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A BILL TO BE ENTITLED
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AN ACT
|
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relating to the provision by certain judges or community |
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supervision and corrections departments of certain programs and |
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services, including certain pretrial programs and services, and to |
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the imposition of certain sanctions against defendants supervised |
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by those departments. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 76.002, Government Code, is amended by |
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adding Subsections (a-1) and (f) and amending Subsection (e) to |
|
read as follows: |
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(a-1) The statutory county court judges trying criminal |
|
cases in the county or counties served by the judicial district may |
|
establish a pretrial victim-offender mediation program in |
|
accordance with Subchapter A-1, Chapter 56, Code of Criminal |
|
Procedure. |
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(e) The board shall [may] adopt rules allowing departments |
|
to contract with one another for services or facilities or to |
|
contract as provided by Subsection (f). |
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(f) In lieu of establishing a department as required by |
|
Subsection (a), programs and services may be provided under this |
|
chapter in a judicial district through a contract with a department |
|
established for another judicial district. |
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SECTION 2. Chapter 76, Government Code, is amended by |
|
adding Section 76.0021 to read as follows: |
|
Sec. 76.0021. SYSTEM OF PROGRESSIVE INTERMEDIATE |
|
SANCTIONS. (a) In addition to performing the duties delegated |
|
under Section 76.002, the judges described by that section shall, |
|
for the district courts and county courts at law in the judicial |
|
district that try criminal cases: |
|
(1) adopt a single system of progressive intermediate |
|
sanctions for violations of conditions of community supervision |
|
that includes: |
|
(A) sanctions for a failure to report, to |
|
participate in a program or service, to refrain from the use of |
|
alcohol or a controlled substance, or to pay fines, fees, and costs; |
|
and |
|
(B) sanctions targeted for special cases or high |
|
risk offenders; and |
|
(2) establish a review process to follow in |
|
considering a reduction in or early termination of community |
|
supervision. |
|
(b) In adopting a system of progressive intermediate |
|
sanctions under this section, the judges described by Section |
|
76.002 shall consider and may adopt the model list of intermediate |
|
sanctions established under Section 509.017, Government Code. |
|
SECTION 3. Section 1, Article 28.01, Code of Criminal |
|
Procedure, is amended to read as follows: |
|
Sec. 1. The court may set any criminal case for a pre-trial |
|
hearing before it is set for trial upon its merits, and direct the |
|
defendant and his attorney, if any of record, and the State's |
|
attorney, to appear before the court at the time and place stated in |
|
the court's order for a conference and hearing. The defendant must |
|
be present at the arraignment, and his presence is required during |
|
any pre-trial proceeding. The pre-trial hearing shall be to |
|
determine any of the following matters: |
|
(1) Arraignment of the defendant, if such be |
|
necessary; and appointment of counsel to represent the defendant, |
|
if such be necessary; |
|
(2) Pleadings of the defendant; |
|
(3) Special pleas, if any; |
|
(4) Exceptions to the form or substance of the |
|
indictment or information; |
|
(5) Motions for continuance either by the State or |
|
defendant; provided that grounds for continuance not existing or |
|
not known at the time may be presented and considered at any time |
|
before the defendant announces ready for trial; |
|
(6) Motions to suppress evidence--When a hearing on |
|
the motion to suppress evidence is granted, the court may determine |
|
the merits of said motion on the motions themselves, or upon |
|
opposing affidavits, or upon oral testimony, subject to the |
|
discretion of the court; |
|
(7) Motions for change of venue by the State or the |
|
defendant; provided, however, that such motions for change of |
|
venue, if overruled at the pre-trial hearing, may be renewed by the |
|
State or the defendant during the voir dire examination of the jury; |
|
(8) Discovery; |
|
(9) Entrapment; [and] |
|
(10) Motion for appointment of interpreter; and |
|
(11) Motion to allow the defendant to enter a pretrial |
|
victim-offender mediation program established under Section |
|
76.002, Government Code. |
|
SECTION 4. Section 10, Article 42.12, Code of Criminal |
|
Procedure, is amended by amending Subsections (a), (d), and (e) and |
|
adding Subsections (d-1) and (d-2) to read as follows: |
|
(a) Only the court in which the defendant was tried may |
|
grant community supervision, impose conditions, revoke the |
|
community supervision, or discharge the defendant, unless the judge |
|
has transferred jurisdiction of the case to another court with the |
|
latter's consent. Except as provided by Subsections [Subsection] |
|
(d) and (d-1) of this section, only the judge may alter conditions |
|
of community supervision. In a felony case, only the judge who |
|
originally sentenced the defendant may suspend execution thereof |
|
and place the defendant under community supervision pursuant to |
|
Section 6 of this article. If the judge who originally sentenced |
|
the defendant is deceased or disabled or if the office is vacant and |
|
the judge who originally sentenced the defendant is deceased or |
|
disabled or if the office is vacant and a motion is filed in |
|
accordance with Section 6 of this article, the clerk of the court |
|
shall promptly forward a copy of the motion to the presiding judge |
|
of the administrative judicial district for that court, who may |
|
deny the motion without a hearing or appoint a judge to hold a |
|
hearing on the motion. |
|
(d) A judge that places a defendant on community supervision |
|
may authorize the supervision officer supervising the defendant [or
|
|
a magistrate appointed by the district courts in the county that
|
|
give preference to criminal cases] to modify the conditions of |
|
community supervision for the limited purpose of imposing an |
|
intermediate sanction under Subsection (d-1) [transferring the
|
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defendant to different programs within the community supervision
|
|
continuum of programs and sanctions]. Before imposing an |
|
intermediate sanction, a supervision officer shall provide written |
|
notice to the defendant of the nature of the violation or violations |
|
involved, the date on which each violation occurred, and the |
|
intermediate sanction to be imposed. |
|
(d-1) The imposition of an intermediate sanction under this |
|
section must conform with the system of progressive intermediate |
|
sanctions adopted under Section 76.0021, Government Code. On |
|
receipt of notice under Subsection (d), the defendant shall |
|
immediately accept or object to the imposition of the intermediate |
|
sanction. A defendant who objects to the imposition of the |
|
intermediate sanction is entitled to an administrative review to be |
|
conducted by the community supervision and corrections department |
|
supervising the defendant not later than the fifth day after the |
|
date the defendant received the notice. At the conclusion of the |
|
administrative review, the director of the community supervision |
|
and corrections department, or the director's designee, shall |
|
dismiss or affirm the imposition of the intermediate sanction. If |
|
the director or director's designee, as applicable, affirms the |
|
imposition of the intermediate sanction, the intermediate sanction |
|
becomes effective immediately. On successful completion of an |
|
intermediate sanction, the court may not revoke community |
|
supervision, proceed to an adjudication in the case, or impose any |
|
other sanction based on the violation for which the intermediate |
|
sanction was imposed. |
|
(d-2) A supervision officer may not: |
|
(1) impose an intermediate sanction under Subsection |
|
(d) or (d-1) in response to a violation of the terms of community |
|
supervision if the violation is based on the commission of a felony |
|
offense; or |
|
(2) impose as an intermediate sanction under |
|
Subsection (d) or (d-1) any condition extending the term of |
|
community supervision, increasing a fine, or placing a defendant in |
|
a correctional facility, as defined by Section 1.07, Penal Code. |
|
(e) A [If a] supervision officer who [or magistrate] |
|
modifies the conditions of community supervision by imposing an |
|
intermediate sanction[, the officer or magistrate] shall: |
|
(1) deliver a copy of the modified conditions to the |
|
defendant; |
|
(2) [, shall] file a copy of the modified conditions |
|
with the sentencing court; [,] and |
|
(3) [shall] note the date of delivery of the copy in |
|
the defendant's file. [If the defendant agrees to the modification
|
|
in writing, the officer or magistrate shall file a copy of the
|
|
modified conditions with the district clerk and the conditions
|
|
shall be enforced as modified. If the defendant does not agree to
|
|
the modification in writing, the supervision officer or magistrate
|
|
shall refer the case to the judge of the court for modification in
|
|
the manner provided by Section 22 of this article.] |
|
SECTION 5. Section 11(a), Article 42.12, Code of Criminal |
|
Procedure, is amended to read as follows: |
|
(a) The judge of the court having jurisdiction of the case |
|
shall determine the conditions of community supervision and may, at |
|
any time during the period of community supervision, alter or |
|
modify the conditions. The judge may impose any reasonable |
|
condition that is designed to protect or restore the community, |
|
protect or restore the victim, or punish, rehabilitate, or reform |
|
the defendant. Conditions of community supervision may include, |
|
but shall not be limited to, the conditions that the defendant |
|
shall: |
|
(1) Commit no offense against the laws of this State or |
|
of any other State or of the United States; |
|
(2) Avoid injurious or vicious habits; |
|
(3) Avoid persons or places of disreputable or harmful |
|
character, including any person, other than a family member of the |
|
defendant, who is an active member of a criminal street gang; |
|
(4) Report to the supervision officer as directed by |
|
the judge or supervision officer, [and] obey all rules and |
|
regulations of the community supervision and corrections |
|
department, and comply with any intermediate sanction imposed by |
|
the supervision officer under Section 10, unless the condition is |
|
dismissed by the director of the community supervision and |
|
corrections department or by the director's designee; |
|
(5) Permit the supervision officer to visit the |
|
defendant at the defendant's home or elsewhere; |
|
(6) Work faithfully at suitable employment as far as |
|
possible; |
|
(7) Remain within a specified place; |
|
(8) Pay the defendant's fine, if one is assessed, and |
|
all court costs whether a fine is assessed or not, in one or several |
|
sums; |
|
(9) Support the defendant's dependents; |
|
(10) Participate, for a time specified by the judge, |
|
in any community-based program, including a community-service work |
|
program under Section 16 of this article; |
|
(11) Reimburse the county in which the prosecution was |
|
instituted for compensation paid to appointed counsel for defending |
|
the defendant in the case, if counsel was appointed, or if the |
|
defendant was represented by a county-paid public defender, in an |
|
amount that would have been paid to an appointed attorney had the |
|
county not had a public defender; |
|
(12) Remain under custodial supervision in a community |
|
corrections facility, obey all rules and regulations of the |
|
facility, and pay a percentage of the defendant's income to the |
|
facility for room and board; |
|
(13) Pay a percentage of the defendant's income to the |
|
defendant's dependents for their support while under custodial |
|
supervision in a community corrections facility; |
|
(14) Submit to testing for alcohol or controlled |
|
substances; |
|
(15) Attend counseling sessions for substance abusers |
|
or participate in substance abuse treatment services in a program |
|
or facility approved or licensed by the Texas Commission on Alcohol |
|
and Drug Abuse; |
|
(16) With the consent of the victim of a misdemeanor |
|
offense or of any offense under Title 7, Penal Code, participate in |
|
victim-defendant mediation; |
|
(17) Submit to electronic monitoring; |
|
(18) Reimburse the compensation to victims of crime |
|
fund for any amounts paid from that fund to or on behalf of a victim, |
|
as defined by Article 56.32, of the defendant's offense or if no |
|
reimbursement is required, make one payment to the compensation to |
|
victims of crime fund in an amount not to exceed $50 if the offense |
|
is a misdemeanor or not to exceed $100 if the offense is a felony; |
|
(19) Reimburse a law enforcement agency for the |
|
analysis, storage, or disposal of raw materials, controlled |
|
substances, chemical precursors, drug paraphernalia, or other |
|
materials seized in connection with the offense; |
|
(20) Pay all or part of the reasonable and necessary |
|
costs incurred by the victim for psychological counseling made |
|
necessary by the offense or for counseling and education relating |
|
to acquired immune deficiency syndrome or human immunodeficiency |
|
virus made necessary by the offense; |
|
(21) Make one payment in an amount not to exceed $50 to |
|
a crime stoppers organization as defined by Section 414.001, |
|
Government Code, and as certified by the Texas Crime Stoppers |
|
Council; |
|
(22) Submit a DNA sample to the Department of Public |
|
Safety under Subchapter G, Chapter 411, Government Code, for the |
|
purpose of creating a DNA record of the defendant; |
|
(23) In any manner required by the judge, provide |
|
public notice of the offense for which the defendant was placed on |
|
community supervision in the county in which the offense was |
|
committed; and |
|
(24) Reimburse the county in which the prosecution was |
|
instituted for compensation paid to any interpreter in the case. |
|
SECTION 6. Chapter 56, Code of Criminal Procedure, is |
|
amended by adding Subchapter A-1 to read as follows: |
|
SUBCHAPTER A-1. PRETRIAL VICTIM-OFFENDER MEDIATION PROGRAM |
|
Art. 56.21. AUTHORITY TO ESTABLISH PROGRAM. (a) A |
|
statutory county court judge may establish a pretrial |
|
victim-offender mediation program under Section 76.002, Government |
|
Code, for persons who: |
|
(1) have been arrested for or charged with a |
|
misdemeanor under Title 7, Penal Code, in a statutory county court |
|
in this state; and |
|
(2) have not previously been convicted of a felony or a |
|
misdemeanor, other than a misdemeanor regulating traffic and |
|
punishable by fine only. |
|
(b) A statutory county court that implements a program under |
|
this subchapter may adopt administrative rules as necessary or |
|
convenient to implement or operate the program, including |
|
additional criteria related to a defendant's eligibility to enter |
|
the program. |
|
(c) The judge of a statutory county court that establishes a |
|
pretrial victim-offender mediation program under this subchapter |
|
may: |
|
(1) allow for the referral to the program of arrested |
|
persons who have not yet been indicted or otherwise formally |
|
charged; and |
|
(2) adopt administrative procedures as necessary to |
|
implement and operate the program, including additional program |
|
requirements that have been approved by the attorney representing |
|
the state. |
|
Art. 56.22. PROGRAM. (a) A pretrial victim-offender |
|
mediation program established under Section 76.002, Government |
|
Code, is coordinated by the attorney representing the state and |
|
must require: |
|
(1) the attorney representing the state: |
|
(A) to identify defendants who are eligible to |
|
participate in the program, including a consideration by the |
|
attorney representing the state of whether the defendant meets any |
|
additional locally developed eligibility criteria; and |
|
(B) to the extent feasible, to provide to each |
|
victim of an offense described by Article 56.21(a)(1) information |
|
and literature indicating that a victim-offender mediation program |
|
may be available in the criminal case if certain eligibility |
|
criteria are met by the defendant; |
|
(2) the consent of the victim, the defendant, and the |
|
attorney representing the state to be obtained before the case may |
|
proceed to pretrial victim-offender mediation; and |
|
(3) the defendant to enter into a binding mediation |
|
agreement in accordance with Article 56.24 that: |
|
(A) includes an apology by the defendant; and |
|
(B) requires the defendant to: |
|
(i) pay restitution to the victim; or |
|
(ii) perform community service. |
|
(b) All communications made in a pretrial victim-offender |
|
mediation program are confidential and may not be introduced into |
|
evidence except in a proceeding involving a question concerning the |
|
meaning of a mediation agreement. |
|
(c) A pretrial victim-offender mediation program may |
|
require the staff and other resources of pretrial services |
|
departments and community supervision correction departments to |
|
assist in monitoring the defendant's compliance with a mediation |
|
agreement reached through the program. |
|
(d) A pretrial victim-offender mediation may be conducted |
|
by a court-appointed mediator who meets the training requirements |
|
provided by Sections 154.052(a) and (b), Civil Practice and |
|
Remedies Code, or by any other appropriate person designated by the |
|
court. Neither the attorney representing the state nor the |
|
attorney representing the defendant in the criminal action may |
|
serve as a mediator under the pretrial victim-offender mediation |
|
program. |
|
(e) If a defendant enters a pretrial victim-offender |
|
mediation program, the court may defer the proceedings without |
|
accepting a plea of guilty or nolo contendere or entering an |
|
adjudication of guilt. The court may not require the defendant to |
|
admit guilt or enter a plea of guilty or nolo contendere to enter |
|
the program. |
|
(f) The case must be returned to the docket and proceed |
|
through the regular criminal justice system if: |
|
(1) a pretrial victim-offender mediation does not |
|
result in a mediation agreement; or |
|
(2) the defendant fails to successfully fulfill the |
|
terms of the mediation agreement by the date specified in the |
|
mediation agreement. |
|
(g) If a case is returned to the docket under Subsection |
|
(f), the defendant retains all of the rights that the defendant |
|
possessed before entering the pretrial victim-offender mediation |
|
program under this subchapter. Notwithstanding any other law, for |
|
purposes of determining the duration and expiration of an |
|
applicable statute of limitation under Chapter 12, the running of |
|
the period of limitation is tolled while the defendant is enrolled |
|
in a program under this subchapter. |
|
(h) The court on the motion of the attorney representing the |
|
state shall dismiss the indictment or information charging the |
|
defendant with the commission of the offense, if the defendant: |
|
(1) successfully completes the mediation agreement as |
|
determined by the attorney representing the state; and |
|
(2) either: |
|
(A) pays all court costs; or |
|
(B) enters a payment plan approved by the court |
|
or the attorney representing the state for such payment. |
|
(i) The attorney representing the state or the court may |
|
extend the initial compliance period granted to the defendant. A |
|
determination by the court regarding whether the mediation |
|
agreement has been successfully completed is final and may not be |
|
appealed. |
|
(j) If the defendant is not arrested or convicted of a |
|
subsequent felony or misdemeanor other than a misdemeanor |
|
regulating traffic and punishable by fine only on or before the |
|
first anniversary of the date the defendant successfully completed |
|
a mediation agreement under this subchapter, on the motion of the |
|
defendant, the court shall enter an order of nondisclosure under |
|
Section 411.081, Government Code, as if the defendant had received |
|
a discharge and dismissal under Section 5(c), Article 42.12, with |
|
respect to all records and files related to the defendant's arrest |
|
for the offense for which the defendant entered the pretrial |
|
victim-offender mediation program. |
|
Art. 56.23. MOTION AND HEARING. (a) The court on its own |
|
motion may, and on the motion of either party shall, hold a pretrial |
|
hearing to determine whether to allow an eligible defendant to |
|
enter a pretrial victim-offender mediation program under this |
|
subchapter. |
|
(b) The court shall conduct a pretrial hearing under this |
|
article in accordance with Chapter 28 and the rules of evidence. |
|
(c) At a pretrial hearing under this article, either party |
|
may present any evidence relevant to the defendant's eligibility |
|
under Article 56.22 and other additional locally developed |
|
eligibility criteria to enter a pretrial victim-offender mediation |
|
program. |
|
Art. 56.24. MEDIATION AGREEMENT. (a) A mediation |
|
agreement under this subchapter must be: |
|
(1) signed by the defendant and the victim; and |
|
(2) ratified by the attorney representing the state in |
|
a request for a court order documenting and approving the mediation |
|
agreement. |
|
(b) A mediation agreement under this subchapter may require |
|
testing, counseling, and treatment of the defendant to address |
|
alcohol abuse, abuse of controlled substances, mental health, or |
|
anger management or any other service that is reasonably related to |
|
the offense for which the defendant was arrested or charged. |
|
(c) A mediation agreement under this subchapter is not valid |
|
for more than one year after the date on which the mediation |
|
agreement is ratified unless the court and the attorney |
|
representing the state approve the extension of the agreement. |
|
(d) A mediation agreement under this subchapter does not |
|
constitute a plea or legal admission of responsibility. |
|
Art. 56.25. OVERSIGHT. (a) The lieutenant governor and the |
|
speaker of the house of representatives may assign to appropriate |
|
legislative committees duties relating to the oversight of pretrial |
|
victim-offender mediation programs established under this |
|
subchapter. |
|
(b) A legislative committee or the governor may request the |
|
state auditor to perform a management, operations, or financial or |
|
accounting audit of a pretrial victim-offender mediation program |
|
established under this subchapter. |
|
Art. 56.26. FEES. (a) A pretrial victim-offender |
|
mediation program established under this subchapter may collect |
|
from a defendant in the program: |
|
(1) a reasonable program participation fee not to |
|
exceed $500; and |
|
(2) an alcohol or controlled substance testing, |
|
counseling, and treatment fee in an amount necessary to cover the |
|
costs of the testing, counseling, or treatment if such testing, |
|
counseling, or treatment is required by the mediation agreement. |
|
(b) Fees collected under this article may be paid on a |
|
periodic basis or on a deferred payment schedule at the discretion |
|
of the judge, magistrate, or program director administering the |
|
pretrial victim-offender mediation program. The fees must be: |
|
(1) based on the defendant's ability to pay; and |
|
(2) used only for purposes specific to the program. |
|
SECTION 7. Subchapter A, Chapter 102, Code of Criminal |
|
Procedure, is amended by adding Article 102.0179 to read as |
|
follows: |
|
Art. 102.0179. COSTS ATTENDANT TO PRETRIAL VICTIM-OFFENDER |
|
MEDIATION. (a) A defendant who participates in a pretrial |
|
victim-offender mediation program established under Section |
|
76.002, Government Code, on successful completion of the terms of |
|
the defendant's mediation agreement or on conviction, shall pay as |
|
court costs $15 plus an additional program participation fee as |
|
described by Article 56.26 in the amount prescribed by that |
|
article. |
|
(b) The court clerk shall collect the costs imposed under |
|
this article. The clerk shall keep a separate record of any money |
|
collected under this article and shall pay any money collected to |
|
the county treasurer or to any other official who discharges the |
|
duties commonly delegated to the county treasurer for deposit in a |
|
fund to be known as the county pretrial victim-offender mediation |
|
program fund. |
|
(c) A county that collects court costs under this article |
|
shall use the money in a fund described by Subsection (b) |
|
exclusively for the maintenance of the pretrial victim-offender |
|
mediation program operated in the county. |
|
SECTION 8. Subchapter B, Chapter 102, Government Code, is |
|
amended by adding Section 102.0216 to read as follows: |
|
Sec. 102.0216. ADDITIONAL COURT COSTS: CODE OF CRIMINAL |
|
PROCEDURE. A defendant who participates in a pretrial |
|
victim-offender mediation program established under Section 76.002 |
|
shall pay on successful completion of the terms of the defendant's |
|
mediation agreement or on conviction, in addition to all other |
|
costs, to help fund pretrial victim-offender mediation programs |
|
established under that section (Art. 102.0179, Code of Criminal |
|
Procedure) . . . $15 plus an additional program participation fee |
|
in an amount not to exceed $500. |
|
SECTION 9. Chapter 509, Government Code, is amended by |
|
adding Section 509.017 to read as follows: |
|
Sec. 509.017. MODEL LIST OF PROGRESSIVE INTERMEDIATE |
|
SANCTIONS. The division shall establish a model list of |
|
progressive intermediate sanctions that may be adopted in a |
|
judicial district under Section 76.0021. |
|
SECTION 10. (a) The change in law made by this Act in |
|
adding Section 76.002(a-1), Government Code, and Subchapter A-1, |
|
Chapter 56, Code of Criminal Procedure, applies to a defendant who |
|
enters a pretrial victim-offender mediation program under that |
|
subchapter regardless of whether the defendant committed the |
|
offense for which the defendant enters the program before, on, or |
|
after the effective date of this Act. |
|
(b) The change in law made by this Act in adding Article |
|
102.0179, Code of Criminal Procedure, and Section 102.0216, |
|
Government Code, 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 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 subsection, an offense was |
|
committed before the effective date of this Act if any element of |
|
the offense was committed before that date. |
|
SECTION 11. (a) The judges described by Section 76.002, |
|
Government Code, shall adopt the system and establish the review |
|
process required by Section 76.0021, Government Code, as added by |
|
this Act, not later than January 1, 2012. |
|
(b) The community justice assistance division of the Texas |
|
Department of Criminal Justice shall adopt the model list of |
|
progressive intermediate sanctions as required by Section 509.017, |
|
Government Code, as added by this Act, not later than November 1, |
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2011. |
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SECTION 12. This Act takes effect immediately if it |
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receives a vote of two-thirds of all the members elected to each |
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house, as provided by Section 39, Article III, Texas Constitution. |
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If this Act does not receive the vote necessary for immediate |
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effect, this Act takes effect September 1, 2011. |