H.B. No. 2179
1-1 AN ACT
1-2 relating to restitution paid by criminal defendants to crime
1-3 victims.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 42, Code of Criminal Procedure, is
1-6 amended by adding Article 42.037 to read as follows:
1-7 Art. 42.037. RESTITUTION. (a) In addition to or, in the
1-8 case of a misdemeanor, in lieu of any fine authorized by law, the
1-9 court that sentences a defendant convicted of an offense may order
1-10 the defendant to make restitution to any victim of the offense. If
1-11 the court does not order restitution or orders partial restitution
1-12 under this subsection, the court shall state on the record the
1-13 reasons for not making the order or for the limited order.
1-14 (b)(1) If the offense results in damage to or loss or
1-15 destruction of property of a victim of the offense, the court may
1-16 order the defendant:
1-17 (A) to return the property to the owner of the
1-18 property or someone designated by the owner; or
1-19 (B) if return of the property is impossible or
1-20 impractical or is an inadequate remedy, to pay an amount equal to
1-21 the greater of:
1-22 (i) the value of the property on the date
1-23 of the damage, loss, or destruction; or
2-1 (ii) the value of the property on the date
2-2 of sentencing, less the value of any part of the property that is
2-3 returned on the date the property is returned.
2-4 (2) If the offense results in bodily injury to a
2-5 victim, the court may order the defendant to do any one or more of
2-6 the following:
2-7 (A) pay an amount equal to the cost of necessary
2-8 medical and related professional services and devices relating to
2-9 physical, psychiatric, and psychological care, including nonmedical
2-10 care and treatment rendered in accordance with a method of healing
2-11 recognized by the law of the place of treatment;
2-12 (B) pay an amount equal to the cost of necessary
2-13 physical and occupational therapy and rehabilitation; or
2-14 (C) reimburse the victim for income lost by the
2-15 victim as a result of the offense.
2-16 (3) If the offense results in the death of a victim,
2-17 the court may, in addition to an order under Subdivision (2) of
2-18 this subsection, order the defendant to pay an amount equal to the
2-19 cost of necessary funeral and related services.
2-20 (4) If the victim or the victim's estate consents, the
2-21 court may, in addition to an order under Subdivision (2) of this
2-22 subsection, order the defendant to make restitution by performing
2-23 services instead of by paying money or make restitution to a person
2-24 or organization designated by the victim or the estate.
2-25 (c) The court, in determining whether to order restitution
3-1 and the amount of restitution, shall consider:
3-2 (1) the amount of the loss sustained by any victim as
3-3 a result of the offense;
3-4 (2) the financial resources of the defendant;
3-5 (3) the financial needs and earning ability of the
3-6 defendant and the defendant's dependents; and
3-7 (4) other factors the court deems appropriate.
3-8 (d) If the court orders restitution under this article and
3-9 the victim is deceased the court shall order the defendant to make
3-10 restitution to the victim's estate.
3-11 (e) The court shall impose an order of restitution that is
3-12 as fair as possible to the victim. The imposition of the order may
3-13 not unduly complicate or prolong the sentencing process.
3-14 (f)(1) The court may not order restitution for a loss for
3-15 which the victim has received or will receive compensation. The
3-16 court may, in the interest of justice, order restitution to any
3-17 person who has compensated the victim for the loss to the extent
3-18 the person paid compensation. An order of restitution shall
3-19 require that all restitution to a victim be made before any
3-20 restitution to any other person is made under the order.
3-21 (2) Any amount recovered by a victim from a person
3-22 ordered to pay restitution in a federal or state civil proceeding
3-23 is reduced by any amount previously paid to the victim by the
3-24 person under an order of restitution.
3-25 (g)(1) The court may require a defendant to make restitution
4-1 under this article within a specified period or in specified
4-2 installments.
4-3 (2) The end of the period or the last installment may
4-4 not be later than:
4-5 (A) the end of the period of probation, if
4-6 probation is ordered;
4-7 (B) five years after the end of the term of
4-8 imprisonment imposed, if the court does not order probation; or
4-9 (C) five years after the date of sentencing in
4-10 any other case.
4-11 (3) If the court does not provide otherwise, the
4-12 defendant shall make restitution immediately.
4-13 (4) The order of restitution must require the
4-14 defendant to make restitution directly to the victim or other
4-15 person eligible for restitution under this article or to deliver
4-16 the amount or property due as restitution to a community
4-17 supervision and corrections department for transfer to the victim
4-18 or person.
4-19 (h) If a defendant is placed on probation or is paroled or
4-20 released on mandatory supervision under this chapter, the court or
4-21 the Board of Pardons and Paroles shall order the payment of
4-22 restitution ordered under this article as a condition of probation,
4-23 parole, or mandatory supervision. The court may revoke probation
4-24 and the Board of Pardons and Paroles may revoke parole or mandatory
4-25 supervision if the defendant fails to comply with the order. In
5-1 determining whether to revoke probation, parole, or mandatory
5-2 supervision, the court or board shall consider:
5-3 (1) the defendant's employment status;
5-4 (2) the defendant's earning ability;
5-5 (3) the defendant's financial resources;
5-6 (4) the willfulness of the defendant's failure to pay;
5-7 and
5-8 (5) any other special circumstances that may affect
5-9 the defendant's ability to pay.
5-10 (i) In addition to any other terms and conditions of
5-11 probation imposed under Article 42.12 of this code, the court may
5-12 require a probationer to reimburse the crime victims compensation
5-13 fund created under the Crime Victims Compensation Act (Article
5-14 8309-1, Vernon's Texas Civil Statutes) and its subsequent
5-15 amendments for any amounts paid from that fund to a victim of the
5-16 probationer's offense. In this subsection, "victim" has the
5-17 meaning assigned by Article 56.01 of this code.
5-18 (j) The court may order a community supervision and
5-19 corrections department to obtain information pertaining to the
5-20 factors listed in Subsection (c) of this article. The probation
5-21 officer shall include the information in the report required under
5-22 Section 9(a), Article 42.12, of this code or a separate report, as
5-23 the court directs. The court shall permit the defendant and the
5-24 prosecuting attorney to read the report.
5-25 (k) The court shall resolve any dispute relating to the
6-1 proper amount or type of restitution. The standard of proof is a
6-2 preponderance of the evidence. The burden of demonstrating the
6-3 amount of the loss sustained by a victim as a result of the offense
6-4 is on the prosecuting attorney. The burden of demonstrating the
6-5 financial resources of the defendant and the financial needs of the
6-6 defendant and the defendant's dependents is on the defendant. The
6-7 burden of demonstrating other matters as the court deems
6-8 appropriate is on the party designated by the court as justice
6-9 requires.
6-10 (l) Conviction of a defendant for an offense involving the
6-11 act giving rise to restitution under this article estops the
6-12 defendant from denying the essential allegations of that offense in
6-13 any subsequent federal civil proceeding or state civil proceeding
6-14 brought by the victim, to the extent consistent with state law.
6-15 (m) An order of restitution may be enforced by the state or
6-16 a victim named in the order to receive the restitution in the same
6-17 manner as a judgment in a civil action.
6-18 SECTION 2. Section 11(a), Article 42.12, Code of Criminal
6-19 Procedure, is amended to read as follows:
6-20 (a) The court having jurisdiction of the case shall
6-21 determine the terms and conditions of probation and may, at any
6-22 time, during the period of probation alter or modify the
6-23 conditions; provided, however, that the clerk of the court shall
6-24 furnish a copy of such terms and conditions to the probationer, and
6-25 shall note the date of delivery of such copy on the docket. Terms
7-1 and conditions of probation may include, but shall not be limited
7-2 to, the conditions that the probationer shall:
7-3 (1) Commit no offense against the laws of this State
7-4 or of any other State or of the United States;
7-5 (2) Avoid injurious or vicious habits;
7-6 (3) Avoid persons or places of disreputable or harmful
7-7 character;
7-8 (4) Report to the probation officer as directed by the
7-9 judge or probation officer and obey all rules and regulations of
7-10 the probation department;
7-11 (5) Permit the probation officer to visit him at his
7-12 home or elsewhere;
7-13 (6) Work faithfully at suitable employment as far as
7-14 possible;
7-15 (7) Remain within a specified place;
7-16 (8) Pay his fine, if one be assessed, and all court
7-17 costs whether a fine be assessed or not, in one or several sums<,
7-18 and make restitution or reparation in any sum that the court shall
7-19 determine>;
7-20 (9) Support his dependents;
7-21 (10) Participate, for a time specified by the court in
7-22 any community-based program, including a community-service work
7-23 program designated by the court;
7-24 (11) Reimburse the county in which the prosecution was
7-25 instituted for compensation paid to appointed counsel for defending
8-1 him in the case, if counsel was appointed, or if he was represented
8-2 by a county-paid public defender, in an amount that would have been
8-3 paid to an appointed attorney had the county not had a public
8-4 defender;
8-5 (12) Remain under custodial supervision in a
8-6 community-based facility, obey all rules and regulations of such
8-7 facility, and pay a percentage of his income to the facility for
8-8 room and board;
8-9 (13) Pay a percentage of his income to his dependents
8-10 for their support while under custodial suspension in a
8-11 community-based facility;
8-12 (14) <Pay a percentage of his income to the victim of
8-13 the offense, if any, to compensate the victim for any property
8-14 damage or medical expenses sustained by the victim as a direct
8-15 result of the commission of the offense;>
8-16 <(15)> Submit to testing for controlled substances;
8-17 (15) <(16)> Attend counseling sessions for substance
8-18 abusers or participate in substance abuse treatment services in a
8-19 program or facility approved or licensed by the Texas Commission on
8-20 Alcohol and Drug Abuse, if the person was sentenced for an offense
8-21 involving controlled substances or the court determines that the
8-22 defendant's use of controlled substances was connected to the
8-23 commission of the offense;
8-24 (16) <(17)> Register under Article 6252-13c.1, Revised
8-25 Statutes; and
9-1 (17) <(18)> With the consent of the victim of a
9-2 misdemeanor offense or of any offense under Title 7, Penal Code,
9-3 participate in victim-defendant mediation <for the purpose of
9-4 making restitution to the victim>.
9-5 SECTION 3. Section 15(a), Article 42.12, Code of Criminal
9-6 Procedure, as amended by Section 1, Chapter 111, Acts of the 71st
9-7 Legislature, Regular Session, 1989, and Section 4.17, Chapter 785,
9-8 Acts of the 71st Legislature, Regular Session, 1989, is amended to
9-9 read as follows:
9-10 (a) If the court requires a probationer to make restitution
9-11 to a victim of the probationer's offense, and a payment is received
9-12 under <Section 6(a)(8) or (a)(14) of> this chapter <article> from
9-13 the probationer for transmittal to a victim of the offense, the
9-14 community supervision and corrections <probation> department that
9-15 receives the payment for disbursement to the victim shall
9-16 immediately deposit the payment in an interest-bearing account in
9-17 the department having original jurisdiction. The department shall
9-18 transmit the payment to the victim as soon as practicable.
9-19 SECTION 4. Section 11(c), Article 42.12, Code of Criminal
9-20 Procedure, as added by Section 2, Chapter 202, Acts of the 72nd
9-21 Legislature, Regular Session, 1991, is repealed.
9-22 SECTION 5. (a) The change in law made by this Act applies
9-23 only to an order of restitution for an offense committed on or
9-24 after the effective date of this Act. For purposes of this
9-25 section, an offense is committed before the effective date of this
10-1 Act if any element of the offense occurs before the effective date.
10-2 (b) An order of restitution for an offense committed before
10-3 the effective date of this Act is covered by the law in effect when
10-4 the offense was committed, and the former law is continued in
10-5 effect for that purpose.
10-6 SECTION 6. This Act takes effect September 1, 1993.
10-7 SECTION 7. The importance of this legislation and the
10-8 crowded condition of the calendars in both houses create an
10-9 emergency and an imperative public necessity that the
10-10 constitutional rule requiring bills to be read on three several
10-11 days in each house be suspended, and this rule is hereby suspended.