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A BILL TO BE ENTITLED
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AN ACT
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relating to the establishment of the inmate legal services office |
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and to the appointment and compensation of certain legal counsel |
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for certain indigent inmates and other persons in secure |
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correctional facilities. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subtitle F, Title 2, Government Code, is amended |
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by adding Chapter 78A to read as follows: |
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CHAPTER 78A. INMATE LEGAL SERVICES |
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SUBCHAPTER A. GENERAL PROVISIONS |
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Sec. 78A.001. DEFINITIONS. In this chapter: |
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(1) "Board" means the inmate legal services board of |
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directors established under Subchapter B. |
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(2) "Office" means the inmate legal services office |
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established under Subchapter C. |
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SUBCHAPTER B. INMATE LEGAL SERVICES BOARD |
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Sec. 78A.051. ESTABLISHMENT OF BOARD; DUTIES. (a) The |
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inmate legal services board of directors is established. |
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(b) The board shall recommend to the court of criminal |
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appeals as provided by Section 78A.053 a director for the inmate |
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legal services office when a vacancy exists for the position of |
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director. |
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Sec. 78A.052. APPOINTMENT AND COMPOSITION OF BOARD. (a) |
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The board is composed of the following nine members to be appointed |
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by the president of the State Bar of Texas, with ratification by the |
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executive committee of the State Bar of Texas: |
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(1) five attorneys who are employed as executive |
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directors or chief public defenders of a public defender's office, |
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as defined by Article 26.044(a), Code of Criminal Procedure; and |
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(2) four criminal defense attorneys each of whom: |
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(A) practices in a county in which there is a |
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confinement facility operated by or under contract with the Texas |
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Department of Criminal Justice; and |
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(B) has experience representing indigent |
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defendants in this state. |
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(b) Each member of the board must be a member of the State |
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Bar of Texas and may not be employed as a prosecutor or a law |
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enforcement official. |
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(c) The board shall elect one member of the board to serve as |
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the presiding officer of the board. |
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(d) Board members serve two-year terms expiring February 1 |
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of each even-numbered year. |
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(e) The board meets at the call of the presiding officer of |
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the board. |
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Sec. 78A.053. APPOINTMENT OF DIRECTOR OF INMATE LEGAL |
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SERVICES OFFICE. (a) The board shall submit to the court of |
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criminal appeals, in order of the board's preference, a list of the |
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names of not more than five persons the board recommends that the |
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court consider in appointing the director of the inmate legal |
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services office when a vacancy exists for the position of director. |
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If the board finds that three or more persons under the board's |
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consideration are qualified to serve as the director, the board |
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must include at least three names in the list submitted under this |
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subsection. |
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(b) Each person recommended to the court of criminal appeals |
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by the board under Subsection (a): |
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(1) must be committed to providing quality |
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representation to indigent clients consistent with the principles |
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of a public defense delivery system as established by the American |
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Bar Association; |
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(2) may not have been found by a state or federal court |
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to have rendered ineffective assistance of counsel during the trial |
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or appeal of a criminal defense case; |
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(3) must be a member of the State Bar of Texas; |
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(4) must have practiced law for at least three years; |
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and |
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(5) must have substantial experience in the practice |
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of criminal law. |
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(c) When a vacancy for the position exists, the court of |
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criminal appeals shall appoint from the list of persons submitted |
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to the court under Subsection (a) the director of the inmate legal |
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services office. |
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(d) The board shall determine the director's compensation, |
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which must maintain parity with the compensation of the chief of the |
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special prosecution unit under Subchapter E, Chapter 41. |
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SUBCHAPTER C. INMATE LEGAL SERVICES OFFICE |
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Sec. 78A.101. ESTABLISHMENT. The inmate legal services |
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office is established and operates under the direction and |
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supervision of the director of the office. |
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Sec. 78A.102. DIRECTOR; STAFF. (a) The court of criminal |
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appeals shall appoint a director to direct and supervise the |
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operation of the office as provided by Section 78A.053. The |
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director serves a four-year term and continues to serve until a |
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successor has been appointed and qualified. The board may remove |
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the director only for good cause. The director may be reappointed |
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for a second or subsequent term. |
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(b) The director shall employ attorneys and employ or retain |
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licensed investigators and other personnel necessary to perform the |
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duties of the office. |
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(c) The director and any attorney employed by the office may |
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not: |
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(1) engage in the private practice of criminal law; or |
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(2) accept anything of value not authorized by law for |
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services rendered under this subchapter. |
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Sec. 78A.103. POWERS AND DUTIES. (a) The office may not |
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accept an appointment under Article 26.051, Code of Criminal |
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Procedure, or Section 841.005, Health and Safety Code, if: |
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(1) a conflict of interest exists that has not been |
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waived by the client; |
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(2) the office has insufficient resources to provide |
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adequate representation for the client; |
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(3) the office is incapable of providing |
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representation for the client in accordance with the rules of |
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professional conduct; |
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(4) the acceptance of the appointment would require |
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attorneys at the office to have a caseload that exceeds the maximum |
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allowable caseload established by the office; or |
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(5) other good cause is shown for not accepting the |
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appointment. |
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(b) On refusing to accept an appointment, the director shall |
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file with the court a written statement that identifies the reason |
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for the refusal. The court shall determine whether the director has |
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demonstrated adequate good cause for refusing the appointment and |
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shall include the statement with the papers in the case. |
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(c) A director may not be terminated, removed, or sanctioned |
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for refusing in good faith to accept an appointment under Article |
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26.051, Code of Criminal Procedure, or Section 841.005, Health and |
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Safety Code. |
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Sec. 78A.104. COMPENSATION OF OTHER APPOINTED ATTORNEYS. |
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If it is necessary that an attorney other than an attorney employed |
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by the office be appointed, that attorney shall be compensated as |
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provided by Article 26.051(h), Code of Criminal Procedure. |
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Sec. 78A.105. ACCESS TO CERTAIN FACILITIES, WITNESSES, AND |
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DOCUMENTS FOR INVESTIGATION. (a) Attorneys and investigators |
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employed or retained by the office shall be allowed access to a |
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facility operated by or under contract with the Texas Department of |
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Criminal Justice as necessary to: |
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(1) confer with a client of the office or witness to an |
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offense alleged to have been committed by a client of the office; |
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and |
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(2) inspect a location where an offense is alleged to |
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have been committed by a client of the office. |
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(b) The Texas Department of Criminal Justice and the special |
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prosecution unit established under Subchapter E, Chapter 41, shall |
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disclose to the office any documents necessary for the |
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representation of the office's clients. |
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SECTION 2. Articles 26.051(a), (d), (e), (g), and (h), Code |
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of Criminal Procedure, are amended to read as follows: |
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(a) In this article: |
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(1) ["Board" means the Texas Board of Criminal
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Justice.
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[(2)] "Correctional institutions division" means the |
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correctional institutions division of the Texas Department of |
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Criminal Justice. |
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(2) "Office" means the inmate legal services office |
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established under Subchapter C, Chapter 78A, Government Code. |
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(d) A court shall: |
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(1) notify the office [board] if the court [it] |
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determines that a defendant before the court is indigent and is an |
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inmate charged with an offense committed while in the custody of the |
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correctional institutions division or a correctional facility |
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authorized by Section 495.001, Government Code; and |
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(2) request that the office [board] provide legal |
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representation for the inmate. |
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(e) The office [board] shall provide legal representation |
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for inmates described by Subsection (d) [of this section]. [The
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board may employ attorneys, support staff, and any other personnel
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required to provide legal representation for those inmates. All
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personnel employed under this article are directly responsible to
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the board in the performance of their duties.] The office [board] |
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shall pay all fees and costs associated with providing legal |
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representation for those inmates. |
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(g) The court shall appoint an attorney other than an |
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attorney provided by the office [board] if the court determines for |
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any of the following reasons that a conflict of interest could arise |
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from the use of an attorney provided by the office [board] under |
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Subsection (e) [of this article]: |
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(1) the case involves more than one inmate and the |
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representation of more than one inmate could impair the attorney's |
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effectiveness; |
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(2) the case is appealed and the court is satisfied |
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that conflict of interest would prevent the presentation of a good |
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faith allegation of ineffective assistance of counsel by a trial |
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attorney provided by the office [board]; [or] |
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(3) any conflict of interest exists under the Texas |
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Disciplinary Rules of Professional Conduct of the State Bar of |
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Texas that precludes representation by an attorney appointed by the |
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office; or |
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(4) the office refuses to accept the appointment as |
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provided by Section 78A.103(a), Government Code [board]. |
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(h) When the court appoints an attorney other than an |
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attorney provided by the office [board]: |
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(1) except as otherwise provided by this article, the |
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inmate's legal defense is subject to Articles 1.051, 26.04, 26.05, |
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and 26.052, as applicable; and |
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(2) the county in which a facility of the correctional |
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institutions division or a correctional facility authorized by |
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Section 495.001, Government Code, is located shall pay from its |
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general fund the total costs of the aggregate amount allowed and |
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awarded by the court for attorney compensation and expenses under |
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Article 26.05 or 26.052, as applicable. |
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SECTION 3. Section 841.005, Health and Safety Code, is |
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amended to read as follows: |
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Sec. 841.005. INMATE LEGAL SERVICES OFFICE [OF STATE
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COUNSEL FOR OFFENDERS]. (a) Except as provided by Subsection (b), |
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the inmate legal services office established under Subchapter C, |
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Chapter 78A, Government Code, [Office of State Counsel for
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Offenders] shall represent an indigent person subject to a civil |
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commitment proceeding under this chapter. |
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(b) If for any reason the inmate legal services office |
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[Office of State Counsel for Offenders] is unable to represent an |
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indigent person described by Subsection (a) at a civil commitment |
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proceeding under this chapter, the court shall appoint other |
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counsel to represent the indigent person. |
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SECTION 4. (a) Not later than December 1, 2019, the |
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president of the State Bar of Texas shall appoint and the executive |
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committee of the State Bar of Texas shall ratify the members of the |
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inmate legal services board of directors as required by Section |
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78A.052, Government Code, as added by this Act. Notwithstanding |
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the terms of board member service provided by that section, the term |
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of an initial member of the board of directors expires February 1, |
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2022. |
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(b) Not later than January 1, 2020, the inmate legal |
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services board of directors shall recommend a director for the |
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inmate legal services office as required by Section 78A.053, |
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Government Code, as added by this Act. |
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SECTION 5. Article 26.051, Code of Criminal Procedure, and |
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Section 841.005, Health and Safety Code, as amended by this Act, |
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apply only to legal representation appointed under those provisions |
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on or after February 1, 2020. Legal representation appointed |
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before February 1, 2020, is governed by the law in effect |
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immediately before the effective date of this Act, and the former |
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law is continued in effect for that purpose. |
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SECTION 6. This Act takes effect September 1, 2019. |