By: Gervin-Hawkins, Moody, Crockett H.B. No. 679
A BILL TO BE ENTITLED
AN ACT
relating to policies and standards for providing legal
representation to indigent defendants in certain capital felony
cases.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 26.052, Code of Criminal Procedure, is
amended by adding Subsections (c-1), (c-2), (c-3), (c-4), (c-5),
and (c-6) and amending Subsections (d) and (m) to read as follows:
(c-1) The local selection committee shall evaluate and
determine the list of attorneys qualified under this article to be
appointed to represent indigent defendants in capital cases in
which the death penalty is sought and post a list of those attorneys
on the Internet website of each administrative judicial region.
(c-2) A statewide capital defense training and standards
committee is created. Each member of the committee must be a
licensed attorney and must have significant experience in capital
defense or indigent criminal defense policy or practice. A member
of the committee may not be a prosecutor, a law enforcement officer,
or an employee of the office of capital and forensic writs. The
committee must be composed of nine members, including:
(1) two judges jointly selected by the presiding
judges of the administrative judicial regions;
(2) a criminal defense attorney appointed by the
president of the Texas Criminal Defense Lawyers Association;
(3) the chief public defender of the Regional Public
Defender for Capital Cases office, or the chief public defender's
designee;
(4) the chief capital defender of a county public
defender office appointed by the executive director of the Texas
Indigent Defense Commission;
(5) a member of the State Bar of Texas committee on
legal services to the poor in criminal matters selected by the chair
of the committee; and
(6) three attorneys appointed by the executive
director of the Texas Indigent Defense Commission.
(c-3) Members of the statewide capital defense training and
standards committee serve four-year terms and may be reappointed.
If a vacancy occurs, the appropriate appointing authority shall
appoint a successor in the same manner as the original appointment
to serve for the remainder of the unexpired term.
(c-4) The members of the statewide capital defense training
and standards committee shall select a chair from among the
committee's members.
(c-5) A member of the statewide capital defense training and
standards committee may not receive compensation for services on
the committee but is entitled to be reimbursed for actual and
necessary expenses incurred in discharging committee duties. The
expenses are paid from funds appropriated to the Texas Indigent
Defense Commission.
(c-6) The Texas Indigent Defense Commission shall provide
administrative support as necessary to carry out the purposes of
this article.
(d)(1) The statewide capital defense training and standards
committee shall adopt policies and standards for providing legal
representation [the qualification of attorneys to be appointed] to
[represent] indigent defendants in capital cases in which the death
penalty is sought. The policies and standards must include, with
respect to the qualification of attorneys to be appointed in
capital cases, the following:
(A) training requirements and curricula;
(B) qualification standards;
(C) continuing legal education requirements; and
(D) other policies and standards as necessary to
ensure quality legal representation in capital cases.
(2) The standards must require that a trial attorney
appointed as lead counsel to a capital case:
(A) be a member of the State Bar of Texas;
(B) exhibit proficiency and commitment to
providing quality representation to defendants in death penalty
cases;
(C) have not been found by the local selection
committee to have provided deficient legal representation [a
federal or state court to have rendered ineffective assistance of
counsel] during the trial or appeal of any capital case if [,
unless] the local selection committee has determined [determines
under Subsection (n)] that the conduct underlying the deficient
representation [finding no longer] accurately reflects the
attorney's inability [ability] to provide effective representation
in the future;
(D) have at least five years of criminal law
experience;
(E) have tried to a verdict as lead defense
counsel a significant number of felony cases, including homicide
trials and other trials for offenses punishable as second or first
degree felonies or capital felonies;
(F) have trial experience in[:
[(i)] the use of and challenges to mental
health or forensic expert witnesses[;] and have:
(i) trial experience in [(ii)]
investigating and presenting mitigating evidence at the penalty
phase of a death penalty trial, regardless of whether:
(a) the case resulted in a judgment or
dismissal; or
(b) the state subsequently waived the
death penalty in the case; or
(ii) an equivalent amount of trial
experience, as determined by the local selection committee; and
(G) have participated in continuing legal
education courses or other training relating to criminal defense in
death penalty cases.
(3) The standards must require that an attorney
appointed as lead appellate counsel in the direct appeal of a
capital case:
(A) be a member of the State Bar of Texas;
(B) exhibit proficiency and commitment to
providing quality representation to defendants in death penalty
cases;
(C) have not been found by the local selection
committee to have provided deficient legal representation [a
federal or state court to have rendered ineffective assistance of
counsel] during the trial or appeal of any capital case if [,
unless] the local selection committee has determined [determines
under Subsection (n)] that the conduct underlying the deficient
representation [finding no longer] accurately reflects the
attorney's inability [ability] to provide effective representation
in the future;
(D) have at least five years of criminal law
experience;
(E) have authored a significant number of
appellate briefs, including appellate briefs for homicide cases and
other cases involving an offense punishable as a capital felony or a
felony of the first degree or an offense described by Article
42A.054(a);
(F) have trial or appellate experience in[:
[(i)] the use of and challenges to mental
health or forensic expert witnesses[;] and have:
(i) trial or appellate experience in [(ii)]
the use of mitigating evidence at the penalty phase of a death
penalty trial, regardless of whether:
(a) the case resulted in a judgment or
dismissal; or
(b) the state subsequently waived the
death penalty in the case; or
(ii) an equivalent amount of trial or
appellate experience, as determined by the local selection
committee; and
(G) have participated in continuing legal
education courses or other training relating to criminal defense in
appealing death penalty cases.
(4) The Texas Indigent Defense Commission [committee]
shall prominently post the policies and standards adopted by the
statewide capital defense training and standards committee under
Subdivision (1) on the commission's Internet website [in each
district clerk's office in the region with a list of attorneys
qualified for appointment].
(5) Not later than the second anniversary of the date
an attorney is placed on the list of attorneys qualified for
appointment in death penalty cases and each year following the
second anniversary, the attorney must present a list of death
penalty trial, direct appeal, and habeas corpus cases in which the
attorney served as counsel and proof to the local selection
committee that the attorney has successfully completed the
training, minimum continuing legal education requirements, and
other standards established by the statewide capital defense
training and standards committee established under Subsection
(c-2) [of the State Bar of Texas, including a course or other form
of training relating to criminal defense in death penalty cases or
in appealing death penalty cases, as applicable]. The local
selection committee shall remove the attorney's name from the list
of qualified attorneys if the attorney fails to provide the local
selection committee with the materials required under this
subsection [proof of completion of the continuing legal education
requirements].
(m) The local selection committee shall annually review the
list of attorneys posted under Subsection (c-1) [(d)] to ensure
that each listed attorney satisfies the requirements under this
chapter.
SECTION 2. Article 26.052(n), Code of Criminal Procedure,
is repealed.
SECTION 3. The change in law made by this Act applies only
to a capital felony case that is filed on or after the effective
date of this Act. A capital felony case that is filed before the
effective date of this Act is governed by the law in effect on the
date the case was filed, and the former law is continued in effect
for that purpose.
SECTION 4. This Act takes effect September 1, 2021.