SRC-JEC S.B. 239 77(R)   BILL ANALYSIS


Senate Research Center   S.B. 239
77R3222 GWK-FBy: Wentworth
Jurisprudence
2/5/2001
As Filed


DIGEST AND PURPOSE 

Currently, a probationer in Texas, during a revocation hearing, may raise
"due diligence" as a defense, asserting that the arresting law enforcement
body did not act in a timely manner following the alleged violation of
probation.  The law enforcement body must prove it acted with due diligence
based on a preponderance of the evidence.  As proposed, S.B. 239 defines
the term "due diligence" to broaden the scope of law enforcement action
fitting within the parameters of judicial scrutiny, and transfers the
burden of persuasion from law enforcement to the probationer, thereby
creating an affirmative defense.  

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to a
state officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 5, Article 42.12, Code of Criminal Procedure, to
add Subsection (g), to define "due diligence."  Provides that at a hearing
under Subsection (b), the failure of the state to exercise due diligence is
an affirmative defense to a determination by the court to proceed with an
adjudication of guilt.  Requires the defendant to prove the failure by a
preponderance of the evidence. 

SECTION 2.  Amends Section 21, Article 42.12, Code of Criminal Procedure,
to add Subsection (e), to provide that in a community supervision
revocation hearing, the failure of the state to exercise due diligence is
an affirmative defense to revocation.  Makes conforming changes. 

SECTION 3.  Makes application of this Act prospective.

SECTION 4.  Effective date:  upon passage or September 1, 2001.