Texas 2011 - 82nd Regular

Texas Senate Bill SB1682 Compare Versions

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1	1	By: Ellis, Duncan S.B. No. 1682
2	2	(Alonzo, Gallego, Hartnett, Aliseda)
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the creation of managed assigned counsel programs.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Article 26.04, Code of Criminal Procedure, is
10	10	amended by amending Subsection (a) and adding Subsection (f-1) to
11	11	read as follows:
12	12	(a) The judges of the county courts, statutory county
13	13	courts, and district courts trying criminal cases in each county,
14	14	by local rule, shall adopt and publish written countywide
15	15	procedures for timely and fairly appointing counsel for an indigent
16	16	defendant in the county arrested for or charged with a misdemeanor
17	17	punishable by confinement or a felony. The procedures must be
18	18	consistent with this article and Articles 1.051, 15.17, 26.05, and
19	19	26.052. A court shall appoint an attorney from a public appointment
20	20	list using a system of rotation, unless the court appoints an
21	21	attorney under Subsection (f), (f-1), (h), or (i). The court shall
22	22	appoint attorneys from among the next five names on the appointment
23	23	list in the order in which the attorneys' names appear on the list,
24	24	unless the court makes a finding of good cause on the record for
25	25	appointing an attorney out of order. An attorney who is not
26	26	appointed in the order in which the attorney's name appears on the
27	27	list shall remain next in order on the list.
28	28	(f-1) In a county in which a managed assigned counsel
29	29	program is operated in accordance with Article 26.047, the managed
30	30	assigned counsel program may appoint counsel to represent the
31	31	defendant in accordance with guidelines established for the
32	32	program.
33	33	SECTION 2. Chapter 26, Code of Criminal Procedure, is
34	34	amended by adding Article 26.047 to read as follows:
35	35	Art. 26.047. MANAGED ASSIGNED COUNSEL PROGRAM. (a) In
36	36	this article:
37	37	(1) "Governmental entity" has the meaning assigned by
38	38	Article 26.044.
39	39	(2) "Managed assigned counsel program" or "program"
40	40	means a program operated with public funds:
41	41	(A) by a governmental entity, nonprofit
42	42	corporation, or bar association under a written agreement with a
43	43	governmental entity, other than an individual judge or court; and
44	44	(B) for the purpose of appointing counsel under
45	45	Article 26.04 or Section 51.10, Family Code.
46	46	(b) The commissioners court of any county, on written
47	47	approval of a judge of the juvenile court of a county or a county
48	48	court, statutory county court, or district court trying criminal
49	49	cases in the county, may appoint a governmental entity, nonprofit
50	50	corporation, or bar association to operate a managed assigned
51	51	counsel program. The commissioners courts of two or more counties
52	52	may enter into a written agreement to jointly appoint and fund a
53	53	governmental entity, nonprofit corporation, or bar association to
54	54	operate a managed assigned counsel program. In appointing an
55	55	entity to operate a managed assigned counsel program under this
56	56	subsection, the commissioners court shall specify or the
57	57	commissioners courts shall jointly specify:
58	58	(1) the types of cases in which the program may appoint
59	59	counsel under Article 26.04 or Section 51.10, Family Code, and the
60	60	courts in which the counsel appointed by the program may be required
61	61	to appear; and
62	62	(2) the term of any agreement establishing a program
63	63	and how the agreement may be terminated or renewed.
64	64	(c) The commissioners court or commissioners courts shall
65	65	require a written plan of operation from an entity operating a
66	66	program under this article. The plan of operation must include:
67	67	(1) a budget for the program, including salaries;
68	68	(2) a description of each personnel position,
69	69	including the program's director;
70	70	(3) the maximum allowable caseload for each attorney
71	71	appointed by the program;
72	72	(4) provisions for training personnel of the program
73	73	and attorneys appointed under the program;
74	74	(5) a description of anticipated overhead costs for
75	75	the program;
76	76	(6) a policy regarding licensed investigators and
77	77	expert witnesses used by attorneys appointed under the program;
78	78	(7) a policy to ensure that appointments are
79	79	reasonably and impartially allocated among qualified attorneys;
80	80	and
81	81	(8) a policy to ensure that an attorney appointed
82	82	under the program does not accept appointment in a case that
83	83	involves a conflict of interest for the attorney that has not been
84	84	waived by all affected clients.
85	85	(d) A program under this article must have a director.
86	86	Unless the program uses a review committee appointed under
87	87	Subsection (e), a program under this article must be directed by a
88	88	person who:
89	89	(1) is a member of the State Bar of Texas;
90	90	(2) has practiced law for at least three years; and
91	91	(3) has substantial experience in the practice of
92	92	criminal law.
93	93	(e) The governmental entity, nonprofit corporation, or bar
94	94	association appointed under Subsection (b) may appoint a review
95	95	committee of three or more individuals to appoint attorneys to the
96	96	program's public appointment list described by Subsection (f).
97	97	Each member of the committee:
98	98	(1) must meet the requirements described by Subsection
99	99	(d);
100	100	(2) may not be employed as a prosecutor; and
101	101	(3) may not be included on or apply for inclusion on
102	102	the public appointment list described by Subsection (f).
103	103	(f) The program's public appointment list from which an
104	104	attorney is appointed must contain the names of qualified
105	105	attorneys, each of whom:
106	106	(1) applies to be included on the list;
107	107	(2) meets any applicable requirements specified by the
108	108	procedure for appointing counsel adopted under Article 26.04(a) and
109	109	the Task Force on Indigent Defense; and
110	110	(3) is approved by the program director or review
111	111	committee, as applicable.
112	112	(g) A court may replace an attorney appointed by the program
113	113	for the same reasons and in the same manner described by Article
114	114	26.04(k).
115	115	(h) A managed assigned counsel program is entitled to
116	116	receive funds for personnel costs and expenses incurred in amounts
117	117	fixed by the commissioners court and paid out of the appropriate
118	118	county fund, or jointly fixed by the commissioners courts and
119	119	proportionately paid out of each appropriate county fund if the
120	120	program serves more than one county.
121	121	(i) A managed assigned counsel program may employ personnel
122	122	and enter into contracts necessary to perform the program's duties
123	123	as specified by the commissioners court or commissioners courts
124	124	under this article.
125	125	SECTION 3. Subsection (c), Article 26.05, Code of Criminal
126	126	Procedure, is amended to read as follows:
127	127	(c) Each fee schedule adopted shall state reasonable fixed
128	128	rates or minimum and maximum hourly rates, taking into
129	129	consideration reasonable and necessary overhead costs and the
130	130	availability of qualified attorneys willing to accept the stated
131	131	rates, and shall provide a form for the appointed counsel to itemize
132	132	the types of services performed. No payment shall be made under
133	133	this article until the form for itemizing the services performed is
134	134	submitted to the judge presiding over the proceedings or, if the
135	135	county operates a managed assigned counsel program under Article
136	136	26.047, the director of the program, and the judge or director, as
137	137	applicable, approves the payment. If the judge or director
138	138	disapproves the requested amount of payment, the judge or director
139	139	shall make written findings stating the amount of payment that the
140	140	judge or director approves and each reason for approving an amount
141	141	different from the requested amount. An attorney whose request for
142	142	payment is disapproved or is not otherwise acted on by the 60th day
143	143	after the date the request for payment is submitted may appeal the
144	144	disapproval or failure to act by filing a motion with the presiding
145	145	judge of the administrative judicial region. On the filing of a
146	146	motion, the presiding judge of the administrative judicial region
147	147	shall review the disapproval of payment or failure to act and
148	148	determine the appropriate amount of payment. In reviewing the
149	149	disapproval or failure to act, the presiding judge of the
150	150	administrative judicial region may conduct a hearing. Not later
151	151	than the 45th day after the date an application for payment of a fee
152	152	is submitted under this article, the commissioners court shall pay
153	153	to the appointed counsel the amount that is approved by the
154	154	presiding judge of the administrative judicial region and that is
155	155	in accordance with the fee schedule for that county.
156	156	SECTION 4. Section 71.001, Government Code, is amended by
157	157	adding Subdivision (8-a) to read as follows:
158	158	(8-a) "Managed assigned counsel program" has the
159	159	meaning assigned by Article 26.047, Code of Criminal Procedure.
160	160	SECTION 5. Subsection (a), Section 71.060, Government Code,
161	161	is amended to read as follows:
162	162	(a) The Task Force on Indigent Defense shall develop
163	163	policies and standards for providing legal representation and other
164	164	defense services to indigent defendants at trial, on appeal, and in
165	165	postconviction proceedings. The policies and standards may
166	166	include:
167	167	(1) performance standards for counsel appointed to
168	168	represent indigent defendants;
169	169	(2) qualification standards under which attorneys may
170	170	qualify for appointment to represent indigent defendants,
171	171	including:
172	172	(A) qualifications commensurate with the
173	173	seriousness of the nature of the proceeding;
174	174	(B) qualifications appropriate for
175	175	representation of mentally ill defendants and noncitizen
176	176	defendants;
177	177	(C) successful completion of relevant continuing
178	178	legal education programs approved by the council; and
179	179	(D) testing and certification standards;
180	180	(3) standards for ensuring appropriate appointed
181	181	caseloads for counsel appointed to represent indigent defendants;
182	182	(4) standards for determining whether a person accused
183	183	of a crime or juvenile offense is indigent;
184	184	(5) policies and standards governing the organization
185	185	and operation of an assigned counsel program;
186	186	(6) policies and standards governing the organization
187	187	and operation of a public defender consistent with recognized
188	188	national policies and standards;
189	189	(7) standards for providing indigent defense services
190	190	under a contract defender program consistent with recognized
191	191	national policies and standards;
192	192	(8) standards governing the reasonable compensation
193	193	of counsel appointed to represent indigent defendants;
194	194	(9) standards governing the availability and
195	195	reasonable compensation of providers of indigent defense support
196	196	services for counsel appointed to represent indigent defendants;
197	197	(10) standards governing the operation of a legal
198	198	clinic or program that provides legal services to indigent
199	199	defendants and is sponsored by a law school approved by the supreme
200	200	court;
201	201	(11) policies and standards governing the appointment
202	202	of attorneys to represent children in proceedings under Title 3,
203	203	Family Code; [and]
204	204	(12) policies and standards governing the
205	205	organization and operation of a managed assigned counsel program
206	206	consistent with nationally recognized policies and 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, 2011.