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.