1-1 By: Gallego (Senate Sponsor - Armbrister) H.B. No. 3765
1-2 (In the Senate - Received from the House May 11, 1999;
1-3 May 12, 1999, read first time and referred to Committee on Criminal
1-4 Justice; May 14, 1999, reported favorably by the following vote:
1-5 Yeas 4, Nays 0; May 14, 1999, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the rights of crime victims and to the rights of
1-9 victims of delinquent conduct committed by a child.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Article 26.13, Code of Criminal Procedure, is
1-12 amended by adding Subsection (h) to read as follows:
1-13 (h) Before entering into a plea bargaining agreement with
1-14 the defendant, the attorney representing the state shall consider
1-15 any victim impact statement regarding the offense that has been
1-16 returned to the attorney.
1-17 SECTION 2. Article 42.037, Code of Criminal Procedure, is
1-18 amended by adding Subsection (n) to read as follows:
1-19 (n) The pardons and paroles division may waive a supervision
1-20 fee or an administrative fee imposed on an inmate under Section
1-21 508.182, Government Code, during any period in which the inmate is
1-22 required to pay restitution under this article.
1-23 SECTION 3. Article 56.02, Code of Criminal Procedure, is
1-24 amended by amending Subsections (a) and (b) and adding Subsection
1-25 (e) to read as follows:
1-26 (a) A victim, guardian of a victim, or close relative of a
1-27 deceased victim is entitled to the following rights within the
1-28 criminal justice system:
1-29 (1) the right to receive from law enforcement agencies
1-30 adequate protection from harm and threats of harm arising from
1-31 cooperation with prosecution efforts;
1-32 (2) the right to have the magistrate take the safety
1-33 of the victim or his family into consideration as an element in
1-34 fixing the amount of bail for the accused;
1-35 (3) the right, if requested, to be informed by the
1-36 attorney representing the state of relevant court proceedings,
1-37 including appellate proceedings, and to be informed if those
1-38 [court] proceedings have been canceled or rescheduled prior to the
1-39 event;
1-40 (4) the right to be informed, when requested, by a
1-41 peace officer concerning the defendant's right to bail and the
1-42 procedures in criminal investigations and by the district
1-43 attorney's office concerning the general procedures in the criminal
1-44 justice system, including general procedures in guilty plea
1-45 negotiations and arrangements, restitution, and the appeals and
1-46 parole process;
1-47 (5) the right to provide pertinent information to a
1-48 probation department conducting a presentencing investigation
1-49 concerning the impact of the offense on the victim and his family
1-50 by testimony, written statement, or any other manner prior to any
1-51 sentencing of the offender;
1-52 (6) the right to receive information regarding
1-53 compensation to victims of crime as provided by Subchapter B[,
1-54 Chapter 56], including information related to the costs that may be
1-55 compensated under that subchapter [Act] and the amount of
1-56 compensation, eligibility for compensation, and procedures for
1-57 application for compensation under that subchapter [Act], the
1-58 payment for a medical examination under Article 56.06 [of this
1-59 code] for a victim of a sexual assault, and when requested, to
1-60 referral to available social service agencies that may offer
1-61 additional assistance;
1-62 (7) the right to be informed, upon request, of parole
1-63 procedures, to participate in the parole process, to be notified,
1-64 if requested, of parole proceedings concerning a defendant in the
2-1 victim's case, to provide to the Board of Pardons and Paroles for
2-2 inclusion in the defendant's file information to be considered by
2-3 the board prior to the parole of any defendant convicted of any
2-4 crime subject to this Act, and to be notified, if requested, of the
2-5 defendant's release;
2-6 (8) the right to be provided with a waiting area,
2-7 separate or secure from other witnesses, including the offender and
2-8 relatives of the offender, before testifying in any proceeding
2-9 concerning the offender; if a separate waiting area is not
2-10 available, other safeguards should be taken to minimize the
2-11 victim's contact with the offender and the offender's relatives and
2-12 witnesses, before and during court proceedings;
2-13 (9) the right to prompt return of any property of the
2-14 victim that is held by a law enforcement agency or the attorney for
2-15 the state as evidence when the property is no longer required for
2-16 that purpose;
2-17 (10) the right to have the attorney for the state
2-18 notify the employer of the victim, if requested, of the necessity
2-19 of the victim's cooperation and testimony in a proceeding that may
2-20 necessitate the absence of the victim from work for good cause;
2-21 [and]
2-22 (11) the right to counseling, on request, regarding
2-23 acquired immune deficiency syndrome (AIDS) and human
2-24 immunodeficiency virus (HIV) infection and testing for acquired
2-25 immune deficiency syndrome (AIDS), human immunodeficiency virus
2-26 (HIV) infection, antibodies to HIV, or infection with any other
2-27 probable causative agent of AIDS, if the offense is an offense
2-28 under Section 21.11(a)(1), 22.011, or 22.021, Penal Code;
2-29 (12) the right to request victim-offender mediation
2-30 coordinated by the victim services division of the Texas Department
2-31 of Criminal Justice; and
2-32 (13) the right to be informed of the uses of a victim
2-33 impact statement and the statement's purpose in the criminal
2-34 justice system, to complete the victim impact statement, and to
2-35 have the victim impact statement considered:
2-36 (A) by the attorney representing the state and
2-37 the judge before sentencing or before a plea bargain agreement is
2-38 accepted; and
2-39 (B) by the Board of Pardons and Paroles before
2-40 an inmate is released on parole.
2-41 (b) A victim, guardian of a victim, or close relative of a
2-42 deceased victim is entitled to the right to be present at all
2-43 public court proceedings related to the offense, subject to the
2-44 approval of the judge in the case.
2-45 (e) Before pronouncing sentence in a case, the court shall
2-46 require the attorney representing the state to state on the record
2-47 whether each victim, guardian of a victim, or close relative of a
2-48 deceased victim has been afforded, to the greatest extent
2-49 practicable, the rights granted by Subsection (a) of this article
2-50 that are applicable to procedures occurring before the
2-51 pronouncement of sentence.
2-52 SECTION 4. Article 56.03(e), Code of Criminal Procedure, is
2-53 amended to read as follows:
2-54 (e) Prior to the imposition of a sentence by the court in a
2-55 criminal case, the court, if it has received a victim impact
2-56 statement, shall consider the information provided in the
2-57 statement. Before sentencing the defendant, the court shall permit
2-58 the defendant or his counsel a reasonable time to read the
2-59 statement, excluding the victim's name, address, and telephone
2-60 number, comment on the statement, and, with the approval of the
2-61 court, introduce testimony or other information alleging a factual
2-62 inaccuracy in the statement. If the court sentences the defendant
2-63 to a term of community supervision [probation], the court shall
2-64 forward any victim's impact statement received in the case to the
2-65 community supervision and corrections [probation] department
2-66 supervising the defendant, along with the papers in the case.
2-67 SECTION 5. Subchapter A, Chapter 56, Code of Criminal
2-68 Procedure, is amended by adding Article 56.045 to read as follows:
2-69 Art. 56.045. RIGHT TO PRESENCE OF VICTIM ASSISTANCE
3-1 COORDINATOR, CRIME VICTIM ADVOCATE, OR OTHER REPRESENTATIVE. A
3-2 victim of a sexual assault may not be denied the opportunity to
3-3 have the victim assistance coordinator, an advocate from a crime
3-4 victim assistance program, or another representative of the
3-5 victim's choice present with the victim at any medical examination
3-6 conducted for the purpose of collecting evidence related to the
3-7 investigation or prosecution of the offense.
3-8 SECTION 6. Article 56.08, Code of Criminal Procedure, is
3-9 amended by adding Subsections (e) and (f) to read as follows:
3-10 (e) The attorney representing the state shall include in the
3-11 brief general statement required by Subsection (a)(1) an
3-12 explanation that:
3-13 (1) before entering into a plea bargaining agreement,
3-14 the attorney representing the state is required to consider any
3-15 victim impact statement regarding the offense that has been
3-16 returned to the attorney; and
3-17 (2) before accepting a plea of guilty or nolo
3-18 contendere, the court is required to:
3-19 (A) inquire as to whether a victim impact
3-20 statement has been returned to the attorney representing the state;
3-21 and
3-22 (B) if a statement has been returned, obtain a
3-23 copy of the statement.
3-24 (f) Before pronouncing sentence in a case, the court shall
3-25 require the attorney representing the state to state on the record,
3-26 unless there is no record or the record is waived, whether each
3-27 victim, guardian of a victim, or close relative of a deceased
3-28 victim has been provided the notice required by this article.
3-29 SECTION 7. Article 56.12, Code of Criminal Procedure, is
3-30 amended to read as follows:
3-31 Art. 56.12. NOTIFICATION OF ESCAPE OR TRANSFER. (a) The
3-32 Texas Department of Criminal Justice shall immediately [make a
3-33 reasonable attempt to] notify the victim of an offense, the
3-34 victim's guardian, or the victim's close relative, if the victim is
3-35 deceased[, whenever the offender escapes from a facility operated
3-36 by the institutional division of the Texas Department of Criminal
3-37 Justice], if the victim, victim's guardian, or victim's close
3-38 relative has notified the institutional division as provided by
3-39 Subsection (b) of this article, whenever the offender:
3-40 (1) escapes from a facility operated by the
3-41 institutional division; or
3-42 (2) is transferred from the custody of the
3-43 institutional division to the custody of a peace officer under a
3-44 writ of attachment or a bench warrant. [An attempt by the Texas
3-45 Department of Criminal Justice to give notice to the victim, the
3-46 guardian of the victim, or a close relative of a deceased victim at
3-47 the victim's, the guardian of the victim's, or a close relative of
3-48 a deceased victim's last known telephone number or address as shown
3-49 on the records of the department constitutes a reasonable attempt
3-50 to give notice under this subsection.]
3-51 (b) It is the responsibility of the victim, guardian, or
3-52 close relative desiring notification of an offender's escape or
3-53 transfer from custody under a writ of attachment or bench warrant
3-54 to notify the Texas Department of Criminal Justice of the desire
3-55 for notification and any change of address.
3-56 (c) In providing notice under Subsection (a)(2), the
3-57 institutional division shall include the name, address, and
3-58 telephone number of the peace officer receiving the inmate into
3-59 custody. On the return of the inmate to the custody of the
3-60 institutional division, the victim services division of the Texas
3-61 Department of Criminal Justice shall notify the victim, the
3-62 victim's guardian, or the victim's close relative, if the victim is
3-63 deceased, of that fact.
3-64 SECTION 8. Subchapter A, Chapter 56, Code of Criminal
3-65 Procedure, is amended by adding Articles 56.13 and 56.14 to read as
3-66 follows:
3-67 Art. 56.13. VICTIM-OFFENDER MEDIATION. The victim services
3-68 division of the Texas Department of Criminal Justice shall:
3-69 (1) train volunteers to act as mediators between
4-1 victims, guardians of victims, and close relatives of deceased
4-2 victims and offenders whose criminal conduct caused bodily injury
4-3 or death to victims; and
4-4 (2) provide mediation services through referral of a
4-5 trained volunteer, if requested by a victim, guardian of a victim,
4-6 or close relative of a deceased victim.
4-7 Art. 56.14. CLEARINGHOUSE ANNUAL CONFERENCE. (a) The Texas
4-8 Crime Victim Clearinghouse may conduct an annual conference to
4-9 provide to participants in the criminal justice system training
4-10 containing information on crime victims' rights.
4-11 (b) The clearinghouse may charge fees to persons attending
4-12 the conference described by Subsection (a).
4-13 SECTION 9. (a) Section 154.023(a), Civil Practice and
4-14 Remedies Code, is amended to read as follows:
4-15 (a) Mediation is a forum in which an impartial person, the
4-16 mediator, facilitates communication between parties to promote
4-17 reconciliation, settlement, or understanding among them. Mediation
4-18 includes victim-offender mediation described by Article 56.13, Code
4-19 of Criminal Procedure.
4-20 (b) The amendment by this section to Section 154.023(a),
4-21 Civil Practice and Remedies Code, granting victim-offender
4-22 mediation provided by the Texas Department of Criminal Justice the
4-23 same status as other forms of mediation authorized by Chapter 154,
4-24 applies to a victim-offender mediation procedure provided by the
4-25 department before, on, or after the effective date of this Act.
4-26 SECTION 10. Section 57.002, Family Code, is amended to read
4-27 as follows:
4-28 Sec. 57.002. VICTIM'S RIGHTS. (a) A victim, guardian of a
4-29 victim, or close relative of a deceased victim is entitled to the
4-30 following rights within the juvenile justice system:
4-31 (1) the right to receive from law enforcement agencies
4-32 adequate protection from harm and threats of harm arising from
4-33 cooperation with prosecution efforts;
4-34 (2) the right to have the court or person appointed by
4-35 the court take the safety of the victim or the victim's family into
4-36 consideration as an element in determining whether the child should
4-37 be detained before the child's conduct is adjudicated;
4-38 (3) the right, if requested, to be informed of
4-39 relevant court proceedings, including appellate proceedings, and to
4-40 be informed in a timely manner if those court proceedings have been
4-41 canceled or rescheduled;
4-42 (4) the right to be informed, when requested, by the
4-43 court or a person appointed by the court concerning the procedures
4-44 in the juvenile justice system, including general procedures
4-45 relating to:
4-46 (A) the preliminary investigation and deferred
4-47 prosecution of a case; and
4-48 (B) the appeal of the case;
4-49 (5) the right to provide pertinent information to a
4-50 juvenile court conducting a disposition hearing concerning the
4-51 impact of the offense on the victim and the victim's family by
4-52 testimony, written statement, or any other manner before the court
4-53 renders its disposition;
4-54 (6) the right to receive information regarding
4-55 compensation to victims as provided by Subchapter B, Chapter 56,
4-56 Code of Criminal Procedure, including information related to the
4-57 costs that may be compensated under that subchapter [Act] and the
4-58 amount of compensation, eligibility for compensation, and
4-59 procedures for application for compensation under that subchapter
4-60 [Act], the payment of medical expenses under Section 56.06, Code of
4-61 Criminal Procedure, for a victim of a sexual assault, and when
4-62 requested, to referral to available social service agencies that
4-63 may offer additional assistance;
4-64 (7) the right to be informed, upon request, of
4-65 procedures for release under supervision or transfer of the person
4-66 to the custody of the pardons and paroles division of the Texas
4-67 Department of Criminal Justice for parole, to participate in the
4-68 release or transfer for parole process, to be notified, if
4-69 requested, of the person's release, escape, or transfer for parole
5-1 proceedings concerning the person, to provide to the Texas Youth
5-2 Commission for inclusion in the person's file information to be
5-3 considered by the commission before the release under supervision
5-4 or transfer for parole of the person, and to be notified, if
5-5 requested, of the person's release or transfer for parole;
5-6 (8) the right to be provided with a waiting area,
5-7 separate or secure from other witnesses, including the child
5-8 alleged to have committed the conduct and relatives of the child,
5-9 before testifying in any proceeding concerning the child, or, if a
5-10 separate waiting area is not available, other safeguards should be
5-11 taken to minimize the victim's contact with the child and the
5-12 child's relatives and witnesses, before and during court
5-13 proceedings;
5-14 (9) the right to prompt return of any property of the
5-15 victim that is held by a law enforcement agency or the attorney for
5-16 the state as evidence when the property is no longer required for
5-17 that purpose;
5-18 (10) the right to have the attorney for the state
5-19 notify the employer of the victim, if requested, of the necessity
5-20 of the victim's cooperation and testimony in a proceeding that may
5-21 necessitate the absence of the victim from work for good cause;
5-22 (11) the right to be present at all public court
5-23 proceedings related to the conduct of the child as provided by
5-24 Section 54.08, subject to that section; and
5-25 (12) any other right appropriate to the victim that a
5-26 victim of criminal conduct has under Article 56.02, Code of
5-27 Criminal Procedure.
5-28 (b) Before making a disposition in a case, the court shall
5-29 require the prosecuting attorney to state whether each victim of
5-30 the conduct, guardian of a victim, or close relative of a deceased
5-31 victim has been afforded, to the greatest extent practicable, the
5-32 rights granted under this section that are applicable to
5-33 proceedings occurring before disposition in a case.
5-34 (c) In notifying a victim of the release or escape of a
5-35 person, the Texas Youth Commission shall use the same procedure
5-36 established for the notification of the release or escape of an
5-37 adult offender under Article 56.11, Code of Criminal Procedure.
5-38 SECTION 11. Section 76.016, Government Code, is amended to
5-39 read as follows:
5-40 Sec. 76.016. Victim Notification. (a) A department, using
5-41 the name and address provided by the attorney representing the
5-42 state under Article 56.08(d), Code of Criminal Procedure, shall
5-43 immediately [make a reasonable effort to] notify a victim of the
5-44 defendant's crime or, if the victim has a guardian or is deceased,
5-45 [to] notify the guardian of the victim or close relative of the
5-46 deceased victim of:
5-47 (1) the fact that the defendant has been placed on
5-48 community supervision;
5-49 (2) the conditions of community supervision imposed on
5-50 the defendant by the court; and
5-51 (3) the date, time, and location of any hearing or
5-52 proceeding at which the conditions of the defendant's community
5-53 supervision may be modified or the defendant's placement on
5-54 community supervision may be revoked or terminated.
5-55 (b) [An attempt by the department to give notice to the
5-56 victim, the guardian of the victim, or a close relative of a
5-57 deceased victim at the victim's, the guardian of the victim's, or a
5-58 close relative of a deceased victim's last known telephone number
5-59 or address as shown on the records of the department constitutes a
5-60 reasonable attempt to give notice under this section.]
5-61 [(c)] In this section, "close relative of a deceased
5-62 victim," "guardian of a victim," and "victim" have the meanings
5-63 assigned by Article 56.01, Code of Criminal Procedure.
5-64 SECTION 12. Section 415.032(b), Government Code, is amended
5-65 to read as follows:
5-66 (b) In establishing requirements under this section, the
5-67 commission shall require courses and programs to provide training
5-68 in:
5-69 (1) the investigation and documentation of cases that
6-1 involve the following:
6-2 (A) child abuse;
6-3 (B) child neglect;
6-4 (C) family violence; and
6-5 (D) sexual assault; [and]
6-6 (2) issues concerning sex offender characteristics;
6-7 and
6-8 (3) crime victims' rights under Chapter 56, Code of
6-9 Criminal Procedure, and Chapter 57, Family Code, and the duty of
6-10 law enforcement agencies to ensure that a victim is afforded those
6-11 rights.
6-12 SECTION 13. Section 493.001, Government Code, is amended to
6-13 read as follows:
6-14 Sec. 493.001. Department Mission. The mission of the
6-15 department is to provide public safety, assist victims of crime,
6-16 promote positive change in offender behavior, and reintegrate
6-17 offenders into society.
6-18 SECTION 14. Subchapter B, Chapter 508, Government Code, is
6-19 amended by adding Section 508.0481 to read as follows:
6-20 Sec. 508.0481. VICTIM'S RIGHT TO REPRESENTATION. (a) If a
6-21 victim, close relative of a deceased victim, or guardian of a
6-22 victim is required by a subpoena issued under Section 508.048 to
6-23 appear at a hearing, the victim, relative, or guardian is entitled
6-24 to representation by counsel at the hearing.
6-25 (b) This section does not require the state to provide
6-26 representation by counsel to a victim, close relative of a deceased
6-27 victim, or guardian of a victim.
6-28 (c) In this section, "victim," "close relative of a deceased
6-29 victim," and "guardian of a victim" have the meanings assigned by
6-30 Section 508.117.
6-31 SECTION 15. Section 2008.053(a), Government Code, as added
6-32 by Chapter 934, Acts of the 75th Legislature, Regular Session,
6-33 1997, is amended to read as follows:
6-34 (a) A state agency may appoint a governmental officer or
6-35 employee or a private individual to serve as an impartial third
6-36 party in an alternative dispute resolution procedure. The agency's
6-37 appointment of the impartial third party is subject to the approval
6-38 of the parties, except that:
6-39 (1) when a State Office of Administrative Hearings
6-40 administrative law judge has issued an order referring a case to an
6-41 alternative dispute resolution procedure under Section
6-42 2003.042(a)(5) [2003.042(5)], the administrative law judge may
6-43 appoint the impartial third party for the parties if they cannot
6-44 agree on an impartial third party within a reasonable period; and
6-45 (2) if the procedure is a victim-offender mediation
6-46 described by Article 56.13, Code of Criminal Procedure, approval of
6-47 the parties is not required.
6-48 SECTION 16. (a) The change in law made by this Act applies
6-49 only to the rights of a victim of an offense committed or, for the
6-50 purposes of Title 3, Family Code, of conduct that occurs on or
6-51 after the effective date of this Act. An offense committed or
6-52 conduct that occurs before the effective date of this Act is
6-53 covered by the law in effect when the offense was committed or the
6-54 conduct occurred, and the former law is continued in effect for
6-55 that purpose.
6-56 (b) For purposes of this section, an offense was committed
6-57 before the effective date of this Act if every element of the
6-58 offense occurred before that date, and conduct violating a penal
6-59 law of this state occurred before the effective date of this Act if
6-60 every element of the violation occurred before that date.
6-61 SECTION 17. This Act takes effect September 1, 1999.
6-62 SECTION 18. The importance of this legislation and the
6-63 crowded condition of the calendars in both houses create an
6-64 emergency and an imperative public necessity that the
6-65 constitutional rule requiring bills to be read on three several
6-66 days in each house be suspended, and this rule is hereby suspended.
6-67 * * * * *