Texas 2023 - 88th Regular

Texas House Bill HB1528 Compare Versions

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1	1	88R19969 AJZ-D
2	2	By: Smith H.B. No. 1528
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to magistration proceedings for criminal defendants and
8	8	the retention of related records, to services and representation
9	9	provided to indigent criminal defendants and indigent juveniles,
10	10	and to the governance and administration of the Texas Indigent
11	11	Defense Commission.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. Article 11.074, Code of Criminal Procedure, is
14	14	amended by amending Subsection (b) and adding Subsection (b-1) to
15	15	read as follows:
16	16	(b) If at any time the state represents to the convicting
17	17	court that an eligible indigent defendant under Article 1.051 has
18	18	under a writ of habeas corpus a potentially meritorious claim for
19	19	relief from a judgment described by Subsection (a) [who was
20	20	sentenced or had a sentence suspended is not guilty, is guilty of
21	21	only a lesser offense, or was convicted or sentenced under a law
22	22	that has been found unconstitutional by the court of criminal
23	23	appeals or the United States Supreme Court], the court shall
24	24	appoint an attorney to investigate the claim and represent the
25	25	indigent defendant for purposes of filing an application for a writ
26	26	of habeas corpus, if an application has not been filed, or to
27	27	otherwise represent the indigent defendant in a proceeding based on
28	28	the application for the writ.
29	29	(b-1) For purposes of Subsection (b), a potentially
30	30	meritorious claim is any claim the court determines is likely to
31	31	provide relief, including a claim that the defendant:
32	32	(1) is or may be actually innocent of the offense;
33	33	(2) is or may be guilty of only a lesser offense;
34	34	(3) was or may have been convicted or sentenced under a
35	35	law that has been found unconstitutional by the court of criminal
36	36	appeals or the United States Supreme Court; or
37	37	(4) was or may have been convicted or sentenced in
38	38	violation of the constitution of this state or the United States.
39	39	SECTION 2. Articles 15.17(a) and (f), Code of Criminal
40	40	Procedure, are amended to read as follows:
41	41	(a) (1) In each case enumerated in this Code, the person
42	42	making the arrest or the person having custody of the person
43	43	arrested shall without unnecessary delay, but not later than 48
44	44	hours after the person is arrested, take the person arrested or have
45	45	the person [him] taken before some magistrate of the county where
46	46	the person [accused] was arrested or, to provide more expeditiously
47	47	to the person arrested the warnings described by this article,
48	48	before a magistrate in any other county of this state. The arrested
49	49	person may be taken before the magistrate in person or the image and
50	50	sound of the arrested person may be presented to the magistrate by
51	51	means of a videoconference. For purposes of this subsection,
52	52	"videoconference" means a two-way electronic communication of
53	53	image and sound between the arrested person and the magistrate and
54	54	includes secure Internet videoconferencing.
55	55	(2) The magistrate shall inform in clear language the
56	56	person arrested, either in person or through a videoconference, of:
57	57	(A) the accusation against the person [him] and
58	58	of any affidavit filed with the accusation;
59	59	(B) the person's [therewith, of his] right to
60	60	retain counsel;
61	61	(C) the person's [, of his] right to remain
62	62	silent and to not make a statement;
63	63	(D) the fact that any statement the person makes
64	64	may be used against the person;
65	65	(E) the person's [, of his] right to have an
66	66	attorney present during any interview with peace officers or
67	67	attorneys representing the state;
68	68	(F) the person's [, of his] right to terminate
69	69	the interview at any time;
70	70	(G) the person's [, and of his] right to have an
71	71	examining trial;
72	72	(H) [. The magistrate shall also inform the
73	73	person arrested of] the person's right to request the appointment
74	74	of counsel if the person cannot afford counsel; and
75	75	(I) [. The magistrate shall inform the person
76	76	arrested of] the procedures for requesting appointment of counsel.
77	77	(3) If applicable, the magistrate shall inform the
78	78	person that the person may file the affidavit described by Article
79	79	17.028(f).
80	80	(4) If the person does not speak and understand the
81	81	English language or is deaf, the magistrate shall inform the person
82	82	in a manner consistent with Articles 38.30 and 38.31, as
83	83	appropriate.
84	84	(5) If the proceeding is conducted through a
85	85	videoconference, the magistrate shall ensure that the arrested
86	86	person is able to connect to and understand the image and sound of
87	87	the videoconference.
88	88	(6) If the magistrate has reasonable cause to believe
89	89	that the arrested person has a mental illness or is a person with an
90	90	intellectual disability, the magistrate shall follow the
91	91	procedures under Article 16.22.
92	92	(7) If the magistrate is unable to ensure that the
93	93	arrested person is able to understand and participate in the
94	94	proceeding, the magistrate shall:
95	95	(A) if the magistrate has appointing authority,
96	96	appoint counsel for the person; or
97	97	(B) if the magistrate does not have appointing
98	98	authority, notify the appointing authority of the person's
99	99	inability to understand and participate in the proceeding.
100	100	(8) The magistrate shall ensure that reasonable
101	101	assistance in completing the necessary forms for requesting
102	102	appointment of counsel is provided to the arrested person at the
103	103	same time the person is informed of the person's rights under this
104	104	subsection.
105	105	(9) If the [person] arrested person is indigent and
106	106	requests appointment of counsel and if the magistrate is authorized
107	107	under Article 26.04 to appoint counsel for indigent defendants in
108	108	the county, the magistrate shall appoint counsel in accordance with
109	109	Article 1.051. If the magistrate is not authorized to appoint
110	110	counsel, the magistrate shall without unnecessary delay, but not
111	111	later than 24 hours after the [person] arrested person requests
112	112	appointment of counsel, transmit, or cause to be transmitted to the
113	113	court or to the courts' designee authorized under Article 26.04 to
114	114	appoint counsel in the county, the necessary forms for requesting
115	115	and ruling on the appointment of counsel. [The magistrate shall
116	116	also inform the person arrested that he is not required to make a
117	117	statement and that any statement made by him may be used against
118	118	him.]
119	119	(10) The magistrate shall allow the [person] arrested
120	120	person reasonable time and opportunity to consult counsel and
121	121	shall, after determining whether the person is currently on bail
122	122	for a separate criminal offense and whether the bail decision is
123	123	subject to Article 17.027, admit the person [arrested] to bail if
124	124	allowed by law.
125	125	(11) A record of the communication between the
126	126	arrested person and the magistrate shall be made. [The record shall
127	127	be preserved until the earlier of the following dates:
128	128	[(1) the date on which the pretrial hearing ends; or
129	129	[(2) the 91st day after the date on which the record is
130	130	made if the person is charged with a misdemeanor or the 120th day
131	131	after the date on which the record is made if the person is charged
132	132	with a felony. For purposes of this subsection, "videoconference"
133	133	means a two-way electronic communication of image and sound between
134	134	the arrested person and the magistrate and includes secure Internet
135	135	videoconferencing.]
136	136	(f) A record required under Subsection (a) or (e) may
137	137	consist of written forms, electronic recordings, or other
138	138	documentation as authorized by procedures adopted in the county
139	139	under Article 26.04(a). The record must be retained for at least
140	140	two years after final judgment is entered in the case or the
141	141	proceedings are otherwise terminated. The counsel for the defendant
142	142	may obtain a copy of the record on payment of a reasonable amount to
143	143	cover the costs of reproduction or, if the defendant is indigent,
144	144	the court shall provide a copy to the defendant without charging a
145	145	cost for the copy.
146	146	SECTION 3. Article 26.04(f-1), Code of Criminal Procedure,
147	147	is amended to read as follows:
148	148	(f-1) In a county in which a managed assigned counsel
149	149	program is operated in accordance with Article 26.047, the managed
150	150	assigned counsel program may appoint counsel to represent the
151	151	defendant, remove counsel from representing a defendant, or remove
152	152	counsel from an appointment list in accordance with the guidelines
153	153	established for the program. The managed assigned counsel program
154	154	must have good cause to remove counsel from representing a
155	155	defendant.
156	156	SECTION 4. Article 26.044, Code of Criminal Procedure, is
157	157	amended by adding Subsection (i-1) and amending Subsection (l) to
158	158	read as follows:
159	159	(i-1) Notwithstanding Subsection (i)(1), an attorney
160	160	engaged in the private practice of criminal law may be employed by a
161	161	public defender's office on a part-time basis for the sole purpose
162	162	of providing counsel in relation to an indigent person's appearance
163	163	before a magistrate as required by Article 14.06(a), 15.17(a), or
164	164	15.18(a).
165	165	(l) A public defender's office may investigate the
166	166	financial condition of any person the public defender's office is
167	167	appointed to represent. [The public defender's office shall report
168	168	the results of the investigation to the appointing judge. The judge
169	169	may hold a hearing to determine if the person is indigent and
170	170	entitled to representation under this article.]
171	171	SECTION 5. Article 26.047(a)(2), Code of Criminal
172	172	Procedure, is amended to read as follows:
173	173	(2) "Managed assigned counsel program" or "program"
174	174	means a program operated with public funds:
175	175	(A) by a governmental entity, nonprofit
176	176	corporation, or bar association under a written agreement with a
177	177	governmental entity, other than an individual judge or court; [and]
178	178	(B) for the purpose of appointing counsel under
179	179	Article 26.04 or 26.052 of this code or Section 51.10, Family Code;
180	180	(C) for the purpose of appointing or providing an
181	181	investigator, expert, or other support services for appointed
182	182	counsel and their clients;
183	183	(D) for the purpose of approving a payment to an
184	184	attorney, investigator, or expert, and for other reasonable and
185	185	necessary expenses under Article 26.05 or 26.052; and
186	186	(E) for the purpose of overseeing and improving
187	187	the quality of representation provided to clients by attorneys
188	188	appointed under this article.
189	189	SECTION 6. Article 26.047, Code of Criminal Procedure, is
190	190	amended by amending Subsections (b), (c), and (f) and adding
191	191	Subsection (j) to read as follows:
192	192	(b) The commissioners court of any county, on written
193	193	approval of a judge of the juvenile court of a county or a county
194	194	court, statutory county court, or district court trying criminal
195	195	cases in the county, may appoint a governmental entity, nonprofit
196	196	corporation, or bar association to operate a managed assigned
197	197	counsel program. The commissioners courts of two or more counties
198	198	may enter into a written agreement to jointly appoint and fund a
199	199	governmental entity, nonprofit corporation, or bar association to
200	200	operate a managed assigned counsel program. In appointing an
201	201	entity to operate a managed assigned counsel program under this
202	202	subsection, the commissioners court shall specify or the
203	203	commissioners courts shall jointly specify:
204	204	(1) the types of cases in which the program may appoint
205	205	counsel under Article 26.04 or 26.052 of this code or Section 51.10,
206	206	Family Code, and the courts in which the counsel appointed by the
207	207	program may be required to appear; and
208	208	(2) the term of any agreement establishing a program
209	209	and how the agreement may be terminated or renewed.
210	210	(c) The commissioners court or commissioners courts shall
211	211	require a written plan of operation from an entity operating a
212	212	program under this article. The plan of operation must include:
213	213	(1) a budget for the program, including salaries;
214	214	(2) a description of each personnel position,
215	215	including the program's director;
216	216	(3) the maximum allowable caseload for each attorney
217	217	appointed by the program;
218	218	(4) provisions for training personnel of the program
219	219	and attorneys appointed under the program;
220	220	(5) a description of anticipated overhead costs for
221	221	the program;
222	222	(6) a policy regarding licensed investigators and
223	223	expert witnesses used by attorneys appointed under the program;
224	224	(7) a policy to ensure that appointments are
225	225	reasonably and impartially allocated among qualified attorneys;
226	226	[and]
227	227	(8) a policy to ensure that an attorney appointed
228	228	under the program does not accept appointment in a case that
229	229	involves a conflict of interest for the attorney that has not been
230	230	waived by all affected clients; and
231	231	(9) a policy describing the circumstances under which:
232	232	(A) an attorney may withdraw from a case; and
233	233	(B) good cause is established to remove an
234	234	attorney from a case.
235	235	(f) The program's public appointment list from which an
236	236	attorney is appointed must contain the names of qualified
237	237	attorneys, each of whom:
238	238	(1) applies to be included on the list;
239	239	(2) meets any applicable requirements specified by the
240	240	procedures [procedure] for appointing counsel adopted under
241	241	Article 26.04(a) or provided under Article 26.052 and any other
242	242	requirements specified by the Texas Indigent Defense Commission;
243	243	and
244	244	(3) is approved by the program director or review
245	245	committee, as applicable.
246	246	(j) A program may receive information necessary to perform
247	247	the program's functions under this article, including materials
248	248	that are subject to attorney-client privilege, subject to attorney
249	249	work-product privilege, or otherwise protected by constitutional
250	250	or statutory rights of a client represented by an attorney
251	251	appointed under this article. Information and materials described
252	252	by this subsection and information and materials related to a
253	253	purpose described by Subsection (a)(2)(C) are confidential and not
254	254	subject to disclosure, and the program, the attorneys appointed
255	255	under this article, and other individuals, as applicable, shall
256	256	maintain the confidentiality of any information or materials
257	257	described by this subsection.
258	258	SECTION 7. Article 26.05, Code of Criminal Procedure, is
259	259	amended by amending Subsections (c) and (d) and adding Subsection
260	260	(d-1) to read as follows:
261	261	(c) Each fee schedule adopted shall state reasonable fixed
262	262	rates or minimum and maximum hourly rates, taking into
263	263	consideration reasonable and necessary overhead costs and the
264	264	availability of qualified attorneys willing to accept the stated
265	265	rates, and shall provide a form for the appointed counsel to itemize
266	266	the types of services performed. No payment shall be made under
267	267	this article until the form for itemizing the services performed is
268	268	submitted to the judge presiding over the proceedings or, if the
269	269	county operates a managed assigned counsel program under Article
270	270	26.047, to the director of the program or the director's designee,
271	271	and until the judge or the director or director's designee, as
272	272	applicable, approves the payment. If the judge or the director or
273	273	director's designee disapproves the requested amount of payment,
274	274	the judge or the director or director's designee shall make written
275	275	findings stating the amount of payment that the judge or the
276	276	director or director's designee approves and each reason for
277	277	approving an amount different from the requested amount. An
278	278	attorney whose request for payment is disapproved or is not
279	279	otherwise acted on by the 60th day after the date the request for
280	280	payment is submitted may appeal the disapproval or failure to act by
281	281	filing a motion with the presiding judge of the administrative
282	282	judicial region. On the filing of a motion, the presiding judge of
283	283	the administrative judicial region shall review the disapproval of
284	284	payment or failure to act and determine the appropriate amount of
285	285	payment. In reviewing the disapproval or failure to act, the
286	286	presiding judge of the administrative judicial region may conduct a
287	287	hearing. Not later than the 45th day after the date an application
288	288	for payment of a fee is submitted under this article, the
289	289	commissioners court shall pay to the appointed counsel the amount
290	290	that is approved by the presiding judge of the administrative
291	291	judicial region and that is in accordance with the fee schedule for
292	292	that county.
293	293	(d) A counsel in a noncapital case, other than an attorney
294	294	with a public defender's office, appointed to represent a defendant
295	295	under this code shall be reimbursed for reasonable and necessary
296	296	expenses, including expenses for:
297	297	(1) investigation;
298	298	(2) [and for] mental health and other experts; and
299	299	(3) if the defendant is confined in a correctional
300	300	facility located more than 50 miles from the court in which the
301	301	defendant's proceeding is pending:
302	302	(A) travel to the defendant's location for a
303	303	confidential communication and food and lodging related to that
304	304	travel; and
305	305	(B) any costs associated with remotely entering
306	306	into a confidential communication with the defendant.
307	307	(d-1) Expenses under Subsection (d) incurred with prior
308	308	court approval shall be reimbursed in the same manner provided for
309	309	capital cases by Articles 26.052(f) and (g), and expenses under
310	310	Subsection (d) incurred without prior court approval shall be
311	311	reimbursed in the manner provided for capital cases by Article
312	312	26.052(h).
313	313	SECTION 8. Article 26.051, Code of Criminal Procedure, is
314	314	amended by amending Subsections (g), (h), and (i) and adding
315	315	Subsection (h-1) to read as follows:
316	316	(g) The court shall appoint the public defender's office or
317	317	an attorney other than an attorney provided by the board if the
318	318	court determines for any of the following reasons that a conflict of
319	319	interest could arise from the use of an attorney provided by the
320	320	board under Subsection (e) [of this article]:
321	321	(1) the case involves more than one inmate and the
322	322	representation of more than one inmate could impair the attorney's
323	323	effectiveness;
324	324	(2) the case is appealed and the court is satisfied
325	325	that conflict of interest would prevent the presentation of a good
326	326	faith allegation of ineffective assistance of counsel by a trial
327	327	attorney provided by the board; or
328	328	(3) any conflict of interest exists under the Texas
329	329	Disciplinary Rules of Professional Conduct of the State Bar of
330	330	Texas that precludes representation by an attorney appointed by the
331	331	board.
332	332	(h) When the court appoints the public defender's office or
333	333	an attorney other than an attorney provided by the board:
334	334	(1) except as otherwise provided by this article, the
335	335	inmate's legal defense is subject to Articles 1.051, 26.04, 26.044,
336	336	26.05, and 26.052, as applicable; and
337	337	(2) the county in which a facility of the correctional
338	338	institutions division or a correctional facility authorized by
339	339	Section 495.001, Government Code, is located shall pay from its
340	340	general fund the total costs of the aggregate amount allowed and
341	341	awarded by the court for attorney compensation and expenses under
342	342	Article 26.05 or 26.052, as applicable.
343	343	(h-1) If the court appoints a public defender's office under
344	344	Subsection (g), the public defender's office shall certify to the
345	345	court the amount of expenses incurred in the representation. The
346	346	court shall submit the certified amount to the comptroller for
347	347	reimbursement of the county by the state as described by Subsection
348	348	(i).
349	349	(i) The state shall reimburse a county for attorney
350	350	compensation and expenses awarded under Subsection (h) and for any
351	351	expenses of a public defender's office that are certified under
352	352	Subsection (h-1). A court seeking reimbursement for a county shall
353	353	certify to the comptroller of public accounts the amount of
354	354	compensation and expenses for which the county is entitled to be
355	355	reimbursed under this article. Not later than the 60th day after
356	356	the date the comptroller receives from the court the request for
357	357	reimbursement, the comptroller shall issue a warrant to the county
358	358	in the certified amount [certified by the court].
359	359	SECTION 9. Article 26.052, Code of Criminal Procedure, is
360	360	amended by amending Subsections (b) and (e) and adding Subsections
361	361	(b-1), (b-2), and (b-3) to read as follows:
362	362	(b) If a county is served by a public defender's office,
363	363	trial counsel and counsel for direct appeal or to apply for a writ
364	364	of certiorari may be appointed as provided by the guidelines
365	365	established by the public defender's office. [In all other cases in
366	366	which the death penalty is sought, counsel shall be appointed as
367	367	provided by this article.]
368	368	(b-1) If a county is served by a managed assigned counsel
369	369	program, trial counsel and counsel for direct appeal or to apply for
370	370	a writ of certiorari may be appointed as provided by the written
371	371	plan of operation for the managed assigned counsel program. An
372	372	attorney appointed by a managed assigned counsel program in a death
373	373	penalty case must be on the list of attorneys qualified for
374	374	appointment in death penalty cases in the administrative judicial
375	375	region in which the managed assigned counsel program operates.
376	376	(b-2) If a county is served by a public defender's office
377	377	and a managed assigned counsel program, subject to Articles
378	378	26.04(f)(1), (2), and (3), the presiding judge of the district
379	379	court in which a capital felony is filed shall give priority in
380	380	appointing counsel from the public defender's office.
381	381	(b-3) In a county not served by a public defender's office
382	382	or a managed assigned counsel program, counsel shall be appointed
383	383	as provided by this article in each case in which the death penalty
384	384	is sought.
385	385	(e) The presiding judge of the district court in which a
386	386	capital felony case is filed or the managed assigned counsel
387	387	program, if authorized by this article, shall appoint two
388	388	attorneys[, at least one of whom must be qualified under this
389	389	chapter,] to represent an indigent defendant as soon as practicable
390	390	after charges are filed, unless the state gives notice in writing
391	391	that the state will not seek the death penalty. At least one of the
392	392	attorneys must be qualified under this chapter.
393	393	SECTION 10. Sections 79.014(a) and (b), Government Code,
394	394	are amended to read as follows:
395	395	(a) The governor shall appoint with the advice and consent
396	396	of the senate seven [five] members of the board as follows:
397	397	(1) one member who is a district judge serving as a
398	398	presiding judge of an administrative judicial region;
399	399	(2) one member who is a judge of a constitutional
400	400	county court or who is a county commissioner;
401	401	(3) one member who is a practicing criminal defense
402	402	attorney;
403	403	(4) one member who is a chief public defender in this
404	404	state [or the chief public defender's designee, who must be an
405	405	attorney employed by the public defender's office]; [and]
406	406	(5) one member who is a judge of a constitutional
407	407	county court or who is a county commissioner of a county with a
408	408	population of 250,000 or more;
409	409	(6) one member who is a director of a managed assigned
410	410	counsel program in this state; and
411	411	(7) one member who is a justice of the peace, municipal
412	412	court judge, or appointed magistrate under Article 2.09, Code of
413	413	Criminal Procedure, whose regular duties include presiding over
414	414	hearings under Article 15.17, Code of Criminal Procedure.
415	415	(b) The board members serve staggered terms of two years,
416	416	with three [two] members' terms expiring February 1 of each
417	417	odd-numbered year and four [three] members' terms expiring February
418	418	1 of each even-numbered year.
419	419	SECTION 11. Sections 79.016(a) and (c), Government Code,
420	420	are amended to read as follows:
421	421	(a) A board member who is a chief public defender or a
422	422	director of a managed assigned counsel program for [or an attorney
423	423	employed by] an entity that applies for funds under Section 79.037
424	424	shall disclose that fact before a vote by the board regarding an
425	425	award of funds to that entity and may not participate in that vote.
426	426	(c) The commission may not award funds under Section 79.037
427	427	to an entity served by a chief public defender or a director of a
428	428	managed assigned counsel program [other attorney] who fails to make
429	429	a disclosure to the board as required by Subsection (a).
430	430	SECTION 12. Section 411.082, Government Code, is amended by
431	431	adding Subdivision (4-a) to read as follows:
432	432	(4-a) "Managed assigned counsel program" has the
433	433	meaning assigned by Article 26.047, Code of Criminal Procedure.
434	434	SECTION 13. Section 411.088(a-1), Government Code, is
435	435	amended to read as follows:
436	436	(a-1) The department may not charge a fee under Subsection
437	437	(a) for providing criminal history record information to:
438	438	(1) a criminal justice agency;
439	439	(2) the office of capital and forensic writs; [or]
440	440	(3) a public defender's office; or
441	441	(4) a managed assigned counsel program.
442	442	SECTION 14. Section 411.1272, Government Code, is amended
443	443	to read as follows:
444	444	Sec. 411.1272. ACCESS TO CRIMINAL HISTORY RECORD
445	445	INFORMATION: OFFICE OF CAPITAL AND FORENSIC WRITS, [AND] PUBLIC
446	446	DEFENDER'S OFFICES, AND MANAGED ASSIGNED COUNSEL PROGRAMS. The
447	447	office of capital and forensic writs, [and] a public defender's
448	448	office, and a managed assigned counsel program are entitled to
449	449	obtain from the department criminal history record information
450	450	maintained by the department that relates to a criminal case in
451	451	which an attorney compensated by the office of capital and forensic
452	452	writs or by the public defender's office has been appointed by the
453	453	court or in which an attorney has been appointed by the managed
454	454	assigned counsel program, as applicable [has been appointed].
455	455	SECTION 15. Article 11.074, Code of Criminal Procedure, as
456	456	amended by this Act, applies regardless of whether the offense for
457	457	which the applicant is in custody was committed before, on, or after
458	458	the effective date of this Act.
459	459	SECTION 16. Article 15.17, Code of Criminal Procedure, as
460	460	amended by this Act, applies only to a person who is arrested on or
461	461	after the effective date of this Act. A person arrested before the
462	462	effective date of this Act is governed by the law in effect
463	463	immediately before the effective date of this Act, and the former
464	464	law is continued in effect for that purpose.
465	465	SECTION 17. Article 26.05, Code of Criminal Procedure, as
466	466	amended by this Act, applies only to expenses incurred on or after
467	467	the effective date of this Act.
468	468	SECTION 18. This Act takes effect September 1, 2023.