Texas 2011 - 82nd Regular

Texas Senate Bill SB1681 Compare Versions

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1	1	By: Ellis S.B. No. 1681
2	2	(Thompson, Gallego, Alonzo)
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the appointment of counsel and the rights of an accused
8	8	and other requirements for the purposes of appellate proceedings or
9	9	community supervision revocation proceedings.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Subsections (a), (c), (e), (g), (i), (j), and
12	12	(o), Article 26.04, Code of Criminal Procedure, are amended to read
13	13	as follows:
14	14	(a) The judges of the county courts, statutory county
15	15	courts, and district courts trying criminal cases in each county,
16	16	by local rule, shall adopt and publish written countywide
17	17	procedures for timely and fairly appointing counsel for an indigent
18	18	defendant in the county arrested for, [or] charged with, or taking
19	19	an appeal from a conviction of a misdemeanor punishable by
20	20	confinement or a felony. The procedures must be consistent with
21	21	this article and Articles 1.051, 15.17, 26.05, and 26.052. A court
22	22	shall appoint an attorney from a public appointment list using a
23	23	system of rotation, unless the court appoints an attorney under
24	24	Subsection (f), (h), or (i). The court shall appoint attorneys from
25	25	among the next five names on the appointment list in the order in
26	26	which the attorneys' names appear on the list, unless the court
27	27	makes a finding of good cause on the record for appointing an
28	28	attorney out of order. An attorney who is not appointed in the
29	29	order in which the attorney's name appears on the list shall remain
30	30	next in order on the list.
31	31	(c) Whenever a court or the courts' designee authorized
32	32	under Subsection (b) to appoint counsel for indigent defendants in
33	33	the county determines for purposes of a criminal proceeding that a
34	34	defendant charged with or appealing a conviction of a felony or a
35	35	misdemeanor punishable by confinement is indigent or that the
36	36	interests of justice require representation of a defendant in the
37	37	[a criminal] proceeding, the court or the courts' designee shall
38	38	appoint one or more practicing attorneys to represent [defend] the
39	39	defendant in accordance with this subsection and the procedures
40	40	adopted under Subsection (a). If the court or the courts' designee
41	41	determines that the defendant does not speak and understand the
42	42	English language or that the defendant is deaf, the court or the
43	43	courts' designee shall make an effort to appoint an attorney who is
44	44	capable of communicating in a language understood by the defendant.
45	45	(e) In a county in which a court is required under
46	46	Subsection (a) to appoint an attorney from a public appointment
47	47	list:
48	48	(1) the judges of the county courts and statutory
49	49	county courts trying misdemeanor cases in the county, by formal
50	50	action:
51	51	(A) shall:
52	52	(i) establish a public appointment list of
53	53	attorneys qualified to provide representation in the county in
54	54	misdemeanor cases punishable by confinement; and
55	55	(ii) specify the objective qualifications
56	56	necessary for an attorney to be included on the list; and
57	57	(B) may establish, if determined by the judges to
58	58	be appropriate, more than one appointment list graduated according
59	59	to the degree of seriousness of the offense, [and] the attorneys'
60	60	qualifications, and whether representation will be provided in
61	61	trial court proceedings, appellate proceedings, or both; and
62	62	(2) the judges of the district courts trying felony
63	63	cases in the county, by formal action:
64	64	(A) shall:
65	65	(i) establish a public appointment list of
66	66	attorneys qualified to provide representation in felony cases in
67	67	the county; and
68	68	(ii) specify the objective qualifications
69	69	necessary for an attorney to be included on the list; and
70	70	(B) may establish, if determined by the judges to
71	71	be appropriate, more than one appointment list graduated according
72	72	to the degree of seriousness of the offense, [and] the attorneys'
73	73	qualifications, and whether representation will be provided in
74	74	trial court proceedings, appellate proceedings, or both.
75	75	(g) A countywide alternative program for appointing counsel
76	76	for indigent defendants in criminal cases is established by a
77	77	formal action in which two-thirds of the judges of the courts
78	78	designated under this subsection vote to establish the alternative
79	79	program. An alternative program for appointing counsel in
80	80	misdemeanor and felony cases may be established in the manner
81	81	provided by this subsection by the judges of the county courts,
82	82	statutory county courts, and district courts trying criminal cases
83	83	in the county. An alternative program for appointing counsel in
84	84	misdemeanor cases may be established in the manner provided by this
85	85	subsection by the judges of the county courts and statutory county
86	86	courts trying criminal cases in the county. An alternative program
87	87	for appointing counsel in felony cases may be established in the
88	88	manner provided by this subsection by the judges of the district
89	89	courts trying criminal cases in the county. In a county in which an
90	90	alternative program is established:
91	91	(1) the alternative program may:
92	92	(A) use a single method for appointing counsel or
93	93	a combination of methods; and
94	94	(B) use a multicounty appointment list using a
95	95	system of rotation; and
96	96	(2) the procedures adopted under Subsection (a) must
97	97	ensure that:
98	98	(A) attorneys appointed using the alternative
99	99	program to represent defendants in misdemeanor cases punishable by
100	100	confinement:
101	101	(i) meet specified objective
102	102	qualifications for that representation, which may be graduated
103	103	according to the degree of seriousness of the offense and whether
104	104	representation will be provided in trial court proceedings,
105	105	appellate proceedings, or both[, for providing representation in
106	106	misdemeanor cases punishable by confinement]; and
107	107	(ii) are approved by a majority of the
108	108	judges of the county courts and statutory county courts trying
109	109	misdemeanor cases in the county;
110	110	(B) attorneys appointed using the alternative
111	111	program to represent defendants in felony cases:
112	112	(i) meet specified objective
113	113	qualifications for that representation, which may be graduated
114	114	according to the degree of seriousness of the offense and whether
115	115	representation will be provided in trial court proceedings,
116	116	appellate proceedings, or both[, for providing representation in
117	117	felony cases]; and
118	118	(ii) are approved by a majority of the
119	119	judges of the district courts trying felony cases in the county;
120	120	(C) appointments for defendants in capital cases
121	121	in which the death penalty is sought comply with the requirements of
122	122	Article 26.052; and
123	123	(D) appointments are reasonably and impartially
124	124	allocated among qualified attorneys.
125	125	(i) A court or the courts' designee required under
126	126	Subsection (c) to appoint an attorney to represent a defendant
127	127	accused or convicted of a felony may appoint an attorney from any
128	128	county located in the court's administrative judicial region.
129	129	(j) An attorney appointed under this article shall:
130	130	(1) make every reasonable effort to contact the
131	131	defendant not later than the end of the first working day after the
132	132	date on which the attorney is appointed and to interview the
133	133	defendant as soon as practicable after the attorney is appointed;
134	134	[and]
135	135	(2) represent the defendant until charges are
136	136	dismissed, the defendant is acquitted, appeals are exhausted, or
137	137	the attorney is permitted or ordered [relieved of his duties] by the
138	138	court to withdraw as counsel for the defendant [or replaced by other
139	139	counsel] after a finding of good cause is entered on the record; and
140	140	(3) with respect to a defendant not represented by
141	141	other counsel, before withdrawing as counsel for the defendant
142	142	after a trial or the entry of a plea of guilty:
143	143	(A) advise the defendant of the defendant's right
144	144	to file a motion for new trial and a notice of appeal;
145	145	(B) if the defendant wishes to pursue either or
146	146	both remedies described by Paragraph (A), assist the defendant in
147	147	requesting the prompt appointment of replacement counsel; and
148	148	(C) if replacement counsel is not appointed
149	149	promptly and the defendant wishes to pursue an appeal, file a timely
150	150	notice of appeal.
151	151	(o) Before making a determination of whether a defendant is
152	152	indigent, the court shall request the defendant to sign under oath a
153	153	statement substantially in the following form:
154	154	"On this ________ day of ____________, 20 ___, I have been advised
155	155	by the (name of the court) Court of my right to representation by
156	156	counsel in connection with [the trial of] the charge pending
157	157	against me. I am without means to employ counsel of my own choosing
158	158	and I hereby request the court to appoint counsel for me.
159	159	(signature of the defendant)"
160	160	SECTION 2. Section 21, Article 42.12, Code of Criminal
161	161	Procedure, is amended by amending Subsections (b) and (d) and
162	162	adding Subsections (b-1) and (b-2) to read as follows:
163	163	(b) At any time during the period of community supervision
164	164	the judge may issue a warrant for violation of any of the conditions
165	165	of the community supervision and cause the defendant to be
166	166	arrested. Any supervision officer, police officer or other officer
167	167	with power of arrest may arrest such defendant with or without a
168	168	warrant upon the order of the judge to be noted on the docket of the
169	169	court. Subject to Subsection (b-1), a [A] defendant [so] arrested
170	170	under this subsection may be detained in the county jail or other
171	171	appropriate place of confinement until he can be taken before the
172	172	judge for a determination regarding the alleged violation. The
173	173	arresting [Such] officer shall immediately [forthwith] report the
174	174	[such] arrest and detention to the [such] judge.
175	175	(b-1) Without any unnecessary delay, but not later than 48
176	176	hours after the person is arrested, the arresting officer or the
177	177	person with custody of the arrested person shall take the arrested
178	178	person before the judge who ordered the arrest for the alleged
179	179	violation of a condition of community supervision or, if the judge
180	180	is unavailable, before a magistrate of the county in which the
181	181	person was arrested. The judge or magistrate shall perform all
182	182	appropriate duties and may exercise all appropriate powers as
183	183	provided by Article 15.17 with respect to an arrest for a new
184	184	criminal offense, except that only the judge who ordered the arrest
185	185	for the alleged violation may authorize the person's release on
186	186	bail. The arrested person may be taken before the judge or
187	187	magistrate under this subsection by means of an electronic
188	188	broadcast system as provided by and subject to the requirements of
189	189	Article 15.17.
190	190	(b-2) If the defendant has not been released on bail as
191	191	permitted under Subsection (b-1), on motion by the defendant the
192	192	judge who ordered the arrest for the alleged violation of a
193	193	condition of community supervision shall cause the defendant to be
194	194	brought before the judge for a hearing on the alleged violation
195	195	within 20 days of filing of said motion, and after a hearing without
196	196	a jury, may either continue, extend, modify, or revoke the
197	197	community supervision. A judge may revoke the community
198	198	supervision of a defendant who is imprisoned in a penal institution
199	199	without a hearing if the defendant in writing before a court of
200	200	record in the jurisdiction where imprisoned waives his right to a
201	201	hearing and to counsel, affirms that he has nothing to say as to why
202	202	sentence should not be pronounced against him, and requests the
203	203	judge to revoke community supervision and to pronounce sentence.
204	204	In a felony case, the state may amend the motion to revoke community
205	205	supervision any time up to seven days before the date of the
206	206	revocation hearing, after which time the motion may not be amended
207	207	except for good cause shown, and in no event may the state amend the
208	208	motion after the commencement of taking evidence at the hearing.
209	209	The judge may continue the hearing for good cause shown by either
210	210	the defendant or the state.
211	211	(d) A defendant has a right to counsel at a hearing under
212	212	this section. The court shall appoint counsel for an indigent
213	213	defendant in accordance with the procedures adopted under Article
214	214	26.04.
215	215	SECTION 3. The change in law made by this Act applies only
216	216	to a criminal proceeding that commences on or after the effective
217	217	date of this Act. A criminal proceeding that commences before the
218	218	effective date of this Act is governed by the law in effect when the
219	219	proceeding commenced, and the former law is continued in effect for
220	220	that purpose.
221	221	SECTION 4. This Act takes effect September 1, 2011.