74R9206 GWK-D
By Place H.B. No. 2727
Substitute the following for H.B. No. 2727:
By Talton C.S.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 12.43(a) and (b), Penal Code, are
1-7 amended to read as follows:
1-8 (a) If it is shown on the trial of a Class A misdemeanor
1-9 that the defendant has been before convicted of a Class A
1-10 misdemeanor or any degree of felony, on conviction he shall be
1-11 punished by:
1-12 (1) a fine not to exceed $4,000;
1-13 (2) confinement in jail for any term of not more than
1-14 one year or less than 90 days; or
1-15 (3) both such fine and confinement.
1-16 (b) If it is shown on the trial of a Class B misdemeanor
1-17 that the defendant has been before convicted of a Class A or Class
1-18 B misdemeanor or any degree of felony, on conviction he shall be
1-19 punished by:
1-20 (1) a fine not to exceed $2,000;
1-21 (2) confinement in jail for any term of not more than
1-22 180 days or less than 30 days; or
1-23 (3) both such fine and confinement.
1-24 SECTION 2. Section 22.01, Penal Code, is amended by amending
2-1 Subsection (b) and adding Subsection (d) to read as follows:
2-2 (b) An offense under Subsection (a)(1) is a Class A
2-3 misdemeanor, except that the offense is a felony of the third
2-4 degree if the offense is committed:
2-5 (1) by a public servant acting under color of the
2-6 servant's office or employment; or
2-7 (2) against a person the actor knows is a public
2-8 servant while the public servant is lawfully discharging an
2-9 official duty, or in retaliation or on account of an exercise of
2-10 official power or performance of an official duty as a public
2-11 servant.
2-12 (d) For purposes of Subsection (b), the actor is presumed to
2-13 have known the person assaulted was a public servant if the person
2-14 was wearing a distinctive uniform or badge indicating the person's
2-15 employment as a public servant.
2-16 SECTION 3. Section 30.02(d), Penal Code, is amended to read
2-17 as follows:
2-18 (d) An offense under this section is a felony of the first
2-19 degree if:
2-20 (1) the premises are a habitation; and
2-21 (2) any party to the offense entered the habitation
2-22 with intent to commit a felony other than felony theft or committed
2-23 or attempted to commit a felony other than felony theft.
2-24 SECTION 4. Section 31.01, Penal Code, is amended by amending
2-25 Subdivision (6) and adding Subdivisions (10) and (11) to read as
2-26 follows:
2-27 (6) "Service" includes:
3-1 (A) labor and professional service;
3-2 (B) telecommunication, cable television,
3-3 subscription television, public utility, or transportation service;
3-4 (C) lodging, restaurant service, and
3-5 entertainment; and
3-6 (D) the supply of a motor vehicle or other
3-7 property for use.
3-8 (10) "Cable television service" means a service
3-9 provided by or through a facility of a cable television system or a
3-10 closed-circuit coaxial cable communication system or a microwave or
3-11 similar transmission service used in connection with a cable
3-12 television system.
3-13 (11) "Subscription television service" means a service
3-14 whereby television broadcast programs intended to be received in an
3-15 intelligible form by members of the public only for a fee or charge
3-16 are transmitted pursuant to the grant of subscription television
3-17 authority by the Federal Communications Commission. The term does
3-18 not include cable television service or community antenna
3-19 television service.
3-20 SECTION 5. Section 31.08(c), Penal Code, is amended to read
3-21 as follows:
3-22 (c) Except as otherwise provided by this subsection, if <If>
3-23 property or service has value that cannot be reasonably ascertained
3-24 by the criteria set forth in Subsections (a) and (b), the property
3-25 or service is deemed to have a value of $500 or more but less than
3-26 $1,500. If the service is cable television service or subscription
3-27 television service, the service is deemed to have a value of $20 or
4-1 more but less than $500 unless proof exists of a greater value.
4-2 SECTION 6. Section 46.02(b), Penal Code, is amended to read
4-3 as follows:
4-4 (b) It is a defense to prosecution under this section that
4-5 the actor was, at the time of the commission of the offense:
4-6 (1) in the actual discharge of his official duties as
4-7 a member of the armed forces or state military forces as defined by
4-8 Section 431.001, Government Code, or as a guard employed by a penal
4-9 institution;
4-10 (2) on his own premises or premises under his control
4-11 unless he is an employee or agent of the owner of the premises and
4-12 his primary responsibility is to act in the capacity of a security
4-13 guard to protect persons or property, in which event he must comply
4-14 with Subdivision (5);
4-15 (3) traveling;
4-16 (4) engaging in lawful hunting, fishing, or other
4-17 sporting activity on the immediate premises where the activity is
4-18 conducted, or was directly en route between the premises and the
4-19 actor's residence, if the weapon is a type commonly used in the
4-20 activity; or
4-21 (5) a person who holds a security officer commission
4-22 issued by the Texas Board of Private Investigators and Private
4-23 Security Agencies, if:
4-24 (A) he is engaged in the performance of his
4-25 duties as a security officer or traveling to and from his place of
4-26 assignment;
4-27 (B) he is wearing a distinctive uniform; and
5-1 (C) the weapon is in plain view<; or>
5-2 <(6) a peace officer, other than a person commissioned
5-3 by the Texas State Board of Pharmacy>.
5-4 SECTION 7. Section 46.03(d), Penal Code, is amended to read
5-5 as follows:
5-6 (d) It is a defense to prosecution under Subsection (a)(5)
5-7 that the actor possessed a firearm or club while traveling to or
5-8 from the actor's place of assignment or in the actual discharge of
5-9 duties as:
5-10 (1) <a peace officer;>
5-11 <(2)> a member of the armed forces or national guard;
5-12 (2) <(3)> a guard employed by a penal institution; or
5-13 (3) <(4)> a security officer commissioned by the Texas
5-14 Board of Private Investigators and Private Security Agencies if:
5-15 (A) the actor is wearing a distinctive uniform;
5-16 and
5-17 (B) the firearm or club is in plain view.
5-18 SECTION 8. Chapter 46, Penal Code, is amended by adding
5-19 Section 46.11 to read as follows:
5-20 Sec. 46.11. NONAPPLICABILITY TO PEACE OFFICERS. Sections
5-21 46.02 and 46.03 do not apply to peace officers and neither section
5-22 prohibits a peace officer from carrying a weapon in this state,
5-23 regardless of whether the officer is engaged in the actual
5-24 discharge of the officer's duties while carrying the weapon.
5-25 SECTION 9. Section 47.01(4), Penal Code, is amended to read
5-26 as follows:
5-27 (4) "Gambling device" means any electronic,
6-1 electromechanical, or mechanical contrivance not excluded under
6-2 Paragraph (B) that for a consideration affords the player an
6-3 opportunity to obtain anything of value, the award of which is
6-4 determined solely or partially by chance, even though accompanied
6-5 by some skill, whether or not the prize is automatically paid by
6-6 the contrivance. The term:
6-7 (A) includes, but is not limited to, gambling
6-8 device versions of bingo, keno, blackjack, lottery, roulette, video
6-9 poker, or similar electronic, electromechanical, or mechanical
6-10 games, or facsimiles thereof, that operate by chance or partially
6-11 so, that as a result of the play or operation of the game award
6-12 credits or free games, and that record the number of free games or
6-13 credits so awarded and the cancellation or removal of the free
6-14 games or credits; and
6-15 (B) does not include any electronic,
6-16 electromechanical, or mechanical contrivance designed, made, and
6-17 adapted solely for bona fide amusement purposes if the contrivance
6-18 rewards the player exclusively with noncash merchandise prizes,
6-19 toys, or novelties, or a representation of value redeemable for
6-20 those items, that have a wholesale value available from a single
6-21 play of the game or device of not more than 10 times the amount
6-22 charged to play the game or device once or $5, whichever is less.
6-23 SECTION 10. Section 47.02, Penal Code, is amended by adding
6-24 Subsection (e) to read as follows:
6-25 (e) It is a defense to prosecution under this section that a
6-26 person played for something of value other than money using an
6-27 electronic, electromechanical, or mechanical contrivance excluded
7-1 from the definition of "gambling device" under Section 47.01(4)(B).
7-2 SECTION 11. Chapter 49, Penal Code, is amended by adding
7-3 Section 49.11 to read as follows:
7-4 Sec. 49.11. PROOF OF MENTAL STATE UNNECESSARY.
7-5 Notwithstanding Section 6.02(b), proof of a culpable mental state
7-6 is not required for conviction of an offense under this chapter.
7-7 SECTION 12. Section 481.126(a), Health and Safety Code, is
7-8 amended to read as follows:
7-9 (a) A person commits an offense if the person knowingly or
7-10 intentionally:
7-11 (1) expends funds the person knows are derived from
7-12 the commission of an offense<:>
7-13 <(A) under Section 481.115(a) or 481.116(a); or>
7-14 <(B)> punishable under Section 481.112(e) or
7-15 (f) <(d)>, <481.112(e),> 481.113(e) <(d)>, 481.114(e) <(c)>,
7-16 481.115(f), 481.116(e), 481.117(e) <(c)>, 481.118(e) <(c)>,
7-17 <481.120(b)(5),> 481.120(b)(6), <481.121(b)(5),> or 481.121(b)(6);
7-18 or
7-19 (2) finances or invests funds the person knows or
7-20 believes are intended to further the commission of an offense
7-21 <listed in Subdivision (1) or an offense> for which the punishment
7-22 is listed under Subdivision (1).
7-23 SECTION 13. Section 481.134(b), Health and Safety Code, is
7-24 amended to read as follows:
7-25 (b) The <minimum term of confinement or imprisonment for an
7-26 offense and the> maximum fine for an offense otherwise punishable
7-27 as a state jail felony under Section 481.112, 481.113, 481.114,
8-1 <481.119,> or 481.120 is doubled, and an offense otherwise
8-2 punishable as a felony of the second degree under any of those
8-3 sections is punishable as a felony of the first degree, <are
8-4 doubled> if it is shown at the punishment phase of <on> the trial
8-5 of the offense that the offense was committed:
8-6 (1) in, on, or within 1,000 feet of premises owned,
8-7 rented, or leased by a school or an institution of higher learning
8-8 or a playground; or
8-9 (2) in, on, or within 300 feet of the premises of a
8-10 public or private youth center, public swimming pool, or video
8-11 arcade facility.
8-12 SECTION 14. Section 483.041(d), Health and Safety Code, is
8-13 amended to read as follows:
8-14 (d) An offense under this section is a Class A misdemeanor
8-15 <felony of the third degree>.
8-16 SECTION 15. Chapter 38, Code of Criminal Procedure, is
8-17 amended by adding Article 38.37 to read as follows:
8-18 Art. 38.37. CONSULTATION WITH LAWYER. The act of contacting
8-19 or retaining an attorney may not be used against an individual or
8-20 entity in a proceeding unless that act falls within an established
8-21 crime-fraud exception.
8-22 SECTION 16. Section 5(a), Article 42.12, Code of Criminal
8-23 Procedure, is amended to read as follows:
8-24 (a) Except as provided by Subsection (d) of this section,
8-25 when in the judge's opinion the best interest of society and the
8-26 defendant will be served, the judge may, after receiving a plea of
8-27 guilty or plea of nolo contendere, hearing the evidence, and
9-1 finding that it substantiates the defendant's guilt, defer further
9-2 proceedings without entering an adjudication of guilt, and place
9-3 the defendant on community supervision. After placing the
9-4 defendant on community supervision under this section, the <The>
9-5 judge shall inform the defendant orally or in writing of the
9-6 possible consequences under Subsection (b) of this section of a
9-7 violation of community supervision. If the information is provided
9-8 orally, the judge must record and maintain the judge's statement to
9-9 the defendant. The failure of a judge to inform a defendant of
9-10 possible consequences under Subsection (b) is not a ground for
9-11 reversal unless the defendant shows that he was misled or harmed by
9-12 the failure of the judge to provide the information. In a felony
9-13 case, the period of community supervision may not exceed 10 years.
9-14 In a misdemeanor case, the period of community supervision may not
9-15 exceed two years. A judge may increase the maximum period of
9-16 community supervision in the manner provided by Section 22(c) of
9-17 this article. The judge may impose a fine applicable to the
9-18 offense and require any reasonable conditions of community
9-19 supervision, including mental health treatment under Section 11(d)
9-20 of this article, that a judge could impose on a defendant placed on
9-21 community supervision for a conviction that was probated and
9-22 suspended, including confinement. However, upon written motion of
9-23 the defendant requesting final adjudication filed within 30 days
9-24 after entering such plea and the deferment of adjudication, the
9-25 judge shall proceed to final adjudication as in all other cases.
9-26 SECTION 17. Section 11(a), Article 42.12, Code of Criminal
9-27 Procedure, as amended by Section 2, Chapter 806, and Section 4.01,
10-1 Chapter 900, Acts of the 73rd Legislature, Regular Session, 1993,
10-2 is amended to read as follows:
10-3 (a) The judge of the court having jurisdiction of the case
10-4 shall determine the conditions of community supervision and may, at
10-5 any time, during the period of community supervision alter or
10-6 modify the conditions <as provided by Sections 10 and 22 of this
10-7 article>. The judge may impose any reasonable condition that is
10-8 designed to protect or restore the community, protect or restore
10-9 the victim, or punish, rehabilitate, or reform the defendant.
10-10 Conditions of community supervision may include, but shall not be
10-11 limited to, the conditions that the defendant shall:
10-12 (1) Commit no offense against the laws of this State
10-13 or of any other State or of the United States;
10-14 (2) Avoid injurious or vicious habits;
10-15 (3) Avoid persons or places of disreputable or harmful
10-16 character;
10-17 (4) Report to the supervision officer as directed by
10-18 the judge or supervision officer and obey all rules and regulations
10-19 of the community supervision and corrections department;
10-20 (5) Permit the supervision officer to visit him at his
10-21 home or elsewhere;
10-22 (6) Work faithfully at suitable employment as far as
10-23 possible;
10-24 (7) Remain within a specified place;
10-25 (8) Pay his fine, if one be assessed, and all court
10-26 costs whether a fine be assessed or not, in one or several sums;
10-27 (9) Support his dependents;
11-1 (10) Participate, for a time specified by the judge in
11-2 any community-based program, including a community-service work
11-3 program under Section 16 of this article;
11-4 (11) Reimburse the county in which the prosecution was
11-5 instituted for compensation paid to appointed counsel for defending
11-6 him in the case, if counsel was appointed, or if he was represented
11-7 by a county-paid public defender, in an amount that would have been
11-8 paid to an appointed attorney had the county not had a public
11-9 defender;
11-10 (12) Remain under custodial supervision in a community
11-11 corrections facility, obey all rules and regulations of such
11-12 facility, and pay a percentage of his income to the facility for
11-13 room and board;
11-14 (13) Pay a percentage of his income to his dependents
11-15 for their support while under custodial supervision in a community
11-16 corrections facility;
11-17 (14) Submit to testing for alcohol or controlled
11-18 substances;
11-19 (15) Attend counseling sessions for substance abusers
11-20 or participate in substance abuse treatment services in a program
11-21 or facility approved or licensed by the Texas Commission on Alcohol
11-22 and Drug Abuse;
11-23 (16) Register under Article 6252-13c.1, Revised
11-24 Statutes;
11-25 (17) With the consent of the victim of a misdemeanor
11-26 offense or of any offense under Title 7, Penal Code, participate
11-27 in victim-defendant mediation;
12-1 (18) <(19)> Submit to electronic monitoring;
12-2 (19) <(20)> Reimburse the crime victims compensation
12-3 fund created under the Crime Victims Compensation Act (Subchapter
12-4 B, Chapter 56, of this code) <(Article 8309-1, Vernon's Texas Civil
12-5 Statutes)> for any amounts paid from that fund to a victim, as
12-6 defined by Article 56.01 of this code, of the defendant's offense
12-7 or if no reimbursement is required, make one payment to the fund in
12-8 an amount not to exceed $50 if the offense is a misdemeanor or not
12-9 to exceed $100 if the offense is a felony;
12-10 (20) <(21)> Reimburse a law enforcement agency for the
12-11 analysis, storage, or disposal of raw materials, controlled
12-12 substances, chemical precursors, drug paraphernalia, or other
12-13 materials seized in connection with the offense;
12-14 (21) <(22)> Pay all or part of the reasonable and
12-15 necessary costs incurred by the victim for psychological counseling
12-16 made necessary by the offense or for counseling and education
12-17 relating to acquired immune deficiency syndrome or human
12-18 immunodeficiency virus made necessary by the offense; and
12-19 (22) <(23)> Make one payment in an amount not to
12-20 exceed $50 to a local crime stoppers program as defined by Section
12-21 414.001, Government Code, and as certified by the Crime Stoppers
12-22 Advisory Council.
12-23 SECTION 18. Section 15, Article 42.12, Code of Criminal
12-24 Procedure, is amended by amending Subsections (b), (d), and (f) and
12-25 adding Subsection (i) to read as follows:
12-26 (b) The minimum period of community supervision a judge may
12-27 impose under this section is two years. The maximum period of
13-1 community supervision a judge may impose under this section is five
13-2 years, unless the defendant has been previously convicted of two or
13-3 more felonies, in which event the maximum period is 10 years. A
13-4 judge may extend a period of community supervision under this
13-5 section at any time during the period of community supervision, or
13-6 if a motion for revocation of community supervision is filed before
13-7 the period of community supervision ends, before the first
13-8 anniversary of the expiration of the period of community
13-9 supervision.
13-10 (d) A judge may impose as a condition of community
13-11 supervision that a defendant submit at the beginning of the period
13-12 of community supervision to a term of confinement in a state jail
13-13 felony facility for a term not to exceed 60 days, or <180 days if
13-14 the defendant previously has been convicted of a felony, or> one
13-15 year if the defendant is convicted of an offense punishable as a
13-16 state jail felony under Section 481.112, Health and Safety Code, or
13-17 <the defendant> previously has been convicted of a felony <two or
13-18 more felonies>. A judge may not require a defendant to submit to
13-19 both the term of confinement authorized by this subsection and a
13-20 term of confinement under Section 12 of this article. For the
13-21 purposes of this subsection, a defendant previously has been
13-22 convicted of a felony regardless of whether the sentence for the
13-23 previous conviction was actually imposed or was probated and
13-24 suspended.
13-25 (f)(1) If a defendant violates a condition of community
13-26 supervision imposed on the defendant under this article and after a
13-27 hearing under Section 21 of this article the judge revokes the
14-1 defendant's community supervision, the judge shall dispose of the
14-2 case in the manner provided by Section 23 of this article.
14-3 (2) The court retains jurisdiction over the defendant
14-4 until the first anniversary of the date the defendant is received
14-5 into the custody of a state jail. At any time after the 75th day
14-6 after the date the defendant is received into the custody of a
14-7 state jail and before the first anniversary of the date the
14-8 defendant is received into the custody of a state jail, the judge
14-9 on the judge's own motion, on the motion of the attorney
14-10 representing the state, or on the motion of the defendant may
14-11 suspend further execution of the sentence and place the defendant
14-12 on community supervision under the conditions of this section.
14-13 (3) When the defendant or the attorney representing
14-14 the state files a written motion requesting suspension by the judge
14-15 of further execution of the sentence and placement of the defendant
14-16 on community supervision, the clerk of the court, if requested to
14-17 do so by the judge, shall request a copy of the defendant's record
14-18 while confined from the facility director of the state jail felony
14-19 facility in which the defendant is confined or, if the defendant is
14-20 confined in county jail, from the sheriff. On receipt of the
14-21 request, the facility director or the sheriff shall forward to the
14-22 judge, as soon as possible, a full and complete copy of the
14-23 defendant's record while confined. When the defendant files a
14-24 written motion requesting suspension of further execution of the
14-25 sentence and placement on community supervision, he shall
14-26 immediately deliver or cause to be delivered a true and correct
14-27 copy of the motion to the office of the attorney representing the
15-1 state. The judge may deny the motion without a hearing but may not
15-2 grant the motion without holding a hearing and providing the
15-3 attorney representing the state and the defendant the opportunity
15-4 to present evidence on the motion.
15-5 (i) Subsections (c)-(h) apply only to a defendant placed on
15-6 community supervision after being sentenced to confinement in a
15-7 state jail.
15-8 SECTION 19. Section 18(h), Article 42.12, Code of Criminal
15-9 Procedure, is amended to read as follows:
15-10 (h) A judge that requires as a condition of community
15-11 supervision under Section 15 that the defendant serve a term in a
15-12 state jail felony <community corrections> facility may not impose a
15-13 subsequent term in a community corrections facility or jail during
15-14 the same supervision period that, when added to the terms
15-15 previously imposed, exceeds 24 months.
15-16 SECTION 20. Section 20(a), Article 42.12, Code of Criminal
15-17 Procedure, is amended to read as follows:
15-18 <(a)> At any time, after a <the> defendant other than a
15-19 defendant convicted of a state jail felony has satisfactorily
15-20 completed one-third of the original community supervision period or
15-21 two years of community supervision, whichever is less, the period
15-22 of community supervision may be reduced or terminated by the judge.
15-23 Upon the satisfactory fulfillment of the conditions of community
15-24 supervision, and the expiration of the period of community
15-25 supervision, the judge, by order duly entered, shall amend or
15-26 modify the original sentence imposed, if necessary, to conform to
15-27 the community supervision period and shall discharge the defendant.
16-1 If the judge discharges a <the> defendant under this section, other
16-2 than a defendant convicted of an offense under Sections
16-3 49.04-49.08, Penal Code, the judge may set aside the verdict or
16-4 permit the defendant to withdraw his plea, and shall dismiss the
16-5 accusation, complaint, information or indictment against the
16-6 defendant, who shall thereafter be released from all penalties and
16-7 disabilities resulting from the offense or crime of which he has
16-8 been convicted or to which he has pleaded guilty, except that:
16-9 (1) proof of the conviction or plea of guilty shall be
16-10 made known to the judge should the defendant again be convicted of
16-11 any criminal offense; and
16-12 (2) if the defendant is an applicant for a license or
16-13 is a licensee under Chapter 42, Human Resources Code, the Texas
16-14 Department of Human Services may consider the fact that the
16-15 defendant previously has received community supervision under this
16-16 article in issuing, renewing, denying, or revoking a license under
16-17 that chapter.
16-18 SECTION 21. Section 20(b), Article 42.12, Code of Criminal
16-19 Procedure, is repealed.
16-20 SECTION 22. Notwithstanding Section 6.04, Chapter 900, Acts
16-21 of the 73rd Legislature, Regular Session, 1993, the Board of
16-22 Pardons and Paroles may grant parole to any person convicted of a
16-23 capital felony only on a two-thirds vote of the entire membership
16-24 of the board, as required by Section 7(g), Article 42.18, Code of
16-25 Criminal Procedure, regardless of whether the person was sentenced
16-26 for an offense committed before, on, or after September 1, 1993.
16-27 SECTION 23. (a) Except as provided by Section 24 of this
17-1 Act, the changes in law made by this Act apply only to an offense
17-2 committed on or after the effective date of this Act. For the
17-3 purposes of this section, an offense is committed before the
17-4 effective date of this Act if any element of the offense occurs
17-5 before the effective date.
17-6 (b) For the purposes of this section, an offense committed
17-7 before the effective date of this Act is covered by the law in
17-8 effect when the offense was committed, and the former law is
17-9 continued in effect for that purpose.
17-10 SECTION 24. Section 22 of this Act, according to its terms,
17-11 applies to offenses committed before, on, or after September 1,
17-12 1993.
17-13 SECTION 25. This Act takes effect September 1, 1995.
17-14 SECTION 26. The importance of this legislation and the
17-15 crowded condition of the calendars in both houses create an
17-16 emergency and an imperative public necessity that the
17-17 constitutional rule requiring bills to be read on three several
17-18 days in each house be suspended, and this rule is hereby suspended.