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1-6 of article 42.12, Code of Criminal Procedure is hereby repealed.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1-8 Code of Criminal Procedure, is hereby repealed.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