Texas 2019 - 86th Regular

Texas House Bill HB3920 Compare Versions

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

Old	New	Differences
1	1	86R2793 AJZ-D
2	2	By: Dutton H.B. No. 3920
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the establishment of the inmate legal services office
8	8	and to the appointment and compensation of certain legal counsel
9	9	for certain indigent inmates and other persons in secure
10	10	correctional facilities.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Subtitle F, Title 2, Government Code, is amended
13	13	by adding Chapter 78A to read as follows:
14	14	CHAPTER 78A. INMATE LEGAL SERVICES
15	15	SUBCHAPTER A. GENERAL PROVISIONS
16	16	Sec. 78A.001. DEFINITIONS. In this chapter:
17	17	(1) "Board" means the inmate legal services board of
18	18	directors established under Subchapter B.
19	19	(2) "Office" means the inmate legal services office
20	20	established under Subchapter C.
21	21	SUBCHAPTER B. INMATE LEGAL SERVICES BOARD
22	22	Sec. 78A.051. ESTABLISHMENT OF BOARD; DUTIES. (a) The
23	23	inmate legal services board of directors is established.
24	24	(b) The board shall recommend to the court of criminal
25	25	appeals as provided by Section 78A.053 a director for the inmate
26	26	legal services office when a vacancy exists for the position of
27	27	director.
28	28	Sec. 78A.052. APPOINTMENT AND COMPOSITION OF BOARD. (a)
29	29	The board is composed of the following nine members to be appointed
30	30	by the president of the State Bar of Texas, with ratification by the
31	31	executive committee of the State Bar of Texas:
32	32	(1) five attorneys who are employed as executive
33	33	directors or chief public defenders of a public defender's office,
34	34	as defined by Article 26.044(a), Code of Criminal Procedure; and
35	35	(2) four criminal defense attorneys each of whom:
36	36	(A) practices in a county in which there is a
37	37	confinement facility operated by or under contract with the Texas
38	38	Department of Criminal Justice; and
39	39	(B) has experience representing indigent
40	40	defendants in this state.
41	41	(b) Each member of the board must be a member of the State
42	42	Bar of Texas and may not be employed as a prosecutor or a law
43	43	enforcement official.
44	44	(c) The board shall elect one member of the board to serve as
45	45	the presiding officer of the board.
46	46	(d) Board members serve two-year terms expiring February 1
47	47	of each even-numbered year.
48	48	(e) The board meets at the call of the presiding officer of
49	49	the board.
50	50	Sec. 78A.053. APPOINTMENT OF DIRECTOR OF INMATE LEGAL
51	51	SERVICES OFFICE. (a) The board shall submit to the court of
52	52	criminal appeals, in order of the board's preference, a list of the
53	53	names of not more than five persons the board recommends that the
54	54	court consider in appointing the director of the inmate legal
55	55	services office when a vacancy exists for the position of director.
56	56	If the board finds that three or more persons under the board's
57	57	consideration are qualified to serve as the director, the board
58	58	must include at least three names in the list submitted under this
59	59	subsection.
60	60	(b) Each person recommended to the court of criminal appeals
61	61	by the board under Subsection (a):
62	62	(1) must be committed to providing quality
63	63	representation to indigent clients consistent with the principles
64	64	of a public defense delivery system as established by the American
65	65	Bar Association;
66	66	(2) may not have been found by a state or federal court
67	67	to have rendered ineffective assistance of counsel during the trial
68	68	or appeal of a criminal defense case;
69	69	(3) must be a member of the State Bar of Texas;
70	70	(4) must have practiced law for at least three years;
71	71	and
72	72	(5) must have substantial experience in the practice
73	73	of criminal law.
74	74	(c) When a vacancy for the position exists, the court of
75	75	criminal appeals shall appoint from the list of persons submitted
76	76	to the court under Subsection (a) the director of the inmate legal
77	77	services office.
78	78	(d) The board shall determine the director's compensation,
79	79	which must maintain parity with the compensation of the chief of the
80	80	special prosecution unit under Subchapter E, Chapter 41.
81	81	SUBCHAPTER C. INMATE LEGAL SERVICES OFFICE
82	82	Sec. 78A.101. ESTABLISHMENT. The inmate legal services
83	83	office is established and operates under the direction and
84	84	supervision of the director of the office.
85	85	Sec. 78A.102. DIRECTOR; STAFF. (a) The court of criminal
86	86	appeals shall appoint a director to direct and supervise the
87	87	operation of the office as provided by Section 78A.053. The
88	88	director serves a four-year term and continues to serve until a
89	89	successor has been appointed and qualified. The board may remove
90	90	the director only for good cause. The director may be reappointed
91	91	for a second or subsequent term.
92	92	(b) The director shall employ attorneys and employ or retain
93	93	licensed investigators and other personnel necessary to perform the
94	94	duties of the office.
95	95	(c) The director and any attorney employed by the office may
96	96	not:
97	97	(1) engage in the private practice of criminal law; or
98	98	(2) accept anything of value not authorized by law for
99	99	services rendered under this subchapter.
100	100	Sec. 78A.103. POWERS AND DUTIES. (a) The office may not
101	101	accept an appointment under Article 26.051, Code of Criminal
102	102	Procedure, or Section 841.005, Health and Safety Code, if:
103	103	(1) a conflict of interest exists that has not been
104	104	waived by the client;
105	105	(2) the office has insufficient resources to provide
106	106	adequate representation for the client;
107	107	(3) the office is incapable of providing
108	108	representation for the client in accordance with the rules of
109	109	professional conduct;
110	110	(4) the acceptance of the appointment would require
111	111	attorneys at the office to have a caseload that exceeds the maximum
112	112	allowable caseload established by the office; or
113	113	(5) other good cause is shown for not accepting the
114	114	appointment.
115	115	(b) On refusing to accept an appointment, the director shall
116	116	file with the court a written statement that identifies the reason
117	117	for the refusal. The court shall determine whether the director has
118	118	demonstrated adequate good cause for refusing the appointment and
119	119	shall include the statement with the papers in the case.
120	120	(c) A director may not be terminated, removed, or sanctioned
121	121	for refusing in good faith to accept an appointment under Article
122	122	26.051, Code of Criminal Procedure, or Section 841.005, Health and
123	123	Safety Code.
124	124	Sec. 78A.104. COMPENSATION OF OTHER APPOINTED ATTORNEYS.
125	125	If it is necessary that an attorney other than an attorney employed
126	126	by the office be appointed, that attorney shall be compensated as
127	127	provided by Article 26.051(h), Code of Criminal Procedure.
128	128	Sec. 78A.105. ACCESS TO CERTAIN FACILITIES, WITNESSES, AND
129	129	DOCUMENTS FOR INVESTIGATION. (a) Attorneys and investigators
130	130	employed or retained by the office shall be allowed access to a
131	131	facility operated by or under contract with the Texas Department of
132	132	Criminal Justice as necessary to:
133	133	(1) confer with a client of the office or witness to an
134	134	offense alleged to have been committed by a client of the office;
135	135	and
136	136	(2) inspect a location where an offense is alleged to
137	137	have been committed by a client of the office.
138	138	(b) The Texas Department of Criminal Justice and the special
139	139	prosecution unit established under Subchapter E, Chapter 41, shall
140	140	disclose to the office any documents necessary for the
141	141	representation of the office's clients.
142	142	SECTION 2. Articles 26.051(a), (d), (e), (g), and (h), Code
143	143	of Criminal Procedure, are amended to read as follows:
144	144	(a) In this article:
145	145	(1) ["Board" means the Texas Board of Criminal
146	146	Justice.
147	147	[(2)] "Correctional institutions division" means the
148	148	correctional institutions division of the Texas Department of
149	149	Criminal Justice.
150	150	(2) "Office" means the inmate legal services office
151	151	established under Subchapter C, Chapter 78A, Government Code.
152	152	(d) A court shall:
153	153	(1) notify the office [board] if the court [it]
154	154	determines that a defendant before the court is indigent and is an
155	155	inmate charged with an offense committed while in the custody of the
156	156	correctional institutions division or a correctional facility
157	157	authorized by Section 495.001, Government Code; and
158	158	(2) request that the office [board] provide legal
159	159	representation for the inmate.
160	160	(e) The office [board] shall provide legal representation
161	161	for inmates described by Subsection (d) [of this section]. [The
162	162	board may employ attorneys, support staff, and any other personnel
163	163	required to provide legal representation for those inmates. All
164	164	personnel employed under this article are directly responsible to
165	165	the board in the performance of their duties.] The office [board]
166	166	shall pay all fees and costs associated with providing legal
167	167	representation for those inmates.
168	168	(g) The court shall appoint an attorney other than an
169	169	attorney provided by the office [board] if the court determines for
170	170	any of the following reasons that a conflict of interest could arise
171	171	from the use of an attorney provided by the office [board] under
172	172	Subsection (e) [of this article]:
173	173	(1) the case involves more than one inmate and the
174	174	representation of more than one inmate could impair the attorney's
175	175	effectiveness;
176	176	(2) the case is appealed and the court is satisfied
177	177	that conflict of interest would prevent the presentation of a good
178	178	faith allegation of ineffective assistance of counsel by a trial
179	179	attorney provided by the office [board]; [or]
180	180	(3) any conflict of interest exists under the Texas
181	181	Disciplinary Rules of Professional Conduct of the State Bar of
182	182	Texas that precludes representation by an attorney appointed by the
183	183	office; or
184	184	(4) the office refuses to accept the appointment as
185	185	provided by Section 78A.103(a), Government Code [board].
186	186	(h) When the court appoints an attorney other than an
187	187	attorney provided by the office [board]:
188	188	(1) except as otherwise provided by this article, the
189	189	inmate's legal defense is subject to Articles 1.051, 26.04, 26.05,
190	190	and 26.052, as applicable; and
191	191	(2) the county in which a facility of the correctional
192	192	institutions division or a correctional facility authorized by
193	193	Section 495.001, Government Code, is located shall pay from its
194	194	general fund the total costs of the aggregate amount allowed and
195	195	awarded by the court for attorney compensation and expenses under
196	196	Article 26.05 or 26.052, as applicable.
197	197	SECTION 3. Section 841.005, Health and Safety Code, is
198	198	amended to read as follows:
199	199	Sec. 841.005. INMATE LEGAL SERVICES OFFICE [OF STATE
200	200	COUNSEL FOR OFFENDERS]. (a) Except as provided by Subsection (b),
201	201	the inmate legal services office established under Subchapter C,
202	202	Chapter 78A, Government Code, [Office of State Counsel for
203	203	Offenders] shall represent an indigent person subject to a civil
204	204	commitment proceeding under this chapter.
205	205	(b) If for any reason the inmate legal services office
206	206	[Office of State Counsel for Offenders] is unable to represent an
207	207	indigent person described by Subsection (a) at a civil commitment
208	208	proceeding under this chapter, the court shall appoint other
209	209	counsel to represent the indigent person.
210	210	SECTION 4. (a) Not later than December 1, 2019, the
211	211	president of the State Bar of Texas shall appoint and the executive
212	212	committee of the State Bar of Texas shall ratify the members of the
213	213	inmate legal services board of directors as required by Section
214	214	78A.052, Government Code, as added by this Act. Notwithstanding
215	215	the terms of board member service provided by that section, the term
216	216	of an initial member of the board of directors expires February 1,
217	217	2022.
218	218	(b) Not later than January 1, 2020, the inmate legal
219	219	services board of directors shall recommend a director for the
220	220	inmate legal services office as required by Section 78A.053,
221	221	Government Code, as added by this Act.
222	222	SECTION 5. Article 26.051, Code of Criminal Procedure, and
223	223	Section 841.005, Health and Safety Code, as amended by this Act,
224	224	apply only to legal representation appointed under those provisions
225	225	on or after February 1, 2020. Legal representation appointed
226	226	before February 1, 2020, is governed by the law in effect
227	227	immediately before the effective date of this Act, and the former
228	228	law is continued in effect for that purpose.
229	229	SECTION 6. This Act takes effect September 1, 2019.