Dutton Inmate Legal Services Bill Pegs Pay To Prosecutors

The text as introduced · 1,910 words

89R11387 MCF-D

By: Dutton
H.B. No. 2647

A BILL TO BE ENTITLED

AN ACT

relating to the establishment of the inmate legal services office

and to the appointment and compensation of certain legal counsel

for certain indigent inmates and other persons in secure

correctional facilities.

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

SECTION 1. Subtitle F, Title 2, Government Code, is amended

by adding Chapter 78A to read as follows:

CHAPTER 78A. INMATE LEGAL SERVICES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 78A.001. DEFINITIONS. In this chapter:

(1) "Board" means the inmate legal services board of

directors established under Subchapter B.

(2) "Office" means the inmate legal services office

established under Subchapter C.

SUBCHAPTER B. INMATE LEGAL SERVICES BOARD

Sec. 78A.051. ESTABLISHMENT OF BOARD; DUTIES. (a) The

inmate legal services board of directors is established. The

provision of inmate legal services under this chapter is governed

by the board.

(b) The board shall hire a director for the inmate legal

services office as provided by Section 78A.053 when a vacancy

exists for the position of director.

Sec. 78A.052. APPOINTMENT AND COMPOSITION OF BOARD. (a)

The board is composed of the following nine members to be appointed

by the president of the State Bar of Texas, with ratification by the

executive committee of the State Bar of Texas:

(1) five attorneys who are employed as executive

directors or chief public defenders of a public defender's office,

as defined by Article 26.044, Code of Criminal Procedure; and

(2) four criminal defense attorneys each of whom:

(A) practices in a county in which there is a

confinement facility operated by or under contract with the Texas

Department of Criminal Justice; and

(B) has experience representing indigent

defendants in this state.

(b) Each member of the board must be a member of the State

Bar of Texas and may not be employed as or otherwise performing the

functions of a prosecutor or a law enforcement official.

(c) The board shall elect one member of the board to serve as

the presiding officer of the board.

(d) Board members serve two-year terms expiring February 1

of each even-numbered year.

(e) The board meets at least annually at the call of the

presiding officer of the board.

Sec. 78A.053. APPOINTMENT OF DIRECTOR OF INMATE LEGAL

SERVICES OFFICE. (a) The board, by a majority vote, shall hire a

director of the inmate legal services office when a vacancy exists

for the position of director.

(b) A person hired by the board under Subsection (a):

(1) must be committed to providing quality

representation to indigent clients consistent with the principles

of a public defense delivery system as established by the American

Bar Association;

(2) may not have been found by a state or federal court

to have rendered ineffective assistance of counsel during the trial

or appeal of a criminal defense case;

(3) must be a member of the State Bar of Texas;

(4) must have practiced law for at least three years;

and

(5) must have substantial experience in the practice

of criminal law.

(c) The board shall determine the director's compensation,

which must maintain parity with the compensation of the chief of the

special prosecution unit under Subchapter E, Chapter 41.

SUBCHAPTER C. INMATE LEGAL SERVICES OFFICE

Sec. 78A.101. ESTABLISHMENT. The inmate legal services

office is established and operates under the direction and

supervision of the director of the office.

Sec. 78A.102. DIRECTOR; STAFF. (a) The board shall hire a

director to direct and supervise the operation of the office as

provided by Section 78A.053. The director serves a four-year term

and continues to serve until a successor has been hired and

qualified. The board may remove the director only for good cause.

The director may be retained or rehired for a second or subsequent

term.

(b) The director shall employ attorneys and employ or retain

licensed investigators and other personnel necessary to perform the

duties and accomplish the purposes of the office.

(c) The director and any attorney employed by the office may

not:

(1) engage in the private practice of criminal law; or

(2) accept anything of value not authorized by law for

services rendered under this subchapter.

(d) The board shall determine the compensation of office

employees, which must maintain parity with the compensation of

employees of the special prosecution unit under Subchapter E,

Chapter 41.

Sec. 78A.103. POWERS AND DUTIES. (a) The office may not

accept an appointment under Article 26.051, Code of Criminal

Procedure, or Section 841.005, Health and Safety Code, if:

(1) a conflict of interest exists that has not been

waived by the client;

(2) the office has insufficient resources to provide

adequate representation for the client;

(3) the office is incapable of providing

representation for the client in accordance with the rules of

professional conduct;

(4) the acceptance of the appointment would require

attorneys at the office to have a caseload that exceeds the maximum

allowable caseload established by the office; or

(5) other good cause is shown for not accepting the

appointment.

(b) On refusing to accept an appointment, the director shall

file with the court a written statement that identifies the reason

for the refusal. The court shall determine whether the director has

demonstrated adequate good cause for refusing the appointment and

shall include the statement with the papers in the case.

(c) A director may not be terminated, removed, or sanctioned

for refusing in good faith to accept an appointment under Article

26.051, Code of Criminal Procedure, or Section 841.005, Health and

Safety Code.

Sec. 78A.104. COMPENSATION OF OTHER APPOINTED ATTORNEYS.

If it is necessary that an attorney other than an attorney employed

by the office be appointed, that attorney shall be compensated as

provided by Article 26.051(h), Code of Criminal Procedure.

Sec. 78A.105. ACCESS TO CERTAIN FACILITIES, WITNESSES, AND

DOCUMENTS FOR INVESTIGATION. Attorneys and investigators employed

or retained by the office shall be allowed access to a facility

operated by or under contract with the Texas Department of Criminal

Justice as necessary to:

(1) confer with a client of the office or witness to an

offense alleged to have been committed by a client of the office; or

(2) comply with a court's order.

SECTION 2. Articles 26.051(a), (d), (e), (g), and (h), Code

of Criminal Procedure, are amended to read as follows:

(a) In this article:

(1) [ "Board" means the Texas Board of Criminal

Justice.

[ (2) ] "Correctional institutions division" means the

correctional institutions division of the Texas Department of

Criminal Justice.

(2) "Office" means the inmate legal services office

established under Subchapter C, Chapter 78A, Government Code.

(d) A court shall:

(1) notify the office [ board ] if the court [ it ]

determines that a defendant before the court is indigent and is an

inmate charged with an offense committed while in the custody of the

correctional institutions division or a correctional facility

authorized by Section 495.001, Government Code; and

(2) request that the office [ board ] provide legal

representation for the inmate.

(e) The office [ board ] shall provide legal representation

for inmates described by Subsection (d) [ of this section ]. [ The

board may employ attorneys, support staff, and any other personnel

required to provide legal representation for those inmates. All

personnel employed under this article are directly responsible to

the board in the performance of their duties. ] The office [ board ]

shall pay all fees and costs associated with providing legal

representation for those inmates.

(g) The court shall appoint an attorney other than an

attorney provided by the office [ 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 office [ 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 office [ 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

office; or

(4) the office refuses to accept the appointment as

provided by Section 78A.103(a), Government Code [ board ].

(h) When the court appoints an attorney other than an

attorney provided by the office [ board ]:

(1) except as otherwise provided by this article, the

inmate's legal defense is subject to Articles 1.051, 26.04, 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.

SECTION 3. Section 841.005, Health and Safety Code, is

amended to read as follows:

Sec. 841.005. INMATE LEGAL SERVICES OFFICE [ OF STATE

COUNSEL FOR OFFENDERS ]. (a) Except as provided by Subsection (b),

the inmate legal services office established under Subchapter C,

Chapter 78A, Government Code, [ Office of State Counsel for

Offenders ] shall represent an indigent person subject to a civil

commitment proceeding under this chapter.

(b) If for any reason the inmate legal services office

[ Office of State Counsel for Offenders ] is unable to represent an

indigent person described by Subsection (a) at a civil commitment

proceeding under this chapter, the court shall appoint other

counsel to represent the indigent person.

SECTION 4. (a) Not later than December 1, 2025, the

president of the State Bar of Texas shall appoint and the executive

committee of the State Bar of Texas shall ratify the members of the

inmate legal services board of directors as required by Section

78A.052, Government Code, as added by this Act. Notwithstanding

the terms of board member service provided by that section, the term

of an initial member of the board of directors expires February 1,

2028.

(b) Not later than January 1, 2026, the inmate legal

services board of directors shall hire a director for the inmate

legal services office as required by Section 78A.053, Government

Code, as added by this Act.

SECTION 5. Article 26.051, Code of Criminal Procedure, and

Section 841.005, Health and Safety Code, as amended by this Act,

apply only to legal representation appointed under those provisions

on or after February 1, 2026. Legal representation appointed

before February 1, 2026, is governed by the law in effect

immediately before the effective date of this Act, and the former

law is continued in effect for that purpose.

SECTION 6. (a) On the effective date of this Act, an

employee of the Office of State Counsel for Offenders, other than

the director of the office, becomes an employee of the inmate legal

services office established under Subchapter C, Chapter 78A,

Government Code, as added by this Act.

(b) On or after September 1, 2026, the director of the

inmate legal services office shall evaluate the performance of each

employee described by Subsection (a) of this section and determine

whether there is good cause to remove an employee.

SECTION 7. This Act takes effect September 1, 2025.