88R2902 AJZ-D
By: Smith H.B. No. 1528
A BILL TO BE ENTITLED
AN ACT
relating to magistration proceedings for criminal defendants and
the retention of related records, to services and representation
provided to indigent criminal defendants and indigent juveniles,
and to the governance and administration of the Texas Indigent
Defense Commission.
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. 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 applicable, the magistrate shall inform the
person that the person may file the affidavit described by Article
17.028(f).
(4) 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.
(5) 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.
(6) 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.
(7) 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.
(8) 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.
(9) If the [person] arrested person 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 [person] arrested person 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.]
(10) The magistrate shall allow the [person] arrested
person reasonable time and opportunity to consult counsel and
shall, after determining whether the person is currently on bail
for a separate criminal offense and whether the bail decision is
subject to Article 17.027, admit the person [arrested] to bail if
allowed by law.
(11) 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 3. Article 26.04, Code of Criminal Procedure, is
amended by amending Subsection (f-1) and adding Subsection (i-1) to
read as follows:
(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, remove counsel from representing a defendant, or remove
counsel from an appointment list in accordance with the guidelines
established for the program. The managed assigned counsel program
must have good cause to remove counsel from representing a
defendant.
(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 4. Article 26.044, Code of Criminal Procedure, is
amended by adding Subsection (i-1) and amending Subsection (l) 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).
(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 5. 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;
(C) for the purpose of appointing or providing an
investigator, expert, or other support services for appointed
counsel and their clients;
(D) for the purpose of approving a payment to an
attorney, investigator, or expert, and for other reasonable and
necessary expenses under Article 26.05 or 26.052; and
(E) for the purpose of overseeing and improving
the quality of representation provided to clients by attorneys
appointed under this article.
(3) "Oversight board" means an oversight board
established under Article 26.048.
SECTION 6. Article 26.047, Code of Criminal Procedure, is
amended by amending Subsections (b), (c), and (f) and adding
Subsection (j) 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.
(c) The commissioners court or commissioners courts shall
require a written plan of operation from an entity operating a
program under this article. The plan of operation must include:
(1) a budget for the program, including salaries;
(2) a description of each personnel position,
including the program's director;
(3) the maximum allowable caseload for each attorney
appointed by the program;
(4) provisions for training personnel of the program
and attorneys appointed under the program;
(5) a description of anticipated overhead costs for
the program;
(6) a policy regarding licensed investigators and
expert witnesses used by attorneys appointed under the program;
(7) a policy to ensure that appointments are
reasonably and impartially allocated among qualified attorneys;
[and]
(8) a policy to ensure that an attorney appointed
under the program does not accept appointment in a case that
involves a conflict of interest for the attorney that has not been
waived by all affected clients; and
(9) a policy describing the circumstances under which:
(A) an attorney may withdraw from a case; and
(B) good cause is established to remove an
attorney from a case.
(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.
(j) A program may receive information necessary to perform
the program's functions under this article, including materials
that are subject to attorney-client privilege, attorney
work-product privilege, or otherwise protected by constitutional
or statutory rights of a client represented by an attorney
appointed under this article. Information and materials described
by this subsection are confidential and not subject to disclosure,
and the program and the attorneys appointed under this article
shall maintain the confidentiality of any information or materials
described by this subsection.
SECTION 7. 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 8. Article 26.05, Code of Criminal Procedure, is
amended by amending Subsections (c) and (d) and adding Subsection
(d-1) to read as follows:
(c) Each fee schedule adopted shall state reasonable fixed
rates or minimum and maximum hourly rates, taking into
consideration reasonable and necessary overhead costs and the
availability of qualified attorneys willing to accept the stated
rates, and shall provide a form for the appointed counsel to itemize
the types of services performed. No payment shall be made under
this article until the form for itemizing the services performed is
submitted to the judge presiding over the proceedings or, if the
county operates a managed assigned counsel program under Article
26.047, to the director of the program or the director's designee,
and until the judge or the director or director's designee, as
applicable, approves the payment. If the judge or the director or
director's designee disapproves the requested amount of payment,
the judge or the director or director's designee shall make written
findings stating the amount of payment that the judge or the
director or director's designee approves and each reason for
approving an amount different from the requested amount. An
attorney whose request for payment is disapproved or is not
otherwise acted on by the 60th day after the date the request for
payment is submitted may appeal the disapproval or failure to act by
filing a motion with the presiding judge of the administrative
judicial region. On the filing of a motion, the presiding judge of
the administrative judicial region shall review the disapproval of
payment or failure to act and determine the appropriate amount of
payment. In reviewing the disapproval or failure to act, the
presiding judge of the administrative judicial region may conduct a
hearing. Not later than the 45th day after the date an application
for payment of a fee is submitted under this article, the
commissioners court shall pay to the appointed counsel the amount
that is approved by the presiding judge of the administrative
judicial region and that is in accordance with the fee schedule for
that county.
(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 confined 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 9. Article 26.051, Code of Criminal Procedure, is
amended by amending Subsections (g), (h), and (i) and adding
Subsection (h-1) to read as follows:
(g) The court shall appoint the public defender's office or
an attorney other than an attorney provided by the board if the
court determines for any of the following reasons that a conflict of
interest could arise from the use of an attorney provided by the
board under Subsection (e) of this article:
(1) the case involves more than one inmate and the
representation of more than one inmate could impair the attorney's
effectiveness;
(2) the case is appealed and the court is satisfied
that conflict of interest would prevent the presentation of a good
faith allegation of ineffective assistance of counsel by a trial
attorney provided by the board; or
(3) any conflict of interest exists under the Texas
Disciplinary Rules of Professional Conduct of the State Bar of
Texas that precludes representation by an attorney appointed by the
board.
(h) When the court appoints the public defender's office or
an attorney other than an attorney provided by the board:
(1) except as otherwise provided by this article, the
inmate's legal defense is subject to Articles 1.051, 26.04, 26.044,
26.05, and 26.052, as applicable; and
(2) the county in which a facility of the correctional
institutions division or a correctional facility authorized by
Section 495.001, Government Code, is located shall pay from its
general fund the total costs of the aggregate amount allowed and
awarded by the court for attorney compensation and expenses under
Article 26.05 or 26.052, as applicable.
(h-1) If the court appoints a public defender's office under
Subsection (g), the public defender's office shall certify to the
court the amount of expenses incurred in the representation. The
court shall submit the certified amount to the comptroller for
reimbursement of the county by the state as described by Subsection
(i).
(i) The state shall reimburse a county for attorney
compensation and expenses awarded under Subsection (h) and for any
expenses of a public defender's office that are certified under
Subsection (h-1). A court seeking reimbursement for a county shall
certify to the comptroller of public accounts the amount of
compensation and expenses for which the county is entitled to be
reimbursed under this article. Not later than the 60th day after
the date the comptroller receives from the court the request for
reimbursement, the comptroller shall issue a warrant to the county
in the certified amount [certified by the court].
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. Section 411.082, Government Code, is amended by
adding Subdivision (4-a) to read as follows:
(4-a) "Managed assigned counsel program" has the
meaning assigned by Article 26.047, Code of Criminal Procedure.
SECTION 14. Section 411.088(a-1), Government Code, is
amended to read as follows:
(a-1) The department may not charge a fee under Subsection
(a) for providing criminal history record information to:
(1) a criminal justice agency;
(2) the office of capital and forensic writs; [or]
(3) a public defender's office; or
(4) a managed assigned counsel program.
SECTION 15. Section 411.1272, Government Code, is amended
to read as follows:
Sec. 411.1272. ACCESS TO CRIMINAL HISTORY RECORD
INFORMATION: OFFICE OF CAPITAL AND FORENSIC WRITS, [AND] PUBLIC
DEFENDER'S OFFICES, AND MANAGED ASSIGNED COUNSEL PROGRAMS. The
office of capital and forensic writs, [and] a public defender's
office, and a managed assigned counsel program are entitled to
obtain from the department criminal history record information
maintained by the department that relates to a criminal case in
which a court has appointed an attorney compensated by the office of
capital and forensic writs, [or by] the public defender's office,
or the managed assigned counsel program, as applicable [has been
appointed].
SECTION 16. Article 11.074, Code of Criminal Procedure, as
amended by this Act, 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 17. Article 15.17, Code of Criminal Procedure, as
amended by this Act, and Article 26.04(i-1), Code of Criminal
Procedure, as added by this Act, apply 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 18. Article 26.05, Code of Criminal Procedure, as
amended by this Act, applies only to expenses incurred on or after
the effective date of this Act.
SECTION 19. This Act takes effect September 1, 2023.