John T. Floyd Law Firm
Houston Criminal Lawyer
"Serious Criminal Defense Throughout Texas"
Experienced Criminal Defense Lawyer
Trials, Sentencings and Appeals
Federal And State Criminal Defense
Phone # (713) 224-0101
Toll Free 1-866-374-1327
E-mail jfloyd@JohnTFloyd.com
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CODE OF CRIMINAL PROCEDURE CHAPTER 26.
ARRAIGNMENT
Art. 26.01. [491] [555] [544] Arraignment
In all felony cases, after indictment, and all misdemeanor cases
punishable by imprisonment, there shall be an arraignment.
Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.
Art. 26.011. Waiver of Arraignment
An attorney representing a defendant may present a waiver of
arraignment, and the clerk of the court may not require the presence
of the defendant as a condition of accepting the waiver.
Added by Acts 2001, 77th Leg., ch. 818, Sec. 1, eff. June 14, 2001.
Art. 26.02. [492] [556] [545] Purpose of arraignment
An arraignment takes place for the purpose of fixing his identity
and hearing his plea.
Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.
Art. 26.03. [493] [557] [546] Time of arraignment
No arraignment shall take place until the expiration of at least two
entire days after the day on which a copy of the indictment was
served on the defendant, unless the right to such copy or to such
delay be waived, or unless the defendant is on bail.
Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.
Art. 26.04. [494] [558] [547] Procedures for Appointing Counsel
(a) The judges of the county courts, statutory county courts, and
district courts trying criminal cases in each county, by local
rule, shall adopt and publish written countywide procedures for
timely and fairly appointing counsel for an indigent defendant in
the county arrested for or charged with a misdemeanor punishable by
confinement or a felony. The procedures must be consistent with
this article and Articles 1.051, 15.17, 26.05, and 26.052. A court
shall appoint an attorney from a public appointment list using a
system of rotation, unless the court appoints an attorney under
Subsection (f), (h), or (i). The court shall appoint attorneys from
among the next five names on the appointment list in the order in
which the attorneys' names appear on the list, unless the court
makes a finding of good cause on the record for appointing an
attorney out of order. An attorney who is not appointed in the
order in which the attorney's name appears on the list shall remain
next in order on the list.
(b) Procedures adopted under Subsection (a) shall:
(1) authorize only the judges of the county courts, statutory
county courts, and district courts trying criminal cases in the
county, or the judges' designee, to appoint counsel for indigent
defendants in the county;
(2) apply to each appointment of counsel made by a judge or the
judges' designee in the county;
(3) ensure that each indigent defendant in the county who is charged
with a misdemeanor punishable by confinement or with a felony and
who appears in court without counsel has an opportunity to confer
with appointed counsel before the commencement of judicial
proceedings;
(4) require appointments for defendants in capital cases in which
the death penalty is sought to comply with the requirements under
Article 26.052;
(5) ensure that each attorney appointed from a public appointment
list to represent an indigent defendant perform the attorney's duty
owed to the defendant in accordance with the adopted procedures,
the requirements of this code, and applicable rules of ethics; and
(6) ensure that appointments are allocated among qualified
attorneys in a manner that is fair, neutral, and nondiscriminatory.
(c) Whenever a court or the courts' designee authorized under
Subsection (b) to appoint counsel for indigent defendants in the
county determines that a defendant charged with a felony or a
misdemeanor punishable by confinement is indigent or that the
interests of justice require representation of a defendant in a
criminal proceeding, the court or the courts' designee shall
appoint one or more practicing attorneys to defend the defendant in
accordance with this subsection and the procedures adopted under
Subsection (a). If the court or the courts' designee determines
that the defendant does not speak and understand the English
language or that the defendant is deaf, the court or the courts'
designee shall make an effort to appoint an attorney who is capable
of communicating in a language understood by the defendant.
(d) A public appointment list from which an attorney is appointed as
required by Subsection (a) shall contain the names of qualified
attorneys, each of whom:
(1) applies to be included on the list;
(2) meets the objective qualifications specified by the judges
under Subsection (e);
(3) meets any applicable qualifications specified by the Task Force
on Indigent Defense; and
(4) is approved by a majority of the judges who established the
appointment list under Subsection (e).
(e) In a county in which a court is required under Subsection (a) to
appoint an attorney from a public appointment list:
(1) the judges of the county courts and statutory county courts
trying misdemeanor cases in the county, by formal action:
(A) shall:
(i) establish a public appointment list of attorneys qualified to
provide representation in the county in misdemeanor cases
punishable by confinement; and
(ii) specify the objective qualifications necessary for an attorney
to be included on the list; and
(B) may establish, if determined by the judges to be appropriate,
more than one appointment list graduated according to the degree of
seriousness of the offense and the attorneys' qualifications; and
(2) the judges of the district courts trying felony cases in the
county, by formal action:
(A) shall:
(i) establish a public appointment list of attorneys qualified to
provide representation in felony cases in the county; and
(ii) specify the objective qualifications necessary for an attorney
to be included on the list; and
(B) may establish, if determined by the judges to be appropriate,
more than one appointment list graduated according to the degree of
seriousness of the offense and the attorneys' qualifications.
(f) In a county in which a public defender is appointed under
Article 26.044, the court or the courts' designee may appoint the
public defender to represent the defendant in accordance with
guidelines established for the public defender.
(g) A countywide alternative program for appointing counsel for
indigent defendants in criminal cases is established by a formal
action in which two-thirds of the judges of the courts designated
under this subsection vote to establish the alternative program.
An alternative program for appointing counsel in misdemeanor and
felony cases may be established in the manner provided by this
subsection by the judges of the county courts, statutory county
courts, and district courts trying criminal cases in the county. An
alternative program for appointing counsel in misdemeanor cases may
be established in the manner provided by this subsection by the
judges of the county courts and statutory county courts trying
criminal cases in the county. An alternative program for
appointing counsel in felony cases may be established in the manner
provided by this subsection by the judges of the district courts
trying criminal cases in the county. In a county in which an
alternative program is established:
(1) the alternative program may:
(A) use a single method for appointing counsel or a combination of
methods; and
(B) use a multicounty appointment list using a system of rotation;
and
(2) the procedures adopted under Subsection (a) must ensure that:
(A) attorneys appointed using the alternative program to represent
defendants in misdemeanor cases punishable by confinement:
(i) meet specified objective qualifications, which may be graduated
according to the degree of seriousness of the offense, for
providing representation in misdemeanor cases punishable by
confinement; and
(ii) are approved by a majority of the judges of the county courts
and statutory county courts trying misdemeanor cases in the county;
(B) attorneys appointed using the alternative program to represent
defendants in felony cases:
(i) meet specified objective qualifications, which may be graduated
according to the degree of seriousness of the offense, for
providing representation in felony cases; and
(ii) are approved by a majority of the judges of the district courts
trying felony cases in the county;
(C) appointments for defendants in capital cases in which the death
penalty is sought comply with the requirements of Article 26.052;
and
(D) appointments are reasonably and impartially allocated among
qualified attorneys.
(h) In a county in which an alternative program for appointing
counsel is established as provided by Subsection (g) and is
approved by the presiding judge of the administrative judicial
region, a court or the courts' designee may appoint an attorney to
represent an indigent defendant by using the alternative program.
In establishing an alternative program under Subsection (g), the
judges of the courts establishing the program may not, without the
approval of the commissioners court, obligate the county by
contract or by the creation of new positions that cause an increase
in expenditure of county funds.
(i) A court or the courts' designee required under Subsection (c) to
appoint an attorney to represent a defendant accused of a felony may
appoint an attorney from any county located in the court's
administrative judicial region.
(j) An attorney appointed under this article shall:
(1) make every reasonable effort to contact the defendant not later
than the end of the first working day after the date on which the
attorney is appointed and to interview the defendant as soon as
practicable after the attorney is appointed; and
(2) represent the defendant until charges are dismissed, the
defendant is acquitted, appeals are exhausted, or the attorney is
relieved of his duties by the court or replaced by other counsel
after a finding of good cause is entered on the record.
(k) A court may replace an attorney who violates Subsection (j)(1)
with other counsel. A majority of the judges of the county courts
and statutory county courts or the district courts, as appropriate,
trying criminal cases in the county may remove from consideration
for appointment an attorney who intentionally or repeatedly
violates Subsection (j)(1).
(l) Procedures adopted under Subsection (a) must include procedures
and financial standards for determining whether a defendant is
indigent. The procedures and standards shall apply to each
defendant in the county equally, regardless of whether the
defendant is in custody or has been released on bail.
(m) In determining whether a defendant is indigent, the court or the
courts' designee may consider the defendant's income, source of
income, assets, property owned, outstanding obligations, necessary
expenses, the number and ages of dependents, and spousal income
that is available to the defendant. The court or the courts'
designee may not consider whether the defendant has posted or is
capable of posting bail, except to the extent that it reflects the
defendant's financial circumstances as measured by the
considerations listed in this subsection.
(n) A defendant who requests a determination of indigency and
appointment of counsel shall:
(1) complete under oath a questionnaire concerning his financial
resources;
(2) respond under oath to an examination regarding his financial
resources by the judge or magistrate responsible for determining
whether the defendant is indigent; or
(3) complete the questionnaire and respond to examination by the
judge or magistrate.
(o) Before making a determination of whether a defendant is
indigent, the court shall request the defendant to sign under oath a
statement substantially in the following form:
"On this ________ day of ____________, 20 ___, I have been advised by the (name of the court) Court of my right to representation by counsel in the trial of the charge pending against me. I am without means to employ counsel of my own choosing and I hereby request the court to appoint counsel for me. (signature of the defendant)"
(p) A defendant who is determined by the court to be indigent is
presumed to remain indigent for the remainder of the proceedings in
the case unless a material change in the defendant's financial
circumstances occurs. If there is a material change in financial
circumstances after a determination of indigency or nonindigency is
made, the defendant, the defendant's counsel, or the attorney
representing the state may move for reconsideration of the
determination.
(q) A written or oral statement elicited under this article or
evidence derived from the statement may not be used for any purpose,
except to determine the defendant's indigency or to impeach the
direct testimony of the defendant. This subsection does not
prohibit prosecution of the defendant under Chapter 37, Penal Code.
(r) A court may not threaten to arrest or incarcerate a person
solely because the person requests the assistance of counsel.
Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.
Amended by Acts 1987, 70th Leg., ch. 979, Sec. 2, eff. Sept. 1,
1987.
Amended by Acts 2001, 77th Leg., ch. 906, Sec. 6, eff. Jan. 1, 2002.
Art. 26.044. Public Defender
(a) In this chapter, "public defender" means a governmental entity
or nonprofit corporation:
(1) operating under a written agreement with a governmental entity,
other than an individual judge or court;
(2) using public funds; and
(3) providing legal representation and services to indigent
defendants accused of a crime or juvenile offense, as those terms
are defined by Section 71.001, Government Code.
(b) The commissioners court of any county, on written approval of a
judge of a county court, statutory county court, or district court
trying criminal cases in the county, may appoint a governmental
entity or nonprofit corporation to serve as a public defender. The
commissioners courts of two or more counties may enter into a
written agreement to jointly appoint and fund a regional public
defender. In appointing a public defender under this subsection,
the commissioners court shall specify or the commissioners courts
shall jointly specify, if appointing a regional public defender:
(1) the duties of the public defender;
(2) the types of cases to which the public defender may be appointed
under Article 26.04(f) and the courts in which the public defender
may be required to appear;
(3) whether the public defender is appointed to serve a term or
serve at the pleasure of the commissioners court or the
commissioners courts; and
(4) if the public defender is appointed to serve a term, the term of
appointment and the procedures for removing the public defender.
(c) Before appointing a public defender under Subsection (b), the
commissioners court or commissioners courts shall solicit
proposals for the public defender. A proposal must include:
(1) a budget for the public defender, including salaries;
(2) a description of each personnel position, including the chief
public defender position;
(3) the maximum allowable caseloads for each attorney employed by
the proponent;
(4) provisions for personnel training;
(5) a description of anticipated overhead costs for the public
defender; and
(6) policies regarding the use of licensed investigators and expert
witnesses by the proponent.
(d) After considering each proposal for the public defender
submitted by a governmental entity or nonprofit corporation, the
commissioners court or commissioners courts shall select a proposal
that reasonably demonstrates that the proponent will provide
adequate quality representation for indigent defendants in the
county or counties.
(e) The total cost of the proposal may not be the sole consideration
in selecting a proposal.
(f) To be eligible for appointment as a public defender, the
governmental entity or nonprofit corporation must be directed by a
chief public defender who:
(1) is a member of the State Bar of Texas;
(2) has practiced law for at least three years; and
(3) has substantial experience in the practice of criminal law.
(g) A public defender is entitled to receive funds for personnel
costs and expenses incurred in operating as a public defender in
amounts fixed by the commissioners court and paid out of the
appropriate county fund, or jointly fixed by the commissioners
courts and proportionately paid out of each appropriate county fund
if the public defender serves more than one county.
(h) A public defender may employ attorneys, licensed investigators,
and other personnel necessary to perform the duties of the public
defender as specified by the commissioners court or commissioners
courts under Subsection (b)(1).
(i) Except as authorized by this article, the chief public defender
or an attorney employed by a public defender may not:
(1) engage in the private practice of criminal law; or
(2) accept anything of value not authorized by this article for
services rendered under this article.
(j) A public defender may refuse an appointment under Article
26.04(f) if:
(1) a conflict of interest exists;
(2) the public defender has insufficient resources to provide
adequate representation for the defendant;
(3) the public defender is incapable of providing representation
for the defendant in accordance with the rules of professional
conduct; or
(4) the public defender shows other good cause for refusing the
appointment.
(k) The judge may remove a public defender who violates a provision
of Subsection (i).
(l) A public defender may investigate the financial condition of
any person the public defender is appointed to represent. The
defender 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.
(m) If it is necessary that an attorney other than a public defender
be appointed, the attorney is entitled to the compensation provided
by Article 26.05 of this code.
Added by Acts 1985, 69th Leg., ch. 480, Sec. 17, eff. Sept. 1, 1985.
Amended by Acts 1987, 70th Leg., ch. 167, Sec. 4.03(a), eff. Sept.
1, 1987.
Amended by Acts 2001, 77th Leg., ch. 906, Sec. 7, eff. Jan. 1, 2002.
Art. 26.05. [494a] Compensation of Counsel Appointed to Defend
(a) A counsel, other than an attorney with a public defender,
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,
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.
(b) All payments made under this article shall be paid in accordance
with a schedule of fees adopted by formal action of the judges of
the county courts, statutory county courts, and district courts
trying criminal cases in each county. On adoption of a schedule of
fees as provided by this subsection, a copy of the schedule shall be
sent to the commissioners court of the county.
(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 and the judge approves the
payment. If the judge disapproves the requested amount of payment,
the judge shall make written findings stating the amount of payment
that the judge approves and each reason for approving an amount
different from the requested amount. An attorney whose request for
payment is disapproved may appeal the disapproval 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 and determine the appropriate amount of payment. In
reviewing the disapproval, 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, appointed to represent a defendant under this code
shall be reimbursed for reasonable and necessary expenses,
including expenses for investigation and for mental health and
other experts. Expenses 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 incurred without prior
court approval shall be reimbursed in the manner provided for
capital cases by Article 26.052(h).
(e) A majority of the judges of the county courts and statutory
county courts or the district courts, as appropriate, trying
criminal cases in the county may remove an attorney from
consideration for appointment if, after a hearing, it is shown that
the attorney submitted a claim for legal services not performed by
the attorney.
(f) All payments made under this article shall be paid from the
general fund of the county in which the prosecution was instituted
or habeas corpus hearing held and may be included as costs of court.
(g) If the court determines that a defendant has financial
resources that enable him to offset in part or in whole the costs of
the legal services provided, including any expenses and costs, the
court shall order the defendant to pay during the pendency of the
charges or, if convicted, as court costs the amount that it finds
the defendant is able to pay.
(h) 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.
Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.
Amended by Acts 1969, 61st Leg., p. 1054, ch. 347, Sec. 1, eff. May
27, 1969; Acts 1971, 62nd Leg., p. 1777, ch. 520, Sec. 1, eff. Aug.
30, 1971; Acts 1973, 63rd Leg., p. 1126, ch. 426, art. 3, Sec. 3,
eff. June 14, 1973; Acts 1981, 67th Leg., p. 803, ch. 291, Sec. 106,
eff. Sept. 1, 1981; Acts 1987, 70th Leg., ch. 979, Sec. 3, eff.
Sept. 1, 1987.
Subsec. (f) added by Acts 1999, 76th Leg., ch. 837, Sec. 1, eff.
Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 906, Sec. 8,
eff. Jan. 1, 2002; Subsec. (f) amended by Acts 2001, 77th Leg., ch.
1420, Sec. 14.734, eff. Sept. 1, 2001.
Art. 26.051. Indigent inmate defense
(a) In this article:
(1) "Board" means the Texas Board of Criminal Justice.
(2) "Institutional division" means the institutional division of
the Texas Department of Criminal Justice.
(b) This article applies only to the appointment of attorneys for
indigent inmate defendants made on or after August 1, 1990.
(c) A county in which a facility of the institutional division or a
correctional facility authorized by Section 495.001, Government
Code, is located shall, except as provided by Subsection (f) of this
article, pay from its general fund the total costs of the aggregate
sum allowed and awarded by the court for attorney's fees under
Article 26.05 of this code for an attorney appointed by the court,
other than an attorney provided by the board in Subsection (e) of
this article, to defend an indigent inmate.
(d) A court may notify the board if 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 institutional
division and request that the board provide legal representation
for the inmate.
(e) The 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 board shall pay all fees
and costs associated with providing legal representation for those
inmates.
(f) Repealed by Acts 1993, 73rd Leg., ch. 988, Sec. 7.02, eff. Sept.
1, 1993.
(g) The court shall appoint 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 an attorney other than an attorney
provided by the board, the county shall pay from its general fund
the first $250.00 of the aggregate sum allowed and awarded by the
court for the attorney fees under Article 26.05 of this code. If
the fees awarded for a court-appointed attorney in a case described
by this subsection exceed $250.00, the court shall certify the
amount in excess of $250.00 to the board. On request of the board,
the comptroller shall issue a warrant to the court-appointed
attorney in the amount certified to the board by the court.
Added by Acts 1990, 71st Leg., 6th C.S., ch. 15, Sec. 2, eff. June
14, 1990. Subsec. (c) amended by and Subsec. (f) added by Acts
1991, 72nd Leg., ch. 719, Sec. 1, eff. Sept. 1, 1991; Subsec. (f)
repealed by Acts 1993, 73rd Leg., ch. 988, Sec. 7.02, eff. Sept. 1,
1993; Subsecs. (g), (h) added by Acts 1993, 73rd Leg., ch. 988,
Sec. 7.01, eff. Sept. 1, 1993.
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 an attorney appointed to a death
penalty 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 at least five years of experience in criminal litigation;
(D) 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;
(E) 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
(F) 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.
Art. 26.053. Public Defender in Randall County
(a) The Commissioners Court of Randall County may appoint an
attorney to serve as a public defender. The public defender serves
at the pleasure of the commissioners court.
(b) To be eligible for appointment as a public defender, a person
must be a member of the State Bar of Texas.
(c) With the approval of the commissioners court, the public
defender may employ assistant public defenders, investigators,
secretaries, and other necessary personnel. An assistant public
defender must be a licensed attorney and may perform the duties of a
public defender under this article.
(d) A public defender's office consists of the public defender and
the personnel employed by the public defender under Subsection (c).
(e) A public defender is entitled to receive an annual salary in an
amount set by the commissioners court. Subchapter B, Chapter 152,
Local Government Code, applies to the compensation of personnel and
the payment of office expenses in the public defender's office.
(f) Except as authorized by this article, a public defender or an
assistant public defender may not:
(1) engage in the private practice of law; or
(2) accept anything of value not authorized by this article for
services rendered under this article.
(g) The commissioners court may remove a public defender or an
assistant public defender who violates Subsection (f).
(h) The public defender or an assistant public defender shall
represent each indigent person who is:
(1) charged with a criminal offense in Randall County punishable by
confinement or imprisonment;
(2) a minor who is a party to a juvenile delinquency proceeding in
the county; or
(3) entitled to representation under:
(A) Chapter 462, Health and Safety Code; or
(B) Subtitle C or D, Title 7, Health and Safety Code.
(i) If at any stage of the proceeding the judge determines that a
conflict of interest exists between the public defender and the
indigent person, the judge may appoint another attorney to
represent the person. The attorney must be licensed to practice law
in this state and is entitled to the compensation provided by
Article 26.05.
(j) The public defender's office shall investigate the financial
condition of any person the public defender 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.
(k) Except for the provisions relating to daily appearance fees,
Article 26.05 applies to the public defender and an assistant
public defender.
(l) The commissioners court may accept gifts and grants from any
source to finance an adequate and effective public defender
program.
Added by Acts 2001, 77th Leg., ch. 184, Sec. 1, eff. May 18, 2001.
Art. 26.055. Contribution from state for defense of indigent
inmates
Sec. 1. (a) This article applies only to an attorney appointed under
Article 26.05 of this code to defend an indigent inmate before
August 1, 1990.
(b) A county in which a facility of the institutional division of
the Texas Department of Criminal Justice, or a correctional
facility authorized by Section 494.001, Government Code, is located
shall pay from its general fund only the first $250 of the aggregate
sum allowed and awarded by the court for attorneys' fees under
Article 26.05 toward defending an inmate committed to that facility
who is being prosecuted for an offense committed in that county
while in the custody of the department if the inmate was originally
committed for an offense committed in another county.
Sec. 2. If the fees awarded for court-appointed counsel in a case
covered by Section 1 of this article exceed $250, the court shall
certify the amount in excess of $250 to the Texas Board of Criminal
Justice. On request of the board, the comptroller shall issue a
warrant to the court-appointed counsel in the amount certified to
the board by the court.
Sec. 3. (a) In the defense of a prosecution of an offense committed
while the actor was an inmate in the custody of the institutional
division of the Texas Department of Criminal Justice, the state
shall reimburse a counsel appointed to defend the actor for
expenses incurred by the counsel, in an amount that the court
determines to be reasonable, for payment of:
(1) salaries and expenses of foreign language interpreters and
interpreters for deaf persons whose services are necessary to the
defense;
(2) consultation fees of experts whose assistance is directly
related to the defense;
(3) travel expenses for witnesses;
(4) compensation of witnesses;
(5) the cost of preparation of a statement of facts and a transcript
of the trial for purposes of appeal; and
(6) food, lodging, and travel expenses incurred by the defense
counsel and staff during travel essential to the defense,
calculated on the same basis as expenses incurred by the
prosecutor's staff related to essential travel are calculated.
(b) The trial court shall certify the amount of reimbursement for
expenses under this section to the Texas Board of Criminal Justice.
On request of the board, the comptroller shall issue a warrant in
that amount to the defense counsel or, if the board determines that
the amount certified by the trial court is unreasonable, in an
amount that the board determines to be reasonable.
(c) Notwithstanding anything to the contrary contained in this Act,
the reimbursement for expenses submitted by the defense counsel
shall not exceed the amount the county would pay for the same
activity or service, if that activity or service was not reimbursed
by the state. The trial judge shall certify compliance with this
paragraph on request by the Texas Board of Criminal Justice.
Acts 1975, 64th Leg., p. 168, ch. 72, Sec. 1, eff. Sept. 1, 1975.
Amended by Acts 1985, 69th Leg., ch. 529, Sec. 2, eff. Sept. 1,
1985; Acts 1987, 70th Leg., ch. 1049, Sec. 52, eff. Sept. 1, 1987.
Amended by Acts 1990, 71st Leg., 6th C.S., ch. 15, Sec. 1, eff. June
14, 1990.
Art. 26.056. Contribution from state in certain counties
Sec. 1. A county in which a state training school for delinquent
children is located shall pay from its general fund the first $250
of fees awarded for court-appointed counsel under Article 26.05
toward defending a child committed to the school from another
county who is being prosecuted for a felony or misdemeanor in the
county where the training school is located.
Sec. 2. If the fees awarded for counsel compensation are in excess
of $250, the court shall certify the amount in excess of $250 to the
Comptroller of Public Accounts of the State of Texas. The
Comptroller shall issue a warrant to the court-appointed counsel in
the amount certified to the comptroller by the court.
Acts 1967, 60th Leg., p. 733, ch. 307, Sec. 1, eff. Aug. 28, 1967.
Renumbered from art. 26.05-1 by Acts 1987, 70th Leg., ch. 167, Sec.
5.02(2), eff. Sept. 1, 1987.
Art. 26.057. Cost of employment of counsel for certain minors
If a juvenile has been transferred to a criminal court under Section
54.02, Family Code, and if a court appoints counsel for the juvenile
under Article 26.04 of this code, the county that pays for the
counsel has a cause of action against a parent or other person who
is responsible for the support of the juvenile and is financially
able to employ counsel for the juvenile but refuses to do so. The
county may recover its cost of payment to the appointed counsel and
may recover attorney's fees necessary to prosecute the cause of
action against the parent or other person.
Acts 1987, 70th Leg., ch. 979, Sec. 4, eff. Sept. 1, 1987.
Renumbered from art. 26.056 by Acts 1989, 71st Leg., ch. 2, Sec.
16.01(8), eff. Aug. 28, 1989.
Art. 26.06. [494b] Elected officials not to be appointed
No court may appoint an elected county, district or state official
to represent a person accused of crime, unless the official has
notified the court of his availability for appointment. If an
official has notified the court of his availability and is
appointed as counsel, he may decline the appointment if he
determines that it is in the best interest of his office to do so.
Nothing in this Code shall modify any statutory provision for
legislative continuance.
Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.
Art. 26.07. Name as stated in indictment
When the defendant is arraigned, his name, as stated in the
indictment, shall be distinctly called; and unless he suggest by
himself or counsel that he is not indicted by his true name, it
shall be taken that his name is truly set forth, and he shall not
thereafter be allowed to deny the same by way of defense.
Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.
Art. 26.08. If defendant suggests different name
If the defendant, or his counsel for him, suggests that he bears
some name different from that stated in the indictment, the same
shall be noted upon the minutes of the court, the indictment
corrected by inserting therein the name of the defendant as
suggested by himself or his counsel for him, the style of the case
changed so as to give his true name, and the cause proceed as if the
true name had been first recited in the indictment.
Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.
Art. 26.09. If accused refuses to give his real name
If the defendant alleges that he is not indicted by his true name,
and refuses to say what his real name is, the cause shall proceed as
if the name stated in the indictment were true; and the defendant
shall not be allowed to contradict the same by way of defense.
Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.
Art. 26.10. Where name is unknown
A defendant described as a person whose name is unknown may have the
indictment so corrected as to give therein his true name.
Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.
Art. 26.11. [499] [563] [552] Indictment read
The name of the accused having been called, if no suggestion, such
as is spoken of in the four preceding Articles, be made, or being
made is disposed of as before directed, the indictment shall be
read, and the defendant asked whether he is guilty or not, as
therein charged.
Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.
Art. 26.12. Plea of not guilty entered
If the defendant answers that he is not guilty, such plea shall be
entered upon the minutes of the court; if he refuses to answer, the
plea of not guilty shall in like manner be entered.
Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.
Art. 26.13. [501] [565] [554] Plea of guilty
(a) Prior to accepting a plea of guilty or a plea of nolo
contendere, the court shall admonish the defendant of:
(1) the range of the punishment attached to the offense;
(2) the fact that the recommendation of the prosecuting attorney as
to punishment is not binding on the court. Provided that the court
shall inquire as to the existence of any plea bargaining agreements
between the state and the defendant and, in the event that such an
agreement exists, the court shall inform the defendant whether it
will follow or reject such agreement in open court and before any
finding on the plea. Should the court reject any such agreement,
the defendant shall be permitted to withdraw his plea of guilty or
nolo contendere;
(3) the fact that if the punishment assessed does not exceed the
punishment recommended by the prosecutor and agreed to by the
defendant and his attorney, the trial court must give its
permission to the defendant before he may prosecute an appeal on any
matter in the case except for those matters raised by written
motions filed prior to trial;
(4) the fact that if the defendant is not a citizen of the United
States of America, a plea of guilty or nolo contendere for the
offense charged may result in deportation, the exclusion from
admission to this country, or the denial of naturalization under
federal law; and
(5) the fact that the defendant will be required to meet the
registration requirements of Chapter 62, if the defendant is
convicted of or placed on deferred adjudication for an offense for
which a person is subject to registration under that chapter.
(b) No plea of guilty or plea of nolo contendere shall be accepted
by the court unless it appears that the defendant is mentally
competent and the plea is free and voluntary.
(c) In admonishing the defendant as herein provided, substantial
compliance by the court is sufficient, unless the defendant
affirmatively shows that he was not aware of the consequences of his
plea and that he was misled or harmed by the admonishment of the
court.
(d) The court may make the admonitions required by this article
either orally or in writing. If the court makes the admonitions in
writing, it must receive a statement signed by the defendant and the
defendant's attorney that he understands the admonitions and is
aware of the consequences of his plea. If the defendant is unable or
refuses to sign the statement, the court shall make the admonitions
orally.
(e) Before accepting a plea of guilty or a plea of nolo contendere,
the court shall inquire as to whether a victim impact statement has
been returned to the attorney representing the state and ask for a
copy of the statement if one has been returned.
(f) The court must substantially comply with Subsection (e) of this
article. The failure of the court to comply with Subsection (e) of
this article is not grounds for the defendant to set aside the
conviction, sentence, or plea.
(g) Before accepting a plea of guilty or a plea of nolo contendere
and on the request of a victim of the offense, the court may assist
the victim and the defendant in participating in a victim-offender
mediation program.
(h) Before accepting a plea of guilty or nolo contendere from a
defendant described by Subsection (a)(5), the court shall ascertain
whether the attorney representing the defendant has advised the
defendant regarding registration requirements under Chapter 62.
(i) Notwithstanding this article, a court shall not order the state
or any of its prosecuting attorneys to participate in mediation,
dispute resolution, arbitration, or other similar procedures in
relation to a criminal prosecution unless upon written consent of
the state.
Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.
Amended by Acts 1973, 63rd Leg., p. 969, ch. 399, Sec. 2(A), eff.
Jan. 1, 1974; Acts 1975, 64th Leg., p. 909, ch. 341, Sec. 3, eff.
June 19, 1975; Acts 1977, 65th Leg., p. 748, ch. 280, Sec. 1, eff.
Aug. 29, 1977; Acts 1979, 66th Leg., p. 1108, ch. 524, Sec. 1, eff.
Sept. 1, 1979; Acts 1979, 66th Leg., p. 1160, ch. 561, Sec. 1, eff.
Sept. 1, 1979; Acts 1985, 69th Leg., p. 5065, ch. 671, Sec. 1, eff.
June 14, 1985; Acts 1985, 69th Leg., ch. 685, Sec. 8(a), eff. Aug.
26, 1985; Acts 1987, 70th Leg., ch. 443, Sec. 1, eff. Aug. 1, 1987.
Subsecs. (e), (f) added by Acts 1991, 72nd Leg., ch. 202, Sec. 1,
eff. Sept. 1, 1991; Subsec. (g) added by Acts 1997, 75th Leg., ch.
670, Sec. 4, eff. Sept. 1, 1997; Subsec. (a) amended by Acts 1999,
76th Leg., ch. 1415, Sec. 1, eff. Sept. 1, 1999; Subsec. (h) added
by Acts 1999, 76th Leg., ch. 425, Sec. 1, eff. Aug. 30, 1999; added
by Acts 1999, 76th Leg., ch. 1415, Sec. 1, eff. Sept. 1, 1999;
Subsec. (i) relettered from subsec. (h) by Acts 2001, 77th Leg., ch.
1420, Sec. 21.001(8), eff. Sept. 1, 2001.
Art. 26.14. [502] [566] [555] Jury on plea of guilty
Where a defendant in a case of felony persists in pleading guilty or
in entering a plea of nolo contendere, if the punishment is not
absolutely fixed by law, a jury shall be impaneled to assess the
punishment and evidence may be heard to enable them to decide
thereupon, unless the defendant in accordance with Articles 1.13 or
37.07 shall have waived his right to trial by jury.
Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.
Art. 26.15. [503] [567] [556] Correcting name
In any case, the same proceedings shall be had with respect to the
name of the defendant and the correction of the indictment or
information as provided with respect to the same in capital cases.
Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.
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