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| CODE OF CRIMINAL PROCEDURE CHAPTER 26. ARRAIGNMENT (3) the public defender is incapable of providing representation for the defendant in accordance with the rules of professional conduct; or (4) the public defender shows other good cause for refusing the appointment. (k) The judge may remove a public defender who violates a provision of Subsection (i). (l) A public defender may investigate the financial condition of any person the public defender is appointed to represent. The defender 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. (m) If it is necessary that an attorney other than a public defender be appointed, the attorney is entitled to the compensation provided by Article 26.05 of this code. Added by Acts 1985, 69th Leg., ch. 480, Sec. 17, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 167, Sec. 4.03(a), eff. Sept. 1, 1987. Amended by Acts 2001, 77th Leg., ch. 906, Sec. 7, eff. Jan. 1, 2002. Amended by: Acts 2005, 79th Leg., Ch. 965, Sec. 6, eff. September 1, 2005. Art. 26.05. COMPENSATION OF COUNSEL APPOINTED TO DEFEND. (a) A counsel, other than an attorney with a public defender, appointed to represent a defendant in a criminal proceeding, including a habeas corpus hearing, shall be paid a reasonable attorney's fee for performing the following services, based on the time and labor required, the complexity of the case, and the experience and ability of the appointed counsel: (1) time spent in court making an appearance on behalf of the defendant as evidenced by a docket entry, time spent in trial, and time spent in a proceeding in which sworn oral testimony is elicited; (2) reasonable and necessary time spent out of court on the case, supported by any documentation that the court requires; (3) preparation of an appellate brief and preparation and presentation of oral argument to a court of appeals or the Court of Criminal Appeals; and (4) preparation of a motion for rehearing. (b) All payments made under this article shall be paid in accordance with a schedule of fees adopted by formal action of the judges of the county courts, statutory county courts, and district courts trying criminal cases in each county. On adoption of a schedule of fees as provided by this subsection, a copy of the schedule shall be sent to the commissioners court of the county. (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 and the judge approves the payment. If the judge disapproves the requested amount of payment, the judge shall make written findings stating the amount of payment that the judge 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. (d) A counsel in a noncapital case, other than an attorney with a public defender, appointed to represent a defendant under this code shall be reimbursed for reasonable and necessary expenses, including expenses for investigation and for mental health and other experts. Expenses incurred with prior court approval shall be reimbursed in the same manner provided for capital cases by Articles 26.052(f) and (g), and expenses incurred without prior court approval shall be reimbursed in the manner provided for capital cases by Article 26.052(h). (e) 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 an attorney from consideration for appointment if, after a hearing, it is shown that the attorney submitted a claim for legal services not performed by the attorney. (f) All payments made under this article shall be paid from the general fund of the county in which the prosecution was instituted or habeas corpus hearing held and may be included as costs of court. (g) If the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the court shall order the defendant to pay during the pendency of the charges or, if convicted, as court costs the amount that it finds the defendant is able to pay. (h) Reimbursement of expenses incurred for purposes of investigation or expert testimony may be paid directly to a private investigator licensed under Chapter 1702, Occupations Code, or to an expert witness in the manner designated by appointed counsel and approved by the court. (i) The indigent defense representation fund is a separate account in the general revenue fund. The fund: (1) consists of criminal fees collected under Section 133.107, Local Government Code; and (2) may be used only for the purposes for which the fair defense account established under Section 71.058, Government Code, may be used, including compensating appointed counsel in accordance with this code. Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966. Amended by Acts 1969, 61st Leg., p. 1054, ch. 347, Sec. 1, eff. May 27, 1969; Acts 1971, 62nd Leg., p. 1777, ch. 520, Sec. 1, eff. Aug. 30, 1971; Acts 1973, 63rd Leg., p. 1126, ch. 426, art. 3, Sec. 3, eff. June 14, 1973; Acts 1981, 67th Leg., p. 803, ch. 291, Sec. 106, eff. Sept. 1, 1981; Acts 1987, 70th Leg., ch. 979, Sec. 3, eff. Sept. 1, 1987. Subsec. (f) added by Acts 1999, 76th Leg., ch. 837, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 906, Sec. 8, eff. Jan. 1, 2002; Subsec. (f) amended by Acts 2001, 77th Leg., ch. 1420, Sec. 14.734, eff. Sept. 1, 2001. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1014, Sec. 1, eff. September 1, 2007. Art. 26.051. INDIGENT INMATE DEFENSE. (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. (b) Repealed by Acts 2007, 80th Leg., R.S., Ch. 1014, Sec. 7, eff. September 1, 2007. (c) Repealed by Acts 2007, 80th Leg., R.S., Ch. 1014, Sec. 7, eff. September 1, 2007. (d) A court shall: (1) notify the board if 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 board provide legal representation for the inmate. (e) The 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 board shall pay all fees and costs associated with providing legal representation for those inmates. (f) Repealed by Acts 1993, 73rd Leg., ch. 988, Sec. 7.02, eff. Sept. 1, 1993. (g) The court shall appoint an attorney other than an attorney provided by the 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 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 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 board. (h) When the court appoints an attorney other than an attorney provided by the 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 facility authorized by Section 495.001, Government Code, is located shall pay from its general fund the total costs of the aggregate amount allowed and awarded by the court for attorney compensation and expenses under Article 26.05 or 26.052, as applicable. (i) The state shall reimburse a county for attorney compensation and expenses awarded under Subsection (h). A court seeking reimbursement for a county shall certify to the comptroller of public accounts the amount of compensation and expenses for which the county is entitled to be reimbursed under this article. Not later than the 60th day after the date the comptroller receives from the court the request for reimbursement, the comptroller shall issue a warrant to the county in the amount certified by the court. Added by Acts 1990, 71st Leg., 6th C.S., ch. 15, Sec. 2, eff. June 14, 1990. Subsec. (c) amended by and Subsec. (f) added by Acts 1991, 72nd Leg., ch. 719, Sec. 1, eff. Sept. 1, 1991; Subsec. (f) repealed by Acts 1993, 73rd Leg., ch. 988, Sec. 7.02, eff. Sept. 1, 1993; Subsecs. (g), (h) added by Acts 1993, 73rd Leg., ch. 988, Sec. 7.01, eff. Sept. 1, 1993. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1014, Sec. 2, eff. September 1, 2007. Acts 2007, 80th Leg., R.S., Ch. 1014, Sec. 3, eff. September 1, 2007. Acts 2007, 80th Leg., R.S., Ch. 1014, Sec. 7, eff. September 1, 2007. Art. 26.052. APPOINTMENT OF COUNSEL IN DEATH PENALTY CASE; REIMBURSEMENT OF INVESTIGATIVE EXPENSES. (a) Notwithstanding any other provision of this chapter, this article establishes procedures in death penalty cases for appointment and payment of counsel to represent indigent defendants at trial and on direct appeal and to apply for writ of certiorari in the United States Supreme Court. (b) If a county is served by a public defender's office, trial counsel and counsel for direct appeal or to apply for a writ of certiorari may be appointed as provided by the guidelines established by the public defender's office. In all other cases in which the death penalty is sought, counsel shall be appointed as provided by this article. (c) A local selection committee is created in each administrative judicial region created under Section 74.042, Government Code. The administrative judge of the judicial region shall appoint the members of the committee. A committee shall have not less than four members, including: (1) the administrative judge of the judicial region; (2) at least one district judge; (3) a representative from the local bar association; and (4) at least one practitioner who is board certified by the State Bar of Texas in criminal law. Text of subsection as amended by Acts 2005, 79th Leg., R.S., Ch. 787, Sec. 14 (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 attorney appointed as lead counsel to a death penalty case or an attorney appointed as lead 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 not been found by a federal or state court to have rendered ineffective assistance of counsel during the trial or appeal of any capital case; (D) have at least five years of experience in criminal litigation; (E) have tried to a verdict as 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; (F) have trial experience in: (i) the use of and challenges to mental health or forensic expert witnesses; and (ii) investigating and presenting mitigating evidence at the penalty phase of a death penalty trial; and (G) have participated in continuing legal education courses or other training relating to criminal defense in death penalty cases. (3) The committee shall prominently post the standards in each district clerk's office in the region with a list of attorneys qualified for appointment. (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. Text of subsection as amended by Acts 2005, 79th Leg., R.S., Ch. 965, Sec. 7 (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 attorney appointed as lead counsel to a capital case or an attorney appointed as lead appellate counsel in the direct appeal of a capital 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 not been found by a federal or state court to have rendered ineffective assistance of counsel during the trial or appeal of any capital case; (D) have at least five years of experience in criminal litigation; (E) have tried to a verdict as 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; (F) have trial experience in: (i) the use of and challenges to mental health or forensic expert witnesses; and (ii) investigating and presenting mitigating evidence at the penalty phase of a death penalty trial; and (G) have participated in continuing legal education courses or other training relating to criminal defense in death penalty cases. (3) The committee shall prominently post the standards in each district clerk's office in the region with a list of attorneys qualified for appointment. (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. (e) The presiding judge of the district court in which a capital felony case is filed shall appoint two attorneys, at least one of whom must be qualified under this chapter, to represent an indigent defendant as soon as practicable after charges are filed, unless the state gives notice in writing that the state will not seek the death penalty. (f) Appointed counsel may file with the trial court a pretrial ex parte confidential request for advance payment of expenses to investigate potential defenses. The request for expenses must state: (1) the type of investigation to be conducted; |
