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


Office of House Bill AnalysisC.S.H.B. 1745
By: Hinojosa
Criminal Jurisprudence
4/3/2001
Committee Report (Substituted)



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.  C.S.H.B.
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

C.S.H.B. 1745 amends the Code of Criminal Procedure, Government, and Family
codes 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  or the courts' designee to appoint
counsel to an indigent defendant in the county not later than the end of
the third working day after the date on which the court or the courts'
designee receives the defendant's request for appointment of counsel.  In a
county with a population of  250,000 or more, the court or the courts'
designee is required to appoint counsel as soon as possible, but not later
than the end of the first working day after the date on which the court or
the courts' designee receives the defendant's request for appointment of
counsel.  The bill requires the court or the courts' designee to appoint
counsel for an indigent defendant regardless of whether charges have been
filed against the defendant.  The bill authorizes a court or the courts'
designee without unnecessary delay to appoint new counsel to represent an
indigent defendant for whom counsel is appointed if the defendant is
subsequently charged in the case with an offense different from the offense
with which the defendant was initially charged and legal cause to appoint
new counsel is stated on the record (Art. 1.051). The bill also requires
the person making the arrest or the person having custody of the person
arrested to take the person arrested before the magistrate not later than
48 hours after the person is arrested (Arts. 14.06 and 15.17).  The bill
sets forth provisions relating to the duties of the magistrate.  The bill
requires a record to be made of the magistrate informing the person of the
person's right to request appointment of counsel; the magistrate asking the
person whether the person wants to request appointment of counsel; and
whether the person requested appointment of counsel (Art. 15.17). 

The bill requires only the judges of the county courts, statutory county
courts, and district courts trying criminal cases in each county to adopt
and publish written procedures for timely and fairly appointing counsel for
an indigent defendant in the county arrested for or charged with a
misdemeanor punishable by confinement or a felony.  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 an
indigent defendant in the county to appoint the public defender to
represent the defendant in accordance with established guidelines,
regardless of whether charges have been filed against the defendant.   The
bill requires that the procedures adopted and published are to specify
procedures that ensure that an indigent defendant charged with a
misdemeanor punishable by confinement or with a felony and who appears in
court without counsel has an opportunity to confer with appointed counsel
before the commencement of judicial proceedings.  The bill also requires
that procedures adopted specify appointments for defendants in capital
cases in which the death penalty is sought. 

The bill sets forth a county-wide alternative program for appointing
counsel for indigent defendants in criminal cases established by a formal
action in which two-thirds of the judges of the courts designated under
these provisions vote to establish the alternative program.  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 sets forth
procedures for the appointment of attorneys in misdemeanor, felony, and
death penalty cases.  The bill requires the standards and procedures
established to determine whether a defendant is indigent to apply equally
to all defendants, whether or not the defendant is in custody or has been
released on bail. In determining whether a defendant is indigent, the court
or the court's designee is authorized to consider the assets and the
defendant's ability to obtain a loan, among other considerations.  The bill
prohibits the judges of the courts establishing an alternative program,
without the consent of the commissioners court, from obligating the county
by contract or by the creation of new positions to cause an increase in
expenditure of county funds.  The bill authorizes a court or the court's
designee required to appoint an attorney to represent a defendant accused
of a felony to appoint an attorney from any county located in the court's
administrative judicial region. 

The bill requires an appointed attorney to make every reasonable effort to
contact the defendant not later than the end of the first working day after
the date on which the attorney is appointed and interview the defendant as
soon as practicable after the attorney is appointed.  The bill authorizes
the court to replace an attorney who violates these provisions.  The bill
authorizes a majority of the judges of the county courts and statutory
county courts or the district courts, as appropriate, trying criminal cases
in the county to remove from consideration for appointment an attorney who
intentionally or repeatedly violates these provisions.  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 provides that a defendant who is
determined by the court to be indigent is presumed indigent for the
remainder of the proceedings in the case unless there occurs a material
change in financial circumstances of the defendant (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, licensed investigators, and
other personnel necessary to perform the duties of the public defender
office.  The bill sets forth the terms 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 prohibits payments
from being made until the form for itemizing the services performed is
submitted to the judge presiding over the proceedings and the judge
approves the payment.  The bill sets forth procedures for the submittal of
the request for payment, approval or disapproval by the judge, the appeal
by a requesting attorney, and a review of the appeal by the presiding judge
of the administrative judicial region.  The bill requires the commissioners
court to pay to the appointed counsel the amount approved by the presiding
judge, not later than the 45th day after the date an application for
payment of a fee is submitted.  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, including
expenses for investigation and for mental health and other experts,
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 commissioners court to prepare and send a report
to the Office of Court Administration of the Texas Judicial System, not
later than January 1 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 14). 

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). 

The bill requires the comptroller of public accounts to deposit 13.98
percent of money received in the fair defense account (Art. 102.075). 

The bill amends the Family Code to require the juvenile board of each
county to adopt a counsel appointment  plan that outlines attorney
qualifications, procedures for appointment, and procedures for the
determination of an indigent child (Sec. 51.101). 

The bill amends the Government Code to establish the Task Force on Indigent
Defense (task force) and sets forth provisions relating to the composition,
member appointments, vacancies, meetings, compensation, budget, fair
defense account, acceptance of gifts, grants, and other funds, policies and
standards, task force reports, and technical support of the task force.
The bill requires the task force to develop a plan that establishes
statewide requirements for counties to follow when reporting indigent
defense information.  The bill authorizes the task force to revise the plan
as necessary to improve monitoring of indigent defense policies, standards,
and procedures.  The bill requires the task force to distribute funds,
including grants, to counties providing indigent defense services, and
requires the task force to develop policies to ensure that those funds are
distributed in a fair manner (Secs. 71.051-71.062).  

EFFECTIVE DATE

September 1, 2001.

COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B. 1745 modifies the original to also authorize the court's designee
to appoint counsel to an indigent defendant in the county. The substitute
modifies the original to require the court or the court's designee to
appoint counsel to an indigent defendant not later than the end of the
third working day, rather than 72 hours, after the defendant's request for
appointment of counsel is received by the court or designated entity. The
substitute also modifies the original to provide that in a county of
250,000 or more residents the counsel must be appointed by the end of the
first working day, rather than 24 hours, after the defendant's request for
appointment of counsel is received by the court or designated entity (Art.
1.051).  The substitute modifies the original to require the person making
the arrest to take the person arrested before the magistrate not later than
48 hours after making the arrest, rather than not later than 24 hours
(Arts. 14.06 and 15.17).  The substitute sets forth additional provisions
relating to the duties of the magistrate in relation to a defendant who
does not speak English or is deaf (Art. 15.17). 

The substitute requires the judges of the county courts, statutory county
courts, and district courts trying criminal cases in each county to adopt
and publish written procedures for timely and fairly appointing counsel for
indigent defendants in the county arrested for or charged with a
misdemeanor punishable by  confinement or a felony.  The substitute
modifies the original to require an appointed attorney to make every
reasonable effort to contact the defendant not later than the end of the
first working day, rather than 24 hours.  The substitute sets forth
requirements of a public appointment list (list) from which an attorney is
appointed.  The substitute requires the court to appoint attorneys from
among the next five names of the appointment list, rather than among the
next four attorney names on the list. 

The substitute 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 program for
appointing counsel for indigent defendants in the county by voting.
Whereas, the original did not specify the judges to vote for the
establishment of an alternative program.  The substitute removes provisions
authorizing an appointing authority 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 (Art. 26.04). 

The substitute sets forth additional requirements relating to the
appointment of a public defender by the commissioner's court in death
penalty cases.  The substitute provides that a public defender is entitled
to receive funds for personal costs, as well as expenses incurred in
operating as a public defender (Art. 26.044).   

The substitute includes expenses for investigation and for mental health
and other experts that are required to be reimbursed for reasonable
expenses incurred with prior court approval in the manner provided for in
capital cases.  The substitute modifies the original to set forth the
method of payment of counsel and prohibits payments from being made until
the form for itemizing the services performed is submitted to the judge
presiding over the proceedings and the judge approves the payment.  The
substitute sets forth procedures for the submittal of the request for
payment, approval or disapproval by the judge, the appeal by a requesting
attorney, and a review of the appeal by the presiding judge of the
administrative judicial region.  The substitute requires the commissioners
court to pay to the appointed counsel the amount approved by the presiding
judge, not later than the 45th day after the date an application for
payment of a fee is submitted (Art. 26.05). 

The substitute modifies the original to amend the Government Code and to
require the county auditor or the person designated by the commissioners
court to prepare and send a report to the Office of Court Administration of
the Texas Judicial System, rather than to the Texas Judicial Council, not
later than January 1 of each year and on a monthly, quarterly, or annual
basis with respect to legal services provided in the county to indigent
defendants during each fiscal year.  The original required the report to be
sent by September 30 of each year.  The substitute removes a provision
requiring counties to include additional information in the report on each
criminal case in which county funds were expended (Sec. 71.0351). 

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

The substitute requires the comptroller of public accounts to deposit 13.98
percent of money received in the fair defense account (Art. 102.075). 

The substitute amends the Family Code to require the juvenile board of each
county to adopt a counsel appointment  plan that outlines attorney
qualifications, procedures for appointment, and procedures for the
determination of an indigent child (Sec. 51.101). 

The substitute amends the Government Code to establish the Task Force on
Indigent Defense (task force) and sets forth provisions relating to the
composition, member appointments, vacancies, meetings, compensation,
budget, fair defense account, acceptance of gifts, grants, and other funds,
policies and standards, task force reports, and technical support of the
task force.  The bill allows the task force to create reporting
requirements as it sees fit to monitor the provision of indigent defense.
The task force is required to develop policies to ensure funds are
distributed to counties in a fair manner (Secs. 71.05171.062). 

The substitute removes 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. 85.001-85.006).