Bill Text: TX SB1743 | 2015-2016 | 84th Legislature | Comm Sub
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: 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.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Passed) 2015-06-19 - Effective on 9/1/15 [SB1743 Detail]
Download: Texas-2015-SB1743-Comm_Sub.html
Bill Title: 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.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Passed) 2015-06-19 - Effective on 9/1/15 [SB1743 Detail]
Download: Texas-2015-SB1743-Comm_Sub.html
By: Hinojosa | S.B. No. 1743 | |
(In the Senate - Filed March 13, 2015; March 24, 2015, read | ||
first time and referred to Committee on Criminal Justice; | ||
April 30, 2015, reported adversely, with favorable Committee | ||
Substitute by the following vote: Yeas 7, Nays 0; April 30, 2015, | ||
sent to printer.) | ||
COMMITTEE SUBSTITUTE FOR S.B. No. 1743 | By: Whitmire |
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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. 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 9. The heading to Subchapter A, Chapter 78, | ||
Government Code, is amended to read as follows: | ||
SUBCHAPTER A. CAPITAL AND FORENSIC WRITS COMMITTEE | ||
SECTION 10. 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 11. 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 12. 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 13. 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 [ |
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(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 14. The heading to Subchapter B, Chapter 78, | ||
Government Code, is amended to read as follows: | ||
SUBCHAPTER B. OFFICE OF CAPITAL AND FORENSIC WRITS | ||
SECTION 15. 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 16. 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 17. 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 [ |
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SECTION 18. 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 or 11.073, Code | ||
of Criminal Procedure; | ||
(2) is collateral to the preparation of an application | ||
under Article 11.071 or 11.073, Code of Criminal Procedure; [ |
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(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) concerns any other post-conviction matter in a | ||
case that involves a forensic science issue. | ||
(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 19. 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 20. 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 21. 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 22. 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 23. 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 24. This Act takes effect September 1, 2015. | ||
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