88R4106 MEW-F     By: Gervin-Hawkins H.B. No. 1170       A BILL TO BE ENTITLED   AN ACT   relating to policies and standards for providing legal   representation to indigent defendants in certain capital felony   cases.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Article 26.052, Code of Criminal Procedure, is   amended by adding Subsections (c-1) and (c-2) and amending   Subsections (d) and (m) to read as follows:          (c-1)  Each local selection committee described by   Subsection (c) shall evaluate and determine the list of attorneys   in the applicable administrative judicial region qualified under   this article to be appointed to represent indigent defendants in   capital cases in which the death penalty is sought and post the list   on the Internet website of that administrative judicial region.          (c-2)(1)  A statewide capital defense training and standards   committee is created.  The committee must be composed of nine   members, including:                      (A)  two judges jointly selected by the presiding   judges of the administrative judicial regions;                      (B)  a criminal defense attorney appointed by the   president of the Texas Criminal Defense Lawyers Association;                      (C)  the chief public defender of the Regional   Public Defender for Capital Cases office, or the chief public   defender's designee;                      (D)  the chief capital defender of a county public   defender office appointed by the executive director of the Texas   Indigent Defense Commission;                      (E)  a member of the State Bar of Texas committee   on legal services to the poor in criminal matters selected by the   chair of the committee; and                      (F)  three attorneys appointed by the executive   director of the Texas Indigent Defense Commission.                (2)  Each member of the statewide capital defense   training and standards committee must be a licensed attorney and   must have significant experience in capital defense or indigent   criminal defense policy or practice. A member of the committee may   not be a prosecutor, a law enforcement officer, or an employee of   the office of capital and forensic writs.                (3)  Members of the statewide capital defense training   and standards committee serve four-year terms and may be   reappointed. If a vacancy occurs, the appropriate appointing   authority shall appoint a successor in the same manner as the   original appointment to serve for the remainder of the unexpired   term.                (4)  The members of the statewide capital defense   training and standards committee shall select a chair from among   the committee's members.                (5)  A member of the statewide capital defense training   and standards committee may not receive compensation for service on   the committee but is entitled to be reimbursed for actual and   necessary expenses incurred in discharging committee duties. The   expenses are paid from funds appropriated to the Texas Indigent   Defense Commission.                (6)  The Texas Indigent Defense Commission shall   provide administrative support to the statewide capital defense   training and standards committee as necessary to carry out the   purposes of the committee.          (d)(1)  The statewide capital defense training and standards   committee created under Subsection (c-2) shall adopt policies and   standards for providing legal representation [the qualification of   attorneys to be appointed] to [represent] indigent defendants in   capital cases in which the death penalty is sought. The policies and   standards must include, with respect to the qualification of   attorneys to be appointed in capital cases, the following:                      (A)  training requirements and curricula;                      (B)  qualification standards;                      (C)  continuing legal education requirements; and                      (D)  other policies and standards as necessary to   ensure quality legal representation in capital cases.                (2)  The standards described by Subdivision (1) must   require that a trial attorney appointed as lead counsel to 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 local selection   committee described by Subsection (c) to have provided deficient   legal representation [a federal or state court to have rendered   ineffective assistance of counsel] during the trial or appeal of   any capital case if [, unless] the local selection committee has   determined [determines under Subsection (n)] that the conduct   underlying the deficient representation [finding no longer]   accurately reflects the attorney's inability [ability] to provide   effective representation in the future;                      (D)  have at least five years of criminal law   experience;                      (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 have:                            (i)  trial experience in [(ii)]   investigating and presenting mitigating evidence at the penalty   phase of a death penalty trial, regardless of whether:                                  (a)  the case resulted in a judgment or   dismissal; or                                  (b)  the state subsequently waived the   death penalty in the case; or                            (ii)  an equivalent amount of trial   experience, as determined by the applicable local selection   committee; and                      (G)  have participated in continuing legal   education courses or other training relating to criminal defense in   death penalty cases.                (3)  The standards described by Subdivision (1) must   require that 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 local selection   committee described by Subsection (c) to have provided deficient   legal representation [a federal or state court to have rendered   ineffective assistance of counsel] during the trial or appeal of   any capital case if [, unless] the local selection committee has   determined [determines under Subsection (n)] that the conduct   underlying the deficient representation [finding no longer]   accurately reflects the attorney's inability [ability] to provide   effective representation in the future;                      (D)  have at least five years of criminal law   experience;                      (E)  have authored a significant number of   appellate briefs, including appellate briefs for homicide cases and   other cases involving an offense punishable as a capital felony or a   felony of the first degree or an offense described by Article   42A.054(a);                      (F)  have trial or appellate experience in[:                            [(i)]  the use of and challenges to mental   health or forensic expert witnesses[;] and have:                            (i)  trial or appellate experience in [(ii)]   the use of mitigating evidence at the penalty phase of a death   penalty trial, regardless of whether:                                  (a)  the case resulted in a judgment or   dismissal; or                                  (b)  the state subsequently waived the   death penalty in the case; or                            (ii)  an equivalent amount of trial or   appellate experience, as determined by the applicable local   selection committee; and                      (G)  have participated in continuing legal   education courses or other training relating to criminal defense in   appealing death penalty cases.                (4)  The Texas Indigent Defense Commission [committee]   shall prominently post the policies and standards adopted by the   statewide capital defense training and standards committee under   Subdivision (1) on the commission's Internet website [in each   district clerk's office in the region with a list of attorneys   qualified for appointment].                (5)  Not later than the second anniversary of the date   an attorney is placed on a local selection committee's [the] list of   attorneys qualified for appointment in death penalty cases and each   year following the second anniversary, the attorney must present a   list of death penalty trial, direct appeal, and habeas corpus cases   in which the attorney served as counsel and proof to the local   selection committee for the applicable administrative judicial   region that the attorney has successfully completed the training,   minimum continuing legal education requirements, and other   standards adopted by the statewide capital defense training and   standards committee under Subdivision (1) [of the State Bar of   Texas, including a course or other form of training relating to   criminal defense in death penalty cases or in appealing death   penalty cases, as applicable]. The applicable local selection   committee shall remove the attorney's name from the list of   qualified attorneys if the attorney fails to provide the local   selection committee with the materials required under this   subsection [proof of completion of the continuing legal education   requirements].          (m)  Each [The] local selection committee shall annually   review the list of attorneys posted under Subsection (c-1) [(d)] to   ensure that each listed attorney satisfies the requirements under   this chapter.          SECTION 2.  Article 26.052(n), Code of Criminal Procedure,   is repealed.          SECTION 3.  The change in law made by this Act applies only   to a capital felony case that is filed on or after the effective   date of this Act. A capital felony case that is filed before the   effective date of this Act is governed by the law in effect on the   date the case was filed, and the former law is continued in effect   for that purpose.          SECTION 4.  This Act takes effect September 1, 2023.