By: Hinojosa S.B. No. 1743
A BILL TO BE ENTITLED
AN ACT
relating to expanding the powers and duties of the office of capital
writs and renaming the office of capital writs the office of capital
and forensic writs.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 2(b), (c), and (f), Article 11.071,
Code of Criminal Procedure, are amended to read as follows:
(b) If a defendant is sentenced to death the convicting
court, immediately after judgment is entered under Article 42.01,
shall determine if the defendant is indigent and, if so, whether the
defendant desires appointment of counsel for the purpose of a writ
of habeas corpus. If the defendant desires appointment of counsel
for the purpose of a writ of habeas corpus, the court shall appoint
the office of capital and forensic writs to represent the defendant
as provided by Subsection (c).
(c) At the earliest practical time, but in no event later
than 30 days, after the convicting court makes the findings
required under Subsections (a) and (b), the convicting court shall
appoint the office of capital and forensic writs or, if the office
of capital and forensic writs does not accept or is prohibited from
accepting an appointment under Section 78.054, Government Code,
other competent counsel under Subsection (f), unless the applicant
elects to proceed pro se or is represented by retained counsel. On
appointing counsel under this section, the convicting court shall
immediately notify the court of criminal appeals of the
appointment, including in the notice a copy of the judgment and the
name, address, and telephone number of the appointed counsel.
(f) If the office of capital and forensic writs does not
accept or is prohibited from accepting an appointment under Section
78.054, Government Code, the convicting court shall appoint counsel
from a list of competent counsel maintained by the presiding judges
of the administrative judicial regions under Section 78.056,
Government Code. The convicting court shall reasonably compensate
as provided by Section 2A an attorney appointed under this section,
other than an attorney employed by the office of capital and
forensic writs, regardless of whether the attorney is appointed by
the convicting court or was appointed by the court of criminal
appeals under prior law. An attorney appointed under this section
who is employed by the office of capital and forensic writs shall be
compensated in accordance with Subchapter B, Chapter 78, Government
Code.
SECTION 2. Section 2A(a), Article 11.071, Code of Criminal
Procedure, is amended to read as follows:
(a) The state shall reimburse a county for compensation of
counsel under Section 2, other than for compensation of counsel
employed by the office of capital and forensic writs, and for
payment of expenses under Section 3, regardless of whether counsel
is employed by the office of capital and forensic writs. The total
amount of reimbursement to which a county is entitled under this
section for an application under this article may not exceed
$25,000. Compensation and expenses in excess of the $25,000
reimbursement provided by the state are the obligation of the
county.
SECTION 3. Section 3(f), Article 11.071, Code of Criminal
Procedure, is amended to read as follows:
(f) This section applies to counsel's investigation of the
factual and legal grounds for the filing of an application for a
writ of habeas corpus, regardless of whether counsel is employed by
the office of capital and forensic writs.
SECTION 4. Sections 4A(e) and (f), Article 11.071, Code of
Criminal Procedure, are amended to read as follows:
(e) Sections 2A and 3 apply to compensation and
reimbursement of counsel appointed under Subsection (b)(3) in the
same manner as if counsel had been appointed by the convicting
court, unless the attorney is employed by the office of capital and
forensic writs, in which case the compensation of that attorney is
governed by Subchapter B, Chapter 78, Government Code.
(f) Notwithstanding any other provision of this article,
the court of criminal appeals shall appoint counsel and establish a
new filing date for application, which may be no later than the
270th day after the date on which counsel is appointed, for each
applicant who before September 1, 1999, filed an untimely
application or failed to file an application before the date
required by Section 4(a) or (b). Section 2A applies to the
compensation and payment of expenses of counsel appointed by the
court of criminal appeals under this subsection, unless the
attorney is employed by the office of capital and forensic writs, in
which case the compensation of that attorney is governed by
Subchapter B, Chapter 78, Government Code.
SECTION 5. Section 6(b-1), Article 11.071, Code of Criminal
Procedure, is amended to read as follows:
(b-1) If the convicting court receives notice that the
requirements of Section 5(a) for consideration of a subsequent
application have been met and if the applicant has not elected to
proceed pro se and is not represented by retained counsel, the
convicting court shall appoint, in order of priority:
(1) the attorney who represented the applicant in the
proceedings under Section 5, if the attorney seeks the appointment;
(2) the office of capital and forensic writs, if the
office represented the applicant in the proceedings under Section 5
or otherwise accepts the appointment; or
(3) counsel from a list of competent counsel
maintained by the presiding judges of the administrative judicial
regions under Section 78.056, Government Code, if the office of
capital and forensic writs:
(A) did not represent the applicant as described
by Subdivision (2); or
(B) does not accept or is prohibited from
accepting the appointment under Section 78.054, Government Code.
SECTION 6. Article 26.044(a)(2), Code of Criminal
Procedure, is amended to read as follows:
(2) "Office of capital and forensic writs" means the
office of capital and forensic writs established under Subchapter
B, Chapter 78, Government Code.
SECTION 7. Article 26.05(a), Code of Criminal Procedure, is
amended to read as follows:
(a) A counsel, other than an attorney with a public
defender's office or an attorney employed by the office of capital
and forensic writs, appointed to represent a defendant in a
criminal proceeding, including a habeas corpus hearing, shall be
paid a reasonable attorney's fee for performing the following
services, based on the time and labor required, the complexity of
the case, and the experience and ability of the appointed counsel:
(1) time spent in court making an appearance on behalf
of the defendant as evidenced by a docket entry, time spent in
trial, and time spent in a proceeding in which sworn oral testimony
is elicited;
(2) reasonable and necessary time spent out of court
on the case, supported by any documentation that the court
requires;
(3) preparation of an appellate brief and preparation
and presentation of oral argument to a court of appeals or the Court
of Criminal Appeals; and
(4) preparation of a motion for rehearing.
SECTION 8. The heading to Chapter 78, Government Code, is
amended to read as follows:
CHAPTER 78. CAPITAL AND FORENSIC WRITS COMMITTEE AND OFFICE OF
CAPITAL AND FORENSIC WRITS
SECTION 9. The heading to Subchapter A, Chapter 78,
Government Code, is amended to read as follows:
SUBCHAPTER A. CAPITAL AND FORENSIC WRITS COMMITTEE
SECTION 10. Section 78.001, Government Code, is amended to
read as follows:
Sec. 78.001. DEFINITIONS. In this subchapter:
(1) "Committee" means the capital and forensic writs
committee established under this subchapter.
(2) "Office of capital and forensic writs" means the
office of capital and forensic writs established under Subchapter
B.
SECTION 11. Section 78.002, Government Code, is amended to
read as follows:
Sec. 78.002. ESTABLISHMENT OF COMMITTEE; DUTIES. (a) The
capital and forensic writs committee is established.
(b) The committee shall recommend to the court of criminal
appeals as provided by Section 78.004 a director for the office of
capital and forensic writs when a vacancy exists for the position of
director.
SECTION 12. The heading to Section 78.004, Government Code,
is amended to read as follows:
Sec. 78.004. RECOMMENDATION AND APPOINTMENT OF DIRECTOR OF
OFFICE OF CAPITAL AND FORENSIC WRITS.
SECTION 13. Section 78.004, Government Code, is amended to
read as follows:
Sec. 78.004. RECOMMENDATION AND APPOINTMENT OF DIRECTOR OF
OFFICE OF CAPITAL AND FORENSIC WRITS. (a) The committee shall
submit to the court of criminal appeals, in order of the committee's
preference, a list of the names of not more than five persons the
committee recommends that the court consider in appointing the
director of the office of capital and forensic writs when a vacancy
exists for the position of director. If the committee finds that
three or more persons under the committee's consideration are
qualified to serve as the director of the office of capital and
forensic writs, the committee must include at least three names in
the list submitted under this subsection.
(b) Each person recommended to the court of criminal appeals
by the committee under Subsection (a):
(1) must exhibit proficiency and commitment to
providing quality representation to defendants in death penalty
cases, as described by the Guidelines and Standards for Texas
Capital Counsel, as published by the State Bar of Texas; and
(2) may not have been found by a state or federal court
to have rendered ineffective assistance of counsel during the trial
or appeal of a criminal [death penalty] case.
(c) When a vacancy for the position exists, the court of
criminal appeals shall appoint from the list of persons submitted
to the court under Subsection (a) the director of the office of
capital and forensic writs.
SECTION 14. The heading to Subchapter B, Chapter 78,
Government Code, is amended to read as follows:
SUBCHAPTER B. OFFICE OF CAPITAL AND FORENSIC WRITS
SECTION 15. Section 78.051, Government Code, is amended to
read as follows:
Sec. 78.051. DEFINITIONS. In this subchapter:
(1) "Committee" means the capital and forensic writs
committee established under Subchapter A.
(2) "Office" means the office of capital and forensic
writs established under this subchapter.
SECTION 16. Section 78.052(a), Government Code, is amended
to read as follows:
(a) The office of capital and forensic writs is established
and operates under the direction and supervision of the director of
the office.
SECTION 17. Section 78.053(b), Government Code, is amended
to read as follows:
(b) The director shall employ attorneys and employ or retain
licensed investigators, experts, and other personnel necessary to
perform the duties of the office. To be employed by the director,
an attorney may not have been found by a state or federal court to
have rendered ineffective assistance of counsel during the trial or
appeal of a criminal [death penalty] case.
SECTION 18. Section 78.054, Government Code, is amended by
amending Subsection (b) and adding Subsection (d) to read as
follows:
(b) The office may not represent a defendant in a federal
habeas review. The office may not represent a defendant in an
action or proceeding in state court other than an action or
proceeding that:
(1) is conducted under Article 11.071 or 11.073, Code
of Criminal Procedure;
(2) is collateral to the preparation of an application
under Article 11.071 or 11.073, Code of Criminal Procedure; [or]
(3) concerns any other post-conviction matter in a
death penalty case other than a direct appeal, including an action
or proceeding under Article 46.05 or Chapter 64, Code of Criminal
Procedure; or
(4) concerns any other post-conviction matter in a
case that involves a forensic science issue.
(d) The office may consult with law school clinics with
applicable knowledge and experience and with other experts as
necessary to investigate the facts of a particular case.
SECTION 19. Section 79.001(12), Government Code, is amended
to read as follows:
(12) "Office of capital and forensic writs" means the
office of capital and forensic writs established under Subchapter
B, Chapter 78.
SECTION 20. Section 79.031, Government Code, is amended to
read as follows:
Sec. 79.031. FAIR DEFENSE ACCOUNT. The fair defense
account is an account in the general revenue fund that may be
appropriated only to:
(1) the commission for the purpose of implementing
this chapter; and
(2) the office of capital and forensic writs for the
purpose of implementing Subchapter B, Chapter 78.
SECTION 21. Section 411.082(5), Government Code, is amended
to read as follows:
(5) "Office of capital and forensic writs" means the
office of capital and forensic writs established under Subchapter
B, Chapter 78.
SECTION 22. Section 411.088(a-1), Government Code, is
amended to read as follows:
(a-1) The department may not charge a fee under Subsection
(a) for providing criminal history record information to:
(1) a criminal justice agency;
(2) the office of capital and forensic writs; or
(3) a public defender's office.
SECTION 23. Section 411.1272, Government Code, is amended
to read as follows:
Sec. 411.1272. ACCESS TO CRIMINAL HISTORY RECORD
INFORMATION: OFFICE OF CAPITAL AND FORENSIC WRITS AND PUBLIC
DEFENDER'S OFFICES. The office of capital and forensic writs and a
public defender's office are entitled to obtain from the department
criminal history record information maintained by the department
that relates to a criminal case in which an attorney compensated by
the office of capital and forensic writs or by the public defender's
office has been appointed.
SECTION 24. This Act takes effect September 1, 2015.