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A BILL TO BE ENTITLED
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AN ACT
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relating to the establishment, operation, and funding of |
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victim-offender mediation programs. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 1, Article 28.01, Code of Criminal |
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Procedure, is amended to read as follows: |
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Sec. 1. The court may set any criminal case for a pre-trial |
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hearing before it is set for trial upon its merits, and direct the |
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defendant and his attorney, if any of record, and the State's |
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attorney, to appear before the court at the time and place stated in |
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the court's order for a conference and hearing. The defendant must |
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be present at the arraignment, and his presence is required during |
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any pre-trial proceeding. The pre-trial hearing shall be to |
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determine any of the following matters: |
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(1) Arraignment of the defendant, if such be |
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necessary; and appointment of counsel to represent the defendant, |
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if such be necessary; |
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(2) Pleadings of the defendant; |
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(3) Special pleas, if any; |
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(4) Exceptions to the form or substance of the |
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indictment or information; |
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(5) Motions for continuance either by the State or |
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defendant; provided that grounds for continuance not existing or |
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not known at the time may be presented and considered at any time |
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before the defendant announces ready for trial; |
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(6) Motions to suppress evidence--When a hearing on |
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the motion to suppress evidence is granted, the court may determine |
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the merits of said motion on the motions themselves, or upon |
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opposing affidavits, or upon oral testimony, subject to the |
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discretion of the court; |
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(7) Motions for change of venue by the State or the |
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defendant; provided, however, that such motions for change of |
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venue, if overruled at the pre-trial hearing, may be renewed by the |
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State or the defendant during the voir dire examination of the jury; |
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(8) Discovery; |
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(9) Entrapment; [and] |
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(10) Motion for appointment of interpreter; and |
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(11) Motion to allow the defendant to enter a pretrial |
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victim-offender mediation program established under Subchapter |
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A-1, Chapter 56. |
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SECTION 2. Chapter 56, Code of Criminal Procedure, is |
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amended by adding Subchapter A-1 to read as follows: |
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SUBCHAPTER A-1. PRETRIAL VICTIM-OFFENDER MEDIATION PROGRAM |
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Art. 56.21. AUTHORITY TO ESTABLISH PROGRAM. (a) The |
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commissioners court of a county or governing body of a municipality |
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may establish a pretrial victim-offender mediation program for |
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persons who: |
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(1) have been arrested for or charged with a |
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misdemeanor under Title 7, Penal Code, in any court in this state |
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other than a district court; and |
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(2) have not previously been convicted of a felony or a |
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misdemeanor, other than a misdemeanor regulating traffic and |
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punishable by fine only. |
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(b) A county court, statutory county court, municipal |
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court, or justice court that implements a program under this |
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subchapter may adopt administrative rules as necessary or |
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convenient to implement or operate the program, including |
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additional criteria related to a defendant's eligibility to enter |
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the program. |
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(c) The commissioners court of a county or governing body of |
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a municipality that establishes a pretrial victim-offender |
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mediation program under this subchapter may: |
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(1) allow for the referral to the program of arrested |
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persons who have not yet been indicted or otherwise formally |
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charged; and |
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(2) adopt administrative procedures as necessary to |
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implement and operate the program, including additional program |
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requirements that have been approved by the attorney representing |
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the state in the county or municipality, as applicable. |
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Art. 56.22. PROGRAM. (a) A pretrial victim-offender |
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mediation program established under Article 56.21 is coordinated by |
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the attorney representing the state and must require: |
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(1) the attorney representing the state: |
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(A) to identify defendants who are eligible to |
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participate in the program, including a consideration by the |
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attorney representing the state of whether the defendant meets any |
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additional locally developed eligibility criteria; and |
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(B) to the extent feasible, to provide to each |
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victim of an offense described by Article 56.21(a)(1) information |
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and literature indicating that a victim-offender mediation program |
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may be available in the criminal case if certain eligibility |
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criteria are met by the defendant; |
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(2) the consent of the victim, the defendant, and the |
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attorney representing the state to be obtained before the case may |
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proceed to pretrial victim-offender mediation; and |
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(3) the defendant to enter into a binding mediation |
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agreement in accordance with Article 56.24 that: |
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(A) includes an apology by the defendant; and |
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(B) requires the defendant to: |
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(i) pay restitution to the victim; or |
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(ii) perform community service. |
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(b) All communications made in a pretrial victim-offender |
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mediation program are confidential and may not be introduced into |
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evidence except in a proceeding involving a question concerning the |
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meaning of a mediation agreement. |
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(c) A pretrial victim-offender mediation program may |
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require the staff and other resources of pretrial services |
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departments and community supervision correction departments to |
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assist in monitoring the defendant's compliance with a mediation |
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agreement reached through the program. |
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(d) A pretrial victim-offender mediation may be conducted |
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by a court-appointed mediator who meets the training requirements |
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provided by Sections 154.052(a) and (b), Civil Practice and |
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Remedies Code, or by any other appropriate person designated by the |
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court. Neither the attorney representing the state nor the |
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attorney representing the defendant in the criminal action may |
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serve as a mediator under the pretrial victim-offender mediation |
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program. |
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(e) If a defendant enters a pretrial victim-offender |
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mediation program, the court may defer the proceedings without |
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accepting a plea of guilty or nolo contendere or entering an |
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adjudication of guilt. The court may not require the defendant to |
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admit guilt or enter a plea of guilty or nolo contendere to enter |
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the program. |
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(f) The case must be returned to the docket and proceed |
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through the regular criminal justice system if: |
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(1) a pretrial victim-offender mediation does not |
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result in a mediation agreement; or |
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(2) the defendant fails to successfully fulfill the |
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terms of the mediation agreement by the date specified in the |
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mediation agreement. |
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(g) If a case is returned to the docket under Subsection |
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(f), the defendant retains all of the rights that the defendant |
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possessed before entering the pretrial victim-offender mediation |
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program under this subchapter. Notwithstanding any other law, for |
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purposes of determining the duration and expiration of an |
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applicable statute of limitation under Chapter 12, the running of |
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the period of limitation is tolled while the defendant is enrolled |
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in a program under this subchapter. |
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(h) The court on the motion of the attorney representing the |
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state shall dismiss the indictment or information charging the |
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defendant with the commission of the offense, if the defendant: |
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(1) successfully completes the mediation agreement as |
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determined by the attorney representing the state; and |
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(2) either: |
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(A) pays all court costs; or |
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(B) enters a payment plan approved by the court |
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or the attorney representing the state for such payment. |
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(i) The attorney representing the state or the court may |
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extend the initial compliance period granted to the defendant. A |
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determination by the court regarding whether the mediation |
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agreement has been successfully completed is final and may not be |
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appealed. |
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(j) If the defendant is not arrested or convicted of a |
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subsequent felony or misdemeanor other than a misdemeanor |
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regulating traffic and punishable by fine only on or before the |
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first anniversary of the date the defendant successfully completed |
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a mediation agreement under this subchapter, on the motion of the |
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defendant, the court shall enter an order of nondisclosure under |
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Section 411.081, Government Code, as if the defendant had received |
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a discharge and dismissal under Section 5(c), Article 42.12, with |
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respect to all records and files related to the defendant's arrest |
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for the offense for which the defendant entered the pretrial |
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victim-offender mediation program. |
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Art. 56.23. MOTION AND HEARING. (a) The court on its own |
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motion may, and on the motion of either party shall, hold a pretrial |
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hearing to determine whether to allow an eligible defendant to |
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enter a pretrial victim-offender mediation program under this |
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subchapter. |
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(b) The court shall conduct a pretrial hearing under this |
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article in accordance with Chapter 28 and the rules of evidence. |
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(c) At a pretrial hearing under this article, either party |
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may present any evidence relevant to the defendant's eligibility |
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under Article 56.22 and other additional locally developed |
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eligibility criteria to enter a pretrial victim-offender mediation |
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program. |
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Art. 56.24. MEDIATION AGREEMENT. (a) A mediation |
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agreement under this subchapter must be: |
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(1) signed by the defendant and the victim; and |
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(2) ratified by the attorney representing the state in |
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a request for a court order documenting and approving the mediation |
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agreement. |
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(b) A mediation agreement under this subchapter may require |
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testing, counseling, and treatment of the defendant to address |
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alcohol abuse, abuse of controlled substances, mental health, or |
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anger management or any other service that is reasonably related to |
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the offense for which the defendant was arrested or charged. |
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(c) A mediation agreement under this subchapter is not valid |
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for more than one year after the date on which the mediation |
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agreement is ratified unless the court and the attorney |
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representing the state approve the extension of the agreement. |
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(d) A mediation agreement under this subchapter does not |
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constitute a plea or legal admission of responsibility. |
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Art. 56.25. OVERSIGHT. (a) The lieutenant governor and the |
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speaker of the house of representatives may assign to appropriate |
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legislative committees duties relating to the oversight of pretrial |
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victim-offender mediation programs established under this |
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subchapter. |
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(b) A legislative committee or the governor may request the |
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state auditor to perform a management, operations, or financial or |
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accounting audit of a pretrial victim-offender mediation program |
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established under this subchapter. |
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Art. 56.26. FEES. (a) A pretrial victim-offender |
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mediation program established under this subchapter may collect |
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from a defendant in the program: |
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(1) a reasonable program participation fee not to |
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exceed $500; and |
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(2) an alcohol or controlled substance testing, |
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counseling, and treatment fee in an amount necessary to cover the |
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costs of the testing, counseling, or treatment if such testing, |
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counseling, or treatment is required by the mediation agreement. |
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(b) Fees collected under this article may be paid on a |
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periodic basis or on a deferred payment schedule at the discretion |
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of the judge, magistrate, or program director administering the |
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pretrial victim-offender mediation program. The fees must be: |
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(1) based on the defendant's ability to pay; and |
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(2) used only for purposes specific to the program. |
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SECTION 3. Subchapter A, Chapter 102, Code of Criminal |
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Procedure, is amended by adding Article 102.0179 to read as |
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follows: |
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Art. 102.0179. COSTS ATTENDANT TO PRETRIAL VICTIM-OFFENDER |
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MEDIATION. (a) A defendant who participates in a pretrial |
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victim-offender mediation program established under Subchapter |
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A-1, Chapter 56, on successful completion of the terms of the |
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defendant's mediation agreement or on conviction, shall pay as |
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court costs $15 plus an additional program participation fee as |
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described by Article 56.26 in the amount prescribed by that |
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article. |
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(b) The court clerk shall collect the costs imposed under |
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this article. The clerk shall keep a separate record of any money |
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collected under this article and shall pay any money collected to |
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the county or municipal treasurer, as appropriate, or to any other |
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official who discharges the duties commonly delegated to a |
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treasurer, for deposit in a fund to be known as the county pretrial |
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victim-offender mediation program fund or in a fund to be known as |
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the municipal pretrial victim-offender mediation program fund, as |
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appropriate. |
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(c) A county or municipality that collects court costs under |
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this article shall use the money in a fund described by Subsection |
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(b) exclusively for the maintenance of the pretrial victim-offender |
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mediation program operated in the county or municipality. |
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SECTION 4. Subchapter B, Chapter 102, Government Code, is |
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amended by adding Section 102.0216 to read as follows: |
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Sec. 102.0216. ADDITIONAL COURT COSTS: CODE OF CRIMINAL |
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PROCEDURE. A defendant who participates in a pretrial |
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victim-offender mediation program established under Subchapter |
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A-1, Chapter 56, Code of Criminal Procedure, shall pay on |
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successful completion of the terms of the defendant's mediation |
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agreement or on conviction, in addition to all other costs, to help |
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fund pretrial victim-offender mediation programs established under |
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that subchapter (Art. 102.0179, Code of Criminal Procedure) . . . |
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$15 plus an additional program participation fee in an amount not to |
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exceed $500. |
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SECTION 5. (a) The change in law made by this Act in adding |
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Subchapter A-1, Chapter 56, Code of Criminal Procedure, applies to |
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a defendant who enters a pretrial victim-offender mediation program |
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under that subchapter regardless of whether the defendant committed |
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the offense for which the defendant enters the program before, on, |
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or after the effective date of this Act. |
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(b) The change in law made by this Act in adding Article |
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102.0179, Code of Criminal Procedure, and Section 102.0216, |
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Government Code, applies only to an offense committed on or after |
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the effective date of this Act. An offense committed before the |
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effective date of this Act is governed by the law in effect when the |
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offense was committed, and the former law is continued in effect for |
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that purpose. For purposes of this subsection, an offense was |
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committed before the effective date of this Act if any element of |
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the offense was committed before that date. |
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SECTION 6. This Act takes effect immediately if it receives |
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a vote of two-thirds of all the members elected to each house, as |
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provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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Act takes effect September 1, 2011. |