Texas Code of Criminal Procedure - Article 26.052. Appointment Of Counsel In Death Penalty Case; Reimbursement Of Investigative Expenses
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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.
(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;
(2) specific facts that suggest the investigation will
result in admissible evidence; and
(3) an itemized list of anticipated expenses for each
investigation.
(g) The court shall grant the request for advance payment of
expenses in whole or in part if the request is reasonable. If the
court denies in whole or in part the request for expenses, the court
shall:
(1) state the reasons for the denial in writing;
(2) attach the denial to the confidential request; and
(3) submit the request and denial as a sealed exhibit to the
record.
(h) Counsel may incur expenses without prior approval of the
court. On presentation of a claim for reimbursement, the court
shall order reimbursement of counsel for the expenses, if the
expenses are reasonably necessary and reasonably incurred.
(i) If the indigent defendant is convicted of a capital
felony and sentenced to death, the defendant is entitled to be
represented by competent counsel on appeal and to apply for a writ
of certiorari to the United States Supreme Court.
(j) As soon as practicable after a death sentence is imposed
in a capital felony case, the presiding judge of the convicting
court shall appoint counsel to represent an indigent defendant on
appeal and to apply for a writ of certiorari, if appropriate.
(k) The court may not appoint an attorney as counsel on
appeal if the attorney represented the defendant at trial, unless:
(1) the defendant and the attorney request the appointment
on the record; and
(2) the court finds good cause to make the appointment.
(l) An attorney appointed under this article to represent a
defendant at trial or on direct appeal is compensated as provided by
Article 26.05 from county funds. Advance payment of expenses
anticipated or 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.
(m) The local selection committee shall annually review the
list of attorneys posted under Subsection (d) to ensure that each
listed attorney satisfies the requirements under this chapter.
Added by Acts 1995, 74th Leg., ch. 319, Sec. 2, eff. Sept. 1, 1995.
Subsec. (l) amended by Acts 1999, 76th Leg., ch. 837, Sec. 2, eff.
Sept. 1, 1999; Subsecs. (d), (e) amended by Acts 2001, 77th Leg.,
ch. 906, Sec. 9, eff. Jan. 1, 2002; Subsec. (l) amended by Acts
2001, 77th Leg., ch. 1420, Sec. 14.735, eff. Sept. 1, 2001; Subsec.
(m) added by Acts 2001, 77th Leg., ch. 906, Sec. 9, eff. Jan. 1,
2002; Subsec. (d) amended by Acts 2005, 79th Leg., ch. 787, Sec. 14,
eff. Sept. 1, 2005; Subsec. (d) amended by Acts 2005, 79th Leg., ch.
965, Sec. 7, eff. Sept. 1, 2005.
Article: 26.011 26.02 26.03 26.04 26.044 26.05 26.051 26.052 26.053 26.055 26.056 26.057 26.06 26.07 26.08
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Last modified: August 10, 2007
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