HB4915 - Relating to legal representation of indigent persons in this state and to proceedings before a magistrate including the appointment of counsel for an indigent defendant.

  89R26572 EAS-D     By: Moody H.B. No. 4915     Substitute the following for H.B. No. 4915:     By:  Moody C.S.H.B. No. 4915       A BILL TO BE ENTITLED   AN ACT   relating to legal representation of indigent persons in this state   and to proceedings before a magistrate including the appointment of   counsel for an indigent defendant.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Article 11.074, Code of Criminal Procedure, is   amended by amending Subsection (b) and adding Subsection (b-1) to   read as follows:          (b)  If at any time the state represents to the convicting   court that an eligible indigent defendant under Article 1.051 has   under a writ of habeas corpus a potentially meritorious claim for   relief from a judgment described by Subsection (a) [ who was   sentenced or had a sentence suspended is not guilty, is guilty of   only a lesser offense, or was convicted or sentenced under a law   that has been found unconstitutional by the court of criminal   appeals or the United States Supreme Court ], the court shall   appoint an attorney to investigate the claim and represent the   indigent defendant for purposes of filing an application for a writ   of habeas corpus, if an application has not been filed, or to   otherwise represent the indigent defendant in a proceeding based on   the application for the writ.           (b-1)     For purposes of Subsection (b), a potentially   meritorious claim is any claim the court determines is likely to   provide relief, including a claim that the defendant:                 (1)  is or may be actually innocent of the offense;                 (2)  is or may be guilty of only a lesser offense;                 (3)     was or may have been convicted or sentenced under a   law that has been found unconstitutional by the court of criminal   appeals or the United States Supreme Court; or                 (4)     was or may have been convicted or sentenced in   violation of the constitution of this state or the United States.          SECTION 2.  Articles 15.17(a) and (f), Code of Criminal   Procedure, are amended to read as follows:          (a)  (1)   In each case enumerated in this Code, the person   making the arrest or the person having custody of the person   arrested shall without unnecessary delay, but not later than 48   hours after the person is arrested, take the person arrested or have   the person [ him ] taken before some magistrate of the county where   the person  [ accused ] was arrested or, to provide more expeditiously   to the person arrested the warnings described by this article,   before a magistrate in any other county of this state. The arrested   person may be taken before the magistrate in person or the image and   sound of the arrested person may be presented to the magistrate by   means of a videoconference. For purposes of this subsection,   "videoconference" means a two-way electronic communication of   image and sound between the arrested person and the magistrate and   includes secure Internet videoconferencing.                 (2)   The magistrate shall inform in clear language the   person arrested, either in person or through a videoconference, of :                       (A)   the accusation against the person [ him ] and   of any affidavit filed with the accusation;                       (B)  the person's [ therewith, of his ] right to   retain counsel ;                       (C)  the person's  [ , of his ] right to remain   silent and to not make a statement;                       (D)     the fact that any statement the person makes   may be used against the person;                       (E)  the person's  [ , of his ] right to have an   attorney present during any interview with peace officers or   attorneys representing the state ;                       (F)  the person's  [ , of his ] right to terminate   the interview at any time ;                       (G)  the person's  [ , and of his ] right to have an   examining trial ;                       (H)   [ . The magistrate shall also inform the   person arrested of ] the person's right to request the appointment   of counsel if the person cannot afford counsel ; and                       (I)   [ . The magistrate shall inform the person   arrested of ] the procedures for requesting appointment of counsel.                 (3)   If applicable, the magistrate shall inform the   person that the person may file the affidavit described by Article   17.028(f).                 (4)   If the person does not speak and understand the   English language or is deaf, the magistrate shall inform the person   in a manner consistent with Articles 38.30 and 38.31, as   appropriate.                 (5)     If the proceeding is conducted through a   videoconference, the magistrate shall ensure that the arrested   person is able to connect to and understand the image and sound of   the videoconference.                 (6)     If the magistrate has reasonable cause to believe   that the arrested person has a mental illness or is a person with an   intellectual disability, the magistrate shall follow the   procedures under Article 16.22.                 (7)     If the magistrate is unable to ensure that the   arrested person is able to understand and participate in the   proceeding, the magistrate shall:                       (A)     if the magistrate has appointing authority,   appoint counsel for the person; or                       (B)     if the magistrate does not have appointing   authority, notify the appointing authority of the person's   inability to understand and participate in the proceeding.                 (8)   The magistrate shall ensure that reasonable   assistance in completing the necessary forms for requesting   appointment of counsel is provided to the arrested person at the   same time the person is informed of the person's rights under this   subsection .                 (9)   If the [ person ] arrested person is indigent and   requests appointment of counsel and if the magistrate is authorized   under Article 26.04 to appoint counsel for indigent defendants in   the county, the magistrate shall appoint counsel in accordance with   Article 1.051. If the magistrate is not authorized to appoint   counsel, the magistrate shall without unnecessary delay, but not   later than 24 hours after the [ person ] arrested person requests   appointment of counsel, transmit, or cause to be transmitted to the   court or to the courts' designee authorized under Article 26.04 to   appoint counsel in the county, the necessary forms for requesting   and ruling on the appointment of counsel. [ The magistrate shall   also inform the person arrested that he is not required to make a   statement and that any statement made by him may be used against   him. ]                 (10)   The magistrate shall allow the [ person ] arrested   person reasonable time and opportunity to consult counsel and   shall, after determining whether the person is currently on bail   for a separate criminal offense and whether the bail decision is   subject to Article 17.027, admit the person [ arrested ] to bail if   allowed by law.                 (11)   A record of the communication between the   arrested person and the magistrate shall be made. [ The record shall   be preserved until the earlier of the following dates:                [ (1)  the date on which the pretrial hearing ends; or                [ (2)     the 91st day after the date on which the record is   made if the person is charged with a misdemeanor or the 120th day   after the date on which the record is made if the person is charged   with a felony. For purposes of this subsection, "videoconference"   means a two-way electronic communication of image and sound between   the arrested person and the magistrate and includes secure Internet   videoconferencing. ]          (f)  A record required under Subsection (a) or (e) may   consist of written forms, electronic recordings, or other   documentation as authorized by procedures adopted in the county   under Article 26.04(a). The record must be retained for at least   two years after final judgment is entered in the case or the   proceedings are otherwise terminated. The counsel for the defendant   may obtain a copy of the record on payment of a reasonable amount to   cover the costs of reproduction or, if the defendant is indigent,   the court shall provide a copy to the defendant without charging a   cost for the copy.          SECTION 3.  Article 26.04, Code of Criminal Procedure, is   amended by adding Subsection (i-1) to read as follows:           (i-1)     Notwithstanding Subsection (j)(2) or any other law,   and if funds are appropriated by a county for this purpose, an   attorney may be appointed under this article to represent an   indigent person for the sole purpose of providing counsel in   relation to that person's appearance before a magistrate as   required by Article 14.06(a), 15.17(a), or 15.18(a). The attorney   may represent the person in subsequent proceedings of that case,   only if appointed for that purpose under the other provisions of   this article.          SECTION 4.  Article 26.044, Code of Criminal Procedure, is   amended by adding Subsection (i-1) and amending Subsection (l) to   read as follows:           (i-1)     Notwithstanding Subsection (i)(1), an attorney   engaged in the private practice of criminal law may be employed by a   public defender's office on a part-time basis for the sole purpose   of providing counsel in relation to an indigent person's appearance   before a magistrate as required by Article 14.06(a), 15.17(a), or   15.18(a).          (l)  A public defender's office may investigate the   financial condition of any person the public defender's office is   appointed to represent. [ The public defender's office shall report   the results of the investigation to the appointing judge. The judge   may hold a hearing to determine if the person is indigent and   entitled to representation under this article. ]          SECTION 5.  Article 26.047(a)(2), Code of Criminal   Procedure, is amended to read as follows:                (2)  "Managed assigned counsel program" or "program"   means a program to perform delegated judicial functions using   public funds that is  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 of this code or Section 51.10, Family Code ;         &#x [Text truncated for display. Full text available on Congress.gov.]