86R2793 AJZ-D
By: Dutton H.B. No. 3920
A BILL TO BE ENTITLED
AN ACT
relating to the establishment of the inmate legal services office
and to the appointment and compensation of certain legal counsel
for certain indigent inmates and other persons in secure
correctional facilities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle F, Title 2, Government Code, is amended
by adding Chapter 78A to read as follows:
CHAPTER 78A. INMATE LEGAL SERVICES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 78A.001. DEFINITIONS. In this chapter:
(1) "Board" means the inmate legal services board of
directors established under Subchapter B.
(2) "Office" means the inmate legal services office
established under Subchapter C.
SUBCHAPTER B. INMATE LEGAL SERVICES BOARD
Sec. 78A.051. ESTABLISHMENT OF BOARD; DUTIES. (a) The
inmate legal services board of directors is established.
(b) The board shall recommend to the court of criminal
appeals as provided by Section 78A.053 a director for the inmate
legal services office when a vacancy exists for the position of
director.
Sec. 78A.052. APPOINTMENT AND COMPOSITION OF BOARD. (a)
The board is composed of the following nine members to be appointed
by the president of the State Bar of Texas, with ratification by the
executive committee of the State Bar of Texas:
(1) five attorneys who are employed as executive
directors or chief public defenders of a public defender's office,
as defined by Article 26.044(a), Code of Criminal Procedure; and
(2) four criminal defense attorneys each of whom:
(A) practices in a county in which there is a
confinement facility operated by or under contract with the Texas
Department of Criminal Justice; and
(B) has experience representing indigent
defendants in this state.
(b) Each member of the board must be a member of the State
Bar of Texas and may not be employed as a prosecutor or a law
enforcement official.
(c) The board shall elect one member of the board to serve as
the presiding officer of the board.
(d) Board members serve two-year terms expiring February 1
of each even-numbered year.
(e) The board meets at the call of the presiding officer of
the board.
Sec. 78A.053. APPOINTMENT OF DIRECTOR OF INMATE LEGAL
SERVICES OFFICE. (a) The board shall submit to the court of
criminal appeals, in order of the board's preference, a list of the
names of not more than five persons the board recommends that the
court consider in appointing the director of the inmate legal
services office when a vacancy exists for the position of director.
If the board finds that three or more persons under the board's
consideration are qualified to serve as the director, the board
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 board under Subsection (a):
(1) must be committed to providing quality
representation to indigent clients consistent with the principles
of a public defense delivery system as established by the American
Bar Association;
(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 defense case;
(3) must be a member of the State Bar of Texas;
(4) must have practiced law for at least three years;
and
(5) must have substantial experience in the practice
of criminal law.
(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 inmate legal
services office.
(d) The board shall determine the director's compensation,
which must maintain parity with the compensation of the chief of the
special prosecution unit under Subchapter E, Chapter 41.
SUBCHAPTER C. INMATE LEGAL SERVICES OFFICE
Sec. 78A.101. ESTABLISHMENT. The inmate legal services
office is established and operates under the direction and
supervision of the director of the office.
Sec. 78A.102. DIRECTOR; STAFF. (a) The court of criminal
appeals shall appoint a director to direct and supervise the
operation of the office as provided by Section 78A.053. The
director serves a four-year term and continues to serve until a
successor has been appointed and qualified. The board may remove
the director only for good cause. The director may be reappointed
for a second or subsequent term.
(b) The director shall employ attorneys and employ or retain
licensed investigators and other personnel necessary to perform the
duties of the office.
(c) The director and any attorney employed by the office may
not:
(1) engage in the private practice of criminal law; or
(2) accept anything of value not authorized by law for
services rendered under this subchapter.
Sec. 78A.103. POWERS AND DUTIES. (a) The office may not
accept an appointment under Article 26.051, Code of Criminal
Procedure, or Section 841.005, Health and Safety Code, if:
(1) a conflict of interest exists that has not been
waived by the client;
(2) the office has insufficient resources to provide
adequate representation for the client;
(3) the office is incapable of providing
representation for the client in accordance with the rules of
professional conduct;
(4) the acceptance of the appointment would require
attorneys at the office to have a caseload that exceeds the maximum
allowable caseload established by the office; or
(5) other good cause is shown for not accepting the
appointment.
(b) On refusing to accept an appointment, the director shall
file with the court a written statement that identifies the reason
for the refusal. The court shall determine whether the director has
demonstrated adequate good cause for refusing the appointment and
shall include the statement with the papers in the case.
(c) A director may not be terminated, removed, or sanctioned
for refusing in good faith to accept an appointment under Article
26.051, Code of Criminal Procedure, or Section 841.005, Health and
Safety Code.
Sec. 78A.104. COMPENSATION OF OTHER APPOINTED ATTORNEYS.
If it is necessary that an attorney other than an attorney employed
by the office be appointed, that attorney shall be compensated as
provided by Article 26.051(h), Code of Criminal Procedure.
Sec. 78A.105. ACCESS TO CERTAIN FACILITIES, WITNESSES, AND
DOCUMENTS FOR INVESTIGATION. (a) Attorneys and investigators
employed or retained by the office shall be allowed access to a
facility operated by or under contract with the Texas Department of
Criminal Justice as necessary to:
(1) confer with a client of the office or witness to an
offense alleged to have been committed by a client of the office;
and
(2) inspect a location where an offense is alleged to
have been committed by a client of the office.
(b) The Texas Department of Criminal Justice and the special
prosecution unit established under Subchapter E, Chapter 41, shall
disclose to the office any documents necessary for the
representation of the office's clients.
SECTION 2. Articles 26.051(a), (d), (e), (g), and (h), Code
of Criminal Procedure, are amended to read as follows:
(a) In this article:
(1) ["Board" means the Texas Board of Criminal
Justice.
[(2)] "Correctional institutions division" means the
correctional institutions division of the Texas Department of
Criminal Justice.
(2) "Office" means the inmate legal services office
established under Subchapter C, Chapter 78A, Government Code.
(d) A court shall:
(1) notify the office [board] if the court [it]
determines that a defendant before the court is indigent and is an
inmate charged with an offense committed while in the custody of the
correctional institutions division or a correctional facility
authorized by Section 495.001, Government Code; and
(2) request that the office [board] provide legal
representation for the inmate.
(e) The office [board] shall provide legal representation
for inmates described by Subsection (d) [of this section]. [The
board may employ attorneys, support staff, and any other personnel
required to provide legal representation for those inmates. All
personnel employed under this article are directly responsible to
the board in the performance of their duties.] The office [board]
shall pay all fees and costs associated with providing legal
representation for those inmates.
(g) The court shall appoint an attorney other than an
attorney provided by the office [board] if the court determines for
any of the following reasons that a conflict of interest could arise
from the use of an attorney provided by the office [board] under
Subsection (e) [of this article]:
(1) the case involves more than one inmate and the
representation of more than one inmate could impair the attorney's
effectiveness;
(2) the case is appealed and the court is satisfied
that conflict of interest would prevent the presentation of a good
faith allegation of ineffective assistance of counsel by a trial
attorney provided by the office [board]; [or]
(3) any conflict of interest exists under the Texas
Disciplinary Rules of Professional Conduct of the State Bar of
Texas that precludes representation by an attorney appointed by the
office; or
(4) the office refuses to accept the appointment as
provided by Section 78A.103(a), Government Code [board].
(h) When the court appoints an attorney other than an
attorney provided by the office [board]:
(1) except as otherwise provided by this article, the
inmate's legal defense is subject to Articles 1.051, 26.04, 26.05,
and 26.052, as applicable; and
(2) the county in which a facility of the correctional
institutions division or a correctional facility authorized by
Section 495.001, Government Code, is located shall pay from its
general fund the total costs of the aggregate amount allowed and
awarded by the court for attorney compensation and expenses under
Article 26.05 or 26.052, as applicable.
SECTION 3. Section 841.005, Health and Safety Code, is
amended to read as follows:
Sec. 841.005. INMATE LEGAL SERVICES OFFICE [OF STATE
COUNSEL FOR OFFENDERS]. (a) Except as provided by Subsection (b),
the inmate legal services office established under Subchapter C,
Chapter 78A, Government Code, [Office of State Counsel for
Offenders] shall represent an indigent person subject to a civil
commitment proceeding under this chapter.
(b) If for any reason the inmate legal services office
[Office of State Counsel for Offenders] is unable to represent an
indigent person described by Subsection (a) at a civil commitment
proceeding under this chapter, the court shall appoint other
counsel to represent the indigent person.
SECTION 4. (a) Not later than December 1, 2019, the
president of the State Bar of Texas shall appoint and the executive
committee of the State Bar of Texas shall ratify the members of the
inmate legal services board of directors as required by Section
78A.052, Government Code, as added by this Act. Notwithstanding
the terms of board member service provided by that section, the term
of an initial member of the board of directors expires February 1,
2022.
(b) Not later than January 1, 2020, the inmate legal
services board of directors shall recommend a director for the
inmate legal services office as required by Section 78A.053,
Government Code, as added by this Act.
SECTION 5. Article 26.051, Code of Criminal Procedure, and
Section 841.005, Health and Safety Code, as amended by this Act,
apply only to legal representation appointed under those provisions
on or after February 1, 2020. Legal representation appointed
before February 1, 2020, is governed by the law in effect
immediately before the effective date of this Act, and the former
law is continued in effect for that purpose.
SECTION 6. This Act takes effect September 1, 2019.