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AN ACT
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relating to the establishment of the capital writs committee and |
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the office of capital writs and to the appointment and compensation |
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of certain counsel for indigent defendants in a capital case. |
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�������BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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�������SECTION�1.��Subtitle F, Title 2, Government Code, is amended |
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by adding Chapter 78 to read as follows: |
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CHAPTER 78. CAPITAL WRITS COMMITTEE AND OFFICE OF CAPITAL WRITS |
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SUBCHAPTER A. CAPITAL WRITS COMMITTEE |
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�������Sec.�78.001.��DEFINITIONS. In this subchapter: |
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�������������(1)��"Committee" means the capital writs committee |
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established under this subchapter. |
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�������������(2)��"Office of capital writs" means the office of |
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capital writs established under Subchapter B. |
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�������Sec.�78.002.��ESTABLISHMENT OF COMMITTEE; DUTIES. (a) The |
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capital 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 writs when a vacancy exists for the position of director. |
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�������Sec.�78.003.��APPOINTMENT AND COMPOSITION OF COMMITTEE. (a) |
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The committee is composed of the following five members who are |
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appointed by the president of the State Bar of Texas, with |
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ratification by the executive committee of the State Bar of Texas: |
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�������������(1)��three attorneys who are members of the State Bar of |
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Texas and who are not employed as prosecutors or law enforcement |
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officials, all of whom must have criminal defense experience with |
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death penalty proceedings in this state; and |
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�������������(2)��two state district judges, one of whom serves as |
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presiding judge of an administrative judicial region. |
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�������(b)��The committee shall elect one member of the committee to |
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serve as the presiding officer of the committee. |
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�������(c)��The committee members serve at the pleasure of the |
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president of the State Bar of Texas, and the committee meets at the |
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call of the presiding officer of the committee. |
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�������Sec.�78.004.��RECOMMENDATION AND APPOINTMENT OF DIRECTOR OF |
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OFFICE OF CAPITAL WRITS. (a) The committee shall submit to the |
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court of criminal appeals, in order of the committee's preference, |
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a list of the names of not more than five persons the committee |
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recommends that the court consider in appointing the director of |
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the office of capital writs when a vacancy exists for the position |
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of director. If the committee finds that three or more persons |
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under the committee's consideration are qualified to serve as the |
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director of the office of capital writs, the committee must include |
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at least three names in 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 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 writs. |
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[Sections 78.005-78.050 reserved for expansion] |
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SUBCHAPTER B. OFFICE OF CAPITAL WRITS |
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�������Sec.�78.051.��DEFINITIONS. In this subchapter: |
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�������������(1)��"Committee" means the capital writs committee |
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established under Subchapter A. |
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�������������(2)��"Office" means the office of capital writs |
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established under this subchapter. |
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�������Sec.�78.052.��ESTABLISHMENT; FUNDING. (a) The office of |
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capital writs is established and operates under the direction and |
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supervision of the director of the office. |
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�������(b)��The office shall receive funds for personnel costs and |
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expenses: |
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�������������(1)��as specified in the General Appropriations Act; |
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and |
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�������������(2)��from the fair defense account under Section |
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71.058, in an amount sufficient to cover personnel costs and |
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expenses not covered by appropriations described by Subdivision |
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(1). |
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�������Sec.�78.053.��DIRECTOR; STAFF. (a) The court of criminal |
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appeals shall appoint a director to direct and supervise the |
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operation of the office. The director serves a four-year term and |
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continues to serve until a successor has been appointed and |
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qualified. The court of criminal appeals may remove the director |
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only for good cause. The director may be reappointed for a second |
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or subsequent term. |
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�������(b)��The director shall employ attorneys and employ or retain |
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licensed investigators and other personnel necessary to perform the |
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duties of the office. To be employed by the director, an attorney |
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may not have been found by a state or federal court to have rendered |
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ineffective assistance of counsel during the trial or appeal of a |
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death penalty case. |
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�������(c)��The director and any attorney employed by the office may |
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not: |
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�������������(1)��engage in the private practice of criminal law; or |
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�������������(2)��accept anything of value not authorized by law for |
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services rendered under this subchapter. |
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�������Sec.�78.054.��POWERS AND DUTIES. (a) The office may not |
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accept an appointment under Article 11.071, Code of Criminal |
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Procedure, if: |
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�������������(1)��a conflict of interest exists; |
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�������������(2)��the office has insufficient resources to provide |
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adequate representation for the defendant; |
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�������������(3)��the office is incapable of providing |
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representation for the defendant in accordance with the rules of |
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professional conduct; or |
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�������������(4)��other good cause is shown for not accepting the |
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appointment. |
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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. |
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�������(c)��Notwithstanding Article 26.04(p), Code of Criminal |
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Procedure, the office may independently investigate the financial |
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condition of any person the office is appointed to represent. The |
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office shall report the results of the investigation to the |
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appointing judge. The judge may hold a hearing to determine if the |
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person is indigent and entitled to representation under this |
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section. |
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�������Sec.�78.055.��COMPENSATION OF OTHER APPOINTED ATTORNEYS. If |
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it is necessary that an attorney other than an attorney employed by |
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the office be appointed, that attorney shall be compensated as |
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provided by Articles 11.071 and 26.05, Code of Criminal Procedure. |
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�������Sec.�78.056.��APPOINTMENT LIST. (a) The presiding judges of |
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the administrative judicial regions shall maintain a statewide list |
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of competent counsel available for appointment under Section 2(f), |
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Article 11.071, Code of Criminal Procedure, if the office does not |
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accept or is prohibited from accepting an appointment under Section |
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78.054. Each attorney on the list: |
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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; 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 death penalty case. |
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�������(b)��The Office of Court Administration of the Texas Judicial |
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System and the Task Force on Indigent Defense shall provide |
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administrative support necessary under this section. |
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�������SECTION�2.��Subsections (b), (c), (e), and (f), Section 2, Article |
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11.071, 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 writs to represent the defendant as provided |
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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 writs or, if the office of capital |
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writs does not accept or is prohibited from accepting an |
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appointment under Section 78.054, Government Code, other competent |
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counsel under Subsection (f), unless the applicant elects to |
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proceed pro se or is represented by retained counsel. On appointing |
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counsel under this section, the convicting court shall immediately |
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notify the court of criminal appeals of the appointment, including |
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in the notice a copy of the judgment and the name, address, and |
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telephone number of the appointed counsel. |
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�������(e)��If the court of criminal appeals denies an applicant |
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relief under this article, an attorney appointed under this section |
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to represent the applicant shall, not later than the 15th day after |
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the date the court of criminal appeals denies relief or, if the case |
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is filed and set for submission, the 15th day after the date the |
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court of criminal appeals issues a mandate on the initial |
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application for a writ of habeas corpus under this article, move for |
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the appointment of [to be appointed as] counsel in federal habeas |
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review under 18 U.S.C. Section 3599 [21 U.S.C. Section 848(q) or
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equivalent provision or, if necessary, move for the appointment of
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other counsel under 21 U.S.C. Section 848(q) or equivalent
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provision]. The attorney shall immediately file a copy of the |
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motion with the court of criminal appeals, and if the attorney fails |
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to do so, the court may take any action to ensure that the |
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applicant's right to federal habeas review is protected, including |
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initiating contempt proceedings against the attorney. |
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�������(f)��If the office of capital writs does not accept or is |
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prohibited from accepting an appointment under Section 78.054, |
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Government Code, the [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 writs, |
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regardless of whether the attorney is appointed by the convicting |
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court or was appointed by the court of criminal appeals under prior |
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law. An attorney appointed under this section who is employed by |
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the office of capital writs shall be compensated in accordance with |
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Subchapter B, Chapter 78, Government Code. |
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�������SECTION�3.��Subsection (a), Section 2A, Article 11.071, Code |
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of Criminal 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 writs, and for payment of expenses |
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under Section 3, regardless of whether counsel is employed by the |
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office of capital writs. The total amount of reimbursement to which |
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a county is entitled under this section for an application under |
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this article may not exceed $25,000. Compensation and expenses in |
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excess of the $25,000 reimbursement provided by the state are the |
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obligation of the county. |
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�������SECTION�4.��Section 3, Article 11.071, Code of Criminal |
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Procedure, is amended by adding Subsection (f) 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 writs. |
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�������SECTION�5.��Subsections (e) and (f), Section 4A, Article |
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11.071, Code of 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 |
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writs, in which case the compensation of that attorney is governed |
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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 writs, in which case |
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the compensation of that attorney is governed by Subchapter B, |
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Chapter 78, Government Code. |
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�������SECTION�6.��Subsection (b), Article 26.04, Code of Criminal |
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Procedure, is amended to read as follows: |
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�������(b)��Procedures adopted under Subsection (a) shall: |
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�������������(1)��authorize only the judges of the county courts, |
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statutory county courts, and district courts trying criminal cases |
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in the county, or the judges' designee, to appoint counsel for |
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indigent defendants in the county; |
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�������������(2)��apply to each appointment of counsel made by a |
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judge or the judges' designee in the county; |
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�������������(3)��ensure that each indigent defendant in the county |
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who is charged with a misdemeanor punishable by confinement or with |
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a felony and who appears in court without counsel has an opportunity |
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to confer with appointed counsel before the commencement of |
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judicial proceedings; |
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�������������(4)��require appointments for defendants in capital |
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cases in which the death penalty is sought to comply with any |
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applicable [the] requirements under Articles 11.071 and [Article] |
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26.052; |
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�������������(5)��ensure that each attorney appointed from a public |
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appointment list to represent an indigent defendant perform the |
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attorney's duty owed to the defendant in accordance with the |
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adopted procedures, the requirements of this code, and applicable |
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rules of ethics; and |
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�������������(6)��ensure that appointments are allocated among |
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qualified attorneys in a manner that is fair, neutral, and |
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nondiscriminatory. |
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�������SECTION�7.��Subsection (a), Article 26.044, Code of Criminal |
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Procedure, is amended by adding Subdivision (3) to read as follows: |
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�������������(3)��"Office of capital writs" means the office of |
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capital writs established under Subchapter B, Chapter 78, |
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Government Code. |
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�������SECTION�8.��Article 26.044, Code of Criminal Procedure, is |
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amended by adding Subsection (n) to read as follows: |
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�������(n)��An attorney employed by a public defender's office may |
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be appointed with respect to an application for a writ of habeas |
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corpus only if: |
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�������������(1)��an attorney employed by the office of capital |
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writs is not appointed in the case; and |
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�������������(2)��the attorney employed by the public defender's |
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office is on the list of competent counsel maintained under Section |
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78.056, Government Code. |
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�������SECTION�9.��Subsection (a), Article 26.05, Code of Criminal |
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Procedure, is amended to read as follows: |
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�������(a)��A counsel, other than an attorney with a public defender |
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or an attorney employed by the office of capital writs, appointed to |
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represent a defendant in a criminal proceeding, including a habeas |
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corpus hearing, shall be paid a reasonable attorney's fee for |
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performing the following services, based on the time and labor |
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required, the complexity of the case, and the experience and |
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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�10.��Section 71.058, Government Code, is amended to |
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read as follows: |
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�������Sec.�71.058.��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 Task Force on Indigent Defense for the purpose |
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of implementing this subchapter; and |
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�������������(2)��the office of capital writs for the purpose of |
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implementing Subchapter B, Chapter 78. |
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�������SECTION�11.��Subsection (d), Section 2, Article 11.071, Code |
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of Criminal Procedure, is repealed, effective January 1, 2010. |
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�������SECTION�12.��(a) Not later than January 1, 2010, in |
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accordance with Section 78.056, Government Code, as added by this |
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Act, the presiding judges of the administrative judicial regions |
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shall complete the statewide list of competent counsel available |
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for appointment to represent defendants in applications for writs |
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of habeas corpus. |
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�������(b)��Not later than January 15, 2010, the president of the |
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State Bar of Texas shall appoint the members of the capital writs |
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committee. |
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�������(c)��Not later than May 15, 2010, the capital writs committee |
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shall submit to the Texas Court of Criminal Appeals the list of |
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candidates for the position of the director of the office of capital |
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writs. |
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�������(d)��Not later than September 1, 2010, the Texas Court of |
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Criminal Appeals shall appoint the director of the office of |
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capital writs under Chapter 78, Government Code, as added by this |
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Act. |
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�������SECTION�13.��This Act takes effect September 1, 2009. |
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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.�1091 passed the Senate on |
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April�9,�2009, by the following vote: Yeas�31, Nays�0; and that |
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the Senate concurred in House amendment on May 29, 2009, 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.�1091 passed the House, with |
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amendment, on May�20,�2009, by the following vote: Yeas�132, |
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Nays�6, one 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 |