By Shapiro                                       S.B. No. 381

      75R3588 GWK-D                           

                                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.

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

 1-6           SECTION 1.  Sections 5(a), (c), and (d), Article 42.12, Code

 1-7     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), 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           (d)  In all other cases the judge may grant deferred

4-14     adjudication unless:

4-15                 (1)  the defendant is charged with an offense:

4-16                       (A) [(1)]  under Section 49.04, 49.05, 49.06,

4-17     49.07, or 49.08, Penal Code; or

4-18                       (B) [(2)]  for which punishment may be increased

4-19     under Section 481.134(c), (d), (e), or (f), Health and Safety Code,

4-20     if it is shown that the defendant has been previously convicted of

4-21     an offense for which punishment was increased under any one of

4-22     those subsections; or

4-23                 (2)  the defendant:

4-24                       (A)  is charged with an offense under Section

4-25     21.11, 22.011, or 22.021, Penal Code, regardless of the age of the

4-26     victim, or a felony described by Section 13B(b); and

4-27                       (B)  has previously been placed on community

 5-1     supervision under this section for any offense.

 5-2           SECTION 2.  Section 12.42, Penal Code, is amended by adding

 5-3     Subsection (g) to read as follows:

 5-4           (g)  For the purposes of Subsection (d)(2), a defendant has

 5-5     been previously convicted of an offense listed under Subsection

 5-6     (d)(2)(B) if the defendant was adjudged guilty of the offense or

 5-7     entered a plea of guilty or nolo contendere in return for a grant

 5-8     of deferred adjudication,  regardless of whether the sentence for

 5-9     the offense was ever imposed or whether the sentence was probated

5-10     and the defendant was subsequently discharged from community

5-11     supervision.

5-12           SECTION 3.  Section 3(e), Article 6252-13c.1, Revised

5-13     Statutes, is amended to read as follows:

5-14           (e)  Not later than the eighth day after receiving a

5-15     registration form under Subsection (b), (c), or (d) of this

5-16     section, the local law enforcement authority shall verify the age

5-17     of the victim and the basis on which the person is subject to

5-18     registration under this article.  If the victim is a child younger

5-19     than 17 years of age and the basis on which the person is subject

5-20     to registration is not an adjudication of delinquent conduct [or a

5-21     deferred adjudication] and is not a conviction  or a deferred

5-22     adjudication for an offense under  Section 25.02, Penal Code, the

5-23     authority shall immediately publish notice in English and Spanish

5-24     in at least one newspaper of general circulation in the county in

5-25     which the person subject to registration intends to reside.  The

5-26     authority shall publish a duplicate notice in the newspaper, with

5-27     any necessary corrections, during the week immediately following

 6-1     the week of initial publication.  If the victim is a child younger

 6-2     than 17 years of age, regardless of the basis on which the person

 6-3     is subject to registration, the authority shall immediately provide

 6-4     notice to the superintendent of public schools of the school

 6-5     district in which the person subject to registration intends to

 6-6     reside by mail to the district office.

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

 6-8     Statutes, is amended to read as follows:

 6-9           (f)  If the person moves to another municipality or county in

6-10     this state, the department shall inform the applicable local law

6-11     enforcement authority in the new area of the person's residence not

6-12     later than the third day after the date on which the department

6-13     receives information under Subsection (a) of this section.  Not

6-14     later than the eighth day after the date on which the local law

6-15     enforcement authority is informed under Subsection (a) of this

6-16     section or under this subsection, the authority shall verify the

6-17     age of the victim and the basis on which the person is subject to

6-18     registration under this article.  If the victim is a child younger

6-19     than 17 years of age and the basis on which the person is subject

6-20     to registration is not an adjudication of delinquent conduct [or a

6-21     deferred  adjudication] and is not a conviction or a deferred

6-22     adjudication for an offense under  Section 25.02, Penal Code, the

6-23     authority shall  immediately publish notice in English and Spanish

6-24     in at least one newspaper of general circulation in the county in

6-25     which the person subject to registration intends to reside.  The

6-26     local law enforcement authority shall publish a duplicate notice in

6-27     the newspaper, with any necessary corrections, during the week

 7-1     immediately following the week of initial publication.  If the

 7-2     victim is a child younger than 17 years of age, regardless of the

 7-3     basis on which the person is subject to registration, the authority

 7-4     shall immediately provide notice to the superintendent of public

 7-5     schools of the school district in which the person subject to

 7-6     registration intends to reside by mail to the district office.

 7-7           SECTION 5.  (a)  The change in law made by this Act applies

 7-8     only to an offense committed on or after the effective date of this

 7-9     Act.  For purposes of this section, an offense is committed before

7-10     the effective date of this Act if any element of the offense occurs

7-11     before the effective date.

7-12           (b)  An offense committed before the effective date of this

7-13     Act is covered by the law in effect when the offense was committed,

7-14     and the former law is continued in effect for that purpose.

7-15           SECTION 6.  This Act takes effect September 1, 1997.

7-16           SECTION 7.  The importance of this legislation and the

7-17     crowded condition of the calendars in both houses create an

7-18     emergency and an imperative public necessity that the

7-19     constitutional rule requiring bills to be read on three several

7-20     days in each house be suspended, and this rule is hereby suspended.