Texas 2009 - 81st Regular

Texas Senate Bill SB1710 Compare Versions

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1	1	By: Duncan S.B. No. 1710
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to the creation of independent assigned counsel programs.
7	7	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
8	8	SECTION 1. Article 26.04, Code of Criminal Procedure, is
9	9	amended by amending Subsection (a) and adding Subsection (f-1) to
10	10	read as follows:
11	11	(a) The judges of the county courts, statutory county
12	12	courts, and district courts trying criminal cases in each county,
13	13	by local rule, shall adopt and publish written countywide
14	14	procedures for timely and fairly appointing counsel for an indigent
15	15	defendant in the county arrested for or charged with a misdemeanor
16	16	punishable by confinement or a felony. The procedures must be
17	17	consistent with this article and Articles 1.051, 15.17, 26.05, and
18	18	26.052. A court shall appoint an attorney from a public appointment
19	19	list using a system of rotation, unless the court appoints an
20	20	attorney under Subsection (f), (f-1), (h), or (i). The court shall
21	21	appoint attorneys from among the next five names on the appointment
22	22	list in the order in which the attorneys' names appear on the list,
23	23	unless the court makes a finding of good cause on the record for
24	24	appointing an attorney out of order. An attorney who is not
25	25	appointed in the order in which the attorney's name appears on the
26	26	list shall remain next in order on the list.
27	27	(f-1) In a county in which an independent assigned counsel
28	28	program is operated in accordance with Article 26.047, the
29	29	independent assigned counsel program may appoint counsel to
30	30	represent the defendant in accordance with guidelines established
31	31	for the program.
32	32	SECTION 2. Chapter 26, Code of Criminal Procedure, is
33	33	amended by adding Article 26.047 to read as follows:
34	34	Art. 26.047. INDEPENDENT ASSIGNED COUNSEL PROGRAM. (a) In
35	35	this article:
36	36	(1) "Governmental entity" has the meaning assigned by
37	37	Article 26.044.
38	38	(2) "Independent assigned counsel program" or
39	39	"program" means a program operated with public funds:
40	40	(A) by a governmental entity, nonprofit
41	41	corporation, or bar association under a written agreement with a
42	42	governmental entity, other than an individual judge or court; and
43	43	(B) for the purpose of appointing counsel under
44	44	Article 26.04 or Section 51.10, Family Code.
45	45	(b) The commissioners court of any county, on written
46	46	approval of a judge of the juvenile court of a county or a county
47	47	court, statutory county court, or district court trying criminal
48	48	cases in the county, may appoint a governmental entity, nonprofit
49	49	corporation, or bar association to operate an independent assigned
50	50	counsel program. The commissioners courts of two or more counties
51	51	may enter into a written agreement to jointly appoint and fund a
52	52	governmental entity, nonprofit corporation, or bar association to
53	53	operate an independent assigned counsel program. In appointing an
54	54	entity to operate an independent assigned counsel program under
55	55	this subsection, the commissioners court shall specify or the
56	56	commissioners courts shall jointly specify:
57	57	(1) the types of cases in which the program may appoint
58	58	counsel under Article 26.04 or Section 51.10, Family Code, and the
59	59	courts in which the counsel appointed by the program may be required
60	60	to appear; and
61	61	(2) the term of any agreement establishing a program
62	62	and how the agreement may be terminated or renewed.
63	63	(c) The commissioners court or commissioners courts shall
64	64	require a written plan of operation from an entity operating a
65	65	program under this article. The plan of operation must include:
66	66	(1) a budget for the program, including salaries;
67	67	(2) a description of each personnel position,
68	68	including the program's director;
69	69	(3) the maximum allowable caseload for each attorney
70	70	appointed by the program;
71	71	(4) provisions for training personnel of the program
72	72	and attorneys appointed under the program;
73	73	(5) a description of anticipated overhead costs for
74	74	the program;
75	75	(6) a policy regarding licensed investigators and
76	76	expert witnesses used by attorneys appointed under the program;
77	77	(7) a policy to ensure that appointments are
78	78	reasonably and impartially allocated among qualified attorneys;
79	79	and
80	80	(8) a policy to ensure that an attorney appointed
81	81	under the program does not accept appointment in a case that
82	82	involves a conflict of interest for the attorney that has not been
83	83	waived by all affected clients.
84	84	(d) A program under this article must have a director.
85	85	Unless the program uses a review committee appointed under
86	86	Subsection (e), a program under this article must be directed by a
87	87	person who:
88	88	(1) is a member of the State Bar of Texas;
89	89	(2) has practiced law for at least three years; and
90	90	(3) has substantial experience in the practice of
91	91	criminal law.
92	92	(e) The governmental entity, nonprofit corporation, or bar
93	93	association appointed under Subsection (b) may appoint a review
94	94	committee of three or more individuals to appoint attorneys to the
95	95	program's public appointment list described by Subsection (f).
96	96	Each member of the committee:
97	97	(1) must meet the requirements described by Subsection
98	98	(d);
99	99	(2) may not be employed as a prosecutor; and
100	100	(3) may not be included on or apply for inclusion on
101	101	the public appointment list described by Subsection (f).
102	102	(f) The program's public appointment list from which an
103	103	attorney is appointed must contain the names of qualified
104	104	attorneys, each of whom:
105	105	(1) applies to be included on the list;
106	106	(2) meets any applicable requirements specified by the
107	107	procedure for appointing counsel adopted under Article 26.04(a) and
108	108	the Task Force on Indigent Defense; and
109	109	(3) is approved by the program director or review
110	110	committee, as applicable.
111	111	(g) A court may replace an attorney appointed by the program
112	112	for the same reasons and in the same manner described by Article
113	113	26.04(k).
114	114	(h) An independent assigned counsel program is entitled to
115	115	receive funds for personnel costs and expenses incurred in amounts
116	116	fixed by the commissioners court and paid out of the appropriate
117	117	county fund, or jointly fixed by the commissioners courts and
118	118	proportionately paid out of each appropriate county fund if the
119	119	program serves more than one county.
120	120	(i) An independent assigned counsel program may employ
121	121	personnel and enter into contracts necessary to perform the
122	122	program's duties as specified by the commissioners court or
123	123	commissioners courts under this article.
124	124	SECTION 3. Subsection (c), Article 26.05, Code of Criminal
125	125	Procedure, is amended to read as follows:
126	126	(c) Each fee schedule adopted shall state reasonable fixed
127	127	rates or minimum and maximum hourly rates, taking into
128	128	consideration reasonable and necessary overhead costs and the
129	129	availability of qualified attorneys willing to accept the stated
130	130	rates, and shall provide a form for the appointed counsel to itemize
131	131	the types of services performed. No payment shall be made under
132	132	this article until the form for itemizing the services performed is
133	133	submitted to the judge presiding over the proceedings or, if the
134	134	county operates an independent assigned counsel program under
135	135	Article 26.047, the director of the program, and the judge or
136	136	director, as applicable, approves the payment. If the judge or
137	137	director disapproves the requested amount of payment, the judge or
138	138	director shall make written findings stating the amount of payment
139	139	that the judge or director approves and each reason for approving an
140	140	amount different from the requested amount. An attorney whose
141	141	request for payment is disapproved or is not otherwise acted on by
142	142	the 60th day after the date the request for payment is submitted may
143	143	appeal the disapproval or failure to act by filing a motion with the
144	144	presiding judge of the administrative judicial region. On the
145	145	filing of a motion, the presiding judge of the administrative
146	146	judicial region shall review the disapproval of payment or failure
147	147	to act and determine the appropriate amount of payment. In
148	148	reviewing the disapproval or failure to act, the presiding judge of
149	149	the administrative judicial region may conduct a hearing. Not
150	150	later than the 45th day after the date an application for payment of
151	151	a fee is submitted under this article, the commissioners court
152	152	shall pay to the appointed counsel the amount that is approved by
153	153	the presiding judge of the administrative judicial region and that
154	154	is in accordance with the fee schedule for that county.
155	155	SECTION 4. Section 71.001, Government Code, is amended by
156	156	adding Subdivision (6-a) to read as follows:
157	157	(6-a) "Independent assigned counsel program" has the
158	158	meaning assigned by Article 26.047, Code of Criminal Procedure.
159	159	SECTION 5. Subsection (a), Section 71.060, Government Code,
160	160	is amended to read as follows:
161	161	(a) The Task Force on Indigent Defense shall develop
162	162	policies and standards for providing legal representation and other
163	163	defense services to indigent defendants at trial, on appeal, and in
164	164	postconviction proceedings. The policies and standards may
165	165	include:
166	166	(1) performance standards for counsel appointed to
167	167	represent indigent defendants;
168	168	(2) qualification standards under which attorneys may
169	169	qualify for appointment to represent indigent defendants,
170	170	including:
171	171	(A) qualifications commensurate with the
172	172	seriousness of the nature of the proceeding;
173	173	(B) qualifications appropriate for
174	174	representation of mentally ill defendants and noncitizen
175	175	defendants;
176	176	(C) successful completion of relevant continuing
177	177	legal education programs approved by the council; and
178	178	(D) testing and certification standards;
179	179	(3) standards for ensuring appropriate appointed
180	180	caseloads for counsel appointed to represent indigent defendants;
181	181	(4) standards for determining whether a person accused
182	182	of a crime or juvenile offense is indigent;
183	183	(5) policies and standards governing the organization
184	184	and operation of an assigned counsel program;
185	185	(6) policies and standards governing the organization
186	186	and operation of a public defender consistent with recognized
187	187	national policies and standards;
188	188	(7) standards for providing indigent defense services
189	189	under a contract defender program consistent with recognized
190	190	national policies and standards;
191	191	(8) standards governing the reasonable compensation
192	192	of counsel appointed to represent indigent defendants;
193	193	(9) standards governing the availability and
194	194	reasonable compensation of providers of indigent defense support
195	195	services for counsel appointed to represent indigent defendants;
196	196	(10) standards governing the operation of a legal
197	197	clinic or program that provides legal services to indigent
198	198	defendants and is sponsored by a law school approved by the supreme
199	199	court;
200	200	(11) policies and standards governing the appointment
201	201	of attorneys to represent children in proceedings under Title 3,
202	202	Family Code; [and]
203	203	(12) policies and standards governing the
204	204	organization and operation of an independent assigned counsel
205	205	program consistent with nationally recognized policies and
206	206	standards; and
207	207	(13) other policies and standards for providing
208	208	indigent defense services as determined by the task force to be
209	209	appropriate.
210	210	SECTION 6. This Act takes effect September 1, 2009.
211	211	COMMITTEE AMENDMENT NO. 1
212	212	Amend S.B. 1710 as follows:
213	213	(1) On page 6, lines 20 and 21, replace "(6-a)" with
214	214	"(6-b)".
215	215	Gallego