By Place H.B. No. 2727
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the prosecution and punishment of certain criminal
1-3 offenses and to the sentencing of certain defendants convicted of
1-4 criminal offenses.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Sections 12.42(a) and (e), Penal Code, are
1-7 amended to read as follows:
1-8 (a)(1) If it is shown on the trial of a state jail felony
1-9 punishable under Section 12.35(a) for an offense under Subtitle C,
1-10 Title 6, Health and Safety Code, that the defendant has previously
1-11 been convicted of two felonies under Subtitle C, and the second
1-12 previous conviction is for an offense that occurred subsequent to
1-13 the entry of the judgment for the first previous conviction, on
1-14 conviction he shall be punished:
1-15 (A) as provided by Section 12.35(a); or
1-16 (B) for a third-degree felony.
1-17 (2) If it is shown on the trial of a state jail felony
1-18 punishable under Section 12.35(c) or on the trial of a third-degree
1-19 felony that the defendant has been once before convicted of a
1-20 felony, on conviction he shall be punished for a second-degree
1-21 felony.
1-22 (e) A previous conviction for a state jail felony punishable
1-23 under Section 12.35(a) may be used for enhancement purposes only
1-24 under Subsection (a)(1). A previous conviction for a state jail
2-1 felony punishable under Section 12.35(c) may be used for
2-2 enhancement purposes under Subsections (a), (b), (c), and (d) <this
2-3 section only if the defendant was punished for the offense under
2-4 Section 12.35(c)>.
2-5 SECTION 2. Sections 12.43(a) and (b), Penal Code, are
2-6 amended to read as follows:
2-7 (a) If it is shown on the trial of a Class A misdemeanor
2-8 that the defendant has been before convicted of a Class A
2-9 misdemeanor or any degree of felony, on conviction he shall be
2-10 punished by:
2-11 (1) a fine not to exceed $4,000;
2-12 (2) confinement in jail for any term of not more than
2-13 one year or less than 90 days; or
2-14 (3) both such fine and confinement.
2-15 (b) If it is shown on the trial of a Class B misdemeanor
2-16 that the defendant has been before convicted of a Class A or Class
2-17 B misdemeanor or any degree of felony, on conviction he shall be
2-18 punished by:
2-19 (1) a fine not to exceed $2,000;
2-20 (2) confinement in jail for any term of not more than
2-21 180 days or less than 30 days; or
2-22 (3) both such fine and confinement.
2-23 SECTION 3. Section 22.01, Penal Code, is amended by amending
2-24 Subsection (b) and adding Subsection (d) to read as follows:
2-25 (b) An offense under Subsection (a)(1) is a Class A
2-26 misdemeanor, except that the offense is a felony of the third
2-27 degree if the offense is committed:
3-1 (1) by a public servant acting under color of the
3-2 servant's office or employment; or
3-3 (2) against a person the actor knows is a public
3-4 servant while the public servant is lawfully discharging an
3-5 official duty, or in retaliation or on account of an exercise of
3-6 official power or performance of an official duty as a public
3-7 servant.
3-8 (d) For purposes of Subsection (b), the actor is presumed to
3-9 have known the person assaulted was a public servant if the person
3-10 was wearing a distinctive uniform or badge indicating the person's
3-11 employment as a public servant.
3-12 SECTION 4. Chapter 22, Penal Code, is amended by adding
3-13 Section 22.042 to read as follows:
3-14 Sec. 22.042. INJURY TO PREGNANT WOMAN. (a) In this
3-15 section:
3-16 (1) "Miscarriage" means the interruption of the normal
3-17 development of a fetus, other than by a live birth, resulting in
3-18 the complete expulsion or extraction from a pregnant woman of a
3-19 product of human conception.
3-20 (2) "Stillbirth" means the death of a fetus before the
3-21 complete expulsion or extraction from its mother, regardless of the
3-22 duration of the pregnancy, as manifested by the fact that after
3-23 expulsion or extraction the fetus does not breathe spontaneously or
3-24 show any other evidence of life such as heartbeat, pulsation of the
3-25 umbilical cord, or definite movement of voluntary muscles.
3-26 (b) A person commits an offense if the person:
3-27 (1) intentionally or knowingly causes bodily injury to
4-1 another who is a pregnant woman with intent to cause her to suffer
4-2 a miscarriage or stillbirth; or
4-3 (2) intentionally or knowingly causes serious bodily
4-4 injury to another who is a pregnant woman and causes her to suffer
4-5 a miscarriage or stillbirth.
4-6 (c) It is an exception to the application of Subsection (b)
4-7 that the pregnant woman or a person authorized by law to consent
4-8 for the woman consented to the actor's conduct.
4-9 (d) An offense under Subsection (b)(1) is a felony of the
4-10 second degree. An offense under Subsection (b)(2) is a felony of
4-11 the first degree.
4-12 SECTION 5. Section 30.02(d), Penal Code, is amended to read
4-13 as follows:
4-14 (d) An offense under this section is a felony of the first
4-15 degree if:
4-16 (1) the premises are a habitation; and
4-17 (2) any party to the offense entered the habitation
4-18 with intent to commit a felony other than felony theft or committed
4-19 or attempted to commit a felony other than felony theft.
4-20 SECTION 6. Section 31.01, Penal Code, is amended by amending
4-21 Subdivision (6) and adding Subdivisions (10), (11), and (12) to
4-22 read as follows:
4-23 (6) "Service" includes:
4-24 (A) labor and professional service;
4-25 (B) telecommunication, cable television,
4-26 subscription television, public utility, or transportation service;
4-27 (C) lodging, restaurant service, and
5-1 entertainment; and
5-2 (D) the supply of a motor vehicle or other
5-3 property for use.
5-4 (10) "Cable television service" means a service
5-5 provided by or through a facility of a cable television system or a
5-6 closed-circuit coaxial cable communication system or a microwave or
5-7 similar transmission service used in connection with a cable
5-8 television system.
5-9 (11) "Subscription television service" means a service
5-10 whereby television broadcast programs intended to be received in an
5-11 intelligible form by members of the public only for a fee or charge
5-12 are transmitted pursuant to the grant of subscription television
5-13 authority by the Federal Communications Commission. The term does
5-14 not include cable television service or community antenna
5-15 television service.
5-16 (12) "Device" means a device other than a nondecoding
5-17 or nondescrambling channel frequency converter or television
5-18 receiver type-accepted by the Federal Communications Commission.
5-19 SECTION 7. Section 31.03, Penal Code, is amended by amending
5-20 Subsection (e) and adding Subsection (g) to read as follows:
5-21 (e) Except as provided by Subsection (f), an offense under
5-22 this section is:
5-23 (1) a Class C misdemeanor if the value of the property
5-24 stolen is less than $20;
5-25 (2) a Class B misdemeanor if:
5-26 (A) the value of the property stolen is $20 or
5-27 more but less than $500; or
6-1 (B) the value of the property stolen is less
6-2 than $20 and the defendant has previously been convicted of any
6-3 grade of theft;
6-4 (3) a Class A misdemeanor if the value of the property
6-5 stolen is $500 or more but less than $1,500;
6-6 (4) a state jail felony if:
6-7 (A) the value of the property stolen is $1,500
6-8 or more but less than $20,000, or the property is less than 10 <one
6-9 or more> head of cattle, horses, or exotic livestock or exotic fowl
6-10 as defined by Section 142.001, Agriculture Code, <sheep, swine, or
6-11 goats> or any part thereof under the value of $20,000, or less than
6-12 100 head of sheep, swine, or goats or any part thereof under the
6-13 value of $20,000;
6-14 (B) regardless of value, the property is stolen
6-15 from the person of another or from a human corpse or grave;
6-16 (C) the property stolen is a firearm, as defined
6-17 by Section 46.01; or
6-18 (D) the value of the property stolen is less
6-19 than $1,500 and the defendant has been previously convicted two or
6-20 more times of any grade of theft;
6-21 (5) a felony of the third degree if the value of the
6-22 property stolen is $20,000 or more but less than $100,000, or the
6-23 property is:
6-24 (A) 10 or more head of cattle, horses, or exotic
6-25 livestock or exotic fowl as defined by Section 142.001, Agriculture
6-26 Code, stolen during a single transaction and having an aggregate
6-27 value of less than $100,000; or
7-1 (B) 100 or more head of sheep, swine, or goats
7-2 stolen during a single transaction and having an aggregate value of
7-3 less than $100,000;
7-4 (6) a felony of the second degree if the value of the
7-5 property stolen is $100,000 or more but less than $200,000; or
7-6 (7) a felony of the first degree if the value of the
7-7 property stolen is $200,000 or more.
7-8 (g) For the purposes of Subsection (a), a person is the
7-9 owner of exotic livestock or exotic fowl as defined by Section
7-10 142.001, Agriculture Code, only if the person qualifies to claim
7-11 the animal under Section 142.0021, Agriculture Code, if the animal
7-12 is an estray.
7-13 SECTION 8. Section 31.08(c), Penal Code, is amended to read
7-14 as follows:
7-15 (c) Except as otherwise provided by this subsection, if <If>
7-16 property or service has value that cannot be reasonably ascertained
7-17 by the criteria set forth in Subsections (a) and (b), the property
7-18 or service is deemed to have a value of $500 or more but less than
7-19 $1,500. If the service is cable television service or subscription
7-20 television service, the service is deemed to have a value of $20 or
7-21 more but less than $500 unless proof exists of a greater value.
7-22 SECTION 9. Chapter 31, Penal Code, is amended by adding
7-23 Section 31.12 to read as follows:
7-24 Sec. 31.12. MANUFACTURE, SALE, OR DISTRIBUTION OF TELEVISION
7-25 DECODING AND INTERCEPTION DEVICE OR CABLE DESCRAMBLING, DECODING,
7-26 OR INTERCEPTION DEVICE. (a) A person commits an offense if the
7-27 person for remuneration intentionally or knowingly manufactures,
8-1 assembles, modifies, imports into the state, exports out of the
8-2 state, distributes, or sells, with an intent to aid an offense of
8-3 theft of cable television service under Section 31.04, a device, a
8-4 plan for a system of components, or a part for a device that
8-5 intercepts, descrambles, or decodes a cable television service.
8-6 (b) This section does not prohibit the manufacture,
8-7 distribution, sale, or use of satellite receiving antennas that are
8-8 otherwise permitted by state or federal law.
8-9 (c) An offense under this section is a Class A misdemeanor.
8-10 SECTION 10. Sections 38.05(a) and (c), Penal Code, are
8-11 amended to read as follows:
8-12 (a) A person commits an offense if, with intent to hinder
8-13 the arrest, prosecution, conviction, or punishment of another for
8-14 an offense or, with intent to hinder the arrest, detention,
8-15 adjudication, or disposition of a child for engaging in delinquent
8-16 conduct that violates a penal law of the grade of felony, he:
8-17 (1) harbors or conceals the other;
8-18 (2) provides or aids in providing the other with any
8-19 means of avoiding arrest or effecting escape; or
8-20 (3) warns the other of impending discovery or
8-21 apprehension.
8-22 (c) An offense under this section is a Class A misdemeanor,
8-23 except that the offense is a felony of the third degree if the
8-24 person who is harbored, concealed, provided with a means of
8-25 avoiding arrest or effecting escape, or warned of discovery or
8-26 apprehension is under arrest for, charged with, or convicted of a
8-27 felony, or is in custody or detention for, is alleged in a petition
9-1 to have engaged in, or has been adjudicated as having engaged in
9-2 delinquent conduct that violates a penal law of the grade of
9-3 felony, and the person charged under this section knew that the
9-4 person they harbored, concealed, provided with a means of avoiding
9-5 arrest or effecting escape, or warned of discovery or apprehension
9-6 is under arrest for, charged with, or convicted of a felony, or is
9-7 in custody or detention for, is alleged in a petition to have
9-8 engaged in, or has been adjudicated as having engaged in delinquent
9-9 conduct that violates a penal law of the grade of felony.
9-10 SECTION 11. Section 38.113, Penal Code, is amended to read
9-11 as follows:
9-12 Sec. 38.113. Unauthorized Absence From Community Corrections
9-13 Facility, County Correctional Center, or Assignment Site. (a) A
9-14 person commits an offense if the person:
9-15 (1) is sentenced to or is required as a condition of
9-16 community supervision or correctional programming <probation> to
9-17 submit to a period of detention or treatment in a community
9-18 corrections facility or county correctional center;
9-19 (2) <and the person> fails to report to or leaves the
9-20 facility, the center, or a community service or programmatic
9-21 assignment site as directed by the court, community supervision and
9-22 corrections department supervising the person, or director of the
9-23 facility or center in which the person is detained or treated, as
9-24 appropriate; and
9-25 (3) in failing to report or leaving acts without the
9-26 approval of the court, the community supervision and corrections
9-27 department supervising the person, or the director of the facility
10-1 or center in which the person is detained or treated.
10-2 (b) An offense under this section is a state jail felony.
10-3 SECTION 12. Chapter 38, Penal Code, is amended by adding
10-4 Section 38.16 to read as follows:
10-5 Sec. 38.16. PREVENTING EXECUTION OF CIVIL PROCESS. (a) A
10-6 person commits an offense if he intentionally or knowingly by words
10-7 or physical action prevents the execution of any process in a civil
10-8 cause.
10-9 (b) It is an exception to the application of this section
10-10 that the actor evaded service of process by avoiding detection.
10-11 (c) An offense under this section is a Class C misdemeanor.
10-12 SECTION 13. Section 46.02(b), Penal Code, is amended to read
10-13 as follows:
10-14 (b) It is a defense to prosecution under this section that
10-15 the actor was, at the time of the commission of the offense:
10-16 (1) in the actual discharge of his official duties as
10-17 a member of the armed forces or state military forces as defined by
10-18 Section 431.001, Government Code, or as a guard employed by a penal
10-19 institution;
10-20 (2) on his own premises or premises under his control
10-21 unless he is an employee or agent of the owner of the premises and
10-22 his primary responsibility is to act in the capacity of a security
10-23 guard to protect persons or property, in which event he must comply
10-24 with Subdivision (5);
10-25 (3) traveling;
10-26 (4) engaging in lawful hunting, fishing, or other
10-27 sporting activity on the immediate premises where the activity is
11-1 conducted, or was directly en route between the premises and the
11-2 actor's residence, if the weapon is a type commonly used in the
11-3 activity; or
11-4 (5) a person who holds a security officer commission
11-5 issued by the Texas Board of Private Investigators and Private
11-6 Security Agencies, if:
11-7 (A) he is engaged in the performance of his
11-8 duties as a security officer or traveling to and from his place of
11-9 assignment;
11-10 (B) he is wearing a distinctive uniform; and
11-11 (C) the weapon is in plain view<; or>
11-12 <(6) a peace officer, other than a person commissioned
11-13 by the Texas State Board of Pharmacy>.
11-14 SECTION 14. Section 46.03(d), Penal Code, is amended to read
11-15 as follows:
11-16 (d) It is a defense to prosecution under Subsection (a)(5)
11-17 that the actor possessed a firearm or club while traveling to or
11-18 from the actor's place of assignment or in the actual discharge of
11-19 duties as:
11-20 (1) <a peace officer;>
11-21 <(2)> a member of the armed forces or national guard;
11-22 (2) <(3)> a guard employed by a penal institution; or
11-23 (3) <(4)> a security officer commissioned by the Texas
11-24 Board of Private Investigators and Private Security Agencies if:
11-25 (A) the actor is wearing a distinctive uniform;
11-26 and
11-27 (B) the firearm or club is in plain view.
12-1 SECTION 15. Chapter 46, Penal Code, is amended by adding
12-2 Section 46.11 to read as follows:
12-3 Sec. 46.11. NONAPPLICABILITY TO PEACE OFFICERS. Sections
12-4 46.02 and 46.03 do not apply to peace officers and neither section
12-5 prohibits a peace officer from carrying a weapon in this state,
12-6 regardless of whether the officer is engaged in the actual
12-7 discharge of the officer's duties while carrying the weapon.
12-8 SECTION 16. Section 47.01(4), Penal Code, is amended to read
12-9 as follows:
12-10 (4) "Gambling device" means any electronic,
12-11 electromechanical, or mechanical contrivance not excluded under
12-12 Paragraph (B) that for a consideration affords the player an
12-13 opportunity to obtain anything of value, the award of which is
12-14 determined solely or partially by chance, even though accompanied
12-15 by some skill, whether or not the prize is automatically paid by
12-16 the contrivance. The term:
12-17 (A) includes, but is not limited to, gambling
12-18 device versions of bingo, keno, blackjack, lottery, roulette, video
12-19 poker, or similar electronic, electromechanical, or mechanical
12-20 games, or facsimiles thereof, that operate by chance or partially
12-21 so, that as a result of the play or operation of the game award
12-22 credits or free games, and that record the number of free games or
12-23 credits so awarded and the cancellation or removal of the free
12-24 games or credits; and
12-25 (B) does not include any electronic,
12-26 electromechanical, or mechanical contrivance designed, made, and
12-27 adapted solely for bona fide amusement purposes if the contrivance
13-1 rewards the player exclusively with noncash merchandise prizes,
13-2 toys, or novelties, or a representation of value redeemable for
13-3 those items, that have a wholesale value available from a single
13-4 play of the game or device of not more than 10 times the amount
13-5 charged to play the game or device once or $5, whichever is less.
13-6 SECTION 17. Section 47.02, Penal Code, is amended by adding
13-7 Subsection (e) to read as follows:
13-8 (e) It is a defense to prosecution under this section that a
13-9 person played for something of value other than money using an
13-10 electronic, electromechanical, or mechanical contrivance excluded
13-11 from the definition of "gambling device" under Section 47.01(4)(B).
13-12 SECTION 18. Chapter 47, Penal Code, is amended by adding
13-13 Section 47.11 to read as follows:
13-14 Sec. 47.11. CALCUTTA GAME. (a) In this section:
13-15 (1) "Calcutta game" means a game or activity in which:
13-16 (A) a player selects a competitor and makes a
13-17 wager into a pool; and
13-18 (B) the pool is distributed based on the result
13-19 of the competition to:
13-20 (i) the sponsor, the players who selected
13-21 winning competitors, and the winning competitors; or
13-22 (ii) the sponsor and the players who
13-23 selected winning competitors.
13-24 (2) "Competition" means a golf sporting contest in
13-25 which there are one or more winners.
13-26 (3) "Competitor" means an individual who takes part in
13-27 a competition.
14-1 (4) "Player" means a person who makes a wager.
14-2 (5) "Pool" means the total amount of wagers received
14-3 by a sponsor.
14-4 (6) "Sponsor" means a person who conducts a calcutta
14-5 game.
14-6 (7) "Wager" means a payment of or promise of a payment
14-7 of money that entitles a player to participate in a calcutta game.
14-8 (b) It is a defense to prosecution under this chapter that
14-9 the conduct consisted entirely of sponsorship of or participation
14-10 in a calcutta game.
14-11 SECTION 19. Section 49.03, Penal Code, is amended to read as
14-12 follows:
14-13 Sec. 49.03. Consumption or Possession of Alcoholic Beverage
14-14 in Motor Vehicle. (a) A person commits an offense if the person
14-15 consumes an alcoholic beverage while operating a motor vehicle in a
14-16 public place and is observed doing so by a peace officer.
14-17 (b) A person commits an offense if the person operates or
14-18 travels in a motor vehicle in a public place and the motor vehicle
14-19 has, present in the passenger portion of the vehicle, a bottle,
14-20 can, or other receptacle that contains an alcoholic beverage and
14-21 that has been opened, has a seal broken, or has the contents
14-22 partially removed.
14-23 (c) Subsection (b) does not apply if the alcoholic beverage
14-24 is in the possession:
14-25 (1) of a passenger in the living quarters of a house
14-26 trailer; or
14-27 (2) of a passenger, other than the owner, who has
15-1 hired the vehicle and the vehicle is owned or operated by a person
15-2 engaged in the business of transporting passengers for
15-3 compensation.
15-4 (d) Subsection (b) does not apply if the alcoholic beverage
15-5 is in the possession of a doctor or patient carrying alcoholic
15-6 beverages for therapeutic purposes. The department may require
15-7 acceptable medical proof for a person carrying a container of
15-8 alcohol for therapeutic purposes.
15-9 (e) Subsection (b) does not apply if the alcoholic beverage
15-10 is in the possession of a minister, priest, rabbi, accredited
15-11 Christian Science practitioner, or other similar functionary of a
15-12 religious organization who is carrying it for religious purposes.
15-13 (f) An offense under this section is a Class C misdemeanor.
15-14 SECTION 20. Section 49.08, Penal Code, is amended to read as
15-15 follows:
15-16 Sec. 49.08. Intoxication Manslaughter. (a) A person
15-17 commits an offense if the person:
15-18 (1) operates a motor vehicle in a public place, an
15-19 aircraft, or a watercraft; and
15-20 (2) is intoxicated and by reason of that intoxication
15-21 causes the death of one or more other persons <another> by accident
15-22 or mistake.
15-23 (b) An offense under this section is:
15-24 (1) a felony of the second degree if the actor causes
15-25 the death of one other person; or
15-26 (2) a felony of the first degree if the actor causes
15-27 the death of more than one other person.
16-1 SECTION 21. Section 49.09, Penal Code, is amended by adding
16-2 Subsection (f) to read as follows:
16-3 (f) If it is shown on the trial of an offense otherwise
16-4 punishable under Subsection (a) that at the time of the offense the
16-5 person driving or operating the motor vehicle, aircraft, or
16-6 watercraft had an open container of an alcoholic beverage in the
16-7 person's immediate possession, the minimum term of confinement
16-8 otherwise imposed under Subsection (a) is increased by six days,
16-9 and the _minimum and maximum fines otherwise imposed under
16-10 Subsection (a) are increased by $200. If it is shown on the trial
16-11 of an offense otherwise punishable under Subsection (b) that at the
16-12 time of the offense the person driving or operating the motor
16-13 vehicle, aircraft, or watercraft had an open container of an
16-14 alcoholic beverage in the person's immediate possession, the
16-15 minimum term of confinement otherwise imposed under Subsection (b)
16-16 is increased by 12 days, and the minimum and maximum fines
16-17 otherwise imposed under Subsection (b) are increased by $400.
16-18 SECTION 22. Chapter 49, Penal Code, is amended by adding
16-19 Section 49.11 to read as follows:
16-20 Sec. 49.11. PROOF OF MENTAL STATE UNNECESSARY.
16-21 Notwithstanding Section 6.02(b), proof of a culpable mental state
16-22 is not required for conviction of an offense under this chapter.
16-23 SECTION 23. Section 481.126(a), Health and Safety Code, is
16-24 amended to read as follows:
16-25 (a) A person commits an offense if the person knowingly or
16-26 intentionally:
16-27 (1) expends funds the person knows are derived from
17-1 the commission of an offense<:>
17-2 <(A) under Section 481.115(a) or 481.116(a); or>
17-3 <(B)> punishable under Section 481.112(e) or
17-4 (f) <(d)>, <481.112(e),> 481.113(e) <(d)>, 481.114(e) <(c)>,
17-5 481.115(f), 481.116(e), 481.117(e) <(c)>, 481.118(e) <(c)>,
17-6 <481.120(b)(5),> 481.120(b)(6), <481.121(b)(5),> or 481.121(b)(6);
17-7 or
17-8 (2) finances or invests funds the person knows or
17-9 believes are intended to further the commission of an offense
17-10 <listed in Subdivision (1) or an offense> for which the punishment
17-11 is listed under Subdivision (1).
17-12 SECTION 24. Section 481.134(b), Health and Safety Code, is
17-13 amended to read as follows:
17-14 (b) An offense otherwise punishable as a felony of the
17-15 second degree <The minimum term of confinement or imprisonment for
17-16 an offense and the maximum fine for an offense> under Section
17-17 481.112, 481.113, 481.114, <481.119,> or 481.120 is punishable as a
17-18 felony of the first degree, and an offense otherwise punishable as
17-19 a state jail felony under any of those sections is punishable at
17-20 the discretion of the court as a state jail felony or a felony of
17-21 the third degree, <are doubled> if it is shown at the punishment
17-22 phase of <on> the trial of the offense that the offense was
17-23 committed:
17-24 (1) in, on, or within 1,000 feet of premises owned,
17-25 rented, or leased by a school or an institution of higher learning
17-26 or a playground; or
17-27 (2) in, on, or within 300 feet of the premises of a
18-1 public or private youth center, public swimming pool, or video
18-2 arcade facility.
18-3 SECTION 25. Section 483.041(d), Health and Safety Code, is
18-4 amended to read as follows:
18-5 (d) An offense under this section is a Class A misdemeanor
18-6 <felony of the third degree>.
18-7 SECTION 26. Chapter 38, Code of Criminal Procedure, is
18-8 amended by adding Article 38.37 to read as follows:
18-9 Art. 38.37. CONSULTATION WITH LAWYER. The act of contacting
18-10 or retaining an attorney may not be used against an individual or
18-11 entity in a proceeding unless that act falls within an established
18-12 crime-fraud exception.
18-13 SECTION 27. Section 3g(a), Article 42.12, Code of Criminal
18-14 Procedure, is amended to read as follows:
18-15 (a) The provisions of Section 3 of this article do not
18-16 apply:
18-17 (1) to a defendant adjudged guilty of an offense
18-18 defined by the following sections of the Penal Code:
18-19 (A) Section 19.02 (Murder);
18-20 (B) Section 19.03 (Capital murder);
18-21 (C) Section 21.11(a)(1) (Indecency with a
18-22 child);
18-23 (D) Section 20.04 (Aggravated kidnapping);
18-24 (E) Section 22.021 (Aggravated sexual assault);
18-25 (F) Section 29.03 (Aggravated robbery);
18-26 (G) Section 22.011(a)(2) (Sexual assault); or
18-27 (2) to a defendant when it is shown that a deadly
19-1 weapon as defined in Section 1.07, Penal Code, was used or
19-2 exhibited during the commission of a felony offense or during
19-3 immediate flight therefrom, and that the defendant used or
19-4 exhibited the deadly weapon or was a party to the offense and knew
19-5 that a deadly weapon would be used or exhibited. On an affirmative
19-6 finding under this subdivision, the trial court shall enter the
19-7 finding in the judgment of the court. On an affirmative finding
19-8 that the deadly weapon was a firearm, the court shall enter that
19-9 finding in its judgment.
19-10 SECTION 28. Section 5(a), Article 42.12, Code of Criminal
19-11 Procedure, is amended to read as follows:
19-12 (a) Except as provided by Subsection (d) of this section,
19-13 when in the judge's opinion the best interest of society and the
19-14 defendant will be served, the judge may, after receiving a plea of
19-15 guilty or plea of nolo contendere, hearing the evidence, and
19-16 finding that it substantiates the defendant's guilt, defer further
19-17 proceedings without entering an adjudication of guilt, and place
19-18 the defendant on community supervision. After placing the
19-19 defendant on community supervision under this section, the <The>
19-20 judge shall inform the defendant orally or in writing of the
19-21 possible consequences under Subsection (b) of this section of a
19-22 violation of community supervision. If the information is provided
19-23 orally, the judge must record and maintain the judge's statement to
19-24 the defendant. The failure of a judge to inform a defendant of
19-25 possible consequences under Subsection (b) is not a ground for
19-26 reversal unless the defendant shows that he was misled or harmed by
19-27 the failure of the judge to provide the information. In a felony
20-1 case, the period of community supervision may not exceed 10 years.
20-2 In a misdemeanor case, the period of community supervision may not
20-3 exceed two years. A judge may increase the maximum period of
20-4 community supervision in the manner provided by Section 22(c) of
20-5 this article. The judge may impose a fine applicable to the
20-6 offense and require any reasonable conditions of community
20-7 supervision, including mental health treatment under Section 11(d)
20-8 of this article, that a judge could impose on a defendant placed on
20-9 community supervision for a conviction that was probated and
20-10 suspended, including confinement. However, upon written motion of
20-11 the defendant requesting final adjudication filed within 30 days
20-12 after entering such plea and the deferment of adjudication, the
20-13 judge shall proceed to final adjudication as in all other cases.
20-14 SECTION 29. Section 11(a), Article 42.12, Code of Criminal
20-15 Procedure, as amended by Section 2, Chapter 806, and Section 4.01,
20-16 Chapter 900, Acts of the 73rd Legislature, Regular Session, 1993,
20-17 is amended to read as follows:
20-18 (a) The judge of the court having jurisdiction of the case
20-19 shall determine the conditions of community supervision and may, at
20-20 any time, during the period of community supervision alter or
20-21 modify the conditions <as provided by Sections 10 and 22 of this
20-22 article>. The judge may impose any reasonable condition that is
20-23 designed to protect or restore the community, protect or restore
20-24 the victim, or punish, rehabilitate, or reform the defendant.
20-25 Conditions of community supervision may include, but shall not be
20-26 limited to, the conditions that the defendant shall:
20-27 (1) Commit no offense against the laws of this State
21-1 or of any other State or of the United States;
21-2 (2) Avoid injurious or vicious habits;
21-3 (3) Avoid persons or places of disreputable or harmful
21-4 character;
21-5 (4) Report to the supervision officer as directed by
21-6 the judge or supervision officer and obey all rules and regulations
21-7 of the community supervision and corrections department;
21-8 (5) Permit the supervision officer to visit him at his
21-9 home or elsewhere;
21-10 (6) Work faithfully at suitable employment as far as
21-11 possible;
21-12 (7) Remain within a specified place;
21-13 (8) Pay his fine, if one be assessed, and all court
21-14 costs whether a fine be assessed or not, in one or several sums;
21-15 (9) Support his dependents;
21-16 (10) Participate, for a time specified by the judge in
21-17 any community-based program, including a community-service work
21-18 program under Section 16 of this article;
21-19 (11) Reimburse the county in which the prosecution was
21-20 instituted for compensation paid to appointed counsel for defending
21-21 him in the case, if counsel was appointed, or if he was represented
21-22 by a county-paid public defender, in an amount that would have been
21-23 paid to an appointed attorney had the county not had a public
21-24 defender;
21-25 (12) Remain under custodial supervision in a community
21-26 corrections facility, obey all rules and regulations of such
21-27 facility, and pay a percentage of his income to the facility for
22-1 room and board;
22-2 (13) Pay a percentage of his income to his dependents
22-3 for their support while under custodial supervision in a community
22-4 corrections facility;
22-5 (14) Submit to testing for alcohol or controlled
22-6 substances;
22-7 (15) Attend counseling sessions for substance abusers
22-8 or participate in substance abuse treatment services in a program
22-9 or facility approved or licensed by the Texas Commission on Alcohol
22-10 and Drug Abuse;
22-11 (16) Register under Article 6252-13c.1, Revised
22-12 Statutes;
22-13 (17) With the consent of the victim of a misdemeanor
22-14 offense or of any offense under Title 7, Penal Code, participate
22-15 in victim-defendant mediation;
22-16 (18) <(19)> Submit to electronic monitoring;
22-17 (19) <(20)> Reimburse the crime victims compensation
22-18 fund created under the Crime Victims Compensation Act (Subchapter
22-19 B, Chapter 56, of this code) <(Article 8309-1, Vernon's Texas Civil
22-20 Statutes)> for any amounts paid from that fund to a victim, as
22-21 defined by Article 56.01 of this code, of the defendant's offense
22-22 or if no reimbursement is required, make one payment to the fund in
22-23 an amount not to exceed $50 if the offense is a misdemeanor or not
22-24 to exceed $100 if the offense is a felony;
22-25 (20) <(21)> Reimburse a law enforcement agency for the
22-26 analysis, storage, or disposal of raw materials, controlled
22-27 substances, chemical precursors, drug paraphernalia, or other
23-1 materials seized in connection with the offense;
23-2 (21) <(22)> Pay all or part of the reasonable and
23-3 necessary costs incurred by the victim for psychological counseling
23-4 made necessary by the offense or for counseling and education
23-5 relating to acquired immune deficiency syndrome or human
23-6 immunodeficiency virus made necessary by the offense; and
23-7 (22) <(23)> Make one payment in an amount not to
23-8 exceed $50 to a local crime stoppers program as defined by Section
23-9 414.001, Government Code, and as certified by the Crime Stoppers
23-10 Advisory Council.
23-11 SECTION 30. Section 13(a), Article 42.12, Code of Criminal
23-12 Procedure, as amended by Chapters 886 and 900, Acts of the 73rd
23-13 Legislature, Regular Session, 1993, is amended to read as follows:
23-14 (a) A judge granting community supervision to a defendant
23-15 convicted of an offense under Chapter 49, Penal Code, shall require
23-16 as a condition of community supervision that the defendant submit
23-17 to:
23-18 <(1) 72 hours of detention in a jail if the defendant
23-19 was convicted under Subsection (d) of Article 6701l-1, Revised
23-20 Statutes, of which not less than 48 hours must be served
23-21 consecutively, except that in lieu of the requirement of 48
23-22 consecutive hours of detention, the court may require not less than
23-23 80 hours of community service; 10 days of detention in a jail if
23-24 the defendant was convicted under Subsection (e) of Article
23-25 6701l-1, Revised Statutes, of which not less than 48 hours must be
23-26 served consecutively, except that in lieu of the requirement of 48
23-27 consecutive hours of detention, the court may require not less than
24-1 160 hours of community service; or 30 days of detention in a jail
24-2 if the defendant was convicted under Subsection (f) of Article
24-3 6701l-1, Revised Statutes, of which not less than 48 hours must be
24-4 served consecutively, except that in lieu of the requirement of 48
24-5 consecutive hours of detention, the court may require not less than
24-6 360 hours of community service; and>
24-7 (1) not less than 72 hours of continuous confinement
24-8 if the defendant was punished under Section 49.09(a); not less than
24-9 10 days of continuous confinement if the defendant was punished
24-10 under Section 49.09(b) or (c); or not less than 30 days of
24-11 continuous confinement if the defendant was convicted under Section
24-12 49.07; and
24-13 (2) an evaluation by a supervision officer or by a
24-14 person, program, or facility approved by the Texas Commission on
24-15 Alcohol and Drug Abuse for the purpose of having the facility
24-16 prescribe and carry out a course of conduct necessary for the
24-17 rehabilitation of the defendant's drug or alcohol dependence
24-18 condition.
24-19 SECTION 31. Section 15, Article 42.12, Code of Criminal
24-20 Procedure, is amended by amending Subsections (b), (d), and (f) and
24-21 adding Subsection (i) to read as follows:
24-22 (b) The minimum period of community supervision a judge may
24-23 impose under this section is two years. The maximum period of
24-24 community supervision a judge may impose under this section is five
24-25 years, unless the defendant has been previously convicted of two or
24-26 more felonies, in which event the maximum period is 10 years. A
24-27 judge may extend a period of community supervision under this
25-1 section at any time during the period of community supervision, or
25-2 if a motion for revocation of community supervision is filed before
25-3 the period of community supervision ends, before the first
25-4 anniversary of the expiration of the period of community
25-5 supervision.
25-6 (d) A judge may impose as a condition of community
25-7 supervision that a defendant submit at the beginning of the period
25-8 of community supervision to a term of confinement in a state jail
25-9 felony facility for a term not to exceed 60 days, or <180 days if
25-10 the defendant previously has been convicted of a felony, or> one
25-11 year if the defendant is convicted of an offense punishable as a
25-12 state jail felony under Section 481.112, Health and Safety Code, or
25-13 <the defendant> previously has been convicted of a felony <two or
25-14 more felonies>. A judge may not require a defendant to submit to
25-15 both the term of confinement authorized by this subsection and a
25-16 term of confinement under Section 12 of this article. For the
25-17 purposes of this subsection, a defendant previously has been
25-18 convicted of a felony regardless of whether the sentence for the
25-19 previous conviction was actually imposed or was probated and
25-20 suspended.
25-21 (f)(1) If a defendant violates a condition of community
25-22 supervision imposed on the defendant under this article and after a
25-23 hearing under Section 21 of this article the judge revokes the
25-24 defendant's community supervision, the judge shall dispose of the
25-25 case in the manner provided by Section 23 of this article.
25-26 (2) The court retains jurisdiction over the defendant
25-27 until the first anniversary of the date the defendant is received
26-1 into the custody of a state jail. At any time after the 75th day
26-2 after the date the defendant is received into the custody of a
26-3 state jail and before the first anniversary of the date the
26-4 defendant is received into the custody of a state jail, the judge
26-5 on the judge's own motion, on the motion of the attorney
26-6 representing the state, or on the motion of the defendant may
26-7 suspend further execution of the sentence and place the defendant
26-8 on community supervision under the conditions of this section.
26-9 (3) When the defendant or the attorney representing
26-10 the state files a written motion requesting suspension by the judge
26-11 of further execution of the sentence and placement of the defendant
26-12 on community supervision, the clerk of the court, if requested to
26-13 do so by the judge, shall request a copy of the defendant's record
26-14 while confined from the facility director of the state jail felony
26-15 facility in which the defendant is confined or, if the defendant is
26-16 confined in county jail, from the sheriff. On receipt of the
26-17 request, the facility director or the sheriff shall forward to the
26-18 judge, as soon as possible, a full and complete copy of the
26-19 defendant's record while confined. When the defendant files a
26-20 written motion requesting suspension of further execution of the
26-21 sentence and placement on community supervision, he shall
26-22 immediately deliver or cause to be delivered a true and correct
26-23 copy of the motion to the office of the attorney representing the
26-24 state. The judge may deny the motion without a hearing but may not
26-25 grant the motion without holding a hearing and providing the
26-26 attorney representing the state and the defendant the opportunity
26-27 to present evidence on the motion.
27-1 (i) Subsections (c)-(h) apply only to a defendant placed on
27-2 community supervision after being sentenced to confinement in a
27-3 state jail.
27-4 SECTION 32. Section 18(h), Article 42.12, Code of Criminal
27-5 Procedure, is amended to read as follows:
27-6 (h) A judge that requires as a condition of community
27-7 supervision under Section 15 that the defendant serve a term in a
27-8 state jail felony <community corrections> facility may not impose a
27-9 subsequent term in a community corrections facility or jail during
27-10 the same supervision period that, when added to the terms
27-11 previously imposed, exceeds 24 months.
27-12 SECTION 33. Section 20(a), Article 42.12, Code of Criminal
27-13 Procedure, is amended to read as follows:
27-14 (a) At any time, after a <the> defendant other than a
27-15 defendant convicted of a state jail felony has satisfactorily
27-16 completed one-third of the original community supervision period or
27-17 two years of community supervision, whichever is less, the period
27-18 of community supervision may be reduced or terminated by the judge.
27-19 Upon the satisfactory fulfillment of the conditions of community
27-20 supervision, and the expiration of the period of community
27-21 supervision, the judge, by order duly entered, shall amend or
27-22 modify the original sentence imposed, if necessary, to conform to
27-23 the community supervision period and shall discharge the defendant.
27-24 If the judge discharges a <the> defendant under this section, other
27-25 than a defendant convicted of an offense under Sections
27-26 49.04-49.08, Penal Code, the judge may set aside the verdict or
27-27 permit the defendant to withdraw his plea, and shall dismiss the
28-1 accusation, complaint, information or indictment against the
28-2 defendant, who shall thereafter be released from all penalties and
28-3 disabilities resulting from the offense or crime of which he has
28-4 been convicted or to which he has pleaded guilty, except that:
28-5 (1) proof of the conviction or plea of guilty shall be
28-6 made known to the judge should the defendant again be convicted of
28-7 any criminal offense; and
28-8 (2) if the defendant is an applicant for a license or
28-9 is a licensee under Chapter 42, Human Resources Code, the Texas
28-10 Department of Human Services may consider the fact that the
28-11 defendant previously has received community supervision under this
28-12 article in issuing, renewing, denying, or revoking a license under
28-13 that chapter.
28-14 SECTION 34. Section 20, Article 42.12, Code of Criminal
28-15 Procedure, is amended by adding Subsection (c) to read as follows:
28-16 (c) Notwithstanding Subsection (a), a defendant convicted of
28-17 an offense for which punishment is imposed under Section 49.09(a),
28-18 Penal Code, must satisfactorily complete two-thirds of the original
28-19 community supervision period before the judge may reduce or
28-20 terminate the period of community supervision, and a defendant
28-21 convicted of a felony under Chapter 49, Penal Code, is not eligible
28-22 for reduction or termination of community supervision.
28-23 SECTION 35. Section 20(b), Article 42.12, Code of Criminal
28-24 Procedure, is repealed.
28-25 SECTION 36. Subsections (d) and (e), Article 6701l-1,
28-26 Revised Statutes, as amended by Chapter 886, Acts of the 73rd
28-27 Legislature, Regular Session, 1993, are repealed.
29-1 SECTION 37. Notwithstanding Section 6.04, Chapter 900, Acts
29-2 of the 73rd Legislature, Regular Session, 1993, the Board of
29-3 Pardons and Paroles may grant parole to any person convicted of a
29-4 capital felony only on a two-thirds vote of the entire membership
29-5 of the board, as required by Section 7(g), Article 42.18, Code of
29-6 Criminal Procedure, regardless of whether the person was sentenced
29-7 for an offense committed before, on, or after September 1, 1993.
29-8 SECTION 38. (a) Except as provided by Section 39 of this
29-9 Act, the changes in law made by this Act apply only to an offense
29-10 committed on or after the effective date of this Act. For the
29-11 purposes of this section, an offense is committed before the
29-12 effective date of this Act if any element of the offense occurs
29-13 before the effective date.
29-14 (b) For the purposes of this section, an offense committed
29-15 before the effective date of this Act is covered by the law in
29-16 effect when the offense was committed, and the former law is
29-17 continued in effect for that purpose.
29-18 SECTION 39. Section 37 of this Act, according to its terms,
29-19 applies to offenses committed before, on, or after September 1,
29-20 1993.
29-21 SECTION 40. This Act takes effect September 1, 1995.
29-22 SECTION 41. The importance of this legislation and the
29-23 crowded condition of the calendars in both houses create an
29-24 emergency and an imperative public necessity that the
29-25 constitutional rule requiring bills to be read on three several
29-26 days in each house be suspended, and this rule is hereby suspended.