80R9738 PEP-D

By: Smith of Tarrant H.B. No. 1234

Substitute the following for H.B. No. 1234:

By: Pena C.S.H.B. No. 1234

A BILL TO BE ENTITLED

AN ACT

relating to a defendant's eligibility to be placed on deferred adjudication for certain intoxication offenses and to the consequences of that deferred adjudication.

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

SECTION 1. Section 5, Article 42.12, Code of Criminal Procedure, is amended by amending Subsections (a) and (d) and adding Subsection (a-1) to read as follows:

(a) Except as provided by Subsection (d) [of this section], when in the judge's opinion the best interest of society and the defendant will be served, the judge may, after receiving a plea of guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates the defendant's guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on community supervision. A judge may place on community supervision under this section a defendant charged with an offense under Section 21.11, 22.011, or 22.021, Penal Code, regardless of the age of the victim, or a defendant charged with a felony described by Section 13B(b) [of this article], only if the judge makes a finding in open court that placing the defendant on community supervision is in the best interest of the victim. The failure of the judge to find that deferred adjudication is in the best interest of the victim is not grounds for the defendant to set aside the plea, deferred adjudication, or any subsequent conviction or sentence. After placing the defendant on community supervision under this section, the judge shall inform the defendant orally or in writing of the possible consequences under Subsection (b) [of this section] of a violation of community supervision. If the information is provided orally, the judge must record and maintain the judge's statement to the defendant. The failure of a judge to inform a defendant of possible consequences under Subsection (b) [of this section] is not a ground for reversal unless the defendant shows that the defendant [he] was harmed by the failure of the judge to provide the information. In a felony case, the period of community supervision may not exceed 10 years. For a defendant charged with a felony under Section 21.11, 22.011, or 22.021, Penal Code, regardless of the age of the victim, and for a defendant charged with a felony described by Section 13B(b) [of this article], the period of community supervision may not be less than five years. In a misdemeanor case, the period of community supervision may not exceed two years. A judge may increase the maximum period of community supervision in the manner provided by Section 22(c) or 22A [of this article].

(a-1) 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. If a judge places on community supervision under this section a defendant charged with an offense under Chapter 49, Penal Code, other than an offense described by Subsection (d), the judge shall require the defendant to comply with any condition of community supervision that Section 13 requires for a defendant placed on community supervision under that section. 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 that [such] plea and the deferment of adjudication, the judge shall proceed to final adjudication as in all other cases.

(d) In all other cases the judge may grant deferred adjudication unless:

(1) the defendant is charged with an offense:

(A) under Section 49.045 [49.04, 49.05, 49.06], 49.07, or 49.08, Penal Code, or for which punishment may be increased under Section 49.09 of that 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].

SECTION 2. Section 411.081(e), Government Code, is amended to read as follows:

(e) A person is entitled to petition the court under Subsection (d) only if during the applicable period described by Subsection (d)(1), (2), or (3), as appropriate, the person is not convicted of or placed on deferred adjudication community supervision under Section 5, Article 42.12, Code of Criminal Procedure, for any offense other than an offense under the Transportation Code punishable by fine only. A person is not entitled to petition the court under Subsection (d) if the person has been previously convicted or placed on deferred adjudication for:

(1) an offense requiring registration as a sex offender under Chapter 62, Code of Criminal Procedure;

(2) an offense under Section 20.04, Penal Code, regardless of whether the offense is a reportable conviction or adjudication for purposes of Chapter 62, Code of Criminal Procedure;

(3) an offense under Section 19.02, 19.03, 22.04, 22.041, 25.07, or 42.072, Penal Code; [or]

(4) any other offense involving family violence, as defined by Section 71.004, Family Code; or

(5) an offense under Chapter 49, Penal Code, other than an offense that is punishable as a Class C misdemeanor.

SECTION 3. Sections 49.09(a), (b), (d), and (g), Penal Code, are amended to read as follows:

(a) Except as provided by Subsection (b), an offense under Section 49.04, 49.05, 49.06, or 49.065 is a Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on the trial of the offense that the person has been one time previously [been] convicted of or placed on deferred adjudication for [one time of] an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated.

(b) An offense under Section 49.04, 49.045, 49.05, 49.06, or 49.065 is a felony of the third degree if it is shown on the trial of the offense that the person has been [previously been convicted]:

(1) one time previously convicted of or placed on deferred adjudication for an offense under Section 49.08 or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense under Section 49.08; or

(2) two times previously convicted of or placed on deferred adjudication for any other offense relating to the operating of a motor vehicle while intoxicated, operating an aircraft while intoxicated, operating a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated.

(d) For the purposes of this section, a conviction for an offense listed in Subsection (c) [under Section 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08] that occurs on or after September 1, 1994, is a final conviction, whether the sentence for the conviction is imposed or probated.

(g) A conviction or deferred adjudication may be used for purposes of enhancement under this section or enhancement under Subchapter D, Chapter 12, but not under both this section and Subchapter D.

SECTION 4. 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 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.

(b) For purposes of Subsections (a)(3) and (4), a person is considered to be finally convicted of an offense if:

(1) a sentence is imposed;

(2) the defendant receives community supervision or deferred adjudication; or

(3) the court defers final disposition of the case.

SECTION 5. Section 521.342, Transportation Code, is amended by adding Subsection (d) to read as follows:

(d) For purposes of this section, a person is considered to be convicted of an offense if:

(1) a sentence is imposed;

(2) the defendant receives community supervision or deferred adjudication; or

(3) the court defers final disposition of the case.

SECTION 6. Section 521.344, Transportation Code, is amended by adding Subsection (b-1) and amending Subsections (d) and (i) to read as follows:

(b-1) For purposes of this section, "date of conviction" includes, as applicable, the date that the court places the person on community supervision or on deferred adjudication.

(d) Except as provided by Subsection (e) and Section 521.342(b), during a period of community supervision, including deferred adjudication community supervision, [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.

(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 or placed on deferred adjudication for 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 7. The changes in law made by this Act apply only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense was committed before that date.

SECTION 8. This Act takes effect September 1, 2007.