84R5590 JSC-D
By: Alonzo H.B. No. 3338
A BILL TO BE ENTITLED
AN ACT
relating to the appointment of counsel for indigent defendants
arrested for, charged with, or taking appeal from a conviction of an
assault punishable by fine only.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Articles 1.051(c), (f-1), and (f-2), Code of
Criminal Procedure, are amended to read as follows:
(c) An indigent defendant is entitled to have an attorney
appointed to represent the defendant [him] in any adversary
judicial proceeding that may result in punishment by confinement,
in any criminal proceeding for an offense under Section 22.01,
Penal Code, punishable by fine only, and in any other criminal
proceeding if the court concludes that the interests of justice
require representation. Except as otherwise provided by this
subsection, if an indigent defendant is entitled to and requests
appointed counsel and if adversarial judicial proceedings have been
initiated against the defendant, a court or the courts' designee
authorized under Article 26.04 to appoint counsel for indigent
defendants in the county shall appoint counsel as soon as possible,
but not later than the end of the third working day after the date on
which the court or the courts' designee receives the defendant's
request for appointment of counsel. In a county with a population
of 250,000 or more, the court or the courts' designee shall appoint
counsel as required by this subsection as soon as possible, but not
later than the end of the first working day after the date on which
the court or the courts' designee receives the defendant's request
for appointment of counsel.
(f-1) In any adversary judicial proceeding that may result
in punishment by confinement or in a criminal proceeding for an
offense under Section 22.01, Penal Code, punishable by fine only,
the attorney representing the state may not:
(1) initiate or encourage an attempt to obtain from a
defendant who is not represented by counsel a waiver of the right to
counsel; or
(2) communicate with a defendant who has requested the
appointment of counsel, unless the court or the court's designee
authorized under Article 26.04 to appoint counsel for indigent
defendants in the county has denied the request and, subsequent to
the denial, the defendant:
(A) has been given a reasonable opportunity to
retain and has failed to retain private counsel; or
(B) waives or has waived the opportunity to
retain private counsel.
(f-2) In any adversary judicial proceeding that may result
in punishment by confinement or in a criminal proceeding for an
offense under Section 22.01, Penal Code, punishable by fine only,
the court may not direct or encourage the defendant to communicate
with the attorney representing the state until the court advises
the defendant of the right to counsel and the procedure for
requesting appointed counsel and the defendant has been given a
reasonable opportunity to request appointed counsel. If the
defendant has requested appointed counsel, the court may not direct
or encourage the defendant to communicate with the attorney
representing the state unless the court or the court's designee
authorized under Article 26.04 to appoint counsel for indigent
defendants in the county has denied the request and, subsequent to
the denial, the defendant:
(1) has been given a reasonable opportunity to retain
and has failed to retain private counsel; or
(2) waives or has waived the opportunity to retain
private counsel.
SECTION 2. Articles 26.04(a), (b), (c), (d), (e), (g), (h),
and (k), Code of Criminal Procedure, are amended to read as follows:
(a) The judges and magistrates of the county courts,
statutory county courts, municipal courts, justice 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, charged with, or taking an appeal from a
conviction of a misdemeanor punishable by confinement, an offense
under Section 22.01, Penal Code, punishable by fine only, 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.
(b) Procedures adopted under Subsection (a) shall:
(1) authorize only the judges or magistrates of the
county courts, statutory county courts, municipal courts, justice
courts, and district courts trying criminal cases in the county, or
the judges' or magistrates' designee, to appoint counsel for
indigent defendants in the county;
(2) apply to each appointment of counsel made by a
judge or magistrate or [the judges'] designee of the judge or
magistrate in the county;
(3) ensure that each indigent defendant in the county
who is charged with a misdemeanor punishable by confinement, with
an offense under Section 22.01, Penal Code, punishable by fine
only, or with a felony and who appears in court without counsel has
an opportunity to confer with appointed counsel before the
commencement of judicial proceedings;
(4) require appointments for defendants in capital
cases in which the death penalty is sought to comply with any
applicable requirements under Articles 11.071 and 26.052;
(5) ensure that each attorney appointed from a public
appointment list to represent an indigent defendant perform the
attorney's duty owed to the defendant in accordance with the
adopted procedures, the requirements of this code, and applicable
rules of ethics; and
(6) ensure that appointments are allocated among
qualified attorneys in a manner that is fair, neutral, and
nondiscriminatory.
(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, or an offense under Section
22.01, Penal Code, punishable by fine only is indigent or that the
interests of justice require representation of a defendant in the
proceeding, the court or the courts' designee shall appoint one or
more practicing attorneys to represent 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.
(d) A public appointment list from which an attorney is
appointed as required by Subsection (a) shall contain the names of
qualified attorneys, each of whom:
(1) applies to be included on the list;
(2) meets the objective qualifications specified by
the judges and magistrates under Subsection (e);
(3) meets any applicable qualifications specified by
the Texas Indigent Defense Commission; and
(4) is approved by a majority of the judges and
magistrates who established the appointment list under Subsection
(e).
(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 and magistrates of the county courts,
[and] statutory county courts, municipal courts, and justice 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 in misdemeanor
assaults punishable by fine only; 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
and magistrates to be appropriate, more than one appointment list
graduated according to the degree of seriousness of the offense,
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, 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 and magistrates 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 and magistrates of
the county courts, [and] statutory county courts, municipal courts,
and justice 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; and
(ii) are approved by a majority of the
judges and magistrates of the county courts, [and] statutory county
courts, municipal courts, and justice 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; 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.
(h) In a county in which an alternative program for
appointing counsel is established as provided by Subsection (g) and
is approved by the presiding judge of the administrative judicial
region, a court or the courts' designee may appoint an attorney to
represent an indigent defendant by using the alternative program.
In establishing an alternative program under Subsection (g), the
judges and magistrates of the courts establishing the program may
not, without the approval of the commissioners court, obligate the
county by contract or by the creation of new positions that cause an
increase in expenditure of county funds.
(k) A court may replace an attorney who violates Subsection
(j)(1) with other counsel. A majority of the judges and magistrates
of the county courts, [and] statutory county courts, municipal
courts, and justice courts or of the district courts, as
appropriate, trying criminal cases in the county may remove from
consideration for appointment an attorney who intentionally or
repeatedly violates Subsection (j)(1).
SECTION 3. Articles 26.05(b), (c), and (e), Code of
Criminal Procedure, are amended to read as follows:
(b) All payments made under this article shall be paid in
accordance with a schedule of fees adopted by formal action of the
judges and magistrates of the county courts, statutory county
courts, municipal courts, justice courts, and district courts
trying criminal cases in each county. On adoption of a schedule of
fees as provided by this subsection, a copy of the schedule shall be
sent to the commissioners court of the county.
(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 or magistrate presiding over the proceedings
or, if the county operates a managed assigned counsel program under
Article 26.047, to the director of the program, and until the judge,
magistrate, or director, as applicable, approves the payment. If
the judge, magistrate, or director disapproves the requested amount
of payment, the judge, magistrate, or director shall make written
findings stating the amount of payment that the judge, magistrate,
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.
(e) A majority of the judges and magistrates of the county
courts, [and] statutory county courts, municipal courts, and
justice courts or of the district courts, as appropriate, trying
criminal cases in the county may remove an attorney from
consideration for appointment if, after a hearing, it is shown that
the attorney submitted a claim for legal services not performed by
the attorney.
SECTION 4. Sections 79.001(6) and (10), Government Code,
are amended to read as follows:
(6) "Crime" means:
(A) an offense under Section 22.01, Penal Code,
punishable by fine only;
(B) a misdemeanor punishable by confinement; or
(C) [(B)] a felony.
(10) "Juvenile offense" means conduct committed by a
person while younger than 17 years of age that constitutes:
(A) an offense under Section 22.01, Penal Code,
punishable by fine only;
(B) a misdemeanor punishable by confinement; or
(C) [(B)] a felony.
SECTION 5. The change in law made by this Act applies only
to a defendant arrested for, charged with, or taking an appeal from
a conviction of an offense under Section 22.01, Penal Code,
punishable by fine only on or after the effective date of this Act,
regardless of whether the offense that was the subject of the
arrest, charge, or conviction was committed before, on, or after
that date.
SECTION 6. This Act takes effect September 1, 2015.