73R8653 GWK-D
By Place H.B. No. 2305
Substitute the following for H.B. No. 2305:
By Telford C.S.H.B. No. 2305
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the operation of substance abuse treatment programs in
1-3 the criminal justice system.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 493.009, Government Code, is amended to
1-6 read as follows:
1-7 Sec. 493.009. SUBSTANCE ABUSE FELONY PUNISHMENT FACILITIES.
1-8 (a) The department, <through the community justice assistance
1-9 division and the pardons and paroles division and> with the
1-10 cooperation of the Texas Commission on Alcohol and Drug Abuse,
1-11 shall establish a program to confine and treat defendants required
1-12 to participate in the program under Section 18A, Article 42.12,
1-13 Code of Criminal Procedure <punished under Section 12.422, Penal
1-14 Code>.
1-15 (b) The board shall adopt criteria to determine the
1-16 suitability of candidates for participation in the program. The
1-17 department and the Texas Commission on Alcohol and Drug Abuse shall
1-18 jointly develop methods of screening and assessing defendants
1-19 required to participate in the program under Section 18A, Article
1-20 42.12, Code of Criminal Procedure <inmates sentenced under Section
1-21 12.422, Penal Code>, to determine their need for specific types of
1-22 treatment for alcohol or drug abuse problems.
1-23 (c) The program for persons required to participate in the
1-24 program under Section 18A, Article 42.12, Code of Criminal
2-1 Procedure <sentenced under Section 12.422, Penal Code>, must
2-2 consist of treatment programs that may vary in time from six months
2-3 to 12 months. The department shall also establish and provide
2-4 treatment programs for persons in categories described by
2-5 Subsections (g)(1)-(3) who are housed in beds otherwise provided
2-6 for persons required to participate in the program under Section
2-7 18A, Article 42.12, Code of Criminal Procedure <sentenced under
2-8 Section 12.422, Penal Code>.
2-9 (d) The program for persons required to participate in the
2-10 program under Section 18A, Article 42.12, Code of Criminal
2-11 Procedure <sentenced under Section 12.422, Penal Code>, provided
2-12 under this section must contain highly structured work, education,
2-13 and treatment schedules, a clearly delineated authority structure,
2-14 and well-defined goals and guidelines. The department shall
2-15 establish a graded system of rewards and sanctions for defendants
2-16 <inmates> who participate in the program, but a defendant required
2-17 to participate in the program under Section 18A, Article 42.12,
2-18 Code of Criminal Procedure <sentenced under Section 12.422, Penal
2-19 Code>, is not entitled to earn awards of time for good conduct. A
2-20 qualified professional, at least every 60 days, must perform an
2-21 evaluation on a defendant<, other than a defendant whose underlying
2-22 offense is an offense under Article 6701l-1, Revised Statutes,>
2-23 that determines the defendant's treatment progress and
2-24 institutional behavior. <The professional must perform the
2-25 evaluation on a defendant whose underlying offense is an offense
2-26 under Article 6701l-1, Revised Statutes, at least every 28 days.>
2-27 Not later than three days after the date on which a four-month
3-1 evaluation is performed, <or in the case of a defendant whose
3-2 underlying offense is an offense under Article 6701l-1, Revised
3-3 Statutes, three days after the date on which a 28-day evaluation is
3-4 performed,> the qualified professional shall establish a tentative
3-5 release date for the defendant, notify the sentencing court of that
3-6 fact, and include with the notice a copy of the four-month <or
3-7 28-day> evaluation<, as appropriate>. The qualified professional
3-8 immediately shall notify the court if the professional determines
3-9 the defendant's conduct requires a revision of the tentative
3-10 release date.
3-11 (e) The department shall contract through the Texas
3-12 Commission on Alcohol and Drug Abuse with <nonprofit> organizations
3-13 to provide qualified professionals to implement the program for
3-14 persons required to participate in the program under Section 18A,
3-15 Article 42.12, Code of Criminal Procedure <sentenced under Section
3-16 12.422, Penal Code>. For purposes of this subsection, a "qualified
3-17 professional" is a person who:
3-18 (1) is a certified alcohol and drug abuse counselor;
3-19 (2) is a certified social worker or advanced clinical
3-20 practitioner and who has at least two years of experience in
3-21 chemical dependency counseling; or
3-22 (3) is a licensed professional counselor, physician,
3-23 or psychologist and who has at least two years of experience in
3-24 chemical dependency counseling.
3-25 (f)(1) The department shall adopt rules of conduct <for
3-26 inmates participating in the program> for persons required to
3-27 participate in the program under Section 18A, Article 42.12, Code
4-1 of Criminal Procedure, or required to participate in the program
4-2 following modification of probation or parole <sentenced under
4-3 Section 12.422, Penal Code>.
4-4 (2) If the qualified professional with primary
4-5 responsibility for treating a defendant and the individual in
4-6 charge of security in the facility in which the defendant is housed
4-7 jointly determine that the defendant is not complying with the
4-8 rules or is medically or psychologically unsuitable for the
4-9 program, they shall notify the department of that fact.
4-10 (3) The department, immediately on receiving notice,
4-11 shall request the sentencing court to reassume custody of the
4-12 defendant if the defendant was required to participate in the
4-13 program under Section 18A, Article 42.12, Code of Criminal
4-14 Procedure, or required to participate in the program following
4-15 modification of probation. The court shall reassume custody before
4-16 the 12th day after the date on which the department notifies the
4-17 court. If the court revokes the defendant's probation, the
4-18 admission of the defendant to the institutional division is an
4-19 admission for which the county from which the defendant was
4-20 sentenced is charged under the allocation formula established under
4-21 Section 499.071.
4-22 (4) The department, immediately on receiving notice,
4-23 shall request the pardons and paroles division to reassume custody
4-24 of the defendant if the defendant was required to participate in
4-25 the program following modification of parole. The pardons and
4-26 paroles division shall immediately take action in accordance with
4-27 established policies and procedures of the Board of Pardons and
5-1 Paroles to remove the defendant from the program. If a parole
5-2 panel revokes the defendant's parole, the admission of the
5-3 defendant to the institutional division is an admission for which
5-4 the county from which the defendant was sentenced is charged under
5-5 the allocation formula established under Section 499.071.
5-6 (5) If the defendant was transferred to the facility
5-7 from a county jail under Subsection (l), the department shall
5-8 return the defendant to the county jail.
5-9 (6) A court's recommendation that a defendant be
5-10 placed in a program created under this section does not give the
5-11 court the power to hold the department or any officer or employee
5-12 of the department in contempt of court for failure to adhere to
5-13 that recommendation.
5-14 (g) The department shall provide 12,000 beds for the purpose
5-15 of operating the program for persons required to participate in the
5-16 program under Section 18A, Article 42.12, Code of Criminal
5-17 Procedure <sentenced under Section 12.422, Penal Code>, except that
5-18 the beds may also be used to house the following categories of
5-19 persons:
5-20 (1) persons transferred under Subchapter A, Chapter
5-21 499, Government Code, and Section 8(i), Article 42.18, Code of
5-22 Criminal Procedure;
5-23 (2) persons whose probation or parole has been
5-24 modified <or revoked>; and
5-25 (3) defendants <inmates> confined in county jails
5-26 awaiting transfer to the institutional division.
5-27 (h) On and after the date persons are required under Section
6-1 18A, Article 42.12, Code of Criminal Procedure <sentenced under
6-2 Section 12.422, Penal Code, to participate in the program
6-3 established under this section>, the department shall give priority
6-4 to housing those persons over the categories of persons described
6-5 by Subsections (g)(1)-(3).
6-6 (i) The department shall make quarterly reports to the
6-7 Legislative Criminal Justice Board that show the ratio of persons
6-8 in beds reserved under Subsection (g) who have been required to
6-9 participate in the program under Section 18A, Article 42.12, Code
6-10 of Criminal Procedure <sentenced under Section 12.422, Penal Code>,
6-11 to persons in those beds who have been sent to the facilities by
6-12 other methods.
6-13 (j) The department shall recover from a program participant
6-14 the cost to the department of providing treatment, to the extent
6-15 the participant has insurance that covers the treatment or is
6-16 otherwise able to pay for the treatment.
6-17 (k) It is the intent of the legislature that facilities
6-18 established under this section be used primarily to house persons
6-19 required to participate in the program under Section 18A, Article
6-20 42.12, Code of Criminal Procedure <sentenced under Section 12.422,
6-21 Penal Code>, except that if treatment beds are empty, this
6-22 subsection does not prohibit the department from using those empty
6-23 beds to treat the categories of persons listed in Subsection (g).
6-24 (l) The department shall identify defendants <inmates>
6-25 confined in county jails who are awaiting transfer to the
6-26 institutional division and who because of their need for treatment
6-27 of drug or alcohol problems require transfer to a substance abuse
7-1 felony punishment facility. The department shall provide for the
7-2 transportation of the defendant <may order the county to transfer
7-3 an inmate> to such a facility. If the board finds that a county
7-4 has failed to fully cooperate with the department in evaluating
7-5 defendants <and transferring inmates> under this section, the board
7-6 shall notify the Commission on Jail Standards of that fact. On
7-7 notice from the board, the commission may reduce or suspend
7-8 payments under Subchapter F, Chapter 499, or may suspend the
7-9 certification of the county jail as provided by Section 511.012.
7-10 (m) Notwithstanding any other provision of this section, the
7-11 department is authorized to provide substance abuse felony
7-12 punishment facilities, not to exceed 500 beds, for newly provided
7-13 alcohol and drug abuse beds exclusively for persons whose probation
7-14 or parole has been modified <or revoked>.
7-15 (n) The department shall separate participants in the
7-16 program created under this section from inmates of the
7-17 institutional division, except at times determined necessary by the
7-18 department for the purpose of transportation or staging or for
7-19 medical or security reasons.
7-20 (o) If a defendant required to participate in the program
7-21 under Section 18A, Article 42.12, Code of Criminal Procedure, is
7-22 released after successful completion of the program, the Texas
7-23 Commission on Alcohol and Drug Abuse shall contract for
7-24 transportation of the participant at the expense of the commission
7-25 to an appropriate continuum of care program.
7-26 (p) The Criminal Justice Policy Council, with the assistance
7-27 of the Texas Commission on Alcohol and Drug Abuse and the
8-1 department, shall develop methods to evaluate the processes used by
8-2 the department in providing the program and the level of success
8-3 achieved by the program.
8-4 SECTION 2. Section 501.0931, Government Code, is amended by
8-5 amending Subsections (c), (d), (g), (h), and (j), and by adding
8-6 Subsection (k) to read as follows:
8-7 (c) The program must consist of a <three-month and a
8-8 six-month> treatment program of indeterminate length, not to exceed
8-9 12 months. The institutional division shall make a referral of an
8-10 inmate to a program based on the severity of the substance abuse
8-11 problem, eligibility of the inmate, and the availability of
8-12 treatment space. An inmate who has not more than 12 <six> months
8-13 remaining in the inmate's sentence before the earliest date the
8-14 inmate is eligible for parole is eligible for the <three-month>
8-15 program. <An inmate who has not more than one year remaining in
8-16 the inmate's sentence before the earliest date the inmate is
8-17 eligible for parole is eligible for the six-month program.>
8-18 (d) The institutional division shall separate inmates <who
8-19 participate in the three-month program from inmates who participate
8-20 in the six-month program and shall separate inmates> participating
8-21 in the program from the general population of the division and
8-22 house the inmates in discrete units or areas within units, except
8-23 during the diagnostic process or at other times determined to be
8-24 necessary by the division for medical or security purposes. The
8-25 institutional division shall separate an inmate who successfully
8-26 completes the program from the general population of the division
8-27 during any period after completion and before the inmate is
9-1 discharged or released on parole or mandatory supervision from the
9-2 department.
9-3 (g) The institutional division shall adopt:
9-4 (1) a procedure for determining which eligible inmates
9-5 are the best candidates for participation in the program, with
9-6 priority for those eligible inmates who volunteer; and
9-7 (2) rules of conduct for inmates participating in the
9-8 program.
9-9 (h) If the qualified professional implementing the program
9-10 <institutional division> determines that an inmate is not complying
9-11 with the rules of the program, the qualified professional shall
9-12 notify the institutional division of that fact and the
9-13 institutional division shall <may> end the inmate's participation
9-14 in the program and transfer the inmate out of the program.
9-15 (j) Neither the institutional division nor a qualified
9-16 professional implementing the program may operate the program in a
9-17 manner that automatically excludes inmates who do not volunteer to
9-18 participate, and the division and the treatment provider shall
9-19 attempt to encourage nonvolunteer inmates to participate <The
9-20 department shall require an inmate who participates in a treatment
9-21 program to participate in a drug or alcohol abuse after-care
9-22 program as a condition of parole after the inmate is released from
9-23 the institutional division>.
9-24 (k) The Criminal Justice Policy Council, with the assistance
9-25 of the institutional division, shall develop methods to evaluate
9-26 the processes used by the division in providing the program and the
9-27 level of success achieved by the program.
10-1 SECTION 3. Article 42.12, Code of Criminal Procedure, is
10-2 amended by adding Section 18A to read as follows:
10-3 Sec. 18A. SUBSTANCE ABUSE FELONY PROGRAM. (a) If a judge
10-4 places a defendant on probation under any provision of this article
10-5 as an alternative to imprisonment, the judge may require as a
10-6 condition of probation that the defendant serve a term of
10-7 confinement and treatment in a substance abuse treatment facility
10-8 operated by the Texas Department of Criminal Justice under Section
10-9 493.009, Government Code. A term of confinement and treatment
10-10 imposed under this section must be an indeterminate term of not
10-11 more than one year or less than six months.
10-12 (b) A judge may impose the condition of probation created
10-13 under this section regardless of whether the defendant is otherwise
10-14 eligible for probation under this article, but only if:
10-15 (1) the defendant is convicted of a felony other than
10-16 a felony under Section 21.11, 22.011, 22.021, or 25.06, Penal Code;
10-17 and
10-18 (2) the judge makes an affirmative finding that:
10-19 (A) drug or alcohol abuse significantly
10-20 contributed to the commission of the crime;
10-21 (B) the defendant is a suitable candidate for
10-22 treatment, as determined by the suitability criteria established by
10-23 the Texas Board of Criminal Justice under Section 493.009(b),
10-24 Government Code;
10-25 (C) there are no other community-based programs
10-26 or facilities that are suitable for the treatment of the defendant;
10-27 and
11-1 (D) after considering the gravity and
11-2 circumstances of the offense committed, imposing the condition
11-3 would best serve the ends of justice.
11-4 (c) If a judge requires as a condition of probation that the
11-5 defendant serve a term of confinement and treatment in a substance
11-6 abuse treatment facility under this section, the judge shall also
11-7 require as a condition of probation that on release from the
11-8 facility the defendant participate in a drug or alcohol abuse
11-9 continuum of care program.
11-10 SECTION 4. Section 25, Article 42.12, Code of Criminal
11-11 Procedure, is amended by amending Subsection (a) and by adding
11-12 Subsection (e) to read as follows:
11-13 (a) If after a hearing under Section 24 of this article a
11-14 court continues or modifies a felony probation after determining
11-15 that the probationer violated a condition of probation, the court
11-16 may impose one or more of the following sanctions on the
11-17 probationer:
11-18 (1) a requirement that the probationer perform work
11-19 probation or community service for a number of hours specified by
11-20 the court under Section 16 or 17 of this article, or an increase in
11-21 the number of hours that the probationer has previously been
11-22 required to perform under those sections;
11-23 (2) an increase in the period of probation, in the
11-24 manner described by Subsection (b) of this section;
11-25 (3) an increase in the probationer's fine, in the
11-26 manner described by Subsection (c) of this section;
11-27 (4) the placement of the probationer in an intensive
12-1 or maximum probation program, in the same manner and under the same
12-2 conditions as if the court had originally placed the probationer in
12-3 that program;
12-4 (5) the placement of the probationer in an electronic
12-5 monitoring program under Section 21 of this article;
12-6 (6) confinement in the county jail for a period not to
12-7 exceed 30 days, to be served consecutively, or at the discretion of
12-8 the court, in the manner provided by Article 42.033 or 42.034 of
12-9 this code;
12-10 (7) placement in a community corrections facility, in
12-11 the same manner and under the same conditions as if the court had
12-12 originally placed the probationer in that program, if the
12-13 probationer would have been eligible for sentencing to the center
12-14 on conviction of the offense for which the probationer received
12-15 probation;
12-16 (8) confinement in the county jail for a period not to
12-17 exceed 90 days, to be served consecutively; <or>
12-18 (9) confinement in a facility operated by the
12-19 institutional division of the Texas Department of Criminal Justice
12-20 for a period of either 60 or 90 days, as specified by the court, if
12-21 the court enters in the order modifying probation a statement that
12-22 the court has previously imposed three or more sanctions on the
12-23 defendant under this section; or
12-24 (10) the placement of the probationer in a substance
12-25 abuse felony punishment program operated under Section 493.009,
12-26 Government Code, in the same manner and under the same conditions
12-27 as if the court had originally placed the probationer in that
13-1 program, if the probationer would have been eligible for placement
13-2 in the program as an initial condition of probation.
13-3 (e) If the court imposes a sanction under Subsection (a)(10)
13-4 of this section, the court shall also impose a condition requiring
13-5 the probationer on successful completion of the program to
13-6 participate in a drug or alcohol abuse continuum of care program.
13-7 SECTION 5. Section 8(g), Article 42.18, Code of Criminal
13-8 Procedure, is amended to read as follows:
13-9 (g) The Texas Board of Criminal Justice may adopt such other
13-10 reasonable rules not inconsistent with law as it may deem proper or
13-11 necessary with respect to the eligibility of prisoners for parole
13-12 and mandatory supervision, the conduct of parole and mandatory
13-13 supervision hearings, or conditions to be imposed upon parolees and
13-14 persons released to mandatory supervision. Each person to be
13-15 released on parole shall be furnished a contract setting forth in
13-16 clear and intelligible language the conditions and rules of parole.
13-17 The parole panel may include as a condition of parole or mandatory
13-18 supervision any condition that a court may impose on a probationer
13-19 under Article 42.12 of this code, including the condition that the
13-20 person released submit to testing for controlled substances or
13-21 submit to electronic monitoring if the parole panel determines that
13-22 absent testing for controlled substances or participation in an
13-23 electronic monitoring program the person would not be released on
13-24 parole. Acceptance, signing, and execution of the contract by the
13-25 inmate to be paroled shall be a precondition to release on parole.
13-26 Persons released on mandatory supervision shall be furnished a
13-27 written statement setting forth in clear and intelligible language
14-1 the conditions and rules of mandatory supervision. The parole
14-2 panel may also require as a condition of parole or release to
14-3 mandatory supervision that the person make payments in satisfaction
14-4 of damages the person is liable for under Article 6184p, Revised
14-5 Statutes. The parole panel shall require as a condition of parole
14-6 or mandatory supervision that the person register under Article
14-7 6252-13c.1, Revised Statutes. The parole panel shall require as a
14-8 condition of parole or mandatory supervision that an inmate who
14-9 immediately before release is a participant in the program
14-10 established under Section 501.0931, Government Code, participate in
14-11 a drug or alcohol abuse continuum of care program.
14-12 SECTION 6. (a) Section 12.422, Penal Code, is repealed.
14-13 (b) Section 6(e), Article 42.12, Code of Criminal Procedure,
14-14 is repealed.
14-15 SECTION 7. A court may require the confinement and treatment
14-16 of a defendant as a condition of probation under Section 18A,
14-17 Article 42.12, Code of Criminal Procedure, as added by Section 3 of
14-18 this Act, granted for an offense whether the offense is committed
14-19 before, on, or after the effective date of this Act.
14-20 SECTION 8. (a) The repeal of Section 12.422, Penal Code, by
14-21 Section 6(a) of this Act applies only to the authority of a court
14-22 to sentence a defendant under the provisions of Section 12.422 for
14-23 an offense committed on or after the effective date of this Act.
14-24 For purposes of this section, an offense is committed before the
14-25 effective date of this Act if any element of the offense occurs
14-26 before the effective date.
14-27 (b) The authority of a court to sentence a defendant under
15-1 the provisions of Section 12.422, Penal Code, for an offense
15-2 committed before the effective date of this Act is covered by the
15-3 law in effect when the offense was committed, and the former law is
15-4 continued in effect for this purpose.
15-5 SECTION 9. This Act takes effect September 1, 1993.
15-6 SECTION 10. The importance of this legislation and the
15-7 crowded condition of the calendars in both houses create an
15-8 emergency and an imperative public necessity that the
15-9 constitutional rule requiring bills to be read on three several
15-10 days in each house be suspended, and this rule is hereby suspended.