B"'nnmg UI Janualy of next year, the Gumnor dl appoint a Task<strong>For</strong>ce on Indigent <strong>Defense</strong>. ThisTask <strong>For</strong>ce will be cl~a~ged with implementing the key feah~tes of the Pair <strong>Defense</strong> Act (Senate Bill71, sponsored md stnded by Scnator Ro&q Ellis. This Act is meant to improve the plight of !heindigent defendmt in crio~ind comts t1~11gI1out Tesas, in pat by imprmhg he quality of defense com~sel.This article is ruenut to clarifyfor defense cot~nsel the baits of the Act.CAPClOLCORNERFee Schedules, Appeals from Refused Bills, Compensation andReimbursementFee scbed~des for co1111-appointedk~e~s must now i~~cl~~de '"reasonable and necmay mpei'l~ead cosfsand the a\dvnilnbiliiof qualified auometx wUing to accept the stated ~ates." If the fee schedule is so low tlwtahqer coukdnot mdntain a law ofice, tl~en tl~efwsckduleis ~urmonabfe. Fee scheddesmust slate leasonablcBaed rates or minim~un md maxi~mm~ ho~~rly ~ntes. Momeys nre also entitled to a fonn "to itemizethe types of sewices peifom~ed," which is necessary for payment. locd associations should prepare loha\-e a voice in creating the fo~m and indude work ha migl~t ordimarlly esape the attenIion of the court,suc11 as witness inteniews, laborious discowy procedures, trips to the jail, uvifhgi tl~e p~usecutor's office,etcetem Tl~e more that judges understand the tinlccansomiug uork we perform outside the courtroom, thegrater the appreciation for the role of the crimi~~al defense attorney in ttte justice system.Appellate coua-appointed lawje~sl~dl now be compensated for prepamtion a ~d preselitatio~l of oldargunlent as well as prepantion of a niotion for rellcmn~g, senkes for nhich !hey were previo~~sly not entitledto mnrpensation."Reimbursement of expenses incurred far purposes of investigation or expert testimony m;ly be pdddirectly to a plimte inwstigator lice~~sod mder Chapter 1702, Occqxitio~ls Code, or to an expert wihrcss inthe manner designated b), appointd com~sel and app~uwd by the court." Att01ne)s dso "shshall be realbursedfor reasonable and necessqmpenm, including cqenses for inistig#tiol~ md for mental k~enltl~ andotl~er experts. Eyienss i~~c~med with prior court 8pp1uwJ sl~shall be reimbuned ui tl~e sane mmcr providedfor capital ms:' SceTex Code Crim. Pro. ; u~ 26.052(0, (&, and (11).<strong>For</strong> the Grst time, pu may now appd a jndge's decision to cut yo~u voud~er or otl~e~wise pay yo11 1%than wl~alyoo reasonably billed for your work.If ll~e judge disapprows U I requested ~ amount of payment, the ju@ sshall make wtinen findirlgsstating the mount of payment 111at the judge appmm and each reas011 for approving a1mount different J?om the requested amount An attorney wl~osc request for payncnt is &sapprovedmay appeal the disapproval by filing amtion with the presiding judge of the ad&~istrativej~ulkcid regiai~ On the h g ofa motiou, d~eprestdingjudge of the adnlidstmtiw judicialregion shall ~eview the disapproml of papcnt and deternih~e the appropriate anlount ofpa)ment. I11 itviewing d~e disappovd, the pl.esi&~g judge of the ;Idminishntive j~ldicialregiolr may cofld~~ct a headng. Not later tl~an the 45th day after the date an application farof a fee is submitted under this article, the commissioners court shdl pay to theappomted coumel the amon~t that is approved by the presiding judge of the &dmhiistiativej~~dicial region and hat is in accordance with the fee schedule far d18t county.If yon ha\re submitted a reasonable bill, but the trid judge cuts it, thon pou s11011ld appeal the judge'sdisapprovd each ant1 every time it happens. Iawye's may be ren~oved from the appoi~itn~ent list by amajority of the crhuind court judges "if, aftera haring, it 1s S~IOWII that the attorney submitted a clain~ forlegd senices 1101 performed $the attorney."8 VOICE FOR THE DEWNSE UJWVLTCOI.A.COM SEPTEMBER SOOT
Basic Court-Appointed DutiesUnder the Act, court-appointed lawyers must "make evay reasonable effooato contact the defendant not later than the end of the &si stororking day after thedate on which the attorney is appointed and to hiteniew the defendant as soonas p~acticablc after the attorney is appointed." Tl~is does not mean that a lawyerappointed to a defendant in a jd5 ho~us away must drop evelytlling hum&-ately upon appointment, ttavel to tlie jail and meet Ius unexpected client. Youcan have a lette' informiug the client of your existence, addrcs a11d other basicinfomlfion ready to be sent upon the appointn~ent of my case, You iieedo'timiediately visit with tlie client, ba you lave to n~ake a rmonabie effort toconfwt Mm. As soon therexltet, you should interdew tlie client as well.Appointed attomlleys must represent indigent defendmts "outtl chaw wedismissed, the defendant is acquitted, appeals are esl~austed, or the attornq isrelieved of llis duties by tl~e coua or replaced by other counsel afteta finding ofgood cause is entered on the record." Amajorityof c ~Mal court judges "mayremove from consideration for appoh~tolei~t" WI attoliiey wlio "intentionally orrepeatedly violates" tl~eir dntiesDetention Limitations for Arrested PersonsTlie arresting officer must ensufe thg the pelson wrested appears before themagistnte "not later than 48 liou~s after tlie pawn is a~~esled." Ape~son whois wrested witl~out a warrant md who is detained in jail n~ust he released onbond, io an an~ouut not to exceed $5,000 (misdemeanors) or $10,000(felo~ies), not later than the 24th hour sfter the pelsan's amst (4@lio11r afterarmt for felonies) if the person was arrested for a misdemmor aid a magistratehas not determi~~ed u.hether probable cause exists lo believe that the personcommitted the offense. If the person is unable to obtain a surety for thebond or unable to deposit money hi the anlonut of the hond, the person must bereleased on pe~sonal bond. (A prosecutor may le WI application for postponerunltfor release, upon wllic11 the magigmte may postpne the release of aperson - but not for more than 72 hours after the person's arrest.)Appointment of CounselAfW die artestuig officer ensures the person's appearxnce before a magistrate,Ule niagistmte shall not only inform tlie indige~~t that lie has a rigl~torequest the appointn~eut of counsel, ln~tell lhn t11e procedures for doing so,prodde assistance in co~upleting the form for getting a court-appointed lawyer,and appoint the perso11 a lawyer. <strong>The</strong> niagktrate must also co~umunicnte iuundersta~dable manner for those nrho do not speak or understand tle Jbglisl~language or are ded.Once the person has reqoested co11nse1 and is determined to be indigent,counsel mmt be appointed %ot later tlm tlte end of the fi~st working day alterthe date on which the cowf or the courts' designee recei17es the defendant'srequest for appoititt~~ent of counsel" UI counties witha pop111atio11 of 250,000 ormore. III mnl counties, counsel must be appointed 'Tmaiediately followi~~g heexpi~xtion of three working days after the (late onwlucli the coun or the cottrts'designee receives he dcfendait's reqaest for appoh~tment of counsel."Defendants rcleased from custody before cou~~scl has been appoirited arce~ltitled lo counsel at thefi~st coua appeaMllce or when adve~saial judici@lproceedingshave bee11 initisted, wllicl~ever cows fils<strong>The</strong> criminal coorts collectively (judges of county courts, stat~lio~y comlycou~ts, and d~sfrict col~rts) sl~all adopt and publish by local ~ule written co1~13-wide procrtlures for timely and failly appoh~thg counsel for hdiget~t defendants.Wheel System for AppointmentA court must appoint an attorney from a public appointment list using asysrenl of rotation from among tl~e nest fiw nanm on the list, with someexceptions. Tlie cou~t may, upon afinding of good cattse, appoint an attorneyout of order. Au attorneywho is not zppomted in tlrc order inwluch theattorney's name appws on Llie list shall remain next in order on the list.<strong>The</strong> procedures nlusi ensure that each indigent defendant who appears81 couawit11011t counsel has all oppoihruity v to confer wvithappoi~ited couilselbefore the comnlencemnent of judicial p~oceedings.Appointments must be "allocated among qualified attornqs in a mannerthat is fair, neuhd, wd nondimiminatoq" <strong>The</strong> appointment list willbe graduated according to the degree of serio~iousues of the offense and theanorneys' qualifications. Qualifications for court appointments must beobjective and met tile standards specified by the Task <strong>For</strong>ce on Indigent<strong>Defense</strong>. <strong>The</strong> coui% may appoint layea for felony defendants "fron~ anycounty located in the court's administrati e judicial region."<strong>The</strong> cou~ts must "make an effort" to appoint lawyers who axe can con-1111u1ieate % ala~guage mulerstood $the defendant" for thosew110 do notspeak and understand the English b~igusge or wlio are de&Alternative ProgramTw~tl&ds of the criminal co~ut judges luay establish an alternalivespten1 of appointment. <strong>The</strong> alter~~ative systen~ may use a single method forappointing cou~~sel or a combhation of mell~ods, ad use a niulticountyappointment list usiug a syste~i~ of rotation. IIoweTer, the procedures mustensure that court-appointed attorneys "n~eet specilied objective qualEcations,~d~ich ray be grnduated according to the degree ofseriousnm of theoffense," and that appomtumts are "reaso~iably a11d impartially allocatedamong qualified attorneys." <strong>The</strong> alternatke prng~an~ must also beapproved by the presiding judge of the admisishxttve jt~dicial region, aidmay not obligate tlke county by contkxct or by the creation of new pasitionsthat incrme county expmdilures wihout tl~e appro& of the commissioner'scourt.Death Penalty CasesCon~ls lnusl appoint hvo attorneys iu deatb penalty cases, one of mllommust be "qualified" under the lMr <strong>Defense</strong> Act. A lawyer who represeutsdefendants facing the drmtli penalty must be qualified, wlich nwm: she isa State Bar ~iien~ber who eshibifs profieie~~cy and conlmitmcnt to prouidiugqualityryresentation to defendants in death penalty cases." She must alsohaw at least fiw yeas in cri11~1d litigation flnlzd "fried to a verdict as leaddefense co~u~sel a signiEcuit n~unber of felony cases, including honucidetrials and other trials <strong>For</strong> olfel~ses punisl~able as second or first degreefelolies or capitalfelouies." She mustdso have trial experiencein "the useof ad cl~allenges to a~ental health or forensic expert wiheses" and"investigating *and prmenti~~g n~itigatiug e\,idence at the penalty phase of adeath pe~~alty trial." Fmdg to be qufied to be appointed to a dathpwalty case, cou~~sel "have pwttcipated in coi~hiuing legal educationcourses or other f~dning relating to crinli~~al defense in death penaltycases."A local selection connilittee for appointn~ent of counsel on dead1 penaltyc;lsessl~all amend stmdards prwiously adopted by the committee to conformwith tbese new req~ke~iients not later than April 1,2002.SEWEMBER 200. WWW.TCDLA.COM VOILE FOR THE DEPENSE 9