By: West S.B. No. 1709

(In the Senate - Filed March 10, 2009; March 20, 2009, read first time and referred to Committee on Criminal Justice; May 7, 2009, reported adversely, with favorable Committee Substitute by the following vote: Yeas 5, Nays 0; May 7, 2009, sent to printer.)

COMMITTEE SUBSTITUTE FOR S.B. No. 1709 By: Whitmire

A BILL TO BE ENTITLED

AN ACT

relating to the prosecution and punishment of certain sexual offenses and to exempting certain persons from the duty to register as a sex offender in this state.

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

SECTION 1. Article 42.017, Code of Criminal Procedure, is amended to read as follows:

Art. 42.017. FINDING REGARDING AGE-BASED OFFENSE. In the trial of an offense under Section 21.02, 21.11, 22.011, 22.021, or 43.25, Penal Code, the judge shall make an affirmative finding of fact and enter the affirmative finding in the judgment in the case if the judge determines that:

(1) at the time of the offense, the defendant was not more than four years older than the victim or intended victim [younger than 19 years of age] and the victim or intended victim was at least 13 years of age; and

(2) the conviction is based solely on the ages of the defendant and the victim or intended victim at the time of the offense.

SECTION 2. Subsection (g), Section 5, Article 42.12, Code of Criminal Procedure, is amended to read as follows:

(g) If a judge places on community supervision under this section a defendant charged with an offense under Section 21.11, 22.011, 22.021, or 43.25, Penal Code, the judge shall make an affirmative finding of fact and file a statement of that affirmative finding with the papers in the case if the judge determines that:

(1) at the time of the offense, the defendant was not more than four years older than the victim or intended victim [younger than 19 years of age] and the victim or intended victim was at least 13 years of age; and

(2) the charge to which the plea is entered under this section is based solely on the ages of the defendant and the victim or intended victim at the time of the offense.

SECTION 3. Subdivisions (5) and (6), Article 62.001, Code of Criminal Procedure, are amended to read as follows:

(5) "Reportable conviction or adjudication" means a conviction or adjudication, including an adjudication of delinquent conduct or a deferred adjudication, that, regardless of the pendency of an appeal, is a conviction for or an adjudication for or based on:

(A) a violation of Section 21.02 (Continuous sexual abuse of young child or children), 21.11 (Indecency with a child), 22.011 (Sexual assault), 22.021 (Aggravated sexual assault), or 25.02 (Prohibited sexual conduct), Penal Code, other than a violation of Section 21.11 or 22.011, Penal Code, for which the judgment in the case contains an affirmative finding under Article 42.017 or the papers in the case contain an affirmative finding described by Section 5(g), Article 42.12;

(B) a violation of Section 43.05 (Compelling prostitution), 43.25 (Sexual performance by a child), or 43.26 (Possession or promotion of child pornography), Penal Code;

(C) a violation of Section 20.04(a)(4) (Aggravated kidnapping), Penal Code, if the actor committed the offense or engaged in the conduct with intent to violate or abuse the victim sexually;

(D) a violation of Section 30.02 (Burglary), Penal Code, if the offense or conduct is punishable under Subsection (d) of that section and the actor committed the offense or engaged in the conduct with intent to commit a felony listed in Paragraph (A) or (C);

(E) a violation of Section 20.02 (Unlawful restraint), 20.03 (Kidnapping), or 20.04 (Aggravated kidnapping), Penal Code, if, as applicable:

(i) the judgment in the case contains an affirmative finding under Article 42.015; or

(ii) the order in the hearing or the papers in the case contain an affirmative finding that the victim or intended victim was younger than 17 years of age;

(F) the second violation of Section 21.08 (Indecent exposure), Penal Code, but not if the second violation results in a deferred adjudication;

(G) an attempt, conspiracy, or solicitation, as defined by Chapter 15, Penal Code, to commit an offense or engage in conduct listed in Paragraph (A), (B), (C), (D), or (E);

(H) a violation of the laws of another state, federal law, the laws of a foreign country, or the Uniform Code of Military Justice for or based on the violation of an offense containing elements that are substantially similar to the elements of an offense listed under Paragraph (A), (B), (C), (D), (E), (G), or (J), but not if the violation results in a deferred adjudication;

(I) the second violation of the laws of another state, federal law, the laws of a foreign country, or the Uniform Code of Military Justice for or based on the violation of an offense containing elements that are substantially similar to the elements of the offense of indecent exposure, but not if the second violation results in a deferred adjudication; or

(J) a violation of Section 33.021 (Online solicitation of a minor), Penal Code.

(6) "Sexually violent offense" means a reportable conviction or adjudication for any of the following offenses if committed by a person 17 years of age or older:

(A) an offense under Section 21.02 (Continuous sexual abuse of young child or children), 21.11(a)(1) (Indecency with a child), 22.011 (Sexual assault), or 22.021 (Aggravated sexual assault), Penal Code;

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

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

(D) an offense under Section 30.02 (Burglary), Penal Code, if the offense is punishable under Subsection (d) of that section and the defendant committed the offense with intent to commit a felony listed in Paragraph (A) or (C) of Subdivision (5); or

(E) an offense under the laws of another state, federal law, the laws of a foreign country, or the Uniform Code of Military Justice if the offense contains elements that are substantially similar to the elements of an offense listed under Paragraph (A), (B), (C), or (D).

SECTION 4. Article 62.301, Code of Criminal Procedure, is amended by amending Subsections (a) and (c) and adding Subsection (a-1) to read as follows:

(a) If eligible under Subsection (a-1), (b), or (c), a person required to register under this chapter may petition the court having jurisdiction over the case for an order exempting the person from registration under this chapter at any time on or after the date of the person's sentencing or [after] the date the person is placed on deferred adjudication community supervision, as applicable.

(a-1) A person is eligible to petition the court as described by Subsection (a) if the person:

(1) is required to register only as a result of a single reportable adjudication, other than an adjudication of delinquent conduct, for an offense under Section 21.11 or 22.011, Penal Code, if the charge for the offense is based solely on the ages of the person and the victim or intended victim;

(2) was younger than 25 years of age at the time the offense was committed; and

(3) before the date of the petition, received a dismissal and discharge under Section 5(c), Article 42.12.

(c) A defendant who before September 1, 2009 [2001], is convicted of or placed on deferred adjudication community supervision for an offense under Section 21.11, 22.011, 22.021, or 43.25, Penal Code, is eligible to petition the court as described by Subsection (a). The court may consider the petition only if the petition states and the court finds that the defendant would have been entitled to the entry of an affirmative finding under Article 42.017 or Section 5(g), Article 42.12, as appropriate, had the conviction or placement on deferred adjudication community supervision occurred after September 1, 2009 [2001].

SECTION 5. Article 62.402, Code of Criminal Procedure, is amended to read as follows:

Art. 62.402. DETERMINATION OF MINIMUM REQUIRED REGISTRATION PERIOD. (a) The department [council] by rule shall determine the minimum required registration period under the Adam Walsh Child Protection and Safety Act of 2006 (42 U.S.C. Section 16901 et seq.) [14071 (Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program)] for each reportable conviction or adjudication under this chapter, if this state is to receive the maximum amount of federal money available to a state as described by that law.

(b) After determining the minimum required registration period for each reportable conviction or adjudication under Subsection (a), the department [council] shall compile and publish a list of reportable convictions or adjudications for which a person must register under this chapter for a period that exceeds the minimum required registration period under federal law.

(c) To the extent possible, the department [council] shall periodically verify with the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking [Bureau of Justice Assistance] or another appropriate federal agency the accuracy of the list of reportable convictions or adjudications described by Subsection (b).

SECTION 6. Subsection (b), Section 21.11, Penal Code, is amended to read as follows:

(b) It is an affirmative defense to prosecution under this section that the actor:

(1) was not more than four [three] years older than the victim and of the opposite sex;

(2) did not use duress, force, or a threat against the victim at the time of the offense; and

(3) at the time of the offense:

(A) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or

(B) was not a person who under Chapter 62, Code of Criminal Procedure, had a reportable conviction or adjudication for an offense under this section.

SECTION 7. Subsection (e), Section 22.011, Penal Code, is amended to read as follows:

(e) It is an affirmative defense to prosecution under Subsection (a)(2) that:

(1) the actor was not more than four [three] years older than the victim and at the time of the offense:

(A) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or

(B) was not a person who under Chapter 62, Code of Criminal Procedure, had a reportable conviction or adjudication for an offense under this section; and

(2) the victim:

(A) was a child of 14 years of age or older; and

(B) was not a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.

SECTION 8. Article 42.017 and Subsection (g), Section 5, Article 42.12, Code of Criminal Procedure, as amended by this Act, apply only to a judgment of conviction entered on or after the effective date of this Act or a grant of deferred adjudication made on or after the effective date of this Act.

SECTION 9. The changes in law made by this Act in amending Chapter 62, Code of Criminal Procedure, apply to any person who, on or after the effective date of this Act, is required to register under that chapter, regardless of whether the offense or conduct for which the person is required to register occurs before, on, or after the effective date of this Act.

SECTION 10. The change in law made by this Act in amending Sections 21.11 and 22.011, Penal Code, 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 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 the effective date of this Act if any element of the offense was committed before that date.

SECTION 11. This Act takes effect September 1, 2009.

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