Relating to legal representation of indigent persons in this state and to proceedings before a magistrate including the appointment of counsel for an indigent defendant.

89(R) HB 4915 - House Committee Report version - Bill Text

89R26572 EAS-D

By: Moody

H.B. No. 4915

Substitute the following for H.B. No. 4915:

By: Moody

C.S.H.B. No. 4915

A BILL TO BE ENTITLED

AN ACT

relating to legal representation of indigent persons in this state

and to proceedings before a magistrate including the appointment of

counsel for an indigent defendant.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Article 11.074, Code of Criminal Procedure, is

amended by amending Subsection (b) and adding Subsection (b-1) to

read as follows:

(b) If at any time the state represents to the convicting

court that an eligible indigent defendant under Article 1.051
has

under a writ of habeas corpus a potentially meritorious claim for

relief from a judgment described by Subsection (a)
[
who was

sentenced or had a sentence suspended is not guilty, is guilty of

only a lesser offense, or was convicted or sentenced under a law

that has been found unconstitutional by the court of criminal

appeals or the United States Supreme Court
], the court shall

appoint an attorney to
investigate the claim and
represent the

indigent defendant for purposes of filing an application for a writ

of habeas corpus, if an application has not been filed, or to

otherwise represent the indigent defendant in a proceeding based on

the application for the writ.

(b-1)

For purposes of Subsection (b), a potentially

meritorious claim is any claim the court determines is likely to

provide relief, including a claim that the defendant:

(1) is or may be actually innocent of the offense;

(2) is or may be guilty of only a lesser offense;

(3)

was or may have been convicted or sentenced under a

law that has been found unconstitutional by the court of criminal

appeals or the United States Supreme Court; or

(4)

was or may have been convicted or sentenced in

violation of the constitution of this state or the United States.

SECTION 2. Articles 15.17(a) and (f), Code of Criminal

Procedure, are amended to read as follows:

(a)
(1)
In each case enumerated in this Code, the person

making the arrest or the person having custody of the person

arrested shall without unnecessary delay, but not later than 48

hours after the person is arrested, take the person arrested or have

the person
[
him
] taken before some magistrate of the county where

the
person
[
accused
] was arrested or, to provide more expeditiously

to the person arrested the warnings described by this article,

before a magistrate in any other county of this state. The arrested

person may be taken before the magistrate in person or the image
and

sound
of the arrested person may be presented to the magistrate by

means of a videoconference.
For purposes of this subsection,

"videoconference" means a two-way electronic communication of

image and sound between the arrested person and the magistrate and

includes secure Internet videoconferencing.

(2)
The magistrate shall inform in clear language the

person arrested, either in person or through a videoconference, of
:

(A)
the accusation against
the person
[
him
] and

of any affidavit filed
with the accusation;

(B) the person's
[
therewith, of his
] right to

retain counsel
;

(C) the person's
[
, of his
] right to remain

silent
and to not make a statement;

(D)

the fact that any statement the person makes

may be used against the person;

(E) the person's
[
, of his
] right to have an

attorney present during any interview with peace officers or

attorneys representing the state
;

(F) the person's
[
, of his
] right to terminate

the interview at any time
;

(G) the person's
[
, and of his
] right to have an

examining trial
;

(H)
[
. The magistrate shall also inform the

person arrested of
] the person's right to request the appointment

of counsel if the person cannot afford counsel
; and

(I)
[
. The magistrate shall inform the person

arrested of
] the procedures for requesting appointment of counsel.

(3)
If applicable, the magistrate shall inform the

person that the person may file the affidavit described by Article

17.028(f).

(4)
If the person does not speak and understand the

English language or is deaf, the magistrate shall inform the person

in a manner consistent with Articles 38.30 and 38.31, as

appropriate.

(5)

If the proceeding is conducted through a

videoconference, the magistrate shall ensure that the arrested

person is able to connect to and understand the image and sound of

the videoconference.

(6)

If the magistrate has reasonable cause to believe

that the arrested person has a mental illness or is a person with an

intellectual disability, the magistrate shall follow the

procedures under Article 16.22.

(7)

If the magistrate is unable to ensure that the

arrested person is able to understand and participate in the

proceeding, the magistrate shall:

(A)

if the magistrate has appointing authority,

appoint counsel for the person; or

(B)

if the magistrate does not have appointing

authority, notify the appointing authority of the person's

inability to understand and participate in the proceeding.

(8)
The magistrate shall ensure that reasonable

assistance in completing the necessary forms for requesting

appointment of counsel is provided to the
arrested
person at the

same time
the person is informed of the person's rights under this

subsection
.

(9)
If the [
person
] arrested
person
is indigent and

requests appointment of counsel and if the magistrate is authorized

under Article 26.04 to appoint counsel for indigent defendants in

the county, the magistrate shall appoint counsel in accordance with

Article 1.051. If the magistrate is not authorized to appoint

counsel, the magistrate shall without unnecessary delay, but not

later than 24 hours after the [
person
] arrested
person
requests

appointment of counsel, transmit, or cause to be transmitted to the

court or to the courts' designee authorized under Article 26.04 to

appoint counsel in the county, the
necessary
forms
for
requesting

and ruling on
the appointment of counsel. [
The magistrate shall

also inform the person arrested that he is not required to make a

statement and that any statement made by him may be used against

him.
]

(10)
The magistrate shall allow the [
person
] arrested

person
reasonable time and opportunity to consult counsel and

shall, after determining whether the person is currently on bail

for a separate criminal offense and whether the bail decision is

subject to Article 17.027, admit the person [
arrested
] to bail if

allowed by law.

(11)
A record of the communication between the

arrested person and the magistrate shall be made. [
The record shall

be preserved until the earlier of the following dates:

[
(1) the date on which the pretrial hearing ends; or

[
(2)

the 91st day after the date on which the record is

made if the person is charged with a misdemeanor or the 120th day

after the date on which the record is made if the person is charged

with a felony. For purposes of this subsection, "videoconference"

means a two-way electronic communication of image and sound between

the arrested person and the magistrate and includes secure Internet

videoconferencing.
]

(f) A record required under Subsection (a) or (e) may

consist of written forms, electronic recordings, or other

documentation as authorized by procedures adopted in the county

under Article 26.04(a).
The record must be retained for at least

two years after final judgment is entered in the case or the

proceedings are otherwise terminated.
The counsel for the defendant

may obtain a copy of the record on payment of a reasonable amount to

cover the costs of reproduction or, if the defendant is indigent,

the court shall provide a copy to the defendant without charging a

cost for the copy.

SECTION 3. Article 26.04, Code of Criminal Procedure, is

amended by adding Subsection (i-1) to read as follows:

(i-1)

Notwithstanding Subsection (j)(2) or any other law,

and if funds are appropriated by a county for this purpose, an

attorney may be appointed under this article to represent an

indigent person for the sole purpose of providing counsel in

relation to that person's appearance before a magistrate as

required by Article 14.06(a), 15.17(a), or 15.18(a). The attorney

may represent the person in subsequent proceedings of that case,

only if appointed for that purpose under the other provisions of

this article.

SECTION 4. Article 26.044, Code of Criminal Procedure, is

amended by adding Subsection (i-1) and amending Subsection (l) to

read as follows:

(i-1)

Notwithstanding Subsection (i)(1), an attorney

engaged in the private practice of criminal law may be employed by a

public defender's office on a part-time basis for the sole purpose

of providing counsel in relation to an indigent person's appearance

before a magistrate as required by Article 14.06(a), 15.17(a), or

15.18(a).

(l) A public defender's office may investigate the

financial condition of any person the public defender's office is

appointed to represent. [
The public defender's office 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.
]

SECTION 5. Article 26.047(a)(2), Code of Criminal

Procedure, is amended to read as follows:

(2) "Managed assigned counsel program" or "program"

means a program
to perform delegated judicial functions using

public funds that is
operated [
with public funds
]:

(A) by a governmental entity, nonprofit

corporation, or bar association under a written agreement with a

governmental entity, other than an individual judge or court; [
and
]

(B) for the purpose of appointing counsel under

Article 26.04 of this code or Section 51.10, Family Code
;

(C)

for the purpose of appointing or providing an

investigator, expert, or other support services for appointed

counsel and their clients;

(D)

for the purpose of approving a payment to an

attorney, investigator, or expert, and for other reasonable and

necessary expenses under Article 26.05 or 26.052, including a

payment for legal representation in a related matter for the

purpose of ensuring the right to counsel in the primary matter; and

(E)

for the purpose of overseeing and improving

the quality of representation provided to clients by attorneys

appointed under this article
.

SECTION 6. Article 26.047, Code of Criminal Procedure, is

amended by amending Subsections (c), (f), and (g) and adding

Subsection (j) to read as follows:

(c) The commissioners court or commissioners courts shall

require a written plan of operation from an entity operating a

program under this article. The plan of operation must include:

(1) a budget for the program, including salaries;

(2) a description of each personnel position,

including the program's director;

(3) the maximum allowable caseload for each attorney

appointed by the program;

(4) provisions for training personnel of the program

and attorneys appointed under the program;

(5) a description of anticipated overhead costs for

the program;

(6) a policy regarding licensed investigators and

expert witnesses used by attorneys appointed under the program;

(7) a policy to ensure that appointments are

reasonably and impartially allocated among qualified attorneys;

[
and
]

(8) a policy to ensure that an attorney appointed

under the program does not accept appointment in a case that

involves a conflict of interest for the attorney that has not been

waived by all affected clients
;

(9)

a policy describing the circumstances under which

the program may allow appointed counsel to provide representation

in a related matter for the purpose of ensuring the right to counsel

in the primary matter;

(10)

a policy describing the circumstances under

which:

(A) an attorney may withdraw from a case; and

(B)

good cause is established to remove an

attorney from a case; and

(11)

procedures the program will use to maintain the

confidentiality of data related to clients whose information is

held in the juvenile justice system, including which staff may

access that data
.

(f) The program's public appointment list from which an

attorney is appointed must contain the names of qualified

attorneys, each of whom:

(1) applies to be included on the list;

(2) meets any applicable requirements specified by the

procedure for appointing counsel adopted under Article 26.04(a) and

any other requirements specified by
the Texas Indigent Defense

Commission; and

(3) is approved by the program director or review

committee, as applicable.

(g) A court may replace an attorney appointed by the program

for the same reasons and in the same manner described by Article

26.04(k).
The notice and reason for the replacement of counsel must

be documented in the same manner as the original appointment.

(j)

A program may receive information necessary to perform

the program's functions under this article, including materials

that are subject to attorney-client privilege, subject to attorney

work-product privilege, or otherwise protected by constitutional

or statutory rights of a client represented by an attorney

appointed under this article. Information and materials described

by this subsection and information and materials related to a

purpose described by Subsection (a)(2)(C) are confidential and not

subject to disclosure, and the program, the attorneys appointed

under this article, and other individuals, as applicable, shall

maintain the confidentiality of any information or materials

described by this subsection.

SECTION 7. Article 26.05, Code of Criminal Procedure, is

amended by amending Subsections (a), (c), and (d) and adding

Subsection (d-1) to read as follows:

(a) A counsel, other than an attorney with a public

defender's office or an attorney employed by the office of capital

and forensic writs, 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,
including time spent traveling to perform legal

services outside the county where the case is pending,
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.

(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 or, if the

county operates a managed assigned counsel program under Article

26.047, to the director of the program
or the director's designee
,

and until the judge or
the
director
or director's designee
, as

applicable, approves the payment. If the judge or
the
director
or

director's designee
disapproves the requested amount of payment,

the judge or
the
director
or director's designee
shall make written

findings stating the amount of payment that the judge or
the

director
or director's designee
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's office, appointed to represent a defendant

under this code shall be reimbursed for reasonable and necessary

expenses, including expenses for
:

(1)
investigation
;

(2)
[
and for
] mental health and other experts
; and

(3)

if the defendant is confined in a correctional

facility located more than 50 miles from the court in which the

defendant's proceeding is pending:

(A)

travel to the defendant's location for a

confidential communication and food and lodging related to that

travel; and

(B)

any costs associated with remotely entering

into a confidential communication with the defendant
.

(d-1)
Expenses
under Subsection (d)
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
under

Subsection (d)
incurred without prior court approval shall be

reimbursed in the manner provided for capital cases by Article

26.052(h).

SECTION 8. Article 26.051, Code of Criminal Procedure, is

amended by amending Subsections (g), (h), and (i) and adding

Subsection (h-1) to read as follows:

(g) The court shall appoint
the public defender's office or

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
the public defender's office or

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,
26.044,

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.

(h-1)

If the court appoints a public defender's office under

Subsection (g), the public defender's office shall certify to the

court the amount of expenses incurred in the representation. The

court shall submit the certified amount to the comptroller for

reimbursement of the county by the state as described by Subsection

(i).

(i) The state shall reimburse a county for attorney

compensation and expenses awarded under Subsection (h)
and for any

expenses of a public defender's office that are certified under

Subsection (h-1)
. 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
certified
amount [
certified by the court
].

SECTION 9. Section 411.082, Government Code, is amended by

adding Subdivision (4-a) to read as follows:

(4-a)

"Managed assigned counsel program" has the

meaning assigned by Article 26.047, Code of Criminal Procedure.

SECTION 10. Section 411.088(a-1), Government Code, is

amended to read as follows:

(a-1) The department may not charge a fee under Subsection

(a) for providing criminal history record information to:

(1) a criminal justice agency;

(2) the office of capital and forensic writs; [
or
]

(3) a public defender's office
; or

(4) a managed assigned counsel program
.

SECTION 11. Section 411.1272, Government Code, is amended

to read as follows:

Sec. 411.1272. ACCESS TO CRIMINAL HISTORY RECORD

INFORMATION: OFFICE OF CAPITAL AND FORENSIC WRITS
,
[
AND
] PUBLIC

DEFENDER'S OFFICES
, AND MANAGED ASSIGNED COUNSEL PROGRAMS
. The

office of capital and forensic writs
,
[
and
] a public defender's

office
, and a managed assigned counsel program
are entitled to

obtain from the department criminal history record information

maintained by the department that relates to a criminal case in

which an attorney compensated by the office of capital and forensic

writs or by the public defender's office
has been appointed by the

court or in which an attorney has been appointed by the managed

assigned counsel program, as applicable
[
has been appointed
].

SECTION 12. Section 25.025(a), Tax Code, as amended by

Chapters 76 (S.B. 617), 152 (S.B. 870), 430 (H.B. 1911), 765 (H.B.

4504), and 937 (S.B. 1525), Acts of the 88th Legislature, Regular

Session, 2023, is reenacted and amended to read as follows:

(a) This section applies only to:

(1) a current or former peace officer as defined by

Article 2A.001, Code of Criminal Procedure, and the spouse or

surviving spouse of the peace officer;

(2) the adult child of a current peace officer as

defined by Article 2A.001, Code of Criminal Procedure;

(3) a current or honorably retired county jailer as

defined by Section 1701.001, Occupations Code;

(4) an employee of the Texas Department of Criminal

Justice;

(5) a commissioned security officer as defined by

Section 1702.002, Occupations Code;

(6) an individual who shows that the individual, the

individual's child, or another person in the individual's household

is a victim of family violence as defined by Section 71.004, Family

Code, by providing:

(A) a copy of a protective order issued under

Chapter 85, Family Code, or a magistrate's order for emergency

protection issued under Article 17.292, Code of Criminal Procedure;

or

(B) other independent documentary evidence

necessary to show that the individual, the individual's child, or

another person in the individual's household is a victim of family

violence;

(7) an individual who shows that the individual, the

individual's child, or another person in the individual's household

is a victim of sexual assault or abuse, stalking, or trafficking of

persons by providing:

(A) a copy of a protective order issued under

Subchapter A or B, Chapter 7B, Code of Criminal Procedure, or a

magistrate's order for emergency protection issued under Article

17.292, Code of Criminal Procedure; or

(B) other independent documentary evidence

necessary to show that the individual, the individual's child, or

another person in the individual's household is a victim of sexual

assault or abuse, stalking, or trafficking of persons;

(8) a participant in the address confidentiality

program administered by the attorney general under Subchapter B,

Chapter 58, Code of Criminal Procedure, who provides proof of

certification under Article 58.059, Code of Criminal Procedure;

(9) a federal judge, a federal bankruptcy judge, a

marshal of the United States Marshals Service, a state judge, or a

family member of a federal judge, a federal bankruptcy judge, a

marshal of the United States Marshals Service, or a state judge;

(10) a current or former district attorney, criminal

district attorney, or county or municipal attorney whose

jurisdiction includes any criminal law or child protective services

matters;

(11) a current or former employee of a district

attorney, criminal district attorney, or county or municipal

attorney whose jurisdiction includes any criminal law or child

protective services matters;

(12) an officer or employee of a community supervision

and corrections department established under Chapter 76,

Government Code, who performs a duty described by Section 76.004(b)

of that code;

(13) a criminal investigator of the United States as

described by Article 2A.002(a), Code of Criminal Procedure;

(14) a current or honorably retired police officer or

inspector of the United States Federal Protective Service;

(15) a current or former United States attorney,

assistant United States attorney, federal public defender, deputy

federal public defender, or assistant federal public defender and

the spouse and child of the attorney or public defender;

(16) a current or former employee of the office of the

attorney general who is or was assigned to a division of that office

the duties of which involve law enforcement or are performed under

Chapter 231, Family Code;

(17) a medical examiner or person who performs

forensic analysis or testing who is employed by this state or one or

more political subdivisions of this state;

(18) a current or former member of the United States

armed forces who has served in an area that the president of the

United States by executive order designates for purposes of 26

U.S.C. Section 112 as an area in which armed forces of the United

States are or have engaged in combat;

(19) a current or former employee of the Texas

Juvenile Justice Department or of the predecessors in function of

the department;

(20) a current or former juvenile probation or

supervision officer certified by the Texas Juvenile Justice

Department, or the predecessors in function of the department,

under Title 12, Human Resources Code;

(21) a current or former employee of a juvenile

justice program or facility, as those terms are defined by Section

261.405, Family Code;

(22) a current or former employee of the Texas Civil

Commitment Office or the predecessor in function of the office or a

division of the office;

(23) a current or former employee of a federal judge or

state judge;

(24) a current or former child protective services

caseworker, adult protective services caseworker, or investigator

for the Department of Family and Protective Services or a current or

former employee of a department contractor performing child

protective services caseworker, adult protective services

caseworker, or investigator functions for the contractor on behalf

of the department;

(25) an elected public officer;

(26) a firefighter or volunteer firefighter or

emergency medical services personnel as defined by Section 773.003,

Health and Safety Code;

(27) a customs and border protection officer or border

patrol agent of United States Customs and Border Protection or the

spouse, surviving spouse, or adult child of a customs and border

protection officer or border patrol agent
;

(28)
[
(27)

a current or former attorney for the

Department of Family and Protective Services

[
(27)
] a current or former employee or contract staff

member of a university health care provider at a corrections

facility operated by the Texas Department of Criminal Justice or

the Texas Juvenile Justice Department; [
and
]

(29)
[
(28)
] a current or former attorney for the

Department of Family and Protective Services
;

(30)

an employee of a public defender's office, as

defined by Article 26.044, Code of Criminal Procedure; and

(31)

an employee of a managed assigned counsel

program, as defined by Article 26.047, Code of Criminal Procedure
.

SECTION 13. Section 730.007(c), Transportation Code, is

amended to read as follows:

(c) This section does not:

(1) prohibit the disclosure of a person's photographic

image to:

(A) a law enforcement agency, the Texas

Department of Motor Vehicles, a county tax assessor-collector, or a

criminal justice agency for an official purpose;

(B) an agency of this state investigating an

alleged violation of a state or federal law relating to the

obtaining, selling, or purchasing of a benefit authorized by

Chapter 31 or 33, Human Resources Code; [
or
]

(C) an agency of this state investigating an

alleged violation of a state or federal law under authority

provided by Title 4, Labor Code; or

(D)

a private investigator licensed under

Chapter 1702, Occupations Code, who is employed by a public

defender's office for an official purpose; or

(2) prevent a court from compelling by subpoena the

production of a person's photographic image.

SECTION 14. To the extent of any conflict, this Act prevails

over another Act of the 89th Legislature, Regular Session, 2025,

relating to nonsubstantive additions to and corrections in enacted

codes.

SECTION 15. Article 11.074, Code of Criminal Procedure, as

amended by this Act, applies regardless of whether the offense for

which the applicant is in custody was committed before, on, or after

the effective date of this Act.

SECTION 16. Article 15.17, Code of Criminal Procedure, as

amended by this Act, and Article 26.04(i-1), Code of Criminal

Procedure, as added by this Act, apply only to a person who is

arrested on or after the effective date of this Act. A person

arrested before the effective date of this Act is governed by the

law in effect on the date the person was arrested, and the former

law is continued in effect for that purpose.

SECTION 17. Article 26.05, Code of Criminal Procedure, as

amended by this Act, applies only to expenses incurred on or after

the effective date of this Act.

SECTION 18. This Act takes effect September 1, 2025.