|
|
|
|
|
|
|
|
|
| CODE OF CRIMINAL PROCEDURE CHAPTER 26. ARRAIGNMENT Art. 26.01. ARRAIGNMENT. In all felony cases, after indictment, and all misdemeanor cases punishable by imprisonment, there shall be an arraignment. Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966. Art. 26.011. WAIVER OF ARRAIGNMENT. An attorney representing a defendant may present a waiver of arraignment, and the clerk of the court may not require the presence of the defendant as a condition of accepting the waiver. Added by Acts 2001, 77th Leg., ch. 818, Sec. 1, eff. June 14, 2001. Art. 26.02. PURPOSE OF ARRAIGNMENT. An arraignment takes place for the purpose of fixing his identity and hearing his plea. Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966. Art. 26.03. TIME OF ARRAIGNMENT. No arraignment shall take place until the expiration of at least two entire days after the day on which a copy of the indictment was served on the defendant, unless the right to such copy or to such delay be waived, or unless the defendant is on bail. Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966. Art. 26.04. PROCEDURES FOR APPOINTING COUNSEL. (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), (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. (b) Procedures adopted under Subsection (a) shall: (1) authorize only the judges of the county courts, statutory county courts, and district courts trying criminal cases in the county, or the judges' designee, to appoint counsel for indigent defendants in the county; (2) apply to each appointment of counsel made by a judge or the judges' designee in the county; (3) ensure that each indigent defendant in the county who is charged with a misdemeanor punishable by confinement or with a felony and who appears in court without counsel has an opportunity to confer with appointed counsel before the commencement of judicial proceedings; (4) require appointments for defendants in capital cases in which the death penalty is sought to comply with the requirements under Article 26.052; (5) ensure that each attorney appointed from a public appointment list to represent an indigent defendant perform the attorney's duty owed to the defendant in accordance with the adopted procedures, the requirements of this code, and applicable rules of ethics; and (6) ensure that appointments are allocated among qualified attorneys in a manner that is fair, neutral, and nondiscriminatory. (c) Whenever a court or the courts' designee authorized under Subsection (b) to appoint counsel for indigent defendants in the county determines that a defendant charged with a felony or a misdemeanor punishable by confinement is indigent or that the interests of justice require representation of a defendant in a criminal proceeding, the court or the courts' designee shall appoint one or more practicing attorneys to defend the defendant in accordance with this subsection and the procedures adopted under Subsection (a). If the court or the courts' designee determines that the defendant does not speak and understand the English language or that the defendant is deaf, the court or the courts' designee shall make an effort to appoint an attorney who is capable of communicating in a language understood by the defendant. (d) A public appointment list from which an attorney is appointed as required by Subsection (a) shall contain the names of qualified attorneys, each of whom: (1) applies to be included on the list; (2) meets the objective qualifications specified by the judges under Subsection (e); (3) meets any applicable qualifications specified by the Task Force on Indigent Defense; and (4) is approved by a majority of the judges who established the appointment list under Subsection (e). (e) In a county in which a court is required under Subsection (a) to appoint an attorney from a public appointment list: (1) the judges of the county courts and statutory county courts trying misdemeanor cases in the county, by formal action: (A) shall: (i) establish a public appointment list of attorneys qualified to provide representation in the county in misdemeanor cases punishable by confinement; and (ii) specify the objective qualifications necessary for an attorney to be included on the list; and (B) may establish, if determined by the judges to be appropriate, more than one appointment list graduated according to the degree of seriousness of the offense and the attorneys' qualifications; and (2) the judges of the district courts trying felony cases in the county, by formal action: (A) shall: (i) establish a public appointment list of attorneys qualified to provide representation in felony cases in the county; and (ii) specify the objective qualifications necessary for an attorney to be included on the list; and (B) may establish, if determined by the judges to be appropriate, more than one appointment list graduated according to the degree of seriousness of the offense and the attorneys' qualifications. (f) In a county in which a public defender is appointed under Article 26.044, the court or the courts' designee may appoint the public defender to represent the defendant in accordance with guidelines established for the public defender. (g) A countywide alternative program for appointing counsel for indigent defendants in criminal cases is established by a formal action in which two-thirds of the judges of the courts designated under this subsection vote to establish the alternative program. An alternative program for appointing counsel in misdemeanor and felony cases may be established in the manner provided by this subsection by the judges of the county courts, statutory county courts, and district courts trying criminal cases in the county. An alternative program for appointing counsel in misdemeanor cases may be established in the manner provided by this subsection by the judges of the county courts and statutory county courts trying criminal cases in the county. An alternative program for appointing counsel in felony cases may be established in the manner provided by this subsection by the judges of the district courts trying criminal cases in the county. In a county in which an alternative program is established: (1) the alternative program may: (A) use a single method for appointing counsel or a combination of methods; and (B) use a multicounty appointment list using a system of rotation; and (2) the procedures adopted under Subsection (a) must ensure that: (A) attorneys appointed using the alternative program to represent defendants in misdemeanor cases punishable by confinement: (i) meet specified objective qualifications, which may be graduated according to the degree of seriousness of the offense, for providing representation in misdemeanor cases punishable by confinement; and (ii) are approved by a majority of the judges of the county courts and statutory county courts trying misdemeanor cases in the county; (B) attorneys appointed using the alternative program to represent defendants in felony cases: (i) meet specified objective qualifications, which may be graduated according to the degree of seriousness of the offense, for providing representation in felony cases; and (ii) are approved by a majority of the judges of the district courts trying felony cases in the county; (C) appointments for defendants in capital cases in which the death penalty is sought comply with the requirements of Article 26.052; and (D) appointments are reasonably and impartially allocated among qualified attorneys. (h) In a county in which an alternative program for appointing counsel is established as provided by Subsection (g) and is approved by the presiding judge of the administrative judicial region, a court or the courts' designee may appoint an attorney to represent an indigent defendant by using the alternative program. In establishing an alternative program under Subsection (g), the judges of the courts establishing the program may not, without the approval of the commissioners court, obligate the county by contract or by the creation of new positions that cause an increase in expenditure of county funds. (i) A court or the courts' designee required under Subsection (c) to appoint an attorney to represent a defendant accused of a felony may appoint an attorney from any county located in the court's administrative judicial region. (j) An attorney appointed under this article shall: (1) make every reasonable effort to contact the defendant not later than the end of the first working day after the date on which the attorney is appointed and to interview the defendant as soon as practicable after the attorney is appointed; and (2) represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties by the court or replaced by other counsel after a finding of good cause is entered on the record. (k) A court may replace an attorney who violates Subsection (j)(1) with other counsel. A majority of the judges of the county courts and statutory county courts or the district courts, as appropriate, trying criminal cases in the county may remove from consideration for appointment an attorney who intentionally or repeatedly violates Subsection (j)(1). (l) Procedures adopted under Subsection (a) must include procedures and financial standards for determining whether a defendant is indigent. The procedures and standards shall apply to each defendant in the county equally, regardless of whether the defendant is in custody or has been released on bail. (m) In determining whether a defendant is indigent, the court or the courts' designee may consider the defendant's income, source of income, assets, property owned, outstanding obligations, necessary expenses, the number and ages of dependents, and spousal income that is available to the defendant. The court or the courts' designee may not consider whether the defendant has posted or is capable of posting bail, except to the extent that it reflects the defendant's financial circumstances as measured by the considerations listed in this subsection. (n) A defendant who requests a determination of indigency and appointment of counsel shall: (1) complete under oath a questionnaire concerning his financial resources; (2) respond under oath to an examination regarding his financial resources by the judge or magistrate responsible for determining whether the defendant is indigent; or (3) complete the questionnaire and respond to examination by the judge or magistrate. (o) Before making a determination of whether a defendant is indigent, the court shall request the defendant to sign under oath a statement substantially in the following form: "On this ________ day of ____________, 20 ___, I have been advised by the (name of the court) Court of my right to representation by counsel in the trial of the charge pending against me. I am without means to employ counsel of my own choosing and I hereby request the court to appoint counsel for me. (signature of the defendant)" (p) A defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant's financial circumstances occurs. If there is a material change in financial circumstances after a determination of indigency or nonindigency is made, the defendant, the defendant's counsel, or the attorney representing the state may move for reconsideration of the determination. (q) A written or oral statement elicited under this article or evidence derived from the statement may not be used for any purpose, except to determine the defendant's indigency or to impeach the direct testimony of the defendant. This subsection does not prohibit prosecution of the defendant under Chapter 37, Penal Code. (r) A court may not threaten to arrest or incarcerate a person solely because the person requests the assistance of counsel. Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966. Amended by Acts 1987, 70th Leg., ch. 979, Sec. 2, eff. Sept. 1, 1987. Amended by Acts 2001, 77th Leg., ch. 906, Sec. 6, eff. Jan. 1, 2002. Art. 26.044. PUBLIC DEFENDER. (a) In this chapter: (1) "Governmental entity" includes a county, a group of counties, a branch or agency of a county, an administrative judicial region created by Section 74.042, Government Code, and any entity created under the Interlocal Cooperation Act as permitted by Chapter 791, Government Code. (2) "Public defender" means a governmental entity or nonprofit corporation: (A) operating under a written agreement with a governmental entity, other than an individual judge or court; (B) using public funds; and (C) providing legal representation and services to indigent defendants accused of a crime or juvenile offense, as those terms are defined by Section 71.001, Government Code. (b) The commissioners court of any county, on written approval of a judge of a county court, statutory county court, or district court trying criminal cases in the county, may appoint a governmental entity or nonprofit corporation to serve as a public defender. The commissioners courts of two or more counties may enter into a written agreement to jointly appoint and fund a regional public defender. In appointing a public defender under this subsection, the commissioners court shall specify or the commissioners courts shall jointly specify, if appointing a regional public defender: (1) the duties of the public defender; (2) the types of cases to which the public defender may be appointed under Article 26.04(f) and the courts in which the public defender may be required to appear; (3) whether the public defender is appointed to serve a term or serve at the pleasure of the commissioners court or the commissioners courts; and (4) if the public defender is appointed to serve a term, the term of appointment and the procedures for removing the public defender. (c) Before appointing a public defender under Subsection (b), the commissioners court or commissioners courts shall solicit proposals for the public defender. A proposal must include: (1) a budget for the public defender, including salaries; (2) a description of each personnel position, including the chief public defender position; (3) the maximum allowable caseloads for each attorney employed by the proponent; (4) provisions for personnel training; (5) a description of anticipated overhead costs for the public defender; and (6) policies regarding the use of licensed investigators and expert witnesses by the proponent. (d) After considering each proposal for the public defender submitted by a governmental entity or nonprofit corporation, the commissioners court or commissioners courts shall select a proposal that reasonably demonstrates that the proponent will provide adequate quality representation for indigent defendants in the county or counties. (e) The total cost of the proposal may not be the sole consideration in selecting a proposal. (f) To be eligible for appointment as a public defender, the governmental entity or nonprofit corporation must be directed by a chief public defender 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. (g) A public defender is entitled to receive funds for personnel costs and expenses incurred in operating as a public defender 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 public defender serves more than one county. (h) A public defender may employ attorneys, licensed investigators, and other personnel necessary to perform the duties of the public defender as specified by the commissioners court or commissioners courts under Subsection (b)(1). (i) Except as authorized by this article, the chief public defender or an attorney employed by a public defender may not: (1) engage in the private practice of criminal law; or (2) accept anything of value not authorized by this article for services rendered under this article. (j) A public defender may refuse an appointment under Article 26.04(f) if: (1) a conflict of interest exists; (2) the public defender has insufficient resources to provide adequate representation for the defendant; |
