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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