HB2647 - Relating to the establishment of the inmate legal services office and to the appointment and compensation of certain legal counsel for certain indigent inmates and other persons in secure correctional facilities.

  89R11387 MCF-D     By: Dutton H.B. No. 2647       A BILL TO BE ENTITLED   AN ACT   relating to the establishment of the inmate legal services office   and to the appointment and compensation of certain legal counsel   for certain indigent inmates and other persons in secure   correctional facilities.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Subtitle F, Title 2, Government Code, is amended   by adding Chapter 78A to read as follows:   CHAPTER 78A.   INMATE LEGAL SERVICES   SUBCHAPTER A.   GENERAL PROVISIONS           Sec. 78A.001.  DEFINITIONS. In this chapter:                 (1)     "Board" means the inmate legal services board of   directors established under Subchapter B.                 (2)     "Office" means the inmate legal services office   established under Subchapter C.   SUBCHAPTER B.   INMATE LEGAL SERVICES BOARD           Sec.   78A.051.     ESTABLISHMENT OF BOARD; DUTIES. (a)   The   inmate legal services board of directors is established.   The   provision of inmate legal services under this chapter is governed   by the board.           (b)     The board shall hire a director for the inmate legal   services office as provided by Section 78A.053 when a vacancy   exists for the position of director.           Sec.   78A.052.     APPOINTMENT AND COMPOSITION OF BOARD. (a)     The board is composed of the following nine members to be appointed   by the president of the State Bar of Texas, with ratification by the   executive committee of the State Bar of Texas:                 (1)     five attorneys who are employed as executive   directors or chief public defenders of a public defender's office,   as defined by Article 26.044, Code of Criminal Procedure; and                 (2)  four criminal defense attorneys each of whom:                       (A)     practices in a county in which there is a   confinement facility operated by or under contract with the Texas   Department of Criminal Justice; and                       (B)     has experience representing indigent   defendants in this state.           (b)     Each member of the board must be a member of the State   Bar of Texas and may not be employed as or otherwise performing the   functions of a prosecutor or a law enforcement official.           (c)     The board shall elect one member of the board to serve as   the presiding officer of the board.           (d)     Board members serve two-year terms expiring February 1   of each even-numbered year.           (e)     The board meets at least annually at the call of the   presiding officer of the board.           Sec.   78A.053.     APPOINTMENT OF DIRECTOR OF INMATE LEGAL   SERVICES OFFICE.   (a)   The board, by a majority vote, shall hire a   director of the inmate legal services office when a vacancy exists   for the position of director.           (b)  A person hired by the board under Subsection (a):                 (1)     must be committed to providing quality   representation to indigent clients consistent with the principles   of a public defense delivery system as established by the American   Bar Association;                 (2)     may not have been found by a state or federal court   to have rendered ineffective assistance of counsel during the trial   or appeal of a criminal defense case;                 (3)  must be a member of the State Bar of Texas;                 (4)     must have practiced law for at least three years;   and                   (5)     must have substantial experience in the practice   of criminal law.           (c)     The board shall determine the director's compensation,   which must maintain parity with the compensation of the chief of the   special prosecution unit under Subchapter E, Chapter 41.   SUBCHAPTER C.   INMATE LEGAL SERVICES OFFICE           Sec.   78A.101.     ESTABLISHMENT.   The inmate legal services   office is established and operates under the direction and   supervision of the director of the office.           Sec.   78A.102.     DIRECTOR; STAFF.   (a)   The board shall hire a   director to direct and supervise the operation of the office as   provided by Section 78A.053.   The director serves a four-year term   and continues to serve until a successor has been hired and   qualified. The board may remove the director only for good cause.     The director may be retained or rehired for a second or subsequent   term.           (b)     The director shall employ attorneys and employ or retain   licensed investigators and other personnel necessary to perform the   duties and accomplish the purposes of the office.           (c)     The director and any attorney employed by the office may   not:                 (1)  engage in the private practice of criminal law; or                 (2)     accept anything of value not authorized by law for   services rendered under this subchapter.           (d)     The board shall determine the compensation of office   employees, which must maintain parity with the compensation of   employees of the special prosecution unit under Subchapter E,   Chapter 41.           Sec.   78A.103.     POWERS AND DUTIES.   (a)   The office may not   accept an appointment under Article 26.051, Code of Criminal   Procedure, or Section 841.005, Health and Safety Code, if:                 (1)     a conflict of interest exists that has not been   waived by the client;                 (2)     the office has insufficient resources to provide   adequate representation for the client;                 (3)     the office is incapable of providing   representation for the client in accordance with the rules of   professional conduct;                 (4)     the acceptance of the appointment would require   attorneys at the office to have a caseload that exceeds the maximum   allowable caseload established by the office; or                 (5)     other good cause is shown for not accepting the   appointment.           (b)     On refusing to accept an appointment, the director shall   file with the court a written statement that identifies the reason   for the refusal.   The court shall determine whether the director has   demonstrated adequate good cause for refusing the appointment and   shall include the statement with the papers in the case.           (c)     A director may not be terminated, removed, or sanctioned   for refusing in good faith to accept an appointment under Article   26.051, Code of Criminal Procedure, or Section 841.005, Health and   Safety Code.           Sec.   78A.104.     COMPENSATION OF OTHER APPOINTED ATTORNEYS.     If it is necessary that an attorney other than an attorney employed   by the office be appointed, that attorney shall be compensated as   provided by Article 26.051(h), Code of Criminal Procedure.           Sec.   78A.105.     ACCESS TO CERTAIN FACILITIES, WITNESSES, AND   DOCUMENTS FOR INVESTIGATION.   Attorneys and investigators employed   or retained by the office shall be allowed access to a facility   operated by or under contract with the Texas Department of Criminal   Justice as necessary to:                 (1)     confer with a client of the office or witness to an   offense alleged to have been committed by a client of the office; or                 (2)  comply with a court's order.          SECTION 2.  Articles 26.051(a), (d), (e), (g), and (h), Code   of Criminal Procedure, are amended to read as follows:          (a)  In this article:                (1)  [ "Board" means the Texas Board of Criminal   Justice.                [ (2) ]  "Correctional institutions division" means the   correctional institutions division of the Texas Department of   Criminal Justice.                 (2)     "Office" means the inmate legal services office   established under Subchapter C, Chapter 78A, Government Code.          (d)  A court shall:                (1)  notify the office [ board ] if the court [ it ]   determines that a defendant before the court is indigent and is an   inmate charged with an offense committed while in the custody of the   correctional institutions division or a correctional facility   authorized by Section 495.001, Government Code; and                (2)  request that the office [ board ] provide legal   representation for the inmate.          (e)  The office [ board ] shall provide legal representation   for inmates described by Subsection (d) [ of this section ]. [ The   board may employ attorneys, support staff, and any other personnel   required to provide legal representation for those inmates. All   personnel employed under this article are directly responsible to   the board in the performance of their duties. ] The office [ board ]   shall pay all fees and costs associated with providing legal   representation for those inmates.          (g)  The court shall appoint an attorney other than an   attorney provided by the office [ board ] if the court determines for   any of the following reasons that a conflict of interest could arise   from the use of an attorney provided by the office [ board ] under   Subsection (e) [ of this article ]:                (1)  the case involves more than one inmate and the   representation of more than one inmate could impair the attorney's   effectiveness;                (2)  the case is appealed and the court is satisfied   that conflict of interest would prevent the presentation of a good   faith allegation of ineffective assistance of counsel by a trial   attorney provided by the office [ board ]; [ or ]                (3)  any conflict of interest exists under the Texas   Disciplinary Rules of Professional Conduct of the State Bar of   Texas that precludes representation by an attorney appointed by the   office; or                 (4)     the office refuses to accept the appointment as   provided by Section 78A.103(a), Government Code [ board ].          (h)  When the court appoints an attorney other than an   attorney provided by the office [ board ]:                (1)  except as otherwise provided by this article, the   inmate's legal defense is subject to Articles 1.051, 26.04, 26.05,   and 26.052, as applicable; and                (2)  the county in which a facility of the correctional   institutions division or a correctional faci [Text truncated for display. 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