By: Ellis, Duncan S.B. No. 1682
A BILL TO BE ENTITLED
AN ACT
relating to the creation of managed 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 Subsection (a) and adding Subsection (f-1) 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), (f-1), (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.
(f-1) In a county in which a managed assigned counsel
program is operated in accordance with Article 26.047, the managed
assigned counsel program may appoint counsel to represent the
defendant in accordance with guidelines established for the
program.
SECTION 2. Chapter 26, Code of Criminal Procedure, is
amended by adding Article 26.047 to read as follows:
Art. 26.047. MANAGED ASSIGNED COUNSEL PROGRAM. (a) In
this article:
(1) "Governmental entity" has the meaning assigned by
Article 26.044.
(2) "Managed 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 a managed 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 a managed assigned counsel program. In appointing an
entity to operate a managed 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) A program under this article must have a director.
Unless the program uses a review committee appointed under
Subsection (e), 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 governmental entity, nonprofit corporation, or bar
association appointed under Subsection (b) may appoint a review
committee of three or more individuals to appoint attorneys to the
program's public appointment list described by Subsection (f).
Each member of the committee:
(1) must meet the requirements described by Subsection
(d);
(2) may not be employed as a prosecutor; and
(3) may not be included on or apply for inclusion on
the public appointment list described by Subsection (f).
(f) 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 or review
committee, as applicable.
(g) 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).
(h) A managed 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.
(i) A managed 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. Subsection (c), Article 26.05, 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 a managed assigned counsel program under Article
26.047, the director of the 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 (8-a) to read as follows:
(8-a) "Managed assigned counsel program" has the
meaning assigned by Article 26.047, Code of Criminal Procedure.
SECTION 5. Subsection (a), Section 71.060, 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 a managed 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, 2011.