By: Whitmire S.B. No. 1266
(In the Senate - Filed March 9, 2005; March 21, 2005, read
first time and referred to Committee on Criminal Justice;
May 3, 2005, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 5, Nays 1; May 3, 2005, sent
to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1266 By: Hinojosa
A BILL TO BE ENTITLED
AN ACT
relating to the administration of a system of community supervision
for certain defendants convicted of criminal offenses and to the
suspension of driver's licenses for defendants convicted of certain
offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. COMMUNITY SUPERVISION
SECTION 1.01. Article 42.12, Code of Criminal Procedure, is
amended to read as follows:
Art. 42.12. COMMUNITY SUPERVISION
Sec. 1. PURPOSE. It is the purpose of this article to place
wholly within the state courts the responsibility for determining
when the imposition of sentence in certain cases shall be
suspended, the conditions of community supervision, [and] the
supervision of defendants placed on community supervision, and the
imposition of progressive sanctions on defendants in consonance
with the powers assigned to the judicial branch of this government
by the Constitution of Texas. It is the purpose of this article to
remove from existing statutes the limitations, other than questions
of constitutionality, that have acted as barriers to effective
systems of sanctions–based community supervision in the public
interest.
Sec. 2. DEFINITIONS. In this article:
(1) ["Court" means a court of record having original
criminal jurisdiction.
[(2)] "Community supervision" means the placement of a
defendant by a court under a continuum of programs and sanctions,
with conditions imposed by the court for a specified period during
which:
(A) criminal proceedings are deferred without an
adjudication of guilt; or
(B) a sentence of imprisonment or confinement,
imprisonment and fine, or confinement and fine, is probated and the
imposition of sentence is suspended in whole or in part.
(2) "Court" means a court of record having original
criminal jurisdiction.
(3) ["Supervision officer" means a person appointed or
employed under Section 76.004, Government Code, to supervise
defendants placed on community supervision.
[(4)] "Electronic monitoring" includes voice tracking
systems, position tracking systems, position location systems,
biometric tracking systems, and any other electronic or
telecommunications system that may be used to assist in the
supervision of individuals under this article.
(4) "Supervision officer" means a person appointed or
employed under Chapter 76, Government Code, to supervise defendants
placed on community supervision.
Sec. 3. JUDGE ORDERED COMMUNITY SUPERVISION. (a) A judge,
in the best interest of justice, the public, and the defendant,
after conviction or a plea of guilty or nolo contendere, may suspend
the imposition of the sentence and place the defendant on community
supervision [or impose a fine applicable to the offense and place
the defendant on community supervision].
(b) The maximum period of community supervision for a felony
described by Section 3g is 10 years. The [Except as provided by
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 for any other felony of the first, second, or third
degree is five [10] years, subject to the extensions provided by
Section 21.
(c) The maximum period of community supervision in a
misdemeanor case is two years, subject to extensions provided by
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.
[(e)] 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[; or
[(2) is sentenced to serve a term of confinement under
Section 12.35, Penal Code].
(e) [(f) The minimum period of community supervision for a
felony described by Section 13B(b) is five years and the maximum
period of supervision is 10 years.
[(g)] A judge shall not deny community supervision to a
defendant based solely on the defendant's inability to speak, read,
write, hear, or understand English.
Sec. 3g. LIMITATION ON JUDGE ORDERED COMMUNITY SUPERVISION.
(a) The provisions of Section 3 of this article do not apply:
(1) 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) 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, 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 its
judgment.
(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 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 department [institutional division], the sentencing judge, on
his own motion or on motion of the defendant, may order the
defendant released to community supervision. The department
[institutional division] shall release the defendant to community
supervision after he has served 120 days.
Sec. 4. JURY RECOMMENDED COMMUNITY SUPERVISION. (a) A
jury that imposes confinement as punishment for an offense may
recommend to the judge that the judge suspend the imposition of the
confinement, the fine, or both the confinement and fine [sentence]
and place the defendant on community supervision. The [A] judge
shall follow [suspend] the recommendation of the jury [imposition
of the sentence and place the defendant on community supervision if
the jury makes that recommendation in the verdict].
(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 permitted under
Section 3(b) or 3(c) [of this article], as appropriate, subject to
the extensions provided by Section 21.
(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;
[(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
(3) [(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.
(d) [(e)] A defendant is eligible for community supervision
under this section only if before the trial begins the defendant
files a written sworn motion with the judge that the defendant has
not previously been convicted of a felony in this or any other
state, and the jury enters in the verdict a finding that the
information in the defendant's motion is true.
Sec. 5. DEFERRED ADJUDICATION; COMMUNITY SUPERVISION.
(a) When [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. The maximum period of community supervision for a
felony described by Section 3g is 10 years, subject to the
extensions provided by Section 21. In any other [a] felony of the
first, second, or third degree [case], the period of community
supervision may not exceed five [10] years, subject to the
extensions provided by Section 21. The maximum period of community
supervision for a state jail felony, with extensions, is as
provided by Section 14. [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, subject to the extensions provided by Section 21.
[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.]
(b) On violation of a condition of community supervision
imposed under Subsection (a) [of this section], the defendant may
be arrested and detained as provided in Section 20 [21 of this
article]. The defendant is entitled to a hearing limited to the
determination by the court of whether it proceeds with an
adjudication of guilt on the original charge. No appeal may be
taken from this determination. After an adjudication of guilt, all
proceedings, including assessment of punishment, pronouncement of
sentence, granting of community supervision, and defendant's
appeal continue as if the adjudication of guilt had not been
deferred. A court assessing punishment after an adjudication of
guilt [of a defendant charged with a state jail felony] may suspend
the imposition of the sentence and place the defendant on community
supervision or may order the sentence to be executed, regardless of
whether the defendant has previously been convicted of a felony.
(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. Notwithstanding a provision in any other law that
provides that a defendant who has successfully completed a period
of community supervision is finally convicted for purposes of
enhancement, or that disqualifies the defendant from a license or
other benefit provided by the state or a political subdivision of
the state or imposes a civil consequence on the defendant, a [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. A
defendant placed on community supervision under this section is
nonetheless required to pay costs, fees, and other assessments
required by law to be paid on conviction of an offense, other than a
fine imposed as punishment for the offense. On discharge and
dismissal under this section, the court that placed the defendant
on deferred adjudication shall enter an order of nondisclosure
under Section 411.081, Government Code. [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.]
(d) [In all other cases the judge may grant deferred
adjudication unless:
[(1) the defendant is charged with an offense:
[(A) under Section 49.04, 49.05, 49.06, 49.07, or
49.08, Penal Code; or
[(B) for which punishment may be 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; or
[(2) the defendant:
[(A) is charged with an offense under Section
21.11, 22.011, or 22.021, Penal Code, regardless of the age of the
victim, or a felony described by Section 13B(b) of this article; and
[(B) has previously been placed on community
supervision for any offense under Paragraph (A) of this
subdivision.
[(e) If a judge places on community supervision under this
section a defendant charged with an offense under Section 20.02,
20.03, or 20.04, Penal Code, or an attempt, conspiracy, or
solicitation to commit one of those offenses, the judge shall make
an affirmative finding of fact and file a statement of that
affirmative finding with the papers in the case if the judge
determines that the victim or intended victim was younger than 17
years of age at the time of the offense.
[(f)] A record in the custody of the court clerk regarding a
case in which a person is granted deferred adjudication is not
confidential.
[(g) If a judge places on community supervision under this
section a defendant charged with an offense under Section 21.11,
22.011, 22.021, or 43.25, Penal Code, the judge shall make an
affirmative finding of fact and file a statement of that
affirmative finding with the papers in the case if the judge
determines that:
[(1) at the time of the offense, the defendant was
younger than 19 years of age and the victim or intended victim was
at least 13 years of age; and
[(2) the charge to which the plea is entered under this
section is based solely on the ages of the defendant and the victim
or intended victim at the time of the offense.]
(e) [(h)] A court retains jurisdiction to hold a hearing
under Subsection (b) and to proceed with an adjudication of guilt,
regardless of whether the period of community supervision imposed
on the defendant has expired, if before the expiration the attorney
representing the state files a motion to proceed with the
adjudication and a capias is issued for the arrest of the defendant.
Sec. 6. CONTINUING COURT JURISDICTION IN FELONY CASES.
(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 180 days from the date the
execution of the sentence actually begins. Before the expiration
of 180 days from the date the execution of the sentence actually
begins, the judge of the court that imposed such sentence may on 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].
(b) When the defendant or the attorney representing the
state files a written motion requesting suspension by the judge of
further execution of the sentence and placement of the defendant on
community supervision, and when requested to do so by the judge, the
clerk of the court shall request a copy of the defendant's record
while imprisoned from the [institutional division of the] Texas
Department of Criminal Justice or, if the defendant is confined in
county jail, from the sheriff. Upon receipt of such request, the
[institutional division of the] Texas Department of Criminal
Justice or the sheriff shall forward to the judge, as soon as
possible, a full and complete copy of the defendant's record while
imprisoned or confined. When the defendant files a written motion
requesting suspension of further execution of the sentence and
placement on community supervision, he shall immediately deliver or
cause to be delivered a true and correct copy of the motion to the
office of the attorney representing the state.
(c) The judge may deny the motion without a hearing but may
not grant the motion without holding a hearing and providing the
attorney representing the state and the defendant the opportunity
to present evidence on the motion.
Sec. 7. CONTINUING COURT JURISDICTION IN MISDEMEANOR CASES.
(a) For the purposes of this section, the jurisdiction of the
courts in this state in which a sentence requiring confinement in a
jail is imposed for conviction of a misdemeanor shall continue for
180 days from the date the execution of the sentence actually
begins. The judge of the court that imposed such sentence may on
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 confinement.
(b) When the defendant files a written motion with the court
requesting suspension of further execution of the sentence and
placement on community supervision or when requested to do so by the
judge, the clerk of the court shall request a copy of the
defendant's record while confined from the agency operating the
jail where the defendant is confined. Upon receipt of such request,
the agency operating the jail where the defendant is confined shall
forward to the court as soon as possible a full and complete copy of
the defendant's record while confined.
(c) The judge may deny the motion without a hearing but may
not grant a motion without holding a hearing and allowing the
attorney representing the state and the defendant to present
evidence in the case.
Sec. 8. STATE BOOT CAMP PROGRAM. (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 department
[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 department
[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;
[(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
(2) [(3)] the person is not convicted of an offense
punishable as a state jail felony.
(b) On the 76th day after the day on which the convicted
person is received into custody by the Texas Department of Criminal
Justice [institutional division], the department [institutional
division] shall send the convicting court the record of the
person's progress, conduct, and conformity to department
[institutional division] rules.
(c) The judge's recommendation that a person be placed in
the state boot camp program created under Section 499.052,
Government Code, does not give the court the power to hold the Texas
Department of Criminal Justice or any officer or employee of the
department in contempt of court for failure to adhere to that
recommendation.
Sec. 9. PRESENTENCE INVESTIGATIONS. (a) Before [Except as
provided by Subsection (g) of this section, before] the imposition
of a 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 may [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, whether drug or alcohol abuse may have contributed to
the commission of the offense, and any other information relating
to the defendant or the offense requested by the judge. 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].
(b) [The judge is not required to direct a supervision
officer to prepare a report in a misdemeanor case if:
[(1) the defendant requests that a report not be made
and the judge agrees to the request; or
[(2) the judge finds that there is sufficient
information in the record to permit the meaningful exercise of
sentencing discretion and the judge explains this finding on the
record.
[(c)] The judge may not inspect a report and the contents of
the report may not be disclosed to any person unless:
(1) the defendant pleads guilty or nolo contendere or
is convicted of the offense; or
(2) the defendant, in writing, authorizes the judge to
inspect the report.
(c) [(d)] Before sentencing a defendant, the judge shall
permit the defendant or his counsel to read the presentence report.
(d) [(e)] The judge shall allow the defendant or his
attorney to comment on a presentence investigation or a
postsentence report and, with the approval of the judge, introduce
testimony or other information alleging a factual inaccuracy in the
investigation or report.
(e) [(f)] The judge shall allow the attorney representing
the state access to any information made available to the defendant
under this section.
[(g) Unless requested by the defendant, a judge is not
required to direct an officer to prepare a presentence report in a
felony case under this section if:
[(1) punishment is to be assessed by a jury;
[(2) the defendant is convicted of or enters a plea of
guilty or nolo contendere to capital murder;
[(3) the only available punishment is imprisonment; or
[(4) the judge is informed that a plea bargain
agreement exists, under which the defendant agrees to a punishment
of imprisonment, and the judge intends to follow the agreement.
[(h) On a determination by the judge that alcohol or drug
abuse may have contributed to the commission of the offense, or in
any case involving a second or subsequent offense under Section
49.04, Penal Code, committed within five years of the date on which
the most recent preceding offense was committed, or a second or
subsequent offense under Section 49.07 or 49.08 of that code that
involves the operation of a motor vehicle, committed within five
years of the date on which the most recent preceding offense was
committed, the judge shall direct a supervision officer approved by
the community supervision and corrections department or the judge
or a person, program, or other agency approved by the Texas
Commission on Alcohol and Drug Abuse, to conduct an evaluation to
determine the appropriateness of, and a course of conduct necessary
for, alcohol or drug rehabilitation for a defendant and to report
that evaluation to the judge. The evaluation shall be made:
[(1) after arrest and before conviction, if requested
by the defendant;
[(2) after conviction and before sentencing, if the
judge assesses punishment in the case;
[(3) after sentencing and before the entry of a final
judgment, if the jury assesses punishment in the case; or
[(4) after community supervision is granted, if the
evaluation is required as a condition of community supervision
under Section 13 of this article.
[(i) A presentence investigation conducted on any defendant
convicted of a felony offense who appears to the judge through its
own observation or on suggestion of a party to have a mental
impairment shall include a psychological evaluation which
determines, at a minimum, the defendant's IQ and adaptive behavior
score. The results of the evaluation shall be included in the
report to the judge as required by Subsection (a) of this section.]
(f) [(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 (g) [(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 (g) [(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.
(g) [(k)] If a presentence report in a felony case is not
ordered [required] under this section, the judge may direct the
officer to prepare a postsentence report containing the same
information that would have been 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.
(h) [Sec. 9A. SEX OFFENDERS: PRESENTENCE INVESTIGATION AND
POSTSENTENCE TREATMENT AND SUPERVISION. (a)] In Subsections (i)
and (j) [this section]:
(1) "Council" means the Council on Sex Offender
Treatment.
(2) "Sex offender" means a person who has been
convicted or has entered a plea of guilty or nolo contendere for an
offense under any one of the following provisions of the Penal Code:
(A) Section 20.04(a)(4) (Aggravated Kidnapping),
if the person committed the offense with the intent to violate or
abuse the victim sexually;
(B) Section 21.08 (Indecent Exposure);
(C) Section 21.11 (Indecency with a Child);
(D) Section 22.011 (Sexual Assault);
(E) Section 22.021 (Aggravated Sexual Assault);
(F) Section 25.02 (Prohibited Sexual Conduct);
(G) Section 30.02 (Burglary), if:
(i) the offense is punishable under
Subsection (d) of that section; and
(ii) the person committed the offense with
the intent to commit a felony listed in this subsection;
(H) Section 43.25 (Sexual Performance by a
Child); or
(I) Section 43.26 (Possession or Promotion of
Child Pornography).
(i) [(b)] If the defendant is a sex offender, a supervision
officer may release information in a presentence or postsentence
report concerning the social and criminal history of the defendant
to a person who:
(1) is licensed or certified in this state to provide
mental health or medical services, including a:
(A) physician;
(B) psychiatrist;
(C) psychologist;
(D) licensed professional counselor;
(E) licensed marriage and family therapist; or
(F) certified social worker; and
(2) provides mental health or medical services for the
rehabilitation of the defendant.
(j) [(c)] If the defendant is a sex offender, the judge may
[shall] direct a supervision officer approved by the community
supervision and corrections department or the judge or a person,
program, or other agency approved by the council to evaluate the
appropriateness of, and a course of conduct necessary for,
treatment, specialized supervision, or rehabilitation of the
defendant and to report the results of the evaluation to the judge.
The judge may require the evaluation to use offense-specific
standards of practice adopted by the council and may require the
report to reflect those standards. An [The] evaluation ordered
under this subsection must [shall] be made after conviction and
before the entry of a final judgment or, if requested by the
defendant, after arrest and before conviction.
Sec. 10. AUTHORITY TO IMPOSE, MODIFY, OR REVOKE COMMUNITY
SUPERVISION. (a) Only the court in which the defendant was tried
may grant community supervision, impose conditions, revoke the
community supervision, or discharge the defendant, unless the judge
has transferred jurisdiction of the case to another court with the
latter's consent. Except as provided by Subsection (d) [of this
section], only the judge may alter conditions of community
supervision. In a felony case, only the judge who originally
sentenced the defendant may suspend execution thereof and place the
defendant under community supervision pursuant to Section 6 [of
this article]. If the judge who originally sentenced the defendant
is deceased or disabled or if the office is vacant and the judge who
originally sentenced the defendant is deceased or disabled or if
the office is vacant and a motion is filed in accordance with
Section 6 [of this article], the clerk of the court shall promptly
forward a copy of the motion to the presiding judge of the
administrative judicial district for that court, who may deny the
motion without a hearing or appoint a judge to hold a hearing on the
motion.
(b) After a defendant has been placed on community
supervision, jurisdiction of the case may be transferred to a court
of the same rank in this state having geographical jurisdiction
where the defendant is residing or where a violation of the
conditions of community supervision occurs. Upon transfer, the
clerk of the court of original jurisdiction shall forward a
transcript of such portions of the record as the transferring judge
shall direct to the court accepting jurisdiction, which latter
court shall thereafter proceed as if the trial and conviction had
occurred in that court.
(c) Any judge of a court having geographical jurisdiction
where the defendant is residing or where a violation of the
conditions of community supervision occurs may issue a warrant for
his arrest, but the determination of action to be taken after arrest
shall be only by the judge of the court having jurisdiction of the
case at the time the action is taken.
(d) A judge that places a defendant on community supervision
may authorize the supervision officer supervising the defendant or
a magistrate appointed by the district courts in the county that
give preference to criminal cases to modify the conditions of
community supervision for the limited purpose of transferring the
defendant to different programs within the community supervision
continuum of programs and sanctions.
(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 21 [22 of this article].
Sec. 11. [BASIC] CONDITIONS OF COMMUNITY SUPERVISION.
(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 conditions
[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 any
condition listed in this section or designated as available for use
in the community justice plan established by the community justice
council serving the judge.
(b) Conditions required under this section may require[,
but shall not be limited to, the conditions] that the defendant
[shall]:
(1) commit [Commit] no offense against the laws of
this State or of any other State or of the United States;
(2) avoid [Avoid] injurious or vicious habits;
(3) avoid [Avoid] persons or places of disreputable or
harmful character;
(4) report [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 [Permit] the supervision officer to visit
him at his home or elsewhere;
(6) work [Work] faithfully at suitable employment as
far as possible;
(7) remain [Remain] within a specified place;
(8) pay [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 [Support] his dependents;
(10) reimburse [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;]
(11) reimburse [(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;]
(12) make [(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; and
(13) submit [(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].
(c) [(b)] A judge may not order a defendant to make any
payments as a term or condition of community supervision, except
for fines, court costs, restitution to the victim, and other
conditions related personally to the rehabilitation of the
defendant or otherwise expressly authorized by law. The court
shall consider the ability of the defendant to make payments in
ordering the defendant to make payments under this article.
(d) [(c)] If the judge or jury places a defendant on
community supervision, the judge shall require the defendant to
demonstrate to the court whether the defendant has an educational
skill level that is equal to or greater than the average skill level
of students who have completed the sixth grade in public schools in
this state. If the judge determines that the defendant has not
attained that skill level, the judge shall require as a condition of
community supervision that the defendant attain that level of
educational skill, unless the judge determines that the defendant
lacks the intellectual capacity or the learning ability to ever
achieve that level of skill.
[(d) If the judge places a defendant on community
supervision and the defendant is determined to have a mental
illness or be a person with mental retardation by an examining
expert under Article 16.22 or Chapter 46B or in a psychological
evaluation conducted under Section 9(i) of this article, the judge
may require the defendant as a condition of community supervision
to submit to outpatient or inpatient mental health or mental
retardation treatment if the:
[(1) defendant's:
[(A) mental impairment is chronic in nature; or
[(B) ability to function independently will
continue to deteriorate if the defendant does not receive mental
health or mental retardation services; and
[(2) judge determines, in consultation with a local
mental health or mental retardation services provider, that
appropriate mental health or mental retardation services for the
defendant are available through the Texas Department of Mental
Health and Mental Retardation under Section 534.053, Health and
Safety Code, or through another mental health or mental retardation
services provider.]
(e) A judge granting community supervision to a defendant
required to register as a sex offender under Chapter 62 shall
require that the defendant, as a condition of community
supervision:
(1) register under that chapter; and
(2) 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, unless the defendant has already submitted the required
specimen under other state law.
(f) [A judge may not require a defendant to undergo an
orchiectomy as a condition of community supervision.
[(g)] A judge who grants community supervision to a person
may require the person to make one payment in an amount not to
exceed $50 to a children's advocacy center established under
Subchapter E, Chapter 264, Family Code, if the person is charged
with or convicted of an offense under Section 21.11 or
22.011(a)(2), Penal Code.
(g) [(h)] If a judge grants community supervision to a
person convicted of an offense under Title 5, Penal Code, that the
court determines involves family violence, the judge may require
the person to make one payment in an amount not to exceed $100 to a
family violence shelter center that receives state or federal funds
and that serves the county in which the court is located. In this
subsection, "family violence" has the meaning assigned by Section
71.004, Family Code, and "family violence shelter center" has the
meaning assigned by Section 51.002, Human Resources Code.
(h) If a judge grants community supervision to a defendant
convicted of an offense for which sex offender registration is
required and the victim in the case is younger than 17 years of age,
the judge shall establish a child safety zone applicable to the
defendant that complies with standards for child safety zones
established by the community justice assistance division of the
Texas Department of Criminal Justice.
(i) A judge may establish the order in which a defendant is
required to complete conditions of community supervision.
[(i) A judge who grants community supervision to a sex
offender evaluated under Section 9A may require the sex offender as
a condition of community supervision to submit to treatment,
specialized supervision, or rehabilitation according to
offense-specific standards of practice adopted by the Council on
Sex Offender Treatment. On a finding that the defendant is
financially able to make payment, the judge shall require the
defendant to pay all or part of the reasonable and necessary costs
of the treatment, supervision, or rehabilitation.
[(l)(1) If the court grants community supervision to a
person convicted of an offense under Section 42.072, Penal Code,
the court may require as a condition of community supervision that
the person may not:
[(A) communicate directly or indirectly with the
victim; or
[(B) go to or near the residence, place of
employment, or business of the victim or to or near a school,
day-care facility, or similar facility where a dependent child of
the victim is in attendance.
[(2) If the court requires the prohibition contained
in Subdivision (1)(B) of this subsection as a condition of
community supervision, the court shall specifically describe the
prohibited locations and the minimum distances, if any, that the
person must maintain from the locations.]
Sec. 12. CONFINEMENT AS A CONDITION OF COMMUNITY
SUPERVISION. (a) If a judge having jurisdiction of a misdemeanor
case requires as a condition of community supervision that the
defendant submit to a period of confinement in a county jail, the
period of confinement may not exceed 30 days. If a judge having
jurisdiction of a felony case requires as a condition of community
supervision that the defendant submit to a period of confinement in
a county jail, the period of confinement may not exceed 180 days.
(b) A judge that requires as a condition of community
supervision that the defendant serve a term in a community
corrections facility under Section 17 [18 of this article] may not
impose a term of confinement under this section that, when added to
the term imposed under Section 17 [18], exceeds 24 months.
(c) A judge may impose confinement as a condition of
community supervision under Subsection (a) [of this section] on
placing the defendant on supervision or at any time during the
supervision period. The judge may impose periods of confinement as
a condition of community supervision in increments smaller than the
maximum periods provided by Subsection (a) [of this section] but
may not impose periods of confinement that if added together exceed
the maximum periods provided by Subsection (a).
(d) A judge in a felony case who imposes confinement as a
condition of community supervision shall give the defendant credit
on the defendant's sentence in the same manner as if the defendant
served the term of confinement in the Texas Department of Criminal
Justice.
Sec. 12A [13]. DWI COMMUNITY SUPERVISION. (a) A judge
granting community supervision to a defendant convicted of an
offense under Chapter 49, Penal Code, shall require as a condition
of community supervision that the defendant submit to:
(1) not less than three days of confinement in county
jail if the defendant was punished under Section 49.09(a); not less
than five days of confinement in county jail if the defendant was
punished under Section 49.09(a) and was subject to Section
49.09(h); not less than 10 days of confinement in county jail if the
defendant was punished under Section 49.09(b) or (c); or not less
than 30 days of confinement in county jail if the defendant was
convicted under Section 49.07; and
(2) an evaluation by a supervision officer or by a
person, program, or facility approved by the Texas Commission on
Alcohol and Drug Abuse for the purpose of having the facility
prescribe and carry out a course of conduct necessary for the
rehabilitation of the defendant's drug or alcohol dependence
condition.
(b) A judge granting community supervision to a defendant
convicted of an offense under Section 49.08, Penal Code, shall
require as a condition of community supervision that the defendant
submit to a period of confinement of not less than 120 days.
(c) If the director of a facility to which a defendant is
referred under [Subdivision (2) of] Subsection (a)(2) [of this
section] determines that the defendant is not making a good faith
effort to participate in a program of rehabilitation, the director
shall notify the judge that referred the defendant of that fact.
[(d) If a judge requires as a condition of community
supervision that the defendant participate in a prescribed course
of conduct necessary for the rehabilitation of the defendant's drug
or alcohol dependence condition, the judge shall require that the
defendant pay for all or part of the cost of such rehabilitation
based on the defendant's ability to pay. The judge may, in its
discretion, credit such cost paid by the defendant against the fine
assessed. In making a determination of a defendant's ability to pay
the cost of rehabilitation under this subsection, the judge shall
consider whether the defendant has insurance coverage that will pay
for rehabilitation.
[(e) The confinement imposed shall be treated as a condition
of community supervision, and in the event of a sentence of
confinement upon the revocation of community supervision, the term
of confinement served may not be credited toward service of such
subsequent confinement.
[(f) If a judge grants community supervision to a defendant
convicted of an offense under Sections 49.04-49.08, Penal Code, and
if before receiving community supervision the defendant has not
submitted to an evaluation under Section 9 of this article, the
judge shall require the defendant to submit to the evaluation as a
condition of community supervision. If the evaluation indicates to
the judge that the defendant is in need of treatment for drug or
alcohol dependency, the judge shall require the defendant to submit
to that treatment as a condition of community supervision in a
program or facility approved or licensed by the Texas Commission on
Alcohol and Drug Abuse or in a program or facility that complies
with standards established by the community justice assistance
division of the Texas Department of Criminal Justice, after
consultation by the division with the commission.
[(g) A jury that recommends community supervision for a
person convicted of an offense under Sections 49.04-49.08, Penal
Code, may recommend that any driver's license issued to the
defendant under Chapter 521, Transportation Code, not be suspended.
This subsection does not apply to a person punished under Section
49.09(a) or (b), Penal Code, and subject to Section 49.09(h) of that
code.
[(h) If a person convicted of an offense under Sections
49.04-49.08, Penal Code, is placed on community supervision, the
judge shall require, as a condition of the community supervision,
that the defendant attend and successfully complete before the
181st day after the day community supervision is granted an
educational program jointly approved by the Texas Commission on
Alcohol and Drug Abuse, the Department of Public Safety, the
Traffic Safety Section of the Texas Department of Transportation,
and the community justice assistance division of the Texas
Department of Criminal Justice designed to rehabilitate persons who
have driven while intoxicated. The Texas Commission on Alcohol and
Drug Abuse shall publish the jointly approved rules and shall
monitor, coordinate, and provide training to persons providing the
educational programs. The Texas Commission on Alcohol and Drug
Abuse is responsible for the administration of the certification of
approved educational programs and may charge a nonrefundable
application fee for the initial certification of approval and for
renewal of a certificate. The judge may waive the educational
program requirement or may grant an extension of time to
successfully complete the program that expires not later than one
year after the beginning date of the person's community
supervision, however, if the defendant by a motion in writing shows
good cause. In determining good cause, the judge may consider but
is not limited to: the defendant's school and work schedule, the
defendant's health, the distance that the defendant must travel to
attend an educational program, and the fact that the defendant
resides out of state, has no valid driver's license, or does not
have access to transportation. The judge shall set out the finding
of good cause for waiver in the judgment. If a defendant is
required, as a condition of community supervision, to attend an
educational program or if the court waives the educational program
requirement, the court clerk shall immediately report that fact to
the Department of Public Safety, on a form prescribed by the
department, for inclusion in the person's driving record. If the
court grants an extension of time in which the person may complete
the program, the court clerk shall immediately report that fact to
the Department of Public Safety on a form prescribed by the
department. The report must include the beginning date of the
person's community supervision. Upon the person's successful
completion of the educational program, the person's instructor
shall give notice to the Department of Public Safety for inclusion
in the person's driving record and to the community supervision and
corrections department. The community supervision and corrections
department shall then forward the notice to the court clerk for
filing. If the Department of Public Safety does not receive notice
that a defendant required to complete an educational program has
successfully completed the program within the period required by
this section, as shown on department records, the department shall
revoke the defendant's driver's license, permit, or privilege or
prohibit the person from obtaining a license or permit, as provided
by Sections 521.344(e) and (f), Transportation Code. The Department
of Public Safety may not reinstate a license suspended under this
subsection unless the person whose license was suspended makes
application to the department for reinstatement of the person's
license and pays to the department a reinstatement fee of $50. The
Department of Public Safety shall remit all fees collected under
this subsection to the comptroller for deposit in the general
revenue fund. This subsection does not apply to a defendant if a
jury recommends community supervision for the defendant and also
recommends that the defendant's driver's license not be suspended.
[(i) If a person convicted of an offense under Sections
49.04-49.08, Penal Code, is placed on community supervision, the
court may require as a condition of community supervision that the
defendant have a device installed, on the motor vehicle owned by the
defendant or on the vehicle most regularly driven by the defendant,
that uses a deep-lung breath analysis mechanism to make impractical
the operation of the motor vehicle if ethyl alcohol is detected in
the breath of the operator and that the defendant not operate any
motor vehicle that is not equipped with that device. If the person
is convicted of an offense under Sections 49.04-49.06, Penal Code,
and punished under Section 49.09(a) or (b), Penal Code, or of a
second or subsequent offense under Section 49.07 or 49.08, Penal
Code, and the person after conviction of either offense is placed on
community supervision, the court shall require as a condition of
community supervision that the defendant have the device installed
on the appropriate vehicle and that the defendant not operate any
motor vehicle unless the vehicle is equipped with that device.
Before placing on community supervision a person convicted of an
offense under Sections 49.04-49.08, Penal Code, the court shall
determine from criminal history record information maintained by
the Department of Public Safety whether the person has one or more
previous convictions under Sections 49.04-49.08, Penal Code, or has
one previous conviction under Sections 49.04-49.07, Penal Code, or
one previous conviction under Section 49.08, Penal Code. If the
court determines that the person has one or more such previous
convictions, the court shall require as a condition of community
supervision that the defendant have that device installed on the
motor vehicle owned by the defendant or on the vehicle most
regularly driven by the defendant and that the defendant not
operate any motor vehicle unless the vehicle is equipped with the
device described in this subsection. The court shall require the
defendant to obtain the device at the defendant's own cost before
the 30th day after the date of conviction unless the court finds
that to do so would not be in the best interest of justice and enters
its findings on record. The court shall require the defendant to
provide evidence to the court within the 30-day period that the
device has been installed on the appropriate vehicle and order the
device to remain installed on that vehicle for a period not less
than 50 percent of the supervision period. If the court determines
the offender is unable to pay for the device, the court may impose a
reasonable payment schedule not to exceed twice the period of the
court's order. The Department of Public Safety shall approve
devices for use under this subsection. Section 521.247,
Transportation Code, applies to the approval of a device under this
subsection and the consequences of that approval. Notwithstanding
the provisions of this section, if a person is required to operate a
motor vehicle in the course and scope of the person's employment and
if the vehicle is owned by the employer, the person may operate that
vehicle without installation of an approved ignition interlock
device if the employer has been notified of that driving privilege
restriction and if proof of that notification is with the vehicle.
This employment exemption does not apply, however, if the business
entity that owns the vehicle is owned or controlled by the person
whose driving privilege has been restricted. A previous conviction
may not be used for purposes of restricting a person to the
operation of a motor vehicle equipped with an interlock ignition
device under this subsection if:
[(1) the previous conviction was a final conviction
under Section 49.04, 49.05, 49.06, 49.07, or 49.08, Penal Code, and
was for an offense committed more than 10 years before the instant
offense for which the person was convicted and placed on community
supervision; and
[(2) the person has not been convicted of an offense
under Section 49.04, 49.05, 49.06, 49.07, or 49.08 of that code,
committed within 10 years before the date on which the instant
offense for which the person was convicted and placed on community
supervision.
[(j) The judge shall require a defendant who is punished
under Section 49.09, Penal Code, as a condition of community
supervision, to attend and successfully complete an educational
program for repeat offenders approved by the Texas Commission on
Alcohol and Drug Abuse. The Texas Commission on Alcohol and Drug
Abuse shall adopt rules and shall monitor, coordinate, and provide
training to persons providing the educational programs. The Texas
Commission on Alcohol and Drug Abuse is responsible for the
administration of the certification of approved educational
programs and may charge a nonrefundable application fee for initial
certification of approval or for renewal of the certification. The
judge may waive the educational program requirement only if the
defendant by a motion in writing shows good cause. In determining
good cause, the judge may consider the defendant's school and work
schedule, the defendant's health, the distance that the defendant
must travel to attend an educational program, and whether the
defendant resides out of state or does not have access to
transportation. The judge shall set out the finding of good cause
in the judgment. If a defendant is required, as a condition of
community supervision, to attend an educational program, the court
clerk shall immediately report that fact to the Department of
Public Safety, on a form prescribed by the department, for
inclusion in the defendant's driving record. The report must
include the beginning date of the defendant's community
supervision. On the defendant's successful completion of the
educational program for repeat offenders, the defendant's
instructor shall give notice to the Department of Public Safety for
inclusion in the defendant's driving record and to the community
supervision and corrections department. The community supervision
and corrections department shall then forward the notice to the
court clerk for filing. If the Department of Public Safety does not
receive notice that a defendant required to complete an educational
program has successfully completed the program for repeat offenders
within the period required by the judge, as shown on department
records, the department shall revoke the defendant's driver's
license, permit, or privilege or prohibit the defendant from
obtaining a license or permit, as provided by Sections 521.344(e)
and (f), Transportation Code.
[(k) Notwithstanding Sections 521.344(d)-(i),
Transportation Code, if the judge, under Subsection (h) or (j) of
this section, permits or requires a defendant punished under
Section 49.09, Penal Code, to attend an educational program as a
condition of community supervision, or waives the required
attendance for such a program, and the defendant has previously
been required to attend such a program, or the required attendance
at the program had been waived, the judge nonetheless shall order
the suspension of the driver's license, permit, or operating
privilege of that person for a period determined by the judge
according to the following schedule:
[(1) not less than 90 days or more than 365 days, if
the defendant is convicted under Sections 49.04-49.08, Penal Code;
[(2) not less than 180 days or more than two years, if
the defendant is punished under Section 49.09(a) or (b), Penal
Code; or
[(3) not less than one year or more than two years, if
the person is convicted of a second or subsequent offense under
Sections 49.04-49.08, Penal Code, committed within five years of
the date on which the most recent preceding offense was committed.
[(l) If the Department of Public Safety receives notice that
a defendant has been required or permitted to attend a subsequent
educational program under Subsection (h), (j), or (k) of this
section, although the previously required attendance had been
waived, but the judge has not ordered a period of suspension, the
department shall suspend the defendant's driver's license, permit,
or operating privilege, or shall issue an order prohibiting the
defendant from obtaining a license or permit for a period of 365
days.
[(m) If a judge revokes the community supervision of a
defendant for an offense under Section 49.04, Penal Code, or an
offense involving the operation of a motor vehicle under Section
49.07, Penal Code, and the driver's license or privilege to operate
a motor vehicle has not previously been ordered by the judge to be
suspended, or if the suspension was previously probated, the judge
shall suspend the license or privilege for a period provided under
Subchapter O, Chapter 521, Transportation Code. The suspension
shall be reported to the Department of Public Safety as provided
under Section 521.347, Transportation Code.
[(n) Notwithstanding any other provision of this section or
other law, the judge who places on community supervision a
defendant who is younger than 21 years of age and convicted for an
offense under Sections 49.04-49.08, Penal Code, shall:
[(1) order that the defendant's driver's license be
suspended for 90 days beginning on the date that the person is
placed on community supervision; and
[(2) require as a condition of community supervision
that the defendant not operate a motor vehicle unless the vehicle is
equipped with the device described by Subsection (i) of this
section.
[Sec. 13A. COMMUNITY SUPERVISION FOR OFFENSE COMMITTED
BECAUSE OF BIAS OR PREJUDICE. (a) A court granting community
supervision to a defendant convicted of an offense for which the
court has made an affirmative finding under Article 42.014 of this
code shall require as a term of community supervision that the
defendant:
[(1) serve a term of not more than one year
imprisonment in the institutional division of the Texas Department
of Criminal Justice if the offense is a felony other than an offense
under Section 19.02, Penal Code; or
[(2) serve a term of not more than 90 days confinement
in jail if the offense is a misdemeanor.
[(b) The court may not grant community supervision on its
own motion or on the recommendation of the jury to a defendant
convicted of an offense for which the court has made an affirmative
finding under Article 42.014 of this code if:
[(1) the offense is murder under Section 19.02, Penal
Code; or
[(2) the defendant has been previously convicted of an
offense for which the court made an affirmative finding under
Article 42.014 of this code.
[Sec. 13B. DEFENDANTS PLACED ON COMMUNITY SUPERVISION FOR
SEXUAL OFFENSES AGAINST CHILDREN. (a) If a judge grants community
supervision to a defendant described by Subsection (b) and the
judge determines that a child as defined by Section 22.011(c),
Penal Code, was the victim of the offense, the judge shall establish
a child safety zone applicable to the defendant by requiring as a
condition of community supervision that the defendant:
[(1) not:
[(A) supervise or participate in any program that
includes as participants or recipients persons who are 17 years of
age or younger and that regularly provides athletic, civic, or
cultural activities; or
[(B) go in, on, or within 1,000 feet of a premises
where children commonly gather, including a school, day-care
facility, playground, public or private youth center, public
swimming pool, or video arcade facility; and
[(2) attend psychological counseling sessions for sex
offenders with an individual or organization which provides sex
offender treatment or counseling as specified by or approved by the
judge or the community supervision and corrections department
officer supervising the defendant.
[(b) This section applies to a defendant placed on community
supervision for an offense:
[(1) under Section 43.25 or 43.26, Penal Code;
[(2) under Section 21.08, 21.11, 22.011, 22.021, or
25.02, Penal Code;
[(3) 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
[(4) 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 listed in Subdivision (2)
or (3) of this subsection.
[(c) A community supervision and corrections department
officer who under Subsection (a)(2) specifies a sex offender
treatment provider to provide counseling to a defendant shall
contact the provider before the defendant is released, establish
the date, time, and place of the first session between the defendant
and the provider, and request the provider to immediately notify
the officer if the defendant fails to attend the first session or
any subsequent scheduled session.
[(d) Notwithstanding Subsection (a)(1), a judge is not
required to impose the conditions described by Subsection (a)(1) if
the defendant is a student at a primary or secondary school.
[(e) At any time after the imposition of a condition under
Subsection (a)(1), the defendant may request the court to modify
the child safety zone applicable to the defendant because the zone
as created by the court:
[(1) interferes with the ability of the defendant to
attend school or hold a job and consequently constitutes an undue
hardship for the defendant; or
[(2) is broader than is necessary to protect the
public, given the nature and circumstances of the offense.
[(f) A community supervision and corrections department
officer supervising a defendant described by Subsection (b) may
permit the defendant to enter on an event-by-event basis into the
child safety zone from which the defendant is otherwise prohibited
from entering if:
[(1) the defendant has served at least two years of the
period of community supervision;
[(2) the defendant enters the zone as part of a program
to reunite with the defendant's family;
[(3) the defendant presents to the officer a written
proposal specifying where the defendant intends to go within the
zone, why and with whom the defendant is going, and how the
defendant intends to cope with any stressful situations that occur;
[(4) the sex offender treatment provider treating the
defendant agrees with the officer that the defendant should be
allowed to attend the event; and
[(5) the officer and the treatment provider agree on a
chaperon to accompany the defendant and the chaperon agrees to
perform that duty.
[(g) Section 10(a) does not prohibit a community
supervision and corrections department officer from altering a
condition of community supervision by permitting a defendant to
enter a child safety zone under Subsection (f).
[(h) In this section, "playground," "premises," "school,"
"video arcade facility," and "youth center" have the meanings
assigned by Section 481.134, Health and Safety Code.
[(i) Notwithstanding Subsection (a)(1)(B), a requirement
that a defendant not go in, on, or within 1,000 feet of certain
premises does not apply to a defendant while the defendant is in or
going immediately to or from a:
[(1) community supervision and corrections department
office;
[(2) premises at which the defendant is participating
in a program or activity required as a condition of community
supervision;
[(3) residential facility in which the defendant is
required to reside as a condition of community supervision, if the
facility was in operation as a residence for defendants on
community supervision on June 1, 2003; or
[(4) private residence at which the defendant is
required to reside as a condition of community supervision.
[Sec. 13C. COMMUNITY SUPERVISION FOR MAKING A FIREARM
ACCESSIBLE TO A CHILD. (a) A court granting community supervision
to a defendant convicted of an offense under Section 46.13, Penal
Code, may require as a condition of community supervision that the
defendant:
[(1) provide an appropriate public service activity
designated by the court; or
[(2) attend a firearms safety course which meets or
exceeds the requirements set by the National Rifle Association as
of January 1, 1995, for a firearms safety course that requires not
more than 17 hours of instruction.
[(b) The court shall require the defendant to pay the cost
of attending the firearms safety course under Subsection (a)(2).
[Sec. 13D. DEFENDANTS PLACED ON COMMUNITY SUPERVISION FOR
VIOLENT OFFENSES; PROTECTING CHILDREN. (a) If a judge grants
community supervision to a defendant convicted of an offense listed
in Section 3g(a)(1) or for which the judgment contains an
affirmative finding under Section 3g(a)(2), the judge, if the
nature of the offense for which the defendant is convicted warrants
the establishment of a child safety zone, may establish a child
safety zone applicable to the defendant by requiring as a condition
of community supervision that the defendant not:
[(1) supervise or participate in any program that
includes as participants or recipients persons who are 17 years of
age or younger and that regularly provides athletic, civic, or
cultural activities; or
[(2) go in or on, or within a distance specified by the
judge of, a premises where children commonly gather, including a
school, day-care facility, playground, public or private youth
center, public swimming pool, or video arcade facility.
[(b) At any time after the imposition of a condition under
Subsection (a), the defendant may request the judge to modify the
child safety zone applicable to the defendant because the zone as
created by the judge:
[(1) interferes with the ability of the defendant to
attend school or hold a job and consequently constitutes an undue
hardship for the defendant; or
[(2) is broader than is necessary to protect the
public, given the nature and circumstances of the offense.
[(c) This section does not apply to a defendant described by
Section 13B.
[(d) In this section, "playground," "premises," "school,"
"video arcade facility," and "youth center" have the meanings
assigned by Section 481.134, Health and Safety Code.
[Sec. 14. CHILD ABUSERS AND FAMILY VIOLENCE OFFENDERS;
SPECIAL CONDITIONS. (a) If the court grants probation to a person
convicted of an offense described by Article 17.41(a) of this code,
the court may require as a condition of probation that the defendant
not directly communicate with the victim of the offense or go near a
residence, school, or other location, as specifically described in
the copy of terms and conditions, frequented by the victim. In
imposing the condition, the court may grant the defendant
supervised access to the victim. To the extent that a condition
imposed under this subsection conflicts with an existing court
order granting possession of or access to a child, the condition
imposed under this subsection prevails for a period specified by
the court granting probation, not to exceed 90 days.
[(c) If the court grants community supervision to a person
convicted of an offense involving family violence, as defined by
Section 71.004, Family Code, the court may require the defendant to
attend, at the direction of the community supervision and
corrections department officer, counseling sessions for the
elimination of violent behavior with a licensed counselor, social
worker, or other professional who has been trained in family
violence intervention or to attend a battering intervention and
prevention program if available that meets guidelines adopted by
the community justice assistance division of the Texas Department
of Criminal Justice. If the court requires the defendant to attend
counseling or a program, the court shall require the defendant to
begin attendance not later than the 60th day after the date the
court grants community supervision, notify the community
supervision and corrections department officer of the name,
address, and phone number of the counselor or program, and report
the defendant's attendance to the officer. The court shall require
the defendant to pay all the reasonable costs of the counseling
sessions or attendance in the program on a finding that the
defendant is financially able to make payment. If the court finds
the defendant is unable to make payment, the court shall make the
counseling sessions or enrollment in the program available without
cost to the defendant. The court may also require the defendant to
pay all or a part of the reasonable costs incurred by the victim for
counseling made necessary by the offense, on a finding that the
defendant is financially able to make payment. The court may order
the defendant to make payments under this subsection for a period
not to exceed one year after the date on which the order is
entered.]
Sec. 13 [14]. SUBSTANCE ABUSE FELONY PROGRAM. (a) If a
court places a defendant on community supervision under any
provision of this article as an alternative to imprisonment, the
judge may require as a condition of community supervision that the
defendant serve a term of confinement and treatment in a substance
abuse treatment facility operated by the Texas Department of
Criminal Justice under Section 493.009, Government Code. A term of
confinement and treatment imposed under this section must be an
indeterminate term of not more than one year or less than 90 days.
(b) A judge may impose the condition of community
supervision created under this section if:
(1) the judge places the defendant on community
supervision under this article;
(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.
(c) If a judge requires as a condition of community
supervision that the defendant serve a term of confinement and
treatment in a substance abuse treatment facility under this
section, the judge shall also require as a condition of community
supervision that on release from the facility the defendant:
(1) participate in a drug or alcohol abuse continuum
of care treatment plan; and
(2) pay a fee in an amount established by the judge for
residential aftercare required as part of the treatment plan.
(d) The Department of State Health Services [Texas
Commission on Alcohol and Drug Abuse] shall develop the continuum
of care treatment plan.
(e) The clerk of a court that collects a fee imposed under
Subsection (c)(2) shall deposit the fee to be sent to the
comptroller as provided by Subchapter B, Chapter 133, Local
Government Code, and the comptroller shall deposit the fee into the
general revenue fund. In requiring the payment of a fee under
Subsection (c)(2), the judge shall consider fines, fees, and other
necessary expenses for which the defendant is obligated in
establishing the amount of the fee. The judge may not:
(1) establish the fee in an amount that is greater than
25 percent of the defendant's gross income while the defendant is a
participant in residential aftercare; or
(2) require the defendant to pay the fee at any time
other than a time at which the defendant is both employed and a
participant in residential aftercare.
Sec. 14 [15]. PROCEDURES RELATING TO STATE JAIL FELONY
COMMUNITY SUPERVISION. (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
three [five] years, except that the judge may extend the maximum
period of community supervision under this section to not more than
five [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.
(d) A judge may impose as a condition of community
supervision that a defendant submit at the beginning of the period
of community supervision to a term of confinement in a state jail
felony facility for a term of not less than 90 days or more than 180
days, or a term of not less than 90 days or more than one year if the
defendant is convicted of an offense punishable as a state jail
felony under Section 481.112, 481.1121, 481.113, or 481.120, Health
and Safety Code. A judge may not require a defendant to submit to
both the term of confinement authorized by this subsection and a
term of confinement under Section 5 or 12 [of this article]. For
the purposes of this subsection, a defendant previously has been
convicted of a felony regardless of whether the sentence for the
previous conviction was actually imposed or was probated and
suspended.
(e) If a defendant violates a condition of community
supervision imposed on the defendant under this article and after a
hearing under Section 20 [21 of this article] the judge modifies the
defendant's community supervision, the judge may impose any
sanction permitted by Section 21 [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.
(f)(1) If a defendant violates a condition of community
supervision imposed on the defendant under this article and after a
hearing under Section 20 [21 of this article] the judge revokes the
defendant's community supervision, the judge shall dispose of the
case in the manner provided by Section 22 [23 of this article].
(2) The court retains jurisdiction over the defendant
for the period during which the defendant is confined in a state
jail. At any time after the 75th day after the date the defendant is
received into the custody of a state jail, the judge on the judge's
own motion, on the motion of the attorney representing the state, or
on the motion of the defendant may suspend further execution of the
sentence and place the defendant on community supervision under the
conditions of this section.
(3) When the defendant or the attorney representing
the state files a written motion requesting suspension by the judge
of further execution of the sentence and placement of the defendant
on community supervision, the clerk of the court, if requested to do
so by the judge, shall request a copy of the defendant's record
while confined from the facility director of the state jail felony
facility in which the defendant is confined or, if the defendant is
confined in county jail, from the sheriff. On receipt of the
request, the facility director or the sheriff shall forward to the
judge, as soon as possible, a full and complete copy of the
defendant's record while confined. When the defendant files a
written motion requesting suspension of further execution of the
sentence and placement on community supervision, he shall
immediately deliver or cause to be delivered a true and correct copy
of the motion to the office of the attorney representing the state.
The judge may deny the motion without a hearing but may not grant
the motion without holding a hearing and providing the attorney
representing the state and the defendant the opportunity to present
evidence on the motion.
(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.
(h)(1) A defendant confined in a state jail felony facility
does not earn good conduct time for time served in the facility.
(2) A judge shall [may] credit against any time a
defendant is required to serve in a state jail felony facility time
served by the defendant in county jail from the time of the
defendant's arrest and confinement until sentencing by the trial
court.
(3) A judge shall credit against any time a defendant
is subsequently required to serve in a state jail felony facility
after revocation of community supervision any time served by the
defendant in a state jail felony facility after sentencing.
[Sec. 15A. ENHANCED DISORDERLY CONDUCT AND PUBLIC
INTOXICATION OFFENSES. On conviction of an offense for which
punishment is enhanced under Section 12.43(c), Penal Code, the
court may suspend the imposition of the sentence and place the
defendant on community supervision if the court finds that the
defendant would benefit from community supervision and enters its
finding on the record. The judge may suspend in whole or in part the
imposition of any fine imposed on conviction. All provisions of
this article applying to a defendant placed on community
supervision for a misdemeanor apply to a defendant placed on
community supervision under this section, except that the court
shall require the defendant as a condition of community supervision
to:
[(1) submit to diagnostic testing for addiction to
alcohol or a controlled substance or drug;
[(2) submit to a psychological assessment;
[(3) if indicated as necessary by testing and
assessment, participate in an alcohol or drug abuse treatment or
education program; and
[(4) pay the costs of testing, assessment, and
treatment or education, either directly or as a court cost.]
Sec. 15 [16]. COMMUNITY SERVICE. (a) A judge may [shall]
require as a condition of community supervision[,] that the
defendant work not more than 40 [a specified number of] hours
annually at a community service project or projects for an entity or
organization described by Subsection (b), [or organizations]
approved in [by] the community justice plan established by the
community justice council serving the judge, [judge] and designated
by the director of the department. The judge may not require that a
defendant work at a community service project if[, unless] the
judge determines [and notes on the order placing the defendant on
community supervision] that:
(1) the defendant is physically or mentally incapable
of participating in the project;
(2) participating in the project will work a hardship
on the defendant or the defendant's dependents;
(3) the defendant is to be confined in a substance
abuse punishment facility as a condition of community supervision;
or
(4) there is other good cause shown.
(b) Community [The amount of community] service work may be
performed under this section only for a governmental entity or a
nonprofit organization that provides services to the general public
that enhance social welfare and the general well-being of the
community [ordered by the judge:
[(1) may not exceed 1,000 hours and may not be less
than 320 hours for an offense classified as a first degree felony;
[(2) may not exceed 800 hours and may not be less than
240 hours for an offense classified as a second degree felony;
[(3) may not exceed 600 hours and may not be less than
160 hours for an offense classified as a third degree felony;
[(4) may not exceed 400 hours and may not be less than
120 hours for an offense classified as a state jail felony;
[(5) may not:
[(A) exceed 600 hours or be less than 160 hours
for an offense under Section 30.04, Penal Code, classified as a
Class A misdemeanor; or
[(B) exceed 200 hours or be less than 80 hours for
any other offense classified as a Class A misdemeanor or for any
other misdemeanor for which the maximum permissible confinement, if
any, exceeds six months or the maximum permissible fine, if any,
exceeds $4,000; and
[(6) may not exceed 100 hours and may not be less than
24 hours for an offense classified as a Class B misdemeanor or for
any other misdemeanor for which the maximum permissible
confinement, if any, does not exceed six months and the maximum
permissible fine, if any, does not exceed $4,000].
(c) A defendant required to perform community service under
this section is not a state employee for the purposes of Chapter 501
or 504, Labor Code [Article 8309g or 8309h, Revised Statutes].
[(d) If the court makes an affirmative finding under Article
42.014 of this code, the judge may order the defendant to perform
community service under this section at a project designated by the
judge that primarily serves the person or group who was the target
of the defendant. If the judge orders community service under this
subsection the judge shall order the defendant to perform not less
than:
[(1) 100 hours of service if the offense is a
misdemeanor; or
[(2) 300 hours of service if the offense is a felony.]
Sec. 16 [17]. CHANGE OF RESIDENCE; LEAVING THE STATE.
(a) If, for good and sufficient reasons, a defendant desires to
change his residence within the state, the change may be effected by
application to the supervising supervision officer, which change
shall be subject to the judge's consent and subject to such
regulations as the judge may require in the absence of an officer in
the locality to which the defendant is transferred.
(b) Any defendant who removes himself from the state without
permission of the judge having jurisdiction of the case shall be
considered a fugitive from justice and shall be subject to
extradition as provided by law.
Sec. 17 [18]. COMMUNITY CORRECTIONS FACILITIES. (a) In
this section, "community corrections facility" has the meaning
assigned by Section 509.001, Government Code.
(b) If a judge requires as a condition of community
supervision that the defendant serve a term in a community
corrections facility, the term may not be more than 24 months.
(c) A defendant granted community supervision under this
section earns [may not earn] good conduct credit for time spent in a
community corrections facility, and [or apply] time spent in the
facility applies toward completion of a prison sentence if the
community supervision is revoked.
(d) As directed by the judge, the corrections facility
director shall file with the community supervision and corrections
department director a copy of an evaluation made by the director of
the defendant's behavior and attitude at the facility. The
director shall examine the evaluation, make written comments on the
evaluation that he considers relevant, and file the evaluation and
comments with the judge who granted community supervision to the
defendant. If the evaluation indicates that the defendant has made
significant progress toward compliance with court-ordered
conditions of community supervision, the court may release the
defendant from the community corrections facility. The defendant
shall serve the remainder of his community supervision under any
terms and conditions the court imposes under this article.
(e) No later than 18 months after the date on which a
defendant is granted community supervision under this section, the
community corrections facility director shall file with the
community supervision and corrections department director a copy of
an evaluation made by the director of the defendant's behavior and
attitude at the center. The director shall examine the evaluation,
make written comments on the evaluation that he considers relevant,
and file the evaluation and comments with the judge who granted
community supervision to the defendant. If the report indicates
that the defendant has made significant progress toward
court-ordered conditions of community supervision, the judge shall
modify the judge's sentence and release the defendant in the same
manner as provided by Subsection (d) [of this section]. If the
report indicates that the defendant would benefit from continued
participation in the community corrections facility program, the
judge may order the defendant to remain at the community
corrections facility for a period determined by the judge. If the
report indicates that the defendant has not made significant
progress toward rehabilitation, the judge may revoke community
supervision and order the defendant to the term of confinement
specified in the defendant's sentence.
(f) If ordered by the judge who placed the defendant on
community supervision, a community corrections facility director
shall attempt to place a defendant as a worker in a
community-service project of a type described by Section 15 [16 of
this article].
(g) A defendant participating in a program under this
article shall be confined in the community corrections facility at
all times except for:
(1) time spent attending and traveling to and from an
education or rehabilitation program as ordered by the court;
(2) time spent attending and traveling to and from a
community-service project;
(3) time spent away from the facility for purposes
described by this section; and
(4) time spent traveling to and from work, if
applicable.
(h) A judge that requires as a condition of community
supervision that the defendant serve a term in a community
corrections facility may not impose a subsequent term in a
community corrections facility or jail during the same supervision
period that, when added to the terms previously imposed, exceeds 36
months.
(i) If a defendant participating in a program under this
article [section] is not required by the judge to deliver the
defendant's salary to the restitution center director, the employer
of the defendant shall deliver the salary to the director. The
director shall deposit the salary into a fund to be given to the
defendant on release after deducting:
(1) the cost to the center for the defendant's food,
housing, and supervision;
(2) necessary travel expense to and from work and
community-service projects and other incidental expenses of the
defendant;
(3) support of the defendant's dependents; and
(4) restitution to the victims of an offense committed
by the defendant.
Sec. 18 [19]. FEES. (a) Except as otherwise provided by
this subsection, a judge granting community supervision shall fix a
fee of not less than $25 and not more than $60 per month to be paid
to the court by the defendant during the community supervision
period. The judge may make payment of the fee a condition of
granting or continuing the community supervision. The judge may
waive or reduce the fee or suspend a monthly payment of the fee if
the judge determines that payment of the fee would cause the
defendant a significant financial hardship.
(b) The judge shall deposit the fees received under
Subsection (a) [of this section] in the special fund of the county
treasury, to be used for the same purposes for which state aid may
be used under Chapter 76, Government Code.
(c) A judge receiving a defendant for supervision as
authorized by Article 42.11 [of this code] may impose on the
defendant any term of community supervision authorized by this
article and may require the defendant to pay the fee authorized by
Subsection (a) [of this section]. Fees received under this section
shall be deposited in the same manner as required by Subsection (b)
[of this section].
(d) For the purpose of determining when fees due on
conviction are to be paid to any officer or officers, the placing of
the defendant on community supervision shall be considered a final
disposition of the case, without the necessity of waiting for the
termination of the period of community supervision.
(e) If the judge grants community supervision to a defendant
convicted of an offense under Section 21.08, 21.11, 22.011, 22.021,
25.02, 43.25, or 43.26, Penal Code, the judge shall require as a
condition of community supervision that the defendant pay to the
community corrections and supervision department officer
supervising the defendant a community supervision fee of $5 each
month during the period of community supervision. The fee is in
addition to court costs or any other fee imposed on the defendant.
(f) A community corrections and supervision department
shall deposit the fees collected under Subsection (e) [of this
section] to be sent to the comptroller as provided by Subchapter B,
Chapter 133, Local Government Code. The comptroller shall deposit
the fee in the sexual assault program fund under Section 420.008,
Government Code.
(g) If the judge places on community supervision a person
required to register as a sex offender under Chapter 62, the judge
shall require as a condition of community supervision that the
person pay to the person's supervising officer an amount equal to
the cost, as evidenced by written receipt, incurred by the
applicable local law enforcement authority for providing notice for
publication to a newspaper as required by Chapter 62. A political
subdivision served by the local law enforcement authority may bill
any unpaid amount, identified separately, within a bill for a
utility service provided by the political subdivision to the person
and may suspend service of the utility to a person who is delinquent
in payment of the amount until the delinquent claim is fully paid to
the political subdivision. A community supervision and corrections
department or political subdivision, as applicable, shall remit an
amount collected under this subsection to the applicable local law
enforcement authority. In this subsection, "utility service" means
water, wastewater, sewer, gas, garbage, electricity, or drainage
service.
(h) In a community supervision revocation hearing at which
it is alleged only that the person violated the terms of community
supervision by failing to make a payment under Subsection (g), the
inability of the person to pay as ordered by the judge is an
affirmative defense to revocation, which the person must prove by a
preponderance of the evidence.
Sec. 19 [20]. REVIEW, REDUCTION, AND [OR] TERMINATION OF
COMMUNITY SUPERVISION. (a) At any time, 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.
(b) As soon as practicable after a defendant has completed
one-half of the original community supervision period or two years,
whichever is greater, the judge shall review the defendant's case
for the purpose of considering termination of community
supervision.
(c) If a judge does not terminate a period of community
supervision under Subsection (a) or (b), the judge may review the
defendant's case at any time determined appropriate by the judge
for the purpose of determining whether to terminate the period of
community supervision.
(d) A judge may not refuse to terminate a period of
community supervision solely on the ground that the defendant is
indigent and unable to pay required restitution, fines, costs, or
fees.
(e) On [Upon the satisfactory fulfillment of the conditions
of community supervision, and] the expiration of the period of
community supervision or on the termination of a 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 grant a
dismissal to or discharge the defendant as provided by Subsection
(g), (h), or (i).
(f) On expiration or termination of the period of community
supervision, the judge shall enter a written order on a form
provided for that purpose and developed by the office of court
administration and the community justice assistance division of the
Texas Department of Criminal Justice. The written order shall
state whether as a result of the expiration or termination of
community supervision, the defendant is granted a dismissal, a
discharge, or a discharge subject to enhancement.
(f-1) A defendant whose period of community supervision
expires or is terminated under this section is presumed to be
entitled to a dismissal under Subsection (g), but the judge may
instead discharge the defendant under Subsection (h) on determining
that the defendant's compliance with conditions of community
supervision was not satisfactory, or discharge the defendant
subject to enhancement, after a hearing as provided by Subsection
(i).
(g) If the judge grants a dismissal to [discharges] the
defendant [under this section], the judge shall [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.
(h) If the judge terminates the period of community
supervision, the judge may discharge the defendant without
permitting the defendant to withdraw the defendant's plea and
without setting aside the judgment.
(i) If the judge terminates the period of supervision after
determining, at a hearing at which the defendant is provided the
same due process rights as those provided at a revocation hearing,
that the defendant failed to comply with a significant condition of
community supervision, and as a result evidenced an intentional
effort to avoid rehabilitation, the judge shall grant the defendant
a discharge subject to enhancement. Failure to pay a fine,
restitution, court cost, or other fee does not constitute
noncompliance with a significant condition of community
supervision unless the judge determines the defendant was not
indigent and intentionally refused to make the payment. A
discharge subject to enhancement is a final conviction for purposes
of criminal enhancement.
[(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.]
Sec. 20 [21]. VIOLATION OF COMMUNITY SUPERVISION:
DETENTION AND HEARING. (a) At any time during the period of
community supervision the judge may issue a warrant for violation
of any of the conditions of the community supervision and cause a
defendant convicted under Section 43.02, Penal Code, or under
Chapter 481, Health and Safety Code, or Sections 485.031 through
485.035, Health and Safety Code, [or placed on deferred
adjudication after being charged with one of those offenses,] to be
subject to the control measures of Section 81.083, Health and
Safety Code, and to the court-ordered-management provisions of
Subchapter G, Chapter 81, Health and Safety Code.
(b) At any time during the period of community supervision
the judge may issue a warrant for violation of any of the conditions
of the community supervision and cause the defendant to be
arrested. Any supervision officer, police officer or other officer
with power of arrest may arrest such defendant with or without a
warrant upon the order of the judge to be noted on the docket of the
court. A defendant so arrested may be detained in the county jail
or other appropriate place of confinement until he can be taken
before the judge. Such officer shall forthwith report such arrest
and detention to such judge. If the defendant has not been released
on bail, on motion by the defendant the judge shall cause the
defendant to be brought before the judge for a hearing within 20
days of filing of said motion, and after a hearing without a jury,
may either continue, extend, modify, or revoke the community
supervision. A judge may revoke the community supervision of a
defendant who is imprisoned in a penal institution without a
hearing if the defendant in writing before a court of record in the
jurisdiction where imprisoned waives his right to a hearing and to
counsel, affirms that he has nothing to say as to why sentence
should not be pronounced against him, and requests the judge to
revoke community supervision and to pronounce sentence. In a
felony case, the state may amend the motion to revoke community
supervision any time up to seven days before the date of the
revocation hearing, after which time the motion may not be amended
except for good cause shown, and in no event may the state amend the
motion after the commencement of taking evidence at the hearing.
The judge may continue the hearing for good cause shown by either
the defendant or the state.
(c) In a community supervision revocation hearing at which
it is alleged only that the defendant violated the conditions of
community supervision by failing to pay compensation paid to
appointed counsel, community supervision fees, court costs,
restitution, or reparations, the inability of the defendant to pay
as ordered by the judge is an affirmative defense to revocation,
which the defendant must prove by a preponderance of evidence.
(d) A defendant has a right to counsel at a hearing under
this section.
(e) A court retains jurisdiction to hold a hearing under
Subsection (b) and to revoke, continue, or modify community
supervision, regardless of whether the period of community
supervision imposed on the defendant has expired, if before the
expiration the attorney representing the state files a motion to
revoke, continue, or modify community supervision and a capias is
issued for the arrest of the defendant.
Sec. 21 [22]. CONTINUATION OR MODIFICATION. (a) If after
the completion of a review under Section 19 or a hearing under
Section 20, [21 of this article] a judge continues or modifies
community supervision after determining that the defendant failed
to successfully complete or violated a condition of community
supervision, the judge may impose any other conditions that the
judge determines are:
(1) listed in Section 11; or
(2) designated as an available progressive sanction in
the community justice plan established by the community justice
council serving the judge [appropriate, including:
[(1) a requirement that the defendant perform
community service for a number of hours specified by the court under
Section 16 of this article, or an increase in the number of hours
that the defendant has previously been required to perform under
those sections in an amount not to exceed double the number of hours
permitted by Section 16;
[(2) an increase in the period of community
supervision, in the manner described by Subsection (b) of this
section;
[(3) an increase in the defendant's fine, in the manner
described by Subsection (d) of this section; or
[(4) the placement of the defendant in a substance
abuse felony punishment program operated under Section 493.009,
Government Code, if:
[(A) the defendant is convicted of a felony other
than:
[(i) a felony under Section 21.11, 22.011,
or 22.021, Penal Code; or
[(ii) criminal attempt of a felony under
Section 21.11, 22.011, or 22.021, Penal Code; and
[(B) the judge makes an affirmative finding that:
[(i) drug or alcohol abuse significantly
contributed to the commission of the crime or violation of
community supervision; and
[(ii) 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.
[(b) If the judge imposes a sanction under Subsection (a)(4)
of this section, the judge shall also impose a condition requiring
the defendant on successful completion of the program to
participate in a drug or alcohol abuse continuum of care program].
(b) [(c)] The judge in a felony case may extend a period of
community supervision under this section by imposing a maximum of
five one-year extensions for good cause. The judge may not impose
more than one extension per hearing under Section 20. The [as often
as the judge determines is necessary, but the] period of community
supervision in a [first, second, or third degree] felony case, with
extensions, may not exceed 10 years. Except [and, except] as
otherwise provided by this subsection, the period of community
supervision in a misdemeanor case may not exceed three years. The
judge may extend the period of community supervision in a
misdemeanor case for any period the judge determines is necessary,
not to exceed an additional two years beyond the three-year limit,
if the defendant fails to pay a previously assessed fine, costs,
[or] restitution, or reimbursement for appointed counsel and the
judge determines that extending the period of supervision increases
the likelihood that the defendant will fully pay the fine, costs,
[or] restitution, or reimbursement. A court may extend a period of
community supervision under this section at any time during the
period of supervision or, if a motion for revocation of community
supervision is filed before the period of supervision ends, before
the first anniversary of the date on which the period of supervision
expires.
(c) If a [(d) A] judge imposes [may impose] a sanction on a
defendant [described by Subsection (a)(3) of this section] by
increasing the fine imposed on the defendant, the[. The] original
fine imposed [on the defendant] and an increase in the fine imposed
under this subsection may not exceed the maximum fine for the
offense for which the defendant was sentenced. The judge shall
deposit money received from an increase in the defendant's fine
under this subsection in the special fund of the county treasury to
be used for the same purposes for which state aid may be used under
Chapter 76, Government Code.
[Sec. 22A. EXTENDING SUPERVISION PERIOD FOR SEX OFFENDERS.
(a) If a defendant is placed on community supervision after
receiving a grant of deferred adjudication for or being convicted
of an offense under Section 21.11, 22.011, or 22.021, Penal Code, at
any time during the period of community supervision, the judge may
extend the period of community supervision as provided by this
section.
[(b) If at a hearing at which the defendant is provided the
same rights as are provided a defendant at a hearing under Section
21 the judge determines that the defendant has not sufficiently
demonstrated a commitment to avoid future criminal behavior and
that the release of the defendant from supervision would endanger
the public, the judge may extend the period of supervision for a
period not to exceed 10 additional years.
[(c) A judge may extend a period of community supervision
under this section only once; however, the judge may extend a period
of community supervision for a defendant under both Section 22(c)
and this section, and the prohibition in Section 22(c) against a
period of community supervision in a felony case exceeding 10 years
does not apply to a defendant for whom community supervision is
increased under this section or under both Section 22(c) and this
section.]
Sec. 22 [23]. REVOCATION. (a) If community supervision is
revoked after a hearing under Section 20 [21 of this article], the
judge may proceed to dispose of the case as if there had been no
community supervision, or if the judge determines that the best
interests of society and the defendant would be served by a shorter
term of confinement, reduce the term of confinement originally
assessed to any term of confinement not less than the minimum
prescribed for the offense of which the defendant was convicted.
The judge shall enter the amount of restitution or reparation owed
by the defendant on the date of revocation in the judgment in the
case.
(b)(1) Except as otherwise provided by Subdivision (2), by
this article, or by other law, no [No] part of the time that the
defendant is on community supervision shall be considered as any
part of the time that he shall be sentenced to serve.
(2) The judge may grant a defendant credit on the
sentence imposed for all or part of the time the defendant was on
community supervision if the judge revokes community supervision
solely on the basis of an administrative violation of conditions of
release.
(c) 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.
Sec. 23 [24]. NO DUE DILIGENCE DEFENSE. Notwithstanding
Section 24, as that section existed on August 31, 2005, or any case
law that provided a defendant with an affirmative defense to
revocation based on a failure by a department to exercise due
diligence in contacting a defendant who failed to report as
required by a condition of community supervision, the defendant may
not raise at a revocation hearing a defense that the department
failed to exercise due diligence [For the purposes of a hearing
under Section 5(b) or 21(b), it is an affirmative defense to
revocation for an alleged failure to report to a supervision
officer as directed or to remain within a specified place that a
supervision officer, peace officer, or other officer with the power
of arrest under a warrant issued by a judge for that alleged
violation failed to contact or attempt to contact the defendant in
person at the defendant's last known residence address or last
known employment address, as reflected in the files of the
department serving the county in which the order of community
supervision was entered].
SECTION 1.02. (a) Chapter 42, Code of Criminal Procedure,
is amended by adding Article 42.01a to read as follows:
Art. 42.01a. COMMUNITY SUPERVISION FORMS. (a) The
community justice assistance division of the Texas Department of
Criminal Justice and the Office of Court Administration of the
Texas Judicial System shall promulgate a standard form for the
dismissal or discharge of a period of community supervision and for
the revocation of a period of community supervision.
(b) A judge that orders the dismissal or discharge or the
revocation of a period of community supervision under Article 42.12
shall use the form promulgated under Subsection (a).
(b) The community justice assistance division of the Texas
Department of Criminal Justice and the Office of Court
Administration of the Texas Judicial System shall promulgate the
forms required by Article 42.01a, Code of Criminal Procedure, as
added by this Act, as soon as practicable, but in no event later
than 10 days after the effective date of this Act.
(c) A judge that on or after October 1, 2005, orders the
dismissal or discharge or the revocation of a period of community
supervision shall do so on a form promulgated under Article 42.01a,
Code of Criminal Procedure, as added by this Act.
(d) Chapter 42, Code of Criminal Procedure, is amended by
adding Article 42.01b to read as follows:
Art. 42.01b. INTOXICATION OFFENSE REPORTING. (a) The
Office of Court Administration of the Texas Judicial System and the
Department of Public Safety shall promulgate a form to track the
filing of charges against persons charged with offenses under
Chapter 49, Penal Code, other than offenses under Section 49.02.
(b) The Department of Public Safety shall make the forms
available to district and county clerks, along with filing
instructions. Clerks are required to file forms described by
Subsection (a) on a schedule established by the department.
(e) The Office of Court Administration of the Texas Judicial
System and the Department of Public Safety of the State of Texas
shall promulgate the form required by Article 42.01b, Code of
Criminal Procedure, as added by this Act, as soon as practicable,
but in no event later than 10 days after the effective date of this
Act. The department shall make the form and instructions for filing
the form available to district and county clerks not later than
November 1, 2005. Each offense under Chapter 49, Penal Code,
committed on or after January 1, 2006, other than an offense under
Section 49.02, must be reported on the form.
(f) In the 16-month period following the effective date of
this Act, the Office of Court Administration of the Texas Judicial
System shall provide courses to assist the judiciary, prosecutors,
community supervision and corrections department employees, and
defense counsel in implementing the provisions of this Act. The
office of court administration may seek the assistance of the Texas
Criminal Defense Lawyers Association and the Texas District and
County Attorneys Association in offering courses described by this
subsection. The office of court administration shall begin
offering courses described by this subsection not later than
January 1, 2006.
SECTION 1.03. Subsection (a), Section 76.003, Government
Code, is amended to read as follows:
(a) A community justice council must be established by the
[district judge or district] judges described by Section 76.002 in
each jurisdiction served by a department, unless a board or council
that was in existence on September 1, 1991, is performing duties
substantially similar to those imposed on a community justice
council under this section. The council shall provide continuing
policy guidance and direction for the development of community
justice plans containing components required by Article 42.12, Code
of Criminal Procedure, and other law and for the development of
community corrections facilities and programs.
SECTION 1.04. Subsection (d), Section 411.081, Government
Code, is amended to read as follows:
(d) Notwithstanding any other provision of this subchapter,
if a person is placed on deferred adjudication community
supervision under Section 5, Article 42.12, Code of Criminal
Procedure, and subsequently receives a discharge and dismissal
under Section 5(c), Article 42.12, [and satisfies the requirements
of Subsection (e), the person may petition] the court that placed
the defendant on deferred adjudication shall enter [for] an order
of nondisclosure [under this subsection. After notice to the state
and a hearing on whether the person is entitled to file the petition
and issuance of the order is in the best interest of justice, the
court shall issue an order] prohibiting criminal justice agencies
from disclosing to the public criminal history record information
related to the offense giving rise to the deferred adjudication. A
criminal justice agency may disclose criminal history record
information that is the subject of the order to an individual or
agency described by Section 411.083(b)(1), (2), or (3). [A person
may petition the court for an order of nondisclosure on payment of a
$28 fee to the clerk of the court. The payment may be made only on
or after:
[(1) the discharge and dismissal, if the offense for
which the person was placed on deferred adjudication was a
misdemeanor other than a misdemeanor described by Subdivision (2);
[(2) the fifth anniversary of the discharge and
dismissal, if the offense for which the person was placed on
deferred adjudication was a misdemeanor under Chapter 20, 21, 22,
25, 42, or 46, Penal Code; or
[(3) the 10th anniversary of the discharge and
dismissal, if the offense for which the person was placed on
deferred adjudication was a felony.]
SECTION 1.05. Subdivisions (1) and (4), Section 509.001,
Government Code, are amended to read as follows:
(1) "Community corrections facility" means a physical
structure, established by the judges described by Section 76.002 [a
judicial district] after authorization of the establishment of the
structure has been included in the local community justice plan,
that is operated by a department or operated for a department by an
entity under contract with the department, for the purpose of
confining persons placed on community supervision and providing
services and programs to modify criminal behavior, deter criminal
activity, protect the public, and restore victims of crime. The
term includes:
(A) a restitution center;
(B) a court residential treatment facility;
(C) a substance abuse treatment facility;
(D) a custody facility or boot camp;
(E) a facility for an offender with a mental
impairment, as defined by Section 614.001, Health and Safety Code;
and
(F) an intermediate sanction facility.
(4) "State aid" means funds appropriated by the
legislature to the division to provide financial assistance to:
(A) the judges described by Section 76.002
[judicial districts,] for:
(i) a department established by the judges
[the administration of departments];
(ii) the development and improvement of
community supervision services and community-based correctional
programs;
(iii) the establishment and operation of
community corrections facilities; and
(iv) assistance in conforming with
standards and policies of the division and the board; and
(B) state agencies, counties, municipalities,
and nonprofit organizations for the implementation and
administration of community-based sanctions and programs.
SECTION 1.06. Section 509.007, Government Code, is amended
to read as follows:
Sec. 509.007. COMMUNITY JUSTICE PLAN. (a) The division
shall require as a condition to payment of state aid to a department
or county under Section 509.011 [and eligibility for payment of
costs under Section 499.124] that a community justice plan be
submitted for the department. The community justice council shall
submit the plan required by this subsection. A community justice
council may not submit a plan under this section unless the plan is
first approved under Section 76.002 [by the district judges who
manage the department served by the council]. The council shall
submit a revised plan to the division each odd-numbered year by a
date designated by the division. A plan may be amended at any time
with the approval of the division.
(b) A community justice plan required under this section
must include:
(1) a statement of goals and priorities and of
commitment by the community justice council, the [district] judges
who established the department and approve the department's budget
and community justice plan [manage the department], and the
department director to achieve a targeted level of alternative
sanctions;
(2) a description of methods for measuring the success
of programs provided by the department or provided by an entity
served by the department; and
(3) a proposal for the use of state jail felony
facilities and, at the discretion of the community justice council,
a regional proposal for the construction, operation, maintenance,
or management of a state jail felony facility by a county, a
community supervision and corrections department, or a private
vendor under a contract with a county or a community supervision and
corrections department.
SECTION 1.07. Subsection (a), Section 509.011, Government
Code, is amended to read as follows:
(a) If the division determines that a department complies
with division standards and if the department or judges described
by Section 76.002 who established [managing] the department have
submitted a community justice plan under Section 76.003 and the
supporting information required by the division and the division
determines the plan and supporting information are acceptable, the
division shall prepare and submit to the comptroller vouchers for
payment to the department as follows:
(1) for per capita funding, a per diem amount for each
felony defendant directly supervised by the department pursuant to
lawful authority;
(2) for per capita funding, a per diem amount for a
period not to exceed 182 days for each defendant supervised by the
department pursuant to lawful authority, other than a felony
defendant; and
(3) for formula funding, an annual amount as computed
by multiplying a percentage determined by the allocation formula
established under Subsection (f) times the total amount provided in
the General Appropriations Act for payments under this subdivision.
SECTION 1.08. Subsection (g), Section 12.42, Penal Code, is
amended to read as follows:
(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 1.09. Subsection (e), Section 411.081, Government
Code, is repealed.
SECTION 1.10. The change in law made by this article applies
to a person who is on community supervision on or after the
effective date of this article, regardless of when the person was
initially placed on community supervision.
ARTICLE 2. DRIVER'S LICENSES
SECTION 2.01. Section 521.242, Transportation Code, is
amended by amending Subsection (d) and adding Subsections (b-1),
(d-1), and (g) to read as follows:
(b-1) If the person's driver's license was suspended under
Chapter 524 or 724, the person's petition under Subsection (b) must
be filed in a court having jurisdiction of the intoxication offense
that resulted in the suspension. The petition must state that the
person's driver's license was suspended under Chapter 524 or 724.
(d) A petition filed under Subsection (b) must state that:
(1) the petitioner was convicted in that court for an
offense under the laws of this state; and
(2) subsequent to the date of the arrest resulting in
that conviction the petitioner has successfully completed an
educational program jointly approved by the Department of State
Health Services, the Department of Public Safety, the Traffic
Safety Section of the Texas Department of Transportation, and the
community justice assistance division of the Texas Department of
Criminal Justice designed to rehabilitate persons who have driven
while intoxicated.
(d-1) A petition filed under Subsection (b-1) must state
that subsequent to the suspension of the person's driver's license
the petitioner has successfully completed an educational program
described by Subsection (d)(2).
(g) The Department of State Health Services shall publish
the jointly approved rules and shall monitor, coordinate, and
provide training to persons providing the educational programs
described by Subsection (d)(2). The Department of State Health
Services is responsible for the administration of the certification
of approved educational programs and may charge a nonrefundable
application fee for the initial certification of approval and for
renewal of a certificate.
SECTION 2.02. Section 521.246, Transportation Code, is
amended by amending Subsections (b) and (d) and adding Subsections
(d-1) through (d-4) to read as follows:
(b) As part of the order the judge shall [may] restrict the
person to the operation of a motor vehicle equipped with an ignition
interlock device if the judge determines that the person's license
has been suspended following a conviction under Section 49.04,
49.07, or 49.08, Penal Code, or has been suspended under Chapter 524
or 724. [As part of the order, the judge shall restrict the person
to the operation of a motor vehicle equipped with an ignition
interlock device if the judge determines that:
[(1) the person has two or more convictions under any
combination of Section 49.04, 49.07, or 49.08, Penal Code; or
[(2) the person's license has been suspended after a
conviction under Section 49.04, Penal Code, for which the person
has been punished under Section 49.09, Penal Code.]
(d) The court shall order the ignition interlock device to
remain installed for at least the applicable [half of the] period of
suspension [supervision].
(d-1) Notwithstanding Section 521.248(c), a court that
enters an order under Subsection (b) retains jurisdiction over the
person until the third anniversary of the date on which the
applicable period of suspension expires. At any time during those
three years, but not more than once a year, the court, on written
notice to the person and to the attorney representing the state, may
conduct a hearing to determine whether the person has continued to
operate a motor vehicle while intoxicated or under the influence of
alcohol.
(d-2) If the court determines that the person has continued
to operate a motor vehicle while intoxicated or under the influence
of alcohol and enters the determination in the record of the
proceedings, the court may enter an order restricting the person to
the operation of a motor vehicle equipped with an ignition
interlock device for the period set by the court, but not longer
than the third anniversary of the date on which the applicable
period of suspension expires.
(d-3) A hearing under Subsection (d-1) may not be held
before the 11th day after the date on which the court notifies the
parties. A party is entitled to only one continuance of the
hearing. If the person fails to appear, the court may conduct the
hearing and enter an order under Subsection (d-2) in the person's
absence and notify the person of the order by sending a certified
copy of the order by first class mail to the person's address as
shown in the driver's license records of the department.
(d-4) A person who is restricted to the operation of a motor
vehicle equipped with an ignition interlock device under Subsection
(d-2) may request that the court review the order at any time the
court considers appropriate or on an annual basis.
SECTION 2.03. Subchapter L, Chapter 521, Transportation
Code, is amended by adding Sections 521.2451 through 521.2454 and
521.2511 to read as follows:
Sec. 521.245l. REQUIRED ALCOHOL AND DRUG TESTING. An order
under Section 521.244 may include a requirement that the person
submit to testing for alcohol or controlled substances as directed
by the court or as specified in the order.
Sec. 521.2452. ELECTRONIC MONITORING. (a) An order under
Section 521.244 may include a requirement that the person submit to
electronic monitoring as directed by the court or as specified in
the order for as long as the occupational license remains valid.
(b) In this section, "electronic monitoring" includes
position tracking systems, position location systems, biometric
tracking systems, and any other electronic or telecommunications
system that may be used to assist in the enforcement of an order
entered under Section 521.244.
Sec. 521.2453. SUPERVISION BY COMMUNITY SUPERVISION AND
CORRECTIONS DEPARTMENT. The court shall require that the defendant
be supervised by the community supervision and corrections
department that serves the court for the period during which the
occupational license remains valid or the period specified in an
order entered under Section 521.246.
Sec. 521.2454. COSTS. The court may require the defendant
to pay all costs associated with the conditions or restrictions
imposed by the court under this subchapter.
Sec. 521.2511. CONDITIONS AND RESTRICTIONS EXCLUSIVE.
(a) A court may not include in an order entered under this
subchapter a condition or restriction that is not expressly
required or authorized by this subchapter.
(b) To the extent of a conflict with another law of this
state, this section prevails.
SECTION 2.04. Section 521.341, Transportation Code, is
amended to read as follows:
Sec. 521.341. REQUIREMENTS FOR AUTOMATIC LICENSE
SUSPENSION. A [Except as provided by Sections 521.344(d)-(i), a]
license is automatically suspended on final conviction of the
license holder of:
(1) an offense under Section 19.05, Penal Code,
committed as a result of the holder's criminally negligent
operation of a motor vehicle;
(2) an offense under Section 38.04, Penal Code, if the
holder used a motor vehicle in the commission of the offense;
(3) an offense under Section 49.04 or 49.08, Penal
Code;
(4) an offense under Section 49.07, Penal Code, if the
holder [person] used a motor vehicle in the commission of the
offense;
(5) an offense punishable as a felony under the motor
vehicle laws of this state;
(6) an offense under Section 550.021; or
(7) an offense under Section 521.451 or 521.453.
SECTION 2.05. Subsections (b) and (c), Section 521.342,
Transportation Code, are amended to read as follows:
(b) The department shall suspend for one year the license of
a person who is under 21 years of age and is convicted of an offense
under Section 49.04, 49.07, or 49.08, Penal Code, except that if the
person's driving record shows one or more alcohol-related or
drug-related enforcement contacts, as defined by Section 524.001,
during the 10 years preceding the date of the person's arrest, the
department shall suspend the person's license for two years
[regardless of whether the person is required to attend an
educational program under Section 13(h), Article 42.12, Code of
Criminal Procedure, that is designed to rehabilitate persons who
have operated motor vehicles while intoxicated, unless the person
is placed under community supervision under that article and is
required as a condition of the community supervision to not operate
a motor vehicle unless the vehicle is equipped with the device
described by Section 13(i) of that article. If the person is
required to attend such a program and does not complete the program
before the end of the person's suspension, the department shall
suspend the person's license or continue the suspension, as
appropriate, until the department receives proof that the person
has successfully completed the program. On the person's successful
completion of the program, the person's instructor shall give
notice to the department and to the community supervision and
corrections department in the manner provided by Section 13(h),
Article 42.12, Code of Criminal Procedure].
(c) A person whose license is suspended under Subsection (a)
remains eligible to receive an occupational license under
Subchapter L, except that the person is not eligible for an
occupational license for the first 45 days of a one-year
suspension, or for the first 90 days of a two-year suspension.
Suspension under Subsection (a) is not a suspension for physical or
mental disability or impairment for purposes of eligibility to
apply for an occupational license under Subchapter L.
SECTION 2.06. Section 521.344, Transportation Code, is
amended to read as follows:
Sec. 521.344. SUSPENSION FOR CERTAIN OFFENSES INVOLVING
INTOXICATION. (a) Except as provided by Section [Sections
521.342(b) and] 521.345, [and by Subsections (d)-(i),] if a person
is convicted of an offense under Section 49.04 or 49.07, Penal Code,
the license suspension:
(1) begins on a date set by the court that is not
earlier than the date of the conviction or later than the 30th day
after the date of the conviction, as determined by the court; and
(2) continues for a period of [set by the court
according to the following schedule:
[(A) not less than 90 days or more than] one year,
if the person is punished under Section 49.04 or 49.07, Penal Code,
except that if the person's license is suspended for a second or
subsequent offense under Section 49.04 or 49.07 and the person's
driving record shows one or more alcohol-related or drug-related
enforcement contacts, as defined by Section 524.001, during the 10
years preceding the date of the person's arrest [committed within
five years of the date on which the most recent preceding offense
was committed], the suspension continues for a period of two years
[one year;
[(B) not less than 180 days or more than two
years, if the person is punished under Section 49.09(a) or (b),
Penal Code; or
[(C) not less than one year or more than two
years, if the person is punished under Section 49.09(a) or (b),
Penal Code, and is subject to Section 49.09(h) of that code].
(b) Except as provided by Section 521.342(b), if a person is
convicted of an offense under Section 49.08, Penal Code, the
license suspension:
(1) begins on a date set by the court that is not
earlier than the date of the conviction or later than the 30th day
after the date of the conviction, as determined by the court; and
(2) continues for a period [set by the court] of [not
less than 180 days or more than] two years, except that if the
person's license is suspended for a second or subsequent offense
under Section 49.08, Penal Code, committed within 10 years of the
date on which the most recent preceding offense was committed, the
suspension continues for a period [set by the court] of 10 [not less
than one year or more than two] years.
(c) The court may not [shall] credit toward the period of
suspension a suspension imposed on the person for refusal to give a
specimen under Chapter 724 if the refusal followed an arrest for the
same offense for which the court is suspending the person's license
under this chapter and the suspensions shall run consecutively,
with the subsequent suspension beginning on the date the first
suspension expires. [The court may not extend the credit to a
person:
[(1) who has been previously convicted of an offense
under Section 49.04, 49.07, or 49.08, Penal Code; or
[(2) whose period of suspension is governed by Section
521.342(b).]
(d) A person whose license is suspended under this section
remains eligible to receive an occupational license under
Subchapter L, except that the person is not eligible for an
occupational license for the first 45 days of a one-year suspension
or for the first 90 days of a two-year suspension. [Except as
provided by Subsection (e) and Section 521.342(b), during a period
of probation the department may not revoke the person's license if
the person is required under Section 13(h) or (j), Article 42.12,
Code of Criminal Procedure, to successfully complete an educational
program designed to rehabilitate persons who have operated motor
vehicles while intoxicated, unless the person was punished under
Section 49.09(a) or (b), Penal Code, and was subject to Section
49.09(h) of that code. The department may not revoke the license of
a person:
[(1) for whom the jury has recommended that the
license not be revoked under Section 13(g), Article 42.12, Code of
Criminal Procedure; or
[(2) who is placed under community supervision under
that article and is required as a condition of community
supervision to not operate a motor vehicle unless the vehicle is
equipped with the device described by Section 13(i) of that
article, unless the person was punished under Section 49.09(a) or
(b), Penal Code, and was subject to Section 49.09(g) of that code.
[(e) After the date has passed, according to department
records, for successful completion of the educational program
designed to rehabilitate persons who operated motor vehicles while
intoxicated, the director shall revoke the license of a person who
does not successfully complete the program or, if the person is a
resident without a license to operate a motor vehicle in this state,
shall issue an order prohibiting the person from obtaining a
license.
[(f) After the date has passed, according to department
records, for successful completion of an educational program for
repeat offenders as required by Section 13, Article 42.12, Code of
Criminal Procedure, the director shall suspend the license of a
person who does not successfully complete the program or, if the
person is a resident without a license, shall issue an order
prohibiting the person from obtaining a license.
[(g) A revocation, suspension, or prohibition order under
Subsection (e) or (f) remains in effect until the department
receives notice of successful completion of the educational
program. The director shall promptly send notice of a revocation or
prohibition order issued under Subsection (e) or (f) by first class
mail to the person at the person's most recent address as shown in
the records of the department. The notice must include the date of
the revocation or prohibition order, the reason for the revocation
or prohibition, and a statement that the person has the right to
request in writing that a hearing be held on the revocation or
prohibition. Notice is considered received on the fifth day after
the date the notice is mailed. A revocation or prohibition under
Subsection (e) or (f) takes effect on the 30th day after the date
the notice is mailed. The person may request a hearing not later
than the 20th day after the date the notice is mailed. If the
department receives a request under this subsection, the department
shall set the hearing for the earliest practical time and the
revocation or prohibition does not take effect until resolution of
the hearing.
[(h) The hearing shall be held in a municipal or justice
court in the county of the person's residence in the manner provided
for a suspension hearing under Subchapter N. The issues to be
determined at the hearing are whether the person has successfully
completed a required educational program and whether the period for
completion of the program has passed. If the presiding officer
determines that the educational program has not been completed and
the period for completion has passed, the officer shall confirm the
revocation or prohibition and shall notify the department of that
fact. The director may not revoke or prohibit the license if the
officer finds that the program has been completed, that, before the
hearing, the court that originally imposed the requirement to
attend an educational program has granted an extension that has not
expired, or that the period for completion has not passed. If the
person or the person's agent fails to appear at the hearing, the
department shall revoke the person's license until the department
receives notice of successful completion of the educational
program.
[(i) On the date that a suspension order under Section
521.343(c) is to expire, the period of suspension or the
corresponding period in which the department is prohibited from
issuing a license is automatically increased to two years unless
the department receives notice of successful completion of the
educational program as required by Section 13, Article 42.12, Code
of Criminal Procedure. At the time a person is convicted of an
offense under Section 49.04, Penal Code, the court shall warn the
person of the effect of this subsection. On the person's successful
completion of the program, the person's instructor shall give
notice to the department and to the community supervision and
corrections department in the manner required by Section 13,
Article 42.12, Code of Criminal Procedure. If the department
receives proof of completion after a period has been extended under
this subsection, the department shall immediately end the
suspension or prohibition.]
SECTION 2.07. Section 524.022, Transportation Code, is
amended to read as follows:
Sec. 524.022. PERIOD OF SUSPENSION. (a) A period of
suspension under this chapter [for an adult] is:
(1) 180 [90] days if the person's driving record shows
no alcohol-related or drug-related enforcement contact during the
10 years preceding the date of the person's arrest; or
(2) one year if the person's driving record shows one
or more alcohol-related or drug-related enforcement contacts
during the 10 years preceding the date of the person's arrest.
(b) [A period of suspension under this chapter for a minor
is:
[(1) 60 days if the minor has not been previously
convicted of an offense under Section 106.041, Alcoholic Beverage
Code, or Section 49.04, Penal Code, or an offense under Section
49.07 or 49.08, Penal Code, involving the operation of a motor
vehicle;
[(2) 120 days if the minor has been previously
convicted once of an offense listed by Subdivision (1); or
[(3) 180 days if the minor has been previously
convicted twice or more of an offense listed by Subdivision (1).
[(c) For the purposes of determining whether a minor has
been previously convicted of an offense described by Subsection
(b)(1):
[(1) an adjudication under Title 3, Family Code, that
the minor engaged in conduct described by Subsection (b)(1) is
considered a conviction under that provision; and
[(2) an order of deferred adjudication for an offense
alleged under a provision described by Subsection (b)(1) is
considered a conviction of an offense under that provision.
[(d)] A person [minor] whose driver's license is suspended
under this chapter is not eligible for an occupational license
under Subchapter L, Chapter 521, for:
(1) the first 45 [30] days of a 180-day suspension
[under Subsection (b)(1)]; or
(2) the first 90 days of a one-year suspension [under
Subsection (b)(2); or
[(3) the entire period of a suspension under
Subsection (b)(3)].
SECTION 2.08. Subsection (b), Section 524.023,
Transportation Code, is amended to read as follows:
(b) The court imposing a driver's license suspension under
Section 106.041, Alcoholic Beverage Code, or Chapter 521 or 522 as
required by Subsection (a) may not [shall] credit a period of
suspension imposed under this chapter or a period of ineligibility
for an occupational driver's license toward the period of
suspension required under Section 106.041, Alcoholic Beverage
Code, or Subchapter O, Chapter 521, or Subchapter H, Chapter 522,
and the suspensions shall run consecutively and the applicable
periods of ineligibility for an occupational license under
Subchapter O, Chapter 521, shall run concurrently [unless the
person was convicted of an offense under Article 6701l-1, Revised
Statutes, as that law existed before September 1, 1994, Section
19.05(a)(2), Penal Code, as that law existed before September 1,
1994, Section 49.04, 49.07, or 49.08, Penal Code, or Section
106.041, Alcoholic Beverage Code, before the date of the conviction
on which the suspension is based, in which event credit may not be
given].
SECTION 2.09. Section 724.015, Transportation Code, is
amended to read as follows:
Sec. 724.015. INFORMATION PROVIDED BY OFFICER BEFORE
REQUESTING SPECIMEN. Before requesting a person to submit to the
taking of a specimen, the officer shall inform the person orally and
in writing that:
(1) if the person refuses to submit to the taking of
the specimen, that refusal may be admissible in a subsequent
prosecution;
(2) if the person refuses to submit to the taking of
the specimen, the person's license to operate a motor vehicle will
be automatically suspended for one year, regardless of whether [or
not] the person is subsequently prosecuted as a result of the
arrest[, for not less than 180 days];
(3) if the person [is 21 years of age or older and]
submits to the taking of a specimen designated by the officer and an
analysis of the specimen shows the person had an alcohol
concentration of a level specified by Chapter 49, Penal Code, the
person's license to operate a motor vehicle will be automatically
suspended for two years [not less than 90 days], regardless of
whether [or not] the person is subsequently prosecuted as a result
of the arrest;
(4) if the person is younger than 21 years of age and
has any detectable amount of alcohol in the person's system, the
person's license to operate a motor vehicle will be automatically
suspended for two years [not less than 60 days] even if the person
submits to the taking of the specimen, but that if the person
submits to the taking of the specimen and an analysis of the
specimen shows that the person had an alcohol concentration less
than the level specified by Chapter 49, Penal Code, the person may
be subject to criminal penalties less severe than those provided
under that chapter;
(5) if the officer determines that the person is a
resident without a license to operate a motor vehicle in this state,
the department will deny to the person the issuance of a license,
regardless of whether [or not] the person is subsequently
prosecuted as a result of the arrest, under the same conditions and
for the same periods that would have applied to a suspension
[revocation] of the person's driver's license if the person had held
a driver's license issued by this state; and
(6) the person has a right to a hearing on the
suspension or denial if, not later than the 15th day after the date
on which the person receives the notice of suspension or denial or
on which the person is considered to have received the notice by
mail as provided by law, the department receives, at its
headquarters in Austin, a written demand, including a facsimile
transmission, or a request in another form prescribed by the
department for the hearing.
SECTION 2.10. Section 724.035, Transportation Code, is
amended by amending Subsection (a) and adding Subsection (d) to
read as follows:
(a) If a person refuses the request of a peace officer to
submit to the taking of a specimen, the department shall:
(1) suspend the person's license to operate a motor
vehicle on a public highway for one year [180 days]; or
(2) if the person is a resident without a license,
issue an order denying the issuance of a license to the person for
one year [180 days].
(d) A person whose driver's license is suspended under this
chapter is not eligible for an occupational license under
Subchapter L, Chapter 521, for:
(1) the first 45 days of a one-year suspension; or
(2) the first 90 days of a two-year suspension.
SECTION 2.11. Section 524.051, Transportation Code, is
repealed.
SECTION 2.12. (a) The changes in law made by this article
to Chapter 521, Transportation Code, relating to the automatic
suspension of a driver's license on conviction of certain offenses,
apply only to a conviction that becomes final on or after September
1, 2005. The automatic suspension of a driver's license for a
conviction that became final before September 1, 2005, is covered
by the law in effect when the conviction became final, and the
former law is continued in effect for that purpose.
(b) The changes in law made by this article to Chapters 521
and 724, Transportation Code, relating to the suspension of a
driver's license under those chapters, other than an automatic
suspension, apply only to a license suspension subsequent to and in
connection with an arrest for an offense committed on or after
September 1, 2005. The suspension of a driver's license subsequent
to and in connection with an arrest for an offense committed before
September 1, 2005, is covered by the law in effect when the offense
was committed, and the former law is continued in effect for that
purpose.
(c) For purposes of Subsection (b) of this section, an
offense was committed before September 1, 2005, if any element of
the offense was committed before that date.
(d) The changes in law made by this article to Chapter 521,
Transportation Code, relating to an occupational driver's license,
apply only to an occupational driver's license for which an
application petition is filed on or after September 1, 2005. An
occupational driver's license for which an application petition is
filed before September 1, 2005, is covered by the law in effect when
the application petition was filed, and the former law is continued
in effect for that purpose.
ARTICLE 3. EFFECTIVE DATE
SECTION 3.01. This Act takes effect September 1, 2005.
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