By Black H.B. No. 2179
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the amendment of the Code of Criminal Procedure,
1-3 Chapter 56, Subchapter B, the Crime Victims Compensation Act and
1-4 Chapter 42, article 42.12.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Subdivision (14) of subsection (a) of section 11 of
1-7 article 42.12, Code of Criminal Procedure is hereby repealed.
1-8 SECTION 2. Subsection (c) of section 11 of article 42.12, Code of
1-9 Criminal Procedure, is hereby repealed.
1-10 SECTION 3. Sections 11A and 11B are added to article 42.12, the
1-11 Code of Criminal Procedure, to read as follows:
1-12 Section 11A. Order of Restitution
1-13 (a)(1) The court, when sentencing a defendant convicted of
1-14 an offense under the penal laws of this state, may order, in
1-15 addition to or in lieu of any other penalty authorized by law, that
1-16 the defendant make restitution to any victim of the offense.
1-17 (2) If the court does not order restitution, or orders only
1-18 partial restitution, under this section, the court shall state on
1-19 the record the reasons therefor.
1-20 (b) The order may require that such defendant --
1-21 (1) in the case of an offense resulting in damage to or loss
1-22 or destruction of property of a victim of the offense --
1-23 (A) return the property to the owner of the property
2-1 or someone designated by the owner; or
2-2 (B) if return of the property under subparagraph (A)
2-3 is impossible, impractical, or inadequate, pay an amount equal to
2-4 the greater of --
2-5 (i) the value of the property on the date of the
2-6 damage, loss, or destruction, or
2-7 (ii) the value of the property on the date of
2-8 sentencing, less the value (as of the date the property is
2-9 returned) of any part of the property that is returned;
2-10 (2) in the case of an offense resulting in bodily injury to
2-11 a victim --
2-12 (A) pay an amount equal to the cost of necessary
2-13 medical and related professional services and devices relating to
2-14 physical, psychiatric, and psychological care, including nonmedical
2-15 care and treatment rendered in accordance with a method of healing
2-16 recognized by the law of the place of treatment;
2-17 (B) pay an amount equal to the cost of necessary
2-18 physical and occupational therapy and rehabilitation; and
2-19 (C) reimburse the victim for income lost by such
2-20 victim as a result of such offense;
2-21 (3) in the case of an offense resulting in bodily injury
2-22 also results in the death of a victim, pay an amount equal to the
2-23 cost of necessary funeral and related services; and
2-24 (4) in any case, if the victim (or if the victim is
2-25 deceased, the victim's estate) consents, make restitution in
3-1 services in lieu of money, or make restitution to a person or
3-2 organization designated by the victim or the estate.
3-3 (c) In addition to any other terms and conditions of
3-4 probation, the court may require a probationer to reimburse the
3-5 crime victims compensation fund created under the Crime Victims
3-6 Compensation Act (Chapter 56, Code of Criminal Procedure) for any
3-7 amounts paid from that fund to a victim of the convicted person's
3-8 offense. In this subsection, "victim" has the meaning assigned by
3-9 Article 56.01 of this code.
3-10 (d) If the court decides to order restitution under this
3-11 section, the court shall, if the victim is deceased, order that the
3-12 restitution be made to the victim's estate.
3-13 (e) The court shall impose an order of restitution to the
3-14 extent that such order is as fair as possible to the victim and the
3-15 imposition of such order will not unduly complicate or prolong the
3-16 sentencing process.
3-17 (f)(1) The court shall not impose restitution with respect
3-18 to a loss for which the victim has received or is to receive
3-19 compensation, except that the court may, in the interest of
3-20 justice, order restitution to any person who has compensated the
3-21 victim for such loss to the extent that such person paid the
3-22 compensation. An order of restitution shall require that all
3-23 restitution to victims under such order be made before any
3-24 restitution to any other person under such order is made.
3-25 (2) Any amount paid to a victim under an order of
4-1 restitution shall be set off against any amount later recovered as
4-2 compensatory damages by such victim in --
4-3 (A) any federal civil proceeding; and
4-4 (B) any Texas civil proceeding, to the extent provided
4-5 by the law of this state.
4-6 (g)(1) The court may require that such defendant make
4-7 restitution under this section within a specified period or in
4-8 specified installments.
4-9 (2) The end of such period or the last such installment
4-10 shall not be later than --
4-11 (A) the end of the period of probation, if probation
4-12 is ordered;
4-13 (B) five years after the end of the term of
4-14 imprisonment imposed, if the court does not order probation; and
4-15 (C) five years after the date of sentencing in any
4-16 other case.
4-17 (3) If not otherwise provided by the court under this
4-18 subsection, restitution shall be made immediately.
4-19 (4) The order of restitution shall require the defendant to
4-20 make restitution directly to the victim or other person eligible
4-21 under this section, or to deliver the amount or property due as
4-22 restitution to the Attorney General for transfer to such victim or
4-23 person.
4-24 (h) If such defendant is placed on probation or paroled
4-25 under this chapter, any restitution ordered under this section
5-1 shall be a condition of probation or parole. The court may revoke
5-2 probation and the Board of Pardons and Paroles may revoke parole if
5-3 the defendant fails to comply with such order. In determining
5-4 whether to revoke probation or parole, the court or board shall
5-5 consider the defendant's employment status, earning ability,
5-6 financial resources, the willfulness of the defendant's failure to
5-7 pay, and any other special circumstances that may have a bearing on
5-8 the defendant's ability to pay.
5-9 (i) An order of restitution may be enforced by the state or
5-10 a victim named in the order to receive the restitution in the same
5-11 manner as a judgment in a civil action.
5-12 Section 11B. Procedure for issuing order of restitution
5-13 (a) The court, in determining whether to order restitution
5-14 under the section above and the amount of such restitution, shall
5-15 consider the amount of the loss sustained by any victim as a result
5-16 of the offense, the financial resources of the defendant, the
5-17 financial needs and earning ability of the defendant and the
5-18 defendant's dependents, and such other factors as the court deems
5-19 appropriate.
5-20 (b) The court may order the probation service of the court
5-21 to obtain information pertaining to the factors set forth in
5-22 subsection (a) of this section. The probation service of the court
5-23 shall include the information collected in the report of
5-24 presentence investigation or in a separate report, as the court
5-25 directs.
6-1 (c) The court shall disclose to both the defendant and to
6-2 the prosecuting attorney all portions of the presentence or other
6-3 report pertaining to the matters described in subsection (a) of
6-4 this section.
6-5 (d) Any dispute as to the proper amount or type of
6-6 restitution shall be resolved by the court by the preponderance of
6-7 the evidence. The burden of demonstrating the amount of the loss
6-8 sustained by a victim as a result of the offense shall be on the
6-9 prosecuting attorney. The burden of demonstrating the financial
6-10 resources of the defendant and the financial needs of the defendant
6-11 and such defendant's dependents shall be on the defendant. The
6-12 burden of demonstrating such other matters as the court deems
6-13 appropriate shall be upon the party designated by the court as
6-14 justice requires.
6-15 (e) A conviction of a defendant for an offense involving the
6-16 act giving rise to restitution under this section shall estop the
6-17 defendant from denying the essential allegations of that offense in
6-18 any subsequent federal civil proceeding or state civil proceeding,
6-19 to the extent consistent with state law, brought by the victim.
6-20 SECTION 4. (a) The change in law made by this Act applies only to
6-21 an offense committed on or after the effective date of this Act.
6-22 For purposes of this Act, an offense is committed before the
6-23 effective date of this Act if any element of the offense occurs
6-24 before the effective date.
6-25 (b) An offense committed before the effective date of this
7-1 Act is covered by the law in effect when the offense is committed,
7-2 and the former law is continued in effect for this purpose.
7-3 SECTION 5. This Act takes effect September 1, 1993.
7-4 SECTION 6. The importance of this legislation and the crowded
7-5 condition of the calendars in both houses create an emergency and
7-6 an imperative public necessity that the constitutional rule
7-7 requiring bills to be read on three several days in each house be
7-8 suspended, and this rule is hereby suspended, and that this Act
7-9 take effect and be in force from and after its passage, and it is
7-10 so enacted.