Texas 2023 - 88th Regular

Texas House Bill HB937 Compare Versions

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1	1	88R2671 AJZ-D
2	2	By: Dutton H.B. No. 937
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the establishment of the inmate legal services office
8	8	and to the appointment and compensation of certain legal counsel
9	9	for certain indigent inmates and other persons in secure
10	10	correctional facilities.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Subtitle F, Title 2, Government Code, is amended
13	13	by adding Chapter 78A to read as follows:
14	14	CHAPTER 78A. INMATE LEGAL SERVICES
15	15	SUBCHAPTER A. GENERAL PROVISIONS
16	16	Sec. 78A.001. DEFINITIONS. In this chapter:
17	17	(1) "Board" means the inmate legal services board of
18	18	directors established under Subchapter B.
19	19	(2) "Office" means the inmate legal services office
20	20	established under Subchapter C.
21	21	SUBCHAPTER B. INMATE LEGAL SERVICES BOARD
22	22	Sec. 78A.051. ESTABLISHMENT OF BOARD; DUTIES. (a) The
23	23	inmate legal services board of directors is established. The
24	24	provision of inmate legal services under this chapter is governed
25	25	by the board.
26	26	(b) The board shall hire a director for the inmate legal
27	27	services office as provided by Section 78A.053 when a vacancy
28	28	exists for the position of director.
29	29	Sec. 78A.052. APPOINTMENT AND COMPOSITION OF BOARD. (a)
30	30	The board is composed of the following nine members to be appointed
31	31	by the president of the State Bar of Texas, with ratification by the
32	32	executive committee of the State Bar of Texas:
33	33	(1) five attorneys who are employed as executive
34	34	directors or chief public defenders of a public defender's office,
35	35	as defined by Article 26.044(a), Code of Criminal Procedure; and
36	36	(2) four criminal defense attorneys each of whom:
37	37	(A) practices in a county in which there is a
38	38	confinement facility operated by or under contract with the Texas
39	39	Department of Criminal Justice; and
40	40	(B) has experience representing indigent
41	41	defendants in this state.
42	42	(b) Each member of the board must be a member of the State
43	43	Bar of Texas and may not be employed as or otherwise performing the
44	44	functions of a prosecutor or a law enforcement official.
45	45	(c) The board shall elect one member of the board to serve as
46	46	the presiding officer of the board.
47	47	(d) Board members serve two-year terms expiring February 1
48	48	of each even-numbered year.
49	49	(e) The board meets at least annually at the call of the
50	50	presiding officer of the board.
51	51	Sec. 78A.053. APPOINTMENT OF DIRECTOR OF INMATE LEGAL
52	52	SERVICES OFFICE. (a) The board, by a majority vote, shall hire a
53	53	director of the inmate legal services office when a vacancy exists
54	54	for the position of director.
55	55	(b) A person hired by the board under Subsection (a):
56	56	(1) must be committed to providing quality
57	57	representation to indigent clients consistent with the principles
58	58	of a public defense delivery system as established by the American
59	59	Bar Association;
60	60	(2) may not have been found by a state or federal court
61	61	to have rendered ineffective assistance of counsel during the trial
62	62	or appeal of a criminal defense case;
63	63	(3) must be a member of the State Bar of Texas;
64	64	(4) must have practiced law for at least three years;
65	65	and
66	66	(5) must have substantial experience in the practice
67	67	of criminal law.
68	68	(c) The board shall determine the director's compensation,
69	69	which must maintain parity with the compensation of the chief of the
70	70	special prosecution unit under Subchapter E, Chapter 41.
71	71	SUBCHAPTER C. INMATE LEGAL SERVICES OFFICE
72	72	Sec. 78A.101. ESTABLISHMENT. The inmate legal services
73	73	office is established and operates under the direction and
74	74	supervision of the director of the office.
75	75	Sec. 78A.102. DIRECTOR; STAFF. (a) The board shall hire a
76	76	director to direct and supervise the operation of the office as
77	77	provided by Section 78A.053. The director serves a four-year term
78	78	and continues to serve until a successor has been hired and
79	79	qualified. The board may remove the director only for good cause.
80	80	The director may be retained or rehired for a second or subsequent
81	81	term.
82	82	(b) The director shall employ attorneys and employ or retain
83	83	licensed investigators and other personnel necessary to perform the
84	84	duties and accomplish the purposes of the office.
85	85	(c) The director and any attorney employed by the office may
86	86	not:
87	87	(1) engage in the private practice of criminal law; or
88	88	(2) accept anything of value not authorized by law for
89	89	services rendered under this subchapter.
90	90	(d) The board shall determine the compensation of office
91	91	employees, which must maintain parity with the compensation of
92	92	employees of the special prosecution unit under Subchapter E,
93	93	Chapter 41.
94	94	Sec. 78A.103. POWERS AND DUTIES. (a) The office may not
95	95	accept an appointment under Article 26.051, Code of Criminal
96	96	Procedure, or Section 841.005, Health and Safety Code, if:
97	97	(1) a conflict of interest exists that has not been
98	98	waived by the client;
99	99	(2) the office has insufficient resources to provide
100	100	adequate representation for the client;
101	101	(3) the office is incapable of providing
102	102	representation for the client in accordance with the rules of
103	103	professional conduct;
104	104	(4) the acceptance of the appointment would require
105	105	attorneys at the office to have a caseload that exceeds the maximum
106	106	allowable caseload established by the office; or
107	107	(5) other good cause is shown for not accepting the
108	108	appointment.
109	109	(b) On refusing to accept an appointment, the director shall
110	110	file with the court a written statement that identifies the reason
111	111	for the refusal. The court shall determine whether the director has
112	112	demonstrated adequate good cause for refusing the appointment and
113	113	shall include the statement with the papers in the case.
114	114	(c) A director may not be terminated, removed, or sanctioned
115	115	for refusing in good faith to accept an appointment under Article
116	116	26.051, Code of Criminal Procedure, or Section 841.005, Health and
117	117	Safety Code.
118	118	Sec. 78A.104. COMPENSATION OF OTHER APPOINTED ATTORNEYS.
119	119	If it is necessary that an attorney other than an attorney employed
120	120	by the office be appointed, that attorney shall be compensated as
121	121	provided by Article 26.051(h), Code of Criminal Procedure.
122	122	Sec. 78A.105. ACCESS TO CERTAIN FACILITIES, WITNESSES, AND
123	123	DOCUMENTS FOR INVESTIGATION. Attorneys and investigators employed
124	124	or retained by the office shall be allowed access to a facility
125	125	operated by or under contract with the Texas Department of Criminal
126	126	Justice as necessary to:
127	127	(1) confer with a client of the office or witness to an
128	128	offense alleged to have been committed by a client of the office; or
129	129	(2) comply with a court's order.
130	130	SECTION 2. Articles 26.051(a), (d), (e), (g), and (h), Code
131	131	of Criminal Procedure, are amended to read as follows:
132	132	(a) In this article:
133	133	(1) ["Board" means the Texas Board of Criminal
134	134	Justice.
135	135	[(2)] "Correctional institutions division" means the
136	136	correctional institutions division of the Texas Department of
137	137	Criminal Justice.
138	138	(2) "Office" means the inmate legal services office
139	139	established under Subchapter C, Chapter 78A, Government Code.
140	140	(d) A court shall:
141	141	(1) notify the office [board] if the court [it]
142	142	determines that a defendant before the court is indigent and is an
143	143	inmate charged with an offense committed while in the custody of the
144	144	correctional institutions division or a correctional facility
145	145	authorized by Section 495.001, Government Code; and
146	146	(2) request that the office [board] provide legal
147	147	representation for the inmate.
148	148	(e) The office [board] shall provide legal representation
149	149	for inmates described by Subsection (d) [of this section]. [The
150	150	board may employ attorneys, support staff, and any other personnel
151	151	required to provide legal representation for those inmates. All
152	152	personnel employed under this article are directly responsible to
153	153	the board in the performance of their duties.] The office [board]
154	154	shall pay all fees and costs associated with providing legal
155	155	representation for those inmates.
156	156	(g) The court shall appoint an attorney other than an
157	157	attorney provided by the office [board] if the court determines for
158	158	any of the following reasons that a conflict of interest could arise
159	159	from the use of an attorney provided by the office [board] under
160	160	Subsection (e) [of this article]:
161	161	(1) the case involves more than one inmate and the
162	162	representation of more than one inmate could impair the attorney's
163	163	effectiveness;
164	164	(2) the case is appealed and the court is satisfied
165	165	that conflict of interest would prevent the presentation of a good
166	166	faith allegation of ineffective assistance of counsel by a trial
167	167	attorney provided by the office [board]; [or]
168	168	(3) any conflict of interest exists under the Texas
169	169	Disciplinary Rules of Professional Conduct of the State Bar of
170	170	Texas that precludes representation by an attorney appointed by the
171	171	office; or
172	172	(4) the office refuses to accept the appointment as
173	173	provided by Section 78A.103(a), Government Code [board].
174	174	(h) When the court appoints an attorney other than an
175	175	attorney provided by the office [board]:
176	176	(1) except as otherwise provided by this article, the
177	177	inmate's legal defense is subject to Articles 1.051, 26.04, 26.05,
178	178	and 26.052, as applicable; and
179	179	(2) the county in which a facility of the correctional
180	180	institutions division or a correctional facility authorized by
181	181	Section 495.001, Government Code, is located shall pay from its
182	182	general fund the total costs of the aggregate amount allowed and
183	183	awarded by the court for attorney compensation and expenses under
184	184	Article 26.05 or 26.052, as applicable.
185	185	SECTION 3. Section 841.005, Health and Safety Code, is
186	186	amended to read as follows:
187	187	Sec. 841.005. INMATE LEGAL SERVICES OFFICE [OF STATE
188	188	COUNSEL FOR OFFENDERS]. (a) Except as provided by Subsection (b),
189	189	the inmate legal services office established under Subchapter C,
190	190	Chapter 78A, Government Code, [Office of State Counsel for
191	191	Offenders] shall represent an indigent person subject to a civil
192	192	commitment proceeding under this chapter.
193	193	(b) If for any reason the inmate legal services office
194	194	[Office of State Counsel for Offenders] is unable to represent an
195	195	indigent person described by Subsection (a) at a civil commitment
196	196	proceeding under this chapter, the court shall appoint other
197	197	counsel to represent the indigent person.
198	198	SECTION 4. (a) Not later than December 1, 2023, the
199	199	president of the State Bar of Texas shall appoint and the executive
200	200	committee of the State Bar of Texas shall ratify the members of the
201	201	inmate legal services board of directors as required by Section
202	202	78A.052, Government Code, as added by this Act. Notwithstanding
203	203	the terms of board member service provided by that section, the term
204	204	of an initial member of the board of directors expires February 1,
205	205	2026.
206	206	(b) Not later than January 1, 2024, the inmate legal
207	207	services board of directors shall hire a director for the inmate
208	208	legal services office as required by Section 78A.053, Government
209	209	Code, as added by this Act.
210	210	SECTION 5. Article 26.051, Code of Criminal Procedure, and
211	211	Section 841.005, Health and Safety Code, as amended by this Act,
212	212	apply only to legal representation appointed under those provisions
213	213	on or after February 1, 2024. Legal representation appointed
214	214	before February 1, 2024, is governed by the law in effect
215	215	immediately before the effective date of this Act, and the former
216	216	law is continued in effect for that purpose.
217	217	SECTION 6. (a) On the effective date of this Act, an
218	218	employee of the Office of State Counsel for Offenders, other than
219	219	the director of the office, becomes an employee of the inmate legal
220	220	services office established under Subchapter C, Chapter 78A,
221	221	Government Code, as added by this Act.
222	222	(b) On or after September 1, 2024, the director of the
223	223	inmate legal services office shall evaluate the performance of each
224	224	employee described by Subsection (a) of this section and determine
225	225	whether there is good cause to remove an employee.
226	226	SECTION 7. This Act takes effect September 1, 2023.