By Place H.B. No. 2727
74R7294 GWK-D
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. Section 12.35(a), Penal Code, is amended to read
1-7 as follows:
1-8 (a) Except as provided by Subsection (c), an individual
1-9 adjudged guilty of a state jail felony shall be punished by
1-10 confinement in:
1-11 (1) a state jail for any term of not more than two
1-12 years or less than 180 days; or
1-13 (2) a county jail for any term of:
1-14 (A) not more than one year; or
1-15 (B) not less than six months or more than one
1-16 year, if it is shown on the trial of the offense that the
1-17 individual has been previously convicted of a felony.
1-18 SECTION 2. Section 22.01, Penal Code, is amended by amending
1-19 Subsection (b) and adding Subsection (d) to read as follows:
1-20 (b) An offense under Subsection (a)(1) is a Class A
1-21 misdemeanor, except that the offense is a felony of the third
1-22 degree if the offense is committed:
1-23 (1) by a public servant acting under color of the
1-24 servant's office or employment; or
2-1 (2) against a person the actor knows is a public
2-2 servant while the public servant is lawfully discharging an
2-3 official duty, or in retaliation or on account of an exercise of
2-4 official power or performance of an official duty as a public
2-5 servant.
2-6 (d) For purposes of Subsection (b), the actor is presumed to
2-7 have known the person assaulted was a public servant if the person
2-8 was wearing a distinctive uniform or badge indicating the person's
2-9 employment as a public servant.
2-10 SECTION 3. Section 31.01, Penal Code, is amended by amending
2-11 Subdivision (6) and adding Subdivisions (10) and (11) to read as
2-12 follows:
2-13 (6) "Service" includes:
2-14 (A) labor and professional service;
2-15 (B) telecommunication, cable television,
2-16 subscription television, public utility, or transportation service;
2-17 (C) lodging, restaurant service, and
2-18 entertainment; and
2-19 (D) the supply of a motor vehicle or other
2-20 property for use.
2-21 (10) "Cable television service" means a service
2-22 provided by or through a facility of a cable television system or a
2-23 closed-circuit coaxial cable communication system or a microwave or
2-24 similar transmission service used in connection with a cable
2-25 television system.
2-26 (11) "Subscription television service" means a service
2-27 whereby television broadcast programs intended to be received in an
3-1 intelligible form by members of the public only for a fee or charge
3-2 are transmitted pursuant to the grant of subscription television
3-3 authority by the Federal Communications Commission. The term does
3-4 not include cable television service or community antenna
3-5 television service.
3-6 SECTION 4. Section 31.08(c), Penal Code, is amended to read
3-7 as follows:
3-8 (c) Except as otherwise provided by this subsection, if <If>
3-9 property or service has value that cannot be reasonably ascertained
3-10 by the criteria set forth in Subsections (a) and (b), the property
3-11 or service is deemed to have a value of $500 or more but less than
3-12 $1,500. If the service is cable television service or subscription
3-13 television service, the service is deemed to have a value of $20 or
3-14 more but less than $500 unless proof exists of a greater value.
3-15 SECTION 5. Section 46.02(b), Penal Code, is amended to read
3-16 as follows:
3-17 (b) It is a defense to prosecution under this section that
3-18 the actor was, at the time of the commission of the offense:
3-19 (1) in the actual discharge of his official duties as
3-20 a member of the armed forces or state military forces as defined by
3-21 Section 431.001, Government Code, or as a guard employed by a penal
3-22 institution;
3-23 (2) on his own premises or premises under his control
3-24 unless he is an employee or agent of the owner of the premises and
3-25 his primary responsibility is to act in the capacity of a security
3-26 guard to protect persons or property, in which event he must comply
3-27 with Subdivision (5);
4-1 (3) traveling;
4-2 (4) engaging in lawful hunting, fishing, or other
4-3 sporting activity on the immediate premises where the activity is
4-4 conducted, or was directly en route between the premises and the
4-5 actor's residence, if the weapon is a type commonly used in the
4-6 activity; or
4-7 (5) a person who holds a security officer commission
4-8 issued by the Texas Board of Private Investigators and Private
4-9 Security Agencies, if:
4-10 (A) he is engaged in the performance of his
4-11 duties as a security officer or traveling to and from his place of
4-12 assignment;
4-13 (B) he is wearing a distinctive uniform; and
4-14 (C) the weapon is in plain view<; or>
4-15 <(6) a peace officer, other than a person commissioned
4-16 by the Texas State Board of Pharmacy>.
4-17 SECTION 6. Section 46.03(d), Penal Code, is amended to read
4-18 as follows:
4-19 (d) It is a defense to prosecution under Subsection (a)(5)
4-20 that the actor possessed a firearm or club while traveling to or
4-21 from the actor's place of assignment or in the actual discharge of
4-22 duties as:
4-23 (1) <a peace officer;>
4-24 <(2)> a member of the armed forces or national guard;
4-25 (2) <(3)> a guard employed by a penal institution; or
4-26 (3) <(4)> a security officer commissioned by the Texas
4-27 Board of Private Investigators and Private Security Agencies if:
5-1 (A) the actor is wearing a distinctive uniform;
5-2 and
5-3 (B) the firearm or club is in plain view.
5-4 SECTION 7. Chapter 46, Penal Code, is amended by adding
5-5 Section 46.11 to read as follows:
5-6 Sec. 46.11. NONAPPLICABILITY TO PEACE OFFICERS. Sections
5-7 46.02 and 46.03 do not apply to peace officers and neither section
5-8 prohibits a peace officer from carrying a weapon in this state,
5-9 regardless of whether the officer is engaged in the actual
5-10 discharge of the officer's duties while carrying the weapon.
5-11 SECTION 8. Section 47.01(4), Penal Code, is amended to read
5-12 as follows:
5-13 (4) "Gambling device" means any electronic,
5-14 electromechanical, or mechanical contrivance not excluded under
5-15 Paragraph (B) that for a consideration affords the player an
5-16 opportunity to obtain anything of value, the award of which is
5-17 determined solely or partially by chance, even though accompanied
5-18 by some skill, whether or not the prize is automatically paid by
5-19 the contrivance. The term:
5-20 (A) includes, but is not limited to, gambling
5-21 device versions of bingo, keno, blackjack, lottery, roulette, video
5-22 poker, or similar electronic, electromechanical, or mechanical
5-23 games, or facsimiles thereof, that operate by chance or partially
5-24 so, that as a result of the play or operation of the game award
5-25 credits or free games, and that record the number of free games or
5-26 credits so awarded and the cancellation or removal of the free
5-27 games or credits; and
6-1 (B) does not include any electronic,
6-2 electromechanical, or mechanical contrivance designed, made, and
6-3 adapted solely for bona fide amusement purposes if the contrivance
6-4 rewards the player exclusively with noncash merchandise prizes,
6-5 toys, or novelties, or a representation of value redeemable for
6-6 those items, that have a wholesale value available from a single
6-7 play of the game or device of not more than 10 times the amount
6-8 charged to play the game or device once or $5, whichever is less.
6-9 SECTION 9. Section 47.02, Penal Code, is amended by adding
6-10 Subsection (e) to read as follows:
6-11 (e) It is a defense to prosecution under this section that a
6-12 person played for something of value other than money using an
6-13 electronic, electromechanical, or mechanical contrivance excluded
6-14 from the definition of "gambling device" under Section 47.01(4)(B).
6-15 SECTION 10. Chapter 49, Penal Code, is amended by adding
6-16 Section 49.11 to read as follows:
6-17 Sec. 49.11. PROOF OF MENTAL STATE UNNECESSARY.
6-18 Notwithstanding Section 6.02(b), proof of a culpable mental state
6-19 is not required for conviction of an offense under this chapter.
6-20 SECTION 11. Section 481.134(b), Health and Safety Code, is
6-21 amended to read as follows:
6-22 (b) The <minimum term of confinement or imprisonment for an
6-23 offense and the> maximum fine for an offense otherwise punishable
6-24 as a state jail felony under Section 481.112, 481.113, 481.114,
6-25 <481.119,> or 481.120 is doubled, and an offense otherwise
6-26 punishable as a felony of the second degree under any of those
6-27 sections is punishable as a felony of the first degree, <are
7-1 doubled> if it is shown at the punishment phase of <on> the trial
7-2 of the offense that the offense was committed:
7-3 (1) in, on, or within 1,000 feet of premises owned,
7-4 rented, or leased by a school or an institution of higher learning
7-5 or a playground; or
7-6 (2) in, on, or within 300 feet of the premises of a
7-7 public or private youth center, public swimming pool, or video
7-8 arcade facility.
7-9 SECTION 12. Section 3(e), Article 42.12, Code of Criminal
7-10 Procedure, is amended to read as follows:
7-11 (e) A defendant is not eligible for community supervision
7-12 under this section if the defendant:
7-13 (1) is sentenced to a term of imprisonment that
7-14 exceeds 10 years; or
7-15 (2) is sentenced to serve a term of confinement in a
7-16 state jail under Section 12.35, Penal Code.
7-17 SECTION 13. Section 4(d), Article 42.12, Code of Criminal
7-18 Procedure, is amended to read as follows:
7-19 (d) A defendant is not eligible for community supervision
7-20 under this section if the defendant:
7-21 (1) is sentenced to a term of imprisonment that
7-22 exceeds 10 years;
7-23 (2) is sentenced to serve a term of confinement in a
7-24 state jail under Section 12.35, Penal Code; or
7-25 (3) does not file a sworn motion under Subsection (e)
7-26 of this section or for whom the jury does not enter in the verdict
7-27 a finding that the information contained in the motion is true.
8-1 SECTION 14. Section 5(a), Article 42.12, Code of Criminal
8-2 Procedure, is amended to read as follows:
8-3 (a) Except as provided by Subsection (d) of this section,
8-4 when in the judge's opinion the best interest of society and the
8-5 defendant will be served, the judge may, after receiving a plea of
8-6 guilty or plea of nolo contendere, hearing the evidence, and
8-7 finding that it substantiates the defendant's guilt, defer further
8-8 proceedings without entering an adjudication of guilt, and place
8-9 the defendant on community supervision. After placing the
8-10 defendant on community supervision under this section, the <The>
8-11 judge shall inform the defendant orally or in writing of the
8-12 possible consequences under Subsection (b) of this section of a
8-13 violation of community supervision. If the information is provided
8-14 orally, the judge must record and maintain the judge's statement to
8-15 the defendant. The failure of a judge to inform a defendant of
8-16 possible consequences under Subsection (b) is not a ground for
8-17 reversal unless the defendant shows that he was misled or harmed by
8-18 the failure of the judge to provide the information. In a felony
8-19 case, the period of community supervision may not exceed 10 years.
8-20 In a misdemeanor case, the period of community supervision may not
8-21 exceed two years. A judge may increase the maximum period of
8-22 community supervision in the manner provided by Section 22(c) of
8-23 this article. The judge may impose a fine applicable to the
8-24 offense and require any reasonable conditions of community
8-25 supervision, including mental health treatment under Section 11(d)
8-26 of this article, that a judge could impose on a defendant placed on
8-27 community supervision for a conviction that was probated and
9-1 suspended, including confinement. However, upon written motion of
9-2 the defendant requesting final adjudication filed within 30 days
9-3 after entering such plea and the deferment of adjudication, the
9-4 judge shall proceed to final adjudication as in all other cases.
9-5 SECTION 15. Section 15, Article 42.12, Code of Criminal
9-6 Procedure, is amended by amending Subsections (a), (b), (d), and
9-7 (f) and adding Subsection (i) to read as follows:
9-8 (a) On conviction of a state jail felony and the sentencing
9-9 of the defendant to confinement in state jail, the judge shall
9-10 suspend the imposition of the sentence of confinement and place the
9-11 defendant on community supervision, unless the defendant has been
9-12 previously convicted of two or more felonies, in which event the
9-13 judge may suspend the imposition of the sentence and place the
9-14 defendant on community supervision or may order the sentence to be
9-15 executed. On conviction of a state jail felony and the sentencing
9-16 of the defendant to confinement in county jail, the judge may
9-17 suspend the imposition of the sentence of confinement and place the
9-18 defendant on community supervision or may order the sentence to be
9-19 executed. The judge may suspend in whole or in part the imposition
9-20 of any fine imposed on conviction.
9-21 (b) The minimum period of community supervision a judge may
9-22 impose under this section is two years. The maximum period of
9-23 community supervision a judge may impose under this section is five
9-24 years, unless the defendant has been previously convicted of two or
9-25 more felonies, in which event the maximum period is 10 years. A
9-26 judge may extend a period of community supervision under this
9-27 section at any time during the period of community supervision, or
10-1 if a motion for revocation of community supervision is filed before
10-2 the period of community supervision ends, before the first
10-3 anniversary of the expiration of the period of community
10-4 supervision.
10-5 (d) A judge may impose as a condition of community
10-6 supervision that a defendant submit at the beginning of the period
10-7 of community supervision to a term of confinement in a state jail
10-8 felony facility for a term not to exceed 60 days, or <180 days if
10-9 the defendant previously has been convicted of a felony, or> one
10-10 year if the defendant is convicted of an offense punishable as a
10-11 state jail felony under Section 481.112, Health and Safety Code, or
10-12 <the defendant> previously has been convicted of a felony <two or
10-13 more felonies>. A judge may not require a defendant to submit to
10-14 both the term of confinement authorized by this subsection and a
10-15 term of confinement under Section 12 of this article. For the
10-16 purposes of this subsection, a defendant previously has been
10-17 convicted of a felony regardless of whether the sentence for the
10-18 previous conviction was actually imposed or was probated and
10-19 suspended.
10-20 (f)(1) If a defendant violates a condition of community
10-21 supervision imposed on the defendant under this article and after a
10-22 hearing under Section 21 of this article the judge revokes the
10-23 defendant's community supervision, the judge shall dispose of the
10-24 case in the manner provided by Section 23 of this article.
10-25 (2) The court retains jurisdiction over the defendant
10-26 until the first anniversary of the date the defendant is received
10-27 into the custody of a state jail. At any time after the 75th day
11-1 after the date the defendant is received into the custody of a
11-2 state jail and before the first anniversary of the date the
11-3 defendant is received into the custody of a state jail, the judge
11-4 on the judge's own motion, on the motion of the attorney
11-5 representing the state, or on the motion of the defendant may
11-6 suspend further execution of the sentence and place the defendant
11-7 on community supervision under the conditions of this section.
11-8 (3) When the defendant or the attorney representing
11-9 the state files a written motion requesting suspension by the judge
11-10 of further execution of the sentence and placement of the defendant
11-11 on community supervision, the clerk of the court, if requested to
11-12 do so by the judge, shall request a copy of the defendant's record
11-13 while confined from the facility director of the state jail felony
11-14 facility in which the defendant is confined or, if the defendant is
11-15 confined in county jail, from the sheriff. On receipt of the
11-16 request, the facility director or the sheriff shall forward to the
11-17 judge, as soon as possible, a full and complete copy of the
11-18 defendant's record while confined. When the defendant files a
11-19 written motion requesting suspension of further execution of the
11-20 sentence and placement on community supervision, he shall
11-21 immediately deliver or cause to be delivered a true and correct
11-22 copy of the motion to the office of the attorney representing the
11-23 state. The judge may deny the motion without a hearing but may not
11-24 grant the motion without holding a hearing and providing the
11-25 attorney representing the state and the defendant the opportunity
11-26 to present evidence on the motion.
11-27 (i) Subsections (c)-(h) apply only to a defendant placed on
12-1 community supervision after being sentenced to confinement in a
12-2 state jail.
12-3 SECTION 16. Section 18(h), Article 42.12, Code of Criminal
12-4 Procedure, is amended to read as follows:
12-5 (h) A judge that requires as a condition of community
12-6 supervision under Section 15 that the defendant serve a term in a
12-7 state jail felony <community corrections> facility may not impose a
12-8 subsequent term in a community corrections facility or jail during
12-9 the same supervision period that, when added to the terms
12-10 previously imposed, exceeds 24 months.
12-11 SECTION 17. Section 20, Article 42.12, Code of Criminal
12-12 Procedure, is amended to read as follows:
12-13 Sec. 20. Reduction or Termination of Community Supervision.
12-14 (a) At any time, after the defendant has satisfactorily completed
12-15 one-third of the original community supervision period or two years
12-16 of community supervision, whichever is less, the period of
12-17 community supervision may be reduced or terminated by the judge.
12-18 Upon the satisfactory fulfillment of the conditions of community
12-19 supervision, and the expiration of the period of community
12-20 supervision, the judge, by order duly entered, shall amend or
12-21 modify the original sentence imposed, if necessary, to conform to
12-22 the community supervision period and shall discharge the defendant.
12-23 If the judge discharges a <the> defendant under this section, other
12-24 than a defendant convicted of an offense under Sections
12-25 49.04-49.08, Penal Code, the judge may set aside the verdict or
12-26 permit the defendant to withdraw his plea, and shall dismiss the
12-27 accusation, complaint, information or indictment against the
13-1 defendant, who shall thereafter be released from all penalties and
13-2 disabilities resulting from the offense or crime of which he has
13-3 been convicted or to which he has pleaded guilty, except that:
13-4 (1) proof of the conviction or plea of guilty shall be
13-5 made known to the judge should the defendant again be convicted of
13-6 any criminal offense; and
13-7 (2) if the defendant is an applicant for a license or
13-8 is a licensee under Chapter 42, Human Resources Code, the Texas
13-9 Department of Human Services may consider the fact that the
13-10 defendant previously has received community supervision under this
13-11 article in issuing, renewing, denying, or revoking a license under
13-12 that chapter.
13-13 (b) This section does not apply to a defendant convicted of
13-14 an offense <under Sections 49.04-49.08, Penal Code, or a defendant
13-15 convicted of an offense> punishable as a state jail felony.
13-16 SECTION 18. Notwithstanding Section 6.04, Chapter 900, Acts
13-17 of the 73rd Legislature, Regular Session, 1993, the Board of
13-18 Pardons and Paroles may grant parole to any person convicted of a
13-19 capital felony only on a two-thirds vote of the entire membership
13-20 of the board, as required by Section 7(g), Article 42.18, Code of
13-21 Criminal Procedure, regardless of whether the person was sentenced
13-22 for an offense committed before, on, or after September 1, 1993.
13-23 SECTION 19. (a) Except as provided by Section 20 of this
13-24 Act, the changes in law made by this Act apply only to an offense
13-25 committed on or after the effective date of this Act. For the
13-26 purposes of this section, an offense is committed before the
13-27 effective date of this Act if any element of the offense occurs
14-1 before the effective date.
14-2 (b) For the purposes of this section, an offense committed
14-3 before the effective date of this Act is covered by the law in
14-4 effect when the offense was committed, and the former law is
14-5 continued in effect for that purpose.
14-6 SECTION 20. Section 18 of this Act, according to its terms,
14-7 applies to offenses committed before, on, or after September 1,
14-8 1993.
14-9 SECTION 21. This Act takes effect September 1, 1995.
14-10 SECTION 22. The importance of this legislation and the
14-11 crowded condition of the calendars in both houses create an
14-12 emergency and an imperative public necessity that the
14-13 constitutional rule requiring bills to be read on three several
14-14 days in each house be suspended, and this rule is hereby suspended.