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78R11477 GWK-D


By:  Allen, Stick, Uresti, et al.                                 H.B. No. 2668

Substitute the following for H.B. No. 2668:                                   

By:  Alonzo                                                   C.S.H.B. No. 2668


A BILL TO BE ENTITLED
AN ACT
relating to the punishment and sentencing of defendants convicted of certain offenses under the Texas Controlled Substances Act. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Section 12.35, Penal Code, is amended by amending Subsections (a) and (c) and adding Subsection (d) to read as follows: (a) Except as provided by Subsections [Subsection] (c) and (d), an individual adjudged guilty of a state jail felony shall be punished by confinement in a state jail for any term of not more than two years or less than 180 days. (c) An individual adjudged guilty of a state jail felony otherwise punished under Subsection (a) or (d) shall be punished for a third degree felony if it is shown on the trial of the offense that: (1) a deadly weapon as defined by Section 1.07 was used or exhibited during the commission of the offense or during immediate flight following the commission of the offense, and that the individual used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited; or (2) the individual has previously been finally convicted of any felony: (A) listed in Section 3g(a)(1), Article 42.12, Code of Criminal Procedure; or (B) for which the judgment contains an affirmative finding under Section 3g(a)(2), Article 42.12, Code of Criminal Procedure. (d)(1) Except as provided by Subdivisions (2) and (3), an individual adjudged guilty of an offense punishable as a state jail felony under Section 481.115(b), 481.1151(b)(1), 481.116(b), or 481.129(g)(1), Health and Safety Code, shall be punished by confinement in a state jail for any term of not more than 180 days or less than 90 days. (2) If it is shown on the trial of an offense listed in Subdivision (1) that the individual previously has been adjudged guilty one time of an offense listed under Subdivision (1), the individual shall be punished by confinement in a state jail for any term of not more than one year or less than 180 days. (3) If it is shown on the trial of an offense listed in Subdivision (1) that the individual previously has been adjudged guilty two or more times of an offense listed in Subdivision (1), the individual shall be punished by confinement in a state jail for any term of not more than two years or less than 180 days. SECTION 2. Section 12.42(e), Penal Code, is amended to read as follows: (e) A previous conviction for a state jail felony punished under Section 12.35(a) may not be used for enhancement purposes under Subsection (b), (c), or (d). A previous conviction for a state jail felony punished under Section 12.35(d) may not be used for enhancement purposes under Subsection (a), (b), (c), or (d). SECTION 3. Section 15, Article 42.12, Code of Criminal Procedure, is amended by amending Subsections (a), (b), (c), (e), and (g) and by adding Subsection (i) to read as follows: (a)(1) On conviction of a state jail felony punished under Section 12.35(a) or (d)(2) or (3), Penal Code, the judge may suspend the imposition of the sentence and place the defendant on community supervision or may order the sentence to be executed. (2) On conviction of a state jail felony punished under Section 12.35(d)(1), Penal Code, the judge shall suspend the imposition of the sentence and place the defendant on community supervision unless the defendant has previously been convicted of a felony and the sentence for the offense was imposed. (3) If a defendant convicted of a state jail felony punished under Section 12.35(d)(1), Penal Code, is, because of a previous felony conviction, ineligible under Subdivision (2) for an automatic suspension of the imposition of a sentence, the judge may nonetheless suspend the imposition of the sentence and place the defendant on community supervision. (4) The judge may suspend in whole or in part the imposition of any fine imposed on conviction of an offense punished under Section 12.35(a) or (d), Penal Code. (b) The minimum period of community supervision a judge may impose under this section is two years. The maximum period of community supervision a judge may impose under this section is five years for a defendant punished under Section 12.35(a), Penal Code, and three years for a defendant punished under Section 12.35(d), Penal Code, except that the judge may extend the maximum period of community supervision under this section for a defendant punished under Section 12.35(a), Penal Code, to not more than 10 years. A judge may extend a period of community supervision under this section for a defendant punished under Section 12.35(a), Penal Code, at any time during the period of community supervision, or if a motion for revocation of community supervision is filed before the period of community supervision ends, before the first anniversary of the expiration of the period of community supervision. (c)(1) A judge may impose any condition of community supervision on a defendant that the judge could impose on a defendant placed on supervision for an offense other than a state jail felony, except that the judge may impose on the defendant a condition that the defendant submit to a period of confinement in a county jail under Section 5 or 12 of this article only if the term does not exceed 90 days. (2) Except as otherwise provided by Subdivision (3), if a judge places a defendant on community supervision for an offense punished under Section 12.35(d), Penal Code, the judge shall require the defendant to comply with substance abuse treatment conditions that are consistent with standards adopted by the Texas Board of Criminal Justice under Section 509.015, Government Code. (3) A judge is not required to impose conditions described by Subdivision (2) if the judge makes an affirmative finding that the defendant does not require imposition of the conditions to successfully complete the period of community supervision. (e) If a defendant violates a condition of community supervision imposed on the defendant under this article and after a hearing under Section 21 of this article the judge modifies the defendant's community supervision, the judge may impose any sanction permitted by Section 22 of this article, except that if the judge requires a defendant to serve a period of confinement in a state jail felony facility as a modification of the defendant's community supervision, the minimum term of confinement is 90 days and the maximum term of confinement is 180 days if the defendant is punished under Section 12.35(a), Penal Code, and the minimum term of confinement is 45 days and the maximum term of confinement is 90 days if the defendant is punished under Section 12.35(d), Penal Code. (g) The facility director of a state jail felony facility shall report to a judge who orders a defendant confined in the facility as a condition of community supervision or as sanction imposed as a modification of community supervision under Subsection (e) not less than every 90 days on the defendant's programmatic progress, conduct, and conformity to the rules of the facility, unless the defendant is punished under Section 12.35(d), Penal Code, in which event the facility director shall report to the judge not less than every 45 days. (i)(1) If a defendant charged with or convicted of an offense punished under Section 12.35(d)(1), Penal Code, successfully completes a period of community supervision, the judge shall set aside the verdict or permit the defendant to withdraw the plea, and shall dismiss the accusation, complaint, information, or indictment against the defendant. (2) If a defendant charged with or convicted of an offense punished under Section 12.35(d)(2) or (3), Penal Code, successfully completes a period of community supervision, the judge may set aside the verdict in the defendant's case or may permit the defendant to withdraw the plea, and may dismiss the accusation, complaint, information, or indictment against the defendant. (3) Notwithstanding any law enacted by a legislature before the 78th Legislature, Regular Session, 2003, the defendant is released from all penalties and disabilities resulting from a plea of guilty or conviction withdrawn or set aside under this subsection, except that the plea of guilty or conviction may be: (A) used for enhancement purposes under Section 12.35(d), Penal Code; or (B) made known to the judge if the defendant is subsequently charged with or convicted of a criminal offense. SECTION 4. Chapter 509, Government Code, is amended by adding Section 509.015 to read as follows: Sec. 509.015. TREATMENT STANDARDS FOR CERTAIN STATE JAIL FELONIES. The division shall propose and the board shall adopt best practices standards for substance abuse treatment conditions imposed under Section 15(c)(2), Article 42.12, Code of Criminal Procedure. SECTION 5. (a) The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date. (b) An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. SECTION 6. This Act takes effect September 1, 2003.