HBA-RBT S.B. 247 76(R)    BILL ANALYSIS


Office of House Bill AnalysisS.B. 247
By: Ellis
Criminal Jurisprudence
5/10/1999
Engrossed



BACKGROUND AND PURPOSE 

In 1965, the legislature sought to accommodate a nascent body of federal
constitutional law in which courts held that each poor person must have the
opportunity to obtain legal representation at state expense if the state
wished to incarcerate the person for a crime. S.B. 247 establishes defense
and pretrial information gathering standards for indigent people who are
accused of a crime.  

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Article 1.051(c), Code of Criminal Procedure, to require
the appointing authority for the court to appoint counsel not later than
the 20th day after the date on which a defendant requests counsel, if an
indigent defendant remains incarcerated pending trial after a hearing under
Article 15.17 (Duties of Arresting Officer and Magistrate).  Specifies that
failure to assign an attorney within the 20-day period may result in
required release of the defendant. Establishes that the release of the
defendant is the exclusive remedy for a failure to appoint counsel within
the 20-day period. 

SECTION 2.  Amends Article 15.17(a), Code of Criminal Procedure, to require
the magistrate to inform orally and in writing the indigent defendant of
procedures used in the county to provide counsel, and to provide the person
with a written statement in a language understood by the person. Sets forth
the language of the written statement.  Makes nonsubstantive changes. 

SECTION 3.  Amends Article 17.151, Code of Criminal Procedure, by amending
Section 1 and 2, and by adding Section 4, as follows: 

Sec. 1.  Provides that a defendant detained in jail pending trial must be
released either on personal bond or by reducing the amount of bail if the
appointing authority fails to appoint counsel before the 21st day after the
date the defendant request counsel.  Makes conforming changes. 

Sec. 2.  Provides that Section 1(1), rather than provisions, of this
article does not apply to certain defendants. 

Sec. 4.  Provides that if the appointing authority fails to appoint counsel
before the specified deadline, the defendant may be detained at any time
after counsel is appointed and the defendant is provided an opportunity to
confer with appointed counsel. 

SECTION 4.  Amends the heading to Article 26.04, Code of Criminal
Procedure, as follows: 

Article 26.04.  New title:  APPOINTMENT OF COUNSEL.

SECTION 5.  Amends Article 26.04(a), Code of Criminal Procedure, to require
the county commissioners court to establish procedures to govern the
provision of legal services to an indigent  person  accused of having
committed a criminal offense in the county and to designate the appointing
authority for the county.  Requires the appointing authority to evenly
distribute appointments among qualified attorneys according to a public
list and provides for deviation from the list if the appointing attorney
provides a written statement for the record. 

SECTION 6.  Amends Article 26.044, Code of Criminal Procedure, as follows:

Art. 26.044.  New title:  REGIONAL PUBLIC DEFENDERS.  Authorizes the
commissioners court of any county to appoint an attorney or a nonprofit
corporation established to provide legal services to the indigent  to serve
as the public defender. Authorizes the commissioners court of two or more
counties to enter a written agreement to jointly fund and appoint a
regional public defender.  Authorizes each public defender to hire and
supervise other attorneys and staff in order to carry out all necessary
duties.  Sets forth requirements for eligibility for individuals to be
appointed as a public defender.  Sets forth conditions prohibited for a
public defender or an attorney employed by the office of the public
defender.  Authorizes the commissioners court to remove a public defender
under certain conditions.  Authorizes the judge having jurisdiction over
the complaint or other charging instrument to hold a hearing in order to
determine whether a person is indigent. Deletes text regarding requirements
of at least four county courts.  Makes conforming changes. 

SECTION 7.  Amends Article 26.05, Code of Criminal Procedure, to set forth
conditions by which a county auditor, appointed by the commissioners court,
shall determine appropriate payment schedule for the appointed counsel.
Sets forth reimbursement for appointed counsel that is not with a public
defender's office.  Deletes text requiring prior court approval for a
reimbursement and the requirement for certain judges to create the fee
payment schedule.  Makes conforming changes.  
 
SECTION 8.  Amends Chapter 71C, Government Code, by adding Section 71.0351,
as follows: 

Sec. 71.0351.  INDIGENT DEFENSE INFORMATION.  Requires each county auditor
to prepare and send a report to the council's office of court
administration, not later than September 30 of each year.  Requires the
county commissioners court to designate a person to carry out the
responsibilities described by this section.  Requires each district and
county clerk to cooperate with the county auditor or judge in retrieving
information for inclusion in the report.  Requires the county auditor or
judge to send the report to the office in a prescribed form.  Authorizes
the office to authorize the form to be sent by electronic data transfer.
Sets forth the form, manner, and necessary information prescribed by the
council's office of court administration by which the report shall be
prepared.    

SECTION 9.  Repealers:  Articles 26.041, 26.042, 26.043, 26.045, 26.046,
26.047, 26.048, 26.049, and 26.050, Code of Criminal Procedure (regarding
assistance for court-appointed counsel in Harris County, Tarrant County
public defender, public defender in Wichita County, public defender in 33rd
judicial district, public defender in Colorado County, public defender in
Webb County, public defender in Cherokee County, public defender in Tom
Green County, and the  public defender in the 293rd and 365th judicial
districts).   

SECTION 10.  (a) Effective date: September 1, 1999.  
        Makes application of this Act prospective.

(b)  Requires a county auditor or judge to send to the office of court
administration the first report required by Section 71.0351, Government
Code, on or before September 30, 2000.   

SECTION 11.  Emergency clause.