196	196	Subchapter B, Chapter 78, Government Code.
197	197	SECTION 3. Subsection (a), Section 2A, Article 11.071, Code
198	198	of Criminal Procedure, is amended to read as follows:
199	199	(a) The state shall reimburse a county for compensation of
200	200	counsel under Section 2, other than for compensation of counsel
201	201	employed by the office of capital writs, and for payment of expenses
202	202	under Section 3, regardless of whether counsel is employed by the
203	203	office of capital writs. The total amount of reimbursement to which
204	204	a county is entitled under this section for an application under
205	205	this article may not exceed $25,000. Compensation and expenses in
206	206	excess of the $25,000 reimbursement provided by the state are the
207	207	obligation of the county.
208	208	SECTION 4. Section 3, Article 11.071, Code of Criminal
209	209	Procedure, is amended by adding Subsection (f) to read as follows:
210	210	(f) This section applies to counsel's investigation of the
211	211	factual and legal grounds for the filing of an application for a
212	212	writ of habeas corpus, regardless of whether counsel is employed by
213	213	the office of capital writs.
214	214	SECTION 5. Subsections (e) and (f), Section 4A, Article
215	215	11.071, Code of Criminal Procedure, are amended to read as follows:
216	216	(e) Sections 2A and 3 apply to compensation and
217	217	reimbursement of counsel appointed under Subsection (b)(3) in the
218	218	same manner as if counsel had been appointed by the convicting
219	219	court, unless the attorney is employed by the office of capital
220	220	writs, in which case the compensation of that attorney is governed
221	221	by Subchapter B, Chapter 78, Government Code.
222	222	(f) Notwithstanding any other provision of this article,
223	223	the court of criminal appeals shall appoint counsel and establish a
224	224	new filing date for application, which may be no later than the
225	225	270th day after the date on which counsel is appointed, for each
226	226	applicant who before September 1, 1999, filed an untimely
227	227	application or failed to file an application before the date
228	228	required by Section 4(a) or (b). Section 2A applies to the
229	229	compensation and payment of expenses of counsel appointed by the
230	230	court of criminal appeals under this subsection, unless the
231	231	attorney is employed by the office of capital writs, in which case
232	232	the compensation of that attorney is governed by Subchapter B,
233	233	Chapter 78, Government Code.
234	234	SECTION 6. Subsection (b), Article 26.04, Code of Criminal
235	235	Procedure, is amended to read as follows:
236	236	(b) Procedures adopted under Subsection (a) shall:
237	237	(1) authorize only the judges of the county courts,
238	238	statutory county courts, and district courts trying criminal cases
239	239	in the county, or the judges' designee, to appoint counsel for
240	240	indigent defendants in the county;
241	241	(2) apply to each appointment of counsel made by a
242	242	judge or the judges' designee in the county;
243	243	(3) ensure that each indigent defendant in the county
244	244	who is charged with a misdemeanor punishable by confinement or with
245	245	a felony and who appears in court without counsel has an opportunity
246	246	to confer with appointed counsel before the commencement of
247	247	judicial proceedings;
248	248	(4) require appointments for defendants in capital
249	249	cases in which the death penalty is sought to comply with any
250	250	applicable [the] requirements under Articles 11.071 and [Article]
251	251	26.052;
252	252	(5) ensure that each attorney appointed from a public
253	253	appointment list to represent an indigent defendant perform the
254	254	attorney's duty owed to the defendant in accordance with the
255	255	adopted procedures, the requirements of this code, and applicable
256	256	rules of ethics; and
257	257	(6) ensure that appointments are allocated among
258	258	qualified attorneys in a manner that is fair, neutral, and
259	259	nondiscriminatory.
260	260	SECTION 7. Subsection (a), Article 26.044, Code of Criminal
261	261	Procedure, is amended by adding Subdivision (3) to read as follows:
262	262	(3) "Office of capital writs" means the office of
263	263	capital writs established under Subchapter B, Chapter 78,
264	264	Government Code.
265	265	SECTION 8. Article 26.044, Code of Criminal Procedure, is
266	266	amended by adding Subsection (n) to read as follows:
267	267	(n) An attorney employed by a public defender's office may
268	268	be appointed with respect to an application for a writ of habeas
269	269	corpus only if:
270	270	(1) an attorney employed by the office of capital
271	271	writs is not appointed in the case; and
272	272	(2) the attorney employed by the public defender's
273	273	office is on the list of competent counsel maintained under Section
274	274	78.056, Government Code.
275	275	SECTION 9. Subsection (a), Article 26.05, Code of Criminal
276	276	Procedure, is amended to read as follows:
277	277	(a) A counsel, other than an attorney with a public defender
278	278	or an attorney employed by the office of capital writs, appointed to
279	279	represent a defendant in a criminal proceeding, including a habeas
280	280	corpus hearing, shall be paid a reasonable attorney's fee for
281	281	performing the following services, based on the time and labor
282	282	required, the complexity of the case, and the experience and
283	283	ability of the appointed counsel:
284	284	(1) time spent in court making an appearance on behalf
285	285	of the defendant as evidenced by a docket entry, time spent in
286	286	trial, and time spent in a proceeding in which sworn oral testimony
287	287	is elicited;
288	288	(2) reasonable and necessary time spent out of court
289	289	on the case, supported by any documentation that the court
290	290	requires;
291	291	(3) preparation of an appellate brief and preparation
292	292	and presentation of oral argument to a court of appeals or the Court
293	293	of Criminal Appeals; and
294	294	(4) preparation of a motion for rehearing.
295	295	SECTION 10. Section 71.058, Government Code, is amended to
296	296	read as follows:
297	297	Sec. 71.058. FAIR DEFENSE ACCOUNT. The fair defense
298	298	account is an account in the general revenue fund that may be
299	299	appropriated only to:
300	300	(1) the Task Force on Indigent Defense for the purpose
301	301	of implementing this subchapter; and
302	302	(2) the office of capital writs for the purpose of
303	303	implementing Subchapter B, Chapter 78.
304	304	SECTION 11. Subsection (d), Section 2, Article 11.071, Code
305	305	of Criminal Procedure, is repealed, effective January 1, 2010.
306	306	SECTION 12. (a) Not later than January 1, 2010, in
307	307	accordance with Section 78.056, Government Code, as added by this
308	308	Act, the presiding judges of the administrative judicial regions
309	309	shall complete the statewide list of competent counsel available
310	310	for appointment to represent defendants in applications for writs
311	311	of habeas corpus.
312	312	(b) Not later than January 15, 2010, the president of the
313	313	State Bar of Texas shall appoint the members of the capital writs
314	314	committee.
315	315	(c) Not later than May 15, 2010, the capital writs committee
316	316	shall submit to the Texas Court of Criminal Appeals the list of
317	317	candidates for the position of the director of the office of capital
318	318	writs.
319	319	(d) Not later than September 1, 2010, the Texas Court of
320	320	Criminal Appeals shall appoint the director of the office of
321	321	capital writs under Chapter 78, Government Code, as added by this
322	322	Act.
323	323	SECTION 13. This Act takes effect September 1, 2009.
324	324	______________________________ ______________________________
325	325	President of the Senate Speaker of the House
326	326	I hereby certify that S.B. No. 1091 passed the Senate on
327	327	April 9, 2009, by the following vote: Yeas 31, Nays 0; and that
328	328	the Senate concurred in House amendment on May 29, 2009, by the
329	329	following vote: Yeas 31, Nays 0.
330	330	______________________________
331	331	Secretary of the Senate
332	332	I hereby certify that S.B. No. 1091 passed the House, with
333	333	amendment, on May 20, 2009, by the following vote: Yeas 132,
334	334	Nays 6, one present not voting.
335	335	______________________________
336	336	Chief Clerk of the House
337	337	Approved:
338	338	______________________________
339	339	Date
340	340	______________________________
341	341	Governor