By Allen, Greenberg, Naishtat, Talton, H.B. No. 11
Raymond, et al.
Substitute the following for H.B. No. 11:
By Greenberg C.S.H.B. No. 11
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to participation by victims in certain criminal
1-3 proceedings, restitution for victims, and training for officers who
1-4 deal with victims; providing a penalty.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 ARTICLE 1
1-7 SECTION 1.01. Article 56.02, Code of Criminal Procedure, is
1-8 amended to read as follows:
1-9 Art. 56.02. Crime victims' rights. (a) A victim, guardian
1-10 of a victim, or close relative of a deceased victim is entitled to
1-11 the following rights within the criminal justice system:
1-12 (1) the right to receive from law enforcement agencies
1-13 adequate protection from harm and threats of harm arising from
1-14 cooperation with prosecution efforts;
1-15 (2) the right to have the magistrate take the safety
1-16 of the victim or his family into consideration as an element in
1-17 fixing the amount of bail for the accused;
1-18 (3) the right, if requested, to be informed by the
1-19 attorney representing the state or the attorney's designated
1-20 representative of:
1-21 (A) relevant court proceedings, including
1-22 appellate proceedings, and to be informed if those <court>
1-23 proceedings have been canceled or rescheduled prior to the event;
1-24 and
2-1 (B) any decision in a court proceeding,
2-2 immediately after the decision is filed and entered;
2-3 (4) the right to be informed, when requested, by a
2-4 peace officer concerning the defendant's right to bail and the
2-5 procedures in criminal investigations and by the district
2-6 attorney's office concerning the general procedures in the criminal
2-7 justice system, including general procedures in guilty plea
2-8 negotiations and arrangements, restitution, and the appeals and
2-9 parole process;
2-10 (5) the right to provide pertinent information to a
2-11 probation department conducting a presentencing investigation
2-12 concerning the impact of the offense on the victim and his family
2-13 by testimony, written statement, or any other manner prior to any
2-14 sentencing of the offender;
2-15 (6) the right to receive information regarding
2-16 compensation to victims of crime as provided by Subchapter B of
2-17 this chapter <the Crime Victims Compensation Act (Article 8309-1,
2-18 Vernon's Texas Civil Statutes)>, including information related to
2-19 the costs that may be compensated under that subchapter <Act> and
2-20 the amount of compensation, eligibility for compensation, and
2-21 procedures for application for compensation under that subchapter
2-22 <Act>, the payment for a medical examination under Article 56.06 of
2-23 this code for a victim of a sexual assault, and when requested, to
2-24 referral to available social service agencies that may offer
2-25 additional assistance;
2-26 (7) the right to be informed, upon request, of parole
2-27 procedures, to participate in the parole process, to be notified,
3-1 if requested, of parole proceedings concerning a defendant in the
3-2 victim's case, to provide to the Board of Pardons and Paroles for
3-3 inclusion in the defendant's file information to be considered by
3-4 the board prior to the parole of any defendant convicted of any
3-5 crime subject to this Act, and to be notified, if requested, of the
3-6 defendant's release;
3-7 (8) the right to be provided with a waiting area,
3-8 separate or secure from other witnesses, including the offender and
3-9 relatives of the offender, before testifying in any proceeding
3-10 concerning the offender; if a separate waiting area is not
3-11 available, other safeguards should be taken to minimize the
3-12 victim's contact with the offender and the offender's relatives and
3-13 witnesses, before and during court proceedings;
3-14 (9) the right to prompt return of any property of the
3-15 victim that is held by a law enforcement agency or the attorney for
3-16 the state as evidence when the property is no longer required for
3-17 that purpose;
3-18 (10) the right to have the attorney for the state
3-19 notify the employer of the victim, if requested, of the necessity
3-20 of the victim's cooperation and testimony in a proceeding that may
3-21 necessitate the absence of the victim from work for good cause;
3-22 <and>
3-23 (11) the right to counseling, on request, regarding
3-24 acquired immune deficiency syndrome (AIDS) and human
3-25 immunodeficiency virus (HIV) infection and testing for acquired
3-26 immune deficiency syndrome (AIDS), human immunodeficiency virus
3-27 (HIV) infection, antibodies to HIV, or infection with any other
4-1 probable causative agent of AIDS, if the offense is an offense
4-2 under Section 21.11(a)(1), 22.011, or 22.021, Penal Code;
4-3 (12) the right to request victim-offender mediation
4-4 coordinated by the Texas Department of Criminal Justice;
4-5 (13) the right to be present at all public court
4-6 proceedings related to the offense, subject to the approval of the
4-7 judge in the case; and
4-8 (14) the right to be informed of the uses of a victim
4-9 impact statement and the statement's purpose in the criminal
4-10 justice system, to complete the victim impact statement, and to
4-11 have the victim impact statement considered:
4-12 (A) by the attorney representing the state and
4-13 the judge before sentencing or before a plea bargain agreement is
4-14 accepted; and
4-15 (B) by the Board of Pardons and Paroles before
4-16 an inmate is released on parole.
4-17 (b) <A victim is entitled to the right to be present at all
4-18 public court proceedings related to the offense, subject to the
4-19 approval of the judge in the case.>
4-20 <(c)> The office of the attorney representing the state, and
4-21 the sheriff, police, and other law enforcement agencies shall
4-22 ensure to the extent practicable that a victim, guardian of a
4-23 victim, or close relative of a deceased victim is afforded the
4-24 rights granted by Subsection (a) of this article and, on request,
4-25 an explanation of those rights.
4-26 (c) <(d)> A judge, attorney for the state, peace officer, or
4-27 law enforcement agency is not liable for a failure or inability to
5-1 provide a right enumerated in this article. The failure or
5-2 inability of any person to provide a right or service enumerated in
5-3 this article may not be used by a defendant in a criminal case as a
5-4 ground for appeal, a ground to set aside the conviction or
5-5 sentence, or a ground in a habeas corpus petition. A victim,
5-6 guardian of a victim, or close relative of a deceased victim does
5-7 not have standing to participate as a party in a criminal
5-8 proceeding or to contest the disposition of any charge.
5-9 SECTION 1.02. Article 56.08, Code of Criminal Procedure, is
5-10 amended by adding Subsection (d) to read as follows:
5-11 (d) The brief general statement describing the plea
5-12 bargaining stage in a criminal trial required by Subsection (a)(1)
5-13 shall include a statement that:
5-14 (1) the victim impact statement provided by the
5-15 victim, guardian of a victim, or close relative of a deceased
5-16 victim will be considered by the attorney representing the state in
5-17 entering into the plea bargain agreement; and
5-18 (2) the judge before accepting the plea bargain is
5-19 required under Section 26.13(e) to ask:
5-20 (A) whether a victim impact statement has been
5-21 returned to the attorney; and
5-22 (B) if a statement has been returned, for a copy
5-23 of the statement.
5-24 SECTION 1.03. Subchapter A, Chapter 56, Code of Criminal
5-25 Procedure, is amended by adding Article 56.12 to read as follows:
5-26 Art. 56.12. NOTIFICATION OF ESCAPE OR TRANSFER UNDER WRIT OR
5-27 WARRANT. (a) The Texas Department of Criminal Justice shall
6-1 immediately notify the victim of an offense, the victim's guardian,
6-2 or the victim's close relative if the victim is deceased, if the
6-3 victim, victim's guardian, or victim's close relative has notified
6-4 the department as provided by Subsection (b), whenever the
6-5 offender:
6-6 (1) escapes from a facility operated by the department
6-7 or under contract with the department;
6-8 (2) is transferred from the custody of the department
6-9 for more than one day to the custody of a peace officer under a
6-10 writ of attachment or a bench warrant; or
6-11 (3) dies.
6-12 (b) It is the responsibility of the victim, guardian, or
6-13 close relative desiring notification of an offender's escape or
6-14 transfer from custody under a writ of attachment or bench warrant
6-15 or notification of an offender's death to notify the Texas
6-16 Department of Criminal Justice of the desire for notification and
6-17 any change of address.
6-18 (c) In providing notice under Subsection (a)(2), the Texas
6-19 Department of Criminal Justice shall include the name, office
6-20 address, and office telephone number of the peace officer receiving
6-21 the inmate into custody.
6-22 SECTION 1.04. Article 42.131, Code of Criminal Procedure, is
6-23 amended by adding Section 14 to read as follows:
6-24 Sec. 14. VICTIM NOTIFICATION. (a) A department, using the
6-25 name and address provided by the attorney representing the state
6-26 under Article 56.08(e), shall make a reasonable effort to notify a
6-27 victim of the defendant's crime or, if the victim has a guardian or
7-1 is deceased, to notify the guardian of the victim or close relative
7-2 of the deceased victim of:
7-3 (1) the fact that the defendant has been placed on
7-4 community supervision;
7-5 (2) the conditions of community supervision imposed on
7-6 the defendant by the court; and
7-7 (3) the date, time, and location of any hearing or
7-8 proceeding at which the conditions of the defendant's community
7-9 supervision may be modified or the defendant's placement on
7-10 community supervision may be revoked or terminated.
7-11 (b) It is the responsibility of the victim, guardian, or
7-12 close relative desiring notification under this section to notify
7-13 the department of the desire for notification and any change of
7-14 address.
7-15 (c) In this section, "close relative of a deceased victim,"
7-16 "guardian of a victim," and "victim" have the meanings assigned by
7-17 Article 56.01.
7-18 SECTION 1.05. Article 56.08, Code of Criminal Procedure, is
7-19 amended by adding Subsection (e) to read as follows:
7-20 (e) For the purpose of victim notification, an attorney
7-21 representing the state who receives information concerning a
7-22 victim's current address and phone number shall immediately provide
7-23 that information to the community supervision and corrections
7-24 department supervising the defendant, if the defendant is placed on
7-25 community supervision.
7-26 SECTION 1.06. Section 8(f)(2), Article 42.18, Code of
7-27 Criminal Procedure, is amended to read as follows:
8-1 (2) Before a parole panel considers for parole a
8-2 prisoner who is serving a sentence for an offense in which a person
8-3 was a victim, the Texas Department of Criminal Justice <pardons and
8-4 paroles division>, using the name and address provided on the
8-5 victim impact statement, shall make a reasonable effort to notify a
8-6 victim of the prisoner's crime or if the victim has a legal
8-7 guardian or is deceased, to notify the legal guardian or close
8-8 relative of the deceased victim. If the notice is sent to a
8-9 guardian or close relative of a deceased victim, the notice must
8-10 contain a request by the department <pardons and paroles division>
8-11 that the guardian or relative inform other persons having an
8-12 interest in the matter that the prisoner is being considered for a
8-13 parole hearing. If a parole panel is empaneled in a single
8-14 location for a release hearing <is held>, the parole panel shall
8-15 allow a victim, guardian of a victim, close relative of a deceased
8-16 victim, or a representative of a victim or his guardian or close
8-17 relative to provide, at that person's discretion, a written or oral
8-18 statement. If an oral statement is provided, the statement must be
8-19 accompanied by a written transcript of the statement. If a parole
8-20 panel is not empaneled in a single location for a release hearing,
8-21 the board shall allow a victim, guardian of a victim, close
8-22 relative of a deceased victim, or a representative of a victim or
8-23 his guardian or close relative to meet with the individual panel
8-24 members at times and locations convenient to the individual panel
8-25 members. This subsection may not be construed to limit the number
8-26 of persons who may provide statements for or against the release of
8-27 the prisoner on parole. The parole panel shall consider the
9-1 statements and the information provided in a victim impact
9-2 statement in determining whether or not to recommend parole.
9-3 However, the failure of the department <pardons and paroles
9-4 division> to comply with notice requirements of this subsection is
9-5 not a ground for revocation of parole.
9-6 SECTION 1.07. Section 18, Article 42.18, Code of Criminal
9-7 Procedure, is amended to read as follows:
9-8 Sec. 18. Confidential Information. (a) All information
9-9 obtained and maintained in connection with inmates confined in <of>
9-10 the institutional division, a state jail felony facility, or a
9-11 county jail who are subject to parole, release to mandatory
9-12 supervision, or executive clemency, or individuals who may be on
9-13 mandatory supervision or parole and under the supervision of the
9-14 pardons and paroles division, or persons directly identified in any
9-15 proposed plan of release for a prisoner is<, including victim
9-16 impact statements, lists of inmates eligible for parole, and
9-17 inmates' arrest records, shall be> confidential and privileged
9-18 information <and shall not be> subject to <public> inspection only
9-19 on request by<; provided, however, that all such information shall
9-20 be available to> the governor, the members of the board, and the
9-21 Criminal Justice Policy Council for the purpose of performing <to
9-22 perform> its duties under Section 413.021, Government Code<, upon
9-23 request>. Information described under this subsection includes
9-24 victim protest letters or other victim correspondence, victim
9-25 impact statements, lists of inmates eligible for parole, and
9-26 inmates' arrest records.
9-27 (b) Statistical <It is further provided that statistical>
10-1 and general information respecting the parole and mandatory
10-2 supervision program and system, including the names of paroled
10-3 prisoners, prisoners released to mandatory supervision, and data
10-4 recorded in connection with parole and mandatory supervision
10-5 services, is <shall be> subject to public inspection at any
10-6 reasonable time.
10-7 (c) A person commits an offense if the person knowingly
10-8 releases to anyone other than the governor, the members of the
10-9 board, or the Criminal Justice Policy Council information that:
10-10 (1) is described under Subsection (a); and
10-11 (2) contains material regarding the victim's identity
10-12 or location.
10-13 (d) An offense under this section is a Class B misdemeanor.
10-14 SECTION 1.08. Article 56.03(e), Code of Criminal Procedure,
10-15 is amended to read as follows:
10-16 (e) After a determination of guilt but before <Prior to> the
10-17 imposition of a sentence by the court in a criminal case, the
10-18 court, if it has received a victim impact statement, shall consider
10-19 the information provided in the statement. Before sentencing the
10-20 defendant, the court shall permit the defendant or his counsel a
10-21 reasonable time to read the statement, excluding the name, address,
10-22 and telephone number of the victim, guardian of the victim, or
10-23 close relative of the deceased victim, comment on the statement,
10-24 and, with the approval of the court, introduce testimony or other
10-25 information alleging a factual inaccuracy in the statement. If the
10-26 court sentences the defendant to a term of community supervision
10-27 <probation>, the court shall forward any victim's impact statement
11-1 received in the case to the community supervision and corrections
11-2 <probation> department supervising the defendant, along with the
11-3 papers in the case.
11-4 SECTION 1.09. This article takes effect September 1, 1995.
11-5 ARTICLE 2
11-6 SECTION 2.01. Subchapter A, Chapter 56, Code of Criminal
11-7 Procedure, is amended by adding Article 56.13 to read as follows:
11-8 Art. 56.13. VICTIM-OFFENDER MEDIATION. The victim services
11-9 office of the Texas Department of Criminal Justice shall:
11-10 (1) train persons to act as mediators between victims,
11-11 guardians of victims, and close relatives of deceased victims and
11-12 offenders whose criminal conduct caused bodily injury or death to
11-13 victims; and
11-14 (2) provide mediation services through referral of a
11-15 trained person, if requested by a victim, guardian of a victim, or
11-16 close relative of a deceased victim.
11-17 SECTION 2.02. Article 42.12, Code of Criminal Procedure, is
11-18 amended by adding Section 30 to read as follows:
11-19 Sec. 30. VICTIM-OFFENDER MEDIATION. If a judge who has
11-20 placed a defendant on community supervision receives notice from
11-21 the victim services office of the Texas Department of Criminal
11-22 Justice that a victim of the defendant, or the victim's guardian or
11-23 close relative, wishes to participate in victim-offender mediation
11-24 with the defendant, the court shall cooperate and assist the
11-25 defendant if the defendant chooses to participate in the mediation
11-26 program provided by the section. The judge may not require the
11-27 defendant to participate and may not reward the defendant for
12-1 participation by modifying conditions of community supervision,
12-2 offering early termination of community supervision, or granting
12-3 any other benefit to the defendant.
12-4 SECTION 2.03. Article 42.18, Code of Criminal Procedure, is
12-5 amended by adding Section 29 to read as follows:
12-6 Sec. 29. VICTIM-OFFENDER MEDIATION. If the pardons and
12-7 paroles division receives notice from the victim services office of
12-8 the Texas Department of Criminal Justice that a victim of the
12-9 defendant, or the victim's guardian or close relative, wishes to
12-10 participate in victim-offender mediation with a person released to
12-11 parole or mandatory supervision, the division shall cooperate and
12-12 assist the person if the person chooses to participate in the
12-13 mediation program provided by the office. The pardons and paroles
12-14 division may not require the defendant to participate and may not
12-15 reward the person for participation by modifying conditions of
12-16 release or the person's level of supervision or by granting any
12-17 other benefit to the person.
12-18 SECTION 2.04. Subchapter A, Chapter 501, Government Code, is
12-19 amended by adding Section 501.018 to read as follows:
12-20 Sec. 501.018. VICTIM-OFFENDER MEDIATION. If a division of
12-21 the department receives notice from the victim services office of
12-22 the department that a victim of an inmate confined in a facility
12-23 operated by the department or under contract with the department,
12-24 or the victim's guardian or close relative, wishes to participate
12-25 in victim-offender mediation with the inmate, the division shall
12-26 cooperate and assist the inmate if the inmate chooses to
12-27 participate in the program provided by the office. The
13-1 institutional division may not require the inmate to participate
13-2 and may not reward the inmate for participation by improving the
13-3 inmate's classification status or privileges or by granting any
13-4 other benefits to the inmate.
13-5 SECTION 2.05. Section 415.031(a), Government Code, is
13-6 amended to read as follows:
13-7 (a) The commission shall establish and maintain training
13-8 programs for officers and county jailers. The commission shall
13-9 consult with the Texas Crime Victim Clearinghouse or any other
13-10 appropriate entity in developing training programs that relate to
13-11 matters involving victims of crime. The training shall be
13-12 conducted by the commission staff or through agencies and
13-13 institutions that the commission considers appropriate. The
13-14 commission may authorize reimbursement for a political subdivision
13-15 or state agency for expenses in attending the training programs as
13-16 authorized by the legislature.
13-17 SECTION 2.06. Section 415.032(b), Government Code, is
13-18 amended to read as follows:
13-19 (b) In establishing requirements under this section, the
13-20 commission shall require courses and programs to provide training
13-21 in:
13-22 (1) crime victims' rights under Chapter 56, Code of
13-23 Criminal Procedure, and the duty of law enforcement agencies to
13-24 ensure that a victim is afforded those rights; and
13-25 (2) the investigation of cases that involve the
13-26 following:
13-27 (A) <(1)> child abuse;
14-1 (B) <(2)> child neglect;
14-2 (C) <(3)> family violence; and
14-3 (D) <(4)> sexual assault.
14-4 SECTION 2.07. Section 415.034(b), Government Code, is
14-5 amended to read as follows:
14-6 (b) The commission shall require a state, county, special
14-7 district, or municipal agency that appoints or employs peace
14-8 officers to provide each peace officer with a training program
14-9 every 24 months. The course must:
14-10 (1) be approved by the commission; and
14-11 (2) include education and training in:
14-12 (A) civil rights, racial sensitivity, and
14-13 cultural diversity; <and>
14-14 (B) crime victims' rights under Chapter 56, Code
14-15 of Criminal Procedure, and the duty of law enforcement agencies to
14-16 ensure that a victim is afforded those rights; and
14-17 (C) the recognition of cases that involve the
14-18 following:
14-19 (i) child abuse;
14-20 (ii) child neglect;
14-21 (iii) family violence; and
14-22 (iv) sexual assault.
14-23 SECTION 2.08. Chapter 493, Government Code, is amended by
14-24 adding Section 493.015 to read as follows:
14-25 Sec. 493.015. INSTRUCTION REGARDING CRIME VICTIMS' ISSUES.
14-26 (a) The department shall provide an annual four-hour training
14-27 program in crime victims' issues through the victim services office
15-1 of the department to community supervision and corrections
15-2 department officers and parole officers and to members of the Board
15-3 of Pardons and Paroles.
15-4 (b) The board shall adopt rules to provide the training
15-5 required by Subsection (a). In adopting the rules, the board shall
15-6 consult with the Texas Crime Victim Clearinghouse or any other
15-7 appropriate entity and may request recommendations for instruction
15-8 content. The instruction must include information about:
15-9 (1) crime victims' rights under Chapter 56, Code of
15-10 Criminal Procedure; and
15-11 (2) the duty of community supervision and corrections
15-12 department officers and parole officers and members of the Board of
15-13 Pardons and Paroles to ensure that a victim is afforded those
15-14 rights.
15-15 SECTION 2.09. (a) The Commission on Law Enforcement Officer
15-16 Standards and Education shall establish the new courses and
15-17 programs required by this Act not later than January 1, 1996.
15-18 (b) For persons who are officers on September 1, 1995, the
15-19 first set of courses required under Section 415.034, Government
15-20 Code, as amended by this Act, must be completed before September 1,
15-21 1997.
15-22 SECTION 2.10. The Texas Board of Criminal Justice shall
15-23 establish the programs required by this Act not later than January
15-24 1, 1996. For persons who are community supervision and corrections
15-25 department officers or parole officers or who are members of the
15-26 Board of Pardons and Paroles on September 1, 1995, participation in
15-27 a program required by Section 493.015, Government Code, as added by
16-1 this Act, must be completed by September 1, 1997.
16-2 SECTION 2.11. This article takes effect September 1, 1995.
16-3 ARTICLE 3
16-4 SECTION 3.01. Article 42.18, Code of Criminal Procedure, is
16-5 amended by adding Section 8B to read as follows:
16-6 Sec. 8B. PAROLEE RESTITUTION FUND. (a) The parolee
16-7 restitution fund is a trust fund in the state treasury and consists
16-8 of restitution payments made by persons released on parole or
16-9 mandatory supervision. Money in the fund may be used only to pay
16-10 restitution as required by a condition of parole or release to
16-11 mandatory supervision to victims of criminal offenses.
16-12 (b) When the Board of Pardons and Paroles orders the payment
16-13 of restitution in the manner prescribed by Article 42.037(h) from a
16-14 person released on parole or mandatory supervision, the pardons and
16-15 paroles division shall:
16-16 (1) collect the payment for disbursement to the
16-17 victim;
16-18 (2) deposit the payment in the parolee restitution
16-19 fund; and
16-20 (3) transmit the payment to the victim as soon as
16-21 practicable.
16-22 (c) If a victim who is entitled to restitution cannot be
16-23 located, immediately after receiving a final payment in
16-24 satisfaction of an order of restitution for the victim the pardons
16-25 and paroles division shall attempt to notify the victim of that
16-26 fact by certified mail, mailed to the last known address of the
16-27 victim. If a victim then makes a claim for payment, the pardons
17-1 and paroles division promptly shall remit the payment to the
17-2 victim. Money that remains unclaimed shall be transferred to the
17-3 victims of crime auxiliary fund in the state treasury on the fifth
17-4 anniversary of the date on which the money was deposited to the
17-5 credit of the parolee restitution fund.
17-6 SECTION 3.02. The pardons and paroles division of the Texas
17-7 Department of Criminal Justice not later than the 30th day after
17-8 the effective date of this article shall deposit any restitution
17-9 money received before the effective date of this article but not
17-10 paid to a victim in the parolee restitution fund in the manner
17-11 provided by Section 8B, Article 42.18, Code of Criminal Procedure,
17-12 as added by this article.
17-13 SECTION 3.03. This article takes effect September 1, 1995.
17-14 ARTICLE 4
17-15 SECTION 4.01. The importance of this legislation and the
17-16 crowded condition of the calendars in both houses create an
17-17 emergency and an imperative public necessity that the
17-18 constitutional rule requiring bills to be read on three several
17-19 days in each house be suspended, and this rule is hereby suspended.