H.B. No. 1318
AN ACT
relating to the appointment of counsel to represent certain youths
and indigent defendants.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. (a) Effective September 1, 2014, Article
26.04(j), Code of Criminal Procedure, is amended to read as
follows:
(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;
(2) represent the defendant until charges are
dismissed, the defendant is acquitted, appeals are exhausted, or
the attorney is permitted or ordered by the court to withdraw as
counsel for the defendant 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; and
(4) not later than October 15 of each year and on a
form prescribed by the Texas Indigent Defense Commission, submit to
the county information, for the preceding fiscal year, that
describes the percentage of the attorney's practice time that was
dedicated to work based on appointments accepted in the county
under this article and Title 3, Family Code.
(b) The change in law made by this section to Article
26.04(j), Code of Criminal Procedure, applies only to a criminal
proceeding that commences on or after September 1, 2014. A criminal
proceeding that commences before September 1, 2014, is governed by
the law in effect when the proceeding commenced, and the former law
is continued in effect for that purpose.
SECTION 2. Article 26.044, Code of Criminal Procedure, is
amended by amending Subsection (j) and adding Subsections (j-1) and
(j-2) to read as follows:
(j) A public defender's office may not accept an appointment
under Article 26.04(f) if:
(1) a conflict of interest exists that has not been
waived by the client;
(2) the public defender's office has insufficient
resources to provide adequate representation for the defendant;
(3) the public defender's office is incapable of
providing representation for the defendant in accordance with the
rules of professional conduct;
(4) the acceptance of the appointment would violate
the maximum allowable caseloads established at the public
defender's office; or
(5) [(4)] the public defender's office shows other
good cause for not accepting the appointment.
(j-1) On refusing an appointment under Subsection (j), a
chief public defender shall file with the court a written statement
that identifies any reason for refusing the appointment. The court
shall determine whether the chief public defender has demonstrated
adequate good cause for refusing the appointment and shall include
the statement with the papers in the case.
(j-2) A chief public defender may not be terminated,
removed, or sanctioned for refusing in good faith to accept an
appointment under Subsection (j).
SECTION 3. Section 51.101(a), Family Code, is amended to
read as follows:
(a) If an attorney is appointed under Section 54.01(b-1) or
(d) to represent a child at the initial detention hearing and the
child is detained, the attorney shall continue to represent the
child until the case is terminated, the family retains an attorney,
or a new attorney is appointed by the juvenile court. Release of
the child from detention does not terminate the attorney's
representation.
SECTION 4. Section 54.01, Family Code, is amended by adding
Subsection (b-1) and amending Subsection (d) to read as follows:
(b-1) Unless the court finds that the appointment of counsel
is not feasible due to exigent circumstances, the court shall
appoint counsel within a reasonable time before the first detention
hearing is held to represent the child at that hearing.
(d) A detention hearing may be held without the presence of
the child's parents if the court has been unable to locate them. If
no parent or guardian is present, the court shall appoint counsel or
a guardian ad litem for the child, subject to the requirements of
Subsection (b-1).
SECTION 5. Effective September 1, 2013, Section 79.036(a),
Government Code, is amended to read as follows:
(a) Not [In each county, not] later than November 1 of each
odd-numbered year and in the form and manner prescribed by the
commission, each county [the following information] shall prepare
[be prepared] and provide [provided] to the commission:
(1) a copy of all formal and informal rules and forms
that describe the procedures used in the county to provide indigent
defendants with counsel in accordance with the Code of Criminal
Procedure, including the schedule of fees required under Article
26.05 of that code;
(2) any plan or proposal submitted to the
commissioners court under Article 26.044, Code of Criminal
Procedure;
(3) any plan of operation submitted to the
commissioners court under Article 26.047, Code of Criminal
Procedure;
(4) any contract for indigent defense services
required under rules adopted by the commission relating to a
contract defender program;
(5) [(2)] any revisions to rules, [or] forms, plans,
proposals, or contracts previously submitted under this section; or
(6) [(3)] verification that rules, [and] forms,
plans, proposals, or contracts previously submitted under this
section still remain in effect.
SECTION 6. Effective September 1, 2014, Section 79.036,
Government Code, is amended by adding Subsection (a-1) to read as
follows:
(a-1) Not later than November 1 of each year and in the form
and manner prescribed by the commission, each county shall prepare
and provide to the commission information that describes for the
preceding fiscal year the number of appointments under Article
26.04, Code of Criminal Procedure, and Title 3, Family Code, made to
each attorney accepting appointments in the county, and information
provided to the county by those attorneys under Article
26.04(j)(4), Code of Criminal Procedure.
SECTION 7. Sections 51.101(a) and 54.01, Family Code, as
amended by this Act, apply only to a detention hearing that is held
for a child taken into custody on or after the effective date of
this Act.
SECTION 8. (a) This section takes effect September 1, 2013.
(b) Not later than January 1, 2015, the Texas Indigent
Defense Commission shall conduct and publish a study for the
purpose of determining guidelines for establishing a maximum
allowable caseload for a criminal defense attorney that, when the
attorney's total caseload, including appointments made under
Article 26.04, Code of Criminal Procedure, appointments made under
Title 3, Family Code, and other work, is considered, allows the
attorney to give each indigent defendant the time and effort
necessary to ensure effective representation. The study must be
based on relevant policies, performance guidelines, and best
practices.
(c) In conducting the study under Subsection (b) of this
section, the commission shall consult with criminal defense
attorneys, criminal defense attorney associations, the judiciary,
and any other organization engaged in the development of criminal
indigent defense policy that the commission considers appropriate.
SECTION 9. This Act takes effect September 1, 2013.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 1318 was passed by the House on May 9,
2013, by the following vote: Yeas 134, Nays 0, 2 present, not
voting; and that the House concurred in Senate amendments to H.B.
No. 1318 on May 21, 2013, by the following vote: Yeas 143, Nays 0,
2 present, not voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 1318 was passed by the Senate, with
amendments, on May 17, 2013, by the following vote: Yeas 29, Nays
0.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor