By: Montford S.B. No. 825
73R5718 GWK-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the prosecution of and punishment for certain sexual
1-3 offenses.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 22.012, Penal Code, is amended to read as
1-6 follows:
1-7 Sec. 22.012. Intentionally Exposing Another to AIDS or HIV.
1-8 (a) A person commits an offense if the person, knowing that he or
1-9 she has AIDS or is a carrier of HIV and with intent to cause
1-10 serious bodily injury or death, intentionally engages in conduct
1-11 reasonably likely to result in the transfer of the actor's own
1-12 blood, bodily fluids containing visible blood, semen, or vaginal
1-13 secretions into the bloodstream of another, or through the other
1-14 person's skin or other membrane, except during in utero
1-15 transmission of blood or bodily fluids, and:
1-16 (1) the other person did not consent to the transfer
1-17 of blood, bodily fluids containing blood, semen, or vaginal
1-18 secretions; or
1-19 (2) the other person consented to the transfer but at
1-20 the time of giving consent had not been informed by the actor that
1-21 the actor had AIDS or was a carrier of HIV.
1-22 (b) A person commits an offense if the person commits an
1-23 offense listed in Section 2(d), Article 37.07, Code of Criminal
1-24 Procedure, and during the course of the offense transmits AIDS or
2-1 HIV to the victim of the offense.
2-2 (c) In this section, "AIDS" and "HIV" have the meanings
2-3 assigned by Section 81.101, Health and Safety Code.
2-4 (d) <(c)> An offense under Subsection (a) of this section is
2-5 a felony of the third degree. An offense under Subsection (b) of
2-6 this section is a felony of the first degree.
2-7 SECTION 2. Article 21.31(a), Code of Criminal Procedure, is
2-8 amended to read as follows:
2-9 (a) A person indicted for an offense under Section 22.011 or
2-10 22.021, Penal Code, or convicted of an offense listed in Section
2-11 2(d), Article 37.07, of this code shall, at the direction of the
2-12 court, undergo a medical procedure or test designed to show or help
2-13 show whether the person has a sexually transmitted disease or has
2-14 acquired immune deficiency syndrome (AIDS) or human
2-15 immunodeficiency virus (HIV) infection, antibodies to HIV, or
2-16 infection with any other probable causative agent of AIDS. The
2-17 court may direct the person to undergo the procedure or test on its
2-18 own motion or on the request of the victim of the alleged offense.
2-19 If the person refuses to submit voluntarily to the procedure or
2-20 test, the court shall <may> require the person to submit to the
2-21 procedure or test. The court may require a defendant previously
2-22 required to undergo a medical procedure or test on indictment for
2-23 an offense under Section 22.011 or Section 22.021, Penal Code, to
2-24 undergo a subsequent medical procedure or test following conviction
2-25 of the offense. The person performing the procedure or test shall
2-26 make the test results available to the local health authority, and
2-27 the local health authority shall be required to make the
3-1 notification of the test result to the victim of the alleged
3-2 offense. The state may not use the fact that a medical procedure
3-3 or test was performed on a person under this subsection or use the
3-4 results of the procedure or test in any criminal proceeding arising
3-5 out of the alleged offense.
3-6 SECTION 3. Article 26.13, Code of Criminal Procedure, is
3-7 amended by adding Subsection (g) to read as follows:
3-8 (g) A court that inquires as to the existence of a plea
3-9 bargain agreement as required by Subsection (a) of this article in
3-10 a case in which the defendant is charged with an offense listed in
3-11 Section 2(d), Article 37.07, of this code shall also inquire of the
3-12 prosecuting attorney whether as part of the plea bargain agreement
3-13 the prosecuting attorney has agreed not to prosecute the defendant
3-14 for any other commission of an offense listed in Section 2(d). If
3-15 the prosecuting attorney answers in the affirmative, the court
3-16 shall reject the plea bargain agreement.
3-17 SECTION 4. Section 2, Article 37.07, Code of Criminal
3-18 Procedure, is amended by adding Subsection (d) to read as follows:
3-19 (d) An attorney representing the state prosecuting a
3-20 defendant for an offense listed in this subsection who has
3-21 knowledge of the existence of a prior conviction for an offense
3-22 listed in this subsection shall notify the defendant in writing not
3-23 later than the 10th day before the date on which the trial
3-24 commences that the state intends to request an affirmative finding
3-25 on the existence of the prior conviction. The notice must state
3-26 the offense for which the defendant was convicted, the jurisdiction
3-27 in which the defendant was convicted, and the date on which the
4-1 defendant was convicted. The judge, before the trial commences,
4-2 shall determine whether the defendant has been convicted of the
4-3 offense alleged in the written notice. The state must prove the
4-4 existence of the prior conviction by a preponderance of the
4-5 evidence. If the judge determines that the prior conviction
4-6 exists, the judge shall enter an affirmative finding of that fact
4-7 into the record of the case. This subsection applies to a felony
4-8 offense under the following sections of the Penal Code:
4-9 (1) Section 21.11;
4-10 (2) Section 22.011;
4-11 (3) Section 22.021;
4-12 (4) Section 25.02; and
4-13 (5) Section 25.06.
4-14 SECTION 5. Article 42.08(b), Code of Criminal Procedure, is
4-15 amended to read as follows:
4-16 (b)(1) If a defendant is sentenced for an offense committed
4-17 while the defendant was a prisoner in the institutional division of
4-18 the Texas Department of Criminal Justice <Corrections> and the
4-19 defendant has not completed the sentence he was serving at the time
4-20 of the offense, the judge shall order the sentence for the
4-21 subsequent offense to commence immediately on completion of the
4-22 sentence for the original offense.
4-23 (2) If a defendant is sentenced for two or more
4-24 offenses listed in Section 2(d), Article 37.07, of this code, the
4-25 judge shall order that the sentence in the second and subsequent
4-26 convictions commence immediately on the completion of the preceding
4-27 sentence.
5-1 SECTION 6. Section 5(d), Article 42.12, Code of Criminal
5-2 Procedure, is amended to read as follows:
5-3 (d) This section does not apply to a defendant:
5-4 (1) charged with an offense listed in Section 2(d),
5-5 Article 37.07, of this code; or
5-6 (2) charged with an offense under:
5-7 (A) Subdivision (2), Subsection (a), Section
5-8 19.05, Penal Code;
5-9 (B)<, an offense under> Sections 481.107(b)
5-10 through (e), 481.122, or 481.126, Health and Safety Code;
5-11 (C)<, an offense under> Article 6701l-1, Revised
5-12 Statutes;
5-13 (D)<, an offense under> Section 34, Chapter 173,
5-14 Acts of the 47th Legislature, Regular Session, 1941 (Article 6687b,
5-15 Vernon's Texas Civil Statutes);
5-16 (E)<, an offense under> Section 32(c), Texas
5-17 Motor Vehicle Safety-Responsibility Act (Article 6701h, Vernon's
5-18 Texas Civil Statutes); or
5-19 (F)<, or an offense under> Section 10, Texas
5-20 Commercial Driver's License Act (Article 6687b-2, Revised
5-21 Statutes).
5-22 SECTION 7. Section 8(b), Article 42.18, Code of Criminal
5-23 Procedure, is amended by adding Subdivision (5) to read as follows:
5-24 (5) If a prisoner is serving a sentence for an offense
5-25 for which the judgment contains an affirmative finding under
5-26 Section 2(d), Article 37.07, of this code, the prisoner is not
5-27 eligible for release on parole until the actual calendar time the
6-1 prisoner has served, without consideration of good conduct time,
6-2 equals 80 percent of the sentence imposed.
6-3 SECTION 8. Section 8(c), Article 42.18, Code of Criminal
6-4 Procedure, is amended to read as follows:
6-5 (c) Except as otherwise provided by this subsection, a
6-6 prisoner who is not on parole shall be released to mandatory
6-7 supervision by order of a parole panel when the calendar time he
6-8 has served plus any accrued good conduct time equal the maximum
6-9 term to which he was sentenced. A prisoner released to mandatory
6-10 supervision shall, upon release, be deemed as if released on
6-11 parole. To the extent practicable, arrangements for the prisoner's
6-12 proper employment, maintenance, and care shall be made prior to his
6-13 release to mandatory supervision. The period of mandatory
6-14 supervision shall be for a period equivalent to the maximum term
6-15 for which the prisoner was sentenced less calendar time actually
6-16 served on the sentence. The time served on mandatory supervision
6-17 is calculated as calendar time. Every prisoner while on mandatory
6-18 supervision shall remain in the legal custody of the state and
6-19 shall be amenable to conditions of supervision ordered by the
6-20 parole panel. A prisoner may not be released to mandatory
6-21 supervision if the prisoner is serving a sentence for an offense
6-22 and the judgment for the offense contains an affirmative finding
6-23 under Section 2(d), Article 37.07, of this code or under
6-24 Subdivision (2), Subsection (a), Section 3g, Article 42.12, of this
6-25 code or if the prisoner is serving a sentence for:
6-26 (1) a first degree felony under Section 19.02, Penal
6-27 Code (Murder);
7-1 (2) a capital felony under Section 19.03, Penal Code
7-2 (Capital Murder);
7-3 (3) a first degree felony or a second degree felony
7-4 under Section 20.04, Penal Code (Aggravated Kidnapping);
7-5 (4) a second degree felony under Section 22.011, Penal
7-6 Code (Sexual Assault);
7-7 (5) a second degree or third degree felony under
7-8 Section 22.02, Penal Code (Aggravated Assault);
7-9 (6) a first degree felony under Section 22.021, Penal
7-10 Code (Aggravated Sexual Assault);
7-11 (7) a first degree felony under Section 22.03, Penal
7-12 Code (Deadly Assault on Law Enforcement or Corrections Officer or
7-13 Court Participant);
7-14 (8) a first degree felony under Section 22.04, Penal
7-15 Code (Injury to a Child or an Elderly Individual);
7-16 (9) a first degree felony under Section 28.02, Penal
7-17 Code (Arson);
7-18 (10) a second degree felony under Section 29.02, Penal
7-19 Code (Robbery);
7-20 (11) a first degree felony under Section 29.03, Penal
7-21 Code (Aggravated Robbery); or
7-22 (12) a first degree felony under Section 30.02, Penal
7-23 Code (Burglary), if the offense is punished under Subsection (d)(2)
7-24 or (d)(3) of that section.
7-25 SECTION 9. (a) The change in law made by this Act
7-26 applies only to the prosecution and punishment for a defendant
7-27 charged with an offense committed on or after the effective date
8-1 of this Act. For purposes of this section, an offense is committed
8-2 before the effective date of this Act if any element of the offense
8-3 occurs before the effective date.
8-4 (b) A defendant charged with an offense committed before the
8-5 effective date of this Act is covered by the law in effect when the
8-6 offense was committed, and the former law is continued in effect
8-7 for this purpose.
8-8 SECTION 10. This Act takes effect September 1, 1993.
8-9 SECTION 11. The importance of this legislation and the
8-10 crowded condition of the calendars in both houses create an
8-11 emergency and an imperative public necessity that the
8-12 constitutional rule requiring bills to be read on three several
8-13 days in each house be suspended, and this rule is hereby suspended.