By: Whitmire S.B. No. 764 A BILL TO BE ENTITLED AN ACT 1-1 relating to the amendment of the Code of Criminal Procedure, 1-2 Chapter 56, Subchapter B, the Crime Victims Compensation Act and 1-3 Chapter 42, article 42.12. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Subdivision (14) of subsection (a) of section 11 1-6 of article 42.12, Code of Criminal Procedure is hereby repealed. 1-7 SECTION 2. Subsection (c) of section 11 of article 42.12, 1-8 Code of Criminal Procedure, is hereby repealed. 1-9 SECTION 3. Sections 11A and 11B are added to article 42.12, 1-10 the Code of Criminal Procedure, to read as follows: 1-11 Sec. 11A. ORDER OF RESTITUTION. (a)(1) The court, when 1-12 sentencing a defendant convicted of an offense under the penal laws 1-13 of this state, may order, in addition to or in lieu of any other 1-14 penalty authorized by law, that the defendant make restitution to 1-15 any victim of the offense. 1-16 (2) If the court does not order restitution, or orders 1-17 only partial restitution, under this section, the court shall state 1-18 on the record the reasons therefore. 1-19 (b) The order may require that such defendant-- 1-20 (1) in the case of an offense resulting in damage to 1-21 or loss or destruction of property of a victim of the offense-- 1-22 (A) return the property to the owner of the 1-23 property or someone designated by the owner; or 2-1 (B) if return of the property under subparagraph 2-2 (A) is impossible, impractical, or inadequate, pay an amount equal 2-3 to the greater of-- 2-4 (i) the value of the property on the date 2-5 of the damage, loss, or destruction, or 2-6 (ii) the value of the property on the date 2-7 of sentencing, less the value (as of the date the property is 2-8 returned) of any part of the property that is returned; 2-9 (2) in the case of an offense resulting in bodily 2-10 injury to a victim-- 2-11 (A) pay an amount equal to the cost of necessary 2-12 medical and related professional services and devices relating to 2-13 physical, psychiatric, and psychological care, including nonmedical 2-14 care and treatment rendered in accordance with a method of healing 2-15 recognized by the law of the place of treatment; 2-16 (B) pay an amount equal to the cost of necessary 2-17 physical and occupational therapy and rehabilitation; and 2-18 (C) reimburse the victim for income lost by such 2-19 victim as a result of such offense; 2-20 (3) in the case of an offense resulting in bodily 2-21 injury also results in the death of a victim, pay an amount equal 2-22 to the cost of necessary funeral and related services; and 2-23 (4) in any case, if the victim (or if the victim is 2-24 deceased, the victim's estate) consents, make restitution in 2-25 services in lieu of money, or make restitution to a person or 3-1 organization designated by the victim or the estate. 3-2 (c) In addition to any other terms and conditions of 3-3 probation, the court may require a probationer to reimburse the 3-4 crime victims compensation fund created under the Crime Victims 3-5 Compensation Act (Chapter 56, Code of Criminal Procedure) for any 3-6 amounts paid from that fund to a victim of the convicted person's 3-7 offense. In this subsection, "victim" has the meaning assigned by 3-8 Article 56.01 of this code. 3-9 (d) If the court decides to order restitution under this 3-10 section, the court shall, if the victim is deceased, order that the 3-11 restitution be made to the victim's estate. 3-12 (e) The court shall impose an order of restitution to the 3-13 extent that such order is as fair as possible to the victim and the 3-14 imposition of such order will not unduly complicate or prolong the 3-15 sentencing process. 3-16 (f)(1) The court shall not impose restitution with respect 3-17 to a loss for which the victim has received or is to receive 3-18 compensation, except that the court may, in the interest of 3-19 justice, order restitution to any person who has compensated the 3-20 victim for such loss to the extent that such person paid the 3-21 compensation. An order of restitution shall require that all 3-22 restitution to victims under such order be made before any 3-23 restitution to any other person under such order is made. 3-24 (2) Any amount paid to a victim under an order of 3-25 restitution shall be set off against any amount later recovered as 4-1 compensatory damages by such victim in-- 4-2 (A) any federal civil proceeding; and 4-3 (B) any Texas civil proceeding, to the extent 4-4 provided by the law of this state. 4-5 (g)(1) The court may require that such defendant make 4-6 restitution under this section within a specified period or in 4-7 specified installments. 4-8 (2) The end of such period or the last such 4-9 installment shall not be later than-- 4-10 (A) the end of the period of probation, if 4-11 probation is ordered; 4-12 (B) five years after the end of the term of 4-13 imprisonment imposed, if the court does not order probation; and 4-14 (C) five years after the date of sentencing in 4-15 any other case. 4-16 (3) If not otherwise provided by the court under this 4-17 subsection, restitution shall be made immediately. 4-18 (4) The order of restitution shall require the 4-19 defendant to make restitution directly to the victim or other 4-20 person eligible under this section, 4-21 or to deliver the amount or property due as restitution to the 4-22 Attorney General for transfer to such victim or person. 4-23 (h) If such defendant is placed on probation or paroled 4-24 under this chapter, any restitution ordered under this section 4-25 shall be a condition of probation or parole. The court may revoke 5-1 probation and the Board of Pardons and Paroles may revoke parole if 5-2 the defendant fails to comply with such order. In determining 5-3 whether to revoke probation or parole, the court or board shall 5-4 consider the defendant's employment status, earning ability, 5-5 financial resources, the willfulness of the defendant's failure to 5-6 pay, and any other special circumstances that may have a bearing on 5-7 the defendant's ability to pay. 5-8 (i) An order of restitution may be enforced by the state or 5-9 a victim named in the order to receive the restitution in the same 5-10 manner as a judgment in a civil action. 5-11 Sec. 11B. PROCEDURE FOR ISSUING ORDER OF RESTITUTION. 5-12 (a) The court, in determining whether to order restitution under 5-13 the section above and the amount of such restitution, shall 5-14 consider the amount of the loss sustained by any victim as a result 5-15 of the offense, the financial resources of the defendant, the 5-16 financial needs and earning ability of the defendant and the 5-17 defendant's dependents, and such other factors as the court deems 5-18 appropriate. 5-19 (b) The court may order the probation service of the court 5-20 to obtain information pertaining to the factors set forth in 5-21 subsection (a) of this section. The probation service of the court 5-22 shall include the information collected in the report of 5-23 presentence investigation or in a separate report, as the court 5-24 directs. 5-25 (c) The court shall disclose to both the defendant and to 6-1 the prosecuting attorney all portions of the presentence or other 6-2 report pertaining to the matters described in subsection (a) of 6-3 this section. 6-4 (d) Any dispute as to the proper amount or type of 6-5 restitution shall be resolved by the court by the preponderance of 6-6 the evidence. The burden of demonstrating the amount of the loss 6-7 sustained by a victim as a result of the offense shall be on the 6-8 prosecuting attorney. The burden of demonstrating the financial 6-9 resources of the defendant and the financial needs of the defendant 6-10 and such defendant's dependents shall be on the defendant. The 6-11 burden of demonstrating such other matters as the court deems 6-12 appropriate shall be upon the party designated by the court as 6-13 justice requires. 6-14 (e) A conviction of a defendant for an offense involving the 6-15 act giving rise to restitution under this section shall estop the 6-16 defendant from denying the essential allegations of that offense in 6-17 any subsequent federal civil proceeding or state civil proceeding, 6-18 to the extent consistent with state law, brought by the victim. 6-19 SECTION 4. (a) The change in law made by this Act applies 6-20 only to an offense committed on or after the effective date of this 6-21 Act. For purposes of this Act, an offense is committed before the 6-22 effective date of this Act if any element of the offense occurs 6-23 before the effective date. 6-24 (b) An offense committed before the effective date of this 6-25 Act is covered by the law in effect when the offense is committed, 7-1 and the former law is continued in effect for this purpose. 7-2 SECTION 5. This Act takes effect September 1, 1993. 7-3 SECTION 6. The importance of this legislation and the 7-4 crowded condition of the calendars in both houses create an 7-5 emergency and an imperative public necessity that the 7-6 constitutional rule requiring bills to be read on three several 7-7 days in each house be suspended, and this rule is hereby suspended, 7-8 and that this Act take effect and be in force from and after its 7-9 passage, and it is so enacted.