1-1 By: Shapiro S.B. No. 381
1-2 (In the Senate - Filed January 29, 1997; February 3, 1997,
1-3 read first time and referred to Committee on Criminal Justice;
1-4 April 1, 1997, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 6, Nays 0; April 1, 1997,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 381 By: Shapiro
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the civil and criminal consequences of a grant of
1-11 deferred adjudication for a sexual offense or a sexually assaultive
1-12 offense and to the prosecution of certain defendants charged with
1-13 or convicted of those offenses.
1-14 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-15 SECTION 1. Subsections (a), (c), and (d), Section 5, Article
1-16 42.12, Code of Criminal Procedure, are amended to read as follows:
1-17 (a) Except as provided by Subsection (d) of this section,
1-18 when in the judge's opinion the best interest of society and the
1-19 defendant will be served, the judge may, after receiving a plea of
1-20 guilty or plea of nolo contendere, hearing the evidence, and
1-21 finding that it substantiates the defendant's guilt, defer further
1-22 proceedings without entering an adjudication of guilt, and place
1-23 the defendant on community supervision. A judge may place on
1-24 community supervision under this section a defendant charged with
1-25 an offense under Section 21.11, 22.011, or 22.021, Penal Code,
1-26 regardless of the age of the victim, or a defendant charged with a
1-27 felony described by Section 13B(b) of this article, only if the
1-28 judge makes a finding in open court that placing the defendant on
1-29 community supervision is in the best interest of the victim. The
1-30 failure of the judge to find that deferred adjudication is in the
1-31 best interest of the victim is not grounds for the defendant to set
1-32 aside the plea, deferred adjudication, or any subsequent conviction
1-33 or sentence. After placing the defendant on community supervision
1-34 under this section, the judge shall inform the defendant orally or
1-35 in writing of the possible consequences under Subsection (b) of
1-36 this section of a violation of community supervision. If the
1-37 information is provided orally, the judge must record and maintain
1-38 the judge's statement to the defendant. The failure of a judge to
1-39 inform a defendant of possible consequences under Subsection (b) of
1-40 this section is not a ground for reversal unless the defendant
1-41 shows that he was harmed by the failure of the judge to provide the
1-42 information. In a felony case, except as otherwise provided by
1-43 this subsection, the period of community supervision may not exceed
1-44 10 years. For a defendant charged with a felony under Section
1-45 21.11, 22.011, or 22.021, Penal Code, regardless of the age of the
1-46 victim, and for a defendant charged with a felony described by
1-47 Section 13B(b) of this article, the period of community supervision
1-48 may not be less than five years or more than 20 years. In a
1-49 misdemeanor case, the period of community supervision may not
1-50 exceed two years. A judge may increase the maximum period of
1-51 community supervision in the manner provided by Section 22(c) of
1-52 this article. The judge may impose a fine applicable to the
1-53 offense and require any reasonable conditions of community
1-54 supervision, including mental health treatment under Section 11(d)
1-55 of this article, that a judge could impose on a defendant placed on
1-56 community supervision for a conviction that was probated and
1-57 suspended, including confinement. The provisions of Section 15 of
1-58 this article specifying whether a defendant convicted of a state
1-59 jail felony is to be confined in a county jail or state jail felony
1-60 facility and establishing the minimum and maximum terms of
1-61 confinement as a condition of community supervision apply in the
1-62 same manner to a defendant placed on community supervision after
1-63 pleading guilty or nolo contendere to a state jail felony.
1-64 However, upon written motion of the defendant requesting final
2-1 adjudication filed within 30 days after entering such plea and the
2-2 deferment of adjudication, the judge shall proceed to final
2-3 adjudication as in all other cases.
2-4 (c) On expiration of a community supervision period imposed
2-5 under Subsection (a) of this section, if the judge has not
2-6 proceeded to adjudication of guilt, the judge shall dismiss the
2-7 proceedings against the defendant and discharge him. The judge may
2-8 dismiss the proceedings and discharge a defendant, other than a
2-9 defendant charged with an offense described by Section 13B(b) of
2-10 this article, prior to the expiration of the term of community
2-11 supervision if in the judge's opinion the best interest of society
2-12 and the defendant will be served. The judge may dismiss the
2-13 proceedings and discharge a defendant charged with a felony
2-14 described by Section 13B(b) of this article only if in the judge's
2-15 opinion the best interest of society and the defendant will be
2-16 served and the defendant has successfully completed at least
2-17 two-thirds of the period of community supervision. Except as
2-18 provided by Section 12.42(g), Penal Code, a [A] dismissal and
2-19 discharge under this section may not be deemed a conviction for the
2-20 purposes of disqualifications or disabilities imposed by law for
2-21 conviction of an offense. For any defendant who receives a
2-22 dismissal and discharge under this section[, except that]:
2-23 (1) upon conviction of a subsequent offense, the fact
2-24 that the defendant had previously received community supervision
2-25 with a deferred adjudication of guilt shall be admissible before
2-26 the court or jury to be considered on the issue of penalty;
2-27 (2) if the defendant is an applicant for a license or
2-28 is a licensee under Chapter 42, Human Resources Code, the Texas
2-29 Department of Human Services may consider the fact that the
2-30 defendant previously has received community supervision with a
2-31 deferred adjudication of guilt under this section in issuing,
2-32 renewing, denying, or revoking a license under that chapter; and
2-33 (3) if the defendant is a person who has applied for
2-34 registration to provide mental health or medical services for the
2-35 rehabilitation of sex offenders, the Interagency Council on Sex
2-36 Offender Treatment may consider the fact that the defendant has
2-37 received community supervision under this section in issuing,
2-38 renewing, denying, or revoking a license or registration issued by
2-39 that council.
2-40 (d) In all other cases the judge may grant deferred
2-41 adjudication unless:
2-42 (1) the defendant is charged with an offense:
2-43 (A) [(1)] under Section 49.04, 49.05, 49.06,
2-44 49.07, or 49.08, Penal Code; or
2-45 (B) [(2)] for which punishment may be increased
2-46 under Section 481.134(c), (d), (e), or (f), Health and Safety Code,
2-47 if it is shown that the defendant has been previously convicted of
2-48 an offense for which punishment was increased under any one of
2-49 those subsections; or
2-50 (2) the defendant:
2-51 (A) is charged with an offense under Section
2-52 21.11, 22.011, or 22.021, Penal Code, regardless of the age of the
2-53 victim, or a felony described by Section 13B(b) of this article;
2-54 and
2-55 (B) has previously been placed on community
2-56 supervision for any offense under Paragraph (A) of this
2-57 subdivision.
2-58 SECTION 2. Subsection (b), Section 3.03, Penal Code, is
2-59 amended to read as follows:
2-60 (b) If the accused is found guilty of more than one offense
2-61 arising out of the same criminal episode, the sentences may run
2-62 concurrently or consecutively if each sentence is for a conviction
2-63 of:
2-64 (1) an offense:
2-65 (A) under Section 49.08; or
2-66 (B) [(2) an offense] for which a plea agreement
2-67 was reached in a case in which the accused was charged with more
2-68 than one offense under Section 49.08; or
2-69 (2) an offense:
3-1 (A) under Section 21.11, 22.011, 22.021, 25.02,
3-2 or 43.25 committed against a victim younger than 17 years of age at
3-3 the time of the commission of the offense regardless of whether the
3-4 accused is convicted of violations of the same section more than
3-5 once or is convicted of violations of more than one section; or
3-6 (B) for which a plea agreement was reached in a
3-7 case in which the accused was charged with more than one offense
3-8 listed in Paragraph (A) committed against a victim younger than 17
3-9 years of age at the time of the commission of the offense
3-10 regardless of whether the accused is charged with violations of the
3-11 same section more than once or is charged with violations of more
3-12 than one section.
3-13 SECTION 3. Section 3.04, Penal Code, is amended by adding
3-14 Subsection (c) to read as follows:
3-15 (c) The right to severance under this section does not apply
3-16 to a prosecution for offenses described by Section 3.03(b)(2)
3-17 unless the court determines that the defendant or the state would
3-18 be unfairly prejudiced by a joinder of offenses, in which event the
3-19 judge may order the offenses to be tried separately or may order
3-20 other relief as justice requires.
3-21 SECTION 4. Section 12.42, Penal Code, is amended by adding
3-22 Subsection (g) to read as follows:
3-23 (g) For the purposes of Subsection (d)(2):
3-24 (1) a defendant has been previously convicted of an
3-25 offense listed under Subsection (d)(2)(B) if the defendant was
3-26 adjudged guilty of the offense or entered a plea of guilty or nolo
3-27 contendere in return for a grant of deferred adjudication,
3-28 regardless of whether the sentence for the offense was ever imposed
3-29 or whether the sentence was probated and the defendant was
3-30 subsequently discharged from community supervision; and
3-31 (2) a conviction under the laws of another state for
3-32 an offense containing elements that are substantially similar to
3-33 the elements of an offense listed under Subsection (d)(2)(B) is a
3-34 conviction of an offense listed under Subsection (d)(2)(B).
3-35 SECTION 5. Subsection (e), Section 3, Article 6252-13c.1,
3-36 Revised Statutes, is amended to read as follows:
3-37 (e) Not later than the eighth day after receiving a
3-38 registration form under Subsection (b), (c), or (d) of this
3-39 section, the local law enforcement authority shall verify the age
3-40 of the victim and the basis on which the person is subject to
3-41 registration under this article. If the victim is a child younger
3-42 than 17 years of age and the basis on which the person is subject
3-43 to registration is not an adjudication of delinquent conduct [or a
3-44 deferred adjudication] and is not a conviction or a deferred
3-45 adjudication for an offense under Section 25.02, Penal Code, the
3-46 authority shall immediately publish notice in English and Spanish
3-47 in at least one newspaper of general circulation in the county in
3-48 which the person subject to registration intends to reside. The
3-49 authority shall publish a duplicate notice in the newspaper, with
3-50 any necessary corrections, during the week immediately following
3-51 the week of initial publication. If the victim is a child younger
3-52 than 17 years of age, regardless of the basis on which the person
3-53 is subject to registration, the authority shall immediately provide
3-54 notice to the superintendent of public schools of the school
3-55 district in which the person subject to registration intends to
3-56 reside by mail to the district office.
3-57 SECTION 6. Subsection (f), Section 4, Article 6252-13c.1,
3-58 Revised Statutes, is amended to read as follows:
3-59 (f) If the person moves to another municipality or county in
3-60 this state, the department shall inform the applicable local law
3-61 enforcement authority in the new area of the person's residence not
3-62 later than the third day after the date on which the department
3-63 receives information under Subsection (a) of this section. Not
3-64 later than the eighth day after the date on which the local law
3-65 enforcement authority is informed under Subsection (a) of this
3-66 section or under this subsection, the authority shall verify the
3-67 age of the victim and the basis on which the person is subject to
3-68 registration under this article. If the victim is a child younger
3-69 than 17 years of age and the basis on which the person is subject
4-1 to registration is not an adjudication of delinquent conduct [or a
4-2 deferred adjudication] and is not a conviction or a deferred
4-3 adjudication for an offense under Section 25.02, Penal Code, the
4-4 authority shall immediately publish notice in English and Spanish
4-5 in at least one newspaper of general circulation in the county in
4-6 which the person subject to registration intends to reside. The
4-7 local law enforcement authority shall publish a duplicate notice in
4-8 the newspaper, with any necessary corrections, during the week
4-9 immediately following the week of initial publication. If the
4-10 victim is a child younger than 17 years of age, regardless of the
4-11 basis on which the person is subject to registration, the authority
4-12 shall immediately provide notice to the superintendent of public
4-13 schools of the school district in which the person subject to
4-14 registration intends to reside by mail to the district office.
4-15 SECTION 7. (a) The change in law made by this Act applies
4-16 only to an offense committed on or after the effective date of this
4-17 Act. For purposes of this section, an offense is committed before
4-18 the effective date of this Act if any element of the offense occurs
4-19 before the effective date.
4-20 (b) An offense committed before the effective date of this
4-21 Act is covered by the law in effect when the offense was committed,
4-22 and the former law is continued in effect for that purpose.
4-23 SECTION 8. This Act takes effect September 1, 1997.
4-24 SECTION 9. The importance of this legislation and the
4-25 crowded condition of the calendars in both houses create an
4-26 emergency and an imperative public necessity that the
4-27 constitutional rule requiring bills to be read on three several
4-28 days in each house be suspended, and this rule is hereby suspended.
4-29 * * * * *