Texas 2021 - 87th Regular

Texas Senate Bill SB1322 Compare Versions

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

Old	New	Differences
1	1	By: Hinojosa S.B. No. 1322
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to indigent defense.
7	7	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
8	8	SECTION 1. Article 11.074, Code of Criminal Procedure, is
9	9	amended by amending Subsection (b) and adding Subsection (b-1) to
10	10	read as follows:
11	11	(b) If at any time the state represents to the convicting
12	12	court that an eligible indigent defendant under Article 1.051 has
13	13	under a writ of habeas corpus a potentially meritorious claim for
14	14	relief from a judgment described by Subsection (a) [who was
15	15	sentenced or had a sentence suspended is not guilty, is guilty of
16	16	only a lesser offense, or was convicted or sentenced under a law
17	17	that has been found unconstitutional by the court of criminal
18	18	appeals or the United States Supreme Court], the court shall
19	19	appoint an attorney to investigate the claim and represent the
20	20	indigent defendant for purposes of filing an application for a writ
21	21	of habeas corpus, if an application has not been filed, or to
22	22	otherwise represent the indigent defendant in a proceeding based on
23	23	the application for the writ.
24	24	(b-1) For purposes of Subsection (b), a potentially
25	25	meritorious claim is any claim the court determines is likely to
26	26	provide relief, including a claim that the defendant:
27	27	(1) is or may be actually innocent of the offense;
28	28	(2) is or may be guilty of only a lesser offense;
29	29	(3) was or may have been convicted or sentenced under a
30	30	law that has been found unconstitutional by the court of criminal
31	31	appeals or the United States Supreme Court; or
32	32	(4) was or may have been convicted or sentenced in
33	33	violation of the constitution of this state or the United States.
34	34	SECTION 2. The change in law made by this Act relating to
35	35	the application of writ of habeas corpus applies regardless of
36	36	whether the offense for which the applicant is in custody was
37	37	committed before, on, or after the effective date of this Act.
38	38	SECTION 3. Articles 15.17(a) and (f), Code of Criminal
39	39	Procedure, are amended to read as follows:
40	40	(a) (1) In each case enumerated in this Code, the person
41	41	making the arrest or the person having custody of the person
42	42	arrested shall without unnecessary delay, but not later than 48
43	43	hours after the person is arrested, take the person arrested or have
44	44	the person [him] taken before some magistrate of the county where
45	45	the person [accused] was arrested or, to provide more expeditiously
46	46	to the person arrested the warnings described by this article,
47	47	before a magistrate in any other county of this state. The arrested
48	48	person may be taken before the magistrate in person or the image and
49	49	sound of the arrested person may be presented to the magistrate by
50	50	means of a videoconference. For purposes of this subsection,
51	51	"videoconference" means a two-way electronic communication of
52	52	image and sound between the arrested person and the magistrate and
53	53	includes secure Internet videoconferencing.
54	54	(2) The magistrate shall inform in clear language the
55	55	person arrested, either in person or through a videoconference, of:
56	56	(A) the accusation against the person [him] and
57	57	of any affidavit filed with the accusation;
58	58	(B) the person's [therewith, of his] right to
59	59	retain counsel;
60	60	(C) the person's [, of his] right to remain
61	61	silent and to not make a statement;
62	62	(D) the fact that any statement the person makes
63	63	may be used against the person;
64	64	(E) the person's [, of his] right to have an
65	65	attorney present during any interview with peace officers or
66	66	attorneys representing the state;
67	67	(F) the person's [, of his] right to terminate
68	68	the interview at any time;
69	69	(G) the person's [, and of his] right to have an
70	70	examining trial;
71	71	(H) [. The magistrate shall also inform the
72	72	person arrested of] the person's right to request the appointment
73	73	of counsel if the person cannot afford counsel; and
74	74	(I) [. The magistrate shall inform the person
75	75	arrested of] the procedures for requesting appointment of counsel.
76	76	(3) If the person does not speak and understand the
77	77	English language or is deaf, the magistrate shall inform the person
78	78	in a manner consistent with Articles 38.30 and 38.31, as
79	79	appropriate.
80	80	(4) If the proceeding is conducted through a
81	81	videoconference, the magistrate shall ensure that the arrested
82	82	person is able to connect to and understand the image and sound of
83	83	the videoconference.
84	84	(5) If the magistrate has reasonable cause to believe
85	85	that the arrested person has a mental illness or is a person with an
86	86	intellectual disability, the magistrate shall follow the
87	87	procedures under Article 16.22.
88	88	(6) If the magistrate is unable to ensure that the
89	89	arrested person is able to understand and participate in the
90	90	proceeding, the magistrate shall:
91	91	(A) if the magistrate has appointing authority,
92	92	appoint counsel for the person; or
93	93	(B) if the magistrate does not have appointing
94	94	authority, notify the appointing authority of the person's
95	95	inability to understand and participate in the proceeding.
96	96	(7) The magistrate shall ensure that reasonable
97	97	assistance in completing the necessary forms for requesting
98	98	appointment of counsel is provided to the arrested person at the
99	99	same time the person is informed of the person's rights under this
100	100	subsection.
101	101	(8) If the arrested person [arrested] is indigent and
102	102	requests appointment of counsel and if the magistrate is authorized
103	103	under Article 26.04 to appoint counsel for indigent defendants in
104	104	the county, the magistrate shall appoint counsel in accordance with
105	105	Article 1.051. If the magistrate is not authorized to appoint
106	106	counsel, the magistrate shall without unnecessary delay, but not
107	107	later than 24 hours after the arrested person [arrested] requests
108	108	appointment of counsel, transmit, or cause to be transmitted to the
109	109	court or to the courts' designee authorized under Article 26.04 to
110	110	appoint counsel in the county, the necessary forms for requesting
111	111	and ruling on the appointment of counsel. [The magistrate shall
112	112	also inform the person arrested that he is not required to make a
113	113	statement and that any statement made by him may be used against
114	114	him.]
115	115	(9) The magistrate shall allow the arrested person
116	116	[arrested] reasonable time and opportunity to consult counsel and
117	117	shall, after determining whether the person is currently on bail
118	118	for a separate criminal offense, admit the person [arrested] to
119	119	bail if allowed by law.
120	120	(10) A record of the communication between the
121	121	arrested person and the magistrate shall be made. [The record shall
122	122	be preserved until the earlier of the following dates:
123	123	[(1) the date on which the pretrial hearing ends; or
124	124	[(2) the 91st day after the date on which the record is
125	125	made if the person is charged with a misdemeanor or the 120th day
126	126	after the date on which the record is made if the person is charged
127	127	with a felony. For purposes of this subsection, "videoconference"
128	128	means a two-way electronic communication of image and sound between
129	129	the arrested person and the magistrate and includes secure Internet
130	130	videoconferencing.]
131	131	(f) A record required under Subsection (a) or (e) may
132	132	consist of written forms, electronic recordings, or other
133	133	documentation as authorized by procedures adopted in the county
134	134	under Article 26.04(a). The record must be retained for at least
135	135	three years after final judgment is entered in the case or the
136	136	proceedings are otherwise terminated. The counsel for the defendant
137	137	may obtain a copy of the record on payment of a reasonable amount to
138	138	cover the costs of reproduction or, if the defendant is indigent,
139	139	the court shall provide a copy to the defendant without charging a
140	140	cost for the copy.
141	141	SECTION 4. The change in law made by this Act applies only
142	142	to a person who is arrested on or after the effective date of this
143	143	Act. A person arrested before the effective date of this Act is
144	144	governed by the law in effect immediately before the effective date
145	145	of this Act, and the former law is continued in effect for that
146	146	purpose.
147	147	SECTION 5. Article 26.05, Code of Criminal Procedure, is
148	148	amended by amending Subsection (d) and adding Subsection (d-1) to
149	149	read as follows:
150	150	(d) A counsel in a noncapital case, other than an attorney
151	151	with a public defender's office, appointed to represent a defendant
152	152	under this code shall be reimbursed for reasonable and necessary
153	153	expenses, including expenses for:
154	154	(1) investigation;
155	155	(2) [and for] mental health and other experts; and
156	156	(3) if the defendant is imprisoned in a correctional
157	157	facility located more than 50 miles from the court in which the
158	158	defendant's proceeding is pending:
159	159	(A) travel to the defendant's location for a
160	160	confidential interview; or
161	161	(B) any costs associated with remotely
162	162	conducting a confidential interview with the defendant.
163	163	(d-1) Expenses under Subsection (d) incurred with prior
164	164	court approval shall be reimbursed in the same manner provided for
165	165	capital cases by Articles 26.052(f) and (g), and expenses under
166	166	that subsection incurred without prior court approval shall be
167	167	reimbursed in the manner provided for capital cases by Article
168	168	26.052(h).
169	169	SECTION 6. The change in law made by this Act applies only
170	170	to expenses incurred on or after the effective date of this Act.
171	171	SECTION 7. Article 26.047(a), Code of Criminal Procedure,
172	172	is amended by amending Subdivision (2) and adding Subdivision (3)
173	173	to read as follows:
174	174	(2) "Managed assigned counsel program" or "program"
175	175	means a program operated with public funds:
176	176	(A) by a governmental entity, nonprofit
177	177	corporation, or bar association under a written agreement with a
178	178	governmental entity, other than an individual judge or court; [and]
179	179	(B) for the purpose of appointing counsel under
180	180	Article 26.04 or 26.052 of this code or Section 51.10, Family Code;
181	181	and
182	182	(C) for the purpose of appointing or providing an
183	183	investigator, expert, or other support services for appointed
184	184	counsel or indigent defendants.
185	185	(3) "Oversight board" means an oversight board
186	186	established under Article 26.048.
187	187	SECTION 8. Articles 26.047(b) and (f), Code of Criminal
188	188	Procedure, are amended to read as follows:
189	189	(b) The commissioners court of any county, on written
190	190	approval of a judge of the juvenile court of a county or a county
191	191	court, statutory county court, or district court trying criminal
192	192	cases in the county, may appoint a governmental entity, nonprofit
193	193	corporation, or bar association to operate a managed assigned
194	194	counsel program. The commissioners courts of two or more counties
195	195	may enter into a written agreement to jointly appoint and fund a
196	196	governmental entity, nonprofit corporation, or bar association to
197	197	operate a managed assigned counsel program. In appointing an
198	198	entity to operate a managed assigned counsel program under this
199	199	subsection, the commissioners court shall specify or the
200	200	commissioners courts shall jointly specify:
201	201	(1) the types of cases in which the program may appoint
202	202	counsel under Article 26.04 or 26.052 of this code or Section 51.10,
203	203	Family Code, and the courts in which the counsel appointed by the
204	204	program may be required to appear; [and]
205	205	(2) the term of any agreement establishing a program
206	206	and how the agreement may be terminated or renewed; and
207	207	(3) if an oversight board is established under Article
208	208	26.048 for the managed assigned counsel program, the powers and
209	209	duties that have been delegated to the oversight board.
210	210	(f) The program's public appointment list from which an
211	211	attorney is appointed must contain the names of qualified
212	212	attorneys, each of whom:
213	213	(1) applies to be included on the list;
214	214	(2) meets any applicable requirements specified by the
215	215	procedures [procedure] for appointing counsel adopted under
216	216	Article 26.04(a) or provided under Article 26.052 and any other
217	217	requirements specified by the Texas Indigent Defense Commission;
218	218	and
219	219	(3) is approved by the program director or review
220	220	committee, as applicable.
221	221	SECTION 9. Chapter 26, Code of Criminal Procedure, is
222	222	amended by adding Article 26.048 to read as follows:
223	223	Art. 26.048. MANAGED ASSIGNED COUNSEL OVERSIGHT BOARD. (a)
224	224	The commissioners court of a county or the commissioners courts of
225	225	two or more counties may establish an oversight board for a managed
226	226	assigned counsel program established in accordance with this
227	227	chapter.
228	228	(b) The commissioners court or courts that establish an
229	229	oversight board under this article shall appoint members of the
230	230	board. The following persons participating in the criminal justice
231	231	system may not serve on the board:
232	232	(1) a criminal trial judge;
233	233	(2) a prosecutor;
234	234	(3) an attorney who receives appointments through the
235	235	managed assigned counsel program; or
236	236	(4) a peace officer.
237	237	(c) The commissioners court or courts may delegate to the
238	238	board any power or duty of the commissioners court to provide
239	239	oversight of the program under Article 26.047, including:
240	240	(1) recommending selection and removal of a director;
241	241	(2) setting policy for the program; and
242	242	(3) developing a budget proposal for the program.
243	243	(d) An oversight board established under this article may
244	244	not gain access to privileged or confidential communication.
245	245	SECTION 10. Article 26.052, Code of Criminal Procedure, is
246	246	amended by amending Subsections (b) and (e) and adding Subsections
247	247	(b-1), (b-2), and (b-3) to read as follows:
248	248	(b) If a county is served by a public defender's office,
249	249	trial counsel and counsel for direct appeal or to apply for a writ
250	250	of certiorari may be appointed as provided by the guidelines
251	251	established by the public defender's office. [In all other cases in
252	252	which the death penalty is sought, counsel shall be appointed as
253	253	provided by this article.]
254	254	(b-1) If a county is served by a managed assigned counsel
255	255	program, trial counsel and counsel for direct appeal or to apply for
256	256	a writ of certiorari may be appointed as provided by the written
257	257	plan of operation for the managed assigned counsel program. An
258	258	attorney appointed by a managed assigned counsel program in a death
259	259	penalty case must be on the list of attorneys qualified for
260	260	appointment in death penalty cases in the administrative judicial
261	261	region in which the managed assigned counsel program operates.
262	262	(b-2) If a county is served by a public defender's office
263	263	and a managed assigned counsel program, subject to Articles
264	264	26.04(f)(1), (2), and (3), the presiding judge of the district
265	265	court in which a capital felony is filed shall give priority in
266	266	appointing counsel from the public defender's office.
267	267	(b-3) In a county not served by a public defender's office
268	268	or a managed assigned counsel program, counsel shall be appointed
269	269	as provided by this article in each case in which the death penalty
270	270	is sought.
271	271	(e) The presiding judge of the district court in which a
272	272	capital felony case is filed or the managed assigned counsel
273	273	program, if authorized by this article, shall appoint two
274	274	attorneys[, at least one of whom must be qualified under this
275	275	chapter,] to represent an indigent defendant as soon as practicable
276	276	after charges are filed, unless the state gives notice in writing
277	277	that the state will not seek the death penalty. At least one of the
278	278	attorneys must be qualified under this chapter.
279	279	SECTION 11. Sections 79.014(a) and (b), Government Code,
280	280	are amended to read as follows:
281	281	(a) The governor shall appoint with the advice and consent
282	282	of the senate seven [five] members of the board as follows:
283	283	(1) one member who is a district judge serving as a
284	284	presiding judge of an administrative judicial region;
285	285	(2) one member who is a judge of a constitutional
286	286	county court or who is a county commissioner;
287	287	(3) one member who is a practicing criminal defense
288	288	attorney;
289	289	(4) one member who is a chief public defender in this
290	290	state [or the chief public defender's designee, who must be an
291	291	attorney employed by the public defender's office]; [and]
292	292	(5) one member who is a judge of a constitutional
293	293	county court or who is a county commissioner of a county with a
294	294	population of 250,000 or more;
295	295	(6) one member who is a director of a managed assigned
296	296	counsel program in this state; and
297	297	(7) one member who is a justice of the peace, municipal
298	298	court judge, or appointed magistrate under Article 2.09, Code of
299	299	Criminal Procedure, whose regular duties include presiding over
300	300	hearings under Article 15.17, Code of Criminal Procedure.
301	301	(b) The board members serve staggered terms of two years,
302	302	with three [two] members' terms expiring February 1 of each
303	303	odd-numbered year and four [three] members' terms expiring February
304	304	1 of each even-numbered year.
305	305	SECTION 12. Sections 79.016(a) and (c), Government Code,
306	306	are amended to read as follows:
307	307	(a) A board member who is a chief public defender or a
308	308	director of a managed assigned counsel program for [or an attorney
309	309	employed by] an entity that applies for funds under Section 79.037
310	310	shall disclose that fact before a vote by the board regarding an
311	311	award of funds to that entity and may not participate in that vote.
312	312	(c) The commission may not award funds under Section 79.037
313	313	to an entity served by a chief public defender or a director of a
314	314	managed assigned counsel program [other attorney] who fails to make
315	315	a disclosure to the board as required by Subsection (a).
316	316	SECTION 13. Article 26.044(l), Code of Criminal Procedure,
317	317	is amended to read as follows:
318	318	(l) A public defender's office may investigate the
319	319	financial condition of any person the public defender's office is
320	320	appointed to represent. [The public defender's office shall report
321	321	the results of the investigation to the appointing judge. The judge
322	322	may hold a hearing to determine if the person is indigent and
323	323	entitled to representation under this article.]
324	324	SECTION 15. Article 26.04, Code of Criminal Procedure, is
325	325	amended by adding Subsection (i-1) to read as follows:
326	326	(i-1) Notwithstanding Subsection (j)(2) or any other law,
327	327	an attorney may be appointed under this article to represent an
328	328	indigent person for the sole purpose of providing counsel in
329	329	relation to that person's appearance before a magistrate as
330	330	required by Article 14.06(a), 15.17(a), or 15.18(a). The attorney
331	331	may represent the person in subsequent proceedings of that case,
332	332	only if appointed for that purpose under the other provisions of
333	333	this article.
334	334	SECTION 16. Article 26.044, Code of Criminal Procedure, is
335	335	amended by adding Subsection (i-1) to read as follows:
336	336	(i-1) Notwithstanding Subsection (i)(1), an attorney
337	337	engaged in the private practice of criminal law may be employed by a
338	338	public defender's office on a part-time basis for the sole purpose
339	339	of providing counsel in relation to an indigent person's appearance
340	340	before a magistrate as required by Article 14.06(a), 15.17(a), or
341	341	15.18(a).
342	342	SECTION 17. Article 26.04(i-1), Code of Criminal Procedure,
343	343	as added by this Act, applies only to a person who is arrested on or
344	344	after the effective date of this Act. A person arrested before the
345	345	effective date of this Act is governed by the law in effect on the
346	346	date the person was arrested, and the former law is continued in
347	347	effect for that purpose.
348	348	SECTION 18. Section 79.037(a), Government Code, is amended
349	349	to read as follows:
350	350	(a) The commission shall:
351	351	(1) provide technical support to:
352	352	(A) assist counties in improving their systems
353	353	for providing indigent defense services, including indigent
354	354	defense support services [systems]; and
355	355	(B) promote compliance by counties with the
356	356	requirements of state law relating to indigent defense;
357	357	(2) to assist a county in providing or improving the
358	358	provision of indigent defense services in the county, distribute in
359	359	the form of grants any funds appropriated for the purposes of this
360	360	section to one or more of the following entities:
361	361	(A) the county;
362	362	(B) a law school's legal clinic or program that
363	363	provides indigent defense services in the county; [and]
364	364	(C) a regional public defender that meets the
365	365	requirements of Subsection (e) and provides indigent defense
366	366	services in the county; [and]
367	367	(D) an entity described by Section 791.013 that
368	368	provides to a county administrative services under an interlocal
369	369	contract entered into for the purpose of providing or improving the
370	370	provision of indigent defense services in the county; and
371	371	(E) a nonprofit corporation that provides
372	372	indigent defense services or indigent defense support services in
373	373	the county; and
374	374	(3) monitor each entity that receives a grant under
375	375	Subdivision (2) and enforce compliance with the conditions of the
376	376	grant, including enforcement by:
377	377	(A) withdrawing grant funds; or
378	378	(B) requiring reimbursement of grant funds by the
379	379	entity.
380	380	SECTION 19. Section 79.037(b), Government Code, as amended
381	381	by Chapters 56 (S.B. 1353) and 476 (S.B. 1057), Acts of the 84th
382	382	Legislature, Regular Session, 2015, is reenacted and amended to
383	383	read as follows:
384	384	(b) The commission shall determine for each county the
385	385	entity or entities [within the county] that are eligible to receive
386	386	funds for the provision of or improvement in the provision of
387	387	indigent defense services under Subsection (a)(2). The
388	388	determination must be made based on the entity's:
389	389	(1) compliance with standards adopted by the board;
390	390	and
391	391	(2) demonstrated commitment to compliance with the
392	392	requirements of state law relating to indigent defense.
393	393	SECTION 20. Section 79.037(c), Government Code, as amended
394	394	by Chapters 56 (S.B. 1353) and 476 (S.B. 1057), Acts of the 84th
395	395	Legislature, Regular Session, 2015, is reenacted to read as
396	396	follows:
397	397	(c) The board shall adopt policies to ensure that funds
398	398	under Subsection (a)(2) are allocated and distributed in a fair
399	399	manner.
400	400	SECTION 21. Section 79.037(e), Government Code, as added by
401	401	Chapter 56 (S.B. 1353), Acts of the 84th Legislature, Regular
402	402	Session, 2015, is repealed.
403	403	SECTION 22. This Act takes effect September 1, 2021.