79R5891 KEL-F
By: Orr H.B. No. 3018
A BILL TO BE ENTITLED
AN ACT
relating to penalties for repeat and habitual felony offenders.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 12.42, Penal Code, is amended to read as
follows:
Sec. 12.42. PENALTIES FOR REPEAT AND HABITUAL FELONY
OFFENDERS. (a) The penalties provided by Subchapter C are enhanced
for repeat offenders as follows:
(1)(A) If it is shown that a defendant on trial for a
state jail felony has previously been convicted of a state jail
felony offense, the minimum term of confinement is nine months.
(B) If it is shown that a defendant on trial for a
state jail felony has previously been convicted of a felony other
than a state jail felony, the minimum term of confinement is 12
months.
(C) If it is shown that a defendant on trial for a
state jail felony has previously been twice convicted of felony
offenses arising out of different criminal transactions, the
defendant shall be punished and subsequently be considered for
purposes of this section as though convicted of a felony of the
third degree.
(2)(A) If it is shown that a defendant on trial for a
felony of the third degree has previously been convicted of a state
jail felony or a felony of the third degree, the minimum term of
confinement is four years.
(B) If it is shown that a defendant on trial for a
felony of the third degree has previously been convicted of a second
or first degree felony, the minimum term of confinement is five
years and the maximum term of confinement is 20 years.
(C) If it is shown that a defendant on trial for a
felony of the third degree has been twice convicted of felony
offenses arising out of different criminal transactions, the
defendant shall be punished and subsequently be considered for the
purposes of this section as though convicted of a felony of the
second degree, the punishment for which must be a minimum term of
confinement of five years.
(3)(A) If it is shown that a defendant on trial for a
felony of the second degree has previously been convicted of a state
jail felony or a felony of the third degree, the minimum term of
confinement is six years.
(B) If it is shown that a defendant on trial for a
felony of the second degree has previously been convicted of a
felony of the second or first degree, the defendant shall be
punished and subsequently be considered for the purposes of this
section as though convicted of a felony of the first degree.
(C) If it is shown that a defendant on trial for a
felony of the second degree has been twice convicted of felony
offenses arising out of different criminal transactions, the
defendant shall be punished and subsequently be considered for the
purposes of this section as though the defendant were convicted of a
felony of the first degree, the punishment for which must be a
minimum term of confinement of 15 years.
(4)(A) If it is shown that a defendant on trial for a
felony of the first degree has previously been convicted of a state
jail felony or a felony of the third degree, the minimum term of
confinement is 10 years.
(B) If it is shown that a defendant on trial for a
felony of the first degree has previously been convicted of a felony
of the second or first degree, the minimum term of confinement is 15
years.
(C) If it is shown that a defendant on trial for a
felony of the first degree has been twice convicted of felony
offenses arising out of criminal transactions, the minimum term of
confinement is 25 years.
(b) For the purposes of this section, except as provided by
Subsection (c) and regardless of whether the imposition of sentence
for the prior offense was suspended, until the judgment is set aside
by a court as provided by law or on a pardon in accordance with
Section 11, Article IV, Texas Constitution, a person is considered
to be convicted of an offense if the offense was committed before
the commission of the offense for which the defendant is on trial
and a written judgment adjudicating the defendant's guilt is signed
on or before the date the defendant is sentenced for the offense on
trial. A judgment of conviction is not considered to be set aside
by an order granting community supervision or an order entered
under Section 20(a), Article 42.12, Code of Criminal Procedure, or
another similar statute.
(c) A person whose punishment is determined under
Subsection (b) based on a prior conviction that is subsequently set
aside shall be resentenced under the procedure prescribed in
Article 44.29(b), Code of Criminal Procedure, within the range of
punishment applicable to the offense as though the previous invalid
conviction had never occurred.
(d) For the purposes of this section:
(1) a person convicted of a capital felony who is
punished by imprisonment for life is considered to have been
convicted of a felony of the first degree; and
(2) a person convicted of an offense punished under
Section 12.35(c) is considered to have been convicted of a felony of
the third degree.
(e) The sentence of a person punished under Section 12.35(c)
may be further enhanced under Subsection (a)(2) as though the
person were on trial for a felony of the third degree [(a)(1) If it
is shown on the trial of a state jail felony punishable under
Section 12.35(a) that the defendant has previously been finally
convicted of two state jail felonies, on conviction the defendant
shall be punished for a third-degree felony.
[(2) If it is shown on the trial of a state jail felony
punishable under Section 12.35(a) that the defendant has previously
been finally convicted of two felonies, and the second previous
felony conviction is for an offense that occurred subsequent to the
first previous conviction having become final, on conviction the
defendant shall be punished for a second-degree felony.
[(3) If it is shown on the trial of a state jail felony
punishable under Section 12.35(c) or on the trial of a third-degree
felony that the defendant has been once before convicted of a
felony, on conviction he shall be punished for a second-degree
felony.
[(b) If it is shown on the trial of a second-degree felony
that the defendant has been once before convicted of a felony, on
conviction he shall be punished for a first-degree felony.
[(c)(1) Except as provided by Subdivision (2), if it is
shown on the trial of a first-degree felony that the defendant has
been once before convicted of a felony, on conviction he shall be
punished by imprisonment in the institutional division of the Texas
Department of Criminal Justice for life, or for any term of not more
than 99 years or less than 15 years. In addition to imprisonment,
an individual may be punished by a fine not to exceed $10,000.
[(2) A defendant shall be punished by imprisonment in
the institutional division for life if:
[(A) the defendant is convicted of an offense:
[(i) under Section 22.021 or 22.011, Penal
Code;
[(ii) under Section 20.04(a)(4), Penal
Code, if the defendant committed the offense with the intent to
violate or abuse the victim sexually; or
[(iii) under Section 30.02, Penal Code,
punishable under Subsection (d) of that section, if the defendant
committed the offense with the intent to commit a felony described
by Subparagraph (i) or (ii) or a felony under Section 21.11 or
22.011, Penal Code; and
[(B) the defendant has been previously convicted
of an offense:
[(i) under Section 43.25 or 43.26, Penal
Code, or an offense under Section 43.23, Penal Code, punishable
under Subsection (h) of that section;
[(ii) under Section 21.11, 22.011, 22.021,
or 25.02, Penal Code;
[(iii) under Section 20.04(a)(4), Penal
Code, if the defendant committed the offense with the intent to
violate or abuse the victim sexually;
[(iv) under Section 30.02, Penal Code,
punishable under Subsection (d) of that section, if the defendant
committed the offense with the intent to commit a felony described
by Subparagraph (ii) or (iii); or
[(v) under the laws of another state
containing elements that are substantially similar to the elements
of an offense listed in Subparagraph (i), (ii), (iii), or (iv).
[(d) If it is shown on the trial of a felony offense other
than a state jail felony punishable under Section 12.35(a) that the
defendant has previously been finally convicted of two felony
offenses, and the second previous felony conviction is for an
offense that occurred subsequent to the first previous conviction
having become final, on conviction he shall be punished by
imprisonment in the institutional division of the Texas Department
of Criminal Justice for life, or for any term of not more than 99
years or less than 25 years.
[(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).
[(f) For the purposes of Subsections (a), (b), (c)(1), and
(e), an adjudication by a juvenile court under Section 54.03,
Family Code, that a child engaged in delinquent conduct on or after
January 1, 1996, constituting a felony offense for which the child
is committed to the Texas Youth Commission under Section
54.04(d)(2), (d)(3), or (m), Family Code, or Section 54.05(f),
Family Code, is a final felony conviction.
[(g) For the purposes of Subsection (c)(2):
[(1) a defendant has been previously convicted of an
offense listed under Subsection (c)(2)(B) if the defendant was
adjudged guilty of the offense or entered a plea of guilty or nolo
contendere in return for a grant of deferred adjudication,
regardless of whether the sentence for the offense was ever imposed
or whether the sentence was probated and the defendant was
subsequently discharged from community supervision; and
[(2) a conviction under the laws of another state for
an offense containing elements that are substantially similar to
the elements of an offense listed under Subsection (c)(2)(B) is a
conviction of an offense listed under Subsection (c)(2)(B)].
SECTION 2. Section 4, Article 37.07, Code of Criminal
Procedure, is amended by amending Subsections (b) and (c) and
adding Subsection (d) to read as follows:
(b) In the penalty phase of the trial of a felony case in
which the punishment is to be assessed by the jury rather than the
court, if the offense is punishable as a felony of the first degree,
if [a prior conviction has been alleged for enhancement of
punishment as provided by Section 12.42(b), (c), or (d), Penal
Code, or if] the offense is a felony not designated as a capital
felony or a felony of the first, second, or third degree and the
maximum term of imprisonment that may be imposed for the offense is
longer than 60 years, unless the offense of which the jury has found
the defendant guilty is listed in Section 3g(a)(1), Article 42.12,
of this code or the judgment contains an affirmative finding under
Section 3g(a)(2), Article 42.12, of this code, the court shall
charge the jury in writing as follows:
"Under the law applicable in this case, the defendant, if
sentenced to a term of imprisonment, may earn time off the period of
incarceration imposed through the award of good conduct time.
Prison authorities may award good conduct time to a prisoner who
exhibits good behavior, diligence in carrying out prison work
assignments, and attempts at rehabilitation. If a prisoner engages
in misconduct, prison authorities may also take away all or part of
any good conduct time earned by the prisoner.
"It is also possible that the length of time for which the
defendant will be imprisoned might be reduced by the award of
parole.
"Under the law applicable in this case, if the defendant is
sentenced to a term of imprisonment, he will not become eligible for
parole until the actual time served plus any good conduct time
earned equals one-fourth of the sentence imposed or 15 years,
whichever is less. Eligibility for parole does not guarantee that
parole will be granted.
"It cannot accurately be predicted how the parole law and
good conduct time might be applied to this defendant if he is
sentenced to a term of imprisonment, because the application of
these laws will depend on decisions made by prison and parole
authorities.
"You may consider the existence of the parole law and good
conduct time. However, you are not to consider the extent to which
good conduct time may be awarded to or forfeited by this particular
defendant. You are not to consider the manner in which the parole
law may be applied to this particular defendant."
(c) In the penalty phase of the trial of a felony case in
which the punishment is to be assessed by the jury rather than the
court, if the offense is punishable as a felony of the second or
third degree, if [a prior conviction has been alleged for
enhancement as provided by Section 12.42(a), Penal Code, or if] the
offense is a felony not designated as a capital felony or a felony
of the first, second, or third degree and the maximum term of
imprisonment that may be imposed for the offense is 60 years or
less, unless the offense of which the jury has found the defendant
guilty is listed in Section 3g(a)(1), Article 42.12, of this code or
the judgment contains an affirmative finding under Section
3g(a)(2), Article 42.12, of this code, the court shall charge the
jury in writing as follows:
"Under the law applicable in this case, the defendant, if
sentenced to a term of imprisonment, may earn time off the period of
incarceration imposed through the award of good conduct time.
Prison authorities may award good conduct time to a prisoner who
exhibits good behavior, diligence in carrying out prison work
assignments, and attempts at rehabilitation. If a prisoner engages
in misconduct, prison authorities may also take away all or part of
any good conduct time earned by the prisoner.
"It is also possible that the length of time for which the
defendant will be imprisoned might be reduced by the award of
parole.
"Under the law applicable in this case, if the defendant is
sentenced to a term of imprisonment, he will not become eligible for
parole until the actual time served plus any good conduct time
earned equals one-fourth of the sentence imposed. Eligibility for
parole does not guarantee that parole will be granted.
"It cannot accurately be predicted how the parole law and
good conduct time might be applied to this defendant if he is
sentenced to a term of imprisonment, because the application of
these laws will depend on decisions made by prison and parole
authorities.
"You may consider the existence of the parole law and good
conduct time. However, you are not to consider the extent to which
good conduct time may be awarded to or forfeited by this particular
defendant. You are not to consider the manner in which the parole
law may be applied to this particular defendant."
(d) In the penalty phase of the trial of a felony case in
which the punishment is to be assessed by the jury and in which a
prior conviction has been alleged for enhancement of punishment as
provided by Section 12.42, Penal Code, the court shall charge the
jury in writing in the same manner as required by Subsections (b)
and (c) of this section, except that the court shall include in the
charge the applicable minimum and maximum terms of confinement
required by Section 12.42.
SECTION 3. Section 5(c), Article 42.12, Code of Criminal
Procedure, is amended to read as follows:
(c) On expiration of a community supervision period imposed
under Subsection (a) of this section, if the judge has not proceeded
to adjudication of guilt, the judge shall dismiss the proceedings
against the defendant and discharge him. The judge may dismiss the
proceedings and discharge a defendant, other than a defendant
charged with an offense requiring the defendant to register as a sex
offender under Chapter 62, [as added by Chapter 668, Acts of the
75th Legislature, Regular Session, 1997,] prior to the expiration
of the term of community supervision if in the judge's opinion the
best interest of society and the defendant will be served. The
judge may not dismiss the proceedings and discharge a defendant
charged with an offense requiring the defendant to register under
Chapter 62[, as added by Chapter 668, Acts of the 75th Legislature,
Regular Session, 1997]. A [Except as provided by Section 12.42(g),
Penal Code, a] dismissal and discharge under this section may not be
deemed a conviction for the purposes of disqualifications or
disabilities imposed by law for conviction of an offense. For any
defendant who receives a dismissal and discharge under this
section:
(1) upon conviction of a subsequent offense, the fact
that the defendant had previously received community supervision
with a deferred adjudication of guilt shall be admissible before
the court or jury to be considered on the issue of penalty;
(2) if the defendant is an applicant for a license or
is a licensee under Chapter 42, Human Resources Code, the Texas
Department of Human Services may consider the fact that the
defendant previously has received community supervision with a
deferred adjudication of guilt under this section in issuing,
renewing, denying, or revoking a license under that chapter; and
(3) if the defendant is a person who has applied for
registration to provide mental health or medical services for the
rehabilitation of sex offenders, the Interagency Council on Sex
Offender Treatment may consider the fact that the defendant has
received community supervision under this section in issuing,
renewing, denying, or revoking a license or registration issued by
that council.
SECTION 4. The change in law made by this Act applies only
to an offense committed on or after the effective date of this Act.
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. For purposes of
this section, an offense was committed before the effective date of
this Act if any element of the offense was committed before that
date.
SECTION 5. This Act takes effect September 1, 2005.