1-1  By:  Black (Senate Sponsor - Whitmire)                H.B. No. 2179
    1-2        (In the Senate - Received from the House May 13, 1993;
    1-3  May 14, 1993, read first time and referred to Committee on Criminal
    1-4  Justice; May 25, 1993, reported favorably by the following vote:
    1-5  Yeas 5, Nays 0; May 25, 1993, sent to printer.)
    1-6                            COMMITTEE VOTE
    1-7                          Yea     Nay      PNV      Absent 
    1-8        Whitmire           x                               
    1-9        Brown              x                               
   1-10        Nelson             x                               
   1-11        Sibley                                         x   
   1-12        Sims               x                               
   1-13        Turner             x                               
   1-14        West                                            x  
   1-15                         A BILL TO BE ENTITLED
   1-16                                AN ACT
   1-17  relating to restitution paid by criminal defendants to crime
   1-18  victims.
   1-19        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-20        SECTION 1.  Chapter 42, Code of Criminal Procedure, is
   1-21  amended by adding Article 42.037 to read as follows:
   1-22        Art. 42.037.  RESTITUTION.  (a)  In addition to or, in the
   1-23  case of a misdemeanor, in lieu of any fine authorized by law, the
   1-24  court that sentences a defendant convicted of an offense may order
   1-25  the defendant to make restitution to any victim of the offense.  If
   1-26  the court does not order restitution or orders partial restitution
   1-27  under this subsection, the court shall state on the record the
   1-28  reasons for not making the order or for the limited order.
   1-29        (b)(1)  If the offense results in damage to or loss or
   1-30  destruction of property of a victim of the offense, the court may
   1-31  order the defendant:
   1-32                    (A)  to return the property to the owner of the
   1-33  property or someone designated by the owner; or
   1-34                    (B)  if return of the property is impossible or
   1-35  impractical or is an inadequate remedy, to pay an amount equal to
   1-36  the greater of:
   1-37                          (i)  the value of the property on the date
   1-38  of the damage, loss, or destruction; or
   1-39                          (ii)  the value of the property on the date
   1-40  of sentencing, less the value of any part of the property that is
   1-41  returned on the date the property is returned.
   1-42              (2)  If the offense results in bodily injury to a
   1-43  victim, the court may order the defendant to do any one or more of
   1-44  the following:
   1-45                    (A)  pay an amount equal to the cost of necessary
   1-46  medical and related professional services and devices relating to
   1-47  physical, psychiatric, and psychological care, including nonmedical
   1-48  care and treatment rendered in accordance with a method of healing
   1-49  recognized by the law of the place of treatment;
   1-50                    (B)  pay an amount equal to the cost of necessary
   1-51  physical and occupational therapy and rehabilitation; or
   1-52                    (C)  reimburse the victim for income lost by the
   1-53  victim as a result of the offense.
   1-54              (3)  If the offense results in the death of a victim,
   1-55  the court may, in addition to an order under Subdivision (2) of
   1-56  this subsection, order the defendant to pay an amount equal to the
   1-57  cost of necessary funeral and related services.
   1-58              (4)  If the victim or the victim's estate consents, the
   1-59  court may, in addition to an order under Subdivision (2) of this
   1-60  subsection, order the defendant to make restitution by performing
   1-61  services instead of by paying money or make restitution to a person
   1-62  or organization designated by the victim or the estate.
   1-63        (c)  The court, in determining whether to order restitution
   1-64  and the amount of restitution, shall consider:
   1-65              (1)  the amount of the loss sustained by any victim as
   1-66  a result of the offense;
   1-67              (2)  the financial resources of the defendant;
   1-68              (3)  the financial needs and earning ability of the
    2-1  defendant and the defendant's dependents; and
    2-2              (4)  other factors the court deems appropriate.
    2-3        (d)  If the court orders restitution under this article and
    2-4  the victim is deceased the court shall order the defendant to make
    2-5  restitution to the victim's estate.
    2-6        (e)  The court shall impose an order of restitution that is
    2-7  as fair as possible to the victim.  The imposition of the order may
    2-8  not unduly complicate or prolong the sentencing process.
    2-9        (f)(1)  The court may not order restitution for a loss for
   2-10  which the victim has received or will receive compensation.  The
   2-11  court may, in the interest of justice, order restitution to any
   2-12  person who has compensated the victim for the loss to the extent
   2-13  the person paid compensation.  An order of restitution shall
   2-14  require that all restitution to a victim be made before any
   2-15  restitution to any other person is made under the order.
   2-16              (2)  Any amount recovered by a victim from a person
   2-17  ordered to pay restitution in a federal or state civil proceeding
   2-18  is reduced by any amount previously paid to the victim by the
   2-19  person under an order of restitution.
   2-20        (g)(1)  The court may require a defendant to make restitution
   2-21  under this article within a specified period or in specified
   2-22  installments.
   2-23              (2)  The end of the period or the last installment may
   2-24  not be later than:
   2-25                    (A)  the end of the period of probation, if
   2-26  probation is ordered;
   2-27                    (B)  five years after the end of the term of
   2-28  imprisonment imposed, if the court does not order probation; or
   2-29                    (C)  five years after the date of sentencing in
   2-30  any other case.
   2-31              (3)  If the court does not provide otherwise, the
   2-32  defendant shall make restitution immediately.
   2-33              (4)  The order of restitution must require the
   2-34  defendant to make restitution directly to the victim or other
   2-35  person eligible for restitution under this article or to deliver
   2-36  the amount or property due as restitution to a community
   2-37  supervision and corrections department for transfer to the victim
   2-38  or person.
   2-39        (h)  If a defendant is placed on probation or is paroled or
   2-40  released on mandatory supervision under this chapter, the court or
   2-41  the Board of Pardons and Paroles shall order the payment of
   2-42  restitution ordered under this article as a condition of probation,
   2-43  parole, or mandatory supervision.  The court may revoke probation
   2-44  and the Board of Pardons and Paroles may revoke parole or mandatory
   2-45  supervision if the defendant fails to comply with the order.  In
   2-46  determining whether to revoke probation, parole, or mandatory
   2-47  supervision, the court or board shall consider:
   2-48              (1)  the defendant's employment status;
   2-49              (2)  the defendant's earning ability;
   2-50              (3)  the defendant's financial resources;
   2-51              (4)  the willfulness of the defendant's failure to pay;
   2-52  and
   2-53              (5)  any other special circumstances that may affect
   2-54  the defendant's ability to pay.
   2-55        (i)  In addition to any other terms and conditions of
   2-56  probation imposed under Article 42.12 of this code, the court may
   2-57  require a probationer to reimburse the crime victims compensation
   2-58  fund created under the Crime Victims Compensation Act (Article
   2-59  8309-1, Vernon's Texas Civil Statutes) and its subsequent
   2-60  amendments for any amounts paid from that fund to a victim of the
   2-61  probationer's offense.  In this subsection, "victim" has the
   2-62  meaning assigned by Article 56.01 of this code.
   2-63        (j)  The court may order a community supervision and
   2-64  corrections department to obtain information pertaining to the
   2-65  factors listed in Subsection (c) of this article.  The probation
   2-66  officer shall include the information in the report required under
   2-67  Section 9(a), Article 42.12, of this code or a separate report, as
   2-68  the court directs.  The court shall permit the defendant and the
   2-69  prosecuting attorney to read the report.
   2-70        (k)  The court shall resolve any dispute relating to the
    3-1  proper amount or type of restitution.  The standard of proof is a
    3-2  preponderance of the evidence.  The burden of demonstrating the
    3-3  amount of the loss sustained by a victim as a result of the offense
    3-4  is on the prosecuting attorney.  The burden of demonstrating the
    3-5  financial resources of the defendant and the financial needs of the
    3-6  defendant and the defendant's dependents is on the defendant.  The
    3-7  burden of demonstrating other matters as the court deems
    3-8  appropriate is on the party designated by the court as justice
    3-9  requires.
   3-10        (l)  Conviction of a defendant for an offense involving the
   3-11  act giving rise to restitution under this article estops the
   3-12  defendant from denying the essential allegations of that offense in
   3-13  any subsequent federal civil proceeding or state civil proceeding
   3-14  brought by the victim, to the extent consistent with state law.
   3-15        (m)  An order of restitution may be enforced by the state or
   3-16  a victim named in the order to receive the restitution in the same
   3-17  manner as a judgment in a civil action.
   3-18        SECTION 2.  Section 11(a), Article 42.12, Code of Criminal
   3-19  Procedure, is amended to read as follows:
   3-20        (a)  The court having jurisdiction of the case shall
   3-21  determine the terms and conditions of probation and may, at any
   3-22  time, during the period of probation alter or modify the
   3-23  conditions; provided, however, that the clerk of the court shall
   3-24  furnish a copy of such terms and conditions to the probationer, and
   3-25  shall note the date of delivery of such copy on the docket.  Terms
   3-26  and conditions of probation may include, but shall not be limited
   3-27  to, the conditions that the probationer shall:
   3-28              (1)  Commit no offense against the laws of this State
   3-29  or of any other State or of the United States;
   3-30              (2)  Avoid injurious or vicious habits;
   3-31              (3)  Avoid persons or places of disreputable or harmful
   3-32  character;
   3-33              (4)  Report to the probation officer as directed by the
   3-34  judge or probation officer and obey all rules and regulations of
   3-35  the probation department;
   3-36              (5)  Permit the probation officer to visit him at his
   3-37  home or elsewhere;
   3-38              (6)  Work faithfully at suitable employment as far as
   3-39  possible;
   3-40              (7)  Remain within a specified place;
   3-41              (8)  Pay his fine, if one be assessed, and all court
   3-42  costs whether a fine be assessed or not, in one or several sums<,
   3-43  and make restitution or reparation in any sum that the court shall
   3-44  determine>;
   3-45              (9)  Support his dependents;
   3-46              (10)  Participate, for a time specified by the court in
   3-47  any community-based program, including a community-service work
   3-48  program designated by the court;
   3-49              (11)  Reimburse the county in which the prosecution was
   3-50  instituted for compensation paid to appointed counsel for defending
   3-51  him in the case, if counsel was appointed, or if he was represented
   3-52  by a county-paid public defender, in an amount that would have been
   3-53  paid to an appointed attorney had the county not had a public
   3-54  defender;
   3-55              (12)  Remain under custodial supervision in a
   3-56  community-based facility, obey all rules and regulations of such
   3-57  facility, and pay a percentage of his income to the facility for
   3-58  room and board;
   3-59              (13)  Pay a percentage of his income to his dependents
   3-60  for their support while under custodial suspension in a
   3-61  community-based facility;
   3-62              (14)  <Pay a percentage of his income to the victim of
   3-63  the offense, if any, to compensate the victim for any property
   3-64  damage or medical expenses sustained by the victim as a direct
   3-65  result of the commission of the offense;>
   3-66              <(15)>  Submit to testing for controlled substances;
   3-67              (15) <(16)>  Attend counseling sessions for substance
   3-68  abusers or participate in substance abuse treatment services in a
   3-69  program or facility approved or licensed by the Texas Commission on
   3-70  Alcohol and Drug Abuse, if the person was sentenced for an offense
    4-1  involving controlled substances or the court determines that the
    4-2  defendant's use of controlled substances was connected to the
    4-3  commission of the offense;
    4-4              (16) <(17)>  Register under Article 6252-13c.1, Revised
    4-5  Statutes; and
    4-6              (17) <(18)>  With the consent of the victim of a
    4-7  misdemeanor offense or of any offense under Title 7, Penal Code,
    4-8  participate in victim-defendant mediation <for the purpose of
    4-9  making restitution to the victim>.
   4-10        SECTION 3.  Section 15(a), Article 42.12, Code of Criminal
   4-11  Procedure, as amended by Section 1, Chapter 111, Acts of the 71st
   4-12  Legislature, Regular Session, 1989, and Section 4.17, Chapter 785,
   4-13  Acts of the 71st Legislature, Regular Session, 1989, is amended to
   4-14  read as follows:
   4-15        (a)  If the court requires a probationer to make restitution
   4-16  to a victim of the probationer's offense, and a payment is received
   4-17  under <Section 6(a)(8) or (a)(14) of> this chapter <article> from
   4-18  the probationer for transmittal to a victim of the offense, the
   4-19  community supervision and corrections <probation> department that
   4-20  receives the payment for disbursement to the victim shall
   4-21  immediately deposit the payment in an interest-bearing account in
   4-22  the department having original jurisdiction.  The department shall
   4-23  transmit the payment to the victim as soon as practicable.
   4-24        SECTION 4.  Section 11(c), Article 42.12, Code of Criminal
   4-25  Procedure, as added by Section 2, Chapter 202, Acts of the 72nd
   4-26  Legislature, Regular Session, 1991, is repealed.
   4-27        SECTION 5.  (a)  The change in law made by this Act applies
   4-28  only to an order of restitution for an offense committed on or
   4-29  after the effective date of this Act.  For purposes of this
   4-30  section, an offense is committed before the effective date of this
   4-31  Act if any element of the offense occurs before the effective date.
   4-32        (b)  An order of restitution for an offense committed before
   4-33  the effective date of this Act is covered by the law in effect when
   4-34  the offense was committed, and the former law is continued in
   4-35  effect for that purpose.
   4-36        SECTION 6.  This Act takes effect September 1, 1993.
   4-37        SECTION 7.  The importance of this legislation and the
   4-38  crowded condition of the calendars in both houses create an
   4-39  emergency and an imperative public necessity that the
   4-40  constitutional rule requiring bills to be read on three several
   4-41  days in each house be suspended, and this rule is hereby suspended.
   4-42                               * * * * *
   4-43                                                         Austin,
   4-44  Texas
   4-45                                                         May 25, 1993
   4-46  Hon. Bob Bullock
   4-47  President of the Senate
   4-48  Sir:
   4-49  We, your Committee on Criminal Justice to which was referred H.B.
   4-50  No. 2179, have had the same under consideration, and I am
   4-51  instructed to report it back to the Senate with the recommendation
   4-52  that it do pass and be printed.
   4-53                                                         Whitmire,
   4-54  Chairman
   4-55                               * * * * *
   4-56                               WITNESSES
   4-57                                                  FOR   AGAINST  ON
   4-58  ___________________________________________________________________
   4-59  Name:  Drew T. Durham                                          x
   4-60  Representing:  Office of the Attorney Gen.
   4-61  City:  Austin
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   4-63  Name:  Vince Torres                              x
   4-64  Representing:  People Against Violent Crime
   4-65  City:  Austin
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   4-67  Name:  Lacey Sloan                               x
   4-68  Representing:  Tx. Assoc. Against Sexual Ass
   4-69  City:  Austin
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