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By: Pena (Senate Sponsor - Whitmire) H.B. No. 1751
(In the Senate - Received from the House April 18, 2005;
April 19, 2005, read first time and referred to Committee on
Criminal Justice; May 20, 2005, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 4, Nays 0;
May 20, 2005, sent to printer.)
COMMITTEE SUBSTITUTE FOR H.B. No. 1751 By: Seliger
A BILL TO BE ENTITLED
AN ACT
relating to the procedures governing the payment of restitution by
criminal defendants.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 42.037, Code of Criminal Procedure, is
amended by amending Subsections (a)-(c) and (e)-(i) to read as
follows:
(a) In addition to any fine authorized by law, the court
that sentences a defendant convicted of an offense may order the
defendant to make restitution to any victim of the offense or to the
compensation to victims of crime fund established under Subchapter
B, Chapter 56, to the extent that fund has paid compensation to or
on behalf of the victim. If the court does not order restitution or
orders partial restitution under this subsection, the court shall
state on the record the reasons for not making the order or for the
limited order.
(b)(1) If the offense results in damage to or loss or
destruction of property of a victim of the offense, the court may
order the defendant:
(A) to return the property to the owner of the
property or someone designated by the owner; or
(B) if return of the property is impossible or
impractical or is an inadequate remedy, to pay an amount equal to
the greater of:
(i) the value of the property on the date of
the damage, loss, or destruction; or
(ii) the value of the property on the date
of sentencing, less the value of any part of the property that is
returned on the date the property is returned.
(2) If the offense results in personal [bodily] injury
to a victim, the court may order the defendant to make restitution
to:
(A) the victim for any expenses incurred by the
victim as a result of the offense; or
(B) the compensation to victims of crime fund to
the extent that fund has paid compensation to or on behalf of the
victim [do any one or more of the following:
[(A) pay an amount equal to the cost of necessary
medical and related professional services and devices relating to
physical, psychiatric, and psychological care, including
nonmedical care and treatment rendered in accordance with a method
of healing recognized by the law of the place of treatment;
[(B) pay an amount equal to the cost of necessary
physical and occupational therapy and rehabilitation; or
[(C) reimburse the victim for income lost by the
victim as a result of the offense].
(3) [If the offense results in the death of a victim,
the court may, in addition to an order under Subdivision (2) of this
subsection, order the defendant to pay an amount equal to the cost
of necessary funeral and related services.
[(4)] If the victim or the victim's estate consents,
the court may, in addition to an order under Subdivision (2) [of
this subsection], order the defendant to make restitution by
performing services instead of by paying money or make restitution
to a person or organization, other than the compensation to victims
of crime fund, designated by the victim or the estate.
(c) The court, in determining whether to order restitution
and the amount of restitution, shall consider:
(1) the amount of the loss sustained by any victim and
the amount paid to or on behalf of the victim by the compensation to
victims of crime fund as a result of the offense; and
(2) [the financial resources of the defendant;
[(3) the financial needs and earning ability of the
defendant and the defendant's dependents; and
[(4)] other factors the court deems appropriate.
(e) The court shall impose an order of restitution that is
as fair as possible to the victim or to the compensation to victims
of crime fund, as applicable. The imposition of the order may not
unduly complicate or prolong the sentencing process.
(f)(1) The court may not order restitution for a loss for
which the victim has received or will receive compensation only
from a source other than the compensation to victims of crime fund.
The court may, in the interest of justice, order restitution to any
person who has compensated the victim for the loss to the extent the
person paid compensation. An order of restitution shall require
that all restitution to a victim or to the compensation to victims
of crime fund be made before any restitution to any other person is
made under the order.
(2) Any amount recovered by a victim from a person
ordered to pay restitution in a federal or state civil proceeding is
reduced by any amount previously paid to the victim by the person
under an order of restitution.
(g)(1) The court may require a defendant to make restitution
under this article within a specified period or in specified
installments. If the court requires the defendant to make
restitution in specified installments, in addition to the
installment payments, the court may require the defendant to pay a
one-time restitution fee of $12, $6 of which the court shall retain
for costs incurred in collecting the specified installments and $6
of which the court shall order to be paid to the compensation to
victims of crime fund.
(2) The end of the period or the last installment may
not be later than:
(A) the end of the period of probation, if
probation is ordered;
(B) five years after the end of the term of
imprisonment imposed, if the court does not order probation; or
(C) five years after the date of sentencing in
any other case.
(3) If the court does not provide otherwise, the
defendant shall make restitution immediately.
(4) Except as provided by Subsection (n), the order of
restitution must require the defendant to make restitution directly
to the victim or other person eligible for restitution under this
article, including the compensation to victims of crime fund, or to
deliver the amount or property due as restitution to a community
supervision and corrections department for transfer to the victim
or person.
(h) If a defendant is placed on community supervision or is
paroled or released on mandatory supervision, the court or the
parole panel shall order the payment of restitution ordered under
this article as a condition of community supervision, parole, or
mandatory supervision. The court may revoke community supervision
and the parole panel may revoke parole or mandatory supervision if
the defendant fails to comply with the order. In determining
whether to revoke community supervision, parole, or mandatory
supervision, the court or parole panel shall consider:
(1) the defendant's employment status;
(2) the defendant's current and future earning
ability;
(3) the defendant's current and future financial
resources;
(4) the willfulness of the defendant's failure to pay;
[and]
(5) any other special circumstances that may affect
the defendant's ability to pay; and
(6) the victim's financial resources or ability to pay
expenses incurred by the victim as a result of the offense.
(i) In addition to any other terms and conditions of
probation imposed under Article 42.12 [of this code], the court may
require a probationer to reimburse the compensation to victims of
crime [crime victims compensation] fund created under Subchapter B,
Chapter 56, for any amounts paid from that fund to or on behalf of a
victim of the probationer's offense. In this subsection, "victim"
has the meaning assigned by Article 56.32 [56.01 of this code].
SECTION 2. Section 11(a), Article 42.12, Code of Criminal
Procedure, is amended to read as follows:
(a) The judge of the court having jurisdiction of the case
shall determine the conditions of community supervision and may, at
any time, during the period of community supervision alter or
modify the conditions. The judge may impose any reasonable
condition that is designed to protect or restore the community,
protect or restore the victim, or punish, rehabilitate, or reform
the defendant. Conditions of community supervision may include,
but shall not be limited to, the conditions that the defendant
shall:
(1) Commit no offense against the laws of this State or
of any other State or of the United States;
(2) Avoid injurious or vicious habits;
(3) Avoid persons or places of disreputable or harmful
character;
(4) Report to the supervision officer as directed by
the judge or supervision officer and obey all rules and regulations
of the community supervision and corrections department;
(5) Permit the supervision officer to visit the
defendant [him] at the defendant's [his] home or elsewhere;
(6) Work faithfully at suitable employment as far as
possible;
(7) Remain within a specified place;
(8) Pay the defendant's [his] fine, if one be assessed,
and all court costs whether a fine be assessed or not, in one or
several sums;
(9) Support the defendant's [his] dependents;
(10) Participate, for a time specified by the judge in
any community-based program, including a community-service work
program under Section 16 of this article;
(11) Reimburse the county in which the prosecution was
instituted for compensation paid to appointed counsel for defending
the defendant [him] in the case, if counsel was appointed, or if the
defendant [he] was represented by a county-paid public defender, in
an amount that would have been paid to an appointed attorney had the
county not had a public defender;
(12) Remain under custodial supervision in a community
corrections facility, obey all rules and regulations of such
facility, and pay a percentage of the defendant's [his] income to
the facility for room and board;
(13) Pay a percentage of the defendant's [his] income
to the defendant's [his] dependents for their support while under
custodial supervision in a community corrections facility;
(14) Submit to testing for alcohol or controlled
substances;
(15) Attend counseling sessions for substance abusers
or participate in substance abuse treatment services in a program
or facility approved or licensed by the Texas Commission on Alcohol
and Drug Abuse;
(16) With the consent of the victim of a misdemeanor
offense or of any offense under Title 7, Penal Code, participate in
victim-defendant mediation;
(17) Submit to electronic monitoring;
(18) Reimburse the compensation to victims of crime
[general revenue] fund for any amounts paid from that fund to or on
behalf of a victim, as defined by Article 56.32 [56.01 of this
code], of the defendant's offense, or if no reimbursement is
required, make one payment to the compensation to victims of crime
fund in an amount not to exceed $50 if the offense is a misdemeanor
or not to exceed $100 if the offense is a felony;
(19) Reimburse a law enforcement agency for the
analysis, storage, or disposal of raw materials, controlled
substances, chemical precursors, drug paraphernalia, or other
materials seized in connection with the offense;
(20) Pay all or part of the reasonable and necessary
costs incurred by the victim for psychological counseling made
necessary by the offense or for counseling and education relating
to acquired immune deficiency syndrome or human immunodeficiency
virus made necessary by the offense;
(21) Make one payment in an amount not to exceed $50 to
a crime stoppers organization as defined by Section 414.001,
Government Code, and as certified by the Crime Stoppers Advisory
Council;
(22) Submit a blood sample or other specimen to the
Department of Public Safety under Subchapter G, Chapter 411,
Government Code, for the purpose of creating a DNA record of the
defendant; and
(23) In any manner required by the judge, provide
public notice of the offense for which the defendant was placed on
community supervision in the county in which the offense was
committed.
SECTION 3. The changes in law made by this Act apply only to
an order of restitution that is entered or a condition of community
supervision that is imposed on or after September 1, 2005. An order
of restitution that is entered or a condition of community
supervision that is imposed before September 1, 2005, is governed
by the law in effect on the date the order was entered or the
condition was imposed, and the former law is continued in effect for
that purpose.
SECTION 4. This Act takes effect September 1, 2005.
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