HBA-NMO H.B. 1516 76(R)BILL ANALYSIS Office of House Bill AnalysisH.B. 1516 By: Gallego Criminal Jurisprudence 7/27/1999 Enrolled BACKGROUND AND PURPOSE The 74th Texas Legislature enacted legislation requiring the court of criminal appeals to appoint and pay counsel to represent indigent death row inmates in their applications for writs of habeas corpus in state court. H.B. 1516 requires the convicting court, rather than the court of criminal appeals, to appoint and pay counsel to represent indigent death row inmates in their applications for a writ of habeas corpus in state court, but requires the state to reimburse a county for compensation paid to such counsel up to $25,000. This bill also provides new procedures for seeking an extension to applying for a writ of habeas corpus, provides new procedures in the event of an application that is not filed or filed untimely, and makes other procedural changes concerning this process. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis rulemaking authority is expressly delegated to the court of criminal appeals in SECTION 1 (Section 2, Article 11.071, Code of Criminal Procedure) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 2, Article 11.071, Code of Criminal Procedure, to delete language providing that a defendant must be sentenced to death on or after September 1, 1995, before a convicting court is required to 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 (habeas counsel). Requires the convicting court, at the earliest practical time, but in no event later than 30 days after the convicting court makes the findings regarding indigence and habeas counsel, to appoint competent habeas counsel. Deletes language requiring the court of criminal appeals to appoint competent habeas counsel. Requires the court of criminal appeals to adopt rules and standards for the appointment of attorneys as habeas counsel and authorizes the convicting court to appoint an attorney as counsel under this section only if the appointment is approved by the court of criminal appeals in any manner provided by those rules. Requires the attorney to immediately file a copy of the motion to be appointed as counsel or for the appointment of other counsel in federal habeas review with the court of criminal appeals. Authorizes the court, if the attorney fails to file a copy of the motion, to take action to ensure that the applicant's right to federal habeas review is protected. Requires the convicting court, rather than the court of criminal appeals, to reasonably compensate an attorney appointed under this section as provided by Section 2A. Makes conforming and nonsubstantive changes. SECTION 2. Amends Article 11.071, Code of Criminal Procedure, by adding Section 2A, as follows: Sec. 2A. STATE REIMBURSEMENT; COUNTY OBLIGATION. (a) Requires the state to reimburse a county for compensation of counsel under Section 2 of this article and payment of expenses under Section 3. Prohibits the total amount of reimbursement to which a county is entitled under this section for an application under this article from exceeding $25,000. Provides that compensation and expenses in excess of $25,000 are the obligation of the county. (b) Requires a convicting court seeking reimbursement for a county to certify to the comptroller of public accounts (comptroller) the amount of compensation that the county is entitled to receive. Requires the comptroller to issue a warrant to the county in the amount certified by the convicting court, not to exceed $25,000. (c) Provides that the limitation imposed by this section on the reimbursement by the state to a county for compensation of counsel and payment of reasonable expenses does not prohibit a county from compensating counsel and reimbursing expenses in an amount that is in excess of the amount the county receives from the state as reimbursement, and provides that a county is specifically granted discretion by this subsection to make payments in excess of the state reimbursement. SECTION 3. Amends Section 3, Article 11.071, Code of Criminal Procedure, by amending Subsections (b) and (d), to make conforming changes. SECTION 4. Amends Section 4, Article 11.071, Code of Criminal Procedure, to authorize the convicting court, before a specified filing date, for good cause shown and after notice and an opportunity to be heard by the attorney representing the state, to grant one 90-day extension that begins on a specified filing date. Authorizes either party to request that the court hold a hearing on the request. Requires the convicting court, if it receives either an untimely application or no application, to send within 10 days to the court of criminal appeals and to the attorney representing the state a copy of the untimely application and a statement identifying it as untimely, or a statement explaining that no application has been filed, and any order the judge of the convicting court determines should be attached to an untimely application or statement of no application. Deletes existing text concerning an applicant's ability to establish good cause for not filing a timely application by showing particularized justifying circumstances. Makes conforming and nonsubstantive changes. SECTION 5. Amends Article 11.071, Code of Criminal Procedure, by adding Section 4A, as follows: Sec. 4a. UNTIMELY APPLICATION; APPLICATION NOT FILED. (a) Requires a counsel who files an untimely application or fails to file an application before the applicable filing date, on command of the court of criminal appeals, to show cause as to why. (b) Authorizes the court of criminal appeals, at the conclusion of the counsel's presentation to the court, to find that good cause has not been shown and dismiss the application; permit the counsel to continue representation of the applicant and establish a new filing date for the application, which may be not more than 180 days from the date the court permits the counsel to continue representation; or appoint new counsel to represent the applicant and establish a new filing date for the application, which may be not more than 270 days from the date the court appoints new counsel. (c) Authorizes the court of criminal appeals to hold in contempt counsel who files an untimely application or fails to file an application before the appropriate filing deadline. Authorizes the court of criminal appeals to punish as a separate instance of contempt each day after the first day on which the counsel fails to timely file the application. Authorizes the court of criminal appeals, in addition to or in lieu of holding counsel in contempt, to enter an order denying counsel compensation. (d) Requires the court of criminal appeals, if it establishes a new filing date for the application, to notify the convicting court of the fact and requires the convicting court to proceed under this article. (e) Provides that the provisions of this article regarding compensation and reimbursement of counsel apply to new counsel appointed under Subsection (b) in the same manner as if counsel had been appointed by the convicting court. (f) Requires the court of criminal appeals, notwithstanding any other provision of this article, to 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 on an appropriate date. Provides that the compensation and reimbursement provision applies to counsel appointed under this subsection. SECTION 6. Amends Section 5, Article 11.071, Code of Criminal Procedure, by amending Subsection (a) and (b) and adding Subsection (f), as follows: (a) Makes conforming changes. (b) Makes conforming changes. (f) Requires the court, if an amended or supplemental application is not filed within the time specified, to treat the application as a subsequent application under this section. SECTION 7. Amends Section 5, Article 11.071, Code of Criminal Procedure, as follows: Sec. 5. New Title: SUBSEQUENT APPLICATION. Deletes "or untimely." SECTION 8. Amends Section 6(b), Article 11.071, Code of Criminal Procedure, to make a conforming change. SECTION 9. Amends Section 7(a), Article 11.071, Code of Criminal Procedure, to require the state to file an answer to the application for a writ of habeas corpus not later than the 120th, rather than the 30th, day after the date the state receives notice of issuance of the writ. Prohibits the convicting court, when the state has requested an extension to answer an application, from permitting the state to file an answer later than 180 days after the date the state receives notice of the writ. SECTION 10. Amends Section 9(b), Article 11.071, Code of Criminal Procedure, to require the convicting court to hold the evidentary hearing not later than the 30th day after the date on which the court entered the order designating issues that it determines are controverted or previously unresolved. Deletes language requiring the convicting court to allow the applicant and the state not less than 10 days to prepare for an evidentary hearing. Makes conforming changes. SECTION 11. Effective date: September 1, 1999. Makes application of this Act prospective. SECTION 12. Emergency clause.