By: Crockett H.B. No. 3670
A BILL TO BE ENTITLED
AN ACT
relating to appointing a court attorney using the Texas Indigent
Defense software
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 26.04, Chapter 26, Title 1, Code of
Criminal Procedure is amended to read as follows:
Art. 26.04. PROCEDURES FOR APPOINTING COUNSEL (a) The
judges of the county courts, statutory county 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 or a felony. The procedures
must be consistent with this article and Articles 1.051, 15.17,
15.18, 26.05, and 26.052 and must provide for the priority
appointment of a public defender's office as described by
Subsection (f). 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 using the method of appointment in
the Indigent Defense software approved by the Texas Indigent
Defense Commission or 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 or in the appointment system 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 of the county courts,
statutory county courts, and district courts trying criminal cases
in the county, or the judges' designee, to appoint counsel for
indigent defendants in the county;
(2) apply to each appointment of counsel made by a
judge or the judges' designee in the county;
(3) ensure that each indigent defendant in the county
who is charged with a misdemeanor punishable by confinement 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 or pursuant to section (f) below 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 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 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 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 of the county courts and statutory
county 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
(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; 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.
(f) In a county with a public defender's office, the court
or the courts' designee may appoint from the public defender's
office. The courts shall determine qualifications for appointment
of the public defender pursuant to section (d) above. Section (d)
above also applies to including a proceeding in a capital murder
case except a public defender who is appointed to represent a
defendant in a death penalty case must also meet the qualifications
of Article 26.052.However, the court is not required to appoint the
public defender's office if:
(1) the court makes a finding of good cause for
appointing other counsel, provided that in a capital murder case,
the court makes a finding of good cause on the record for appointing
that counsel;
(2) the appointment would be contrary to the office's
written plan under Article 26.044;
(3) the office is prohibited from accepting the
appointment under Article 26.044(j); or
(4) a managed assigned counsel program also exists in
the county and an attorney will be appointed under that program.
(f-1) In a county in which a managed assigned counsel
program is operated in accordance with Article 26.047, the managed
assigned counsel program may appoint counsel to represent the
defendant in accordance with the guidelines established for the
program.
(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 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 of the county courts and statutory county
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 of the county courts and statutory county 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) Subject to Subsection (f), 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 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.
(i) Subject to Subsection (f), A court or the courts'
designee required under Subsection (c) to appoint an attorney to
represent a defendant accused or convicted of a felony may appoint
an attorney from any county located in the court's administrative
judicial region.
(j) An attorney appointed under this article shall:
(1) make every reasonable effort to contact the
defendant not later than the end of the first working day after the
date on which the attorney is appointed and to interview the
defendant as soon as practicable after the attorney is appointed;
(2) represent the defendant until charges are
dismissed, the defendant is acquitted, appeals are exhausted, or
the attorney is permitted or ordered by the court to withdraw as
counsel for the defendant after a finding of good cause is entered
on the record;
(3) with respect to a defendant not represented by
other counsel, before withdrawing as counsel for the defendant
after a trial or the entry of a plea of guilty:
(A) advise the defendant of the defendant's right
to file a motion for new trial and a notice of appeal;
(B) if the defendant wishes to pursue either or
both remedies described by Paragraph (A), assist the defendant in
requesting the prompt appointment of replacement counsel; and
(C) if replacement counsel is not appointed
promptly and the defendant wishes to pursue an appeal, file a timely
notice of appeal; and
(4) not later than October 15 of each year and on a
form prescribed by the Texas Indigent Defense Commission, submit to
the county information, for the preceding fiscal year, that
describes the percentage of the attorney's practice time that was
dedicated to work based on appointments accepted in the county
under this article and Title 3, Family Code.
(k) A court may replace an attorney who violates Subsection
(j)(1) with other counsel. A majority of the judges of the county
courts and statutory county courts or 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).
(l) Procedures adopted under Subsection (a) must include
procedures and financial standards for determining whether a
defendant is indigent. The procedures and standards shall apply to
each defendant in the county equally, regardless of whether the
defendant is in custody or has been released on bail.
(m) In determining whether a defendant is indigent, the
court or the courts' designee may consider the defendant's income,
source of income, assets, property owned, outstanding obligations,
necessary expenses, the number and ages of dependents, and spousal
income that is available to the defendant. The court or the courts'
designee may not consider whether the defendant has posted or is
capable of posting bail, except to the extent that it reflects the
defendant's financial circumstances as measured by the
considerations listed in this subsection.
(n) A defendant who requests a determination of indigency
and appointment of counsel shall:
(1) complete under oath a questionnaire concerning his
financial resources;
(2) respond under oath to an examination regarding his
financial resources by the judge or magistrate responsible for
determining whether the defendant is indigent; or
(3) complete the questionnaire and respond to
examination by the judge or magistrate.
(o) Before making a determination of whether a defendant is
indigent, the court shall request the defendant to sign under oath a
statement substantially in the following form:
"On this ____________ day of _______________________, 20_____, I
have been advised by the (name of the court) Court of my right to
representation by counsel in connection with the charge pending
against me. I am without means to employ counsel of my own choosing
and I hereby request the court to appoint counsel for me. (signature
of the defendant)"
(p) A defendant who is determined by the court to be
indigent is presumed to remain indigent for the remainder of the
proceedings in the case unless a material change in the defendant's
financial circumstances occurs. If there is a material change in
financial circumstances after a determination of indigency or
nonindigency is made, the defendant, the defendant's counsel, or
the attorney representing the state may move for reconsideration of
the determination.
(q) A written or oral statement elicited under this article
or evidence derived from the statement may not be used for any
purpose, except to determine the defendant's indigency or to
impeach the direct testimony of the defendant. This subsection does
not prohibit prosecution of the defendant under Chapter 37, Penal
Code.
(r) A court may not threaten to arrest or incarcerate a
person solely because the person requests the assistance of
counsel.
SECTION 2. This Act takes effect September 1, 2021.