75R13641 GWK-F                          

         By Shapiro                                             S.B. No. 381

         Substitute the following for S.B. No. 381:

         By Talton                                          C.S.S.B. No. 381

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the civil and criminal consequences of a grant of

 1-3     deferred adjudication for a sexual offense or a sexually assaultive

 1-4     offense and to the prosecution of certain defendants charged with

 1-5     or convicted of those offenses.

 1-6           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-7           SECTION 1.  Subsections (a) and (c), Section 5, Article

 1-8     42.12, Code of Criminal Procedure, are amended to read as follows:

 1-9           (a)  Except as provided by Subsection (d) of this section,

1-10     when in the judge's opinion the best interest of society and the

1-11     defendant will be served, the judge may, after receiving a plea of

1-12     guilty or plea of nolo contendere, hearing the evidence, and

1-13     finding that it substantiates the defendant's guilt, defer further

1-14     proceedings without entering an adjudication of guilt, and place

1-15     the defendant on community supervision.  A judge may place on

1-16     community supervision under this section a defendant charged with

1-17     an offense under Section 21.11, 22.011, or 22.021, Penal Code,

1-18     regardless of the age of the victim, or a defendant charged with a

1-19     felony described by Section 13B(b), only if the judge makes a

1-20     finding in open court that placing the defendant on community

1-21     supervision is in the best interest of the victim.  After placing

1-22     the defendant on community supervision under this section, the

1-23     judge shall inform the defendant orally or in writing of the

1-24     possible consequences under Subsection (b) of this section of a

 2-1     violation of community supervision.  If the information is provided

 2-2     orally, the judge must record and maintain the judge's statement to

 2-3     the defendant.  The failure of a judge to inform a defendant of

 2-4     possible consequences under Subsection (b) of this section is not a

 2-5     ground for reversal unless the defendant shows that he was harmed

 2-6     by the failure of the judge to provide the information.  In a

 2-7     felony case, the period of community supervision may not exceed 10

 2-8     years.  For a defendant charged with a felony under Section 21.11,

 2-9     22.011, or 22.021, Penal Code, regardless of the age of the victim,

2-10     and for a defendant charged with a felony described by Section

2-11     13B(b) of this article, the period of community supervision may not

2-12     be less than five years.  In a misdemeanor case, the period of

2-13     community supervision may not exceed two years.  A judge may

2-14     increase the maximum period of community supervision in the manner

2-15     provided by Section 22(c) of this article.  The judge may impose a

2-16     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.  Subsection (b), Section 3.03, Penal Code, is

4-14     amended to read 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 at

4-27     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.  Subsection (e), Section 3, Article 6252-13c.1,

 6-7     Revised Statutes, is amended to read as follows:

 6-8           (e)  Not later than the eighth day after receiving a

 6-9     registration form under Subsection (b), (c), or (d) of this

6-10     section, the local law enforcement authority shall verify the age

6-11     of the victim and the basis on which the person is subject to

6-12     registration under this article.  If the victim is a child younger

6-13     than 17 years of age and the basis on which the person is subject

6-14     to registration is not an adjudication of delinquent conduct [or a

6-15     deferred adjudication] and is not a conviction  or a deferred

6-16     adjudication for an offense under  Section 25.02, Penal Code, the

6-17     authority shall immediately publish notice in English and Spanish

6-18     in at least one newspaper of general circulation in the county in

6-19     which the person subject to registration intends to reside.  The

6-20     authority shall publish a duplicate notice in the newspaper, with

6-21     any necessary corrections, during the week immediately following

6-22     the week of initial publication.  If the victim is a child younger

6-23     than 17 years of age, regardless of the basis on which the person

6-24     is subject to registration, the authority shall immediately provide

6-25     notice to the superintendent of public schools of the school

6-26     district in which the person subject to registration intends to

6-27     reside by mail to the district office.

 7-1           SECTION 6.  Subsection (f), Section 4, Article 6252-13c.1,

 7-2     Revised Statutes, is amended to read as follows:

 7-3           (f)  If the person moves to another municipality or county in

 7-4     this state, the department shall inform the applicable local law

 7-5     enforcement authority in the new area of the person's residence not

 7-6     later than the third day after the date on which the department

 7-7     receives information under Subsection (a) of this section.  Not

 7-8     later than the eighth day after the date on which the local law

 7-9     enforcement authority is informed under Subsection (a) of this

7-10     section or under this subsection, the authority shall verify the

7-11     age of the victim and the basis on which the person is subject to

7-12     registration under this article.  If the victim is a child younger

7-13     than 17 years of age and the basis on which the person is subject

7-14     to registration is not an adjudication of delinquent conduct [or a

7-15     deferred adjudication] and is not a conviction or a deferred

7-16     adjudication for an offense under Section 25.02, Penal Code, the

7-17     authority shall immediately publish notice in English and Spanish

7-18     in at least one newspaper of general circulation in the county in

7-19     which the person subject to registration intends to reside.  The

7-20     local law enforcement authority shall publish a duplicate notice in

7-21     the newspaper, with any necessary corrections, during the week

7-22     immediately following the week of initial publication.  If the

7-23     victim is a child younger than 17 years of age, regardless of the

7-24     basis on which the person is subject to registration, the authority

7-25     shall immediately provide notice to the superintendent of public

7-26     schools of the school district in which the person subject to

7-27     registration intends to reside by mail to the district office.

 8-1           SECTION 7.  (a)  The change in law made by this Act applies

 8-2     only to an offense committed on or after the effective date of this

 8-3     Act.  For purposes of this section, an offense is committed before

 8-4     the effective date of this Act if any element of the offense occurs

 8-5     before the effective date.

 8-6           (b)  An offense committed before the effective date of this

 8-7     Act is covered by the law in effect when the offense was committed,

 8-8     and the former law is continued in effect for that purpose.

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

8-10           SECTION 9.  The importance of this legislation and the

8-11     crowded condition of the calendars in both houses create an

8-12     emergency and an imperative public necessity that the

8-13     constitutional rule requiring bills to be read on three several

8-14     days in each house be suspended, and this rule is hereby suspended.