By Goodman H.B. No. 309
75R1756 GWK-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the prosecution and sentencing of certain defendants
1-3 charged with or convicted of sexual offenses or sexually assaultive
1-4 offenses committed against children.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Sections 5(a) and (c), Article 42.12, Code of
1-7 Criminal Procedure, are amended to read as follows:
1-8 (a) Except as provided by Subsection (d) of this section,
1-9 when in the judge's opinion the best interest of society and the
1-10 defendant will be served, the judge may, after receiving a plea of
1-11 guilty or plea of nolo contendere, hearing the evidence, and
1-12 finding that it substantiates the defendant's guilt, defer further
1-13 proceedings without entering an adjudication of guilt, and place
1-14 the defendant on community supervision. A judge may place on
1-15 community supervision under this section a defendant charged with
1-16 an offense under Section 21.11, 22.011, or 22.021, Penal Code,
1-17 committed against a victim younger than 17 years of age at the
1-18 time of the commission of the offense, only if the judge makes a
1-19 finding in open court that placing the defendant on community
1-20 supervision is in the best interest of the victim. After placing
1-21 the defendant on community supervision under this section, the
1-22 judge shall inform the defendant orally or in writing of the
1-23 possible consequences under Subsection (b) of this section of a
1-24 violation of community supervision. If the information is provided
2-1 orally, the judge must record and maintain the judge's statement to
2-2 the defendant. The failure of a judge to inform a defendant of
2-3 possible consequences under Subsection (b) of this section is not a
2-4 ground for reversal unless the defendant shows that he was harmed
2-5 by the failure of the judge to provide the information. In a
2-6 felony case and except as otherwise provided by this subsection,
2-7 the period of community supervision may not exceed 10 years. For a
2-8 defendant charged with a felony under Section 21.11, 22.011, or
2-9 22.021, Penal Code, regardless of the age of the victim, and for a
2-10 defendant charged with a felony described by Section 13B(b) of this
2-11 article, the period of community supervision may not be less than
2-12 five years or more than 20 years. In a misdemeanor case, the
2-13 period of community supervision may not exceed two years. A judge
2-14 may increase the maximum period of community supervision in the
2-15 manner provided by Section 22(c) of this article. The judge may
2-16 impose a fine applicable to the offense and require any reasonable
2-17 conditions of community supervision, including mental health
2-18 treatment under Section 11(d) of this article, that a judge could
2-19 impose on a defendant placed on community supervision for a
2-20 conviction that was probated and suspended, including confinement.
2-21 The provisions of Section 15 of this article specifying whether a
2-22 defendant convicted of a state jail felony is to be confined in a
2-23 county jail or state jail felony facility and establishing the
2-24 minimum and maximum terms of confinement as a condition of
2-25 community supervision apply in the same manner to a defendant
2-26 placed on community supervision after pleading guilty or nolo
2-27 contendere to a state jail felony. However, upon written motion of
3-1 the defendant requesting final adjudication filed within 30 days
3-2 after entering such plea and the deferment of adjudication, the
3-3 judge shall proceed to final adjudication as in all other cases.
3-4 (c) On expiration of a community supervision period imposed
3-5 under Subsection (a) of this section, if the judge has not
3-6 proceeded to adjudication of guilt, the judge shall dismiss the
3-7 proceedings against the defendant and discharge him. The judge may
3-8 dismiss the proceedings and discharge a defendant, other than a
3-9 defendant charged with an offense described by Section 13B(b) of
3-10 this article, prior to the expiration of the term of community
3-11 supervision if in the judge's opinion the best interest of society
3-12 and the defendant will be served. The judge may dismiss the
3-13 proceedings and discharge a defendant charged with a felony
3-14 described by Section 13B(b) of this article only if in the judge's
3-15 opinion the best interest of society and the defendant will be
3-16 served and the defendant has successfully completed at least
3-17 two-thirds of the period of community supervision. Except as
3-18 provided by Section 12.42(g), Penal Code, a [A] dismissal and
3-19 discharge under this section may not be deemed a conviction for the
3-20 purposes of disqualifications or disabilities imposed by law for
3-21 conviction of an offense. For any defendant who receives a
3-22 dismissal and discharge under this section[, except that]:
3-23 (1) upon conviction of a subsequent offense, the fact
3-24 that the defendant had previously received community supervision
3-25 with a deferred adjudication of guilt shall be admissible before
3-26 the court or jury to be considered on the issue of penalty;
3-27 (2) if the defendant is an applicant for a license or
4-1 is a licensee under Chapter 42, Human Resources Code, the Texas
4-2 Department of Human Services may consider the fact that the
4-3 defendant previously has received community supervision with a
4-4 deferred adjudication of guilt under this section in issuing,
4-5 renewing, denying, or revoking a license under that chapter; and
4-6 (3) if the defendant is a person who has applied for
4-7 registration to provide mental health or medical services for the
4-8 rehabilitation of sex offenders, the Interagency Council on Sex
4-9 Offender Treatment may consider the fact that the defendant has
4-10 received community supervision under this section in issuing,
4-11 renewing, denying, or revoking a license or registration issued by
4-12 that council.
4-13 SECTION 2. Section 3.03(b), Penal Code, is amended to read
4-14 as follows:
4-15 (b) If the accused is found guilty of more than one offense
4-16 arising out of the same criminal episode, the sentences may run
4-17 concurrently or consecutively if each sentence is for a conviction
4-18 of:
4-19 (1) an offense:
4-20 (A) under Section 49.08; or
4-21 (B) [(2) an offense] for which a plea agreement
4-22 was reached in a case in which the accused was charged with more
4-23 than one offense under Section 49.08; or
4-24 (2) an offense:
4-25 (A) under Section 21.11, 22.011, 22.021, 25.02,
4-26 or 43.25, committed against a victim younger than 17 years of age
4-27 at the time of the commission of the offense, and regardless of
5-1 whether the accused is convicted of violations of the same section
5-2 more than once or is convicted of violations of more than one
5-3 section; or
5-4 (B) for which a plea agreement was reached in a
5-5 case in which the accused was charged with more than one offense
5-6 listed in Paragraph (A), committed against a victim younger than 17
5-7 years of age at the time of the commission of the offense, and
5-8 regardless of whether the accused is charged with violations of the
5-9 same section more than once or is charged with violations of more
5-10 than one section.
5-11 SECTION 3. Section 3.04, Penal Code, is amended by adding
5-12 Subsection (c) to read as follows:
5-13 (c) The right to severance under this section does not apply
5-14 to a prosecution for offenses described by Section 3.03(b)(2)
5-15 unless the court determines that the defendant or the state would
5-16 be unfairly prejudiced by a joinder of offenses, in which event the
5-17 judge may order the offenses to be tried separately or may order
5-18 other relief as justice requires.
5-19 SECTION 4. Section 12.42, Penal Code, is amended by adding
5-20 Subsection (g) to read as follows:
5-21 (g) For the purposes of Subsection (d)(2):
5-22 (1) a defendant has been previously convicted of an
5-23 offense listed under Subsection (d)(2)(B) if the defendant was
5-24 adjudged guilty of the offense or entered a plea of guilty or nolo
5-25 contendere in return for a grant of deferred adjudication,
5-26 regardless of whether the sentence for the offense was ever imposed
5-27 or whether the sentence was probated and the defendant was
6-1 subsequently discharged from community supervision; and
6-2 (2) a conviction under the laws of another state for
6-3 an offense containing elements that are substantially similar to
6-4 the elements of an offense listed under Subsection (d)(2)(B) is a
6-5 conviction of an offense listed under Subsection (d)(2)(B).
6-6 SECTION 5. (a) The change in law made by this Act applies
6-7 only to an offense committed on or after the effective date of this
6-8 Act. For purposes of this section, an offense is committed before
6-9 the effective date of this Act if any element of the offense occurs
6-10 before the effective date.
6-11 (b) An offense committed before the effective date of this
6-12 Act is covered by the law in effect when the offense was committed,
6-13 and the former law is continued in effect for that purpose.
6-14 SECTION 6. This Act takes effect September 1, 1997.
6-15 SECTION 7. The importance of this legislation and the
6-16 crowded condition of the calendars in both houses create an
6-17 emergency and an imperative public necessity that the
6-18 constitutional rule requiring bills to be read on three several
6-19 days in each house be suspended, and this rule is hereby suspended.