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AN ACT
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relating to expanding the powers and duties of the office of capital |
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writs and renaming the office of capital writs the office of capital |
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and forensic writs. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Sections 2(b), (c), and (f), Article 11.071, |
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Code of Criminal Procedure, are amended to read as follows: |
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(b) If a defendant is sentenced to death the convicting |
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court, immediately after judgment is entered under Article 42.01, |
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shall determine if the defendant is indigent and, if so, whether the |
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defendant desires appointment of counsel for the purpose of a writ |
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of habeas corpus. If the defendant desires appointment of counsel |
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for the purpose of a writ of habeas corpus, the court shall appoint |
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the office of capital and forensic writs to represent the defendant |
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as provided by Subsection (c). |
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(c) At the earliest practical time, but in no event later |
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than 30 days, after the convicting court makes the findings |
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required under Subsections (a) and (b), the convicting court shall |
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appoint the office of capital and forensic writs or, if the office |
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of capital and forensic writs does not accept or is prohibited from |
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accepting an appointment under Section 78.054, Government Code, |
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other competent counsel under Subsection (f), unless the applicant |
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elects to proceed pro se or is represented by retained counsel. On |
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appointing counsel under this section, the convicting court shall |
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immediately notify the court of criminal appeals of the |
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appointment, including in the notice a copy of the judgment and the |
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name, address, and telephone number of the appointed counsel. |
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(f) If the office of capital and forensic writs does not |
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accept or is prohibited from accepting an appointment under Section |
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78.054, Government Code, the convicting court shall appoint counsel |
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from a list of competent counsel maintained by the presiding judges |
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of the administrative judicial regions under Section 78.056, |
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Government Code. The convicting court shall reasonably compensate |
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as provided by Section 2A an attorney appointed under this section, |
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other than an attorney employed by the office of capital and |
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forensic writs, regardless of whether the attorney is appointed by |
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the convicting court or was appointed by the court of criminal |
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appeals under prior law. An attorney appointed under this section |
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who is employed by the office of capital and forensic writs shall be |
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compensated in accordance with Subchapter B, Chapter 78, Government |
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Code. |
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SECTION 2. Section 2A(a), Article 11.071, Code of Criminal |
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Procedure, is amended to read as follows: |
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(a) The state shall reimburse a county for compensation of |
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counsel under Section 2, other than for compensation of counsel |
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employed by the office of capital and forensic writs, and for |
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payment of expenses under Section 3, regardless of whether counsel |
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is employed by the office of capital and forensic writs. The total |
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amount of reimbursement to which a county is entitled under this |
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section for an application under this article may not exceed |
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$25,000. Compensation and expenses in excess of the $25,000 |
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reimbursement provided by the state are the obligation of the |
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county. |
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SECTION 3. Section 3(f), Article 11.071, Code of Criminal |
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Procedure, is amended to read as follows: |
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(f) This section applies to counsel's investigation of the |
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factual and legal grounds for the filing of an application for a |
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writ of habeas corpus, regardless of whether counsel is employed by |
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the office of capital and forensic writs. |
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SECTION 4. Sections 4A(e) and (f), Article 11.071, Code of |
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Criminal Procedure, are amended to read as follows: |
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(e) Sections 2A and 3 apply to compensation and |
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reimbursement of counsel appointed under Subsection (b)(3) in the |
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same manner as if counsel had been appointed by the convicting |
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court, unless the attorney is employed by the office of capital and |
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forensic writs, in which case the compensation of that attorney is |
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governed by Subchapter B, Chapter 78, Government Code. |
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(f) Notwithstanding any other provision of this article, |
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the court of criminal appeals shall appoint counsel and establish a |
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new filing date for application, which may be no later than the |
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270th day after the date on which counsel is appointed, for each |
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applicant who before September 1, 1999, filed an untimely |
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application or failed to file an application before the date |
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required by Section 4(a) or (b). Section 2A applies to the |
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compensation and payment of expenses of counsel appointed by the |
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court of criminal appeals under this subsection, unless the |
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attorney is employed by the office of capital and forensic writs, in |
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which case the compensation of that attorney is governed by |
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Subchapter B, Chapter 78, Government Code. |
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SECTION 5. Section 6(b-1), Article 11.071, Code of Criminal |
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Procedure, is amended to read as follows: |
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(b-1) If the convicting court receives notice that the |
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requirements of Section 5(a) for consideration of a subsequent |
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application have been met and if the applicant has not elected to |
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proceed pro se and is not represented by retained counsel, the |
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convicting court shall appoint, in order of priority: |
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(1) the attorney who represented the applicant in the |
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proceedings under Section 5, if the attorney seeks the appointment; |
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(2) the office of capital and forensic writs, if the |
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office represented the applicant in the proceedings under Section 5 |
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or otherwise accepts the appointment; or |
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(3) counsel from a list of competent counsel |
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maintained by the presiding judges of the administrative judicial |
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regions under Section 78.056, Government Code, if the office of |
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capital and forensic writs: |
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(A) did not represent the applicant as described |
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by Subdivision (2); or |
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(B) does not accept or is prohibited from |
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accepting the appointment under Section 78.054, Government Code. |
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SECTION 6. Article 26.044(a)(2), Code of Criminal |
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Procedure, is amended to read as follows: |
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(2) "Office of capital and forensic writs" means the |
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office of capital and forensic writs established under Subchapter |
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B, Chapter 78, Government Code. |
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SECTION 7. Article 26.05(a), Code of Criminal Procedure, is |
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amended to read as follows: |
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(a) A counsel, other than an attorney with a public |
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defender's office or an attorney employed by the office of capital |
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and forensic writs, appointed to represent a defendant in a |
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criminal proceeding, including a habeas corpus hearing, shall be |
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paid a reasonable attorney's fee for performing the following |
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services, based on the time and labor required, the complexity of |
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the case, and the experience and ability of the appointed counsel: |
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(1) time spent in court making an appearance on behalf |
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of the defendant as evidenced by a docket entry, time spent in |
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trial, and time spent in a proceeding in which sworn oral testimony |
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is elicited; |
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(2) reasonable and necessary time spent out of court |
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on the case, supported by any documentation that the court |
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requires; |
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(3) preparation of an appellate brief and preparation |
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and presentation of oral argument to a court of appeals or the Court |
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of Criminal Appeals; and |
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(4) preparation of a motion for rehearing. |
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SECTION 8. Section 2, Article 38.01, Code of Criminal |
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Procedure, is amended by adding Subdivision (5) to read as follows: |
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(5) "Office of capital and forensic writs" means the |
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office of capital and forensic writs established under Subchapter |
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B, Chapter 78, Government Code. |
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SECTION 9. Section 4, Article 38.01, Code of Criminal |
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Procedure, is amended by adding Subsection (h) to read as follows: |
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(h) The commission may review and refer cases that are the |
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subject of an investigation under Subsection (a)(3) or (a-1) to the |
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office of capital and forensic writs in accordance with Section |
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78.054(b), Government Code. |
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SECTION 10. The heading to Chapter 78, Government Code, is |
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amended to read as follows: |
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CHAPTER 78. CAPITAL AND FORENSIC WRITS COMMITTEE AND OFFICE OF |
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CAPITAL AND FORENSIC WRITS |
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SECTION 11. The heading to Subchapter A, Chapter 78, |
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Government Code, is amended to read as follows: |
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SUBCHAPTER A. CAPITAL AND FORENSIC WRITS COMMITTEE |
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SECTION 12. Section 78.001, Government Code, is amended to |
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read as follows: |
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Sec. 78.001. DEFINITIONS. In this subchapter: |
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(1) "Committee" means the capital and forensic writs |
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committee established under this subchapter. |
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(2) "Office of capital and forensic writs" means the |
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office of capital and forensic writs established under Subchapter |
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B. |
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SECTION 13. Section 78.002, Government Code, is amended to |
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read as follows: |
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Sec. 78.002. ESTABLISHMENT OF COMMITTEE; DUTIES. (a) The |
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capital and forensic writs committee is established. |
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(b) The committee shall recommend to the court of criminal |
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appeals as provided by Section 78.004 a director for the office of |
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capital and forensic writs when a vacancy exists for the position of |
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director. |
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SECTION 14. The heading to Section 78.004, Government Code, |
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is amended to read as follows: |
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Sec. 78.004. RECOMMENDATION AND APPOINTMENT OF DIRECTOR OF |
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OFFICE OF CAPITAL AND FORENSIC WRITS. |
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SECTION 15. Section 78.004, Government Code, is amended to |
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read as follows: |
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Sec. 78.004. RECOMMENDATION AND APPOINTMENT OF DIRECTOR OF |
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OFFICE OF CAPITAL AND FORENSIC WRITS. (a) The committee shall |
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submit to the court of criminal appeals, in order of the committee's |
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preference, a list of the names of not more than five persons the |
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committee recommends that the court consider in appointing the |
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director of the office of capital and forensic writs when a vacancy |
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exists for the position of director. If the committee finds that |
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three or more persons under the committee's consideration are |
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qualified to serve as the director of the office of capital and |
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forensic writs, the committee must include at least three names in |
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the list submitted under this subsection. |
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(b) Each person recommended to the court of criminal appeals |
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by the committee under Subsection (a): |
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(1) must exhibit proficiency and commitment to |
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providing quality representation to defendants in death penalty |
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cases, as described by the Guidelines and Standards for Texas |
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Capital Counsel, as published by the State Bar of Texas; and |
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(2) may not have been found by a state or federal court |
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to have rendered ineffective assistance of counsel during the trial |
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or appeal of a criminal [death penalty] case. |
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(c) When a vacancy for the position exists, the court of |
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criminal appeals shall appoint from the list of persons submitted |
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to the court under Subsection (a) the director of the office of |
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capital and forensic writs. |
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SECTION 16. The heading to Subchapter B, Chapter 78, |
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Government Code, is amended to read as follows: |
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SUBCHAPTER B. OFFICE OF CAPITAL AND FORENSIC WRITS |
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SECTION 17. Section 78.051, Government Code, is amended to |
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read as follows: |
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Sec. 78.051. DEFINITIONS. In this subchapter: |
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(1) "Committee" means the capital and forensic writs |
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committee established under Subchapter A. |
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(2) "Office" means the office of capital and forensic |
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writs established under this subchapter. |
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SECTION 18. Section 78.052(a), Government Code, is amended |
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to read as follows: |
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(a) The office of capital and forensic writs is established |
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and operates under the direction and supervision of the director of |
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the office. |
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SECTION 19. Section 78.053(b), Government Code, is amended |
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to read as follows: |
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(b) The director shall employ attorneys and employ or retain |
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licensed investigators, experts, and other personnel necessary to |
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perform the duties of the office. To be employed by the director, |
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an attorney may not have been found by a state or federal court to |
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have rendered ineffective assistance of counsel during the trial or |
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appeal of a criminal [death penalty] case. |
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SECTION 20. Section 78.054, Government Code, is amended by |
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amending Subsection (b) and adding Subsection (d) to read as |
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follows: |
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(b) The office may not represent a defendant in a federal |
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habeas review. The office may not represent a defendant in an |
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action or proceeding in state court other than an action or |
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proceeding that: |
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(1) is conducted under Article 11.071, Code of |
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Criminal Procedure; |
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(2) is collateral to the preparation of an application |
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under Article 11.071, Code of Criminal Procedure; [or] |
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(3) concerns any other post-conviction matter in a |
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death penalty case other than a direct appeal, including an action |
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or proceeding under Article 46.05 or Chapter 64, Code of Criminal |
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Procedure; or |
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(4) is conducted under Article 11.073, Code of |
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Criminal Procedure, or is collateral to the preparation of an |
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application under Article 11.073, Code of Criminal Procedure, if |
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the case was referred in writing to the office by the Texas Forensic |
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Science Commission under Section 4(h), Article 38.01, Code of |
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Criminal Procedure. |
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(d) The office may consult with law school clinics with |
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applicable knowledge and experience and with other experts as |
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necessary to investigate the facts of a particular case. |
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SECTION 21. Section 79.001(12), Government Code, is amended |
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to read as follows: |
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(12) "Office of capital and forensic writs" means the |
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office of capital and forensic writs established under Subchapter |
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B, Chapter 78. |
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SECTION 22. Section 79.031, Government Code, is amended to |
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read as follows: |
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Sec. 79.031. FAIR DEFENSE ACCOUNT. The fair defense |
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account is an account in the general revenue fund that may be |
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appropriated only to: |
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(1) the commission for the purpose of implementing |
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this chapter; and |
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(2) the office of capital and forensic writs for the |
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purpose of implementing Subchapter B, Chapter 78. |
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SECTION 23. Section 411.082(5), Government Code, is amended |
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to read as follows: |
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(5) "Office of capital and forensic writs" means the |
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office of capital and forensic writs established under Subchapter |
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B, Chapter 78. |
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SECTION 24. Section 411.088(a-1), Government Code, is |
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amended to read as follows: |
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(a-1) The department may not charge a fee under Subsection |
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(a) for providing criminal history record information to: |
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(1) a criminal justice agency; |
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(2) the office of capital and forensic writs; or |
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(3) a public defender's office. |
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SECTION 25. Section 411.1272, Government Code, is amended |
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to read as follows: |
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Sec. 411.1272. ACCESS TO CRIMINAL HISTORY RECORD |
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INFORMATION: OFFICE OF CAPITAL AND FORENSIC WRITS AND PUBLIC |
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DEFENDER'S OFFICES. The office of capital and forensic writs and a |
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public defender's office are entitled to obtain from the department |
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criminal history record information maintained by the department |
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that relates to a criminal case in which an attorney compensated by |
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the office of capital and forensic writs or by the public defender's |
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office has been appointed. |
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SECTION 26. This Act takes effect September 1, 2015. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I hereby certify that S.B. No. 1743 passed the Senate on |
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May 5, 2015, by the following vote: Yeas 31, Nays 0; and that the |
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Senate concurred in House amendment on May 28, 2015, by the |
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following vote: Yeas 31, Nays 0. |
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______________________________ |
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Secretary of the Senate |
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I hereby certify that S.B. No. 1743 passed the House, with |
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amendment, on May 26, 2015, by the following vote: Yeas 141, |
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Nays 3, two present not voting. |
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______________________________ |
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Chief Clerk of the House |
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Approved: |
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______________________________ |
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Date |
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______________________________ |
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Governor |