Bill Text: TX SB170 | 2011-2012 | 82nd Legislature | Comm Sub

---

Bill Title: Relating to the reorganization of powers and duties among agencies in this state that provide representation to indigent defendants in criminal cases and to the reorganization of funding sources for indigent defense.

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Introduced - Dead) 2011-04-05 - Not again placed on intent calendar [SB170 Detail]

Download: Texas-2011-SB170-Comm_Sub.html

---

By: Ellis, Hinojosa S.B. No. 170
(In the Senate - Filed November 8, 2010; January 31, 2011,
read first time and referred to Committee on Criminal Justice;
March 14, 2011, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 7, Nays 0; March 14, 2011,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 170 By: Ellis

A BILL TO BE ENTITLED
AN ACT
relating to the reorganization of powers and duties among agencies
in this state that provide representation to indigent defendants in
criminal cases and to the reorganization of funding sources for
indigent defense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle F, Title 2, Government Code, is amended
by adding Chapter 79 to read as follows:
CHAPTER 79. TEXAS INDIGENT DEFENSE COMMISSION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 79.001. DEFINITIONS. In this chapter:
(1) "Assigned counsel program" means a system under
which private attorneys, acting as independent contractors and
compensated with public funds, are individually appointed to
provide legal representation and services to a particular indigent
defendant accused of a crime or juvenile offense.
(2) "Board" means the governing board of the Texas
Indigent Defense Commission.
(3) "Commission" means the agency known as the Texas
Indigent Defense Commission.
(4) "Contract defender program" means a system under
which private attorneys, acting as independent contractors and
compensated with public funds, are engaged to provide legal
representation and services to a group of unspecified indigent
defendants who appear before a particular court or group of courts.
(5) "Council" means the Texas Judicial Council.
(6) "Crime" means:
(A) a misdemeanor punishable by confinement; or
(B) a felony.
(7) "Defendant" means a person accused of a crime or a
juvenile offense.
(8) "Executive director" means the executive director
of the Texas Indigent Defense Commission.
(9) "Indigent defense support services" means
criminal defense services that:
(A) are provided by licensed investigators,
experts, or other similar specialists, including forensic experts
and mental health experts; and
(B) are reasonable and necessary for appointed
counsel to provide adequate representation to indigent defendants.
(10) "Juvenile offense" means conduct committed by a
person while younger than 17 years of age that constitutes:
(A) a misdemeanor punishable by confinement; or
(B) a felony.
(11) "Managed assigned counsel program" has the
meaning assigned by Article 26.047, Code of Criminal Procedure.
(12) "Office of capital writs" means the office of
capital writs established under Subchapter B, Chapter 78.
(13) "Public defender's office" has the meaning
assigned by Article 26.044(a), Code of Criminal Procedure.
Sec. 79.002. ESTABLISHMENT OF COMMISSION. (a) The Texas
Indigent Defense Commission is established. The commission is an
agency in the judicial branch of this state.
(b) The commission operates under the direction and
supervision of a governing board.
Sec. 79.003. SUNSET PROVISION. The commission is subject
to Chapter 325 (Texas Sunset Act). Unless continued in existence as
provided by that chapter, the commission is abolished and this
chapter expires September 1, 2023.
[Sections 79.004-79.010 reserved for expansion]
SUBCHAPTER B. ADMINISTRATIVE PROVISIONS
Sec. 79.011. ESTABLISHMENT OF BOARD; COMPOSITION. (a) The
commission is governed by a board consisting of eight ex officio
members and five appointive members.
(b) Except as provided by Section 79.038, the board shall
exercise the powers and perform the duties under this chapter
independently of the council.
Sec. 79.012. EXECUTIVE DIRECTOR. (a) The executive
director is appointed by the board.
(b) The executive director:
(1) must be a licensed attorney;
(2) must demonstrate an interest in the standards for
and provision of criminal defense services to indigent individuals;
(3) may not engage in the private practice of law; and
(4) may not accept money, property, or any other thing
of value not authorized by law for services rendered under this
chapter.
Sec. 79.013. EX OFFICIO MEMBERS. The ex officio members of
the board are:
(1) the following six members of the council:
(A) the chief justice of the supreme court;
(B) the presiding judge of the court of criminal
appeals;
(C) one of the members of the senate serving on
the council who is designated by the lieutenant governor;
(D) the member of the house of representatives
appointed by the speaker of the house;
(E) one of the courts of appeals justices serving
on the council who is designated by the governor; and
(F) one of the county court or statutory county
court judges serving on the council who is designated by the
governor or, if a county court or statutory county court judge is
not serving on the council, one of the statutory probate court
judges serving on the council who is designated by the governor;
(2) one other member of the senate, appointed by the
lieutenant governor; and
(3) the chair of the House Criminal Jurisprudence
Committee.
Sec. 79.014. APPOINTMENTS. (a) The governor shall appoint
with the advice and consent of the senate 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.
(b) The board members serve staggered terms of two years,
with two members' terms expiring February 1 of each odd-numbered
year and three members' terms expiring February 1 of each
even-numbered year.
(c) In making appointments to the board, the governor shall
attempt to reflect the geographic and demographic diversity of the
state.
(d) A person may not be appointed to the board if the person
is required to register as a lobbyist under Chapter 305 because of
the person's activities for compensation on behalf of a profession
related to the operation of the commission or the council.
Sec. 79.015. PRESIDING OFFICER. The board shall select a
chair from among its members.
Sec. 79.016. DISCLOSURE REQUIRED. (a) A board member who
is a chief public defender or who is an attorney employed by a
public defender's office in a county 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 county and may not participate
in such a vote.
(b) A board member's disclosure under Subsection (a) must be
entered into the minutes of the board meeting at which the
disclosure is made or reported, as applicable.
(c) The commission may not award funds under Section 79.037
to a county served by a chief public defender or other attorney who
fails to make a disclosure to the board as required by Subsection
(a).
Sec. 79.017. VACANCIES. A vacancy on the board must be
filled for the unexpired term in the same manner as the original
appointment. An appointment to fill a vacancy shall be made not
later than the 90th day after the date the vacancy occurs.
Sec. 79.018. MEETINGS; QUORUM; VOTING. (a) The board
shall meet at least four times each year and at such other times as
it considers necessary or convenient to perform its duties.
(b) Six members of the board constitute a quorum for
purposes of transacting the business of the board. The board may
act only on the concurrence of five board members or a majority of
the board members present, whichever number is greater. The board
may adopt policies and standards under Section 79.034 only on the
concurrence of seven board members.
(c) Except as provided by Section 79.016, a board member is
entitled to vote on any matter before the board, except as otherwise
provided by rules adopted by the board.
Sec. 79.019. COMPENSATION. A board member may not receive
compensation for services on the board but is entitled to be
reimbursed for actual and necessary expenses incurred in
discharging board duties. The expenses are paid from funds
appropriated to the board.
Sec. 79.020. IMMUNITY FROM LIABILITY. A member of the board
performing duties on behalf of the board is not liable for damages
arising from an act or omission within the scope of those duties.
Sec. 79.021. RULES. The board shall adopt rules as
necessary to implement this chapter.
[Sections 79.022-79.030 reserved for expansion]
SUBCHAPTER C. GENERAL POWERS AND DUTIES OF COMMISSION
Sec. 79.031. FAIR DEFENSE ACCOUNT. The fair defense
account is an account in the general revenue fund that may be
appropriated only to:
(1) the commission for the purpose of implementing
this chapter; and
(2) the office of capital writs for the purpose of
implementing Subchapter B, Chapter 78.
Sec. 79.032. ACCEPTANCE OF GIFTS, GRANTS, AND OTHER FUNDS;
STATE GRANTS TEAM. (a) The commission may accept gifts, grants,
and other funds from any public or private source to pay expenses
incurred in performing its duties under this chapter.
(b) The State Grants Team of the Governor's Office of
Budget, Planning, and Policy may assist the commission in
identifying grants and other resources available for use by the
commission in performing its duties under this chapter.
Sec. 79.033. LEGISLATIVE APPROPRIATIONS REQUEST. The
board, in accordance with the rules and procedures of the
Legislative Budget Board, shall prepare, approve, and submit a
legislative appropriations request.
Sec. 79.034. POLICIES AND STANDARDS. (a) The commission
shall develop policies and standards for providing legal
representation and other defense services to indigent defendants at
trial, on appeal, and in postconviction proceedings. The policies
and standards may include:
(1) performance standards for counsel appointed to
represent indigent defendants;
(2) qualification standards under which attorneys may
qualify for appointment to represent indigent defendants,
including:
(A) qualifications commensurate with the
seriousness of the nature of the proceeding;
(B) qualifications appropriate for
representation of mentally ill defendants and noncitizen
defendants;
(C) successful completion of relevant continuing
legal education programs approved by the council; and
(D) testing and certification standards;
(3) standards for ensuring appropriate appointed
caseloads for counsel appointed to represent indigent defendants;
(4) standards for determining whether a person accused
of a crime or juvenile offense is indigent;
(5) policies and standards governing the organization
and operation of an assigned counsel program;
(6) policies and standards governing the organization
and operation of a public defender's office consistent with
recognized national policies and standards;
(7) standards for providing indigent defense services
under a contract defender program consistent with recognized
national policies and standards;
(8) standards governing the reasonable compensation
of counsel appointed to represent indigent defendants;
(9) standards governing the availability and
reasonable compensation of providers of indigent defense support
services for counsel appointed to represent indigent defendants;
(10) standards governing the operation of a legal
clinic or program that provides legal services to indigent
defendants and is sponsored by a law school approved by the supreme
court;
(11) policies and standards governing the appointment
of attorneys to represent children in proceedings under Title 3,
Family Code;
(12) policies and standards governing the
organization and operation of a managed assigned counsel program
consistent with nationally recognized policies and standards; and
(13) other policies and standards for providing
indigent defense services as determined by the commission to be
appropriate.
(b) The commission shall submit its proposed policies and
standards developed under Subsection (a) to the board for adoption.
The board shall adopt the proposed policies and standards as
appropriate.
(c) Any qualification standards adopted by the board under
Subsection (b) that relate to the appointment of counsel in a death
penalty case must be consistent with the standards specified under
Article 26.052(d), Code of Criminal Procedure. An attorney who is
identified by the commission as not satisfying performance or
qualification standards adopted by the board under Subsection (b)
may not accept an appointment in a capital case.
Sec. 79.035. COUNTY REPORTING PLAN; COMMISSION REPORTS.
(a) The commission shall develop a plan that establishes statewide
requirements for counties relating to reporting indigent defense
information. The plan must include provisions designed to reduce
redundant reporting by counties and provisions that take into
consideration the costs to counties of implementing the plan
statewide. The commission shall use the information reported by a
county to monitor the effectiveness of the county's indigent
defense policies, standards, and procedures and to ensure
compliance by the county with the requirements of state law
relating to indigent defense. The commission may revise the plan as
necessary to improve monitoring of indigent defense policies,
standards, and procedures in this state.
(b) The commission shall annually submit to the governor,
lieutenant governor, speaker of the house of representatives, and
council and shall publish in written and electronic form a report:
(1) containing any information submitted to the
commission by a county under Section 79.036; and
(2) regarding:
(A) the quality of legal representation provided
by counsel appointed to represent indigent defendants;
(B) current indigent defense practices in the
state as compared to state and national standards;
(C) efforts made by the commission to improve
indigent defense practices in the state; and
(D) recommendations made by the commission for
improving indigent defense practices in the state.
(c) The commission shall annually submit to the Legislative
Budget Board and council and shall publish in written and
electronic form a detailed report of all expenditures made under
this subchapter, including distributions under Section 79.037.
(d) The commission may issue other reports relating to
indigent defense as determined to be appropriate by the commission.
Sec. 79.036. INDIGENT DEFENSE INFORMATION. (a) In each
county, at the time and in the form and manner prescribed by the
commission and as otherwise requested by the commission, the
following information shall be prepared and provided to the
commission:
(1) an initial report containing a copy of all formal
and informal rules and forms that describe the procedures used in
the county to provide indigent defendants with counsel in
accordance with the Code of Criminal Procedure, including the
schedule of fees required under Article 26.05 of that code; and
(2) a supplemental report containing any revisions to
the rules or forms previously submitted to the commission under
this section.
(b) The commission promptly shall notify a county if a
change to the county's submission under Subsection (a) will be
required based on:
(1) the decision of a court;
(2) a statutory change; or
(3) a new policy or standard adopted by the board.
(c) Except as provided by Subsection (d):
(1) the local administrative district judge in each
county, or the person designated by the judge, shall perform the
action required by Subsection (a) with respect to all rules and
forms adopted by the judges of the district courts trying felony
cases in the county; and
(2) the local administrative statutory county court
judge in each county, or the person designated by the judge, shall
perform the action required by Subsection (a) with respect to all
rules and forms adopted by the judges of the county courts and
statutory county courts trying misdemeanor cases in the county.
(d) If the judges of two or more levels of courts described
by Subsection (c) adopt the same formal and informal rules and
forms, the local administrative judge serving the courts having
jurisdiction over offenses with the highest classification of
punishment, or the person designated by the judge, shall perform
the action required by Subsection (a).
(e) The chair of the juvenile board in each county, or the
person designated by the chair, shall perform the action required
by Subsection (a) with respect to all rules and forms adopted by the
juvenile board.
(f) In each county, the county auditor, or the person
designated by the commissioners court if the county does not have a
county auditor, shall prepare and send to the commission in the form
and manner prescribed by the commission and on a monthly,
quarterly, or annual basis, with respect to legal services provided
in the county to indigent defendants during each fiscal year,
information showing the total amount expended by the county to
provide indigent defense services and an analysis of the amount
expended by the county:
(1) in each district, county, statutory county, and
appellate court;
(2) in cases for which a private attorney is appointed
for an indigent defendant;
(3) in cases for which a public defender's office is
appointed for an indigent defendant;
(4) in cases for which counsel is appointed for an
indigent juvenile under Section 51.10(f), Family Code; and
(5) for investigation expenses, expert witness
expenses, or other litigation expenses.
(g) As a duty of office, each district and county clerk
shall cooperate with the county auditor or the person designated by
the commissioners court and the commissioners court in retrieving
information required to be sent to the commission under this
section.
Sec. 79.037. TECHNICAL SUPPORT; GRANTS. (a) The
commission shall:
(1) provide technical support to:
(A) assist counties in improving their indigent
defense systems; and
(B) promote compliance by counties with the
requirements of state law relating to indigent defense;
(2) direct the comptroller to distribute funds,
including grants, to counties to provide indigent defense services
in the county; and
(3) monitor each county that receives a grant and
enforce compliance by the county with the conditions of the grant,
including enforcement by directing the comptroller to:
(A) withdraw grant funds; or
(B) require reimbursement of grant funds by the
county.
(b) The commission shall direct the comptroller to
distribute funds as required by Subsection (a)(2) based on a
county's compliance with standards adopted by the board and the
county's demonstrated commitment to compliance with the
requirements of state law relating to indigent defense.
(c) The board shall adopt policies to ensure that funds
under Subsection (a)(2) are allocated and distributed to counties
in a fair manner.
(d) A county may not reduce the amount of funds provided for
indigent defense services in the county because of funds provided
by the commission under this section.
Sec. 79.038. ADMINISTRATIVE SUPPORT. The Office of Court
Administration of the Texas Judicial System shall provide
administrative support, including information technology services
support, to the commission as necessary to carry out this chapter.
SECTION 2. Section 71.001, Government Code, is amended to
read as follows:
Sec. 71.001. DEFINITIONS. In this chapter:
(1) ["Assigned counsel program" means a system under
which private attorneys, acting as independent contractors and
compensated with public funds, are individually appointed to
provide legal representation and services to a particular indigent
defendant accused of a crime or juvenile offense.
[(2)] "Chair" means the chair of the council.
(2) [(3) "Contract defender program" means a system
under which private attorneys, acting as independent contractors
and compensated with public funds, are engaged to provide legal
representation and services to a group of unspecified indigent
defendants who appear before a particular court or group of courts.
[(4)] "Council" means the Texas Judicial Council.
(3) [(5) "Crime" means:
[(A) a misdemeanor punishable by confinement; or
[(B) a felony.
[(6)] "Defendant" means a person accused of a crime or
[a] juvenile offense, as those terms are defined by Section 79.001.
(4) [(7) "Indigent defense support services" means
criminal defense services that:
[(A) are provided by licensed investigators,
experts, or other similar specialists, including forensic experts
and mental health experts; and
[(B) are reasonable and necessary for appointed
counsel to provide adequate representation to indigent defendants.
[(8) "Juvenile offense" means conduct committed by a
person while younger than 17 years of age that constitutes:
[(A) a misdemeanor punishable by confinement; or
[(B) a felony.
[(9)] "Public defender's office [defender]" has the
meaning assigned by Article 26.044(a), Code of Criminal Procedure.
SECTION 3. Subsection (b), Section 78.052, Government Code,
is amended to read as follows:
(b) The office shall receive funds for personnel costs and
expenses:
(1) as specified in the General Appropriations Act;
and
(2) from the fair defense account under Section 79.031
[71.058], in an amount sufficient to cover personnel costs and
expenses not covered by appropriations described by Subdivision
(1).
SECTION 4. Subsection (b), Section 78.056, Government Code,
is amended to read as follows:
(b) The Office of Court Administration of the Texas Judicial
System and the Texas [Task Force on] Indigent Defense Commission
shall provide administrative support necessary under this section.
SECTION 5. Subsection (c), Section 81.054, Government Code,
is amended to read as follows:
(c) Fees shall be paid to the clerk of the supreme court.
The clerk shall retain the fees, other than fees collected under
Subsection (j), until distributed to the state bar for expenditure
under the direction of the supreme court to administer this
chapter. The clerk shall retain the fees collected under
Subsection (j) until distribution is approved by an order of the
supreme court. In ordering that distribution, the supreme court
shall order that the fees collected under Subsection (j) be
remitted to the comptroller at least as frequently as quarterly.
The comptroller shall credit 50 percent of the remitted fees to the
credit of the judicial fund for programs approved by the supreme
court that provide basic civil legal services to the indigent and
shall credit the remaining 50 percent of the remitted fees to the
fair defense account in the general revenue fund which is
established under Section 79.031 [71.058], to be used, subject to
all requirements of Section 79.037 [71.062], for demonstration or
pilot projects that develop and promote best practices for the
efficient delivery of quality representation to indigent
defendants in criminal cases at trial, on appeal, and in
postconviction proceedings.
SECTION 6. Subsection (c), Section 402.035, Government
Code, is amended to read as follows:
(c) The task force is composed of the following:
(1) the governor or the governor's designee;
(2) the attorney general or the attorney general's
designee;
(3) the executive commissioner of the Health and Human
Services Commission or the executive commissioner's designee;
(4) the commissioner of the Department of Family and
Protective Services or the commissioner's designee;
(5) the public safety director of the Department of
Public Safety or the director's designee;
(6) one representative from each of the following
state agencies, appointed by the chief administrative officer of
the respective agency:
(A) the Texas Workforce Commission;
(B) the Texas Department of Criminal Justice;
(C) the Texas Youth Commission;
(D) the Texas Juvenile Probation Commission; and
(E) the Texas Alcoholic Beverage Commission; and
(7) as appointed by the attorney general:
(A) a chief public defender employed by a public
defender's office, as defined by Article 26.044(a) [26.044], Code
of Criminal Procedure, or an attorney designated by the chief
public defender;
(B) an attorney representing the state;
(C) a representative of:
(i) a hotel and motel association;
(ii) a district and county attorneys
association; and
(iii) a state police association;
(D) representatives of sheriff's departments;
(E) representatives of local law enforcement
agencies affected by human trafficking; and
(F) representatives of nongovernmental entities
making comprehensive efforts to combat human trafficking by:
(i) identifying human trafficking victims;
(ii) providing legal or other services to
human trafficking victims;
(iii) participating in community outreach
or public awareness efforts regarding human trafficking;
(iv) providing or developing training
regarding the prevention of human trafficking; or
(v) engaging in other activities designed
to prevent human trafficking.
SECTION 7. Article 26.04, Code of Criminal Procedure, is
amended by amending Subsections (a), (d), and (f) and adding
Subsection (f-1) to read as follows:
(a) The judges of the county courts, statutory county
courts, and district courts trying criminal cases in each county,
by local rule, shall adopt and publish written countywide
procedures for timely and fairly appointing counsel for an indigent
defendant in the county arrested for or charged with a misdemeanor
punishable by confinement or a felony. The procedures must be
consistent with this article and Articles 1.051, 15.17, 26.05, and
26.052. A court shall appoint an attorney from a public appointment
list using a system of rotation, unless the court appoints an
attorney under Subsection (f), (f-1), (h), or (i). The court shall
appoint attorneys from among the next five names on the appointment
list in the order in which the attorneys' names appear on the list,
unless the court makes a finding of good cause on the record for
appointing an attorney out of order. An attorney who is not
appointed in the order in which the attorney's name appears on the
list shall remain next in order on the list.
(d) A public appointment list from which an attorney is
appointed as required by Subsection (a) shall contain the names of
qualified attorneys, each of whom:
(1) applies to be included on the list;
(2) meets the objective qualifications specified by
the judges under Subsection (e);
(3) meets any applicable qualifications specified by
the Texas [Task Force on] Indigent Defense Commission; and
(4) is approved by a majority of the judges who
established the appointment list under Subsection (e).
(f) In a county in which a public defender's office is
created or designated [defender is appointed] under Article 26.044,
the court or the courts' designee may appoint that office [the
public defender] to represent the defendant in accordance with
guidelines established for the office [public defender].
(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 in accordance with the guidelines established for the
program.
SECTION 8. The heading to Article 26.044, Code of Criminal
Procedure, is amended to read as follows:
Art. 26.044. PUBLIC DEFENDER'S OFFICE [DEFENDER].
SECTION 9. Article 26.044, Code of Criminal Procedure, is
amended by amending Subsections (a) through (m) and adding
Subsections (b-1) and (c-1) to read as follows:
(a) In this chapter:
(1) "Governmental entity" includes a county, a group
of counties, a department [branch or agency] of a county, an
administrative judicial region created by Section 74.042,
Government Code, and any entity created under the Interlocal
Cooperation Act as permitted by Chapter 791, Government Code.
(2) "Office of capital writs" means the office of
capital writs established under Subchapter B, Chapter 78,
Government Code.
(3) "Oversight board" means an oversight board
established in accordance with Article 26.045.
(4) "Public defender's office [defender]" means an
entity that:
(A) is either:
(i) a governmental entity; or
(ii) a nonprofit corporation[:
[(A)] operating under a written agreement with a
governmental entity, other than an individual judge or court; and
(B) uses [using] public funds to provide[; and
[(C) providing] legal representation and
services to indigent defendants accused of a crime or juvenile
offense, as those terms are defined by Section 79.001 [71.001],
Government Code.
[(3) "Office of capital writs" means the office of
capital writs established under Subchapter B, Chapter 78,
Government Code.]
(b) The commissioners court of any county, on written
approval of a judge of a county court, statutory county court, or
district court trying criminal cases or cases under Title 3, Family
Code, in the county, may create a department of the county or by
contract may designate a [appoint a governmental entity or]
nonprofit corporation to serve as a public defender's office
[defender]. The commissioners courts of two or more counties may
enter into a written agreement to jointly create or designate
[appoint] and jointly fund a regional public defender's office
[defender]. In creating or designating [appointing] a public
defender's office [defender] under this subsection, the
commissioners court shall specify or the commissioners courts shall
jointly specify, if creating or designating [appointing] a regional
public defender's office [defender]:
(1) the duties of the public defender's office
[defender];
(2) the types of cases to which the public defender's
office [defender] may be appointed under Article 26.04(f) and the
courts in which an attorney employed by the public defender's
office [defender] may be required to appear;
(3) if the public defender's office is a nonprofit
corporation, the term during which the contract designating the
public defender's office is effective and how that contract may be
renewed on expiration of the term [whether the public defender is
appointed to serve a term or serve at the pleasure of the
commissioners court or the commissioners courts]; and
(4) if an oversight board is established under Article
26.045 for the public defender's office, the powers and duties that
have been delegated to the oversight board [the public defender is
appointed to serve a term, the term of appointment and the
procedures for removing the public defender].
(b-1) The applicable commissioners court or commissioners
courts shall require a written plan from a governmental entity
serving as a public defender's office.
(c) Before contracting with a nonprofit corporation to
serve as [appointing] a public defender's office [defender] under
Subsection (b), the commissioners court or commissioners courts
shall solicit proposals for the public defender's office
[defender].
(c-1) A written plan under Subsection (b-1) or a proposal
under Subsection (c) must include:
(1) a budget for the public defender's office
[defender], including salaries;
(2) a description of each personnel position,
including the chief public defender position;
(3) the maximum allowable caseloads for each attorney
employed by the public defender's office [proponent];
(4) provisions for personnel training;
(5) a description of anticipated overhead costs for
the public defender's office [defender]; [and]
(6) policies regarding the use of licensed
investigators and expert witnesses by the public defender's office;
and
(7) a policy to ensure that the chief public defender
and other attorneys employed by the public defender's office do not
provide representation to a defendant if doing so would create a
conflict of interest that has not been waived by the client
[proponent].
(d) After considering each proposal for the public
defender's office [defender] submitted by a [governmental entity
or] nonprofit corporation under Subsection (c), the commissioners
court or commissioners courts shall select a proposal that
reasonably demonstrates that the public defender's office
[proponent] will provide adequate quality representation for
indigent defendants in the county or counties.
(e) The total cost of the proposal under Subsection (c) may
not be the sole consideration in selecting a proposal.
(f) A [To be eligible for appointment as a] public
defender's office [defender, the governmental entity or nonprofit
corporation] must be directed by a chief public defender who:
(1) is a member of the State Bar of Texas;
(2) has practiced law for at least three years; and
(3) has substantial experience in the practice of
criminal law.
(g) A public defender's office [defender] is entitled to
receive funds for personnel costs and expenses incurred in
operating as a public defender's office [defender] in amounts fixed
by the commissioners court and paid out of the appropriate county
fund, or jointly fixed by the commissioners courts and
proportionately paid out of each appropriate county fund if the
public defender's office [defender] serves more than one county.
(h) A public defender's office [defender] may employ
attorneys, licensed investigators, and other personnel necessary
to perform the duties of the public defender's office [defender] as
specified by the commissioners court or commissioners courts under
Subsection (b)(1).
(i) Except as authorized by this article, the chief public
defender and other attorneys [or an attorney] employed by a public
defender's office [defender] may not:
(1) engage in the private practice of criminal law; or
(2) accept anything of value not authorized by this
article for services rendered under this article.
(j) A public defender's office [defender] may not accept
[refuse] an appointment under Article 26.04(f) if:
(1) a conflict of interest exists that has not been
waived by the client;
(2) the public defender's office [defender] has
insufficient resources to provide adequate representation for the
defendant;
(3) the public defender's office [defender] is
incapable of providing representation for the defendant in
accordance with the rules of professional conduct; or
(4) the public defender's office [defender] shows
other good cause for not accepting [refusing] the appointment.
(k) The judge may remove from a case a person [public
defender] who violates a provision of Subsection (i).
(l) A public defender's office [defender] may investigate
the financial condition of any person the public defender's office
[defender] is appointed to represent. The public defender's office
[defender] 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.
(m) If it is necessary that an attorney who is not employed
by [other than] a public defender's office [defender] be appointed,
the attorney is entitled to the compensation provided by Article
26.05 of this code.
SECTION 10. Chapter 26, Code of Criminal Procedure, is
amended by adding Article 26.045 to read as follows:
Art. 26.045. PUBLIC DEFENDER 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 public
defender's office created or designated 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. Members may include:
(1) a criminal or juvenile defense attorney;
(2) the judge of a trial court in this state that has
criminal jurisdiction;
(3) a county commissioner;
(4) a county judge; and
(5) a community representative.
(c) The commissioners court or courts may delegate to the
board any power or duty of the commissioners court to provide
oversight of the office under Article 26.044, including:
(1) recommending selection and removal of a chief
public defender;
(2) setting policy for the office; and
(3) developing a budget proposal for the office.
SECTION 11. Chapter 26, Code of Criminal Procedure, is
amended by adding Article 26.047 to read as follows:
Art. 26.047. MANAGED ASSIGNED COUNSEL PROGRAM. (a) In
this article:
(1) "Governmental entity" has the meaning assigned by
Article 26.044.
(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 Section 51.10, Family Code.
(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 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.
(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.
(d) A program under this article must have a director.
Unless the program uses a review committee appointed under
Subsection (e), a program under this article must be directed by a
person who:
(1) is a member of the State Bar of Texas;
(2) has practiced law for at least three years; and
(3) has substantial experience in the practice of
criminal law.
(e) The governmental entity, nonprofit corporation, or bar
association operating the program may appoint a review committee of
three or more individuals to approve attorneys for inclusion on the
program's public appointment list described by Subsection (f).
Each member of the committee:
(1) must meet the requirements described by Subsection
(d);
(2) may not be employed as a prosecutor; and
(3) may not be included on or apply for inclusion on
the public appointment list described by Subsection (f).
(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
procedure for appointing counsel adopted under Article 26.04(a) and
the Texas Indigent Defense Commission; and
(3) is approved by the program director or review
committee, as applicable.
(g) A court may replace an attorney appointed by the program
for the same reasons and in the same manner described by Article
26.04(k).
(h) A managed assigned counsel program is entitled to
receive funds for personnel costs and expenses incurred in amounts
fixed by the commissioners court and paid out of the appropriate
county fund, or jointly fixed by the commissioners courts and
proportionately paid out of each appropriate county fund if the
program serves more than one county.
(i) A managed assigned counsel program may employ personnel
and enter into contracts necessary to perform the program's duties
as specified by the commissioners court or commissioners courts
under this article.
SECTION 12. Subsections (a), (c), and (d), Article 26.05,
Code of Criminal Procedure, are amended to read as follows:
(a) A counsel, other than an attorney with a public
defender's office [defender] or an attorney employed by the office
of capital writs, appointed to represent a defendant in a criminal
proceeding, including a habeas corpus hearing, shall be paid a
reasonable attorney's fee for performing the following services,
based on the time and labor required, the complexity of the case,
and the experience and ability of the appointed counsel:
(1) time spent in court making an appearance on behalf
of the defendant as evidenced by a docket entry, time spent in
trial, and time spent in a proceeding in which sworn oral testimony
is elicited;
(2) reasonable and necessary time spent out of court
on the case, supported by any documentation that the court
requires;
(3) preparation of an appellate brief and preparation
and presentation of oral argument to a court of appeals or the Court
of Criminal Appeals; and
(4) preparation of a motion for rehearing.
(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, and until the judge or
director, as applicable, approves the payment. If the judge or
director disapproves the requested amount of payment, the judge or
director shall make written findings stating the amount of payment
that the judge or director 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 [defender], appointed to represent
a defendant under this code shall be reimbursed for reasonable and
necessary expenses, including expenses for investigation and for
mental health and other experts. Expenses 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 incurred
without prior court approval shall be reimbursed in the manner
provided for capital cases by Article 26.052(h).
SECTION 13. Subsection (a), Section 11, Article 42.12, Code
of Criminal Procedure, is amended to read as follows:
(a) The judge of the court having jurisdiction of the case
shall determine the conditions of community supervision and may, at
any time during the period of community supervision, alter or
modify the conditions. The judge may impose any reasonable
condition that is designed to protect or restore the community,
protect or restore the victim, or punish, rehabilitate, or reform
the defendant. Conditions of community supervision may include,
but shall not be limited to, the conditions that the defendant
shall:
(1) Commit no offense against the laws of this State or
of any other State or of the United States;
(2) Avoid injurious or vicious habits;
(3) Avoid persons or places of disreputable or harmful
character, including any person, other than a family member of the
defendant, who is an active member of a criminal street gang;
(4) Report to the supervision officer as directed by
the judge or supervision officer and obey all rules and regulations
of the community supervision and corrections department;
(5) Permit the supervision officer to visit the
defendant at the defendant's home or elsewhere;
(6) Work faithfully at suitable employment as far as
possible;
(7) Remain within a specified place;
(8) Pay the defendant's fine, if one is assessed, and
all court costs whether a fine is assessed or not, in one or several
sums;
(9) Support the defendant's dependents;
(10) Participate, for a time specified by the judge,
in any community-based program, including a community-service work
program under Section 16 of this article;
(11) Reimburse the county in which the prosecution was
instituted for compensation paid to appointed counsel for defending
the defendant in the case, if counsel was appointed, or if the
defendant was represented by a [county-paid] public defender's
office [defender], in an amount that would have been paid to an
appointed attorney had the county not had a public defender's
office [defender];
(12) Remain under custodial supervision in a community
corrections facility, obey all rules and regulations of the
facility, and pay a percentage of the defendant's income to the
facility for room and board;
(13) Pay a percentage of the defendant's income to the
defendant's dependents for their support while under custodial
supervision in a community corrections facility;
(14) Submit to testing for alcohol or controlled
substances;
(15) Attend counseling sessions for substance abusers
or participate in substance abuse treatment services in a program
or facility approved or licensed by the Department of State Health
Services [Texas Commission on Alcohol and Drug Abuse];
(16) With the consent of the victim of a misdemeanor
offense or of any offense under Title 7, Penal Code, participate in
victim-defendant mediation;
(17) Submit to electronic monitoring;
(18) Reimburse the compensation to victims of crime
fund for any amounts paid from that fund to or on behalf of a victim,
as defined by Article 56.32, of the defendant's offense or if no
reimbursement is required, make one payment to the compensation to
victims of crime fund in an amount not to exceed $50 if the offense
is a misdemeanor or not to exceed $100 if the offense is a felony;
(19) Reimburse a law enforcement agency for the
analysis, storage, or disposal of raw materials, controlled
substances, chemical precursors, drug paraphernalia, or other
materials seized in connection with the offense;
(20) Pay all or part of the reasonable and necessary
costs incurred by the victim for psychological counseling made
necessary by the offense or for counseling and education relating
to acquired immune deficiency syndrome or human immunodeficiency
virus made necessary by the offense;
(21) Make one payment in an amount not to exceed $50 to
a crime stoppers organization as defined by Section 414.001,
Government Code, and as certified by the Texas Crime Stoppers
Council;
(22) Submit a DNA sample to the Department of Public
Safety under Subchapter G, Chapter 411, Government Code, for the
purpose of creating a DNA record of the defendant;
(23) In any manner required by the judge, provide
public notice of the offense for which the defendant was placed on
community supervision in the county in which the offense was
committed; and
(24) Reimburse the county in which the prosecution was
instituted for compensation paid to any interpreter in the case.
SECTION 14. Section 133.107, Local Government Code, is
amended to read as follows:
Sec. 133.107. FEE FOR SUPPORT OF INDIGENT DEFENSE
REPRESENTATION. (a) A person convicted of any offense, other than
an offense relating to a pedestrian or the parking of a motor
vehicle, shall pay as a court cost, in addition to other costs, a
fee of $2 to be used to fund indigent defense representation through
the fair defense account established under Section 79.031 [71.058],
Government Code.
(b) The treasurer shall remit a fee collected under this
section to the comptroller in the manner provided by Subchapter B.
The comptroller shall credit the remitted fees to the credit of the
fair defense account established under Section 79.031 [71.058],
Government Code.
SECTION 15. The following are repealed:
(1) Subsection (i), Article 26.05, Code of Criminal
Procedure;
(2) Section 71.0351, Government Code; and
(3) Subchapter D, Chapter 71, Government Code.
SECTION 16. As soon as possible after the effective date of
this Act, the governor shall appoint the initial governing board of
the Texas Indigent Defense Commission in accordance with Subchapter
B, Chapter 79, Government Code, as added by this Act. To enable the
staggering of terms as required by Subsection (b), Section 79.014
of that subchapter, the governor shall appoint two members whose
terms expire on February 1 of the next odd-numbered year and three
members whose terms expire on February 1 of the next even-numbered
year.
SECTION 17. (a) On the date the last appointee to the
initial governing board of the Texas Indigent Defense Commission
takes office, the Task Force on Indigent Defense established under
Subchapter D, Chapter 71, Government Code, is abolished. On that
date, the powers, duties, obligations, rights, contracts, records,
personnel, property, and unspent appropriations of the task force
are transferred to the commission.
(b) All rules of the Task Force on Indigent Defense are
continued in effect as rules of the Texas Indigent Defense
Commission until superseded by a rule of the commission.
(c) Notwithstanding the changes in law made by this Act,
until the date the Task Force on Indigent Defense is abolished as
provided by this section, the members and the director of the task
force on the effective date of this Act may continue in office and
exercise their powers and duties under the law that governed the
task force before the effective date of this Act, and the prior law
is continued in effect for that purpose.
SECTION 18. Not later than December 1, 2011, the Texas
Indigent Defense Commission and the Texas Judicial Council shall
adopt a memorandum of understanding to facilitate the timely
implementation of this Act.
SECTION 19. This Act takes effect September 1, 2011.
* * * * *