Pretrial, Defense & Innocence – Successful Bills, 2013

HB 577 | HB 1318 | HB 1847 | HB 2090 | SB 344 | SB 825 | SB 1044 | SB 1292 | SB 1475 | SB 1611

The Governor signed the following bills into law in 2013:

• HB 577 (Guillen) [Sponsor: Ellis]: Relating to the representation of certain applicants for writs of habeas corpus in cases involving the death penalty. Under previous law, all writs were delegated to the Office of Capital Writs. This bill clarifies that only capital writs should be delegated to that Office. Effective Immediately (June 2013).

• HB 1318 (Turner, Sylvester) [Sponsor: Whitmire]: Relating to the appointment of counsel to represent certain youths and indigent defendants. This bill requires court-appointed attorneys to annually report information on their caseloads to the county in which they practice; counties, in turn, will submit that information to the Texas Indigent Defense Commission. Not only will this improve accountability through increased data collection and information sharing, it will give local judges the tools to make effective appointments, while preserving local control over caseload standards. Furthermore, through a mandated study by the Commission on appointed attorney caseloads, this bill will help state leadership make critical, well-informed decisions about caseload standards, best practices, and resource allocation.

Separately, HB 1318 prohibits a public defender’s office from accepting a case if doing so would violate the maximum allowable caseload established at that office. If a public defender’s office fails to accept a case, the Chief Public Defender must submit a written explanation to the court, showing good cause. The Chief cannot be terminated or sanctioned for refusing to accept a case in good faith. Effective September 1, 2013; Sections 1 and 6 effective September 1, 2014.

Note: For HB 1318 provisions relating to youth defense, click here.

• HB 1847 (Carter) [Sponsor: Huffman]: Relating to continuing legal education in ethics or professional responsibility for prosecutors. This bill requires that within 6 months of starting work as a prosecuting attorney, a person must complete at least one hour of continuing legal education relating to the duty of a prosecuting attorney to disclose exculpatory and mitigating evidence in a criminal case. This bill will serve as an important tool in highlighting contributors to prosecutorial misconduct, and may ultimately prevent future wrongful convictions or incarcerations. Effective January 1, 2014.

• HB 2090 (Canales) [Sponsor: Hinojosa]: Relating to a written statement made by an accused as a result of custodial interrogation. The U.S. Constitution protects individuals from being compelled in a criminal case to be a witness against himself or herself. Texas law did not, however, require a signed written statement to be in a language that the accused can read and understand. As a result, an individual who does not read or comprehend English could have potentially signed a statement in English without understanding its contents, increasing the chances of an erroneous conviction. This contravenes the basic tenants of our justice system and runs contrary to the constitutional protection against being compelled to be a witness against oneself. HB 2090 requires a written statement that is signed by the accused to be made in a language that he or she can read and understand before it can be admitted as evidence in a criminal proceeding. Effective September 1, 2013.

• SB 344 (Whitmire) [Sponsor: Turner, Sylvester; Wu]: Relating to the procedure for an application for a writ of habeas corpus based on relevant scientific evidence. This bill allows an individual to file a writ of habeas corpus seeking relief from a conviction if scientific evidence is discovered that would negate the conviction. Such evidence must not have been available to the defendant through reasonable diligence at the time of the original trial – but had it been available, it would have had to have been relevant, admissible, and likely to have negated the conviction. This bill will allow incarcerated individuals to take advantage of new technology and evidence that can prove their innocence, and potentially cut back on further incarceration expenses. Effective September 1, 2013.

• SB 825 (Whitmire) [Sponsor: Thompson, Senfronia]: Relating to disciplinary standards and procedures applicable to grievances alleging certain prosecutorial misconduct. Texas code allows individuals to file grievances against attorneys for misconduct, and it sets out various disciplinary measures (including reprimands). SB 825 requires the state Supreme Court to establish a rule that prohibits a simple private reprimand if a prosecutor fails to disclose evidence or information to the defense that would have negated an individual’s guilt or mitigated the offense.

Furthermore, this bill changes the 4-year statute of limitations period to file a grievance against an attorney for failure to disclose evidence; the statute will begin to toll on the date that the wrongfully imprisoned person is released from a prison or state jail (rather than the date when the violation was discovered). This gives individuals an adequate opportunity to file a grievance based on prosecutorial misconduct, increases public confidence in the justice system, and improves accountability and transparency. Effective September 1, 2013.

• SB 1044 (Rodríguez) [Sponsor: Walle; Moody]: Relating to access to criminal history record information by certain entities, including certain local government corporations, public defender’s offices, and the office of capital writs, and to an exemption for those offices from fees imposed for processing inquiries for that information. This bill creates uniform standards regarding attorneys’ access to criminal history record information, which is necessary to fully and effectively represent defendants. Specifically, it will entitle the following offices to fee-exempt access to relevant records maintained by the Texas Department of Public Safety: public defender’s offices, the Office of Capital Writs, and certain local government corporations created to conduct criminal identification activities (background checks). Effective September 1, 2013.

• SB 1292 (Ellis) [Sponsor: Turner, Sylvester; Miles; Carter]: Relating to DNA testing of biological evidence in certain capital cases. This bill requires the Department of Public Safety to perform DNA testing on all biological evidence collected during the investigation of an offense in which the state is seeking the death penalty. If the state and the defendant do not agree as to what constitutes biological evidence, either party may request a hearing to determine the answer, and all DNA collection must be completed before the formal trial begins. This will protect due process and reduce wrongful convictions, while also saving the state significant funds by reducing costly appeals, unnecessary incarceration, and long-term compensation costs. Effective September 1, 2013.

• SB 1475 (Duncan) [Sponsor: Zerwas]: Relating to a jail-based restoration of competency pilot program. This bill creates a 4-year, permissive competency restoration pilot program in up to two county jails to treat defendants who are incompetent to stand trial. Under the bill, the Department of State Health Services (DSHS) must authorize a private provider to operate and manage the program, and a stakeholder workgroup – to include county leadership, law enforcement, a judge and attorneys, a representative of a mental health provider, and mental health advocates – will help to develop rules for the program. The provider must meet strict criteria that will be critical in ensuring strong care for program participants.

If the provider determines that a defendant will not immediately begin to receive competency restoration services, the defendant will be transferred to an appropriate mental health facility or residential care facility, as provided by the court order. Furthermore, when it is determined that the defendant has achieved competency, the provider’s psychologist must immediately notify the court. On the other hand, if the psychologist determines that competency is unlikely to be restored or the defendant has not reached competency after 60 days, the psychologist will work with the court to place the defendant in another setting or handle the defendant’s case in another way.

Also under this bill, if DSHS does establish a pilot program, it must submit a report to various legislative committee heads by December 2016 outlining the program outcomes and providing collected information. Effective September 1, 2013.

• SB 1611 (Ellis; Duncan) [Sponsor: Thompson, Senfronia; Lewis; Moody; Farney; Davis, Yvonne]: Relating to discovery in a criminal case. This bill improves defendants’ access to important evidence regarding their case, including law enforcement reports and witness statements, and it requires the prosecution to provide all such discoverable information upon the defense’s request. This will assist counsel in providing a strong defense for their clients. Note: If a defendant is working pro se (without an attorney), the state is not required to give copies of the evidence to the defendant, but must allow the defendant to observe the evidence.

Separately, SB 1611 limits the information that the defense may share with third parties, thus minimizing the disclosure of sensitive information for the protection of victims. Effective January 1, 2014.

Click here to download a PDF copy of these bill summaries, as well as summaries of all other successful smart-on-crime bills passed in 2013.