83R7545 GCB-D

By: Dutton H.B. No. 2131

A BILL TO BE ENTITLED

AN ACT

relating to the creation of a specialty court for certain first-time DWI offenders; imposing fees for participation and alcohol monitoring.

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

SECTION 1. Subtitle B, Title 6, Health and Safety Code, is amended by adding Chapter 470 to read as follows:

CHAPTER 470. DIVERT PROGRAM

Sec. 470.001. DIVERT PROGRAM DEFINED; PROCEDURES FOR CERTAIN DEFENDANTS. (a) In this chapter, "Direct Intervention using Voluntary Education, Restitution, and Treatment Program" or "DIVERT program" means a program that has the following essential characteristics:

(1) the integration of alcohol and other drug treatment services in the processing of certain first-time driving while intoxicated cases in the judicial system;

(2) the use of a nonadversarial approach involving prosecutors and defense attorneys to promote public safety, raise community awareness of the consequences of driving while intoxicated, and protect the due process rights of program participants;

(3) early identification and prompt placement of eligible participants in the program;

(4) access to a continuum of evidence-based alcohol, drug, and other related treatment and rehabilitative services;

(5) monitoring of abstinence through weekly alcohol and other drug testing;

(6) a coordinated strategy to govern program responses to participants' compliance;

(7) minimization of court appearances during the period of participation in the program;

(8) application of uniform criteria to the entry, supervision, and treatment of each program participant;

(9) monitoring and evaluation of program goals and effectiveness;

(10) continuing interdisciplinary education to promote effective program planning, implementation, and operations; and

(11) development of partnerships with public agencies and community organizations.

(b) If a defendant successfully completes a DIVERT program, after notice to the state and a hearing on whether the defendant is otherwise entitled to the petition and whether issuance of the order is in the best interest of justice, notwithstanding Section 5(d), Article 42.12, Code of Criminal Procedure, 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, Code of Criminal Procedure, with respect to all records and files related to the defendant's arrest for the offense for which the defendant entered the program if the defendant:

(1) has not been previously convicted of any felony offense; and

(2) is not before the second anniversary of the defendant's successful completion of the program convicted of:

(A) an offense under Chapter 49, Penal Code, other than an offense under Section 49.02 or 49.031 of that code;

(B) an offense under Chapter 481; or

(C) any offense punishable as a felony.

Sec. 470.002. EVALUATION AND CONDITIONS. (a) Treatment, education, and supervision provided under the program must be based on a series of evaluations designed to assess the treatment and education needs of each program participant with respect to the participant's alcohol or drug dependency and motivation.

(b) Except as otherwise provided by this section, program administrators shall impose on each program participant conditions for successful completion of the program based on the needs assessment conducted under Subsection (a).

(c) Program administrators shall require any participant younger than 25 years of age to attend a video course of not less than four hours designed to empower young drivers to adopt safer driving habits and reduce injury and death among young drivers, such as the video course titled "Alive at 25" developed by the National Safety Council.

(d) The court shall require a program participant as a condition of participation in the program to, for a period of one year:

(1) if the participant owns or regularly drives a motor vehicle:

(A) have installed on the motor vehicle owned by the participant or on the vehicle most regularly driven by the participant a device that uses a deep-lung breath analysis mechanism to make impractical the operation of a motor vehicle if ethyl alcohol is detected in the breath of the operator; and

(B) not operate any motor vehicle unless the vehicle is equipped with that device; or

(2) if the participant does not own or regularly drive a motor vehicle:

(A) obtain a deep-lung breath analysis mechanism that detects ethyl alcohol on the participant's breath; and

(B) use the mechanism at intervals prescribed by the court.

(e) The court may designate an appropriate agency to verify the installation of the device described by Subsection (d)(1) or the acquisition of the mechanism described by Subsection (d)(2) and to monitor the device or mechanism. If the magistrate designates an agency under this subsection, in each month during which the agency verifies the installation of the device or the acquisition of the mechanism or provides a monitoring service for the device or mechanism, the participant shall pay a fee to the designated agency in the amount set by the court. The participant shall pay the initial fee at the time the agency verifies the installation of the device or the acquisition of the mechanism. In each subsequent month during which the participant is required to pay a fee, the participant shall pay the fee on the first occasion in that month that the agency provides a monitoring service. The court shall set the fee in an amount not to exceed $10 as determined by the county auditor, or by the commissioners court of the county if the county does not have a county auditor, to be sufficient to cover the cost incurred by the designated agency in conducting the verification or providing the monitoring service, as applicable in that county.

Sec. 470.003. AUTHORITY TO ESTABLISH PROGRAM. The commissioners court of a county or governing body of a municipality may establish a DIVERT program for persons:

(1) who are arrested for, charged with, or convicted of an offense under Section 49.04, Penal Code, or who are juveniles detained for, taken into custody for, or adjudicated as having engaged in conduct constituting an offense under Section 49.04, Penal Code;

(2) who have not been previously convicted of or adjudicated as having engaged in conduct constituting an offense under Chapter 49, Penal Code, other than an offense under Section 49.02 or 49.031, Penal Code; and

(3) for whom participation in the program is in the best interests of the community, as determined by the court and the attorney representing the state.

Sec. 470.004. ESTABLISHMENT OF REGIONAL PROGRAM. The commissioners courts of two or more counties, or the governing bodies of two or more municipalities, may elect to establish a regional DIVERT program under this chapter for the participating counties or municipalities.

Sec. 470.005. 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 DIVERT programs established under this chapter.

(b) A legislative committee or the governor may request the state auditor to perform a management, operations, or financial or accounting audit of a DIVERT program established under this chapter.

(c) The director or administrator of a DIVERT program established under this chapter shall:

(1) notify the criminal justice division of the governor's office before or on implementation of the program; and

(2) provide information regarding the performance of the program to the division on request.

Sec. 470.006. FEES. (a) A DIVERT program established under this chapter may collect from a participant in the program:

(1) a reasonable program fee not to exceed $1,000; and

(2) an alcohol or controlled substance testing, counseling, and treatment fee in an amount necessary to cover the costs of the testing, counseling, and treatment.

(b) Fees collected under this section 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 program. The fees must be:

(1) based on the participant's ability to pay; and

(2) used only for purposes specific to the program.

Sec. 470.007. PROGRAM IN CERTAIN COUNTIES MANDATORY. (a) The commissioners court of a county with a population of more than 200,000 shall establish a DIVERT program under Section 470.003.

(b) A county required under this section to establish a DIVERT program shall apply for federal and state funds available to pay the costs of the program. The criminal justice division of the governor's office may assist a county in applying for federal funds as required by this subsection.

(c) Notwithstanding Subsection (a), a county is required to establish a DIVERT program under this section only if the county receives federal or state funding specifically for that purpose.

(d) A county that does not establish a DIVERT program as required by this section and maintain the program is ineligible to receive from the state:

(1) funds for a community supervision and corrections department; and

(2) grants for substance abuse treatment programs administered by the criminal justice division of the governor's office.

Sec. 470.008. USE OF OTHER DRUG AND ALCOHOL AWARENESS PROGRAMS. (a) In addition to using a DIVERT program established under this chapter, the commissioners court of a county or a court may use other drug-awareness programs or drug-related and alcohol-related driving awareness programs to treat persons convicted of drug-related or alcohol-related offenses.

(b) If the county or municipality in which a person resides has established both a DIVERT program under this chapter and a drug court program under Section 469.005, and if the person is eligible to be a participant in both programs, the court may order the person to participate in either program as the court determines appropriate.

Sec. 470.009. SUSPENSION OR DISMISSAL OF COMMUNITY SERVICE REQUIREMENT. (a) Notwithstanding Sections 13 and 16, Article 42.12, Code of Criminal Procedure, to encourage participation in a DIVERT program established under this chapter, the judge or magistrate administering the program may suspend any requirement that, as a condition of community supervision, a participant in the program work a specified number of hours at a community service project or projects.

(b) On a participant's successful completion of a DIVERT program, a judge or magistrate may excuse the participant from any condition of community supervision previously suspended under Subsection (a).

Sec. 470.010. OCCUPATIONAL DRIVER'S LICENSE. Notwithstanding Section 521.242, Transportation Code, if a participant's driver's license has been suspended as a result of an alcohol-related or drug-related enforcement contact, as defined by Section 524.001, Transportation Code, or as a result of a conviction under Section 49.04, Penal Code, or an adjudication of conduct constituting an offense under that section, the judge or magistrate administering a DIVERT program under this chapter may order that an occupational license be issued to the participant. An order issued under this section is subject to Sections 521.248-521.252, Transportation Code, except that any reference to a petition under Section 521.242 of that code does not apply.

SECTION 2. Subchapter B, Chapter 103, Government Code, is amended by adding Sections 103.0292 and 103.0293 to read as follows:

Sec. 103.0292. ADDITIONAL MISCELLANEOUS FEES AND COSTS: HEALTH AND SAFETY CODE. A program fee for a DIVERT program established under Section 470.003, Health and Safety Code, shall be collected under Section 470.006, Health and Safety Code, in a reasonable amount not to exceed $1,000.

Sec. 103.0293. ADDITIONAL MISCELLANEOUS FEES AND COSTS: HEALTH AND SAFETY CODE. A participant in a DIVERT program administered under Chapter 470, Health and Safety Code, who is ordered by the court to have an ignition interlock device installed on the participant's vehicle or to obtain and use a breath analysis mechanism shall pay a fee in an amount set by a court not to exceed $10 in each month that the designated agency verifies the installation of a device or the acquisition of a mechanism or provides a monitoring service.

SECTION 3. (a) Except as provided by Subsection (b) of this section, the commissioners court of a county shall establish a DIVERT program as required by Section 470.007, Health and Safety Code, as added by this Act, not later than September 1, 2014.

(b) A county is required under Section 470.007, Health and Safety Code, as added by this Act, to establish a DIVERT program only if the county receives federal funding specifically for that purpose or the legislature appropriates money specifically for that purpose. If the county does not receive federal funding specifically for that purpose and the legislature does not appropriate money specifically for that purpose, a county may, but is not required to, establish a DIVERT program under Section 470.003, Health and Safety Code, as added by this Act, using other money available for that purpose.

SECTION 4. This Act takes effect September 1, 2013.