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A BILL TO BE ENTITLED
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AN ACT
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relating to a defendant's eligibility to be placed on deferred |
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adjudication for certain intoxication offenses and to the |
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consequences of that deferred adjudication. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 5, Article 42.12, Code of Criminal |
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Procedure, is amended by amending Subsections (a) and (d) and |
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adding Subsection (a-1) to read as follows: |
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(a) Except as provided by Subsection (d) [of this section], |
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when in the judge's opinion the best interest of society and the |
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defendant will be served, the judge may, after receiving a plea of |
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guilty or plea of nolo contendere, hearing the evidence, and |
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finding that it substantiates the defendant's guilt, defer further |
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proceedings without entering an adjudication of guilt, and place |
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the defendant on community supervision. A judge may place on |
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community supervision under this section a defendant charged with |
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an offense under Section 21.11, 22.011, or 22.021, Penal Code, |
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regardless of the age of the victim, or a defendant charged with a |
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felony described by Section 13B(b) [of this article], only if the |
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judge makes a finding in open court that placing the defendant on |
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community supervision is in the best interest of the victim. The |
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failure of the judge to find that deferred adjudication is in the |
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best interest of the victim is not grounds for the defendant to set |
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aside the plea, deferred adjudication, or any subsequent conviction |
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or sentence. After placing the defendant on community supervision |
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under this section, the judge shall inform the defendant orally or |
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in writing of the possible consequences under Subsection (b) [of
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this section] of a violation of community supervision. If the |
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information is provided orally, the judge must record and maintain |
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the judge's statement to the defendant. The failure of a judge to |
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inform a defendant of possible consequences under Subsection (b) |
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[of this section] is not a ground for reversal unless the defendant |
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shows that the defendant [he] was harmed by the failure of the judge |
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to provide the information. In a felony case, the period of |
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community supervision may not exceed 10 years. For a defendant |
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charged with a felony under Section 21.11, 22.011, or 22.021, Penal |
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Code, regardless of the age of the victim, and for a defendant |
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charged with a felony described by Section 13B(b) [of this
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article], the period of community supervision may not be less than |
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five years. In a misdemeanor case, the period of community |
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supervision may not exceed two years. A judge may increase the |
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maximum period of community supervision in the manner provided by |
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Section 22(c) or 22A [of this article]. |
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(a-1) The judge may impose a fine applicable to the offense |
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and require any reasonable conditions of community supervision, |
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including mental health treatment under Section 11(d) [of this
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article], that a judge could impose on a defendant placed on |
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community supervision for a conviction that was probated and |
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suspended, including confinement. If a judge places on community |
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supervision under this section a defendant charged with an offense |
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under Chapter 49, Penal Code, other than an offense described by |
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Subsection (d), the judge shall require the defendant to comply |
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with any condition of community supervision that Section 13 |
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requires for a defendant placed on community supervision under that |
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section. The provisions of Section 15 [of this article] specifying |
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whether a defendant convicted of a state jail felony is to be |
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confined in a county jail or state jail felony facility and |
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establishing the minimum and maximum terms of confinement as a |
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condition of community supervision apply in the same manner to a |
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defendant placed on community supervision after pleading guilty or |
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nolo contendere to a state jail felony. However, upon written |
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motion of the defendant requesting final adjudication filed within |
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30 days after entering that [such] plea and the deferment of |
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adjudication, the judge shall proceed to final adjudication as in |
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all other cases. |
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(d) In all other cases the judge may grant deferred |
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adjudication unless: |
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(1) the defendant is charged with an offense: |
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(A) under Section 49.045 [49.04, 49.05, 49.06], |
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49.07, or 49.08, Penal Code, or for which punishment may be |
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increased under Section 49.09 of that code; or |
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(B) for which punishment may be increased under |
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Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it |
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is shown that the defendant has been previously convicted of an |
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offense for which punishment was increased under any one of those |
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subsections; or |
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(2) the defendant: |
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(A) is charged with an offense under Section |
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21.11, 22.011, or 22.021, Penal Code, regardless of the age of the |
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victim, or a felony described by Section 13B(b) [of this article]; |
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and |
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(B) has previously been placed on community |
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supervision for any offense under Paragraph (A) [of this
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subdivision]. |
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SECTION 2. Section 411.081(e), Government Code, is amended |
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to read as follows: |
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(e) A person is entitled to petition the court under |
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Subsection (d) only if during the applicable period described by |
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Subsection (d)(1), (2), or (3), as appropriate, the person is not |
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convicted of or placed on deferred adjudication community |
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supervision under Section 5, Article 42.12, Code of Criminal |
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Procedure, for any offense other than an offense under the |
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Transportation Code punishable by fine only. A person is not |
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entitled to petition the court under Subsection (d) if the person |
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has been previously convicted or placed on deferred adjudication |
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for: |
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(1) an offense requiring registration as a sex |
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offender under Chapter 62, Code of Criminal Procedure; |
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(2) an offense under Section 20.04, Penal Code, |
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regardless of whether the offense is a reportable conviction or |
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adjudication for purposes of Chapter 62, Code of Criminal |
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Procedure; |
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(3) an offense under Section 19.02, 19.03, 22.04, |
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22.041, 25.07, or 42.072, Penal Code; [or] |
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(4) any other offense involving family violence, as |
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defined by Section 71.004, Family Code; or |
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(5) an offense under Chapter 49, Penal Code, other |
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than an offense that is punishable as a Class C misdemeanor. |
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SECTION 3. Sections 49.09(a), (b), (d), and (g), Penal |
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Code, are amended to read as follows: |
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(a) Except as provided by Subsection (b), an offense under |
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Section 49.04, 49.05, 49.06, or 49.065 is a Class A misdemeanor, |
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with a minimum term of confinement of 30 days, if it is shown on the |
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trial of the offense that the person has been one time previously |
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[been] convicted of or placed on deferred adjudication for [one
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time of] an offense relating to the operating of a motor vehicle |
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while intoxicated, an offense of operating an aircraft while |
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intoxicated, an offense of operating a watercraft while |
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intoxicated, or an offense of operating or assembling an amusement |
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ride while intoxicated. |
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(b) An offense under Section 49.04, 49.045, 49.05, 49.06, or |
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49.065 is a felony of the third degree if it is shown on the trial of |
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the offense that the person has been [previously been convicted]: |
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(1) one time previously convicted of or placed on |
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deferred adjudication for an offense under Section 49.08 or an |
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offense under the laws of another state if the offense contains |
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elements that are substantially similar to the elements of an |
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offense under Section 49.08; or |
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(2) two times previously convicted of or placed on |
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deferred adjudication for any other offense relating to the |
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operating of a motor vehicle while intoxicated, operating an |
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aircraft while intoxicated, operating a watercraft while |
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intoxicated, or operating or assembling an amusement ride while |
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intoxicated. |
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(d) For the purposes of this section, a conviction for an |
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offense listed in Subsection (c) [under Section 49.04, 49.045,
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49.05, 49.06, 49.065, 49.07, or 49.08] that occurs on or after |
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September 1, 1994, is a final conviction, whether the sentence for |
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the conviction is imposed or probated. |
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(g) A conviction or deferred adjudication may be used for |
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purposes of enhancement under this section or enhancement under |
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Subchapter D, Chapter 12, but not under both this section and |
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Subchapter D. |
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SECTION 4. Section 521.341, Transportation Code, is amended |
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to read as follows: |
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Sec. 521.341. REQUIREMENTS FOR AUTOMATIC LICENSE |
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SUSPENSION. (a) Except as provided by Sections 521.344(d)-(i), a |
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license is automatically suspended on final conviction of the |
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license holder of: |
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(1) an offense under Section 19.05, Penal Code, |
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committed as a result of the holder's criminally negligent |
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operation of a motor vehicle; |
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(2) an offense under Section 38.04, Penal Code, if the |
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holder used a motor vehicle in the commission of the offense; |
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(3) an offense under Section 49.04 or 49.08, Penal |
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Code; |
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(4) an offense under Section 49.07, Penal Code, if the |
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holder used a motor vehicle in the commission of the offense; |
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(5) an offense punishable as a felony under the motor |
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vehicle laws of this state; |
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(6) an offense under Section 550.021; or |
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(7) an offense under Section 521.451 or 521.453. |
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(b) For purposes of Subsections (a)(3) and (4), a person is |
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considered to be finally convicted of an offense if: |
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(1) a sentence is imposed; |
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(2) the defendant receives community supervision or |
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deferred adjudication; or |
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(3) the court defers final disposition of the case. |
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SECTION 5. Section 521.342, Transportation Code, is amended |
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by adding Subsection (d) to read as follows: |
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(d) For purposes of this section, a person is considered to |
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be convicted of an offense if: |
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(1) a sentence is imposed; |
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(2) the defendant receives community supervision or |
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deferred adjudication; or |
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(3) the court defers final disposition of the case. |
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SECTION 6. Section 521.344, Transportation Code, is amended |
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by adding Subsection (b-1) and amending Subsections (d) and (i) to |
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read as follows: |
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(b-1) For purposes of this section, "date of conviction" |
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includes, as applicable, the date that the court places the person |
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on community supervision or on deferred adjudication. |
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(d) Except as provided by Subsection (e) and Section |
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521.342(b), during a period of community supervision, including |
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deferred adjudication community supervision, [probation] the |
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department may not revoke the person's license if the person is |
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required under Section 13(h) or (j), Article 42.12, Code of |
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Criminal Procedure, to successfully complete an educational |
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program designed to rehabilitate persons who have operated motor |
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vehicles while intoxicated, unless the person was punished under |
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Section 49.09(a) or (b), Penal Code, and was subject to Section |
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49.09(h) of that code. The department may not revoke the license of |
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a person: |
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(1) for whom the jury has recommended that the license |
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not be revoked under Section 13(g), Article 42.12, Code of Criminal |
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Procedure; or |
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(2) who is placed under community supervision under |
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that article and is required as a condition of community |
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supervision to not operate a motor vehicle unless the vehicle is |
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equipped with the device described by Section 13(i) of that |
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article, unless the person was punished under Section 49.09(a) or |
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(b), Penal Code, and was subject to Section 49.09(g) of that code. |
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(i) On the date that a suspension order under Section |
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521.343(c) is to expire, the period of suspension or the |
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corresponding period in which the department is prohibited from |
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issuing a license is automatically increased to two years unless |
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the department receives notice of successful completion of the |
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educational program as required by Section 13, Article 42.12, Code |
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of Criminal Procedure. At the time a person is convicted of or |
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placed on deferred adjudication for an offense under Section 49.04, |
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Penal Code, the court shall warn the person of the effect of this |
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subsection. On the person's successful completion of the program, |
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the person's instructor shall give notice to the department and to |
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the community supervision and corrections department in the manner |
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required by Section 13, Article 42.12, Code of Criminal Procedure. |
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If the department receives proof of completion after a period has |
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been extended under this subsection, the department shall |
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immediately end the suspension or prohibition. |
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SECTION 7. The changes in law made by this Act apply only to |
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an offense committed on or after the effective date of this Act. An |
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offense committed before the effective date of this Act is governed |
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by the law in effect when the offense was committed, and the former |
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law is continued in effect for that purpose. For purposes of this |
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section, an offense was committed before the effective date of this |
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Act if any element of the offense was committed before that date. |
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SECTION 8. This Act takes effect September 1, 2007. |