Bill Text: TX SB1682 | 2011-2012 | 82nd Legislature | Comm Sub
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relating to the creation of managed assigned counsel programs.
Spectrum: Bipartisan Bill
Status: (Engrossed - Dead) 2011-05-21 - Committee report sent to Calendars [SB1682 Detail]
Download: Texas-2011-SB1682-Comm_Sub.html
Bill Title: Relating to the creation of managed assigned counsel programs.
Spectrum: Bipartisan Bill
Status: (Engrossed - Dead) 2011-05-21 - Committee report sent to Calendars [SB1682 Detail]
Download: Texas-2011-SB1682-Comm_Sub.html
By: Ellis, Duncan | S.B. No. 1682 | |
(Alonzo, Gallego, Hartnett, Aliseda) | ||
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relating to the creation of managed assigned counsel programs. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Article 26.04, Code of Criminal Procedure, is | ||
amended by amending Subsection (a) and adding Subsection (f-1) to | ||
read as follows: | ||
(a) The judges of the county courts, statutory county | ||
courts, and district courts trying criminal cases in each county, | ||
by local rule, shall adopt and publish written countywide | ||
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 procedures must be | ||
consistent with this article and Articles 1.051, 15.17, 26.05, and | ||
26.052. A court shall appoint an attorney from a public appointment | ||
list using a system of rotation, unless the court appoints an | ||
attorney under Subsection (f), (f-1), (h), or (i). The court shall | ||
appoint attorneys from among the next five names on the appointment | ||
list in the order in which the attorneys' names appear on the list, | ||
unless the court makes a finding of good cause on the record for | ||
appointing an attorney out of order. An attorney who is not | ||
appointed in the order in which the attorney's name appears on the | ||
list shall remain next in order on the list. | ||
(f-1) In a county in which a managed assigned counsel | ||
program is operated in accordance with Article 26.047, the managed | ||
assigned counsel program may appoint counsel to represent the | ||
defendant in accordance with guidelines established for the | ||
program. | ||
SECTION 2. Chapter 26, Code of Criminal Procedure, is | ||
amended by adding Article 26.047 to read as follows: | ||
Art. 26.047. MANAGED ASSIGNED COUNSEL PROGRAM. (a) In | ||
this article: | ||
(1) "Governmental entity" has the meaning assigned by | ||
Article 26.044. | ||
(2) "Managed assigned counsel program" or "program" | ||
means a program operated with public funds: | ||
(A) by a governmental entity, nonprofit | ||
corporation, or bar association under a written agreement with a | ||
governmental entity, other than an individual judge or court; and | ||
(B) for the purpose of appointing counsel under | ||
Article 26.04 or Section 51.10, Family Code. | ||
(b) The commissioners court of any county, on written | ||
approval of a judge of the juvenile court of a county or a county | ||
court, statutory county court, or district court trying criminal | ||
cases in the county, may appoint a governmental entity, nonprofit | ||
corporation, or bar association to operate a managed assigned | ||
counsel program. The commissioners courts of two or more counties | ||
may enter into a written agreement to jointly appoint and fund a | ||
governmental entity, nonprofit corporation, or bar association to | ||
operate a managed assigned counsel program. In appointing an | ||
entity to operate a managed assigned counsel program under this | ||
subsection, the commissioners court shall specify or the | ||
commissioners courts shall jointly specify: | ||
(1) the types of cases in which the program may appoint | ||
counsel under Article 26.04 or Section 51.10, Family Code, and the | ||
courts in which the counsel appointed by the program may be required | ||
to appear; and | ||
(2) the term of any agreement establishing a program | ||
and how the agreement may be terminated or renewed. | ||
(c) The commissioners court or commissioners courts shall | ||
require a written plan of operation from an entity operating a | ||
program under this article. The plan of operation must include: | ||
(1) a budget for the program, including salaries; | ||
(2) a description of each personnel position, | ||
including the program's director; | ||
(3) the maximum allowable caseload for each attorney | ||
appointed by the program; | ||
(4) provisions for training personnel of the program | ||
and attorneys appointed under the program; | ||
(5) a description of anticipated overhead costs for | ||
the program; | ||
(6) a policy regarding licensed investigators and | ||
expert witnesses used by attorneys appointed under the program; | ||
(7) a policy to ensure that appointments are | ||
reasonably and impartially allocated among qualified attorneys; | ||
and | ||
(8) a policy to ensure that an attorney appointed | ||
under the program does not accept appointment in a case that | ||
involves a conflict of interest for the attorney that has not been | ||
waived by all affected clients. | ||
(d) A program under this article must have a director. | ||
Unless the program uses a review committee appointed under | ||
Subsection (e), a program under this article must be directed by a | ||
person who: | ||
(1) is a member of the State Bar of Texas; | ||
(2) has practiced law for at least three years; and | ||
(3) has substantial experience in the practice of | ||
criminal law. | ||
(e) The governmental entity, nonprofit corporation, or bar | ||
association appointed under Subsection (b) may appoint a review | ||
committee of three or more individuals to appoint attorneys to the | ||
program's public appointment list described by Subsection (f). | ||
Each member of the committee: | ||
(1) must meet the requirements described by Subsection | ||
(d); | ||
(2) may not be employed as a prosecutor; and | ||
(3) may not be included on or apply for inclusion on | ||
the public appointment list described by Subsection (f). | ||
(f) The program's public appointment list from which an | ||
attorney is appointed must contain the names of qualified | ||
attorneys, each of whom: | ||
(1) applies to be included on the list; | ||
(2) meets any applicable requirements specified by the | ||
procedure for appointing counsel adopted under Article 26.04(a) and | ||
the Task Force on Indigent Defense; and | ||
(3) is approved by the program director or review | ||
committee, as applicable. | ||
(g) A court may replace an attorney appointed by the program | ||
for the same reasons and in the same manner described by Article | ||
26.04(k). | ||
(h) A managed assigned counsel program is entitled to | ||
receive funds for personnel costs and expenses incurred in amounts | ||
fixed by the commissioners court and paid out of the appropriate | ||
county fund, or jointly fixed by the commissioners courts and | ||
proportionately paid out of each appropriate county fund if the | ||
program serves more than one county. | ||
(i) A managed assigned counsel program may employ personnel | ||
and enter into contracts necessary to perform the program's duties | ||
as specified by the commissioners court or commissioners courts | ||
under this article. | ||
SECTION 3. Subsection (c), Article 26.05, Code of Criminal | ||
Procedure, is amended to read as follows: | ||
(c) Each fee schedule adopted shall state reasonable fixed | ||
rates or minimum and maximum hourly rates, taking into | ||
consideration reasonable and necessary overhead costs and the | ||
availability of qualified attorneys willing to accept the stated | ||
rates, and shall provide a form for the appointed counsel to itemize | ||
the types of services performed. No payment shall be made under | ||
this article until the form for itemizing the services performed is | ||
submitted to the judge presiding over the proceedings or, if the | ||
county operates a managed assigned counsel program under Article | ||
26.047, the director of the program, and the judge or director, as | ||
applicable, approves the payment. If the judge or director | ||
disapproves the requested amount of payment, the judge or director | ||
shall make written findings stating the amount of payment that the | ||
judge or director approves and each reason for approving an amount | ||
different from the requested amount. An attorney whose request for | ||
payment is disapproved or is not otherwise acted on by the 60th day | ||
after the date the request for payment is submitted may appeal the | ||
disapproval or failure to act by filing a motion with the presiding | ||
judge of the administrative judicial region. On the filing of a | ||
motion, the presiding judge of the administrative judicial region | ||
shall review the disapproval of payment or failure to act and | ||
determine the appropriate amount of payment. In reviewing the | ||
disapproval or failure to act, the presiding judge of the | ||
administrative judicial region may conduct a hearing. Not later | ||
than the 45th day after the date an application for payment of a fee | ||
is submitted under this article, the commissioners court shall pay | ||
to the appointed counsel the amount that is approved by the | ||
presiding judge of the administrative judicial region and that is | ||
in accordance with the fee schedule for that county. | ||
SECTION 4. Section 71.001, Government Code, is amended by | ||
adding Subdivision (8-a) to read as follows: | ||
(8-a) "Managed assigned counsel program" has the | ||
meaning assigned by Article 26.047, Code of Criminal Procedure. | ||
SECTION 5. Subsection (a), Section 71.060, Government Code, | ||
is amended to read as follows: | ||
(a) The Task Force on Indigent Defense shall develop | ||
policies and standards for providing legal representation and other | ||
defense services to indigent defendants at trial, on appeal, and in | ||
postconviction proceedings. The policies and standards may | ||
include: | ||
(1) performance standards for counsel appointed to | ||
represent indigent defendants; | ||
(2) qualification standards under which attorneys may | ||
qualify for appointment to represent indigent defendants, | ||
including: | ||
(A) qualifications commensurate with the | ||
seriousness of the nature of the proceeding; | ||
(B) qualifications appropriate for | ||
representation of mentally ill defendants and noncitizen | ||
defendants; | ||
(C) successful completion of relevant continuing | ||
legal education programs approved by the council; and | ||
(D) testing and certification standards; | ||
(3) standards for ensuring appropriate appointed | ||
caseloads for counsel appointed to represent indigent defendants; | ||
(4) standards for determining whether a person accused | ||
of a crime or juvenile offense is indigent; | ||
(5) policies and standards governing the organization | ||
and operation of an assigned counsel program; | ||
(6) policies and standards governing the organization | ||
and operation of a public defender consistent with recognized | ||
national policies and standards; | ||
(7) standards for providing indigent defense services | ||
under a contract defender program consistent with recognized | ||
national policies and standards; | ||
(8) standards governing the reasonable compensation | ||
of counsel appointed to represent indigent defendants; | ||
(9) standards governing the availability and | ||
reasonable compensation of providers of indigent defense support | ||
services for counsel appointed to represent indigent defendants; | ||
(10) standards governing the operation of a legal | ||
clinic or program that provides legal services to indigent | ||
defendants and is sponsored by a law school approved by the supreme | ||
court; | ||
(11) policies and standards governing the appointment | ||
of attorneys to represent children in proceedings under Title 3, | ||
Family Code; [ |
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(12) policies and standards governing the | ||
organization and operation of a managed assigned counsel program | ||
consistent with nationally recognized policies and standards; and | ||
(13) other policies and standards for providing | ||
indigent defense services as determined by the task force to be | ||
appropriate. | ||
SECTION 6. This Act takes effect September 1, 2011. |