80R6324 KCR-F

By: Hardcastle H.B. No. 2260

A BILL TO BE ENTITLED

AN ACT

relating to penalties for repeat and habitual felony offenders.

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

SECTION 1. Section 12.42, Penal Code, is amended to read as follows:

Sec. 12.42. PENALTIES FOR REPEAT AND HABITUAL FELONY OFFENDERS. (a) Except as provided by Subsection (b), the penalties provided by Subchapter C are enhanced for repeat offenders as follows:

(1)(A) If it is shown that a defendant on trial for a state jail felony has previously been convicted of a state jail felony offense, the minimum term of confinement is nine months.

(B) If it is shown that a defendant on trial for a state jail felony has previously been convicted of a felony other than a state jail felony, the minimum term of confinement is 12 months.

(C) If it is shown that a defendant on trial for a state jail felony has previously been twice convicted of felony offenses arising out of different criminal transactions, the defendant shall be punished and subsequently be considered for purposes of this section as though convicted of a felony of the third degree.

(2)(A) If it is shown that a defendant on trial for a felony of the third degree has previously been convicted of a state jail felony or a felony of the third degree, the minimum term of imprisonment is four years.

(B) If it is shown that a defendant on trial for a felony of the third degree has previously been convicted of a second or first degree felony, the minimum term of imprisonment is five years.

(C) If it is shown that a defendant on trial for a felony of the third degree has previously been twice convicted of felony offenses arising out of different criminal transactions, the defendant shall be punished and subsequently be considered for the purposes of this section as though convicted of a felony of the second degree, for which the minimum term of imprisonment is five years.

(3)(A) If it is shown that a defendant on trial for a felony of the second degree has previously been convicted of a state jail felony or a felony of the third degree, the minimum term of imprisonment is six years.

(B) If it is shown that a defendant on trial for a felony of the second degree has previously been convicted of a felony of the second or first degree, the defendant shall be punished and subsequently be considered for the purposes of this section as though convicted of a felony of the first degree.

(C) If it is shown that a defendant on trial for a felony of the second degree has previously been twice convicted of felony offenses arising out of different criminal transactions, the defendant shall be punished and subsequently be considered for the purposes of this section as though convicted of a felony of the first degree, for which the minimum term of imprisonment is 15 years.

(4)(A) If it is shown that a defendant on trial for a felony of the first degree has previously been convicted of a state jail felony or a felony of the third degree, the minimum term of imprisonment is 10 years.

(B) If it is shown that a defendant on trial for a felony of the first degree has previously been convicted of a felony of the second or first degree, the minimum term of imprisonment is 15 years.

(C) If it is shown that a defendant on trial for a felony of the first degree has previously been twice convicted of felony offenses arising out of different criminal transactions, the minimum term of imprisonment is 25 years. [(a)(1) If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two state jail felonies, on conviction the defendant shall be punished for a third-degree felony.

[(2) If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished for a second-degree felony.

[(3) If it is shown on the trial of a state jail felony punishable under Section 12.35(c) or on the trial of a third-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished for a second-degree felony.]

(b) [If it is shown on the trial of a second-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished for a first-degree felony.

[(c)(1) 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)] A defendant shall be punished by imprisonment in the Texas Department of Criminal Justice [institutional division] for life if:

(1) [(A)] the defendant is convicted of an offense:

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

(B) [(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]

(C) [(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

(D) under Section 43.25, Penal Code; and

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

(A) [(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;

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

(C) [(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;

(D) [(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

(E) [(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).

(c) For the purposes of this section, a person is considered to be convicted of an offense if the offense was committed and a written judgment adjudicating the defendant's guilt was entered before the commission of the offense for which the defendant is on trial, regardless of whether the imposition of sentence for the prior offense was suspended or whether the defendant has been released from all penalties and disabilities resulting from the prior offense under Section 20(a), Article 42.12, Code of Criminal Procedure.

(d) For the purposes of Subsection (a), in addition to the circumstances described by Subsection (c), a person is considered to be convicted of an offense if the offense was committed and an order placing the defendant on deferred adjudication community supervision under Section 5, Article 42.12, Code of Criminal Procedure, was entered before the commission of the offense for which the defendant is on trial.

(e) A person whose punishment is determined under Subsection (c) based on a prior conviction that is subsequently set aside by an appellate court or as a result of a pardon in accordance with Section 11, Article IV, Texas Constitution, shall be resentenced under the procedure prescribed in Article 44.29(b), Code of Criminal Procedure, within the range of punishment applicable to the offense as though the previous invalid conviction had never occurred.

(f) For the purposes of this section:

(1) a person convicted of a capital felony who is punished by imprisonment for life is considered to have been convicted of a felony of the first degree; and

(2) a person convicted of an offense punished under Section 12.35(c) is considered to have been convicted of a felony of the third degree.

[(d) If it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, 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 25 years.

[(e) A previous conviction for a state jail felony punished under Section 12.35(a) may not be used for enhancement purposes under Subsection (b), (c), or (d).

[(f) For the purposes of Subsections (a), (b), (c)(1), and (e), an adjudication by a juvenile court under Section 54.03, Family Code, that a child engaged in delinquent conduct on or after January 1, 1996, constituting a felony offense for which the child is committed to the Texas Youth Commission under Section 54.04(d)(2), (d)(3), or (m), Family Code, or Section 54.05(f), Family Code, is a final felony conviction.

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

(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), 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, 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."

(c) 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 second or third degree[, if a prior conviction has been alleged for enhancement as provided by Section 12.42(a), 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 60 years or less, 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, 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. 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 the penalty phase of the trial of a felony case in which the punishment is to be assessed by the jury and in which a prior conviction has been alleged for enhancement of punishment as provided by Section 12.42, Penal Code, the court shall charge the jury in writing in the same manner as required by Subsections (b) and (c) of this section, except that the court shall include in the charge the applicable minimum and maximum terms of confinement required by Section 12.42.

SECTION 3. Section 5(c), Article 42.12, Code of Criminal Procedure, is amended to read as follows:

(c) On expiration of a community supervision period imposed under Subsection (a) of this section, if the judge has not proceeded to adjudication of guilt, the judge shall dismiss the proceedings against the defendant and discharge him. The judge may dismiss the proceedings and discharge a defendant, other than a defendant charged with an offense requiring the defendant to register as a sex offender under Chapter 62, [as added by Chapter 668, Acts of the 75th Legislature, Regular Session, 1997,] prior to the expiration of the term of community supervision if in the judge's opinion the best interest of society and the defendant will be served. The judge may not dismiss the proceedings and discharge a defendant charged with an offense requiring the defendant to register under Chapter 62[, as added by Chapter 668, Acts of the 75th Legislature, Regular Session, 1997]. Except as provided by Section 12.42(d) [12.42(g)], Penal Code, a dismissal and discharge under this section may not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense. For any defendant who receives a dismissal and discharge under this section:

(1) upon conviction of a subsequent offense, the fact that the defendant had previously received community supervision with a deferred adjudication of guilt shall be admissible before the court or jury to be considered on the issue of penalty;

(2) if the defendant is an applicant for a license or is a licensee under Chapter 42, Human Resources Code, the Texas Department of Human Services may consider the fact that the defendant previously has received community supervision with a deferred adjudication of guilt under this section in issuing, renewing, denying, or revoking a license under that chapter; and

(3) if the defendant is a person who has applied for registration to provide mental health or medical services for the rehabilitation of sex offenders, the Interagency Council on Sex Offender Treatment may consider the fact that the defendant has received community supervision under this section in issuing, renewing, denying, or revoking a license or registration issued by that council.

SECTION 4. The change in law made by this Act applies 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 covered 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 5. This Act takes effect September 1, 2007.