By Brimer H.B. No. 2079
74R5429 GWK-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the eligibility of a defendant placed on community
1-3 supervision, including deferred adjudication community supervision,
1-4 to appeal a conviction.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Article 42.02, Code of Criminal Procedure, is
1-7 amended to read as follows:
1-8 Art. 42.02. SENTENCE. The sentence is that part of the
1-9 judgment<,> or order revoking a suspension of the imposition of a
1-10 sentence<,> that orders that the punishment specified in the
1-11 judgment or a punishment selected by the judge from a permissible
1-12 range of punishments be carried into execution in the manner
1-13 prescribed by law.
1-14 SECTION 2. Sections 5(a) and (b), Article 42.12, Code of
1-15 Criminal Procedure, is amended to read as follows:
1-16 (a) Except as provided by Subsection (d) of this section,
1-17 when in the judge's opinion the best interest of society and the
1-18 defendant will be served, the judge may, after receiving a plea of
1-19 guilty or plea of nolo contendere, hearing the evidence, and
1-20 finding that it substantiates the defendant's guilt, defer further
1-21 proceedings without entering an adjudication of guilt, and place
1-22 the defendant on community supervision. The judge shall inform the
1-23 defendant orally or in writing that by accepting deferred
1-24 adjudication the defendant waives the right to appeal from a
2-1 judgment of guilt in the case and also inform the defendant orally
2-2 or in writing of the possible consequences under Subsection (b) of
2-3 this section of a violation of community supervision. If the
2-4 information is provided orally, the judge must record and maintain
2-5 the judge's statement to the defendant. In a felony case, the
2-6 period of community supervision may not exceed 10 years. In a
2-7 misdemeanor case, the period of community supervision may not
2-8 exceed two years. A judge may increase the maximum period of
2-9 community supervision in the manner provided by Section 22(c) of
2-10 this article. The judge may impose a fine applicable to the
2-11 offense and require any reasonable conditions of community
2-12 supervision, including mental health treatment under Section 11(d)
2-13 of this article, that a judge could impose on a defendant placed on
2-14 community supervision for a conviction that was probated and
2-15 suspended, including confinement. However, upon written motion of
2-16 the defendant requesting final adjudication filed within 30 days
2-17 after entering such plea and the deferment of adjudication, the
2-18 judge shall proceed to final adjudication as in all other cases.
2-19 (b) On violation of a condition of community supervision
2-20 imposed under Subsection (a) of this section, the defendant may be
2-21 arrested and detained as provided in Section 21 of this article.
2-22 The defendant is entitled to a hearing limited to the determination
2-23 by the court of whether it proceeds with an adjudication of guilt
2-24 on the original charge. No appeal may be taken from this
2-25 determination. After an adjudication of guilt, all proceedings
2-26 other than direct appeal, including assessment of punishment,
2-27 pronouncement of sentence, and granting of community supervision,
3-1 <and defendant's appeal> continue as if the adjudication of guilt
3-2 had not been deferred. A defendant who requests and receives
3-3 deferred adjudication under this section waives the right to appeal
3-4 a judgment of guilty in the case, but does not waive the right to
3-5 seek collateral relief in the same manner as a defendant on whom
3-6 sentence is imposed.
3-7 SECTION 3. Section 23(b), Article 42.12, Code of Criminal
3-8 Procedure, is amended to read as follows:
3-9 (b) No part of the time that the defendant is on community
3-10 supervision shall be considered as any part of the time that he
3-11 shall be sentenced to serve. <The right of the defendant to appeal
3-12 for a review of the conviction and punishment, as provided by law,
3-13 shall be accorded the defendant at the time he is placed on
3-14 community supervision.> When he is notified that his community
3-15 supervision is revoked for violation of the conditions of community
3-16 supervision and he is called on to serve a sentence in a jail or in
3-17 the institutional division of the Texas Department of Criminal
3-18 Justice, he may appeal the revocation.
3-19 SECTION 4. Article 44.01(j), Code of Criminal Procedure, is
3-20 amended to read as follows:
3-21 (j) Nothing in this article is to interfere with the
3-22 defendant's right to appeal under the procedures of Article 44.02
3-23 of this code. Except as provided by Section 5(b), Article 42.12, a
3-24 <The> defendant's right to appeal under Article 44.02 may be
3-25 prosecuted by the defendant where the punishment <assessed> is <in
3-26 accordance with Subsection (a), Section 3d, Article 42.12 of this
3-27 code, as well as any other punishment> assessed in compliance with
4-1 Article 44.02 of this code.
4-2 SECTION 5. (a) The change in law made by this Act applies
4-3 only to a defendant charged with an offense committed on or after
4-4 the effective date of this Act. For purposes of this section, an
4-5 offense is committed before the effective date of this Act if any
4-6 element of the offense occurs before the effective date.
4-7 (b) A defendant charged with an offense committed before the
4-8 effective date of this Act is covered by the law in effect when the
4-9 offense was committed, and the former law is continued in effect
4-10 for that purpose.
4-11 SECTION 6. This Act takes effect September 1, 1995.
4-12 SECTION 7. The importance of this legislation and the
4-13 crowded condition of the calendars in both houses create an
4-14 emergency and an imperative public necessity that the
4-15 constitutional rule requiring bills to be read on three several
4-16 days in each house be suspended, and this rule is hereby suspended.