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AN ACT
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relating to the appointment of counsel to represent certain youths |
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and indigent defendants. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. (a) Effective September 1, 2014, Article |
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26.04(j), Code of Criminal Procedure, is amended to read as |
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follows: |
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(j) An attorney appointed under this article shall: |
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(1) make every reasonable effort to contact the |
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defendant not later than the end of the first working day after the |
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date on which the attorney is appointed and to interview the |
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defendant as soon as practicable after the attorney is appointed; |
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(2) represent the defendant until charges are |
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dismissed, the defendant is acquitted, appeals are exhausted, or |
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the attorney is permitted or ordered by the court to withdraw as |
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counsel for the defendant after a finding of good cause is entered |
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on the record; [and] |
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(3) with respect to a defendant not represented by |
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other counsel, before withdrawing as counsel for the defendant |
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after a trial or the entry of a plea of guilty: |
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(A) advise the defendant of the defendant's right |
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to file a motion for new trial and a notice of appeal; |
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(B) if the defendant wishes to pursue either or |
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both remedies described by Paragraph (A), assist the defendant in |
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requesting the prompt appointment of replacement counsel; and |
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(C) if replacement counsel is not appointed |
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promptly and the defendant wishes to pursue an appeal, file a timely |
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notice of appeal; and |
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(4) not later than October 15 of each year and on a |
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form prescribed by the Texas Indigent Defense Commission, submit to |
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the county information, for the preceding fiscal year, that |
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describes the percentage of the attorney's practice time that was |
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dedicated to work based on appointments accepted in the county |
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under this article and Title 3, Family Code. |
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(b) The change in law made by this section to Article |
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26.04(j), Code of Criminal Procedure, applies only to a criminal |
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proceeding that commences on or after September 1, 2014. A criminal |
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proceeding that commences before September 1, 2014, is governed by |
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the law in effect when the proceeding commenced, and the former law |
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is continued in effect for that purpose. |
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SECTION 2. Article 26.044, Code of Criminal Procedure, is |
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amended by amending Subsection (j) and adding Subsections (j-1) and |
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(j-2) to read as follows: |
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(j) A public defender's office may not accept an appointment |
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under Article 26.04(f) if: |
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(1) a conflict of interest exists that has not been |
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waived by the client; |
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(2) the public defender's office has insufficient |
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resources to provide adequate representation for the defendant; |
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(3) the public defender's office is incapable of |
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providing representation for the defendant in accordance with the |
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rules of professional conduct; |
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(4) the acceptance of the appointment would violate |
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the maximum allowable caseloads established at the public |
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defender's office; or |
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(5) [(4)] the public defender's office shows other |
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good cause for not accepting the appointment. |
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(j-1) On refusing an appointment under Subsection (j), a |
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chief public defender shall file with the court a written statement |
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that identifies any reason for refusing the appointment. The court |
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shall determine whether the chief public defender has demonstrated |
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adequate good cause for refusing the appointment and shall include |
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the statement with the papers in the case. |
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(j-2) A chief public defender may not be terminated, |
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removed, or sanctioned for refusing in good faith to accept an |
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appointment under Subsection (j). |
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SECTION 3. Section 51.101(a), Family Code, is amended to |
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read as follows: |
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(a) If an attorney is appointed under Section 54.01(b-1) or |
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(d) to represent a child at the initial detention hearing and the |
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child is detained, the attorney shall continue to represent the |
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child until the case is terminated, the family retains an attorney, |
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or a new attorney is appointed by the juvenile court. Release of |
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the child from detention does not terminate the attorney's |
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representation. |
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SECTION 4. Section 54.01, Family Code, is amended by adding |
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Subsection (b-1) and amending Subsection (d) to read as follows: |
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(b-1) Unless the court finds that the appointment of counsel |
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is not feasible due to exigent circumstances, the court shall |
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appoint counsel within a reasonable time before the first detention |
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hearing is held to represent the child at that hearing. |
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(d) A detention hearing may be held without the presence of |
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the child's parents if the court has been unable to locate them. If |
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no parent or guardian is present, the court shall appoint counsel or |
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a guardian ad litem for the child, subject to the requirements of |
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Subsection (b-1). |
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SECTION 5. Effective September 1, 2013, Section 79.036(a), |
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Government Code, is amended to read as follows: |
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(a) Not [In each county, not] later than November 1 of each |
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odd-numbered year and in the form and manner prescribed by the |
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commission, each county [the following information] shall prepare |
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[be prepared] and provide [provided] to the commission: |
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(1) a copy of all formal and informal rules and forms |
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that describe the procedures used in the county to provide indigent |
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defendants with counsel in accordance with the Code of Criminal |
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Procedure, including the schedule of fees required under Article |
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26.05 of that code; |
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(2) any plan or proposal submitted to the |
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commissioners court under Article 26.044, Code of Criminal |
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Procedure; |
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(3) any plan of operation submitted to the |
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commissioners court under Article 26.047, Code of Criminal |
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Procedure; |
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(4) any contract for indigent defense services |
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required under rules adopted by the commission relating to a |
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contract defender program; |
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(5) [(2)] any revisions to rules, [or] forms, plans, |
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proposals, or contracts previously submitted under this section; or |
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(6) [(3)] verification that rules, [and] forms, |
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plans, proposals, or contracts previously submitted under this |
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section still remain in effect. |
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SECTION 6. Effective September 1, 2014, Section 79.036, |
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Government Code, is amended by adding Subsection (a-1) to read as |
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follows: |
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(a-1) Not later than November 1 of each year and in the form |
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and manner prescribed by the commission, each county shall prepare |
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and provide to the commission information that describes for the |
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preceding fiscal year the number of appointments under Article |
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26.04, Code of Criminal Procedure, and Title 3, Family Code, made to |
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each attorney accepting appointments in the county, and information |
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provided to the county by those attorneys under Article |
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26.04(j)(4), Code of Criminal Procedure. |
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SECTION 7. Sections 51.101(a) and 54.01, Family Code, as |
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amended by this Act, apply only to a detention hearing that is held |
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for a child taken into custody on or after the effective date of |
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this Act. |
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SECTION 8. (a) This section takes effect September 1, 2013. |
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(b) Not later than January 1, 2015, the Texas Indigent |
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Defense Commission shall conduct and publish a study for the |
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purpose of determining guidelines for establishing a maximum |
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allowable caseload for a criminal defense attorney that, when the |
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attorney's total caseload, including appointments made under |
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Article 26.04, Code of Criminal Procedure, appointments made under |
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Title 3, Family Code, and other work, is considered, allows the |
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attorney to give each indigent defendant the time and effort |
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necessary to ensure effective representation. The study must be |
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based on relevant policies, performance guidelines, and best |
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practices. |
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(c) In conducting the study under Subsection (b) of this |
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section, the commission shall consult with criminal defense |
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attorneys, criminal defense attorney associations, the judiciary, |
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and any other organization engaged in the development of criminal |
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indigent defense policy that the commission considers appropriate. |
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SECTION 9. This Act takes effect September 1, 2013. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I certify that H.B. No. 1318 was passed by the House on May 9, |
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2013, by the following vote: Yeas 134, Nays 0, 2 present, not |
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voting; and that the House concurred in Senate amendments to H.B. |
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No. 1318 on May 21, 2013, by the following vote: Yeas 143, Nays 0, |
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2 present, not voting. |
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______________________________ |
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Chief Clerk of the House |
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I certify that H.B. No. 1318 was passed by the Senate, with |
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amendments, on May 17, 2013, by the following vote: Yeas 29, Nays |
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0. |
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______________________________ |
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Secretary of the Senate |
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APPROVED: __________________ |
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Date |
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__________________ |
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Governor |