By: Hinojosa S.B. No. 1322
A BILL TO BE ENTITLED
AN ACT
relating to indigent defense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 11.074, Code of Criminal Procedure, is
amended by amending Subsection (b) and adding Subsection (b-1) to
read as follows:
(b) If at any time the state represents to the convicting
court that an eligible indigent defendant under Article 1.051 has
under a writ of habeas corpus a potentially meritorious claim for
relief from a judgment described by Subsection (a) [who was
sentenced or had a sentence suspended is not guilty, is guilty of
only a lesser offense, or was convicted or sentenced under a law
that has been found unconstitutional by the court of criminal
appeals or the United States Supreme Court], the court shall
appoint an attorney to investigate the claim and represent the
indigent defendant for purposes of filing an application for a writ
of habeas corpus, if an application has not been filed, or to
otherwise represent the indigent defendant in a proceeding based on
the application for the writ.
(b-1) For purposes of Subsection (b), a potentially
meritorious claim is any claim the court determines is likely to
provide relief, including a claim that the defendant:
(1) is or may be actually innocent of the offense;
(2) is or may be guilty of only a lesser offense;
(3) was or may have been convicted or sentenced under a
law that has been found unconstitutional by the court of criminal
appeals or the United States Supreme Court; or
(4) was or may have been convicted or sentenced in
violation of the constitution of this state or the United States.
SECTION 2. The change in law made by this Act relating to
the application of writ of habeas corpus applies regardless of
whether the offense for which the applicant is in custody was
committed before, on, or after the effective date of this Act.
SECTION 3. Articles 15.17(a) and (f), Code of Criminal
Procedure, are amended to read as follows:
(a) (1) In each case enumerated in this Code, the person
making the arrest or the person having custody of the person
arrested shall without unnecessary delay, but not later than 48
hours after the person is arrested, take the person arrested or have
the person [him] taken before some magistrate of the county where
the person [accused] was arrested or, to provide more expeditiously
to the person arrested the warnings described by this article,
before a magistrate in any other county of this state. The arrested
person may be taken before the magistrate in person or the image and
sound of the arrested person may be presented to the magistrate by
means of a videoconference. For purposes of this subsection,
"videoconference" means a two-way electronic communication of
image and sound between the arrested person and the magistrate and
includes secure Internet videoconferencing.
(2) The magistrate shall inform in clear language the
person arrested, either in person or through a videoconference, of:
(A) the accusation against the person [him] and
of any affidavit filed with the accusation;
(B) the person's [therewith, of his] right to
retain counsel;
(C) the person's [, of his] right to remain
silent and to not make a statement;
(D) the fact that any statement the person makes
may be used against the person;
(E) the person's [, of his] right to have an
attorney present during any interview with peace officers or
attorneys representing the state;
(F) the person's [, of his] right to terminate
the interview at any time;
(G) the person's [, and of his] right to have an
examining trial;
(H) [. The magistrate shall also inform the
person arrested of] the person's right to request the appointment
of counsel if the person cannot afford counsel; and
(I) [. The magistrate shall inform the person
arrested of] the procedures for requesting appointment of counsel.
(3) If the person does not speak and understand the
English language or is deaf, the magistrate shall inform the person
in a manner consistent with Articles 38.30 and 38.31, as
appropriate.
(4) If the proceeding is conducted through a
videoconference, the magistrate shall ensure that the arrested
person is able to connect to and understand the image and sound of
the videoconference.
(5) If the magistrate has reasonable cause to believe
that the arrested person has a mental illness or is a person with an
intellectual disability, the magistrate shall follow the
procedures under Article 16.22.
(6) If the magistrate is unable to ensure that the
arrested person is able to understand and participate in the
proceeding, the magistrate shall:
(A) if the magistrate has appointing authority,
appoint counsel for the person; or
(B) if the magistrate does not have appointing
authority, notify the appointing authority of the person's
inability to understand and participate in the proceeding.
(7) The magistrate shall ensure that reasonable
assistance in completing the necessary forms for requesting
appointment of counsel is provided to the arrested person at the
same time the person is informed of the person's rights under this
subsection.
(8) If the arrested person [arrested] is indigent and
requests appointment of counsel and if the magistrate is authorized
under Article 26.04 to appoint counsel for indigent defendants in
the county, the magistrate shall appoint counsel in accordance with
Article 1.051. If the magistrate is not authorized to appoint
counsel, the magistrate shall without unnecessary delay, but not
later than 24 hours after the arrested person [arrested] requests
appointment of counsel, transmit, or cause to be transmitted to the
court or to the courts' designee authorized under Article 26.04 to
appoint counsel in the county, the necessary forms for requesting
and ruling on the appointment of counsel. [The magistrate shall
also inform the person arrested that he is not required to make a
statement and that any statement made by him may be used against
him.]
(9) The magistrate shall allow the arrested person
[arrested] reasonable time and opportunity to consult counsel and
shall, after determining whether the person is currently on bail
for a separate criminal offense, admit the person [arrested] to
bail if allowed by law.
(10) A record of the communication between the
arrested person and the magistrate shall be made. [The record shall
be preserved until the earlier of the following dates:
[(1) the date on which the pretrial hearing ends; or
[(2) the 91st day after the date on which the record is
made if the person is charged with a misdemeanor or the 120th day
after the date on which the record is made if the person is charged
with a felony. For purposes of this subsection, "videoconference"
means a two-way electronic communication of image and sound between
the arrested person and the magistrate and includes secure Internet
videoconferencing.]
(f) A record required under Subsection (a) or (e) may
consist of written forms, electronic recordings, or other
documentation as authorized by procedures adopted in the county
under Article 26.04(a). The record must be retained for at least
three years after final judgment is entered in the case or the
proceedings are otherwise terminated. The counsel for the defendant
may obtain a copy of the record on payment of a reasonable amount to
cover the costs of reproduction or, if the defendant is indigent,
the court shall provide a copy to the defendant without charging a
cost for the copy.
SECTION 4. The change in law made by this Act applies only
to a person who is arrested on or after the effective date of this
Act. A person arrested before the effective date of this Act 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 5. Article 26.05, Code of Criminal Procedure, is
amended by amending Subsection (d) and adding Subsection (d-1) to
read as follows:
(d) A counsel in a noncapital case, other than an attorney
with a public defender's office, appointed to represent a defendant
under this code shall be reimbursed for reasonable and necessary
expenses, including expenses for:
(1) investigation;
(2) [and for] mental health and other experts; and
(3) if the defendant is imprisoned in a correctional
facility located more than 50 miles from the court in which the
defendant's proceeding is pending:
(A) travel to the defendant's location for a
confidential interview; or
(B) any costs associated with remotely
conducting a confidential interview with the defendant.
(d-1) Expenses under Subsection (d) incurred with prior
court approval shall be reimbursed in the same manner provided for
capital cases by Articles 26.052(f) and (g), and expenses under
that subsection incurred without prior court approval shall be
reimbursed in the manner provided for capital cases by Article
26.052(h).
SECTION 6. The change in law made by this Act applies only
to expenses incurred on or after the effective date of this Act.
SECTION 7. Article 26.047(a), Code of Criminal Procedure,
is amended by amending Subdivision (2) and adding Subdivision (3)
to read as follows:
(2) "Managed assigned counsel program" or "program"
means a program operated with public funds:
(A) by a governmental entity, nonprofit
corporation, or bar association under a written agreement with a
governmental entity, other than an individual judge or court; [and]
(B) for the purpose of appointing counsel under
Article 26.04 or 26.052 of this code or Section 51.10, Family Code;
and
(C) for the purpose of appointing or providing an
investigator, expert, or other support services for appointed
counsel or indigent defendants.
(3) "Oversight board" means an oversight board
established under Article 26.048.
SECTION 8. Articles 26.047(b) and (f), Code of Criminal
Procedure, are amended to read as follows:
(b) The commissioners court of any county, on written
approval of a judge of the juvenile court of a county or a county
court, statutory county court, or district court trying criminal
cases in the county, may appoint a governmental entity, nonprofit
corporation, or bar association to operate a managed assigned
counsel program. The commissioners courts of two or more counties
may enter into a written agreement to jointly appoint and fund a
governmental entity, nonprofit corporation, or bar association to
operate a managed assigned counsel program. In appointing an
entity to operate a managed assigned counsel program under this
subsection, the commissioners court shall specify or the
commissioners courts shall jointly specify:
(1) the types of cases in which the program may appoint
counsel under Article 26.04 or 26.052 of this code or Section 51.10,
Family Code, and the courts in which the counsel appointed by the
program may be required to appear; [and]
(2) the term of any agreement establishing a program
and how the agreement may be terminated or renewed; and
(3) if an oversight board is established under Article
26.048 for the managed assigned counsel program, the powers and
duties that have been delegated to the oversight board.
(f) The program's public appointment list from which an
attorney is appointed must contain the names of qualified
attorneys, each of whom:
(1) applies to be included on the list;
(2) meets any applicable requirements specified by the
procedures [procedure] for appointing counsel adopted under
Article 26.04(a) or provided under Article 26.052 and any other
requirements specified by the Texas Indigent Defense Commission;
and
(3) is approved by the program director or review
committee, as applicable.
SECTION 9. Chapter 26, Code of Criminal Procedure, is
amended by adding Article 26.048 to read as follows:
Art. 26.048. MANAGED ASSIGNED COUNSEL OVERSIGHT BOARD. (a)
The commissioners court of a county or the commissioners courts of
two or more counties may establish an oversight board for a managed
assigned counsel program established in accordance with this
chapter.
(b) The commissioners court or courts that establish an
oversight board under this article shall appoint members of the
board. The following persons participating in the criminal justice
system may not serve on the board:
(1) a criminal trial judge;
(2) a prosecutor;
(3) an attorney who receives appointments through the
managed assigned counsel program; or
(4) a peace officer.
(c) The commissioners court or courts may delegate to the
board any power or duty of the commissioners court to provide
oversight of the program under Article 26.047, including:
(1) recommending selection and removal of a director;
(2) setting policy for the program; and
(3) developing a budget proposal for the program.
(d) An oversight board established under this article may
not gain access to privileged or confidential communication.
SECTION 10. Article 26.052, Code of Criminal Procedure, is
amended by amending Subsections (b) and (e) and adding Subsections
(b-1), (b-2), and (b-3) to read as follows:
(b) If a county is served by a public defender's office,
trial counsel and counsel for direct appeal or to apply for a writ
of certiorari may be appointed as provided by the guidelines
established by the public defender's office. [In all other cases in
which the death penalty is sought, counsel shall be appointed as
provided by this article.]
(b-1) If a county is served by a managed assigned counsel
program, trial counsel and counsel for direct appeal or to apply for
a writ of certiorari may be appointed as provided by the written
plan of operation for the managed assigned counsel program. An
attorney appointed by a managed assigned counsel program in a death
penalty case must be on the list of attorneys qualified for
appointment in death penalty cases in the administrative judicial
region in which the managed assigned counsel program operates.
(b-2) If a county is served by a public defender's office
and a managed assigned counsel program, subject to Articles
26.04(f)(1), (2), and (3), the presiding judge of the district
court in which a capital felony is filed shall give priority in
appointing counsel from the public defender's office.
(b-3) In a county not served by a public defender's office
or a managed assigned counsel program, counsel shall be appointed
as provided by this article in each case in which the death penalty
is sought.
(e) The presiding judge of the district court in which a
capital felony case is filed or the managed assigned counsel
program, if authorized by this article, shall appoint two
attorneys[, at least one of whom must be qualified under this
chapter,] to represent an indigent defendant as soon as practicable
after charges are filed, unless the state gives notice in writing
that the state will not seek the death penalty. At least one of the
attorneys must be qualified under this chapter.
SECTION 11. Sections 79.014(a) and (b), Government Code,
are amended to read as follows:
(a) The governor shall appoint with the advice and consent
of the senate seven [five] members of the board as follows:
(1) one member who is a district judge serving as a
presiding judge of an administrative judicial region;
(2) one member who is a judge of a constitutional
county court or who is a county commissioner;
(3) one member who is a practicing criminal defense
attorney;
(4) one member who is a chief public defender in this
state [or the chief public defender's designee, who must be an
attorney employed by the public defender's office]; [and]
(5) one member who is a judge of a constitutional
county court or who is a county commissioner of a county with a
population of 250,000 or more;
(6) one member who is a director of a managed assigned
counsel program in this state; and
(7) one member who is a justice of the peace, municipal
court judge, or appointed magistrate under Article 2.09, Code of
Criminal Procedure, whose regular duties include presiding over
hearings under Article 15.17, Code of Criminal Procedure.
(b) The board members serve staggered terms of two years,
with three [two] members' terms expiring February 1 of each
odd-numbered year and four [three] members' terms expiring February
1 of each even-numbered year.
SECTION 12. Sections 79.016(a) and (c), Government Code,
are amended to read as follows:
(a) A board member who is a chief public defender or a
director of a managed assigned counsel program for [or an attorney
employed by] an entity that applies for funds under Section 79.037
shall disclose that fact before a vote by the board regarding an
award of funds to that entity and may not participate in that vote.
(c) The commission may not award funds under Section 79.037
to an entity served by a chief public defender or a director of a
managed assigned counsel program [other attorney] who fails to make
a disclosure to the board as required by Subsection (a).
SECTION 13. Article 26.044(l), Code of Criminal Procedure,
is amended to read as follows:
(l) A public defender's office may investigate the
financial condition of any person the public defender's office is
appointed to represent. [The public defender's office shall report
the results of the investigation to the appointing judge. The judge
may hold a hearing to determine if the person is indigent and
entitled to representation under this article.]
SECTION 15. Article 26.04, Code of Criminal Procedure, is
amended by adding Subsection (i-1) to read as follows:
(i-1) Notwithstanding Subsection (j)(2) or any other law,
an attorney may be appointed under this article to represent an
indigent person for the sole purpose of providing counsel in
relation to that person's appearance before a magistrate as
required by Article 14.06(a), 15.17(a), or 15.18(a). The attorney
may represent the person in subsequent proceedings of that case,
only if appointed for that purpose under the other provisions of
this article.
SECTION 16. Article 26.044, Code of Criminal Procedure, is
amended by adding Subsection (i-1) to read as follows:
(i-1) Notwithstanding Subsection (i)(1), an attorney
engaged in the private practice of criminal law may be employed by a
public defender's office on a part-time basis for the sole purpose
of providing counsel in relation to an indigent person's appearance
before a magistrate as required by Article 14.06(a), 15.17(a), or
15.18(a).
SECTION 17. Article 26.04(i-1), Code of Criminal Procedure,
as added by this Act, applies only to a person who is arrested on or
after the effective date of this Act. A person arrested before the
effective date of this Act is governed by the law in effect on the
date the person was arrested, and the former law is continued in
effect for that purpose.
SECTION 18. Section 79.037(a), Government Code, is amended
to read as follows:
(a) The commission shall:
(1) provide technical support to:
(A) assist counties in improving their systems
for providing indigent defense services, including indigent
defense support services [systems]; and
(B) promote compliance by counties with the
requirements of state law relating to indigent defense;
(2) to assist a county in providing or improving the
provision of indigent defense services in the county, distribute in
the form of grants any funds appropriated for the purposes of this
section to one or more of the following entities:
(A) the county;
(B) a law school's legal clinic or program that
provides indigent defense services in the county; [and]
(C) a regional public defender that meets the
requirements of Subsection (e) and provides indigent defense
services in the county; [and]
(D) an entity described by Section 791.013 that
provides to a county administrative services under an interlocal
contract entered into for the purpose of providing or improving the
provision of indigent defense services in the county; and
(E) a nonprofit corporation that provides
indigent defense services or indigent defense support services in
the county; and
(3) monitor each entity that receives a grant under
Subdivision (2) and enforce compliance with the conditions of the
grant, including enforcement by:
(A) withdrawing grant funds; or
(B) requiring reimbursement of grant funds by the
entity.
SECTION 19. Section 79.037(b), Government Code, as amended
by Chapters 56 (S.B. 1353) and 476 (S.B. 1057), Acts of the 84th
Legislature, Regular Session, 2015, is reenacted and amended to
read as follows:
(b) The commission shall determine for each county the
entity or entities [within the county] that are eligible to receive
funds for the provision of or improvement in the provision of
indigent defense services under Subsection (a)(2). The
determination must be made based on the entity's:
(1) compliance with standards adopted by the board;
and
(2) demonstrated commitment to compliance with the
requirements of state law relating to indigent defense.
SECTION 20. Section 79.037(c), Government Code, as amended
by Chapters 56 (S.B. 1353) and 476 (S.B. 1057), Acts of the 84th
Legislature, Regular Session, 2015, is reenacted to read as
follows:
(c) The board shall adopt policies to ensure that funds
under Subsection (a)(2) are allocated and distributed in a fair
manner.
SECTION 21. Section 79.037(e), Government Code, as added by
Chapter 56 (S.B. 1353), Acts of the 84th Legislature, Regular
Session, 2015, is repealed.
SECTION 22. This Act takes effect September 1, 2021.