S.B. No. 1091
AN ACT
relating to the establishment of the capital writs committee and
the office of capital writs and to the appointment and compensation
of certain counsel for indigent defendants in a capital case.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle F, Title 2, Government Code, is amended
by adding Chapter 78 to read as follows:
CHAPTER 78. CAPITAL WRITS COMMITTEE AND OFFICE OF CAPITAL WRITS
SUBCHAPTER A. CAPITAL WRITS COMMITTEE
Sec. 78.001. DEFINITIONS. In this subchapter:
(1) "Committee" means the capital writs committee
established under this subchapter.
(2) "Office of capital writs" means the office of
capital writs established under Subchapter B.
Sec. 78.002. ESTABLISHMENT OF COMMITTEE; DUTIES. (a) The
capital writs committee is established.
(b) The committee shall recommend to the court of criminal
appeals as provided by Section 78.004 a director for the office of
capital writs when a vacancy exists for the position of director.
Sec. 78.003. APPOINTMENT AND COMPOSITION OF COMMITTEE. (a)
The committee is composed of the following five members who are
appointed by the president of the State Bar of Texas, with
ratification by the executive committee of the State Bar of Texas:
(1) three attorneys who are members of the State Bar of
Texas and who are not employed as prosecutors or law enforcement
officials, all of whom must have criminal defense experience with
death penalty proceedings in this state; and
(2) two state district judges, one of whom serves as
presiding judge of an administrative judicial region.
(b) The committee shall elect one member of the committee to
serve as the presiding officer of the committee.
(c) The committee members serve at the pleasure of the
president of the State Bar of Texas, and the committee meets at the
call of the presiding officer of the committee.
Sec. 78.004. RECOMMENDATION AND APPOINTMENT OF DIRECTOR OF
OFFICE OF CAPITAL WRITS. (a) The committee shall submit to the
court of criminal appeals, in order of the committee's preference,
a list of the names of not more than five persons the committee
recommends that the court consider in appointing the director of
the office of capital writs when a vacancy exists for the position
of director. If the committee finds that three or more persons
under the committee's consideration are qualified to serve as the
director of the office of capital writs, the committee must include
at least three names in the list submitted under this subsection.
(b) Each person recommended to the court of criminal appeals
by the committee under Subsection (a):
(1) must exhibit proficiency and commitment to
providing quality representation to defendants in death penalty
cases, as described by the Guidelines and Standards for Texas
Capital Counsel, as published by the State Bar of Texas; and
(2) may not have been found by a state or federal court
to have rendered ineffective assistance of counsel during the trial
or appeal of a death penalty case.
(c) When a vacancy for the position exists, the court of
criminal appeals shall appoint from the list of persons submitted
to the court under Subsection (a) the director of the office of
capital writs.
[Sections 78.005-78.050 reserved for expansion]
SUBCHAPTER B. OFFICE OF CAPITAL WRITS
Sec. 78.051. DEFINITIONS. In this subchapter:
(1) "Committee" means the capital writs committee
established under Subchapter A.
(2) "Office" means the office of capital writs
established under this subchapter.
Sec. 78.052. ESTABLISHMENT; FUNDING. (a) The office of
capital writs is established and operates under the direction and
supervision of the director of the office.
(b) The office shall receive funds for personnel costs and
expenses:
(1) as specified in the General Appropriations Act;
and
(2) from the fair defense account under Section
71.058, in an amount sufficient to cover personnel costs and
expenses not covered by appropriations described by Subdivision
(1).
Sec. 78.053. DIRECTOR; STAFF. (a) The court of criminal
appeals shall appoint a director to direct and supervise the
operation of the office. The director serves a four-year term and
continues to serve until a successor has been appointed and
qualified. The court of criminal appeals may remove the director
only for good cause. The director may be reappointed for a second
or subsequent term.
(b) The director shall employ attorneys and employ or retain
licensed investigators and other personnel necessary to perform the
duties of the office. To be employed by the director, an attorney
may not have been found by a state or federal court to have rendered
ineffective assistance of counsel during the trial or appeal of a
death penalty case.
(c) The director and any attorney employed by the office may
not:
(1) engage in the private practice of criminal law; or
(2) accept anything of value not authorized by law for
services rendered under this subchapter.
Sec. 78.054. POWERS AND DUTIES. (a) The office may not
accept an appointment under Article 11.071, Code of Criminal
Procedure, if:
(1) a conflict of interest exists;
(2) the office has insufficient resources to provide
adequate representation for the defendant;
(3) the office is incapable of providing
representation for the defendant in accordance with the rules of
professional conduct; or
(4) other good cause is shown for not accepting the
appointment.
(b) The office may not represent a defendant in a federal
habeas review. The office may not represent a defendant in an
action or proceeding in state court other than an action or
proceeding that:
(1) is conducted under Article 11.071, Code of
Criminal Procedure;
(2) is collateral to the preparation of an application
under Article 11.071, Code of Criminal Procedure; or
(3) concerns any other post-conviction matter in a
death penalty case other than a direct appeal, including an action
or proceeding under Article 46.05 or Chapter 64, Code of Criminal
Procedure.
(c) Notwithstanding Article 26.04(p), Code of Criminal
Procedure, the office may independently investigate the financial
condition of any person the office is appointed to represent. The
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
section.
Sec. 78.055. COMPENSATION OF OTHER APPOINTED ATTORNEYS. If
it is necessary that an attorney other than an attorney employed by
the office be appointed, that attorney shall be compensated as
provided by Articles 11.071 and 26.05, Code of Criminal Procedure.
Sec. 78.056. APPOINTMENT LIST. (a) The presiding judges of
the administrative judicial regions shall maintain a statewide list
of competent counsel available for appointment under Section 2(f),
Article 11.071, Code of Criminal Procedure, if the office does not
accept or is prohibited from accepting an appointment under Section
78.054. Each attorney on the list:
(1) must exhibit proficiency and commitment to
providing quality representation to defendants in death penalty
cases; and
(2) may not have been found by a state or federal court
to have rendered ineffective assistance of counsel during the trial
or appeal of a death penalty case.
(b) The Office of Court Administration of the Texas Judicial
System and the Task Force on Indigent Defense shall provide
administrative support necessary under this section.
SECTION 2. Subsections (b), (c), (e), and (f), Section 2, Article
11.071, Code of Criminal Procedure, are amended to read as follows:
(b) If a defendant is sentenced to death the convicting
court, immediately after judgment is entered under Article 42.01,
shall determine if the defendant is indigent and, if so, whether the
defendant desires appointment of counsel for the purpose of a writ
of habeas corpus. If the defendant desires appointment of counsel
for the purpose of a writ of habeas corpus, the court shall appoint
the office of capital writs to represent the defendant as provided
by Subsection (c).
(c) At the earliest practical time, but in no event later
than 30 days, after the convicting court makes the findings
required under Subsections (a) and (b), the convicting court shall
appoint the office of capital writs or, if the office of capital
writs does not accept or is prohibited from accepting an
appointment under Section 78.054, Government Code, other competent
counsel under Subsection (f), unless the applicant elects to
proceed pro se or is represented by retained counsel. On appointing
counsel under this section, the convicting court shall immediately
notify the court of criminal appeals of the appointment, including
in the notice a copy of the judgment and the name, address, and
telephone number of the appointed counsel.
(e) If the court of criminal appeals denies an applicant
relief under this article, an attorney appointed under this section
to represent the applicant shall, not later than the 15th day after
the date the court of criminal appeals denies relief or, if the case
is filed and set for submission, the 15th day after the date the
court of criminal appeals issues a mandate on the initial
application for a writ of habeas corpus under this article, move for
the appointment of [to be appointed as] counsel in federal habeas
review under 18 U.S.C. Section 3599 [21 U.S.C. Section 848(q) or
equivalent provision or, if necessary, move for the appointment of
other counsel under 21 U.S.C. Section 848(q) or equivalent
provision]. The attorney shall immediately file a copy of the
motion with the court of criminal appeals, and if the attorney fails
to do so, the court may take any action to ensure that the
applicant's right to federal habeas review is protected, including
initiating contempt proceedings against the attorney.
(f) If the office of capital writs does not accept or is
prohibited from accepting an appointment under Section 78.054,
Government Code, the [The] convicting court shall appoint counsel
from a list of competent counsel maintained by the presiding judges
of the administrative judicial regions under Section 78.056,
Government Code. The convicting court shall reasonably compensate
as provided by Section 2A an attorney appointed under this section,
other than an attorney employed by the office of capital writs,
regardless of whether the attorney is appointed by the convicting
court or was appointed by the court of criminal appeals under prior
law. An attorney appointed under this section who is employed by
the office of capital writs shall be compensated in accordance with
Subchapter B, Chapter 78, Government Code.
SECTION 3. Subsection (a), Section 2A, Article 11.071, Code
of Criminal Procedure, is amended to read as follows:
(a) The state shall reimburse a county for compensation of
counsel under Section 2, other than for compensation of counsel
employed by the office of capital writs, and for payment of expenses
under Section 3, regardless of whether counsel is employed by the
office of capital writs. The total amount of reimbursement to which
a county is entitled under this section for an application under
this article may not exceed $25,000. Compensation and expenses in
excess of the $25,000 reimbursement provided by the state are the
obligation of the county.
SECTION 4. Section 3, Article 11.071, Code of Criminal
Procedure, is amended by adding Subsection (f) to read as follows:
(f) This section applies to counsel's investigation of the
factual and legal grounds for the filing of an application for a
writ of habeas corpus, regardless of whether counsel is employed by
the office of capital writs.
SECTION 5. Subsections (e) and (f), Section 4A, Article
11.071, Code of Criminal Procedure, are amended to read as follows:
(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, unless the attorney is employed by the office of capital
writs, in which case the compensation of that attorney is governed
by Subchapter B, Chapter 78, Government Code.
(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, unless the
attorney is employed by the office of capital writs, in which case
the compensation of that attorney is governed by Subchapter B,
Chapter 78, Government Code.
SECTION 6. Subsection (b), Article 26.04, Code of Criminal
Procedure, is amended to read as follows:
(b) Procedures adopted under Subsection (a) shall:
(1) authorize only the judges of the county courts,
statutory county courts, and district courts trying criminal cases
in the county, or the judges' designee, to appoint counsel for
indigent defendants in the county;
(2) apply to each appointment of counsel made by a
judge or the judges' designee in the county;
(3) ensure that each indigent defendant in the county
who is charged with a misdemeanor punishable by confinement or with
a felony and who appears in court without counsel has an opportunity
to confer with appointed counsel before the commencement of
judicial proceedings;
(4) require appointments for defendants in capital
cases in which the death penalty is sought to comply with any
applicable [the] requirements under Articles 11.071 and [Article]
26.052;
(5) ensure that each attorney appointed from a public
appointment list to represent an indigent defendant perform the
attorney's duty owed to the defendant in accordance with the
adopted procedures, the requirements of this code, and applicable
rules of ethics; and
(6) ensure that appointments are allocated among
qualified attorneys in a manner that is fair, neutral, and
nondiscriminatory.
SECTION 7. Subsection (a), Article 26.044, Code of Criminal
Procedure, is amended by adding Subdivision (3) to read as follows:
(3) "Office of capital writs" means the office of
capital writs established under Subchapter B, Chapter 78,
Government Code.
SECTION 8. Article 26.044, Code of Criminal Procedure, is
amended by adding Subsection (n) to read as follows:
(n) An attorney employed by a public defender's office may
be appointed with respect to an application for a writ of habeas
corpus only if:
(1) an attorney employed by the office of capital
writs is not appointed in the case; and
(2) the attorney employed by the public defender's
office is on the list of competent counsel maintained under Section
78.056, Government Code.
SECTION 9. Subsection (a), Article 26.05, Code of Criminal
Procedure, is amended to read as follows:
(a) A counsel, other than an attorney with a public defender
or an attorney employed by the office of capital writs, appointed to
represent a defendant in a criminal proceeding, including a habeas
corpus hearing, shall be paid a reasonable attorney's fee for
performing the following services, based on the time and labor
required, the complexity of the case, and the experience and
ability of the appointed counsel:
(1) time spent in court making an appearance on behalf
of the defendant as evidenced by a docket entry, time spent in
trial, and time spent in a proceeding in which sworn oral testimony
is elicited;
(2) reasonable and necessary time spent out of court
on the case, supported by any documentation that the court
requires;
(3) preparation of an appellate brief and preparation
and presentation of oral argument to a court of appeals or the Court
of Criminal Appeals; and
(4) preparation of a motion for rehearing.
SECTION 10. Section 71.058, Government Code, is amended to
read as follows:
Sec. 71.058. FAIR DEFENSE ACCOUNT. The fair defense
account is an account in the general revenue fund that may be
appropriated only to:
(1) the Task Force on Indigent Defense for the purpose
of implementing this subchapter; and
(2) the office of capital writs for the purpose of
implementing Subchapter B, Chapter 78.
SECTION 11. Subsection (d), Section 2, Article 11.071, Code
of Criminal Procedure, is repealed, effective January 1, 2010.
SECTION 12. (a) Not later than January 1, 2010, in
accordance with Section 78.056, Government Code, as added by this
Act, the presiding judges of the administrative judicial regions
shall complete the statewide list of competent counsel available
for appointment to represent defendants in applications for writs
of habeas corpus.
(b) Not later than January 15, 2010, the president of the
State Bar of Texas shall appoint the members of the capital writs
committee.
(c) Not later than May 15, 2010, the capital writs committee
shall submit to the Texas Court of Criminal Appeals the list of
candidates for the position of the director of the office of capital
writs.
(d) Not later than September 1, 2010, the Texas Court of
Criminal Appeals shall appoint the director of the office of
capital writs under Chapter 78, Government Code, as added by this
Act.
SECTION 13. This Act takes effect September 1, 2009.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1091 passed the Senate on
April 9, 2009, by the following vote: Yeas 31, Nays 0; and that
the Senate concurred in House amendment on May 29, 2009, by the
following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1091 passed the House, with
amendment, on May 20, 2009, by the following vote: Yeas 132,
Nays 6, one present not voting.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor