By: Ellis S.B. No. 1681
(Thompson, Gallego, Alonzo)
A BILL TO BE ENTITLED
AN ACT
relating to the appointment of counsel and the rights of an accused
and other requirements for the purposes of appellate proceedings or
community supervision revocation proceedings.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subsections (a), (c), (e), (g), (i), (j), and
(o), Article 26.04, Code of Criminal Procedure, are amended 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, or taking
an appeal from a conviction of 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). 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.
(c) Whenever a court or the courts' designee authorized
under Subsection (b) to appoint counsel for indigent defendants in
the county determines for purposes of a criminal proceeding that a
defendant charged with or appealing a conviction of a felony or a
misdemeanor punishable by confinement is indigent or that the
interests of justice require representation of a defendant in the
[a criminal] proceeding, the court or the courts' designee shall
appoint one or more practicing attorneys to represent [defend] the
defendant in accordance with this subsection and the procedures
adopted under Subsection (a). If the court or the courts' designee
determines that the defendant does not speak and understand the
English language or that the defendant is deaf, the court or the
courts' designee shall make an effort to appoint an attorney who is
capable of communicating in a language understood by the defendant.
(e) In a county in which a court is required under
Subsection (a) to appoint an attorney from a public appointment
list:
(1) the judges of the county courts and statutory
county courts trying misdemeanor cases in the county, by formal
action:
(A) shall:
(i) establish a public appointment list of
attorneys qualified to provide representation in the county in
misdemeanor cases punishable by confinement; and
(ii) specify the objective qualifications
necessary for an attorney to be included on the list; and
(B) may establish, if determined by the judges to
be appropriate, more than one appointment list graduated according
to the degree of seriousness of the offense, [and] the attorneys'
qualifications, and whether representation will be provided in
trial court proceedings, appellate proceedings, or both; and
(2) the judges of the district courts trying felony
cases in the county, by formal action:
(A) shall:
(i) establish a public appointment list of
attorneys qualified to provide representation in felony cases in
the county; and
(ii) specify the objective qualifications
necessary for an attorney to be included on the list; and
(B) may establish, if determined by the judges to
be appropriate, more than one appointment list graduated according
to the degree of seriousness of the offense, [and] the attorneys'
qualifications, and whether representation will be provided in
trial court proceedings, appellate proceedings, or both.
(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 for that representation, which may be graduated
according to the degree of seriousness of the offense and whether
representation will be provided in trial court proceedings,
appellate proceedings, or both[, 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;
(B) attorneys appointed using the alternative
program to represent defendants in felony cases:
(i) meet specified objective
qualifications for that representation, which may be graduated
according to the degree of seriousness of the offense and whether
representation will be provided in trial court proceedings,
appellate proceedings, or both[, 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;
(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.
(i) A court or the courts' designee required under
Subsection (c) to appoint an attorney to represent a defendant
accused or convicted of a felony may appoint an attorney from any
county located in the court's administrative judicial region.
(j) An attorney appointed under this article shall:
(1) make every reasonable effort to contact the
defendant not later than the end of the first working day after the
date on which the attorney is appointed and to interview the
defendant as soon as practicable after the attorney is appointed;
[and]
(2) represent the defendant until charges are
dismissed, the defendant is acquitted, appeals are exhausted, or
the attorney is permitted or ordered [relieved of his duties] by the
court to withdraw as counsel for the defendant [or replaced by other
counsel] after a finding of good cause is entered on the record; and
(3) with respect to a defendant not represented by
other counsel, before withdrawing as counsel for the defendant
after a trial or the entry of a plea of guilty:
(A) advise the defendant of the defendant's right
to file a motion for new trial and a notice of appeal;
(B) if the defendant wishes to pursue either or
both remedies described by Paragraph (A), assist the defendant in
requesting the prompt appointment of replacement counsel; and
(C) if replacement counsel is not appointed
promptly and the defendant wishes to pursue an appeal, file a timely
notice of appeal.
(o) Before making a determination of whether a defendant is
indigent, the court shall request the defendant to sign under oath a
statement substantially in the following form:
"On this ________ day of ____________, 20 ___, I have been advised
by the (name of the court) Court of my right to representation by
counsel in connection with [the trial of] the charge pending
against me. I am without means to employ counsel of my own choosing
and I hereby request the court to appoint counsel for me.
(signature of the defendant)"
SECTION 2. Section 21, Article 42.12, Code of Criminal
Procedure, is amended by amending Subsections (b) and (d) and
adding Subsections (b-1) and (b-2) to read as follows:
(b) At any time during the period of community supervision
the judge may issue a warrant for violation of any of the conditions
of the community supervision and cause the defendant to be
arrested. Any supervision officer, police officer or other officer
with power of arrest may arrest such defendant with or without a
warrant upon the order of the judge to be noted on the docket of the
court. Subject to Subsection (b-1), a [A] defendant [so] arrested
under this subsection may be detained in the county jail or other
appropriate place of confinement until he can be taken before the
judge for a determination regarding the alleged violation. The
arresting [Such] officer shall immediately [forthwith] report the
[such] arrest and detention to the [such] judge.
(b-1) Without any unnecessary delay, but not later than 48
hours after the person is arrested, the arresting officer or the
person with custody of the arrested person shall take the arrested
person before the judge who ordered the arrest for the alleged
violation of a condition of community supervision or, if the judge
is unavailable, before a magistrate of the county in which the
person was arrested. The judge or magistrate shall perform all
appropriate duties and may exercise all appropriate powers as
provided by Article 15.17 with respect to an arrest for a new
criminal offense, except that only the judge who ordered the arrest
for the alleged violation may authorize the person's release on
bail. The arrested person may be taken before the judge or
magistrate under this subsection by means of an electronic
broadcast system as provided by and subject to the requirements of
Article 15.17.
(b-2) If the defendant has not been released on bail as
permitted under Subsection (b-1), on motion by the defendant the
judge who ordered the arrest for the alleged violation of a
condition of community supervision shall cause the defendant to be
brought before the judge for a hearing on the alleged violation
within 20 days of filing of said motion, and after a hearing without
a jury, may either continue, extend, modify, or revoke the
community supervision. A judge may revoke the community
supervision of a defendant who is imprisoned in a penal institution
without a hearing if the defendant in writing before a court of
record in the jurisdiction where imprisoned waives his right to a
hearing and to counsel, affirms that he has nothing to say as to why
sentence should not be pronounced against him, and requests the
judge to revoke community supervision and to pronounce sentence.
In a felony case, the state may amend the motion to revoke community
supervision any time up to seven days before the date of the
revocation hearing, after which time the motion may not be amended
except for good cause shown, and in no event may the state amend the
motion after the commencement of taking evidence at the hearing.
The judge may continue the hearing for good cause shown by either
the defendant or the state.
(d) A defendant has a right to counsel at a hearing under
this section. The court shall appoint counsel for an indigent
defendant in accordance with the procedures adopted under Article
26.04.
SECTION 3. The change in law made by this Act applies only
to a criminal proceeding that commences on or after the effective
date of this Act. A criminal proceeding that commences before the
effective date of this Act is governed by the law in effect when the
proceeding commenced, and the former law is continued in effect for
that purpose.
SECTION 4. This Act takes effect September 1, 2011.