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