80R1864 KCR-D

By: Riddle, Berman, Vaught, Escobar, et al. H.B. No. 8

A BILL TO BE ENTITLED

AN ACT

relating to the prosecution, punishment, and supervision of certain sex offenders and to certain crimes involving sex offenders.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Article 12.01, Code of Criminal Procedure, is amended to read as follows:

Art. 12.01. FELONIES. (a) Except as provided in Article 12.03, felony indictments may be presented within these limits, and not afterward:

(1) no limitation:

(A) murder and manslaughter;

(B) sexual assault, if during the investigation of the offense biological matter is collected and subjected to forensic DNA testing and the testing results show that the matter does not match the victim or any other person whose identity is readily ascertained; or

(C) an offense involving leaving the scene of an accident under Section 550.021, Transportation Code, if the accident resulted in the death of a person;

(2) ten years from the date of the commission of the offense:

(A) theft of any estate, real, personal or mixed, by an executor, administrator, guardian or trustee, with intent to defraud any creditor, heir, legatee, ward, distributee, beneficiary or settlor of a trust interested in such estate;

(B) theft by a public servant of government property over which he exercises control in his official capacity;

(C) forgery or the uttering, using or passing of forged instruments;

(D) injury to a child, elderly individual, or disabled individual punishable as a felony of the first degree under Section 22.04, Penal Code;

(E) sexual assault, except as provided by Subdivision (1) or (6) [(5)]; or

(F) arson;

(3) seven years from the date of the commission of the offense:

(A) misapplication of fiduciary property or property of a financial institution;

(B) securing execution of document by deception; or

(C) a violation under Sections 162.403(22)-(39), Tax Code;

(4) five years from the date of the commission of the offense:

(A) theft or[, burglary,] robbery;

(B) except as provided by Subdivision (6), kidnapping or burglary;

(C) injury to a child, elderly individual, or disabled individual that is not punishable as a felony of the first degree under Section 22.04, Penal Code;

(D) abandoning or endangering a child; or

(E) insurance fraud;

(5) ten years from the 18th birthday of the victim of the offense of[:

[(A)] indecency with a child under Section 21.11(a)(2) [21.11(a)(1) or (2)], Penal Code; [or

[(B) except as provided by Subdivision (1), sexual assault under Section 22.011(a)(2), Penal Code, or aggravated sexual assault under Section 22.021(a)(1)(B), Penal Code; or]

(6) except as provided by Subdivision (1), 20 years from the 18th birthday of the victim of a sexually violent offense, if the investigation of the offense shows that the victim is younger than 17 years of age at the time the offense is committed; or

(7) three years from the date of the commission of the offense: all other felonies.

(b) For purposes of this article, "sexually violent offense" has the meaning assigned by Section 1.07, Penal Code.

SECTION 2. Section 2, Article 37.071, Code of Criminal Procedure, is amended by adding Subsection (j) to read as follows:

(j) In a case punishable as a capital felony under Section 12.42(c)(3), Penal Code, the court may not submit the issue described by Subsection (b)(2) to the jury.

SECTION 3. Section 4, Article 37.07, Code of Criminal Procedure, is amended by amending Subsections (a) and (b) and adding Subsection (e) to read as follows:

(a) In the penalty phase of the trial of a felony case in which the punishment is to be assessed by the jury rather than the court, if the offense of which the jury has found the defendant guilty is listed in Section 3g(a)(1), Article 42.12, of this code or if the judgment contains an affirmative finding under Section 3g(a)(2), Article 42.12, of this code, unless the defendant has been convicted of a capital felony or of a sexually violent offense the victim of which is younger than 14 years of age at the time the offense is committed, the court shall charge the jury in writing as follows:

"Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.

"It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.

"Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole. Eligibility for parole does not guarantee that parole will be granted.

"It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.

"You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant."

(b) In the penalty phase of the trial of a felony case in which the punishment is to be assessed by the jury rather than the court, if the offense is punishable as a felony of the first degree, if a prior conviction has been alleged for enhancement of punishment as provided by Section 12.42(b), (c)(1) or (2), or (d), Penal Code, or if the offense is a felony not designated as a capital felony or a felony of the first, second, or third degree and the maximum term of imprisonment that may be imposed for the offense is longer than 60 years, unless the offense of which the jury has found the defendant guilty is listed in Section 3g(a)(1), Article 42.12, of this code or the judgment contains an affirmative finding under Section 3g(a)(2), Article 42.12, of this code, and unless the defendant has been convicted of a sexually violent offense the victim of which is younger than 14 years of age at the time the offense is committed, the court shall charge the jury in writing as follows:

"Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.

"It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.

"Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served plus any good conduct time earned equals one-fourth of the sentence imposed or 15 years, whichever is less. Eligibility for parole does not guarantee that parole will be granted.

"It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.

"You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant."

(e) In this article, "sexually violent offense" has the meaning assigned by Section 1.07, Penal Code.

SECTION 4. Section 508.145, Government Code, is amended by adding Subsection (b) and amending Subsections (c) and (d) to read as follows:

(b) Notwithstanding Subsection (c) or (d), an inmate is not eligible for release on parole if the inmate is serving a sentence:

(1) for an offense for which punishment is increased under Section 12.42(c)(2), Penal Code, and the victim of which is younger than 14 years of age at the time the offense is committed; or

(2) for an offense described by Section 3g(a)(1)(C), (D), or (E), Article 42.12, Code of Criminal Procedure, the victim of which is younger than 14 years of age at the time the offense is committed.

(c) Subject to Subsection (b), an [An] inmate serving a sentence under Section 12.42(c)(2), Penal Code, is not eligible for release on parole until the actual calendar time the inmate has served, without consideration of good conduct time, equals 35 calendar years.

(d) Subject to Subsection (b), an [An] inmate serving a sentence for an offense described by Section 3g(a)(1)(A), (C), (D), (E), (F), (G), or (H), Article 42.12, Code of Criminal Procedure, or for an offense for which the judgment contains an affirmative finding under Section 3g(a)(2) of that article, is not eligible for release on parole until the inmate's actual calendar time served, without consideration of good conduct time, equals one-half of the sentence or 30 calendar years, whichever is less, but in no event is the inmate eligible for release on parole in less than two calendar years.

SECTION 5. Section 508.149(a), Government Code, is amended to read as follows:

(a) An inmate may not be released to mandatory supervision if the inmate is serving a sentence for or has been previously convicted of:

(1) an offense for which the judgment contains an affirmative finding under Section 3g(a)(2), Article 42.12, Code of Criminal Procedure;

(2) a first degree felony or a second degree felony under Section 19.02, Penal Code;

(3) a capital felony under Section 19.03, Penal Code;

(4) a first degree felony or a second degree felony under Section 20.04, Penal Code;

(5) an offense [a second degree felony or a third degree felony] under Section 21.11, Penal Code;

(6) a [second degree] felony under Section 22.011, Penal Code;

(7) a first degree felony or a second degree felony under Section 22.02, Penal Code;

(8) a first degree felony under Section 22.021, Penal Code;

(9) a first degree felony under Section 22.04, Penal Code;

(10) a first degree felony under Section 28.02, Penal Code;

(11) a second degree felony under Section 29.02, Penal Code;

(12) a first degree felony under Section 29.03, Penal Code;

(13) a first degree felony under Section 30.02, Penal Code; [or]

(14) a felony for which the punishment is increased under Section 481.134 or Section 481.140, Health and Safety Code; or

(15) a first degree felony under Section 43.25, Penal Code.

SECTION 6. Section 841.082, Health and Safety Code, is amended by adding Subsection (b) to read as follows:

(b) A tracking service to which a person is required to submit under Subsection (a)(5) must:

(1) track the person's location in real time;

(2) be able to provide a real-time report of the person's location to the case manager at the case manager's request; and

(3) periodically provide a cumulative report of the person's location to the case manager.

SECTION 7. Section 1.07(a), Penal Code, is amended by adding Subdivision (50) to read as follows:

(50) "Sexually violent offense" means any of the following offenses:

(A) an offense under Section 21.11(a)(1) (Indecency with a child), 22.011 (Sexual assault), or 22.021 (Aggravated sexual assault);

(B) an offense under Section 43.25 (Sexual performance by a child);

(C) an offense under Section 20.04(a)(4) (Aggravated kidnapping), if the defendant committed the offense with intent to violate or abuse the victim sexually; or

(D) an offense under Section 30.02 (Burglary), if the offense is punishable under Subsection (d) of that section and the defendant committed the offense with intent to commit an offense described by Paragraph (A) or (C).

SECTION 8. Section 12.42(c), Penal Code, is amended to read as follows:

(c)(1) If [Except as provided by Subdivision (2), if] it is shown on the trial of a first-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished by imprisonment in the institutional division of the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 15 years. In addition to imprisonment, an individual may be punished by a fine not to exceed $10,000.

(2) Notwithstanding Subdivision (1), a [A] defendant shall be punished by imprisonment in the institutional division for life if:

(A) the defendant is convicted of an offense:

(i) under Section 21.11, 22.021, or 22.011, Penal Code;

(ii) under Section 20.04(a)(4), Penal Code, if the defendant committed the offense with the intent to violate or abuse the victim sexually; [or]

(iii) under Section 30.02, Penal Code, punishable under Subsection (d) of that section, if the defendant committed the offense with the intent to commit a felony described by Subparagraph (i) or (ii) [or a felony under Section 21.11 or 22.011, Penal Code]; or

(iv) under Section 43.25, Penal Code; and

(B) the defendant has been previously convicted of an offense:

(i) under Section 43.25 or 43.26, Penal Code, or an offense under Section 43.23, Penal Code, punishable under Subsection (h) of that section;

(ii) under Section 21.11, 22.011, 22.021, or 25.02, Penal Code;

(iii) under Section 20.04(a)(4), Penal Code, if the defendant committed the offense with the intent to violate or abuse the victim sexually;

(iv) under Section 30.02, Penal Code, punishable under Subsection (d) of that section, if the defendant committed the offense with the intent to commit a felony described by Subparagraph (ii) or (iii); or

(v) under the laws of another state containing elements that are substantially similar to the elements of an offense listed in Subparagraph (i), (ii), (iii), or (iv).

(3) Notwithstanding Subdivision (1) or (2), a defendant shall be punished for a capital felony if it is shown on the trial of a sexually violent offense punishable as a felony of the first degree that:

(A) the victim of the offense is younger than 14 years of age at the time the offense is committed; and

(B) the defendant has previously been finally convicted of:

(i) a sexually violent offense, the victim of which was younger than 14 years of age at the time that offense was committed; or

(ii) an offense under the laws of another state containing elements that are substantially similar to the elements of a sexually violent offense, the victim of which was younger than 14 years of age at the time that offense was committed.

SECTION 9. Section 20.04(d), Penal Code, is amended to read as follows:

(d) At the punishment stage of a trial, the defendant may raise the issue as to whether he voluntarily released the victim in a safe place. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree. This subsection does not apply if the victim of the offense is younger than 14 years of age at the time the offense is committed.

SECTION 10. Section 21.11(d), Penal Code, is amended to read as follows:

(d) An offense under Subsection (a)(1) is a felony of the second degree, except that the offense is a felony of the first degree if the victim is younger than 14 years of age at the time the offense is committed. An [and an] offense under Subsection (a)(2) is a felony of the third degree.

SECTION 11. Sections 43.25(c) and (e), Penal Code, are amended to read as follows:

(c) An offense under Subsection (b) is a felony of the second degree, except that the offense is a felony of the first degree if the victim is younger than 14 years of age at the time the offense is committed.

(e) An offense under Subsection (d) is a felony of the third degree, except that the offense is a felony of the first degree if the victim is younger than 14 years of age at the time the offense is committed.

SECTION 12. (a) Except as provided by Subsections (b) and (c), the change in law made by this Act applies only to an offense committed on or after September 1, 2007. An offense committed before September 1, 2007, is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For the purposes of this section, an offense was committed before September 1, 2007, if any element of the offense occurred before that date.

(b) The change in law made by this Act to Section 841.082, Health and Safety Code, applies only to an individual who on or after September 1, 2007, is serving a sentence in the Texas Department of Criminal Justice or is committed to the Department of State Health Services for an offense committed before, on, or after the effective date of this Act.

(c) The change in law made by this Act to Article 12.01, Code of Criminal Procedure, does not apply to an offense if the prosecution of that offense became barred by limitation before the effective date of this Act. The prosecution of that offense remains barred as if this Act had not taken effect.

SECTION 13. This Act takes effect September 1, 2007.