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Texas Fair Defense Project Final Report 80th 2007 Indigent Defense

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Final Report
80th Legislative Session
Delivery and Funding of Indigent Defense Services
The bills in this section amend the Fair Defense Act and/or directly impact the funding and
delivery of indigent defense services.
HB 1178 (Escobar; SP: Ellis): HB 1178 clarifies procedures for obtaining waivers of the right to
counsel. The bill requires judges to advise defendants of the right to counsel and give
defendants a reasonable opportunity to request appointed counsel. The bill also prohibits
prosecutors from initiating or encouraging waivers of the right to counsel, in a manner consistent
with existing ethical rules. Waivers obtained in violation of the guidelines set forth in the bill are
presumed invalid.
Status as of 6/17/07: Signed by the Governor; effective 9/1/07.
HB 1265 (Peña; SP: Seliger): HB 1265 makes minor changes relating to meeting requirements
and definitions in the statute governing the operations of the Task Force on Indigent Defense.
Specifically, the bill allows the Task Force to meet 4 times a year instead of quarterly and
deletes the phrase “ad hoc” from the definition of an assigned counsel system. The bill also
eliminates the scheduled 2007 sunset of the State Bar legal services fee, half of which is
allocated to indigent defense (duplicating SB 168).
Status as of 6/17/07: Signed by the Governor; effective 9/1/07.
HB 1267 (Peña; SP: Seliger): HB 1267 adds a $2 fee on each conviction for a criminal offense,
which is expected to raise $7.6 million annually for the delivery of indigent defense services.
The bill also grants appointed defense counsel a right to appeal a judge’s failure to act on a
request for payment within 60 days. Under prior law, appointed counsel could appeal a judge’s
disapproval of a request for payment but not a judge’s failure to act on a request for payment.
HB 1267 also provides that appointment of private counsel to indigent inmates in criminal cases
involving alleged offenses committed while in the custody of TDCJ shall be governed by the Fair
Defense Act. Counties shall pay appointed counsel for services provided to indigent inmates
according the local indigent defense fee schedule, and the comptroller shall reimburse counties
for the cost of inmate indigent defense within 60 days after receiving a request for
reimbursement. Under prior law, indigent inmate appointments were not governed by the FDA
and attorneys appointed in inmate cases were required to go through several state agencies in
order to obtain compensation from a limited state fund maintained by the comptroller.
Status as of 6/17/07: Signed by the Governor; effective 9/1/07.
SB 168 (Ellis; SP: Flores): SB 168 eliminates the scheduled 2007 sunset of the State Bar legal
services fee, half of which is allocated to indigent defense. The State Bar fee generates almost
$2 million annually for indigent defense. Revenue from the State Bar fee is earmarked for
demonstration and pilot programs, and has been used to fund new local and regional public
defender offices.
Status as of 6/17/07: Signed by the Governor; effective immediately.

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Other Bills of Interest
The bills in this section do at least one of the following: (1) affect defendants’ ability to avoid pretrial incarceration in appropriate cases, thereby increasing defendants’ ability to maintain
employment and to retain private counsel or, if the defendant is later convicted, to pay
restitution, court costs, and fees, or (2) extend procedural protections to defendants who are
unable to pay court costs and fees or reimburse the county for the cost of providing appointed
counsel.
HB 312 (Turner; SP: Whitmire): HB 312 requires the state to prove by a preponderance of the
evidence that a probation defendant is able to pay but did not pay certain costs, including court
costs, fees and/or the cost to reimburse the county for providing appointed counsel, before
revoking probation in a case in which failure to pay is the only alleged probation violation. Prior
law recognized indigency as an affirmative defense to nonpayment that had to be raised and
proved by the defendant. Many defendants facing revocation on misdemeanor probation are
not represented by counsel and were unaware of the existing affirmative defense and/or did not
know how to raise it.
Status as of 6/17/07: Signed by the Governor; effective 9/1/07.
HB 2391 (Madden; SP: Seliger): HB 2391 authorizes peace officers to issue citations for
certain Class B misdemeanors instead of taking alleged offenders before a magistrate, allowing
alleged offenders to avoid pretrial incarceration for minor offenses. Magistrates are required to
give statutory warnings, including warnings about the right to counsel, to defendants when they
appear in compliance with a citation.
Status as of 6/17/07: Signed by the Governor; effective 9/1/07.
HB 3060 (Peña; SP: Watson): HB 3060 requires law enforcement officers executing capias pro
fine (warrants issued after judgment and sentence for unpaid fines and costs) to bring the
defendant before the court no later than the next business day after arrest. The bill also clarifies
that a defendant may not be imprisoned for failure to pay fines and costs unless the defendant
(1) is not indigent and has failed to make a good faith effort to pay the fines and costs, or (2) is
indigent, has failed to make a good faith effort to discharge the fines and costs through
alternative methods (i.e., community service), and could have discharged the fines and costs
through alternative methods without experiencing undue hardship. Prior law placed no limit on
the length of time a defendant could be imprisoned on a capias pro fine before being brought to
court for an indigency hearing, and authorized the detention of indigent defendants for
nonpayment if they failed to make “sufficient bona fide efforts legally to acquire the resources to
pay.”
Status as of 6/17/07: Signed by the Governor; effective 9/1/07.

Bills That May Resurface Next Time
These bills died in the 80th Legislature, but may be re-filed in a future legislative session.
HB 541 (Martinez Fischer; SP: Hinojosa): HB 541 would have created an exception to the
current rule that individuals arrested for an alleged parole violation are not eligible for pretrial
release. The exception would have extended to individuals whose alleged parole violation is a
technical violation or a misdemeanor-level new offense (not including assault, assault family
violence, and intoxication offenses).
Status as of 6/17/07: Vetoed by the Governor.

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HB 800 (Dutton): HB 800 would have allowed judges to grant expunctions to defendants who
successfully completed deferred adjudication probation. Many unrepresented defendants who
receive deferred adjudication are not informed that under current law the criminal charges
against them cannot be expunged after they are dismissed upon successful completion of
deferred adjudication, and that the charges will continue to have ongoing licensing,
employment, housing, and immigration consequences. The ability to obtain an expunction would
have mitigated these collateral consequences.
Status as of 6/17/07: Died on the House Calendar.
HB 1266 (Peña): HB 1266 would have modified statutory qualification requirements for
attorneys appointed to represent defendants in capital cases, primarily by creating separate
qualification requirements for appellate attorneys and eliminating current requirements that
appellate attorneys have capital trial experience.
Status as of 6/17/07: Reported favorably from House Criminal Jurisprudence 5/2/07; not set on
the House Calendar.
Companion: SB 528 (Seliger; SP: Peña) (passed the Senate 4/12/07; set on House Calendar
5/14/07; recommitted to House Criminal Jurisprudence 5/17/07, where it failed to receive an
affirmative vote).
HB 2437 (Escobar): HB 2437 would have authorized counties and cities to establish pretrial
victim-offender mediation programs for theft offenses. Defendants who participated in a
mediation program and successfully completed the resulting mediation agreement would have
had the charges against them dismissed.
Status as of 6/17/07: Reported favorably from House Criminal Jurisprudence 4/17/07; not set
on the House Calendar.
HB 3305 (Peña): HB 3305 would have set mandatory eligibility guidelines for release on
personal bond in a manner that would have significantly limited defendants’ ability to obtain
pretrial release on personal bond, which is typically the lowest cost bond available to poor
defendants. HB 3305 also would have required judges to adopt a schedule of pre-approved bail
amounts for misdemeanor offenses, and entitled defendants to release on the posting of the
pre-approved bail amount unless a judge or magistrate entered an order modifying the bail
amount in a specific case.
Status as of 6/17/07: Scheduled for hearing in House Criminal Jurisprudence 5/1/07, not heard
in committee.
Companion: SB 1553 (Hinojosa) (heard in Senate Criminal Justice 4/24/2007, left pending in
committee).
HB 3738 (Herrero): HB 3738 would have authorized any county, judicial district, or judge with
jurisdiction over jailable offenses to establish a personal bond office, and required personal
bond offices to supervise all defendants released prior to trial. HB 3738 also would have
increased the fee charged to defendants eligible for personal bond in counties that have drug
court programs from 3 percent to 5 percent of the amount of bail fixed, and set aside 40 percent
of the fee collected in drug court counties for administration of drug court programs.
Status as of 6/17/07: Referred to House Licensing and Administrative Procedures 3/22/07, not
scheduled for hearing.
SB 159 (Wentworth; SP: Peña): SB 159 would have modified the public defender statute to
allow counties to establish county departments to serve as public defender offices without first
seeking competing bids from nonprofit corporations interested in operating the office under
contract with the county. Counties choosing to establish a county department to serve as a
public defender office would have been required to develop written plans containing the same
information required under the mandatory competitive bid system that exists in current law, and

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counties choosing to provide indigent defense services through a nonprofit public defender still
would have been required to solicit bids from interested nonprofits.
Status as of 6/17/07: Passed the Senate 3/14/07; died on the House Calendar.
SB 306 (Harris; SP: Pierson): SB 306 would have allowed counties to delay appointment of
second-chair counsel in capital cases until the earlier of the date the state provides written
notice that it intends to seek the death penalty or the 90th day after the date on which the
defendant is charged with a capital offense by indictment or complaint. SB 306 also would have
ensured that trial of a death penalty case would not proceed before the 180th day after the
appointment of second-chair counsel, allowed appointment of second-chair counsel to be
avoided or voided, as applicable, if the state certifies that it will not seek the death penalty, and
specifically authorized appointment of mitigation specialists in capital cases.
Status as of 6/17/07: Passed the Senate 4/2/07; died on the House Calendar.
SB 528 (Seliger; SP: Peña): SB 528 would have modified statutory qualification requirements
for attorneys appointed to represent defendants in capital cases, primarily by creating separate
qualification requirements for appellate attorneys and eliminating current requirements that
appellate attorneys have capital trial experience.
Status as of 6/17/07: Passed the Senate 4/12/07; set on House Calendar 5/14/07; recommitted
to House Criminal Jurisprudence 5/17/07, where it failed to receive an affirmative vote.
Companion: HB 1266 (Peña) (reported favorably from House Criminal Jurisprudence 5/2/07;
not set on the House Calendar).
SB 643 (Carona): SB 643 would have required courts to order the state to produce
discoverable materials, including police reports and other witness statements, in criminal cases
not later than the 30th day after an indictment or information is filed. Current law does not
require pretrial disclosure of police reports and other witness statements necessary to assess
the strength of the state’s charges and prepare an adequate defense.
Status as of 6/17/07: Reported favorably from Senate Criminal Justice 3/27/07; not again set
on Senate Intent Calendar 4/24/07.
SB 1553 (Hinojosa): SB 1553 would have set mandatory eligibility guidelines for release on
personal bond in a manner that would have significantly limited defendants’ ability to obtain
pretrial release on personal bond, which is typically the lowest cost bond available to poor
defendants. SB 1553 also would have required judges to adopt a schedule of pre-approved bail
amounts for misdemeanor offenses, and entitled defendants to release on the posting of the
pre-approved bail amount unless a judge or magistrate entered an order modifying the bail
amount in a specific case.
Status as of 6/17/07: Heard in Senate Criminal Justice 4/24/2007, left pending in committee.
Companion: HB 3305 (Peña) (scheduled for hearing in House Criminal Jurisprudence 5/1/07,
not heard in committee).
SB 1655 (Ellis; SP: Hartnett): SB 1655 would have created a state-funded Office of Capital
Writs to represent indigent defendants sentenced to death in state habeas corpus proceedings.
A Capital Writs Committee, consisting of five members appointed by the President of the State
Bar of Texas, would have recommended to the Court of Criminal Appeals the names of up to
five qualified applicants for the position of Director of the Office of Capital Writs.
Status as of 6/17/07: Passed by the Senate 4/16/07; died on the House Calendar.
SB 647 (Ellis): SB 647 would have created a permanent fund for indigent defense consisting of
10 percent of any unencumbered positive balance of general revenue at the end of a biennium.
Money in the permanent fund would have been appropriated to the Office of Court

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Administration and distributed to counties according to a formula based on county population
and compliance with state law and standards concerning indigent defense.
Status as of 6/17/07: Referred to Senate Finance 2/28/07, not heard in committee.
SB 777 (Harris): SB 777 would have authorized criminal law magistrates to review and adjust
(upward or downward) bonds set by municipal court judges and justices of the peace. The bill
would have applied only in those counties that have criminal law magistrates that serve the
criminal district and county courts.
Status as of 6/17/07: Referred to Senate Criminal Justice 3/6/07, not heard in committee.

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