By Armbrister S.B. No. 577
76R1770 KEL-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the duties of and procedures affecting a court clerk
1-3 with respect to certain criminal matters.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subsections (a) and (b), Article 2.21, Code of
1-6 Criminal Procedure, are amended to read as follows:
1-7 (a) In a criminal proceeding, a [Each] clerk of the district
1-8 or county court shall:
1-9 (1) receive and file all papers;
1-10 (2) receive all [and] exhibits at the conclusion of
1-11 the proceeding;
1-12 (3) [in respect to criminal proceedings,] issue all
1-13 process; [in such cases,] and
1-14 (4) perform all other duties imposed on the clerk
1-15 [upon them] by law.
1-16 (b) At any time during or after a criminal proceeding, the
1-17 court reporter shall release to the sheriff for safekeeping any
1-18 [Any] firearm or contraband received by the [a] court as an
1-19 exhibit in that [any criminal] proceeding [shall be placed in the
1-20 hands of the sheriff for safekeeping at any time during the
1-21 pendency of such proceeding or thereafter].
1-22 SECTION 2. Section 3(b), Article 11.07, Code of Criminal
1-23 Procedure, is amended to read as follows:
1-24 (b) An [Whenever an] application for writ of habeas corpus
2-1 [is] filed after final conviction in a felony case, other than a
2-2 case in which the death penalty is imposed, must be filed with the
2-3 clerk of the court in which the conviction being challenged was
2-4 obtained, and the clerk shall [transfer or] assign the application
2-5 [it] to that [the] court [in which the conviction being challenged
2-6 was obtained]. When the application is received by that court, a
2-7 writ of habeas corpus, returnable to the Court of Criminal Appeals,
2-8 shall issue by operation of law. The clerk of that court shall
2-9 make appropriate notation thereof, assign to the case a file number
2-10 (ancillary to that of the conviction being challenged), and forward
2-11 [send] a copy of the application by certified mail, return receipt
2-12 requested, or by personal service to the attorney representing the
2-13 state in that court, who shall [have 15 days in which it may]
2-14 answer the application not later than the 15th day after the date
2-15 the copy of the application is received. Matters alleged in the
2-16 application not admitted by the state are deemed denied.
2-17 SECTION 3. Article 20.22, Code of Criminal Procedure, is
2-18 amended to read as follows:
2-19 Art. 20.22. PRESENTMENT ENTERED OF RECORD. The fact of a
2-20 presentment of indictment by a grand jury shall be entered upon the
2-21 minutes of the court, noting briefly the style of the criminal
2-22 action and the file number of the indictment[, but omitting the
2-23 name of the defendant, unless he is in custody or under bond].
2-24 SECTION 4. Subsection (a), Article 24.03, Code of Criminal
2-25 Procedure, is amended to read as follows:
2-26 (a) Before the clerk or his deputy shall be required or
2-27 permitted to issue a subpoena in any felony case pending in any
3-1 district or criminal district court of this State of which he is
3-2 clerk or deputy, the defendant or his attorney or the State's
3-3 attorney shall make [written, sworn] application to such clerk for
3-4 each witness desired. Such application shall state the name of
3-5 each witness desired, the location and vocation, if known, and that
3-6 the testimony of said witness is material to the State or to the
3-7 defense. The application must be filed with the clerk and placed
3-8 with the papers in the cause or, if the application is filed
3-9 electronically, placed with any other electronic information linked
3-10 to the number of the cause. The application must also be [and]
3-11 made available to both the State and the defendant. Except as
3-12 provided by Subsection (b) of this article, as far as is practical
3-13 such clerk shall include in one subpoena the names of all witnesses
3-14 for the State and for defendant, and such process shall show that
3-15 the witnesses are summoned for the State or for the defendant.
3-16 When a witness has been served with a subpoena, attached or placed
3-17 under bail at the instance of either party in a particular case,
3-18 such execution of process shall inure to the benefit of the
3-19 opposite party in such case in the event such opposite party
3-20 desires to use such witness on the trial of the case, provided that
3-21 when a witness has once been served with a subpoena, no further
3-22 subpoena shall be issued for said witness.
3-23 SECTION 5. Article 24.04, Code of Criminal Procedure, is
3-24 amended to read as follows:
3-25 Art. 24.04. SERVICE AND RETURN OF SUBPOENA. (a) A subpoena
3-26 is served by:
3-27 (1) reading the subpoena in the hearing of the
4-1 witness;
4-2 (2) delivering a copy of the subpoena to the witness;
4-3 [or]
4-4 (3) electronically transmitting a copy of the
4-5 subpoena, acknowledgment of receipt requested, to the last known
4-6 electronic address of the witness; or
4-7 (4) mailing a copy of the subpoena by certified mail,
4-8 return receipt requested, to the last known address of the witness
4-9 unless:
4-10 (A) the applicant for the subpoena requests in
4-11 writing that the subpoena not be served by certified mail; or
4-12 (B) the proceeding for which the witness is
4-13 being subpoenaed is set to begin within seven business days after
4-14 the date the subpoena would be mailed.
4-15 (b) The officer having the subpoena shall make due return
4-16 thereof, showing the time and manner of service, if served under
4-17 Subsection (a)(1) or (2) of this article, the acknowledgment of
4-18 receipt, if served under Subsection (a)(3) of this article, or the
4-19 return receipt, if served under Subsection (a)(4) [(a)(3)] of this
4-20 article. If the subpoena is not served, the officer shall show in
4-21 his return the cause of his failure to serve it. If receipt of an
4-22 electronically transmitted subpoena is not acknowledged within a
4-23 reasonable time or a mailed subpoena is returned undelivered, the
4-24 officer shall use due diligence to locate and serve the witness.
4-25 If the witness could not be found, the officer shall state the
4-26 diligence he has used to find him, and what information he has as
4-27 to the whereabouts of the witness.
5-1 (c) A subpoena served under Subsection (a)(3) must be
5-2 accompanied by notice that an acknowledgment of receipt of the
5-3 subpoena must be made in a manner enabling verification of the
5-4 person acknowledging receipt.
5-5 SECTION 6. Section 2, Article 42.01, Code of Criminal
5-6 Procedure, is amended to read as follows:
5-7 Sec. 2. The judge may order [the clerk of the court,] the
5-8 prosecuting attorney[,] or the attorney or attorneys representing
5-9 any defendant to prepare the judgment, or the court may prepare the
5-10 same.
5-11 SECTION 7. Section 5, Article 42.12, Code of Criminal
5-12 Procedure, is amended by adding Subsection (e) to read as follows:
5-13 (e) A record in the custody of the court clerk regarding a
5-14 case in which a person is granted deferred adjudication is
5-15 confidential only if the record has been sealed by court order or
5-16 expunged under Article 55.01.
5-17 SECTION 8. Sections 13(h) and (j), Article 42.12, Code of
5-18 Criminal Procedure, are amended to read as follows:
5-19 (h) If a person convicted of an offense under Sections
5-20 49.04-49.08, Penal Code, is placed on community supervision, the
5-21 judge shall require, as a condition of the community supervision,
5-22 that the defendant attend and successfully complete before the
5-23 181st day after the day community supervision is granted an
5-24 educational program jointly approved by the Texas Commission on
5-25 Alcohol and Drug Abuse, the Department of Public Safety, the
5-26 Traffic Safety Section of the Texas Department of Transportation,
5-27 and the community justice assistance division of the Texas
6-1 Department of Criminal Justice designed to rehabilitate persons who
6-2 have driven while intoxicated. The Texas Commission on Alcohol and
6-3 Drug Abuse shall publish the jointly approved rules and shall
6-4 monitor, coordinate, and provide training to persons providing the
6-5 educational programs. The Texas Commission on Alcohol and Drug
6-6 Abuse is responsible for the administration of the certification of
6-7 approved educational programs and may charge a nonrefundable
6-8 application fee for the initial certification of approval and for
6-9 renewal of a certificate. The judge may waive the educational
6-10 program requirement or may grant an extension of time to
6-11 successfully complete the program that expires not later than one
6-12 year after the beginning date of the person's community supervision
6-13 [probation], however, if the defendant by a motion in writing shows
6-14 good cause. In determining good cause, the judge may consider but
6-15 is not limited to: the defendant's school and work schedule, the
6-16 defendant's health, the distance that the defendant must travel to
6-17 attend an educational program, and the fact that the defendant
6-18 resides out of state, has no valid driver's license, or does not
6-19 have access to transportation. The judge shall set out the finding
6-20 of good cause for waiver in the judgment. If a defendant is
6-21 required, as a condition of community supervision, to attend an
6-22 educational program or if the court waives the educational program
6-23 requirement, the court clerk shall immediately report that fact to
6-24 the Department of Public Safety, on a form prescribed by the
6-25 department, for inclusion in the person's driving record. If the
6-26 court grants an extension of time in which the person may complete
6-27 the program, the court clerk shall immediately report that fact to
7-1 the Department of Public Safety on a form prescribed by the
7-2 department. The report must include the beginning date of the
7-3 person's community supervision. Upon the person's successful
7-4 completion of the educational program, the person's instructor
7-5 [person] shall give notice to the Department of Public Safety for
7-6 inclusion in the person's driving record and to the community
7-7 supervision and corrections department. The community supervision
7-8 and corrections department shall then forward the notice to the
7-9 court clerk for filing. [The court clerk shall then report the
7-10 date of successful completion of the educational program to the
7-11 Department of Public Safety for inclusion in the defendant's
7-12 driving record.] If the Department of Public Safety [department]
7-13 does not receive notice that a defendant required to complete an
7-14 educational program has successfully completed the program within
7-15 the period required by this section, as shown on department
7-16 records, the department shall revoke the defendant's driver's
7-17 license, permit, or privilege or prohibit the person from obtaining
7-18 a license or permit, as provided by Sections 521.344(e) and (f),
7-19 Transportation Code [Section 24(g)(2), Chapter 173, Acts of the
7-20 47th Legislature, Regular Session, 1941 (Article 6687b, Vernon's
7-21 Texas Civil Statutes)]. The Department of Public Safety
7-22 [department] may not reinstate a license suspended under this
7-23 subsection unless the person whose license was suspended makes
7-24 application to the department for reinstatement of the person's
7-25 license and pays to the department a reinstatement fee of $50. The
7-26 Department of Public Safety [department] shall remit all fees
7-27 collected under this subsection to the comptroller for deposit in
8-1 the general revenue fund. This subsection does not apply to a
8-2 defendant if a jury recommends community supervision for the
8-3 defendant and also recommends that the defendant's driver's license
8-4 not be suspended.
8-5 (j) The judge shall require a defendant who is punished
8-6 under Section 49.09, Penal Code, as a condition of community
8-7 supervision, to attend and successfully complete an educational
8-8 program for repeat offenders approved by the Texas Commission on
8-9 Alcohol and Drug Abuse. The Texas Commission on Alcohol and Drug
8-10 Abuse shall adopt rules and shall monitor, coordinate, and provide
8-11 training to persons providing the educational programs. The Texas
8-12 Commission on Alcohol and Drug Abuse is responsible for the
8-13 administration of the certification of approved educational
8-14 programs and may charge a nonrefundable application fee for initial
8-15 certification of approval or for renewal of the certification. The
8-16 judge may waive the educational program requirement only if the
8-17 defendant by a motion in writing shows good cause. In determining
8-18 good cause, the judge may consider the defendant's school and work
8-19 schedule, the defendant's health, the distance that the defendant
8-20 must travel to attend an educational program, and whether the
8-21 defendant resides out of state or does not have access to
8-22 transportation. The judge shall set out the finding of good cause
8-23 in the judgment. If a defendant is required, as a condition of
8-24 community supervision, to attend an educational program, the court
8-25 clerk shall immediately report that fact to the Department of
8-26 Public Safety, on a form prescribed by the department, for
8-27 inclusion in the defendant's driving record. The report must
9-1 include the beginning date of the defendant's community
9-2 supervision. On the defendant's successful completion of the
9-3 educational program for repeat offenders, the defendant's
9-4 instructor [defendant] shall give notice to the Department of
9-5 Public Safety for inclusion in the defendant's driving record and
9-6 to the community supervision and corrections department. The
9-7 community supervision and corrections department shall then forward
9-8 the notice to the court clerk for filing. [The court clerk shall
9-9 then report the date of successful completion of the educational
9-10 program to the Department of Public Safety for inclusion in the
9-11 defendant's driving record.] If the Department of Public Safety
9-12 does not receive notice that a defendant required to complete an
9-13 educational program has successfully completed the program for
9-14 repeat offenders within the period required by the judge, as shown
9-15 on department records, the department shall revoke the defendant's
9-16 driver's license, permit, or privilege or prohibit the defendant
9-17 from obtaining a license or permit, as provided by Sections
9-18 521.344(e) and (f), Transportation Code [Section 24(g)(2), Chapter
9-19 173, Acts of the 47th Legislature, Regular Session, 1941 (Article
9-20 6687b, Vernon's Texas Civil Statutes)].
9-21 SECTION 9. Section 521.342(b), Transportation Code, is
9-22 amended to read as follows:
9-23 (b) The department shall suspend for one year the license of
9-24 a person who is under 21 years of age and is convicted of an
9-25 offense under Section 49.04, 49.07, or 49.08, Penal Code,
9-26 regardless of whether the person is required to attend an
9-27 educational program under Section 13(h), Article 42.12, Code of
10-1 Criminal Procedure, that is designed to rehabilitate persons who
10-2 have operated motor vehicles while intoxicated, unless the person
10-3 is placed under community supervision under that article and is
10-4 required as a condition of the community supervision to not operate
10-5 a motor vehicle unless the vehicle is equipped with the device
10-6 described by Section 13(i) of that article. If the person is
10-7 required to attend such a program and does not complete the program
10-8 before the end of the person's suspension, the department shall
10-9 suspend the person's license or continue the suspension, as
10-10 appropriate, until the department receives proof that the person
10-11 has successfully completed the program. On the person's successful
10-12 completion of the program, the person's instructor shall give
10-13 notice to the department and to the community supervision and
10-14 corrections [A person who completes the program may submit proof of
10-15 the completion to the clerk of the convicting court. The clerk
10-16 shall send the proof to the] department in the manner provided by
10-17 Section 13(h), Article 42.12, Code of Criminal Procedure.
10-18 SECTION 10. Section 521.344(i), Transportation Code, is
10-19 amended to read as follows:
10-20 (i) On the date that a suspension order under Section
10-21 521.343(c) is to expire, the period of suspension or the
10-22 corresponding period in which the department is prohibited from
10-23 issuing a license is automatically increased to two years unless
10-24 the department receives notice of successful completion of the
10-25 educational program as required by Section 13, Article 42.12, Code
10-26 of Criminal Procedure. At the time a person is convicted of an
10-27 offense under Section 49.04, Penal Code, the court shall warn the
11-1 person of the effect of this subsection. On the person's
11-2 successful completion of the program, the person's instructor
11-3 [person] shall give notice to the department and to the community
11-4 supervision and corrections [present proof of the completion to
11-5 the clerk of the court in which the person was convicted. The
11-6 clerk shall report the date of completion to the] department in the
11-7 [same] manner [as that] required by [under] Section 13, Article
11-8 42.12, Code of Criminal Procedure. If the department receives
11-9 proof of completion after a period has been extended under this
11-10 subsection, the department shall immediately end the suspension or
11-11 prohibition.
11-12 SECTION 11. (a) Subsections (a), (b), and (c), Article
11-13 102.002, Code of Criminal Procedure, are repealed.
11-14 (b) Subsection (e), Article 102.005, Code of Criminal
11-15 Procedure, is repealed.
11-16 SECTION 12. (a) The change in law made by this Act to
11-17 Article 11.07, Code of Criminal Procedure, applies only to an
11-18 application for writ of habeas corpus filed on or after the
11-19 effective date of this Act. An application for writ of habeas
11-20 corpus filed before the effective date of this Act is governed by
11-21 the law in effect before the effective date of this Act, and the
11-22 former law is continued in effect for this purpose.
11-23 (b) The change in law made by this Act to Article 20.22,
11-24 Code of Criminal Procedure, applies only to a criminal or
11-25 forfeiture proceeding, as applicable, commenced on or after the
11-26 effective date of this Act. A criminal or forfeiture proceeding
11-27 commenced before the effective date of this Act is governed by the
12-1 law in effect before the effective date of this Act, and the former
12-2 law is continued in effect for this purpose.
12-3 (c) The change in law made by this Act to Section 13,
12-4 Article 42.12, Code of Criminal Procedure, and to Sections 521.342
12-5 and 521.344, Transportation Code, applies only to an educational
12-6 program commenced on or after the effective date of this Act.
12-7 SECTION 13. This Act takes effect September 1, 1999.
12-8 SECTION 14. The importance of this legislation and the
12-9 crowded condition of the calendars in both houses create an
12-10 emergency and an imperative public necessity that the
12-11 constitutional rule requiring bills to be read on three several
12-12 days in each house be suspended, and this rule is hereby suspended.