Qualifications and appointment of counsel for indigent defendants in capital cases

79th Legislature
Author: Rep Terry Keel

79R2612 PEP-D
By: Keel
H.B. No. 268

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Sections 2(c) and (d), Article 11.071, Code of Criminal Procedure, are amended to read as follows:

(c) At the earliest practical time, but in no event later than 30 days, after the convicting court makes the findings required under Subsections (a) and (b), the convicting court shall appoint competent counsel that meets the requirements of Subsection
(d)(2), unless the applicant elects to proceed pro se or is represented by retained counsel. The convicting court may also appoint an attorney to assist an attorney appointed as lead counsel in the case. The assisting attorney is required to meet the requirements of Subsections (d)(2)(A)-(D) but is not required to meet the requirements of Subsection (d)(2)(E) or (F). On appointing counsel under this section, the convicting court shall immediately notify the court of criminal appeals of the appointment, including in the notice a copy of the judgment and the name, address, and telephone number of the appointed counsel.
(d)(1) The Task Force on Indigent Defense [court of criminal appeals] shall adopt standards [rules] for the appointment of attorneys as counsel under this section [and the convicting court may appoint an attorney as counsel under this section only if the appointment is approved by the court of criminal appeals in any manner provided by those rules].

(2) The standards must require that an attorney appointed as lead counsel under this section:

(A) be a member of the State Bar of Texas;
(B) exhibit proficiency and commitment to providing quality representation to defendants in death penalty cases;
(C) have participated in continuing legal education courses or other training relating to criminal defense in death penalty cases;
(D) not have been found by a federal or state court to have rendered ineffective assistance of counsel during the trial or appeal of any criminal case;
(E) have at least five years of experience in criminal trial or appellate litigation or habeas corpus practice; and
(F) have participated in the preparation of appellate briefs for the prosecution or defense, or in the drafting of appellate opinions as a staff attorney for an appellate court, in felony cases, including homicide cases and other cases involving an offense punishable as a capital felony or a felony of the first or second degree.

(3) The Task Force on Indigent Defense may maintain a list of attorneys qualified for appointment under this section and make that list available to a convicting court for the purpose of assisting that court with the appointment of qualified counsel under this section.

(4) The convicting court may not appoint an attorney as counsel under this section if the attorney represented the applicant at trial or on direct appeal, unless:

(A) the applicant and the attorney request the appointment on the record; and
(B) the court finds good cause to make the appointment.

SECTION 2. Subsection (d), Article 26.052, Code of Criminal Procedure, is amended to read as follows:
(d)(1) The committee shall adopt standards for the qualification of attorneys to be appointed to represent indigent defendants in capital cases in which the death penalty is sought.

(2) The standards must require that a trial [an] attorney appointed as lead counsel to a death penalty case:

(A) be a member of the State Bar of Texas;
(B) exhibit proficiency and commitment to providing quality representation to defendants in death penalty cases;
(C) have participated in continuing legal education courses or other training related to criminal defense in death penalty cases;
(D) have not been found by a federal or state court to have rendered ineffective assistance of counsel during the trial or appeal of any criminal case;
(E) have at least five years of experience in criminal trial or appellate litigation;
(F) [(D)] have tried felony cases to a verdict as lead prosecutor or lead defense counsel [a significant number of felony cases], including homicide trials and other trials for offenses punishable as second or first degree felonies or capital felonies; and
(G) [(E)] have previous [trial] experience as a member of the prosecution or defense trial counsel team in:

(i) jury selection in a capital case in which the death penalty is sought;
(ii) the direct examination or cross-examination [use] of [and challenges to] mental health or forensic expert witnesses; and
(iii) the presentation or cross-examination of [(ii) investigating and presenting] mitigating evidence at the penalty phase of a homicide [death penalty] trial[; and

[(F) have participated in continuing legal education courses or other training relating to criminal defense in death penalty cases].

(3) The standards must require that an attorney appointed as lead appellate counsel in the direct appeal of a death penalty case:

(A) be a member of the State Bar of Texas;
(B) exhibit proficiency and commitment to providing quality representation to defendants in death penalty cases;
(C) have participated in continuing legal education courses or other training related to criminal defense in death penalty cases;
(D) have not been found by a federal or state court to have rendered ineffective assistance of counsel during the trial or appeal of any criminal case;
(E) have at least five years of experience in criminal trial or appellate litigation; and
(F) have participated in the preparation of appellate briefs for the prosecution or defense, or in the drafting of appellate opinions as a staff attorney for an appellate court, in felony cases, including homicide cases and other cases involving an offense punishable as a capital felony or a felony of the first or second degree.

(4) The committee shall prominently post the standards in each district clerk's office in the region with a list of attorneys qualified for appointment.

(5) [(4)] Not later than the second anniversary of the date an attorney is placed on the list of attorneys qualified for appointment in death penalty cases and each year following the second anniversary, the attorney must present proof to the committee that the attorney has successfully completed the minimum continuing legal education requirements of the State Bar of Texas, including a course or other form of training relating to the defense of death penalty cases. The committee shall remove the attorney's name from the list of qualified attorneys if the attorney fails to provide the committee with proof of completion of the continuing legal education requirements.

SECTION 3. Section 71.060(c), Government Code, is amended to read as follows:

(c) Any qualification standards adopted by the Task Force on Indigent Defense under Subsection (a) that relate to the appointment of counsel in a death penalty case must be consistent with the standards specified under Section 2, Article 11.071, or Article 26.052(d), Code of Criminal Procedure, as appropriate. An attorney who is identified by the task force as not satisfying performance or qualification standards adopted by the task force under Subsection (a) may not accept an appointment in a capital case.

SECTION 4. The Task Force on Indigent Defense shall adopt standards described by Section 2(d), Article 11.071, Code of Criminal Procedure, as amended by this Act, not later than the 60th day after the effective date of this Act.

SECTION 5. A convicting court that appoints counsel under Section 2, Article 11.071, Code of Criminal Procedure, on or after the 75th day after the effective date of this Act shall appoint the counsel in conformity with this Act. Counsel appointed under Section 2, Article 11.071, Code of Criminal Procedure, before the 75th day after the effective date of this Act must be appointed in conformity with Section 2, Article 11.071, Code of Criminal Procedure, as that section existed immediately before the effective date of this Act, and the former law is continued in effect for that purpose.

SECTION 6. A local selection committee shall amend standards previously adopted by the committee to conform with the requirements of Subsection (d), Article 26.052, Code of Criminal Procedure, as amended by this Act, not later than the 75th day after the effective date of this Act. An attorney appointed to a death penalty case on or after the 75th day after the effective date of this Act must meet the standards adopted in conformity with the amended Subsection (d), Article 26.052. An attorney appointed to a death penalty case before the 75th day after the effective date of this Act is covered by the law in effect when the attorney was appointed, and the former law is continued in effect for that purpose.

SECTION 7. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2005.