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.