By Montford S.B. No. 448
74R4702 GWK-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the prosecution of and punishment for certain sexual
1-3 offenses.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 22, Penal Code, is amended by adding
1-6 Section 22.012 to read as follows:
1-7 Sec. 22.012. Exposing Another to AIDS or HIV During
1-8 Commission of Offense. (a) A person commits an offense if the
1-9 person commits an offense listed in Section 2(d), Article 37.07,
1-10 Code of Criminal Procedure, and during the course of the offense
1-11 transmits AIDS or HIV to the victim of the offense.
1-12 (b) An offense under this section is a felony of the first
1-13 degree.
1-14 (c) In this section, "AIDS" and "HIV" have the meanings
1-15 assigned by Section 81.101, Health and Safety Code.
1-16 SECTION 2. Article 21.31(a), Code of Criminal Procedure, is
1-17 amended to read as follows:
1-18 (a) A person who is indicted for or who waives indictment
1-19 for an offense under Section 21.11(a)(1), 22.011, <or> 22.021, or
1-20 25.02, Penal Code, shall, at the direction of the court, undergo a
1-21 medical procedure or test designed to show or help show whether the
1-22 person has a sexually transmitted disease or has acquired immune
1-23 deficiency syndrome (AIDS) or human immunodeficiency virus (HIV)
1-24 infection, antibodies to HIV, or infection with any other probable
2-1 causative agent of AIDS. The court may direct the person to
2-2 undergo the procedure or test on its own motion or on the request
2-3 of the victim of the alleged offense. If the person refuses to
2-4 submit voluntarily to the procedure or test, the court shall
2-5 require the person to submit to the procedure or test. The court
2-6 may require a defendant previously required under this article to
2-7 undergo a medical procedure or test on indictment for an offense to
2-8 undergo a subsequent medical procedure or test following conviction
2-9 of the offense. The person performing the procedure or test shall
2-10 make the test results available to the local health authority, and
2-11 the local health authority shall be required to make the
2-12 notification of the test result to the victim of the alleged
2-13 offense and to the defendant. The state may not use the fact that
2-14 a medical procedure or test was performed on a person under this
2-15 subsection or use the results of the procedure or test in any
2-16 criminal proceeding arising out of the alleged offense.
2-17 SECTION 3. Article 26.13, Code of Criminal Procedure, is
2-18 amended by adding Subsection (g) to read as follows:
2-19 (g) A court that inquires as to the existence of a plea
2-20 bargain agreement as required by Subsection (a) in a case in which
2-21 the defendant is charged with an offense listed in Section 2(d),
2-22 Article 37.07, shall also inquire of the prosecuting attorney
2-23 whether as part of the plea bargain agreement the prosecuting
2-24 attorney has agreed not to prosecute the defendant for any other
2-25 commission of an offense listed in Section 2(d), Article 37.07. If
2-26 the prosecuting attorney answers in the affirmative, the court
2-27 shall reject the plea bargain agreement.
3-1 SECTION 4. Section 2, Article 37.07, Code of Criminal
3-2 Procedure, is amended by adding Subsection (d) to read as follows:
3-3 (d) An attorney representing the state prosecuting a
3-4 defendant for an offense listed in this subsection who has
3-5 knowledge of the existence of a prior conviction for an offense
3-6 listed in this subsection shall notify the defendant in writing not
3-7 later than the 10th day before the date on which the trial
3-8 commences that the state intends to request an affirmative finding
3-9 on the existence of the prior conviction. The notice must state
3-10 the offense for which the defendant was convicted, the jurisdiction
3-11 in which the defendant was convicted, and the date on which the
3-12 defendant was convicted. The judge, before the trial commences,
3-13 shall determine whether the defendant has been convicted of the
3-14 offense alleged in the written notice. The state must prove the
3-15 existence of the prior conviction by a preponderance of the
3-16 evidence. If the judge determines that the prior conviction
3-17 exists, the judge shall enter an affirmative finding of that fact
3-18 into the record of the case. This subsection applies to a felony
3-19 offense under the following sections of the Penal Code:
3-20 (1) Section 21.11;
3-21 (2) Section 22.011;
3-22 (3) Section 22.021; and
3-23 (4) Section 25.02.
3-24 SECTION 5. Article 42.08(b), Code of Criminal Procedure, is
3-25 amended to read as follows:
3-26 (b)(1) If a defendant is sentenced for an offense committed
3-27 while the defendant was an inmate in the institutional division of
4-1 the Texas Department of Criminal Justice and the defendant has not
4-2 completed the sentence he was serving at the time of the offense,
4-3 the judge shall order the sentence for the subsequent offense to
4-4 commence immediately on completion of the sentence for the original
4-5 offense.
4-6 (2) If a defendant is sentenced for two or more
4-7 offenses listed in Section 2(d), Article 37.07, the judge shall
4-8 order that the sentence in the second and subsequent convictions
4-9 commence immediately on the completion of the preceding sentence.
4-10 SECTION 6. Section 5(d), Article 42.12, Code of Criminal
4-11 Procedure, is amended to read as follows:
4-12 (d) In all other cases the judge may grant deferred
4-13 adjudication unless the defendant is charged with an offense listed
4-14 in Section 2(d), Article 37.07, or an offense under Section 49.04,
4-15 49.05, 49.06, 49.07, or 49.08, Penal Code.
4-16 SECTION 7. Section 8(b), Article 42.18, Code of Criminal
4-17 Procedure, is amended by adding Subdivision (6) to read as follows:
4-18 (6) If a prisoner is serving a sentence for an offense
4-19 for which the judgment contains an affirmative finding under
4-20 Section 2(d), Article 37.07, the prisoner is not eligible for
4-21 release on parole until the actual calendar time the prisoner has
4-22 served, without consideration of good conduct time, equals 80
4-23 percent of the sentence imposed.
4-24 SECTION 8. Section 8(c), Article 42.18, Code of Criminal
4-25 Procedure, is amended to read as follows:
4-26 (c) Except as otherwise provided by this subsection, a
4-27 prisoner who is not on parole shall be released to mandatory
5-1 supervision by order of a parole panel when the calendar time he
5-2 has served plus any accrued good conduct time equal the maximum
5-3 term to which he was sentenced. A prisoner released to mandatory
5-4 supervision shall, upon release, be deemed as if released on
5-5 parole. To the extent practicable, arrangements for the prisoner's
5-6 proper employment, maintenance, and care shall be made prior to his
5-7 release to mandatory supervision. The period of mandatory
5-8 supervision shall be for a period equivalent to the maximum term
5-9 for which the prisoner was sentenced less calendar time actually
5-10 served on the sentence. The time served on mandatory supervision
5-11 is calculated as calendar time. Every prisoner while on mandatory
5-12 supervision shall remain in the legal custody of the state and
5-13 shall be amenable to conditions of supervision ordered by the
5-14 parole panel. A prisoner may not be released to mandatory
5-15 supervision if the prisoner is serving a sentence for an offense
5-16 and the judgment for the offense contains an affirmative finding
5-17 under Section 2(d), Article 37.07, of this code, or under
5-18 Subdivision (2), Subsection (a), Section 3g, Article 42.12, of this
5-19 code or if the prisoner is serving a sentence for:
5-20 (1) a first degree felony under Section 19.02, Penal
5-21 Code (Murder);
5-22 (2) a capital felony under Section 19.03, Penal Code
5-23 (Capital Murder);
5-24 (3) a first degree felony or a second degree felony
5-25 under Section 20.04, Penal Code (Aggravated Kidnapping);
5-26 (4) a second degree felony under Section 22.011, Penal
5-27 Code (Sexual Assault);
6-1 (5) a second degree or first degree felony under
6-2 Section 22.02, Penal Code (Aggravated Assault);
6-3 (6) a first degree felony under Section 22.021, Penal
6-4 Code (Aggravated Sexual Assault);
6-5 (7) a first degree felony under Section 22.04, Penal
6-6 Code (Injury to a Child, <or an> Elderly Individual, or Disabled
6-7 Individual);
6-8 (8) a first degree felony under Section 28.02, Penal
6-9 Code (Arson);
6-10 (9) a second degree felony under Section 29.02, Penal
6-11 Code (Robbery);
6-12 (10) a first degree felony under Section 29.03, Penal
6-13 Code (Aggravated Robbery);
6-14 (11) a first degree felony under Section 30.02, Penal
6-15 Code (Burglary), if the offense is punished under Subsection (d)(2)
6-16 <or (d)(3)> of that section; or
6-17 (12) <(13)> a felony for which the punishment is
6-18 increased under Section 481.134, Health and Safety Code (Drug-Free
6-19 Zones).
6-20 SECTION 9. (a) The change in law made by this Act applies
6-21 only to the prosecution and punishment for a defendant charged with
6-22 an offense committed on or after the effective date of this Act.
6-23 For purposes of this section, an offense is committed before the
6-24 effective date of this Act if any element of the offense occurs
6-25 before the effective date.
6-26 (b) A defendant charged with an offense committed before the
6-27 effective date of this Act is covered by the law in effect when the
7-1 offense was committed, and the former law is continued in effect
7-2 for that purpose.
7-3 SECTION 10. This Act takes effect September 1, 1995.
7-4 SECTION 11. The importance of this legislation and the
7-5 crowded condition of the calendars in both houses create an
7-6 emergency and an imperative public necessity that the
7-7 constitutional rule requiring bills to be read on three several
7-8 days in each house be suspended, and this rule is hereby suspended.