By: Uresti S.B. No. 1826

A BILL TO BE ENTITLED

AN ACT

relating to the detention pending trial of defendants charged with certain sexual offenses against children and to conditions of release on bail for those defendants who are not detained.

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

SECTION 1. Article 17.41, Code of Criminal Procedure, is amended to read as follows:

Art. 17.41. CONDITION WHERE CHILD ALLEGED VICTIM. (a) This article applies to a defendant charged with an offense under any of the following provisions of the Penal Code, if committed against a child [12 years of age or] younger than 17 years of age:

(1) Sections 22.011 and 22.021; [Chapter 21 (Sexual Offenses) or 22 (Assaultive Offenses)];

(2) Section 25.02 [(Prohibited Sexual Conduct)]; or

(3) Section 43.25 [(Sexual Performance by a Child)].

(b) On arraignment of a defendant arrested for an offense described by Subsection (a), the magistrate shall order the defendant detained pending a hearing. A judge shall hold the hearing at the time of the defendant's first appearance before the judge or at a time set by the judge on the judge's own motion or a motion of the attorney for the defendant, subject to notice to the attorney representing the state. The hearing under this Subsection shall occur no later than 3 days from the arraignment of the defendant.

(c) At a hearing under Subsection (b), the judge shall determine by clear and convincing evidence whether the defendant has been previously convicted under the laws of this state or another state or under federal law for an offense containing elements substantially similar to the elements of an offense described by Subsection (a). Under Subsection(c), the state has the burden of proof.

(d) A defendant has a right to be represented by counsel at a hearing under Subsection (b) and the right to appointed counsel if the defendant is indigent. At the hearing, the defendant may present evidence, testify, and cross-examine witnesses, except that in situations where the victim of the alleged offense is under the age of 12 the alleged victim may not be called as a witness by either the defendant or the attorney representing the state.

(e) If at the conclusion of the hearing under Subsection (b), the judge determines by clear and convincing evidence that defendant has been previously convicted under the laws of this state or another state or under federal law for an offense containing elements substantially similar to the elements of an offense described by Subsection (a), the judge shall order the defendant detained without bail pending trial. The state shall reimburse the county for the costs of the detainment.

(f) The judge may reconsider the judge's determination under Subsection (e) on the discovery of information not known to have existed at the time of the hearing under Subsection (b) that has a material bearing on the previous determination.

(g) A judge who after a hearing under Subsection (b) does not order a defendant detained pending trial shall [magistrate may] require as a condition of bond [for a defendant charged with an offense described by Subsection (a) of this article] that the defendant not directly communicate with the alleged victim of the offense or go near a residence, school, or other location, as specifically described in the bond, frequented by the alleged victim.

(h) [(c)] A judge [magistrate] who after a hearing under Subsection (b) does not order a defendant detained pending trial may, as [imposes] a condition of bond under this article, [may] grant the defendant supervised access to the alleged victim only on a finding made at the hearing under Subsection (b) that granting supervised access is in the best interest of the victim of the alleged offense. The existence of a condition of bond granting supervised access under this subsection is not admissible in any subsequent proceeding in the case.

(i) [(d)] To the extent that a condition imposed under this article conflicts with an existing court order granting possession of or access to a child, the condition imposed under this article prevails until the disposition of the case and discharge of the bond [for a period specified by the magistrate, not to exceed 90 days].

SECTION 2. This Act applies only to a person who commits an offense described by Article 17.41(a), Code of Criminal Procedure, as amended by this Act, on or after the effective date of this Act. A person who commits an offense described by Article 17.41(a), Code of Criminal Procedure, as amended by this Act, 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 3. This Act takes effect January 1, 2008, but only if the constitutional amendment proposed by the 80th Legislature, Regular Session, 2007, authorizing the denial of bail to defendants charged with certain offenses against children is approved by the voters. If that constitutional amendment is not approved by the voters, this Act has no effect.