Texas 2021 - 87th Regular

Texas House Bill HB3670 Compare Versions

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1	1	By: Crockett H.B. No. 3670
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to appointing a court attorney using the Texas Indigent
7	7	Defense software
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Article 26.04, Chapter 26, Title 1, Code of
10	10	Criminal Procedure is amended to read as follows:
11	11	Art. 26.04. PROCEDURES FOR APPOINTING COUNSEL (a) The
12	12	judges of the county courts, statutory county courts, and district
13	13	courts trying criminal cases in each county, by local rule, shall
14	14	adopt and publish written countywide procedures for timely and
15	15	fairly appointing counsel for an indigent defendant in the county
16	16	arrested for, charged with, or taking an appeal from a conviction of
17	17	a misdemeanor punishable by confinement or a felony. The procedures
18	18	must be consistent with this article and Articles 1.051, 15.17,
19	19	15.18, 26.05, and 26.052 and must provide for the priority
20	20	appointment of a public defender's office as described by
21	21	Subsection (f). A court shall appoint an attorney from a public
22	22	appointment list using a system of rotation, unless the court
23	23	appoints an attorney under Subsection (f), (f-1), (h), or (i). The
24	24	court shall appoint attorneys using the method of appointment in
25	25	the Indigent Defense software approved by the Texas Indigent
26	26	Defense Commission or from among the next five names on the
27	27	appointment list in the order in which the attorneys' names appear
28	28	on the list, unless the court makes a finding of good cause on the
29	29	record or in the appointment system for appointing an attorney out
30	30	of order. An attorney who is not appointed in the order in which the
31	31	attorney's name appears on the list shall remain next in order on
32	32	the list.
33	33	(b) Procedures adopted under Subsection (a) shall:
34	34	(1) authorize only the judges of the county courts,
35	35	statutory county courts, and district courts trying criminal cases
36	36	in the county, or the judges' designee, to appoint counsel for
37	37	indigent defendants in the county;
38	38	(2) apply to each appointment of counsel made by a
39	39	judge or the judges' designee in the county;
40	40	(3) ensure that each indigent defendant in the county
41	41	who is charged with a misdemeanor punishable by confinement or with
42	42	a felony and who appears in court without counsel has an opportunity
43	43	to confer with appointed counsel before the commencement of
44	44	judicial proceedings;
45	45	(4) require appointments for defendants in capital
46	46	cases in which the death penalty is sought to comply with any
47	47	applicable requirements under Articles 11.071 and 26.052;
48	48	(5) ensure that each attorney appointed from a public
49	49	appointment list or pursuant to section (f) below to represent an
50	50	indigent defendant perform the attorney's duty owed to the
51	51	defendant in accordance with the adopted procedures, the
52	52	requirements of this code, and applicable rules of ethics; and
53	53	(6) ensure that appointments are allocated among
54	54	qualified attorneys in a manner that is fair, neutral, and
55	55	nondiscriminatory.
56	56	(c) Whenever a court or the courts' designee authorized
57	57	under Subsection (b) to appoint counsel for indigent defendants in
58	58	the county determines for purposes of a criminal proceeding that a
59	59	defendant charged with or appealing a conviction of a felony or a
60	60	misdemeanor punishable by confinement is indigent or that the
61	61	interests of justice require representation of a defendant in the
62	62	proceeding, the court or the courts' designee shall appoint one or
63	63	more practicing attorneys to represent the defendant in accordance
64	64	with this subsection and the procedures adopted under Subsection
65	65	(a) If the court or the courts' designee determines that the
66	66	defendant does not speak and understand the English language or
67	67	that the defendant is deaf, the court or the courts' designee shall
68	68	make an effort to appoint an attorney who is capable of
69	69	communicating in a language understood by the defendant.
70	70	(d) A public appointment list from which an attorney is
71	71	appointed as required by Subsection (a) shall contain the names of
72	72	qualified attorneys, each of whom:
73	73	(1) applies to be included on the list;
74	74	(2) meets the objective qualifications specified by
75	75	the judges under Subsection (e);
76	76	(3) meets any applicable qualifications specified by
77	77	the Texas Indigent Defense Commission; and
78	78	(4) is approved by a majority of the judges who
79	79	established the appointment list under Subsection (e).
80	80	(e) In a county in which a court is required under
81	81	Subsection (a) to appoint an attorney from a public appointment
82	82	list:
83	83	(1) the judges of the county courts and statutory
84	84	county courts trying misdemeanor cases in the county, by formal
85	85	action:
86	86	(A) shall:
87	87	(i) establish a public appointment list of
88	88	attorneys qualified to provide representation in the county in
89	89	misdemeanor cases punishable by confinement; and
90	90	(ii) specify the objective qualifications
91	91	necessary for an attorney to be included on the list; and
92	92	(B) may establish, if determined by the judges to
93	93	be appropriate, more than one appointment list graduated according
94	94	to the degree of seriousness of the offense, the attorneys'
95	95	qualifications, and whether representation will be provided in
96	96	trial court proceedings, appellate proceedings, or both; and
97	97	(2) the judges of the district courts trying felony
98	98	cases in the county, by formal action:
99	99	(A) shall:
100	100	(i) establish a public appointment list of
101	101	attorneys qualified to provide representation in felony cases in
102	102	the county; and
103	103	(ii) specify the objective qualifications
104	104	necessary for an attorney to be included on the list; and
105	105	(B) may establish, if determined by the judges to
106	106	be appropriate, more than one appointment list graduated according
107	107	to the degree of seriousness of the offense, the attorneys'
108	108	qualifications, and whether representation will be provided in
109	109	trial court proceedings, appellate proceedings, or both.
110	110	(f) In a county with a public defender's office, the court
111	111	or the courts' designee may appoint from the public defender's
112	112	office. The courts shall determine qualifications for appointment
113	113	of the public defender pursuant to section (d) above. Section (d)
114	114	above also applies to including a proceeding in a capital murder
115	115	case except a public defender who is appointed to represent a
116	116	defendant in a death penalty case must also meet the qualifications
117	117	of Article 26.052.However, the court is not required to appoint the
118	118	public defender's office if:
119	119	(1) the court makes a finding of good cause for
120	120	appointing other counsel, provided that in a capital murder case,
121	121	the court makes a finding of good cause on the record for appointing
122	122	that counsel;
123	123	(2) the appointment would be contrary to the office's
124	124	written plan under Article 26.044;
125	125	(3) the office is prohibited from accepting the
126	126	appointment under Article 26.044(j); or
127	127	(4) a managed assigned counsel program also exists in
128	128	the county and an attorney will be appointed under that program.
129	129	(f-1) In a county in which a managed assigned counsel
130	130	program is operated in accordance with Article 26.047, the managed
131	131	assigned counsel program may appoint counsel to represent the
132	132	defendant in accordance with the guidelines established for the
133	133	program.
134	134	(g) A countywide alternative program for appointing counsel
135	135	for indigent defendants in criminal cases is established by a
136	136	formal action in which two-thirds of the judges of the courts
137	137	designated under this subsection vote to establish the alternative
138	138	program. An alternative program for appointing counsel in
139	139	misdemeanor and felony cases may be established in the manner
140	140	provided by this subsection by the judges of the county courts,
141	141	statutory county courts, and district courts trying criminal cases
142	142	in the county. An alternative program for appointing counsel in
143	143	misdemeanor cases may be established in the manner provided by this
144	144	subsection by the judges of the county courts and statutory county
145	145	courts trying criminal cases in the county. An alternative program
146	146	for appointing counsel in felony cases may be established in the
147	147	manner provided by this subsection by the judges of the district
148	148	courts trying criminal cases in the county. In a county in which an
149	149	alternative program is established:
150	150	(1) the alternative program may:
151	151	(A) use a single method for appointing counsel or
152	152	a combination of methods; and
153	153	(B) use a multicounty appointment list using a
154	154	system of rotation; and
155	155	(2) the procedures adopted under Subsection (a) must
156	156	ensure that:
157	157	(A) attorneys appointed using the alternative
158	158	program to represent defendants in misdemeanor cases punishable by
159	159	confinement:
160	160	(i) meet specified objective
161	161	qualifications for that representation, which may be graduated
162	162	according to the degree of seriousness of the offense and whether
163	163	representation will be provided in trial court proceedings,
164	164	appellate proceedings, or both; and
165	165	(ii) are approved by a majority of the
166	166	judges of the county courts and statutory county courts trying
167	167	misdemeanor cases in the county;
168	168	(B) attorneys appointed using the alternative
169	169	program to represent defendants in felony cases:
170	170	(i) meet specified objective
171	171	qualifications for that representation, which may be graduated
172	172	according to the degree of seriousness of the offense and whether
173	173	representation will be provided in trial court proceedings,
174	174	appellate proceedings, or both; and
175	175	(ii) are approved by a majority of the
176	176	judges of the district courts trying felony cases in the county;
177	177	(C) appointments for defendants in capital cases
178	178	in which the death penalty is sought comply with the requirements of
179	179	Article 26.052; and
180	180	(D) appointments are reasonably and impartially
181	181	allocated among qualified attorneys.
182	182	(h) Subject to Subsection (f), In a county in which an
183	183	alternative program for appointing counsel is established as
184	184	provided by Subsection (g) and is approved by the presiding judge of
185	185	the administrative judicial region, a court or the courts' designee
186	186	may appoint an attorney to represent an indigent defendant by using
187	187	the alternative program. In establishing an alternative program
188	188	under Subsection (g), the judges of the courts establishing the
189	189	program may not, without the approval of the commissioners court,
190	190	obligate the county by contract or by the creation of new positions
191	191	that cause an increase in expenditure of county funds.
192	192	(i) Subject to Subsection (f), A court or the courts'
193	193	designee required under Subsection (c) to appoint an attorney to
194	194	represent a defendant accused or convicted of a felony may appoint
195	195	an attorney from any county located in the court's administrative
196	196	judicial region.
197	197	(j) An attorney appointed under this article shall:
198	198	(1) make every reasonable effort to contact the
199	199	defendant not later than the end of the first working day after the
200	200	date on which the attorney is appointed and to interview the
201	201	defendant as soon as practicable after the attorney is appointed;
202	202	(2) represent the defendant until charges are
203	203	dismissed, the defendant is acquitted, appeals are exhausted, or
204	204	the attorney is permitted or ordered by the court to withdraw as
205	205	counsel for the defendant after a finding of good cause is entered
206	206	on the record;
207	207	(3) with respect to a defendant not represented by
208	208	other counsel, before withdrawing as counsel for the defendant
209	209	after a trial or the entry of a plea of guilty:
210	210	(A) advise the defendant of the defendant's right
211	211	to file a motion for new trial and a notice of appeal;
212	212	(B) if the defendant wishes to pursue either or
213	213	both remedies described by Paragraph (A), assist the defendant in
214	214	requesting the prompt appointment of replacement counsel; and
215	215	(C) if replacement counsel is not appointed
216	216	promptly and the defendant wishes to pursue an appeal, file a timely
217	217	notice of appeal; and
218	218	(4) not later than October 15 of each year and on a
219	219	form prescribed by the Texas Indigent Defense Commission, submit to
220	220	the county information, for the preceding fiscal year, that
221	221	describes the percentage of the attorney's practice time that was
222	222	dedicated to work based on appointments accepted in the county
223	223	under this article and Title 3, Family Code.
224	224	(k) A court may replace an attorney who violates Subsection
225	225	(j)(1) with other counsel. A majority of the judges of the county
226	226	courts and statutory county courts or the district courts, as
227	227	appropriate, trying criminal cases in the county may remove from
228	228	consideration for appointment an attorney who intentionally or
229	229	repeatedly violates Subsection (j)(1).
230	230	(l) Procedures adopted under Subsection (a) must include
231	231	procedures and financial standards for determining whether a
232	232	defendant is indigent. The procedures and standards shall apply to
233	233	each defendant in the county equally, regardless of whether the
234	234	defendant is in custody or has been released on bail.
235	235	(m) In determining whether a defendant is indigent, the
236	236	court or the courts' designee may consider the defendant's income,
237	237	source of income, assets, property owned, outstanding obligations,
238	238	necessary expenses, the number and ages of dependents, and spousal
239	239	income that is available to the defendant. The court or the courts'
240	240	designee may not consider whether the defendant has posted or is
241	241	capable of posting bail, except to the extent that it reflects the
242	242	defendant's financial circumstances as measured by the
243	243	considerations listed in this subsection.
244	244	(n) A defendant who requests a determination of indigency
245	245	and appointment of counsel shall:
246	246	(1) complete under oath a questionnaire concerning his
247	247	financial resources;
248	248	(2) respond under oath to an examination regarding his
249	249	financial resources by the judge or magistrate responsible for
250	250	determining whether the defendant is indigent; or
251	251	(3) complete the questionnaire and respond to
252	252	examination by the judge or magistrate.
253	253	(o) Before making a determination of whether a defendant is
254	254	indigent, the court shall request the defendant to sign under oath a
255	255	statement substantially in the following form:
256	256	"On this ____________ day of _______________________, 20_____, I
257	257	have been advised by the (name of the court) Court of my right to
258	258	representation by counsel in connection with the charge pending
259	259	against me. I am without means to employ counsel of my own choosing
260	260	and I hereby request the court to appoint counsel for me. (signature
261	261	of the defendant)"
262	262	(p) A defendant who is determined by the court to be
263	263	indigent is presumed to remain indigent for the remainder of the
264	264	proceedings in the case unless a material change in the defendant's
265	265	financial circumstances occurs. If there is a material change in
266	266	financial circumstances after a determination of indigency or
267	267	nonindigency is made, the defendant, the defendant's counsel, or
268	268	the attorney representing the state may move for reconsideration of
269	269	the determination.
270	270	(q) A written or oral statement elicited under this article
271	271	or evidence derived from the statement may not be used for any
272	272	purpose, except to determine the defendant's indigency or to
273	273	impeach the direct testimony of the defendant. This subsection does
274	274	not prohibit prosecution of the defendant under Chapter 37, Penal
275	275	Code.
276	276	(r) A court may not threaten to arrest or incarcerate a
277	277	person solely because the person requests the assistance of
278	278	counsel.
279	279	SECTION 2. This Act takes effect September 1, 2021.