HBA-JLV H.B. 1745 77(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 1745
By: Hinojosa
Criminal Jurisprudence
3/11/2001
Introduced



BACKGROUND AND PURPOSE 

Under federal law, defendants in criminal prosecutions are guaranteed to
have legal assistance for their defense.  Texas law echoes this federal
guarantee by requiring courts to appoint attorneys for indigent defendants
charged with crimes that are punishable by imprisonment.  In most Texas
counties, judges appoint attorneys for indigent defendants and decide how
much each lawyer will be paid.  However, the statutes authorize a few
jurisdictions to create public defender offices.  The counties pay the
entire cost of indigent defense, except that the state provides funds for
certain appeals of death penalty cases.  Because there are no uniform
statewide indigent defense standards, it is not uncommon for abuse of the
system to occur or for incompetent attorneys to be appointed.  House Bill
1745 provides guidelines and standards for the implementation of an
indigent defense system. 

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. 

ANALYSIS

House Bill 1745 amends the Code of Criminal Procedure and Government Code
to set forth provisions relating to the provision of legal services for
indigent persons accused of a crime.  The bill amends the Code of Criminal
Procedure to require the court to appoint counsel to an indigent defendant
in the county not later than 72 hours after the defendant's request for
appointment of counsel is received by the court or designated entity if the
county has fewer than 250,000 residents, or not later than 24 hours after
the defendant's request for appointment of counsel is received by the court
or designated entity if the county has 250,000 or more residents.  The bill
requires the court to appoint an attorney to represent a person accused of
a criminal offense whether or not formal charges have been filed with the
court (Art. 1.051). The bill also requires the person making the arrest to
take the person arrested before the magistrate not later than 24 hours
after making the arrest (Arts. 14.06 and 15.17).  The bill sets forth
provisions relating to the duties of the magistrate (Art. 15.17). 

The bill requires only the judges of the county courts, statutory county
courts, and district courts having jurisdiction over criminal cases in each
county to adopt and publish written procedures for timely and fairly
appointing counsel for indigent defendants in the county.  The bill
requires the court to appoint an attorney from a public appointment list,
and establishes the method of appointment using a fair system of rotation.
The bill authorizes the court or designee authorized to appoint counsel for
indigent defendants in the county to appoint the public defender to
represent the defendant in accordance with established guidelines.  The
bill requires an appointed attorney to make every reasonable effort to
contact the defendant not later than 24 hours after the attorney is
appointed and interview the defendant as soon as practicable.  An attorney
who fails to comply is subject to being replaced by other counsel and will
result in removal from consideration for appointment to represent indigent
defendants in the future.   

The bill authorizes two-thirds of the judges of the county courts,
statutory county courts, and district courts having jurisdiction over
criminal cases in a county to establish an alternative procedure for
appointing  counsel for indigent defendants in the county.  In that event,
the bill specifies guidelines for procedural requirements that are required
to be adopted and published.  These procedures are required to specify the
procedures used in the county to determine whether a defendant is indigent
so as to warrant the appointment of counsel.  The bill requires the
standards and procedures established to determine whether a defendant is
indigent to apply equally to all defendants whether in custody or released
on bail.  The appointing authority is authorized to adopt the standards
established by the Texas Equal Access to Justice Foundation or the federal
Legal Services Corporation for determining whether an indigent person is
eligible for civil legal assistance.  The bill requires that the procedures
adopted and published are to specify procedures that ensure that no
indigent defendant charged with a jailable misdemeanor or felony is
required to communicate with a prosecutor regarding the offense prior to
appointment of and an opportunity to confer with the defense counsel, or an
informed waiver of counsel by the defendant on the record in open court.
The bill provides that a person determined by the court to be indigent is
presumed indigent unless there occurs a material change in financial
circumstances of the person (Art. 26.04). 

The bill sets forth requirements relating to the appointment of a public
defender by the commissioner's court.   An appointed public defender is
authorized to employ and supervise attorneys, investigators, and other
personnel necessary to perform the duties of the public defender office.
The bill sets forth the term of appointment for the chief public defender,
provides for the removal of a public defender, and sets forth provisions
under which a public defender is authorized to refuse an appointment (Art.
26.044).   

The bill removes provisions providing for the reimbursement of reasonable
expenses for purposes of investigation and expert testimony for counsel,
other than an attorney with a public defender, appointed to represent a
defendant in a criminal hearing or habeas corpus hearing.  The bill
requires counsel to be paid a reasonable attorney's fee for the preparation
and presentation of an oral argument and for the preparation of a motion
for rehearing and petition for discretionary review.  The bill requires all
payments to counsel to be made in accordance with a schedule of fees.   The
bill sets forth the method of payment of counsel and requires the county
auditor or other designated person, not later than the 30th day after the
date an application for payment of a fee is received, to determine the
amount due and pay that amount to the appointed counsel.  The bill requires
that  counsel in a noncapital case, other than an attorney with a public
defender, appointed to represent a defendant be reimbursed for reasonable
expenses incurred with prior court approval in the manner provided for in
capital cases.  Counsel is authorized to be reimbursed for expenses
incurred without prior court approval in the manner provided for in capital
cases  (Art. 26.05). 

The bill amends the Government Code to require the county auditor or the
person designated by the commissioner's court to prepare and send a report
to the Texas Judicial Council's Office of Court Administration, not later
than September 30 of each year.  The bill sets forth provisions governing
the form and content of the report (Sec. 71.0351). 

The bill repeals provisions governing public defenders in specific counties
(SECTION 8). 

The bill sets forth provisions establishing the Texas Indigent Defense
Council (council), the composition of the council, the conduct of the
council, the powers and duties of the council, the Appointed Council
Assistance Program (program) within the council, and the powers and duties
of the program (Secs. 85.001, 85.002, 85.003, 85.004, 85.005, and 85.006). 

The bill amends the Code of Criminal Procedure to require the committee to
adopt standards for the qualification of attorneys to be appointed to
represent indigent defendants in capital felony cases in which the state is
seeking the death penalty.  The bill sets forth the standards for the
qualification of attorneys to be appointed in such cases (Art. 26.052). 

EFFECTIVE DATE

September 1, 2001.