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    1-6  of article 42.12, Code of Criminal Procedure is hereby repealed.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    1-8  Code of Criminal Procedure, is hereby repealed.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.