AN ACT
1-1 relating to the duties of and procedures affecting a court clerk
1-2 with respect to certain criminal matters.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subsections (a) and (b), Article 2.21, Code of
1-5 Criminal Procedure, are amended to read as follows:
1-6 (a) In a criminal proceeding, a [Each] clerk of the district
1-7 or county court shall:
1-8 (1) receive and file all papers;
1-9 (2) receive all [and] exhibits at the conclusion of
1-10 the proceeding;
1-11 (3) [in respect to criminal proceedings,] issue all
1-12 process; [in such cases,] and
1-13 (4) perform all other duties imposed on the clerk
1-14 [upon them] by law.
1-15 (b) At any time during or after a criminal proceeding, the
1-16 court reporter shall release to the sheriff for safekeeping any
1-17 [Any] firearm or contraband received by the [a] court as an exhibit
1-18 in that [any criminal] proceeding [shall be placed in the hands of
1-19 the sheriff for safekeeping at any time during the pendency of such
1-20 proceeding or thereafter].
1-21 SECTION 2. Subsection (b), Section 3, Article 11.07, Code of
1-22 Criminal Procedure, is amended to read as follows:
1-23 (b) An [Whenever an] application for writ of habeas corpus
1-24 [is] filed after final conviction in a felony case, other than a
2-1 case in which the death penalty is imposed, must be filed with the
2-2 clerk of the court in which the conviction being challenged was
2-3 obtained, and the clerk shall [transfer or] assign the application
2-4 [it] to that [the] court [in which the conviction being challenged
2-5 was obtained]. When the application is received by that court, a
2-6 writ of habeas corpus, returnable to the Court of Criminal Appeals,
2-7 shall issue by operation of law. The clerk of that court shall
2-8 make appropriate notation thereof, assign to the case a file number
2-9 (ancillary to that of the conviction being challenged), and forward
2-10 [send] a copy of the application by certified mail, return receipt
2-11 requested, or by personal service to the attorney representing the
2-12 state in that court, who shall [have 15 days in which it may]
2-13 answer the application not later than the 15th day after the date
2-14 the copy of the application is received. Matters alleged in the
2-15 application not admitted by the state are deemed denied.
2-16 SECTION 3. Article 20.22, Code of Criminal Procedure, is
2-17 amended to read as follows:
2-18 Art. 20.22. PRESENTMENT ENTERED OF RECORD. The fact of a
2-19 presentment of indictment by a grand jury shall be entered upon the
2-20 minutes of the court, if the defendant is in custody or under bond,
2-21 noting briefly the style of the criminal action and the file number
2-22 of the indictment and the defendant's name. If the defendant is
2-23 not in custody or under bond at the time of the presentment of
2-24 indictment, the entry in the minutes of the court relating to said
2-25 indictment shall be delayed until such time as the capias is served
2-26 and the defendant is placed in custody or under bond[, but omitting
3-1 the name of the defendant, unless he is in custody or under bond].
3-2 SECTION 4. Subsection (a), Article 24.03, Code of Criminal
3-3 Procedure, is amended to read as follows:
3-4 (a) Before the clerk or his deputy shall be required or
3-5 permitted to issue a subpoena in any felony case pending in any
3-6 district or criminal district court of this State of which he is
3-7 clerk or deputy, the defendant or his attorney or the State's
3-8 attorney shall make [written, sworn] application to such clerk for
3-9 each witness desired. Such application shall state the name of
3-10 each witness desired, the location and vocation, if known, and that
3-11 the testimony of said witness is material to the State or to the
3-12 defense. The application must be filed with the clerk and placed
3-13 with the papers in the cause or, if the application is filed
3-14 electronically, placed with any other electronic information linked
3-15 to the number of the cause. The application must also be [and]
3-16 made available to both the State and the defendant. Except as
3-17 provided by Subsection (b) of this article, as far as is practical
3-18 such clerk shall include in one subpoena the names of all witnesses
3-19 for the State and for defendant, and such process shall show that
3-20 the witnesses are summoned for the State or for the defendant.
3-21 When a witness has been served with a subpoena, attached or placed
3-22 under bail at the instance of either party in a particular case,
3-23 such execution of process shall inure to the benefit of the
3-24 opposite party in such case in the event such opposite party
3-25 desires to use such witness on the trial of the case, provided that
3-26 when a witness has once been served with a subpoena, no further
4-1 subpoena shall be issued for said witness.
4-2 SECTION 5. Article 24.04, Code of Criminal Procedure, is
4-3 amended to read as follows:
4-4 Art. 24.04. SERVICE AND RETURN OF SUBPOENA. (a) A subpoena
4-5 is served by:
4-6 (1) reading the subpoena in the hearing of the
4-7 witness;
4-8 (2) delivering a copy of the subpoena to the witness;
4-9 [or]
4-10 (3) electronically transmitting a copy of the
4-11 subpoena, acknowledgment of receipt requested, to the last known
4-12 electronic address of the witness; or
4-13 (4) mailing a copy of the subpoena by certified mail,
4-14 return receipt requested, to the last known address of the witness
4-15 unless:
4-16 (A) the applicant for the subpoena requests in
4-17 writing that the subpoena not be served by certified mail; or
4-18 (B) the proceeding for which the witness is
4-19 being subpoenaed is set to begin within seven business days after
4-20 the date the subpoena would be mailed.
4-21 (b) The officer having the subpoena shall make due return
4-22 thereof, showing the time and manner of service, if served under
4-23 Subsection (a)(1) or (2) of this article, the acknowledgment of
4-24 receipt, if served under Subsection (a)(3) of this article, or the
4-25 return receipt, if served under Subsection (a)(4) [(a)(3)] of this
4-26 article. If the subpoena is not served, the officer shall show in
5-1 his return the cause of his failure to serve it. If receipt of an
5-2 electronically transmitted subpoena is not acknowledged within a
5-3 reasonable time or a mailed subpoena is returned undelivered, the
5-4 officer shall use due diligence to locate and serve the witness.
5-5 If the witness could not be found, the officer shall state the
5-6 diligence he has used to find him, and what information he has as
5-7 to the whereabouts of the witness.
5-8 (c) A subpoena served under Subsection (a)(3) of this
5-9 article must be accompanied by notice that an acknowledgment of
5-10 receipt of the subpoena must be made in a manner enabling
5-11 verification of the person acknowledging receipt.
5-12 SECTION 6. Section 2, Article 42.01, Code of Criminal
5-13 Procedure, is amended to read as follows:
5-14 Sec. 2. The judge may order [the clerk of the court,] the
5-15 prosecuting attorney, or the attorney or attorneys representing any
5-16 defendant, or the court clerk under the supervision of an attorney,
5-17 to prepare the judgment, or the court may prepare the same.
5-18 SECTION 7. Section 5, Article 42.12, Code of Criminal
5-19 Procedure, is amended by adding Subsection (e) to read as follows:
5-20 (e) A record in the custody of the court clerk regarding a
5-21 case in which a person is granted deferred adjudication is not
5-22 confidential.
5-23 SECTION 8. Subsections (h) and (j), Section 13, Article
5-24 42.12, Code of Criminal Procedure, are amended to read as follows:
5-25 (h) If a person convicted of an offense under Sections
5-26 49.04-49.08, Penal Code, is placed on community supervision, the
6-1 judge shall require, as a condition of the community supervision,
6-2 that the defendant attend and successfully complete before the
6-3 181st day after the day community supervision is granted an
6-4 educational program jointly approved by the Texas Commission on
6-5 Alcohol and Drug Abuse, the Department of Public Safety, the
6-6 Traffic Safety Section of the Texas Department of Transportation,
6-7 and the community justice assistance division of the Texas
6-8 Department of Criminal Justice designed to rehabilitate persons who
6-9 have driven while intoxicated. The Texas Commission on Alcohol and
6-10 Drug Abuse shall publish the jointly approved rules and shall
6-11 monitor, coordinate, and provide training to persons providing the
6-12 educational programs. The Texas Commission on Alcohol and Drug
6-13 Abuse is responsible for the administration of the certification of
6-14 approved educational programs and may charge a nonrefundable
6-15 application fee for the initial certification of approval and for
6-16 renewal of a certificate. The judge may waive the educational
6-17 program requirement or may grant an extension of time to
6-18 successfully complete the program that expires not later than one
6-19 year after the beginning date of the person's community supervision
6-20 [probation], however, if the defendant by a motion in writing shows
6-21 good cause. In determining good cause, the judge may consider but
6-22 is not limited to: the defendant's school and work schedule, the
6-23 defendant's health, the distance that the defendant must travel to
6-24 attend an educational program, and the fact that the defendant
6-25 resides out of state, has no valid driver's license, or does not
6-26 have access to transportation. The judge shall set out the finding
7-1 of good cause for waiver in the judgment. If a defendant is
7-2 required, as a condition of community supervision, to attend an
7-3 educational program or if the court waives the educational program
7-4 requirement, the court clerk shall immediately report that fact to
7-5 the Department of Public Safety, on a form prescribed by the
7-6 department, for inclusion in the person's driving record. If the
7-7 court grants an extension of time in which the person may complete
7-8 the program, the court clerk shall immediately report that fact to
7-9 the Department of Public Safety on a form prescribed by the
7-10 department. The report must include the beginning date of the
7-11 person's community supervision. Upon the person's successful
7-12 completion of the educational program, the person's instructor
7-13 [person] shall give notice to the Department of Public Safety for
7-14 inclusion in the person's driving record and to the community
7-15 supervision and corrections department. The community supervision
7-16 and corrections department shall then forward the notice to the
7-17 court clerk for filing. [The court clerk shall then report the
7-18 date of successful completion of the educational program to the
7-19 Department of Public Safety for inclusion in the defendant's
7-20 driving record.] If the Department of Public Safety [department]
7-21 does not receive notice that a defendant required to complete an
7-22 educational program has successfully completed the program within
7-23 the period required by this section, as shown on department
7-24 records, the department shall revoke the defendant's driver's
7-25 license, permit, or privilege or prohibit the person from obtaining
7-26 a license or permit, as provided by Sections 521.344(e) and (f),
8-1 Transportation Code [Section 24(g)(2), Chapter 173, Acts of the
8-2 47th Legislature, Regular Session, 1941 (Article 6687b, Vernon's
8-3 Texas Civil Statutes)]. The Department of Public Safety
8-4 [department] may not reinstate a license suspended under this
8-5 subsection unless the person whose license was suspended makes
8-6 application to the department for reinstatement of the person's
8-7 license and pays to the department a reinstatement fee of $50. The
8-8 Department of Public Safety [department] shall remit all fees
8-9 collected under this subsection to the comptroller for deposit in
8-10 the general revenue fund. This subsection does not apply to a
8-11 defendant if a jury recommends community supervision for the
8-12 defendant and also recommends that the defendant's driver's license
8-13 not be suspended.
8-14 (j) The judge shall require a defendant who is punished
8-15 under Section 49.09, Penal Code, as a condition of community
8-16 supervision, to attend and successfully complete an educational
8-17 program for repeat offenders approved by the Texas Commission on
8-18 Alcohol and Drug Abuse. The Texas Commission on Alcohol and Drug
8-19 Abuse shall adopt rules and shall monitor, coordinate, and provide
8-20 training to persons providing the educational programs. The Texas
8-21 Commission on Alcohol and Drug Abuse is responsible for the
8-22 administration of the certification of approved educational
8-23 programs and may charge a nonrefundable application fee for initial
8-24 certification of approval or for renewal of the certification. The
8-25 judge may waive the educational program requirement only if the
8-26 defendant by a motion in writing shows good cause. In determining
9-1 good cause, the judge may consider the defendant's school and work
9-2 schedule, the defendant's health, the distance that the defendant
9-3 must travel to attend an educational program, and whether the
9-4 defendant resides out of state or does not have access to
9-5 transportation. The judge shall set out the finding of good cause
9-6 in the judgment. If a defendant is required, as a condition of
9-7 community supervision, to attend an educational program, the court
9-8 clerk shall immediately report that fact to the Department of
9-9 Public Safety, on a form prescribed by the department, for
9-10 inclusion in the defendant's driving record. The report must
9-11 include the beginning date of the defendant's community
9-12 supervision. On the defendant's successful completion of the
9-13 educational program for repeat offenders, the defendant's
9-14 instructor [defendant] shall give notice to the Department of
9-15 Public Safety for inclusion in the defendant's driving record and
9-16 to the community supervision and corrections department. The
9-17 community supervision and corrections department shall then forward
9-18 the notice to the court clerk for filing. [The court clerk shall
9-19 then report the date of successful completion of the educational
9-20 program to the Department of Public Safety for inclusion in the
9-21 defendant's driving record.] If the Department of Public Safety
9-22 does not receive notice that a defendant required to complete an
9-23 educational program has successfully completed the program for
9-24 repeat offenders within the period required by the judge, as shown
9-25 on department records, the department shall revoke the defendant's
9-26 driver's license, permit, or privilege or prohibit the defendant
10-1 from obtaining a license or permit, as provided by Sections
10-2 521.344(e) and (f), Transportation Code [Section 24(g)(2), Chapter
10-3 173, Acts of the 47th Legislature, Regular Session, 1941 (Article
10-4 6687b, Vernon's Texas Civil Statutes)].
10-5 SECTION 9. Subsection (b), Section 521.342, Transportation
10-6 Code, is amended to read as follows:
10-7 (b) The department shall suspend for one year the license of
10-8 a person who is under 21 years of age and is convicted of an
10-9 offense under Section 49.04, 49.07, or 49.08, Penal Code,
10-10 regardless of whether the person is required to attend an
10-11 educational program under Section 13(h), Article 42.12, Code of
10-12 Criminal Procedure, that is designed to rehabilitate persons who
10-13 have operated motor vehicles while intoxicated, unless the person
10-14 is placed under community supervision under that article and is
10-15 required as a condition of the community supervision to not operate
10-16 a motor vehicle unless the vehicle is equipped with the device
10-17 described by Section 13(i) of that article. If the person is
10-18 required to attend such a program and does not complete the program
10-19 before the end of the person's suspension, the department shall
10-20 suspend the person's license or continue the suspension, as
10-21 appropriate, until the department receives proof that the person
10-22 has successfully completed the program. On the person's successful
10-23 completion of the program, the person's instructor shall give
10-24 notice to the department and to the community supervision and
10-25 corrections [A person who completes the program may submit proof of
10-26 the completion to the clerk of the convicting court. The clerk
11-1 shall send the proof to the] department in the manner provided by
11-2 Section 13(h), Article 42.12, Code of Criminal Procedure.
11-3 SECTION 10. Subsection (i), Section 521.344, Transportation
11-4 Code, is amended to read as follows:
11-5 (i) On the date that a suspension order under Section
11-6 521.343(c) is to expire, the period of suspension or the
11-7 corresponding period in which the department is prohibited from
11-8 issuing a license is automatically increased to two years unless
11-9 the department receives notice of successful completion of the
11-10 educational program as required by Section 13, Article 42.12, Code
11-11 of Criminal Procedure. At the time a person is convicted of an
11-12 offense under Section 49.04, Penal Code, the court shall warn the
11-13 person of the effect of this subsection. On the person's
11-14 successful completion of the program, the person's instructor
11-15 [person] shall give notice to the department and to the community
11-16 supervision and corrections [present proof of the completion to the
11-17 clerk of the court in which the person was convicted. The clerk
11-18 shall report the date of completion to the] department in the
11-19 [same] manner [as that] required by [under] Section 13, Article
11-20 42.12, Code of Criminal Procedure. If the department receives
11-21 proof of completion after a period has been extended under this
11-22 subsection, the department shall immediately end the suspension or
11-23 prohibition.
11-24 SECTION 11. (a) Subsections (a), (b), and (c), Article
11-25 102.002, Code of Criminal Procedure, are repealed.
11-26 (b) Subsection (e), Article 102.005, Code of Criminal
12-1 Procedure, is repealed.
12-2 SECTION 12. (a) The change in law made by this Act to
12-3 Article 11.07, Code of Criminal Procedure, applies only to an
12-4 application for writ of habeas corpus filed on or after the
12-5 effective date of this Act. An application for writ of habeas
12-6 corpus filed before the effective date of this Act is governed by
12-7 the law in effect before the effective date of this Act, and the
12-8 former law is continued in effect for this purpose.
12-9 (b) The change in law made by this Act to Article 20.22,
12-10 Code of Criminal Procedure, applies only to a criminal or
12-11 forfeiture proceeding, as applicable, commenced on or after the
12-12 effective date of this Act. A criminal or forfeiture proceeding
12-13 commenced before the effective date of this Act is governed by the
12-14 law in effect before the effective date of this Act, and the former
12-15 law is continued in effect for this purpose.
12-16 (c) The change in law made by this Act to Section 13,
12-17 Article 42.12, Code of Criminal Procedure, and to Sections 521.342
12-18 and 521.344, Transportation Code, applies only to an educational
12-19 program commenced on or after the effective date of this Act.
12-20 SECTION 13. This Act takes effect September 1, 1999.
12-21 SECTION 14. The importance of this legislation and the
12-22 crowded condition of the calendars in both houses create an
12-23 emergency and an imperative public necessity that the
12-24 constitutional rule requiring bills to be read on three several
12-25 days in each house be suspended, and this rule is hereby suspended.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 577 passed the Senate on
April 13, 1999, by a viva-voce vote.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 577 passed the House on
May 22, 1999, by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor