1-1 By: Armbrister S.B. No. 577
1-2 (In the Senate - Filed February 17, 1999; February 22, 1999,
1-3 read first time and referred to Committee on Criminal Justice;
1-4 April 8, 1999, reported favorably, as amended, by the following
1-5 vote: Yeas 7, Nays 0; April 8, 1999, sent to printer.)
1-6 COMMITTEE AMENDMENT NO. 1 By: Armbrister
1-7 (1) Amend S.B. No. 577, SECTION 3, Article 20.22, Code of
1-8 Criminal Procedure, page 2, by adding in line 10, after "court,":
1-9 "if the defendant is in custody or under bond,"
1-10 (2) Amend S.B. No. 577, SECTION 3, Article 20.22, Code of
1-11 Criminal Procedure, page 2, by adding in line 11 after
1-12 "indictment": "and the defendant's name. If the defendant is not
1-13 in custody or under bond at the time of the presentment of
1-14 indictment, the entry in the minutes of the court relating to said
1-15 indictment shall be delayed until such time as the capias is served
1-16 and the defendant is placed in custody or under bond"
1-17 (3) Amend S.B. No. 577, SECTION 6, Section 2, Article 42.01,
1-18 Code of Criminal Procedure, page 3, by reinstating in line 9, [,]
1-19 and adding in line 10 after "defendant": ", or the court clerk
1-20 under the supervision of an attorney,"
1-21 (4) Amend S.B. No. 577, SECTION 7, Section 5, Article 42.12,
1-22 Code of Criminal Procedure, page 3, by adding in line 15, after
1-23 "is": "not"
1-24 (5) Amend S.B. No. 577, SECTION 7, Section 5, Article 42.12,
1-25 Code of Criminal Procedure, page 3, by striking in line 16: "only
1-26 if the record has been sealed by court order or expunged under
1-27 Article 55.01"
1-28 A BILL TO BE ENTITLED
1-29 AN ACT
1-30 relating to the duties of and procedures affecting a court clerk
1-31 with respect to certain criminal matters.
1-32 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-33 SECTION 1. Subsections (a) and (b), Article 2.21, Code of
1-34 Criminal Procedure, are amended to read as follows:
1-35 (a) In a criminal proceeding, a [Each] clerk of the district
1-36 or county court shall:
1-37 (1) receive and file all papers;
1-38 (2) receive all [and] exhibits at the conclusion of
1-39 the proceeding;
1-40 (3) [in respect to criminal proceedings,] issue all
1-41 process; [in such cases,] and
1-42 (4) perform all other duties imposed on the clerk
1-43 [upon them] by law.
1-44 (b) At any time during or after a criminal proceeding, the
1-45 court reporter shall release to the sheriff for safekeeping any
1-46 [Any] firearm or contraband received by the [a] court as an exhibit
1-47 in that [any criminal] proceeding [shall be placed in the hands of
1-48 the sheriff for safekeeping at any time during the pendency of such
1-49 proceeding or thereafter].
1-50 SECTION 2. Subsection (b), Section 3, Article 11.07, Code of
1-51 Criminal Procedure, is amended to read as follows:
1-52 (b) An [Whenever an] application for writ of habeas corpus
1-53 [is] filed after final conviction in a felony case, other than a
1-54 case in which the death penalty is imposed, must be filed with the
1-55 clerk of the court in which the conviction being challenged was
1-56 obtained, and the clerk shall [transfer or] assign the application
1-57 [it] to that [the] court [in which the conviction being challenged
1-58 was obtained]. When the application is received by that court, a
1-59 writ of habeas corpus, returnable to the Court of Criminal Appeals,
1-60 shall issue by operation of law. The clerk of that court shall
1-61 make appropriate notation thereof, assign to the case a file number
1-62 (ancillary to that of the conviction being challenged), and forward
1-63 [send] a copy of the application by certified mail, return receipt
2-1 requested, or by personal service to the attorney representing the
2-2 state in that court, who shall [have 15 days in which it may]
2-3 answer the application not later than the 15th day after the date
2-4 the copy of the application is received. Matters alleged in the
2-5 application not admitted by the state are deemed denied.
2-6 SECTION 3. Article 20.22, Code of Criminal Procedure, is
2-7 amended to read as follows:
2-8 Art. 20.22. PRESENTMENT ENTERED OF RECORD. The fact of a
2-9 presentment of indictment by a grand jury shall be entered upon the
2-10 minutes of the court, noting briefly the style of the criminal
2-11 action and the file number of the indictment[, but omitting the
2-12 name of the defendant, unless he is in custody or under bond].
2-13 SECTION 4. Subsection (a), Article 24.03, Code of Criminal
2-14 Procedure, is amended to read as follows:
2-15 (a) Before the clerk or his deputy shall be required or
2-16 permitted to issue a subpoena in any felony case pending in any
2-17 district or criminal district court of this State of which he is
2-18 clerk or deputy, the defendant or his attorney or the State's
2-19 attorney shall make [written, sworn] application to such clerk for
2-20 each witness desired. Such application shall state the name of
2-21 each witness desired, the location and vocation, if known, and that
2-22 the testimony of said witness is material to the State or to the
2-23 defense. The application must be filed with the clerk and placed
2-24 with the papers in the cause or, if the application is filed
2-25 electronically, placed with any other electronic information linked
2-26 to the number of the cause. The application must also be [and]
2-27 made available to both the State and the defendant. Except as
2-28 provided by Subsection (b) of this article, as far as is practical
2-29 such clerk shall include in one subpoena the names of all witnesses
2-30 for the State and for defendant, and such process shall show that
2-31 the witnesses are summoned for the State or for the defendant.
2-32 When a witness has been served with a subpoena, attached or placed
2-33 under bail at the instance of either party in a particular case,
2-34 such execution of process shall inure to the benefit of the
2-35 opposite party in such case in the event such opposite party
2-36 desires to use such witness on the trial of the case, provided that
2-37 when a witness has once been served with a subpoena, no further
2-38 subpoena shall be issued for said witness.
2-39 SECTION 5. Article 24.04, Code of Criminal Procedure, is
2-40 amended to read as follows:
2-41 Art. 24.04. SERVICE AND RETURN OF SUBPOENA. (a) A subpoena
2-42 is served by:
2-43 (1) reading the subpoena in the hearing of the
2-44 witness;
2-45 (2) delivering a copy of the subpoena to the witness;
2-46 [or]
2-47 (3) electronically transmitting a copy of the
2-48 subpoena, acknowledgment of receipt requested, to the last known
2-49 electronic address of the witness; or
2-50 (4) mailing a copy of the subpoena by certified mail,
2-51 return receipt requested, to the last known address of the witness
2-52 unless:
2-53 (A) the applicant for the subpoena requests in
2-54 writing that the subpoena not be served by certified mail; or
2-55 (B) the proceeding for which the witness is
2-56 being subpoenaed is set to begin within seven business days after
2-57 the date the subpoena would be mailed.
2-58 (b) The officer having the subpoena shall make due return
2-59 thereof, showing the time and manner of service, if served under
2-60 Subsection (a)(1) or (2) of this article, the acknowledgment of
2-61 receipt, if served under Subsection (a)(3) of this article, or the
2-62 return receipt, if served under Subsection (a)(4) [(a)(3)] of this
2-63 article. If the subpoena is not served, the officer shall show in
2-64 his return the cause of his failure to serve it. If receipt of an
2-65 electronically transmitted subpoena is not acknowledged within a
2-66 reasonable time or a mailed subpoena is returned undelivered, the
2-67 officer shall use due diligence to locate and serve the witness.
2-68 If the witness could not be found, the officer shall state the
2-69 diligence he has used to find him, and what information he has as
3-1 to the whereabouts of the witness.
3-2 (c) A subpoena served under Subsection (a)(3) of this
3-3 article must be accompanied by notice that an acknowledgment of
3-4 receipt of the subpoena must be made in a manner enabling
3-5 verification of the person acknowledging receipt.
3-6 SECTION 6. Section 2, Article 42.01, Code of Criminal
3-7 Procedure, is amended to read as follows:
3-8 Sec. 2. The judge may order [the clerk of the court,] the
3-9 prosecuting attorney[,] or the attorney or attorneys representing
3-10 any defendant to prepare the judgment, or the court may prepare the
3-11 same.
3-12 SECTION 7. Section 5, Article 42.12, Code of Criminal
3-13 Procedure, is amended by adding Subsection (e) to read as follows:
3-14 (e) A record in the custody of the court clerk regarding a
3-15 case in which a person is granted deferred adjudication is
3-16 confidential only if the record has been sealed by court order or
3-17 expunged under Article 55.01.
3-18 SECTION 8. Subsections (h) and (j), Section 13, Article
3-19 42.12, Code of Criminal Procedure, are amended to read as follows:
3-20 (h) If a person convicted of an offense under Sections
3-21 49.04-49.08, Penal Code, is placed on community supervision, the
3-22 judge shall require, as a condition of the community supervision,
3-23 that the defendant attend and successfully complete before the
3-24 181st day after the day community supervision is granted an
3-25 educational program jointly approved by the Texas Commission on
3-26 Alcohol and Drug Abuse, the Department of Public Safety, the
3-27 Traffic Safety Section of the Texas Department of Transportation,
3-28 and the community justice assistance division of the Texas
3-29 Department of Criminal Justice designed to rehabilitate persons who
3-30 have driven while intoxicated. The Texas Commission on Alcohol and
3-31 Drug Abuse shall publish the jointly approved rules and shall
3-32 monitor, coordinate, and provide training to persons providing the
3-33 educational programs. The Texas Commission on Alcohol and Drug
3-34 Abuse is responsible for the administration of the certification of
3-35 approved educational programs and may charge a nonrefundable
3-36 application fee for the initial certification of approval and for
3-37 renewal of a certificate. The judge may waive the educational
3-38 program requirement or may grant an extension of time to
3-39 successfully complete the program that expires not later than one
3-40 year after the beginning date of the person's community supervision
3-41 [probation], however, if the defendant by a motion in writing shows
3-42 good cause. In determining good cause, the judge may consider but
3-43 is not limited to: the defendant's school and work schedule, the
3-44 defendant's health, the distance that the defendant must travel to
3-45 attend an educational program, and the fact that the defendant
3-46 resides out of state, has no valid driver's license, or does not
3-47 have access to transportation. The judge shall set out the finding
3-48 of good cause for waiver in the judgment. If a defendant is
3-49 required, as a condition of community supervision, to attend an
3-50 educational program or if the court waives the educational program
3-51 requirement, the court clerk shall immediately report that fact to
3-52 the Department of Public Safety, on a form prescribed by the
3-53 department, for inclusion in the person's driving record. If the
3-54 court grants an extension of time in which the person may complete
3-55 the program, the court clerk shall immediately report that fact to
3-56 the Department of Public Safety on a form prescribed by the
3-57 department. The report must include the beginning date of the
3-58 person's community supervision. Upon the person's successful
3-59 completion of the educational program, the person's instructor
3-60 [person] shall give notice to the Department of Public Safety for
3-61 inclusion in the person's driving record and to the community
3-62 supervision and corrections department. The community supervision
3-63 and corrections department shall then forward the notice to the
3-64 court clerk for filing. [The court clerk shall then report the
3-65 date of successful completion of the educational program to the
3-66 Department of Public Safety for inclusion in the defendant's
3-67 driving record.] If the Department of Public Safety [department]
3-68 does not receive notice that a defendant required to complete an
3-69 educational program has successfully completed the program within
4-1 the period required by this section, as shown on department
4-2 records, the department shall revoke the defendant's driver's
4-3 license, permit, or privilege or prohibit the person from obtaining
4-4 a license or permit, as provided by Sections 521.344(e) and (f),
4-5 Transportation Code [Section 24(g)(2), Chapter 173, Acts of the
4-6 47th Legislature, Regular Session, 1941 (Article 6687b, Vernon's
4-7 Texas Civil Statutes)]. The Department of Public Safety
4-8 [department] may not reinstate a license suspended under this
4-9 subsection unless the person whose license was suspended makes
4-10 application to the department for reinstatement of the person's
4-11 license and pays to the department a reinstatement fee of $50. The
4-12 Department of Public Safety [department] shall remit all fees
4-13 collected under this subsection to the comptroller for deposit in
4-14 the general revenue fund. This subsection does not apply to a
4-15 defendant if a jury recommends community supervision for the
4-16 defendant and also recommends that the defendant's driver's license
4-17 not be suspended.
4-18 (j) The judge shall require a defendant who is punished
4-19 under Section 49.09, Penal Code, as a condition of community
4-20 supervision, to attend and successfully complete an educational
4-21 program for repeat offenders approved by the Texas Commission on
4-22 Alcohol and Drug Abuse. The Texas Commission on Alcohol and Drug
4-23 Abuse shall adopt rules and shall monitor, coordinate, and provide
4-24 training to persons providing the educational programs. The Texas
4-25 Commission on Alcohol and Drug Abuse is responsible for the
4-26 administration of the certification of approved educational
4-27 programs and may charge a nonrefundable application fee for initial
4-28 certification of approval or for renewal of the certification. The
4-29 judge may waive the educational program requirement only if the
4-30 defendant by a motion in writing shows good cause. In determining
4-31 good cause, the judge may consider the defendant's school and work
4-32 schedule, the defendant's health, the distance that the defendant
4-33 must travel to attend an educational program, and whether the
4-34 defendant resides out of state or does not have access to
4-35 transportation. The judge shall set out the finding of good cause
4-36 in the judgment. If a defendant is required, as a condition of
4-37 community supervision, to attend an educational program, the court
4-38 clerk shall immediately report that fact to the Department of
4-39 Public Safety, on a form prescribed by the department, for
4-40 inclusion in the defendant's driving record. The report must
4-41 include the beginning date of the defendant's community
4-42 supervision. On the defendant's successful completion of the
4-43 educational program for repeat offenders, the defendant's
4-44 instructor [defendant] shall give notice to the Department of
4-45 Public Safety for inclusion in the defendant's driving record and
4-46 to the community supervision and corrections department. The
4-47 community supervision and corrections department shall then forward
4-48 the notice to the court clerk for filing. [The court clerk shall
4-49 then report the date of successful completion of the educational
4-50 program to the Department of Public Safety for inclusion in the
4-51 defendant's driving record.] If the Department of Public Safety
4-52 does not receive notice that a defendant required to complete an
4-53 educational program has successfully completed the program for
4-54 repeat offenders within the period required by the judge, as shown
4-55 on department records, the department shall revoke the defendant's
4-56 driver's license, permit, or privilege or prohibit the defendant
4-57 from obtaining a license or permit, as provided by Sections
4-58 521.344(e) and (f), Transportation Code [Section 24(g)(2), Chapter
4-59 173, Acts of the 47th Legislature, Regular Session, 1941 (Article
4-60 6687b, Vernon's Texas Civil Statutes)].
4-61 SECTION 9. Subsection (b), Section 521.342, Transportation
4-62 Code, is amended to read as follows:
4-63 (b) The department shall suspend for one year the license of
4-64 a person who is under 21 years of age and is convicted of an
4-65 offense under Section 49.04, 49.07, or 49.08, Penal Code,
4-66 regardless of whether the person is required to attend an
4-67 educational program under Section 13(h), Article 42.12, Code of
4-68 Criminal Procedure, that is designed to rehabilitate persons who
4-69 have operated motor vehicles while intoxicated, unless the person
5-1 is placed under community supervision under that article and is
5-2 required as a condition of the community supervision to not operate
5-3 a motor vehicle unless the vehicle is equipped with the device
5-4 described by Section 13(i) of that article. If the person is
5-5 required to attend such a program and does not complete the program
5-6 before the end of the person's suspension, the department shall
5-7 suspend the person's license or continue the suspension, as
5-8 appropriate, until the department receives proof that the person
5-9 has successfully completed the program. On the person's successful
5-10 completion of the program, the person's instructor shall give
5-11 notice to the department and to the community supervision and
5-12 corrections [A person who completes the program may submit proof of
5-13 the completion to the clerk of the convicting court. The clerk
5-14 shall send the proof to the] department in the manner provided by
5-15 Section 13(h), Article 42.12, Code of Criminal Procedure.
5-16 SECTION 10. Subsection (i), Section 521.344, Transportation
5-17 Code, is amended to read as follows:
5-18 (i) On the date that a suspension order under Section
5-19 521.343(c) is to expire, the period of suspension or the
5-20 corresponding period in which the department is prohibited from
5-21 issuing a license is automatically increased to two years unless
5-22 the department receives notice of successful completion of the
5-23 educational program as required by Section 13, Article 42.12, Code
5-24 of Criminal Procedure. At the time a person is convicted of an
5-25 offense under Section 49.04, Penal Code, the court shall warn the
5-26 person of the effect of this subsection. On the person's
5-27 successful completion of the program, the person's instructor
5-28 [person] shall give notice to the department and to the community
5-29 supervision and corrections [present proof of the completion to the
5-30 clerk of the court in which the person was convicted. The clerk
5-31 shall report the date of completion to the] department in the
5-32 [same] manner [as that] required by [under] Section 13, Article
5-33 42.12, Code of Criminal Procedure. If the department receives
5-34 proof of completion after a period has been extended under this
5-35 subsection, the department shall immediately end the suspension or
5-36 prohibition.
5-37 SECTION 11. (a) Subsections (a), (b), and (c), Article
5-38 102.002, Code of Criminal Procedure, are repealed.
5-39 (b) Subsection (e), Article 102.005, Code of Criminal
5-40 Procedure, is repealed.
5-41 SECTION 12. (a) The change in law made by this Act to
5-42 Article 11.07, Code of Criminal Procedure, applies only to an
5-43 application for writ of habeas corpus filed on or after the
5-44 effective date of this Act. An application for writ of habeas
5-45 corpus filed before the effective date of this Act is governed by
5-46 the law in effect before the effective date of this Act, and the
5-47 former law is continued in effect for this purpose.
5-48 (b) The change in law made by this Act to Article 20.22,
5-49 Code of Criminal Procedure, applies only to a criminal or
5-50 forfeiture proceeding, as applicable, commenced on or after the
5-51 effective date of this Act. A criminal or forfeiture proceeding
5-52 commenced before the effective date of this Act is governed by the
5-53 law in effect before the effective date of this Act, and the former
5-54 law is continued in effect for this purpose.
5-55 (c) The change in law made by this Act to Section 13,
5-56 Article 42.12, Code of Criminal Procedure, and to Sections 521.342
5-57 and 521.344, Transportation Code, applies only to an educational
5-58 program commenced on or after the effective date of this Act.
5-59 SECTION 13. This Act takes effect September 1, 1999.
5-60 SECTION 14. The importance of this legislation and the
5-61 crowded condition of the calendars in both houses create an
5-62 emergency and an imperative public necessity that the
5-63 constitutional rule requiring bills to be read on three several
5-64 days in each house be suspended, and this rule is hereby suspended.
5-65 * * * * *