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�	S.B.�No.�1091

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�	AN ACT
�	relating to the establishment of the capital writs committee and
�	the office of capital writs and to the appointment and compensation
�	of certain counsel for indigent defendants in a capital case.
�	�������BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
�	�������SECTION�1.��Subtitle F, Title 2, Government Code, is amended
�	by adding Chapter 78 to read as follows:
�	CHAPTER 78. CAPITAL WRITS COMMITTEE AND OFFICE OF CAPITAL WRITS
�	SUBCHAPTER A. CAPITAL WRITS COMMITTEE
�	�������Sec.�78.001.��DEFINITIONS. In this subchapter:
�	�������������(1)��"Committee" means the capital writs committee
�	established under this subchapter.
�	�������������(2)��"Office of capital writs" means the office of
�	capital writs established under Subchapter B.
�	�������Sec.�78.002.��ESTABLISHMENT OF COMMITTEE; DUTIES. (a) The
�	capital 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 writs when a vacancy exists for the position of director.
�	�������Sec.�78.003.��APPOINTMENT AND COMPOSITION OF COMMITTEE. (a)
�	The committee is composed of the following five members who are
�	appointed by the president of the State Bar of Texas, with
�	ratification by the executive committee of the State Bar of Texas:
�	�������������(1)��three attorneys who are members of the State Bar of
�	Texas and who are not employed as prosecutors or law enforcement
�	officials, all of whom must have criminal defense experience with
�	death penalty proceedings in this state; and
�	�������������(2)��two state district judges, one of whom serves as
�	presiding judge of an administrative judicial region.
�	�������(b)��The committee shall elect one member of the committee to
�	serve as the presiding officer of the committee.
�	�������(c)��The committee members serve at the pleasure of the
�	president of the State Bar of Texas, and the committee meets at the
�	call of the presiding officer of the committee.
�	�������Sec.�78.004.��RECOMMENDATION AND APPOINTMENT OF DIRECTOR OF
�	OFFICE OF CAPITAL 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 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 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 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 writs.
�	[Sections 78.005-78.050 reserved for expansion]
�	SUBCHAPTER B. OFFICE OF CAPITAL WRITS
�	�������Sec.�78.051.��DEFINITIONS. In this subchapter:
�	�������������(1)��"Committee" means the capital writs committee
�	established under Subchapter A.
�	�������������(2)��"Office" means the office of capital writs
�	established under this subchapter.
�	�������Sec.�78.052.��ESTABLISHMENT; FUNDING. (a) The office of
�	capital writs is established and operates under the direction and
�	supervision of the director of the office.
�	�������(b)��The office shall receive funds for personnel costs and
�	expenses:
�	�������������(1)��as specified in the General Appropriations Act;
�	and
�	�������������(2)��from the fair defense account under Section
�	71.058, in an amount sufficient to cover personnel costs and
�	expenses not covered by appropriations described by Subdivision
�	(1).
�	�������Sec.�78.053.��DIRECTOR; STAFF. (a) The court of criminal
�	appeals shall appoint a director to direct and supervise the
�	operation of the office. The director serves a four-year term and
�	continues to serve until a successor has been appointed and
�	qualified. The court of criminal appeals may remove the director
�	only for good cause. The director may be reappointed for a second
�	or subsequent term.
�	�������(b)��The director shall employ attorneys and employ or retain
�	licensed investigators 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
�	death penalty case.
�	�������(c)��The director and any attorney employed by the office may
�	not:
�	�������������(1)��engage in the private practice of criminal law; or
�	�������������(2)��accept anything of value not authorized by law for
�	services rendered under this subchapter.
�	�������Sec.�78.054.��POWERS AND DUTIES. (a) The office may not
�	accept an appointment under Article 11.071, Code of Criminal
�	Procedure, if:
�	�������������(1)��a conflict of interest exists;
�	�������������(2)��the office has insufficient resources to provide
�	adequate representation for the defendant;
�	�������������(3)��the office is incapable of providing
�	representation for the defendant in accordance with the rules of
�	professional conduct; or
�	�������������(4)��other good cause is shown for not accepting the
�	appointment.
�	�������(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.
�	�������(c)��Notwithstanding Article 26.04(p), Code of Criminal
�	Procedure, the office may independently investigate the financial
�	condition of any person the office is appointed to represent. The
�	office shall report the results of the investigation to the
�	appointing judge. The judge may hold a hearing to determine if the
�	person is indigent and entitled to representation under this
�	section.
�	�������Sec.�78.055.��COMPENSATION OF OTHER APPOINTED ATTORNEYS. If
�	it is necessary that an attorney other than an attorney employed by
�	the office be appointed, that attorney shall be compensated as
�	provided by Articles 11.071 and 26.05, Code of Criminal Procedure.
�	�������Sec.�78.056.��APPOINTMENT LIST. (a) The presiding judges of
�	the administrative judicial regions shall maintain a statewide list
�	of competent counsel available for appointment under Section 2(f),
�	Article 11.071, Code of Criminal Procedure, if the office does not
�	accept or is prohibited from accepting an appointment under Section
�	78.054. Each attorney on the list:
�	�������������(1)��must exhibit proficiency and commitment to
�	providing quality representation to defendants in death penalty
�	cases; 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 death penalty case.
�	�������(b)��The Office of Court Administration of the Texas Judicial
�	System and the Task Force on Indigent Defense shall provide
�	administrative support necessary under this section.
�	�������SECTION�2.��Subsections (b), (c), (e), and (f), Section 2, 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 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 writs or, if the office of capital
�	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.
�	�������(e)��If the court of criminal appeals denies an applicant
�	relief under this article, an attorney appointed under this section
�	to represent the applicant shall, not later than the 15th day after
�	the date the court of criminal appeals denies relief or, if the case
�	is filed and set for submission, the 15th day after the date the
�	court of criminal appeals issues a mandate on the initial
�	application for a writ of habeas corpus under this article, move for
�	the appointment of [to be appointed as] counsel in federal habeas
�	review under 18 U.S.C. Section 3599 [21 U.S.C. Section 848(q) or
�	equivalent provision or, if necessary, move for the appointment of
�	other counsel under 21 U.S.C. Section 848(q) or equivalent
�	provision]. The attorney shall immediately file a copy of the
�	motion with the court of criminal appeals, and if the attorney fails
�	to do so, the court may take any action to ensure that the
�	applicant's right to federal habeas review is protected, including
�	initiating contempt proceedings against the attorney.
�	�������(f)��If the office of capital writs does not accept or is
�	prohibited from accepting an appointment under Section 78.054,
�	Government Code, the [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 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 writs shall be compensated in accordance with
�	Subchapter B, Chapter 78, Government Code.
�	�������SECTION�3.��Subsection (a), Section 2A, 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 writs, and for payment of expenses
�	under Section 3, regardless of whether counsel is employed by the
�	office of capital 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�4.��Section 3, Article 11.071, Code of Criminal
�	Procedure, is amended by adding Subsection (f) 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 writs.
�	�������SECTION�5.��Subsections (e) and (f), Section 4A, 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
�	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 writs, in which case
�	the compensation of that attorney is governed by Subchapter B,
�	Chapter 78, Government Code.
�	�������SECTION�6.��Subsection (b), Article 26.04, Code of Criminal
�	Procedure, is amended to read as follows:
�	�������(b)��Procedures adopted under Subsection (a) shall:
�	�������������(1)��authorize only the judges of the county courts,
�	statutory county courts, and district courts trying criminal cases
�	in the county, or the judges' designee, to appoint counsel for
�	indigent defendants in the county;
�	�������������(2)��apply to each appointment of counsel made by a
�	judge or the judges' designee in the county;
�	�������������(3)��ensure that each indigent defendant in the county
�	who is 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;
�	�������������(4)��require appointments for defendants in capital
�	cases in which the death penalty is sought to comply with any
�	applicable [the] requirements under Articles 11.071 and [Article]
�	26.052;
�	�������������(5)��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, the requirements of this code, and applicable
�	rules of ethics; and
�	�������������(6)��ensure that appointments are allocated among
�	qualified attorneys in a manner that is fair, neutral, and
�	nondiscriminatory.
�	�������SECTION�7.��Subsection (a), Article 26.044, Code of Criminal
�	Procedure, is amended by adding Subdivision (3) to read as follows:
�	�������������(3)��"Office of capital writs" means the office of
�	capital writs established under Subchapter B, Chapter 78,
�	Government Code.
�	�������SECTION�8.��Article 26.044, Code of Criminal Procedure, is
�	amended by adding Subsection (n) to read as follows:
�	�������(n)��An attorney employed by a public defender's office may
�	be appointed with respect to an application for a writ of habeas
�	corpus only if:
�	�������������(1)��an attorney employed by the office of capital
�	writs is not appointed in the case; and
�	�������������(2)��the attorney employed by the public defender's
�	office is on the list of competent counsel maintained under Section
�	78.056, Government Code.
�	�������SECTION�9.��Subsection (a), Article 26.05, Code of Criminal
�	Procedure, is amended to read as follows:
�	�������(a)��A counsel, other than an attorney with a public defender
�	or an attorney employed by the office of capital 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�10.��Section 71.058, Government Code, is amended to
�	read as follows:
�	�������Sec.�71.058.��FAIR DEFENSE ACCOUNT. The fair defense
�	account is an account in the general revenue fund that may be
�	appropriated only to:
�	�������������(1)��the Task Force on Indigent Defense for the purpose
�	of implementing this subchapter; and
�	�������������(2)��the office of capital writs for the purpose of
�	implementing Subchapter B, Chapter 78.
�	�������SECTION�11.��Subsection (d), Section 2, Article 11.071, Code
�	of Criminal Procedure, is repealed, effective January 1, 2010.
�	�������SECTION�12.��(a) Not later than January 1, 2010, in
�	accordance with Section 78.056, Government Code, as added by this
�	Act, the presiding judges of the administrative judicial regions
�	shall complete the statewide list of competent counsel available
�	for appointment to represent defendants in applications for writs
�	of habeas corpus.
�	�������(b)��Not later than January 15, 2010, the president of the
�	State Bar of Texas shall appoint the members of the capital writs
�	committee.
�	�������(c)��Not later than May 15, 2010, the capital writs committee
�	shall submit to the Texas Court of Criminal Appeals the list of
�	candidates for the position of the director of the office of capital
�	writs.
�	�������(d)��Not later than September 1, 2010, the Texas Court of
�	Criminal Appeals shall appoint the director of the office of
�	capital writs under Chapter 78, Government Code, as added by this
�	Act.
�	�������SECTION�13.��This Act takes effect September 1, 2009.
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�	______________________________	______________________________
�	���President of the Senate	Speaker of the House�����
�
�	�������I hereby certify that S.B.�No.�1091 passed the Senate on
�	April�9,�2009, by the following vote: Yeas�31, Nays�0; and that
�	the Senate concurred in House amendment on May 29, 2009, by the
�	following vote: Yeas�31, Nays�0.
�
�
�	______________________________
�	Secretary of the Senate����
�
�	�������I hereby certify that S.B.�No.�1091 passed the House, with
�	amendment, on May�20,�2009, by the following vote: Yeas�132,
�	Nays�6, one present not voting.
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�	______________________________
�	Chief Clerk of the House���
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�	Approved:
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�	______________________________�
�	������������Date
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�	______________________________�
�	����������Governor