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  S.B. No. 1681
 
 
 
 
AN ACT
  relating to the appointment of counsel and the rights of an accused
  and other requirements for the purposes of appellate proceedings or
  community supervision revocation proceedings.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subsections (a), (c), (e), (g), (i), (j), and
  (o), Article 26.04, Code of Criminal Procedure, are amended 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, or taking
  an appeal from a conviction of 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), (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.
         (c)  Whenever a court or the courts' designee authorized
  under Subsection (b) to appoint counsel for indigent defendants in
  the county determines for purposes of a criminal proceeding that a
  defendant charged with or appealing a conviction of a felony or a
  misdemeanor punishable by confinement is indigent or that the
  interests of justice require representation of a defendant in the 
  [a criminal] proceeding, the court or the courts' designee shall
  appoint one or more practicing attorneys to represent [defend] the
  defendant in accordance with this subsection and the procedures
  adopted under Subsection (a). If the court or the courts' designee
  determines that the defendant does not speak and understand the
  English language or that the defendant is deaf, the court or the
  courts' designee shall make an effort to appoint an attorney who is
  capable of communicating in a language understood by the defendant.
         (e)  In a county in which a court is required under
  Subsection (a) to appoint an attorney from a public appointment
  list:
               (1)  the judges of the county courts and statutory
  county courts trying misdemeanor cases in the county, by formal
  action:
                     (A)  shall:
                           (i)  establish a public appointment list of
  attorneys qualified to provide representation in the county in
  misdemeanor cases punishable by confinement; and
                           (ii)  specify the objective qualifications
  necessary for an attorney to be included on the list; and
                     (B)  may establish, if determined by the judges to
  be appropriate, more than one appointment list graduated according
  to the degree of seriousness of the offense, [and] the attorneys'
  qualifications, and whether representation will be provided in
  trial court proceedings, appellate proceedings, or both; and
               (2)  the judges of the district courts trying felony
  cases in the county, by formal action:
                     (A)  shall:
                           (i)  establish a public appointment list of
  attorneys qualified to provide representation in felony cases in
  the county; and
                           (ii)  specify the objective qualifications
  necessary for an attorney to be included on the list; and
                     (B)  may establish, if determined by the judges to
  be appropriate, more than one appointment list graduated according
  to the degree of seriousness of the offense, [and] the attorneys'
  qualifications, and whether representation will be provided in
  trial court proceedings, appellate proceedings, or both.
         (g)  A countywide alternative program for appointing counsel
  for indigent defendants in criminal cases is established by a
  formal action in which two-thirds of the judges of the courts
  designated under this subsection vote to establish the alternative
  program. An alternative program for appointing counsel in
  misdemeanor and felony cases may be established in the manner
  provided by this subsection by the judges of the county courts,
  statutory county courts, and district courts trying criminal cases
  in the county. An alternative program for appointing counsel in
  misdemeanor cases may be established in the manner provided by this
  subsection by the judges of the county courts and statutory county
  courts trying criminal cases in the county. An alternative program
  for appointing counsel in felony cases may be established in the
  manner provided by this subsection by the judges of the district
  courts trying criminal cases in the county. In a county in which an
  alternative program is established:
               (1)  the alternative program may:
                     (A)  use a single method for appointing counsel or
  a combination of methods; and
                     (B)  use a multicounty appointment list using a
  system of rotation; and
               (2)  the procedures adopted under Subsection (a) must
  ensure that:
                     (A)  attorneys appointed using the alternative
  program to represent defendants in misdemeanor cases punishable by
  confinement:
                           (i)  meet specified objective
  qualifications for that representation, which may be graduated
  according to the degree of seriousness of the offense and whether
  representation will be provided in trial court proceedings,
  appellate proceedings, or both[, for providing representation in
  misdemeanor cases punishable by confinement]; and
                           (ii)  are approved by a majority of the
  judges of the county courts and statutory county courts trying
  misdemeanor cases in the county;
                     (B)  attorneys appointed using the alternative
  program to represent defendants in felony cases:
                           (i)  meet specified objective
  qualifications for that representation, which may be graduated
  according to the degree of seriousness of the offense and whether
  representation will be provided in trial court proceedings,
  appellate proceedings, or both[, for providing representation in
  felony cases]; and
                           (ii)  are approved by a majority of the
  judges of the district courts trying felony cases in the county;
                     (C)  appointments for defendants in capital cases
  in which the death penalty is sought comply with the requirements of
  Article 26.052; and
                     (D)  appointments are reasonably and impartially
  allocated among qualified attorneys.
         (i)  A court or the courts' designee required under
  Subsection (c) to appoint an attorney to represent a defendant
  accused or convicted of a felony may appoint an attorney from any
  county located in the court's administrative judicial region.
         (j)  An attorney appointed under this article shall:
               (1)  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 to interview the
  defendant as soon as practicable after the attorney is appointed;
  [and]
               (2)  represent the defendant until charges are
  dismissed, the defendant is acquitted, appeals are exhausted, or
  the attorney is permitted or ordered [relieved of his duties] by the
  court to withdraw as counsel for the defendant [or replaced by other
  counsel] after a finding of good cause is entered on the record; and
               (3)  with respect to a defendant not represented by
  other counsel, before withdrawing as counsel for the defendant
  after a trial or the entry of a plea of guilty:
                     (A)  advise the defendant of the defendant's right
  to file a motion for new trial and a notice of appeal;
                     (B)  if the defendant wishes to pursue either or
  both remedies described by Paragraph (A), assist the defendant in
  requesting the prompt appointment of replacement counsel; and
                     (C)  if replacement counsel is not appointed
  promptly and the defendant wishes to pursue an appeal, file a timely
  notice of appeal.
         (o)  Before making a determination of whether a defendant is
  indigent, the court shall request the defendant to sign under oath a
  statement substantially in the following form:
  "On this ________ day of ____________, 20 ___, I have been advised
  by the (name of the court) Court of my right to representation by
  counsel in connection with [the trial of] the charge pending
  against me. I am without means to employ counsel of my own choosing
  and I hereby request the court to appoint counsel for me.
  (signature of the defendant)"
         SECTION 2.  Section 21, Article 42.12, Code of Criminal
  Procedure, is amended by amending Subsections (b) and (d) and
  adding Subsections (b-1) and (b-2) to read as follows:
         (b)  At any time during the period of community supervision
  the judge may issue a warrant for violation of any of the conditions
  of the community supervision and cause the defendant to be
  arrested. Any supervision officer, police officer or other officer
  with power of arrest may arrest such defendant with or without a
  warrant upon the order of the judge to be noted on the docket of the
  court.  Subject to Subsection (b-1), a  [A] defendant [so] arrested
  under this subsection may be detained in the county jail or other
  appropriate place of confinement until he can be taken before the
  judge for a determination regarding the alleged violation.  The
  arresting [Such] officer shall immediately [forthwith] report the
  [such] arrest and detention to the [such] judge.
         (b-1)  Without any unnecessary delay, but not later than 48
  hours after the person is arrested, the arresting officer or the
  person with custody of the arrested person shall take the arrested
  person before the judge who ordered the arrest for the alleged
  violation of a condition of community supervision or, if the judge
  is unavailable, before a magistrate of the county in which the
  person was arrested. The judge or magistrate shall perform all
  appropriate duties and may exercise all appropriate powers as
  provided by Article 15.17 with respect to an arrest for a new
  criminal offense, except that only the judge who ordered the arrest
  for the alleged violation may authorize the person's release on
  bail. The arrested person may be taken before the judge or
  magistrate under this subsection by means of an electronic
  broadcast system as provided by and subject to the requirements of
  Article 15.17.
         (b-2)  If the defendant has not been released on bail as
  permitted under Subsection (b-1), on motion by the defendant the
  judge who ordered the arrest for the alleged violation of a
  condition of community supervision shall cause the defendant to be
  brought before the judge for a hearing on the alleged violation 
  within 20 days of filing of said motion, and after a hearing without
  a jury, may either continue, extend, modify, or revoke the
  community supervision. A judge may revoke the community
  supervision of a defendant who is imprisoned in a penal institution
  without a hearing if the defendant in writing before a court of
  record in the jurisdiction where imprisoned waives his right to a
  hearing and to counsel, affirms that he has nothing to say as to why
  sentence should not be pronounced against him, and requests the
  judge to revoke community supervision and to pronounce sentence.
  In a felony case, the state may amend the motion to revoke community
  supervision any time up to seven days before the date of the
  revocation hearing, after which time the motion may not be amended
  except for good cause shown, and in no event may the state amend the
  motion after the commencement of taking evidence at the hearing.
  The judge may continue the hearing for good cause shown by either
  the defendant or the state.
         (d)  A defendant has a right to counsel at a hearing under
  this section. The court shall appoint counsel for an indigent
  defendant in accordance with the procedures adopted under Article
  26.04.
         SECTION 3.  The change in law made by this Act applies only
  to a criminal proceeding that commences on or after the effective
  date of this Act.  A criminal proceeding that commences before the
  effective date of this Act is governed by the law in effect when the
  proceeding commenced, and the former law is continued in effect for
  that purpose.
         SECTION 4.  This Act takes effect September 1, 2011.
 
 
 
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
         I hereby certify that S.B. No. 1681 passed the Senate on
  April 29, 2011, by the following vote:  Yeas 31, Nays 0.
 
 
  ______________________________
  Secretary of the Senate    
 
         I hereby certify that S.B. No. 1681 passed the House on
  May 23, 2011, by the following vote:  Yeas 145, Nays 0, three  
  present not voting.
 
 
  ______________________________
  Chief Clerk of the House   
 
 
 
  Approved:
 
  ______________________________ 
              Date
 
 
  ______________________________ 
            Governor