HBA-JLV C.S.S.B. 7 77(R) BILL ANALYSIS Office of House Bill AnalysisC.S.S.B. 7 By: Ellis, Rodney Criminal Jurisprudence 5/1/2001 Committee Report (Substituted) BACKGROUND AND PURPOSE Under federal law, defendants in criminal prosecutions are guaranteed to have legal assistance for their defense. Texas law echoes this federal guarantee by requiring courts to appoint attorneys for indigent defendants charged with crimes that are punishable by imprisonment. In most Texas counties, judges appoint attorneys for indigent defendants and decide how much each lawyer will be paid. However, the statutes authorize a few jurisdictions to create public defender offices. The counties pay the entire cost of indigent defense, except that the state provides funds for certain appeals of death penalty cases. Because there are no uniform statewide indigent defense standards, it is not uncommon for abuse of the system to occur or for incompetent attorneys to be appointed. C.S.S.B. 7 provides guidelines and standards for the implementation of an indigent defense system. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. ANALYSIS C.S.S.B. 7 amends the Code of Criminal Procedure, Government, and Family codes to set forth provisions relating to the provision of legal services for indigent defendants. The bill amends the Code of Criminal Procedure to require the court or the courts' designee to appoint counsel to an indigent defendant in the county not later than the end of the third working day after the date on which the court or the courts' designee receives the defendant's request for appointment of counsel and if adversarial judicial proceedings have been initiated against the defendant. In a county with a population of 250,000 or more, the court or the courts' designee is required to appoint counsel as soon as possible, but not later than the end of the first working day after the date on which the court or the courts' designee receives the defendant's request for appointment of counsel and if adversarial proceedings have been initiated against the defendant. The bill requires the court of the courts' designee to appoint counsel immediately following the expiration of three working days after the date on which the court or the courts' designee receives the defendant's request for appointment of counsel and if adversarial judicial proceedings have not yet been initiated against the defendant. The bill requires the court or the courts' designee to appoint counsel immediately following the expiration of one working day after the date on which the court or the courts' designee receives the defendant's request for appointment of counsel in a county with a population of 250,000 or more and if adversarial judicial proceedings have not been initiated against the defendant. The bill authorizes a court or the courts' designee without unnecessary delay to appoint new counsel to represent an indigent defendant for whom counsel is appointed if the defendant is subsequently charged in the case with an offense different from the offense with which the defendant was initially charged and good cause to appoint new counsel is stated on the record (Art. 1.051). The bill also requires the person making the arrest or the person having custody of the person arrested to take the person arrested before the magistrate not later than 48 hours after the person is arrested (Arts. 14.06 and 15.17). The bill sets forth provisions relating to the duties of the magistrate. The bill requires a record to be made of the magistrate informing the person of the person's right to request appointment of counsel; the magistrate asking the person whether the person wants to request appointment of counsel; and whether the person requested appointment of counsel (Art. 15.17). The bill requires only the judges of the county courts, statutory county courts, and district courts trying criminal cases in each county to adopt and publish written 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. Unless the court appoints or the designee authorized to appoint counsel for an indigent defendant in the county appoints a public defender to represent the defendant in accordance with established guidelines or in accordance with an alternative system, the bill requires the court to appoint an attorney from a public appointment list, and establishes the method of appointment using a system of rotation. The bill requires that the procedures adopted and published are to specify procedures that ensure that an indigent defendant charged with a misdemeanor punishable by confinement or with a felony and who appears in court without counsel has an opportunity to confer with appointed counsel before the commencement of judicial proceedings. The bill requires that procedures adopted specify that appointments for defendants in capital cases in which the death penalty is sought comply with requirements under provisions relating to the appointment and payment of counsel in death penalty cases. The bill requires that procedures adopted ensure that each attorney appointed from a public appointment list to represent an indigent defendant perform the attorney's duty owed to the defendant in accordance with the adopted procedures, applicable provisions, and applicable rules of ethics. The bill sets forth a county-wide alternative program for appointing counsel for indigent defendants in criminal cases established by a formal action in which two-thirds of the judges of the courts designated under these provisions vote to establish the alternative program. The bill specifies alternative program guidelines for procedural requirements that are required to be adopted. These procedures are required to specify the procedures used in the county to determine whether a defendant is indigent so as to warrant the appointment of counsel. The bill sets forth procedures for the appointment of attorneys in misdemeanor, felony, and death penalty cases. The bill requires the standards and procedures established to determine whether a defendant is indigent to apply equally to all defendants, whether or not the defendant is in custody or has been released on bail. In determining whether a defendant is indigent, the court or the court's designee is authorized to consider the assets and the defendant's ability to obtain a loan, among other considerations. The bill prohibits the judges of the courts establishing an alternative program, without the consent of the commissioners court, from obligating the county by contract or by the creation of new positions to cause an increase in expenditure of county funds. The bill authorizes a court or the court's designee required to appoint an attorney to represent a defendant accused of a felony to appoint an attorney from any county located in the court's administrative judicial region. The bill requires an appointed attorney to make every reasonable effort to contact the defendant not later than the end of the first working day after the date on which the attorney is appointed and interview the defendant as soon as practicable after the attorney is appointed. The bill authorizes the court to replace an attorney who violates these provisions. The bill authorizes a majority of the judges of the county courts and statutory county courts or the district courts, as appropriate, trying criminal cases in the county to remove from consideration for appointment an attorney who intentionally or repeatedly violates these provisions. An attorney who fails to comply is subject to being replaced by other counsel and will result in removal from consideration for appointment to represent indigent defendants in the future. The bill provides that a defendant who is determined by the court to be indigent is presumed indigent for the remainder of the proceedings in the case unless there occurs a material change in financial circumstances of the defendant (Art. 26.04). The bill sets forth requirements relating to the appointment of a public defender by the commissioner's court. An appointed public defender is authorized to employ and supervise attorneys, licensed investigators, and other personnel necessary to perform the duties of the public defender office. The bill sets forth the terms for the removal of a public defender, and sets forth provisions under which a public defender is authorized to refuse an appointment (Art. 26.044). The bill removes provisions providing for the reimbursement of reasonable expenses for purposes of investigation and expert testimony for counsel, other than an attorney with a public defender, appointed to represent a defendant in a criminal hearing or habeas corpus hearing. The bill requires counsel to be paid a reasonable attorney's fee for the preparation and presentation of an oral argument and for the preparation of a motion for rehearing and petition for discretionary review. The bill requires all payments to counsel to be made in accordance with a schedule of fees. The bill requires that each fee schedule adopted state reasonable fixed rates, taking into consideration reasonable and necessary overhead costs and customary rates charged for similar legal services in the community. The bill sets forth the method of payment of counsel and prohibits payments from being made until the form for itemizing the services performed is submitted to the judge presiding over the proceedings and the judge approves the payment. The bill sets forth procedures for the submittal of the request for payment, approval or disapproval by the judge, the appeal by a requesting attorney, and a review of the appeal by the presiding judge of the administrative judicial region. The bill requires the commissioners court to pay to the appointed counsel the amount approved by the presiding judge of the administrative judicial region, not later than the 45th day after the date an application for payment of a fee is submitted. The bill requires that counsel in a noncapital case, other than an attorney with a public defender, appointed to represent a defendant be reimbursed for reasonable and necessary expenses, including expenses for investigation and for mental health and other experts, incurred with prior court approval in the manner provided for in capital cases. Counsel is authorized to be reimbursed for expenses incurred without prior court approval in the manner provided for in capital cases. The bill authorizes a majority of the judges of the county courts and statutory county courts or the district courts trying criminal cases in the county to remove an attorney from consideration for appointment if, after a hearing, it is shown that the attorney submitted a claim for legal services not performed by the attorney (Art. 26.05). The bill amends the Code of Criminal Procedure to set forth provisions relating to indigent defense information, including procedures used to provide indigent defendants with counsel and the schedule of fees, to be prepared and sent to the Office of Court Administration of the Texas Judicial System (Sec. 71.0351). The bill requires the local selection committee to adopt standards for the qualification of attorneys to be appointed to represent indigent defendants in capital felony cases in which the state is seeking the death penalty. The bill sets forth the standards for the qualification of attorneys to be appointed in such cases (Art. 26.052). The bill requires the comptroller of public accounts to deposit 13.98 percent of money received under provisions relating to court costs for special services into the fair defense account (Art. 102.075). The bill amends the Family Code to require the judges trying juvenile cases in each county to adopt a counsel appointment plan that outlines attorney qualifications, procedures for appointment, and procedures for the determination of an indigent child (Sec. 51.101). The bill amends the Government Code to establish the Task Force on Indigent Defense (task force) and sets forth provisions relating to the composition, member appointments, vacancies, meetings, compensation, budget, fair defense account, acceptance of gifts, grants, and other funds, policies and standards, task force reports, and technical support to the counties by the task force. The bill requires the task force to develop a plan that establishes statewide requirements for counties to follow when reporting indigent defense information. The bill authorizes the task force to revise the plan as necessary to improve monitoring of indigent defense policies, standards, and procedures. The bill requires the task force to distribute funds, including grants, to counties providing indigent defense services, and requires the task force to develop policies to ensure that those funds are distributed in a fair manner (Secs. 71.051-71.062). The bill requires the county auditor or the person designated by the commissioners court to prepare and send a report to the Office of Court Administration, not later than September 1 of each year. The bill sets forth provisions governing the form and content of the report (Sec. 71.0351). The bill repeals provisions governing public defenders in specific counties (SECTION 14). EFFECTIVE DATE January 1, 2002. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.S.B. 7 amends the Code of Criminal Procedure and modifies the original to require the court or the courts' designee to appoint counsel to an indigent defendant if adversarial judicial proceedings have been initiated against the defendant. The substitute provides a distinction between defendants that have had adversarial judicial proceedings initiated against them and defendants that have not had adversarial judicial proceedings initiated against them. The substitute removes provisions requiring a court or a courts' designee to appoint counsel for an indigent defendant regardless of whether charges have been filed against the defendant (Art. 1.051). The substitute provides that a record required of a person arrested and taken before a magistrate may consist of electronic recordings (Art. 15.17). The substitute modifies the original to ensure that an indigent defendant has an opportunity to confer with appointed counsel before the commencement of judicial proceedings, rather than before any communication occurs between the defendant and the prosecutor. The substitute modifies the original to set forth additional procedures for appointing counsel to be adopted. The substitute requires that a public appointment list from which an attorney is appointed shall contain the names of each attorney, each of whom meets any applicable qualifications specified by the Task Force on Indigent Defense (task force). In determining whether a defendant is indigent, the court or the court's designee is authorized to consider the assets and the defendant's ability to obtain a loan, among other considerations. The bill requires an appointed attorney to make every reasonable effort to contact the defendant not later than the end of the first working day after the date on which the attorney is appointed, rather than not later than 24 hours. The substitute requires the commissioners court, in appointing a public defender, to specify whether the public defender is appointed to serve a term or serve at the pleasure of the commissioners court or the commissioners courts and if the public defender is appointed to serve a term, the term of appointment and the procedures for removing the public defender (Art. 26.04). The substitute requires that each adopted fee schedule take into consideration reasonable and necessary overhead costs and customary rates charged for similar legal services in the community. The substitute modifies the original by setting forth provisions relating to the removal of an attorney from consideration for appointment if, after a hearing, it is shown that the attorney submitted a claim for legal services not performed by the attorney (Art. 26.05). The substitute modifies the local selection committee qualification standards for attorneys to be appointed to represent indigent defendants in capital felony cases in which the state is seeking the death penalty. The substitute requires each attorney placed on the list of attorneys qualified for appointment in death penalty cases to present proof that the attorney has successfully completed the minimum continuing legal education requirements of the state bar each year following the second anniversary of the date the attorney was appointed to the list (Art. 26.052). The substitute amends the Government Code to remove provisions specifying that certain information be included in the report to be sent to the Office of Court Administration of the Texas Judicial System (office) (Sec. 71.0351). The substitute modifies provisions relating to the composition of the members of the task force (Sec. 71.052). The substitute sets forth additional policies and standards the task force is required to develop for providing legal representation to indigent defendants at trial, on appeal, and in postconviction proceedings (Sec. 71.060). The substitute sets forth provisions relating to the requirements of the task force to develop a county reporting plan that establishes statewide requirements for counties relating to reporting indigent defense information and sets forth provisions relating to the plan (Sec. 71.061). The substitute requires the task force to promote compliance by counties with the requirements of state law relating to indigent defense and to direct the comptroller to distribute funds to counties to provide indigent defense services in the county. The substitute removes provisions relating to the distribution of funds to a county based on the county's population, spending, and tax base (Sec. 71.062). The substitute modifies the original to require the county auditor or the person designated by the commissioners court to prepare and send a report to the office not later than January 1 of each year and on a monthly, quarterly, or annual basis with respect to legal services provided in the county to indigent defendants during each fiscal year. The substitute requires a county auditor to begin sending the required information not later than September 1, 2002, rather than by July 1, 2002. The substitute removes provisions requiring the crime records service of the Department of Public Safety to begin sending required information to the office not later than September 1, 2003 (SECTION 17).