Texas 2015 - 84th Regular

Texas House Bill HB3338 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	84R5590 JSC-D
2	2	By: Alonzo H.B. No. 3338
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the appointment of counsel for indigent defendants
8	8	arrested for, charged with, or taking appeal from a conviction of an
9	9	assault punishable by fine only.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Articles 1.051(c), (f-1), and (f-2), Code of
12	12	Criminal Procedure, are amended to read as follows:
13	13	(c) An indigent defendant is entitled to have an attorney
14	14	appointed to represent the defendant [him] in any adversary
15	15	judicial proceeding that may result in punishment by confinement,
16	16	in any criminal proceeding for an offense under Section 22.01,
17	17	Penal Code, punishable by fine only, and in any other criminal
18	18	proceeding if the court concludes that the interests of justice
19	19	require representation. Except as otherwise provided by this
20	20	subsection, if an indigent defendant is entitled to and requests
21	21	appointed counsel and if adversarial judicial proceedings have been
22	22	initiated against the defendant, a court or the courts' designee
23	23	authorized under Article 26.04 to appoint counsel for indigent
24	24	defendants in the county shall appoint counsel as soon as possible,
25	25	but not later than the end of the third working day after the date on
26	26	which the court or the courts' designee receives the defendant's
27	27	request for appointment of counsel. In a county with a population
28	28	of 250,000 or more, the court or the courts' designee shall appoint
29	29	counsel as required by this subsection as soon as possible, but not
30	30	later than the end of the first working day after the date on which
31	31	the court or the courts' designee receives the defendant's request
32	32	for appointment of counsel.
33	33	(f-1) In any adversary judicial proceeding that may result
34	34	in punishment by confinement or in a criminal proceeding for an
35	35	offense under Section 22.01, Penal Code, punishable by fine only,
36	36	the attorney representing the state may not:
37	37	(1) initiate or encourage an attempt to obtain from a
38	38	defendant who is not represented by counsel a waiver of the right to
39	39	counsel; or
40	40	(2) communicate with a defendant who has requested the
41	41	appointment of counsel, unless the court or the court's designee
42	42	authorized under Article 26.04 to appoint counsel for indigent
43	43	defendants in the county has denied the request and, subsequent to
44	44	the denial, the defendant:
45	45	(A) has been given a reasonable opportunity to
46	46	retain and has failed to retain private counsel; or
47	47	(B) waives or has waived the opportunity to
48	48	retain private counsel.
49	49	(f-2) In any adversary judicial proceeding that may result
50	50	in punishment by confinement or in a criminal proceeding for an
51	51	offense under Section 22.01, Penal Code, punishable by fine only,
52	52	the court may not direct or encourage the defendant to communicate
53	53	with the attorney representing the state until the court advises
54	54	the defendant of the right to counsel and the procedure for
55	55	requesting appointed counsel and the defendant has been given a
56	56	reasonable opportunity to request appointed counsel. If the
57	57	defendant has requested appointed counsel, the court may not direct
58	58	or encourage the defendant to communicate with the attorney
59	59	representing the state unless the court or the court's designee
60	60	authorized under Article 26.04 to appoint counsel for indigent
61	61	defendants in the county has denied the request and, subsequent to
62	62	the denial, the defendant:
63	63	(1) has been given a reasonable opportunity to retain
64	64	and has failed to retain private counsel; or
65	65	(2) waives or has waived the opportunity to retain
66	66	private counsel.
67	67	SECTION 2. Articles 26.04(a), (b), (c), (d), (e), (g), (h),
68	68	and (k), Code of Criminal Procedure, are amended to read as follows:
69	69	(a) The judges and magistrates of the county courts,
70	70	statutory county courts, municipal courts, justice courts, and
71	71	district courts trying criminal cases in each county, by local
72	72	rule, shall adopt and publish written countywide procedures for
73	73	timely and fairly appointing counsel for an indigent defendant in
74	74	the county arrested for, charged with, or taking an appeal from a
75	75	conviction of a misdemeanor punishable by confinement, an offense
76	76	under Section 22.01, Penal Code, punishable by fine only, or a
77	77	felony. The procedures must be consistent with this article and
78	78	Articles 1.051, 15.17, 26.05, and 26.052. A court shall appoint an
79	79	attorney from a public appointment list using a system of rotation,
80	80	unless the court appoints an attorney under Subsection (f), (f-1),
81	81	(h), or (i). The court shall appoint attorneys from among the next
82	82	five names on the appointment list in the order in which the
83	83	attorneys' names appear on the list, unless the court makes a
84	84	finding of good cause on the record for appointing an attorney out
85	85	of order. An attorney who is not appointed in the order in which
86	86	the attorney's name appears on the list shall remain next in order
87	87	on the list.
88	88	(b) Procedures adopted under Subsection (a) shall:
89	89	(1) authorize only the judges or magistrates of the
90	90	county courts, statutory county courts, municipal courts, justice
91	91	courts, and district courts trying criminal cases in the county, or
92	92	the judges' or magistrates' designee, to appoint counsel for
93	93	indigent defendants in the county;
94	94	(2) apply to each appointment of counsel made by a
95	95	judge or magistrate or [the judges'] designee of the judge or
96	96	magistrate in the county;
97	97	(3) ensure that each indigent defendant in the county
98	98	who is charged with a misdemeanor punishable by confinement, with
99	99	an offense under Section 22.01, Penal Code, punishable by fine
100	100	only, or with a felony and who appears in court without counsel has
101	101	an opportunity to confer with appointed counsel before the
102	102	commencement of judicial proceedings;
103	103	(4) require appointments for defendants in capital
104	104	cases in which the death penalty is sought to comply with any
105	105	applicable requirements under Articles 11.071 and 26.052;
106	106	(5) ensure that each attorney appointed from a public
107	107	appointment list to represent an indigent defendant perform the
108	108	attorney's duty owed to the defendant in accordance with the
109	109	adopted procedures, the requirements of this code, and applicable
110	110	rules of ethics; and
111	111	(6) ensure that appointments are allocated among
112	112	qualified attorneys in a manner that is fair, neutral, and
113	113	nondiscriminatory.
114	114	(c) Whenever a court or the courts' designee authorized
115	115	under Subsection (b) to appoint counsel for indigent defendants in
116	116	the county determines for purposes of a criminal proceeding that a
117	117	defendant charged with or appealing a conviction of a felony, [or] a
118	118	misdemeanor punishable by confinement, or an offense under Section
119	119	22.01, Penal Code, punishable by fine only is indigent or that the
120	120	interests of justice require representation of a defendant in the
121	121	proceeding, the court or the courts' designee shall appoint one or
122	122	more practicing attorneys to represent the defendant in accordance
123	123	with this subsection and the procedures adopted under Subsection
124	124	(a). If the court or the courts' designee determines that the
125	125	defendant does not speak and understand the English language or
126	126	that the defendant is deaf, the court or the courts' designee shall
127	127	make an effort to appoint an attorney who is capable of
128	128	communicating in a language understood by the defendant.
129	129	(d) A public appointment list from which an attorney is
130	130	appointed as required by Subsection (a) shall contain the names of
131	131	qualified attorneys, each of whom:
132	132	(1) applies to be included on the list;
133	133	(2) meets the objective qualifications specified by
134	134	the judges and magistrates under Subsection (e);
135	135	(3) meets any applicable qualifications specified by
136	136	the Texas Indigent Defense Commission; and
137	137	(4) is approved by a majority of the judges and
138	138	magistrates who established the appointment list under Subsection
139	139	(e).
140	140	(e) In a county in which a court is required under
141	141	Subsection (a) to appoint an attorney from a public appointment
142	142	list:
143	143	(1) the judges and magistrates of the county courts,
144	144	[and] statutory county courts, municipal courts, and justice courts
145	145	trying misdemeanor cases in the county, by formal action:
146	146	(A) shall:
147	147	(i) establish a public appointment list of
148	148	attorneys qualified to provide representation in the county in
149	149	misdemeanor cases punishable by confinement and in misdemeanor
150	150	assaults punishable by fine only; and
151	151	(ii) specify the objective qualifications
152	152	necessary for an attorney to be included on the list; and
153	153	(B) may establish, if determined by the judges
154	154	and magistrates to be appropriate, more than one appointment list
155	155	graduated according to the degree of seriousness of the offense,
156	156	the attorneys' qualifications, and whether representation will be
157	157	provided in trial court proceedings, appellate proceedings, or
158	158	both; and
159	159	(2) the judges of the district courts trying felony
160	160	cases in the county, by formal action:
161	161	(A) shall:
162	162	(i) establish a public appointment list of
163	163	attorneys qualified to provide representation in felony cases in
164	164	the county; and
165	165	(ii) specify the objective qualifications
166	166	necessary for an attorney to be included on the list; and
167	167	(B) may establish, if determined by the judges to
168	168	be appropriate, more than one appointment list graduated according
169	169	to the degree of seriousness of the offense, the attorneys'
170	170	qualifications, and whether representation will be provided in
171	171	trial court proceedings, appellate proceedings, or both.
172	172	(g) A countywide alternative program for appointing counsel
173	173	for indigent defendants in criminal cases is established by a
174	174	formal action in which two-thirds of the judges and magistrates of
175	175	the courts designated under this subsection vote to establish the
176	176	alternative program. An alternative program for appointing
177	177	counsel in misdemeanor and felony cases may be established in the
178	178	manner provided by this subsection by the judges of the county
179	179	courts, statutory county courts, and district courts trying
180	180	criminal cases in the county. An alternative program for
181	181	appointing counsel in misdemeanor cases may be established in the
182	182	manner provided by this subsection by the judges and magistrates of
183	183	the county courts, [and] statutory county courts, municipal courts,
184	184	and justice courts trying criminal cases in the county. An
185	185	alternative program for appointing counsel in felony cases may be
186	186	established in the manner provided by this subsection by the judges
187	187	of the district courts trying criminal cases in the county. In a
188	188	county in which an alternative program is established:
189	189	(1) the alternative program may:
190	190	(A) use a single method for appointing counsel or
191	191	a combination of methods; and
192	192	(B) use a multicounty appointment list using a
193	193	system of rotation; and
194	194	(2) the procedures adopted under Subsection (a) must
195	195	ensure that:
196	196	(A) attorneys appointed using the alternative
197	197	program to represent defendants in misdemeanor cases punishable by
198	198	confinement:
199	199	(i) meet specified objective
200	200	qualifications for that representation, which may be graduated
201	201	according to the degree of seriousness of the offense and whether
202	202	representation will be provided in trial court proceedings,
203	203	appellate proceedings, or both; and
204	204	(ii) are approved by a majority of the
205	205	judges and magistrates of the county courts, [and] statutory county
206	206	courts, municipal courts, and justice courts trying misdemeanor
207	207	cases in the county;
208	208	(B) attorneys appointed using the alternative
209	209	program to represent defendants in felony cases:
210	210	(i) meet specified objective
211	211	qualifications for that representation, which may be graduated
212	212	according to the degree of seriousness of the offense and whether
213	213	representation will be provided in trial court proceedings,
214	214	appellate proceedings, or both; and
215	215	(ii) are approved by a majority of the
216	216	judges of the district courts trying felony cases in the county;
217	217	(C) appointments for defendants in capital cases
218	218	in which the death penalty is sought comply with the requirements of
219	219	Article 26.052; and
220	220	(D) appointments are reasonably and impartially
221	221	allocated among qualified attorneys.
222	222	(h) In a county in which an alternative program for
223	223	appointing counsel is established as provided by Subsection (g) and
224	224	is approved by the presiding judge of the administrative judicial
225	225	region, a court or the courts' designee may appoint an attorney to
226	226	represent an indigent defendant by using the alternative program.
227	227	In establishing an alternative program under Subsection (g), the
228	228	judges and magistrates of the courts establishing the program may
229	229	not, without the approval of the commissioners court, obligate the
230	230	county by contract or by the creation of new positions that cause an
231	231	increase in expenditure of county funds.
232	232	(k) A court may replace an attorney who violates Subsection
233	233	(j)(1) with other counsel. A majority of the judges and magistrates
234	234	of the county courts, [and] statutory county courts, municipal
235	235	courts, and justice courts or of the district courts, as
236	236	appropriate, trying criminal cases in the county may remove from
237	237	consideration for appointment an attorney who intentionally or
238	238	repeatedly violates Subsection (j)(1).
239	239	SECTION 3. Articles 26.05(b), (c), and (e), Code of
240	240	Criminal Procedure, are amended to read as follows:
241	241	(b) All payments made under this article shall be paid in
242	242	accordance with a schedule of fees adopted by formal action of the
243	243	judges and magistrates of the county courts, statutory county
244	244	courts, municipal courts, justice courts, and district courts
245	245	trying criminal cases in each county. On adoption of a schedule of
246	246	fees as provided by this subsection, a copy of the schedule shall be
247	247	sent to the commissioners court of the county.
248	248	(c) Each fee schedule adopted shall state reasonable fixed
249	249	rates or minimum and maximum hourly rates, taking into
250	250	consideration reasonable and necessary overhead costs and the
251	251	availability of qualified attorneys willing to accept the stated
252	252	rates, and shall provide a form for the appointed counsel to itemize
253	253	the types of services performed. No payment shall be made under
254	254	this article until the form for itemizing the services performed is
255	255	submitted to the judge or magistrate presiding over the proceedings
256	256	or, if the county operates a managed assigned counsel program under
257	257	Article 26.047, to the director of the program, and until the judge,
258	258	magistrate, or director, as applicable, approves the payment. If
259	259	the judge, magistrate, or director disapproves the requested amount
260	260	of payment, the judge, magistrate, or director shall make written
261	261	findings stating the amount of payment that the judge, magistrate,
262	262	or director approves and each reason for approving an amount
263	263	different from the requested amount. An attorney whose request for
264	264	payment is disapproved or is not otherwise acted on by the 60th day
265	265	after the date the request for payment is submitted may appeal the
266	266	disapproval or failure to act by filing a motion with the presiding
267	267	judge of the administrative judicial region. On the filing of a
268	268	motion, the presiding judge of the administrative judicial region
269	269	shall review the disapproval of payment or failure to act and
270	270	determine the appropriate amount of payment. In reviewing the
271	271	disapproval or failure to act, the presiding judge of the
272	272	administrative judicial region may conduct a hearing. Not later
273	273	than the 45th day after the date an application for payment of a fee
274	274	is submitted under this article, the commissioners court shall pay
275	275	to the appointed counsel the amount that is approved by the
276	276	presiding judge of the administrative judicial region and that is
277	277	in accordance with the fee schedule for that county.
278	278	(e) A majority of the judges and magistrates of the county
279	279	courts, [and] statutory county courts, municipal courts, and
280	280	justice courts or of the district courts, as appropriate, trying
281	281	criminal cases in the county may remove an attorney from
282	282	consideration for appointment if, after a hearing, it is shown that
283	283	the attorney submitted a claim for legal services not performed by
284	284	the attorney.
285	285	SECTION 4. Sections 79.001(6) and (10), Government Code,
286	286	are amended to read as follows:
287	287	(6) "Crime" means:
288	288	(A) an offense under Section 22.01, Penal Code,
289	289	punishable by fine only;
290	290	(B) a misdemeanor punishable by confinement; or
291	291	(C) [(B)] a felony.
292	292	(10) "Juvenile offense" means conduct committed by a
293	293	person while younger than 17 years of age that constitutes:
294	294	(A) an offense under Section 22.01, Penal Code,
295	295	punishable by fine only;
296	296	(B) a misdemeanor punishable by confinement; or
297	297	(C) [(B)] a felony.
298	298	SECTION 5. The change in law made by this Act applies only
299	299	to a defendant arrested for, charged with, or taking an appeal from
300	300	a conviction of an offense under Section 22.01, Penal Code,
301	301	punishable by fine only on or after the effective date of this Act,
302	302	regardless of whether the offense that was the subject of the
303	303	arrest, charge, or conviction was committed before, on, or after
304	304	that date.
305	305	SECTION 6. This Act takes effect September 1, 2015.