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79R4372 PEP-F
By: Whitmire S.B. No. 1266
A BILL TO BE ENTITLED
AN ACT
relating to the exercise of judicial discretion with respect to the
administration of community supervision.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 3(b) and (d), Article 42.12, Code of
Criminal Procedure, are amended to read as follows:
(b) Except as provided by Section 3g of this article,
[Subsection (f), in a felony case the minimum period of community
supervision is the same as the minimum term of imprisonment
applicable to the offense and] the maximum period of community
supervision in a felony case is five [10] years, except that the
judge may impose a maximum of five one-year extensions for good
cause stated in the record of the case. The judge may not impose
more than one extension per hearing held under Section 21.
(d) A judge may increase the maximum period of community
supervision in the manner provided by Section [22(c) or] 22A of this
article.
SECTION 2. Section 3g, Article 42.12, Code of Criminal
Procedure, is amended to read as follows:
Sec. 3g. [LIMITATION ON] JUDGE ORDERED COMMUNITY
SUPERVISION FOR CERTAIN OFFENSES. (a) In a felony case in which
the defendant is convicted of an offense listed in Subdivision (1)
or for which the judgment contains an affirmative finding under
Subdivision (2), the maximum period of community supervision that
may be imposed in the manner provided by Section 3(a) is 10 years.
This subsection applies to [The provisions of Section 3 of this
article do not apply]:
(1) a case involving [to a defendant adjudged guilty
of] an offense under:
(A) Section 19.02, Penal Code (Murder);
(B) Section 19.03, Penal Code (Capital murder);
(C) Section 21.11(a)(1), Penal Code (Indecency
with a child);
(D) Section 20.04, Penal Code (Aggravated
kidnapping);
(E) Section 22.021, Penal Code (Aggravated
sexual assault);
(F) Section 29.03, Penal Code (Aggravated
robbery);
(G) Chapter 481, Health and Safety Code, for
which punishment is increased under:
(i) Section 481.140, Health and Safety
Code; or
(ii) Section 481.134(c), (d), (e), or (f),
Health and Safety Code, if it is shown that the defendant has been
previously convicted of an offense for which punishment was
increased under any of those subsections; or
(H) Section 22.011, Penal Code (Sexual assault);
or
(2) a case in which the trial court makes an
affirmative finding [to a defendant when it is shown] that a deadly
weapon as defined in Section 1.07, Penal Code, was used or exhibited
during the commission of a felony offense or during immediate
flight therefrom, and that the defendant used or exhibited the
deadly weapon or was a party to the offense and knew that a deadly
weapon would be used or exhibited[. On an affirmative finding under
this subdivision], in which event the trial court shall enter the
finding in the judgment of the court. On an affirmative finding
that the deadly weapon was a firearm, the court shall enter that
finding in the [its] judgment of the court.
(b) If there is an affirmative finding under Subsection
(a)(2) in the trial of a felony of the second degree or higher that
the deadly weapon used or exhibited was a firearm and the defendant
is granted community supervision, the court may order the defendant
confined in the institutional division of the Texas Department of
Criminal Justice as provided by Section 6 of this article [for not
less than 60 and not more than 120 days. At any time after the
defendant has served 60 days in the custody of the institutional
division, the sentencing judge, on his own motion or on motion of
the defendant, may order the defendant released to community
supervision. The institutional division shall release the
defendant to community supervision after he has served 120 days].
SECTION 3. Sections 4(b), (c), and (d), Article 42.12, Code
of Criminal Procedure, are amended to read as follows:
(b) If the jury recommends to the judge that the judge place
the defendant on community supervision, the judge shall place the
defendant on community supervision for any period authorized
[permitted] under Section 3 or 3g [3(b) or 3(c)] of this article, as
appropriate.
(c) A judge may increase the maximum period of community
supervision in the manner provided by [Section 22(c) or] Section
22A of this article.
(d) A defendant is not eligible for community supervision
under this section if the defendant:
(1) is sentenced to a term of imprisonment that
exceeds 10 years;
(2) is sentenced to serve a term of confinement under
Section 12.35, Penal Code; or
(3) [does not file a sworn motion under Subsection (e)
of this section or for whom the jury does not enter in the verdict a
finding that the information contained in the motion is true; or
[(4)] is adjudged guilty of an offense for which
punishment is increased under Section 481.134(c), (d), (e), or (f),
Health and Safety Code, if it is shown that the defendant has been
previously convicted of an offense for which punishment was
increased under any one of those subsections.
SECTION 4. Sections 5(a) and (c), Article 42.12, Code of
Criminal Procedure, are amended to read as follows:
(a) Except as provided by Subsection (d) of this section,
when in the judge's opinion the best interest of society and the
defendant will be served, the judge may, after receiving a plea of
guilty or plea of nolo contendere, hearing the evidence, and
finding that it substantiates the defendant's guilt, defer further
proceedings without entering an adjudication of guilt, and place
the defendant on community supervision. A judge may place on
community supervision under this section a defendant charged with
an offense under Section 21.11, 22.011, or 22.021, Penal Code,
regardless of the age of the victim, or a defendant charged with a
felony described by Section 13B(b) of this article, only if the
judge makes a finding in open court that placing the defendant on
community supervision is in the best interest of the victim. The
failure of the judge to find that deferred adjudication is in the
best interest of the victim is not grounds for the defendant to set
aside the plea, deferred adjudication, or any subsequent conviction
or sentence. After placing the defendant on community supervision
under this section, the judge shall inform the defendant orally or
in writing of the possible consequences under Subsection (b) of
this section of a violation of community supervision. If the
information is provided orally, the judge must record and maintain
the judge's statement to the defendant. The failure of a judge to
inform a defendant of possible consequences under Subsection (b) of
this section is not a ground for reversal unless the defendant shows
that he was harmed by the failure of the judge to provide the
information. In a felony case, except as otherwise provided by
Sections 3 and 3g, the period of community supervision may not
exceed five [10] years. [For a defendant charged with a felony
under Section 21.11, 22.011, or 22.021, Penal Code, regardless of
the age of the victim, and for a defendant charged with a felony
described by Section 13B(b) of this article, the period of
community supervision may not be less than five years.] In a
misdemeanor case, the period of community supervision may not
exceed two years. [A judge may increase the maximum period of
community supervision in the manner provided by Section 22(c) or
22A of this article.] The judge may impose a fine applicable to the
offense and require any reasonable conditions of community
supervision[, including mental health treatment under Section
11(d) of this article,] that a judge could impose on a defendant
placed on community supervision for a conviction that was probated
and suspended, including confinement. [The provisions of Section
15 of this article specifying whether a defendant convicted of a
state jail felony is to be confined in a county jail or state jail
felony facility and establishing the minimum and maximum terms of
confinement as a condition of community supervision apply in the
same manner to a defendant placed on community supervision after
pleading guilty or nolo contendere to a state jail felony.]
However, upon written motion of the defendant requesting final
adjudication filed within 30 days after entering such plea and the
deferment of adjudication, the judge shall proceed to final
adjudication as in all other cases.
(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.] 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 5. Section 6(a), Article 42.12, Code of Criminal
Procedure, is amended to read as follows:
(a) For the purposes of this section, the jurisdiction of a
court in which a sentence requiring imprisonment in the
institutional division of the Texas Department of Criminal Justice
is imposed by the judge of the court shall continue for two years
[180 days] from the date the execution of the sentence actually
begins. Before the expiration of two years [180 days] from the date
the execution of the sentence actually begins, the judge of the
court that imposed the [such] sentence may on the judge's [his] own
motion, on the motion of the attorney representing the state, or on
the written motion of the defendant, suspend further execution of
the sentence and place the defendant on community supervision under
the terms and conditions of this article, if in the opinion of the
judge the defendant would not benefit from further imprisonment
and:
(1) the defendant is otherwise eligible for community
supervision under this article; and
(2) the defendant had never before been incarcerated
in a penitentiary serving a sentence for a felony.
SECTION 6. Section 8(a), Article 42.12, Code of Criminal
Procedure, is amended to read as follows:
(a) For the purposes of this section, the jurisdiction of a
court in which a sentence requiring imprisonment in the
institutional division of the Texas Department of Criminal Justice
is imposed for conviction of a felony shall continue for 180 days
from the date on which the convicted person is received into custody
by the institutional division. After the expiration of 75 days but
prior to the expiration of 180 days from the date on which the
convicted person is received into custody by the institutional
division, the judge of the court that imposed the sentence may
suspend further execution of the sentence imposed and place the
person on community supervision under the terms and conditions of
this article, if in the opinion of the judge the person would not
benefit from further imprisonment. The court shall clearly
indicate in its order recommending the placement of the person in
the state boot camp program that the court is not retaining
jurisdiction over the person for the purposes of Section 6 of this
article. A court may recommend a person for placement in the state
boot camp program only if:
(1) the person is otherwise eligible for community
supervision under this article, except that the person remains
eligible for purposes of this subsection if the person is sentenced
to a term of confinement under Section 12.35, Penal Code; and
(2) the person is 17 years of age or older but younger
than 26 years and is physically and mentally capable of
participating in a program that requires strenuous physical
activity[; and
[(3) the person is not convicted of an offense
punishable as a state jail felony].
SECTION 7. Sections 9(a), (j), and (k), Article 42.12, Code
of Criminal Procedure, are amended to read as follows:
(a) Except as provided by Subsection (g) of this section,
before the imposition of sentence by a judge in a felony case, and
except as provided by Subsection (b) of this section, before the
imposition of sentence by a judge in a misdemeanor case, the judge
shall direct a supervision officer to report to the judge in writing
on the circumstances of the offense with which the defendant is
charged, [the amount of restitution necessary to adequately
compensate a victim of the offense,] the criminal and social
history of the defendant, and any other information relating to the
defendant or the offense requested by the judge. The judge may
request [It is not necessary] that the report contain a sentencing
recommendation, [but the report must contain] a proposed client
supervision plan describing programs and sanctions that the
community supervision and corrections department would provide the
defendant if the judge suspended the imposition of the sentence or
granted deferred adjudication, or both.
(j) The judge by order may direct that any information and
records that are not privileged and that are relevant to a report
required by Subsection (a) or Subsection (k) of this section be
released to an officer conducting a presentence investigation under
Subsection (a) [(i)] of this section or a postsentence report under
Subsection (k) of this section. The judge may also issue a subpoena
to obtain that information. A report and all information obtained
in connection with a presentence investigation or postsentence
report are confidential and may be released only:
(1) to those persons and under those circumstances
authorized under [Subsections (d), (e), (f), (h), (k), and (l) of]
this section;
(2) pursuant to Section 614.017, Health and Safety
Code; or
(3) as directed by the judge for the effective
supervision of the defendant.
(k) If a presentence report in a felony case is not required
under this section, the judge may direct the officer to prepare a
postsentence report containing the same information that would have
been included in [required for] the presentence report, other than
a proposed client supervision plan and any information that is
reflected in the judgment. If the postsentence report is ordered,
the officer shall send the report to the clerk of the court not
later than the 30th day after the date on which sentence is
pronounced or deferred adjudication is granted, and the clerk shall
deliver the postsentence report with the papers in the case to a
designated officer of the Texas Department of Criminal Justice, as
described by Section 8(a), Article 42.09.
SECTION 8. Section 10(e), Article 42.12, Code of Criminal
Procedure, is amended to read as follows:
(e) If a supervision officer or magistrate modifies the
conditions of community supervision, the officer or magistrate
shall deliver a copy of the modified conditions to the defendant,
shall file a copy of the modified conditions with the sentencing
court, and shall note the date of delivery of the copy in the
defendant's file. If the defendant agrees to the modification in
writing, the officer or magistrate shall file a copy of the modified
conditions with the district clerk and the conditions shall be
enforced as modified. If the defendant does not agree to the
modification in writing, the supervision officer or magistrate
shall refer the case to the judge of the court for modification [in
the manner provided by Section 22 of this article].
SECTION 9. 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 him at
his home or elsewhere;
[(6) Work faithfully at suitable employment as far as
possible;
[(7) Remain within a specified place;
[(8) Pay his fine, if one be assessed, and all court
costs whether a fine be assessed or not, in one or several sums;
[(9) Support 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 him in the case, if counsel was appointed, or if 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 his income to the facility
for room and board;
[(13) Pay a percentage of his income to 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 general revenue fund for any
amounts paid from that fund to a victim, as defined by Article 56.01
of this code, of the defendant's offense or if no reimbursement is
required, make one payment to the 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 10. Section 14(b), Article 42.12, Code of Criminal
Procedure, is amended to read as follows:
(b) A judge may impose the condition of community
supervision created under this section if the judge:
(1) [the judge] places the defendant on community
supervision under this article; and
(2) [the defendant is charged with or convicted of a
felony other than:
[(A) a felony under Section 21.11, 22.011, or
22.021, Penal Code; or
[(B) criminal attempt of a felony under Section
21.11, 22.011, or 22.021, Penal Code; and
[(3) the judge] makes an affirmative finding that:
(A) drug or alcohol abuse significantly
contributed to the commission of the crime or violation of
community supervision; and
(B) the defendant is a suitable candidate for
treatment, as determined by the suitability criteria established by
the Texas Board of Criminal Justice under Section 493.009(b),
Government Code.
SECTION 11. Sections 15(a), (b), (c), and (e), Article
42.12, Code of Criminal Procedure, are amended to read as follows:
(a)(1) On conviction of a state jail felony [under Section
481.115(b), 481.1151(b)(1), 481.116(b), 481.121(b)(3), or
481.129(g)(1), Health and Safety Code, that is] punished under
Section 12.35(a), 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, in which event the judge] may suspend the imposition of
the sentence and place the defendant on community supervision or
may order the sentence to be executed. [The provisions of this
subdivision requiring the judge to suspend the imposition of the
sentence and place the defendant on community supervision do not
apply to a defendant who under Section 481.1151(b)(1), Health and
Safety Code, possessed more than five abuse units of the controlled
substance or under Section 481.121(b)(3), Health and Safety Code,
possessed more than one pound of marihuana.]
(2) [On conviction of a state jail felony punished
under Section 12.35(a), Penal Code, other than a state jail felony
listed in Subdivision (1), the judge may suspend the imposition of
the sentence and place the defendant on community supervision or
may order the sentence to be executed.
[(3)] The judge may suspend in whole or in part the
imposition of any fine imposed on conviction.
(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, except that the judge may impose a maximum of five one-year
extensions for good cause stated in the record of the case. The
judge may not impose more than one extension per hearing held under
Section 21 [extend the maximum period of community supervision
under this section to not more than 10 years]. A judge may extend a
period of community supervision under this section 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),
a judge who places a defendant on community supervision for an
offense listed in Subsection (a)(1) 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 the judge determines is appropriate [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].
SECTION 12. Section 20, Article 42.12, Code of Criminal
Procedure, is amended to read as follows:
Sec. 20. REDUCTION OR TERMINATION OF COMMUNITY SUPERVISION.
[(a)] At any time 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, [after the defendant has
satisfactorily completed one-third of the original community
supervision period or two years of community supervision, whichever
is less,] the period of community supervision may be reduced or
terminated by the judge. Upon the satisfactory fulfillment of the
conditions of community supervision, and the expiration of the
period of community supervision, the judge, by order duly entered,
shall amend or modify the original sentence imposed, if necessary,
to conform to the community supervision period and shall discharge
the defendant. If the judge discharges the defendant under this
section, the judge may set aside the verdict or permit the defendant
to withdraw his plea, and shall dismiss the accusation, complaint,
information or indictment against the defendant, who shall
thereafter be released from all penalties and disabilities
resulting from the offense or crime of which he has been convicted
or to which he has pleaded guilty, except that:
(1) proof of the conviction or plea of guilty shall be
made known to the judge should the defendant again be convicted of
any criminal offense; and
(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 under this
article in issuing, renewing, denying, or revoking a license under
that chapter.
[(b) This section does not apply to a defendant convicted of
an offense under Sections 49.04-49.08, Penal Code, a defendant
convicted of an offense for which on conviction registration as a
sex offender is required under Chapter 62, as added by Chapter 668,
Acts of the 75th Legislature, Regular Session, 1997, or a defendant
convicted of an offense punishable as a state jail felony.]
SECTION 13. Section 23(b), Article 42.12, Code of Criminal
Procedure, is amended to read as follows:
(b) A judge may credit against any term of confinement a
defendant is sentenced to serve under this section all or [No] part
of the time that the defendant served [is] on community supervision
[shall be considered as any part of the time that he shall be
sentenced to serve]. The right of the defendant to appeal for a
review of the conviction and punishment, as provided by law, shall
be accorded the defendant at the time he is placed on community
supervision. When he is notified that his community supervision is
revoked for violation of the conditions of community supervision
and he is called on to serve a sentence in a jail or in the
institutional division of the Texas Department of Criminal Justice,
he may appeal the revocation.
SECTION 14. The following provisions of Article 42.12, Code
of Criminal Procedure, are repealed:
(1) Section 3(f);
(2) Section 4(e);
(3) Section 5(d);
(4) Sections 9(h) and (i);
(5) Section 9A;
(6) Sections 11(b)-(l);
(7) Section 13;
(8) Section 13A;
(9) Section 13B;
(10) Section 13C;
(11) Section 13D;
(12) Section 14 as amended by Chapter 165, Acts of the
73rd Legislature, Regular Session, 1993, by Chapter 910, Acts of
the 76th Legislature, Regular Session, 1999, and by Chapter 353,
Acts of the 78th Legislature, Regular Session, 2003;
(13) Section 15(d);
(14) Section 15A; and
(15) Section 22.
SECTION 15. The changes in law made by this Act apply only
to a defendant charged with an offense committed on or after the
effective date of this Act. A defendant charged with an offense
committed before the effective date of this Act is governed 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 16. This Act takes effect September 1, 2005.