By Wentworth                                           S.B. No. 239
         77R3222 GWK-F                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to a defense to proceeding with an adjudication of guilt
 1-3     or to a revocation of community supervision.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1. Section 5, Article 42.12, Code of Criminal
 1-6     Procedure, is amended by adding Subsection (g) to read as follows:
 1-7           (g)(1)  In this subsection, "due diligence" means a
 1-8     reasonable effort to apprehend the defendant and hear and determine
 1-9     an alleged violation of a condition of community supervision within
1-10     a reasonable period of time.
1-11                 (2)  At a hearing under Subsection (b), the failure of
1-12     the state to exercise due diligence is an affirmative defense to a
1-13     determination by the court to proceed with an adjudication of
1-14     guilt.  The defendant must prove the failure by a preponderance of
1-15     the evidence.
1-16           SECTION 2. Section 21, Article 42.12, Code of Criminal
1-17     Procedure, is amended by adding Subsection (e) to read as follows:
1-18           (e)(1)  In this subsection, "due diligence" means a
1-19     reasonable effort to apprehend the defendant and hear and determine
1-20     an alleged violation of a condition of community supervision within
1-21     a reasonable period of time.
1-22                 (2)  In a community supervision revocation hearing, the
1-23     failure of the state to exercise due diligence is an affirmative
1-24     defense to revocation.  The defendant must prove the failure by a
 2-1     preponderance of the evidence.
 2-2           SECTION 3. The change in law made by this Act applies to a
 2-3     hearing under Article 42.12, Code of Criminal Procedure, as amended
 2-4     by this Act, that commences on or after the effective date of this
 2-5     Act, regardless if the defendant was placed on community
 2-6     supervision before, on, or after the effective date of this Act.
 2-7           SECTION 4.  This Act takes effect immediately if it receives
 2-8     a vote of two-thirds of all the members elected to each house, as
 2-9     provided by Section 39, Article III, Texas Constitution.  If this
2-10     Act does not receive the vote necessary for immediate effect, this
2-11     Act takes effect September 1, 2001.