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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.