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