2023 Texas Statutes › Code of Criminal Procedure › Title 1 - Code of Criminal Procedure › Chapter 26 - Arraignment › Article 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:
(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, unless the local selection committee determines under Subsection (n) that the conduct underlying the finding no longer accurately reflects the attorney's ability to provide effective representation;
(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
(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 standards 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 federal or state court to have rendered ineffective assistance of counsel during the trial or appeal of any capital case, unless the local selection committee determines under Subsection (n) that the conduct underlying the finding no longer accurately reflects the attorney's ability to provide effective representation;
(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
(ii)  the use of 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 appealing death penalty cases.
(4)  The committee shall prominently post the standards 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 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 criminal defense in death penalty cases or in appealing death penalty cases, as applicable.  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.
(n)  At the request of an attorney, the local selection committee shall make a determination under Subsection (d)(2)(C) or (3)(C), as applicable, regarding an attorney's current ability to provide effective representation following a judicial finding that the attorney previously rendered ineffective assistance of counsel in a capital case.
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.
Amended by:
Acts 2005, 79th Leg., Ch. 787 (S.B. 60), Sec. 14, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 965 (H.B. 1701), Sec. 7, eff. September 1, 2005.
Acts 2009, 81st Leg., R.S., Ch. 32 (H.B. 2058), Sec. 1, eff. September 1, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 1343 (S.B. 1308), Sec. 1, eff. September 1, 2011.
Acts 2015, 84th Leg., R.S., Ch. 770 (H.B. 2299), Sec. 2.06, eff. January 1, 2017.