BILL ANALYSIS
C.S.H.B. 2727
By: Place
3-28-95
Committee Report (Substituted)
BACKGROUND
During the 73rd Session, the Texas Legislature passed two bills,
S.B. 532 and S.B. 1067, that together created certain reforms in
the penal system that had not been addressed for decades. One
specific innovation of the two bills was the creation of the "state
jail" system, a separate secure housing arrangement for non-violent
felons. State jails were designed to be locally based and
programmatic. Under state jail sanctions, defendants are not
entitled to "good time" or parole and must serve their sentences
day for day. In developing this system, the Legislature rewrote
the Penal Code and reclassified certain felonies as state jail
felonies. The creation of the state jail system allowed lawmakers
to enact longer and more stringent sanctions for violent felons by
taking some of the population pressure off the state prison system.
The new state jail system and sentencing structure became effective
on September 1, 1994. Since that time, practitioners have
identified some problems with the system's implementation.
Similarly, the rewrite of the Penal Code was such a massive effort
that a number of inadvertent mistakes were made in the drafting and
need to be fixed.
PURPOSE
If enacted, C.S.H.B. 2727 would address some of the implementation
problems with the state jail system by restoring more discretion to
judges who sentence state jail felons, by eliminating mandatory
probation for state jail felons, and by increasing the period of
community supervision for repeat offenders. The bill also restores
certain laws that were inadvertently changed during the rewrite of
the Penal Code, including assault on a public servant, theft of
cable service, and peace officers' ability to carry weapons.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not expressly
grant any additional rulemaking authority to a state officer,
department, agency, or institution.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Sections 12.43(a) and (b), Penal Code
(PENALTIES FOR REPEAT AND HABITUAL MISDEMEANOR OFFENDERS), as
follows:
(a) expands punishment options for a defendant previously
convicted of a Class A misdemeanor or any felony, to include
a maximum fine of $4,000 or both such a fine and jail
confinement.
(b) expands punishment options for a defendant for whom, on
trial of Class B misdemeanor, is shown to have been previously
convicted of a Class A or Class B misdemeanor or any felony,
to include a maximum fine of $2,000 or both such a fine and
jail confinement.
SECTION 2. Amends Section 22.01, Penal Code (ASSAULT), by amending
Subsection (b) and adding Subsection (d) as follows:
(b) increases the offense of intentionally, knowingly, or
recklessly causing bodily injury to another, from a Class A
misdemeanor to a third degree felony if the offense is
committed:
(1) by a public servant performing his or her duty; or
(2) against a person the actor knows is a public
servant, or in retaliation.
(d) presumes the actor's knowledge of the victim's public
servant status if the person assaulted was wearing a
distinctive uniform or badge indicating the person's
employment.
SECTION 3. Amends Section 30.02(d), Penal Code (BURGLARY), by
including the commitment or attempt to commit a felony other than
felony theft as an offense under this section.
SECTION 4. Amends Section 31.01, Penal Code (THEFT, DEFINITIONS),
by amending Subdivision (6) and adding Subdivisions (10) and (11)
as follows:
(6) expands definition of "service" to include cable
television and subscription television.
(10) defines "cable television service."
(11) defines "subscription television service."
SECTION 5. Amends Section 31.08(c), Penal Code (THEFT, VALUE), by
including cable television service or subscription television
service in the definition of property or service and assumes the
value of service to be between $20 and $500 unless proof exists of
a greater value.
SECTION 6. Amends Section 46.02(b), Penal Code (UNLAWFUL CARRYING
WEAPONS), by striking peace officers from the list of actors
included in the defense to prosecution section.
SECTION 7. Amends Section 46.03(d), Penal Code (PLACES WEAPONS
PROHIBITED), by striking peace officer from the list of professions
in which an actor is discharging duties and can receive a defense
to prosecution from commission of offense under Subsection (a)(5).
SECTION 8. Amends Chapter 46, Penal Code, by adding Section 46.11
as follows:
Sec. 46.11. NONAPPLICABILITY TO PEACE OFFICERS. Exempts
peace officers from Sections 46.02 and 46.03, Penal Code, and
allows neither section to prohibit peace officers from
carrying a weapon in Texas, regardless of whether the officer
is engaged in the discharge of duties while carrying the
weapon.
SECTION 9. Amends Section 47.01(4), Penal Code (GAMBLING,
DEFINITIONS), by expanding the definition of "gambling device" and
excluding devices designed, made, and adapted for amusement
purposes.
SECTION 10. Amends Section 47.02, Penal Code (GAMBLING), by adding
Subsection (e) as follows:
(e) provides a defense to prosecution under this section that
a person played for something of value other than money using
a contrivance excluded from the definition of "gambling
device" under Section 47.01(4)(B).
SECTION 11. Amends Chapter 49, Penal Code (INTOXICATION AND
ALCOHOLIC BEVERAGE OFFENSES), by adding Section 49.11 as follows:
Sec. 49.11. PROOF OF MENTAL STATE UNNECESSARY. States that
proof of a culpable mental state is not required for
conviction of an offense under this chapter.
SECTION 12. Amends Section 481.126(a), Health and Safety Code
(OFFENSE: ILLEGAL EXPENDITURE OR INVESTMENT), as follows:
(1) strikes offenses under Sections 481.115(a) (OFFENSE:
POSSESSION OF SUBSTANCE IN PENALTY GROUP 1) and 481.116(a)
(OFFENSE: POSSESSION OF SUBSTANCE IN PENALTY GROUP 2) from
the list of those committed and from which a person expends
funds.
(2) makes nonsubstantive changes.
SECTION 13. Amends Section 481.134(b), Health and Safety Code
(DRUG-FREE ZONES), as follows: doubles the maximum fine for an
offense punishable as a state jail felony under Sections 481.112,
481.113, 481.114, or 481.120 (MANUFACTURE OR DELIVERY OF SUBSTANCE
IN PENALTY GROUP 1, 2, 3, or 4; or DELIVERY OF MARIJUANA);
increases the offense otherwise punishable as a felony under any of
those sections from a second degree felony to a first degree felony
if shown at the punishment phase of the trial that the offense was
committed:
(1) in, on, or within 1,000 feet of a school or its property;
or
(2) in, on, or within 300 feet of a public or private youth
center, public swimming pool, or video arcade.
SECTION 14. Amends Section 483.041(d), Health and Safety Code
(POSSESSION OF DANGEROUS DRUG), by lowering the classification of
an offense under this section from a third degree felony to a Class
A misdemeanor.
SECTION 15. Amends Chapter 38, Code of Criminal Procedure
(EVIDENCE IN CRIMINAL ACTIONS), by adding Article 38.37 as follows:
Art. 38.37. CONSULTATION WITH LAWYER. Prohibits the act of
contacting or retaining an attorney from being used against an
entity in a proceeding unless that act falls within an
established crime-fraud exception.
SECTION 16. Amends Section 5(a), Article 42.12, Code of Criminal
Procedure (DEFERRED ADJUDICATION; COMMUNITY SUPERVISION), as
follows: specifies the time frame in which the judge must inform
the defendant of possible consequences of a violation of community
supervision; adds a statement that the judge's failure to inform a
defendant of possible consequences of a violation does not
constitute grounds for reversal unless the defendant shows he was
misled or harmed by the lack of information.
SECTION 17. Amends Section 11(a), Article 42.12, Code of Criminal
Procedure (BASIC CONDITIONS OF COMMUNITY SUPERVISION), as follows:
deletes the requirement that conditions of community supervision
fall under Sections 10 and 22 of this article; renumbers several
subsections; and requires the defendant to make one payment to the
Crime Victims Compensation Fund (if no reimbursement is required as
punishment for particular offense) of a maximum $50 for a
misdemeanor or maximum $100 for a felony.
SECTION 18. Amends Section 15, Article 42.12, Code of Criminal
Procedure (PROCEDURES RELATING TO STATE JAIL FELONY COMMUNITY
SUPERVISION), by amending Subsections (b), (d), and (f) and adding
Subsection (i) as follows:
(b) increases the maximum allowable period of community
supervision from five years to ten years if the defendant has
two or more previous felony convictions.
(d) increases the maximum allowable "up-front" time a
defendant must serve in a state jail from 180 days to one year
if the defendant has a prior state jail felony conviction
under Section 481.112, Health and Safety Code; and changes the
condition for this "up-front" time from two or more previous
felony convictions to one previous felony conviction.
(f) (1) renumbered.
(2) renumbered.
(3) outlines the procedures for a defendant to follow
if he or the attorney for the state requests suspension
by the judge of further execution of the sentence and
placement of the defendant on community supervision;
allows the judge to deny the motion without a hearing
but not to grant the motion without holding a hearing
and providing the defendant and the attorney for the
state the opportunity to present evidence on the motion.
(i) limits applicability of Subsections (c)-(h) only to
defendants placed on community supervision after being
sentenced to confinement in a state jail.
SECTION 19. Amends Section 18(h), Article 42.12, Code of Criminal
Procedure (COMMUNITY CORRECTIONS FACILITIES), by specifying Section
15 (PROCEDURES RELATING TO STATE JAIL FELONY COMMUNITY SUPERVISION)
as the section under which a defendant is serving a term; and by
replacing the term "community corrections facility" with "state
jail felony facility."
SECTION 20. Amends Section 20(a), Article 42.12, Code of Criminal
Procedure (REDUCTION OR TERMINATION OF COMMUNITY SUPERVISION), as
follows:
(a) excludes defendants convicted of a state jail felony from
those able to have period of community supervision reduced or
terminated by the judge after serving one-third of original
period.
(b) strikes certain intoxication offenses (Sections 49.04 -
49.08, Penal Code) from the list of offenses from the list
from which a convicted defendant may have a plea withdrawn or
the accusation, complaint, information or indictment
dismissed.
SECTION 21. Repeals Section 20(b), Article 42.12, Code of Criminal
Procedure.
SECTION 22. Requires the Board of Pardons and Paroles to have a
two-thirds vote of the entire membership of the board in order to
grant parole to any person convicted of a capital felony,
regardless of whether the person was sentenced for an offense
committed before, on, or after September 1, 1993.
SECTION 23.
(a) Changes in law made by this Act (except as provided by
Section 24 of this Act) apply only to an offense committed on
or after the effective date of this Act.
(b) Makes effects of this Act prospective.
SECTION 24. Provides that Section 22 of this Act applies to
offenses committed before, on, or after September 1, 1993.
SECTION 25. Effective date: September 1, 1995.
SECTION 26. Emergency clause.
COMPARISON OF SUBSTITUTE TO ORIGINAL
SECTION 1 of original bill. deleted (STATE JAIL FELONY PUNISHMENT).
SECTION 1 of substitute. amends Sections 12.43(a) and (b), Penal
Code (PENALTIES FOR REPEAT AND HABITUAL OFFENDERS), by expanding
punishment options for certain previously convicted offenders.
SECTION 2. renumbered.
SECTION 3. amends Section 30.02(d), Penal Code (BURGLARY) by
expanding the definition of offense under this section.
SECTIONS 4 - 11. renumbered.
SECTION 12. amends Section 481.126(a), Health and Safety Code
(OFFENSE: ILLEGAL EXPENDITURE OR INVESTMENT), by striking offenses
under Sections 481.115(a) and 481.116(a) from the list of those
committed and from which a person expends funds.
SECTION 13. renumbered.
SECTION 14. amends Section 483.041(d), Health and Safety Code
(POSSESSION OF DANGEROUS DRUG), by lowering the classification of
an offense under this section from a third degree felony to a Class
A misdemeanor.
SECTION 15. amends Chapter 38, Code of Criminal Procedure (EVIDENCE
IN CRIMINAL ACTIONS), by adding Article 38.37: CONSULTATION WITH
LAWYER. Prohibits the act of contacting or retaining an attorney
from being used against an entity in a proceeding unless that act
falls within an established crime-fraud exception.
SECTION 16. renumbered.
SECTION 17. amends Section 5(a), Article 42.12, Code of Criminal
Procedure (DEFERRED ADJUDICATION; COMMUNITY SUPERVISION), as
follows: deletes the requirement that conditions of community
supervision fall under Sections 10 and 22 of this article;
renumbers several sections; and requires the defendant to make one
payment to the Crime Victims Compensation Fund of a maximum $50 for
a misdemeanor or maximum $100 for a felony.
SECTION 18. renumbered; no longer amends Subsection (a), Section
15, Article 42.12, Code of Criminal Procedure.
SECTION 19. renumbered.
SECTION 20. renumbered; excludes defendants convicted of a state
jail felony from those able to have period of community supervision
reduced or terminated by the judge after serving one-third of
original period.
SECTION 21. repeals Section 20(b), Article 42.12, Code of Criminal
Procedure.
SECTIONS 22 - 26. renumbered.
SUMMARY OF COMMITTEE ACTION
HB 2727 was considered by the committee in a public hearing on
March 20, 1995. The following persons spoke in favor of the bill:
Becky McPherson, representing herself;
Sherri Wallace, representing John Vance, District Attorney,
Dallas County;
Bill Lewis, representing Mothers Against Drunk Driving;
Ken Anderson, Williamson County District Attorney,
representing himself; and
Betty Blackwell, representing the Texas Criminal Defense
Lawyers Association (TCDLA).
The following persons testified against the bill:
Jim Allison, representing the County Judges and Commissioners
Assn; and
Donald Lee, representing the Conference of Urban Counties.
HB 2727 was left pending in committee. HB 2727 was considered by
the committee in a formal meeting on March 28, 1995. The committee
considered a complete substitute for HB 2727. The substitute was
adopted without objection by a non-record vote. HB 2727 was
reported favorably, as substituted, with the recommendation that it
do pass and be printed, by a record vote of 8 ayes, 0 nays, 0 pnv,
and 1 absent.