By:  Shapiro, Harris                                   S.B. No. 381

                                A BILL TO BE ENTITLED

                                       AN ACT

 1-1     relating to the civil and criminal consequences of a grant of

 1-2     deferred adjudication for a sexual offense or a sexually assaultive

 1-3     offense and to the prosecution of certain defendants charged with

 1-4     or convicted of those offenses.

 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-6           SECTION 1.  Subsections (a), (c), and (d), Section 5, Article

 1-7     42.12, Code of 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     regardless of the age of the victim, or a defendant charged with a

1-18     felony described by Section 13B(b) of this article, only if the

1-19     judge makes a finding in open court that placing the defendant on

1-20     community supervision is in the best interest of the victim.  The

1-21     failure of the judge to find that deferred adjudication is in the

1-22     best interest of the victim is not grounds for the defendant to set

1-23     aside the plea, deferred adjudication, or any subsequent conviction

 2-1     or sentence.  After placing the defendant on community supervision

 2-2     under this section, the judge shall inform the defendant orally or

 2-3     in writing of the possible consequences under Subsection (b) of

 2-4     this section of a violation of community supervision.  If the

 2-5     information is provided orally, the judge must record and maintain

 2-6     the judge's statement to the defendant.  The failure of a judge to

 2-7     inform a defendant of possible consequences under Subsection (b) of

 2-8     this section is not a ground for reversal unless the defendant

 2-9     shows that he was harmed by the failure of the judge to provide the

2-10     information.  In a felony case, except as otherwise provided by

2-11     this subsection, the period of community supervision may not exceed

2-12     10 years.  For a defendant charged with a felony under Section

2-13     21.11, 22.011, or 22.021, Penal Code, regardless of the age of the

2-14     victim, and for a defendant charged with a felony described by

2-15     Section 13B(b) of this article, the period of community supervision

2-16     may not be less than five years or more than 20 years.  In a

2-17     misdemeanor case, the period of community supervision may not

2-18     exceed two years.  A judge may increase the maximum period of

2-19     community supervision in the manner provided by Section 22(c) of

2-20     this article.  The judge may impose a fine applicable to the

2-21     offense and require any reasonable conditions of community

2-22     supervision, including mental health treatment under Section 11(d)

2-23     of this article, that a judge could impose on a defendant placed on

2-24     community supervision for a conviction that was probated and

2-25     suspended, including confinement.  The provisions of Section 15 of

 3-1     this article specifying whether a defendant convicted of a state

 3-2     jail felony is to be confined in a county jail or state jail felony

 3-3     facility and establishing the minimum and maximum terms of

 3-4     confinement as a condition of community supervision apply in the

 3-5     same manner to a defendant placed on community supervision after

 3-6     pleading guilty or nolo contendere to a state jail felony.

 3-7     However, upon written motion of the defendant requesting final

 3-8     adjudication filed within 30 days after entering such plea and the

 3-9     deferment of adjudication, the judge shall proceed to final

3-10     adjudication as in all other cases.

3-11           (c)  On expiration of a community supervision period imposed

3-12     under Subsection (a) of this section, if the judge has not

3-13     proceeded to adjudication of guilt, the judge shall dismiss the

3-14     proceedings against the defendant and discharge him.  The judge may

3-15     dismiss the proceedings and discharge a defendant, other than a

3-16     defendant charged with an offense described by Section 13B(b) of

3-17     this article, prior to the expiration of the term of community

3-18     supervision if in the judge's opinion the best interest of society

3-19     and the defendant will be served.  The judge may dismiss the

3-20     proceedings and discharge a defendant charged with a felony

3-21     described by Section 13B(b) of this article only if in the judge's

3-22     opinion the best interest of society and the defendant will be

3-23     served and the defendant has successfully completed at least

3-24     two-thirds of the period of community supervision.  Except as

3-25     provided by Section 12.42(g), Penal Code, a [A] dismissal and

 4-1     discharge under this section may not be deemed a conviction for the

 4-2     purposes of disqualifications or disabilities imposed by law for

 4-3     conviction of an offense.  For any defendant who receives a

 4-4     dismissal and discharge under this section[, except that]:

 4-5                 (1)  upon conviction of a subsequent offense, the fact

 4-6     that the defendant had previously received community supervision

 4-7     with a deferred adjudication of guilt shall be admissible before

 4-8     the court or jury to be considered on the issue of penalty;

 4-9                 (2)  if the defendant is an applicant for a license or

4-10     is a licensee under Chapter 42, Human Resources Code, the Texas

4-11     Department of Human Services may consider the fact that the

4-12     defendant previously has received community supervision with a

4-13     deferred adjudication of guilt under this section in issuing,

4-14     renewing, denying, or revoking a license under that chapter; and

4-15                 (3)  if the defendant is a person who has applied for

4-16     registration to provide mental health or medical services for the

4-17     rehabilitation of sex offenders, the Interagency Council on Sex

4-18     Offender Treatment may consider the fact that the defendant has

4-19     received community supervision under this section in issuing,

4-20     renewing, denying, or revoking a license or registration issued by

4-21     that council.

4-22           (d)  In all other cases the judge may grant deferred

4-23     adjudication unless:

4-24                 (1)  the defendant is charged with an offense:

4-25                       (A) [(1)]  under Section 49.04, 49.05, 49.06,

 5-1     49.07, or 49.08, Penal Code; or

 5-2                       (B) [(2)]  for which punishment may be increased

 5-3     under Section 481.134(c), (d), (e), or (f), Health and Safety Code,

 5-4     if it is shown that the defendant has been previously convicted of

 5-5     an offense for which punishment was increased under any one of

 5-6     those subsections; or

 5-7                 (2)  the defendant:

 5-8                       (A)  is charged with an offense under Section

 5-9     21.11, 22.011, or 22.021, Penal Code, regardless of the age of the

5-10     victim, or a felony described by Section 13B(b) of this article;

5-11     and

5-12                       (B)  has previously been placed on community

5-13     supervision for any offense under Paragraph (A) of this

5-14     subdivision.

5-15           SECTION 2.  Subsection (b), Section 3.03, Penal Code, is

5-16     amended to read as follows:

5-17           (b)  If the accused is found guilty of more than one offense

5-18     arising out of the same criminal episode, the sentences may run

5-19     concurrently or consecutively if each sentence is for a conviction

5-20     of:

5-21                 (1)  an offense:

5-22                       (A)  under Section 49.08; or

5-23                       (B) [(2)  an offense] for which a plea agreement

5-24     was reached in a case in which the accused was charged with more

5-25     than one offense under Section 49.08; or

 6-1                 (2)  an offense:

 6-2                       (A)  under Section 21.11, 22.011, 22.021, 25.02,

 6-3     or 43.25 committed against a victim younger than 17 years of age at

 6-4     the time of the commission of the offense regardless of whether the

 6-5     accused is convicted of violations of the same section more than

 6-6     once or is convicted of violations of more than one section; or

 6-7                       (B)  for which a plea agreement was reached in a

 6-8     case in which the accused was charged with more than one offense

 6-9     listed in Paragraph (A) committed against a victim younger than 17

6-10     years of age at the time of the commission of the offense

6-11     regardless of whether the accused is charged with violations of the

6-12     same section more than once or is charged with violations of more

6-13     than one section.

6-14           SECTION 3.  Section 3.04, Penal Code, is amended by adding

6-15     Subsection (c) to read as follows:

6-16           (c)  The right to severance under this section does not apply

6-17     to a prosecution for offenses described by Section 3.03(b)(2)

6-18     unless the court determines that the defendant or the state would

6-19     be unfairly prejudiced by a joinder of offenses, in which event the

6-20     judge may order the offenses to be tried separately or may order

6-21     other relief as justice requires.

6-22           SECTION 4.  Section 12.42, Penal Code, is amended by adding

6-23     Subsection (g) to read as follows:

6-24           (g)  For the purposes of Subsection (d)(2):

6-25                 (1)  a defendant has been previously convicted of an

 7-1     offense listed under Subsection (d)(2)(B) if the defendant was

 7-2     adjudged guilty of the offense or entered a plea of guilty or nolo

 7-3     contendere in return for a grant of deferred adjudication,

 7-4     regardless of whether the sentence for the offense was ever imposed

 7-5     or whether the sentence was probated and the defendant was

 7-6     subsequently discharged from community supervision; and

 7-7                 (2)  a conviction under the laws of another state for

 7-8     an offense containing elements that are substantially similar to

 7-9     the elements of an offense listed under Subsection (d)(2)(B) is a

7-10     conviction of an offense listed under Subsection (d)(2)(B).

7-11           SECTION 5.  Subsection (e), Section 3, Article 6252-13c.1,

7-12     Revised Statutes, is amended to read as follows:

7-13           (e)  Not later than the eighth day after receiving a

7-14     registration form under Subsection (b), (c), or (d) of this

7-15     section, the local law enforcement authority shall verify the age

7-16     of the victim and the basis on which the person is subject to

7-17     registration under this article.  If the victim is a child younger

7-18     than 17 years of age and the basis on which the person is subject

7-19     to registration is not an adjudication of delinquent conduct [or a

7-20     deferred adjudication] and is not a conviction  or a deferred

7-21     adjudication for an offense under  Section 25.02, Penal Code, the

7-22     authority shall immediately publish notice in English and Spanish

7-23     in at least one newspaper of general circulation in the county in

7-24     which the person subject to registration intends to reside.  The

7-25     authority shall publish a duplicate notice in the newspaper, with

 8-1     any necessary corrections, during the week immediately following

 8-2     the week of initial publication.  If the victim is a child younger

 8-3     than 17 years of age, regardless of the basis on which the person

 8-4     is subject to registration, the authority shall immediately provide

 8-5     notice to the superintendent of public schools of the school

 8-6     district in which the person subject to registration intends to

 8-7     reside by mail to the district office.

 8-8           SECTION 6.  Subsection (f), Section 4, Article 6252-13c.1,

 8-9     Revised Statutes, is amended to read as follows:

8-10           (f)  If the person moves to another municipality or county in

8-11     this state, the department shall inform the applicable local law

8-12     enforcement authority in the new area of the person's residence not

8-13     later than the third day after the date on which the department

8-14     receives information under Subsection (a) of this section.  Not

8-15     later than the eighth day after the date on which the local law

8-16     enforcement authority is informed under Subsection (a) of this

8-17     section or under this subsection, the authority shall verify the

8-18     age of the victim and the basis on which the person is subject to

8-19     registration under this article.  If the victim is a child younger

8-20     than 17 years of age and the basis on which the person is subject

8-21     to registration is not an adjudication of delinquent conduct [or a

8-22     deferred adjudication] and is not a conviction or a deferred

8-23     adjudication for an offense under Section 25.02, Penal Code, the

8-24     authority shall immediately publish notice in English and Spanish

8-25     in at least one newspaper of general circulation in the county in

 9-1     which the person subject to registration intends to reside.  The

 9-2     local law enforcement authority shall publish a duplicate notice in

 9-3     the newspaper, with any necessary corrections, during the week

 9-4     immediately following the week of initial publication.  If the

 9-5     victim is a child younger than 17 years of age, regardless of the

 9-6     basis on which the person is subject to registration, the authority

 9-7     shall immediately provide notice to the superintendent of public

 9-8     schools of the school district in which the person subject to

 9-9     registration intends to reside by mail to the district office.

9-10           SECTION 7.  (a)  The change in law made by this Act applies

9-11     only to an offense committed on or after the effective date of this

9-12     Act.  For purposes of this section, an offense is committed before

9-13     the effective date of this Act if any element of the offense occurs

9-14     before the effective date.

9-15           (b)  An offense committed before the effective date of this

9-16     Act is covered by the law in effect when the offense was committed,

9-17     and the former law is continued in effect for that purpose.

9-18           SECTION 8.  This Act takes effect September 1, 1997.

9-19           SECTION 9.  The importance of this legislation and the

9-20     crowded condition of the calendars in both houses create an

9-21     emergency and an imperative public necessity that the

9-22     constitutional rule requiring bills to be read on three several

9-23     days in each house be suspended, and this rule is hereby suspended.