81R10340 JRH-F
By: Duncan S.B. No. 1710
A BILL TO BE ENTITLED
AN ACT
relating to the creation of independent assigned counsel programs.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 26.04, Code of Criminal Procedure, is
amended by amending Subsections (a) and (g) and adding Subsection
(s) to read as follows:
(a) The judges of the county courts, statutory county
courts, and district courts trying criminal cases in each county,
by local rule, shall adopt and publish written countywide
procedures for timely and fairly appointing counsel for an indigent
defendant in the county arrested for or charged with a misdemeanor
punishable by confinement or a felony. The procedures must be
consistent with this article and Articles 1.051, 15.17, 26.05, and
26.052. A court shall appoint an attorney from a public appointment
list using a system of rotation, unless the court appoints an
attorney under Subsection (f), (h), or (i) or, if applicable, an
independent assigned counsel program appoints an attorney under
Article 26.047. The court shall appoint attorneys from among the
next five names on the appointment list in the order in which the
attorneys' names appear on the list, unless the court makes a
finding of good cause on the record for appointing an attorney out
of order. An attorney who is not appointed in the order in which the
attorney's name appears on the list shall remain next in order on
the list.
(g) A countywide alternative program for appointing counsel
for indigent defendants in criminal cases is established by a
formal action in which two-thirds of the judges of the courts
designated under this subsection vote to establish the alternative
program. An alternative program for appointing counsel in
misdemeanor and felony cases may be established in the manner
provided by this subsection by the judges of the county courts,
statutory county courts, and district courts trying criminal cases
in the county. An alternative program for appointing counsel in
misdemeanor cases may be established in the manner provided by this
subsection by the judges of the county courts and statutory county
courts trying criminal cases in the county. An alternative program
for appointing counsel in felony cases may be established in the
manner provided by this subsection by the judges of the district
courts trying criminal cases in the county. In a county in which an
alternative program is established:
(1) the alternative program may:
(A) use a single method for appointing counsel or
a combination of methods; and
(B) use a multicounty appointment list using a
system of rotation; and
(2) the procedures adopted under Subsection (a) must
ensure that:
(A) attorneys appointed using the alternative
program to represent defendants in misdemeanor cases punishable by
confinement:
(i) meet specified objective
qualifications, which may be graduated according to the degree of
seriousness of the offense, for providing representation in
misdemeanor cases punishable by confinement; and
(ii) are approved by a majority of the
judges of the county courts and statutory county courts trying
misdemeanor cases in the county or, if applicable, the director of
an independent assigned counsel program operated under Article
26.047;
(B) attorneys appointed using the alternative
program to represent defendants in felony cases:
(i) meet specified objective
qualifications, which may be graduated according to the degree of
seriousness of the offense, for providing representation in felony
cases; and
(ii) are approved by a majority of the
judges of the district courts trying felony cases in the county or
the independent assigned counsel program director;
(C) appointments for defendants in capital cases
in which the death penalty is sought comply with the requirements of
Article 26.052; and
(D) appointments are reasonably and impartially
allocated among qualified attorneys.
(s) For purposes of this article, an independent assigned
counsel program under Article 26.047 is a designee of a judge or
court.
SECTION 2. Chapter 26, Code of Criminal Procedure, is
amended by adding Article 26.047 to read as follows:
Art. 26.047. INDEPENDENT ASSIGNED COUNSEL PROGRAM. (a) In
this article:
(1) "Governmental entity" has the meaning assigned by
Article 26.044.
(2) "Independent assigned counsel program" or
"program" means a program operated with public funds:
(A) by a governmental entity, nonprofit
corporation, or bar association under a written agreement with a
governmental entity, other than an individual judge or court; and
(B) for the purpose of appointing counsel under
Article 26.04 or Section 51.10, Family Code.
(b) The commissioners court of any county, on written
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 an independent assigned
counsel program. The commissioners courts of two or more counties
may enter into a written agreement to jointly appoint and fund a
governmental entity, nonprofit corporation, or bar association to
operate an independent assigned counsel program. In appointing an
entity to operate an independent assigned counsel program under
this subsection, the commissioners court shall specify or the
commissioners courts shall jointly specify:
(1) the types of cases in which the program may appoint
counsel under Article 26.04 or Section 51.10, Family Code, and the
courts in which the counsel appointed by the program may be required
to appear; and
(2) the term of any agreement establishing a program
and how the agreement may be terminated or renewed.
(c) The commissioners court or commissioners courts shall
require a written plan of operation from an entity operating a
program under this article. The plan of operation must include:
(1) a budget for the program, including salaries;
(2) a description of each personnel position,
including the program's director;
(3) the maximum allowable caseload for each attorney
appointed by the program;
(4) provisions for training personnel of the program
and attorneys appointed under the program;
(5) a description of anticipated overhead costs for
the program;
(6) a policy regarding licensed investigators and
expert witnesses used by attorneys appointed under the program;
(7) a policy to ensure that appointments are
reasonably and impartially allocated among qualified attorneys;
and
(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.
(d) The director of a program under this article must be
directed by a person who:
(1) is a member of the State Bar of Texas;
(2) has practiced law for at least three years; and
(3) has substantial experience in the practice of
criminal law.
(e) The program's public appointment list from which an
attorney is appointed must contain the names of qualified
attorneys, each of whom:
(1) applies to be included on the list;
(2) meets any applicable requirements specified by the
procedure for appointing counsel adopted under Article 26.04(a) and
the Task Force on Indigent Defense; and
(3) is approved by the program director.
(f) A court may replace an attorney appointed by the program
for the same reasons and in the same manner described by Article
26.04(k).
(g) An independent assigned counsel program is entitled to
receive funds for personnel costs and expenses incurred in amounts
fixed by the commissioners court and paid out of the appropriate
county fund, or jointly fixed by the commissioners courts and
proportionately paid out of each appropriate county fund if the
program serves more than one county.
(h) An independent assigned counsel program may employ
personnel and enter into contracts necessary to perform the
program's duties as specified by the commissioners court or
commissioners courts under this article.
SECTION 3. Article 26.05(c), Code of Criminal Procedure, is
amended 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 an independent assigned counsel program under
Article 26.047, the director of that program and the judge or
director, as applicable, approves the payment. If the judge or
director disapproves the requested amount of payment, the judge or
director shall make written findings stating the amount of payment
that the judge or director 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.
SECTION 4. Section 71.001, Government Code, is amended by
adding Subdivision (6-a) to read as follows:
(6-a) "Independent assigned counsel program" has the
meaning assigned by Article 26.047, Code of Criminal Procedure.
SECTION 5. Section 71.060(a), Government Code, is amended
to read as follows:
(a) The Task Force on Indigent Defense shall develop
policies and standards for providing legal representation and other
defense services to indigent defendants at trial, on appeal, and in
postconviction proceedings. The policies and standards may
include:
(1) performance standards for counsel appointed to
represent indigent defendants;
(2) qualification standards under which attorneys may
qualify for appointment to represent indigent defendants,
including:
(A) qualifications commensurate with the
seriousness of the nature of the proceeding;
(B) qualifications appropriate for
representation of mentally ill defendants and noncitizen
defendants;
(C) successful completion of relevant continuing
legal education programs approved by the council; and
(D) testing and certification standards;
(3) standards for ensuring appropriate appointed
caseloads for counsel appointed to represent indigent defendants;
(4) standards for determining whether a person accused
of a crime or juvenile offense is indigent;
(5) policies and standards governing the organization
and operation of an assigned counsel program;
(6) policies and standards governing the organization
and operation of a public defender consistent with recognized
national policies and standards;
(7) standards for providing indigent defense services
under a contract defender program consistent with recognized
national policies and standards;
(8) standards governing the reasonable compensation
of counsel appointed to represent indigent defendants;
(9) standards governing the availability and
reasonable compensation of providers of indigent defense support
services for counsel appointed to represent indigent defendants;
(10) standards governing the operation of a legal
clinic or program that provides legal services to indigent
defendants and is sponsored by a law school approved by the supreme
court;
(11) policies and standards governing the appointment
of attorneys to represent children in proceedings under Title 3,
Family Code; [and]
(12) policies and standards governing the
organization and operation of an independent assigned counsel
program consistent with nationally recognized policies and
standards; and
(13) other policies and standards for providing
indigent defense services as determined by the task force to be
appropriate.
SECTION 6. This Act takes effect September 1, 2009.