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A BILL TO BE ENTITLED
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AN ACT
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relating to allowing deferred adjudication community supervision |
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for first-time offenders charged with certain intoxication |
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offenses, requiring the use of an ignition interlock device on |
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conviction of or placement on deferred adjudication for certain |
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intoxication offenses, and authorizing ethyl alcohol monitoring as |
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a condition of community supervision for certain intoxication |
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offenses; imposing a fee. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 2, Article 42.12, Code of Criminal |
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Procedure, is amended by adding Subdivision (5) to read as follows: |
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(5) "Ethyl alcohol monitoring device" means: |
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(A) a device worn by the defendant that detects |
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ethyl alcohol in the defendant's perspiration through transdermal |
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testing; or |
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(B) a portable ethyl alcohol detection device |
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carried by the defendant that: |
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(i) requires the defendant at specified or |
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random intervals to submit a breath sample; |
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(ii) analyzes and records the sample; |
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(iii) transmits the results of the |
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analysis; and |
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(iv) is capable by facial recognition |
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technology or other technological means of verifying that the |
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breath sample was provided by the defendant. |
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SECTION 2. Section 5, Article 42.12, Code of Criminal |
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Procedure, is amended by amending Subsection (d) and adding |
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Subsection (d-1) to read as follows: |
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(d) In all other cases the judge may grant deferred |
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adjudication unless: |
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(1) the defendant is charged with an offense: |
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(A) under Section 49.07 or 49.08 [Sections
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49.04-49.08], Penal Code; [or] |
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(B) under Section 49.04, 49.045, 49.05, 49.06, or |
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49.065, Penal Code, if it is shown that the defendant has been |
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previously convicted of or placed on deferred adjudication for an |
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offense under any of those sections or under Section 49.07 or 49.08, |
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Penal Code; or |
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(C) for which punishment may be increased under |
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Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it |
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is shown that the defendant has been previously convicted of an |
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offense for which punishment was increased under any one of those |
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subsections; |
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(2) the defendant: |
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(A) is charged with an offense under Section |
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21.11, 22.011, or 22.021, Penal Code, regardless of the age of the |
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victim, or a felony described by Section 13B(b) of this article; and |
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(B) has previously been placed on community |
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supervision for any offense under Paragraph (A) of this |
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subdivision; |
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(3) the defendant is charged with an offense under: |
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(A) Section 21.02, Penal Code; or |
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(B) Section 22.021, Penal Code, that is |
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punishable under Subsection (f) of that section or under Section |
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12.42(c)(3) or (4), Penal Code; or |
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(4) the defendant is charged with an offense under |
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Section 19.02, Penal Code, except that the judge may grant deferred |
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adjudication on determining that the defendant did not cause the |
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death of the deceased, did not intend to kill the deceased or |
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another, and did not anticipate that a human life would be taken. |
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(d-1) For a defendant charged with an offense under Section |
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49.04, 49.045, 49.05, 49.06, or 49.065, Penal Code, the judge may |
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defer adjudication and place the defendant on community supervision |
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only if, at the time of the offense for which the defendant was |
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arrested, the defendant: |
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(1) did not cause a traffic accident or the injury or |
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death of another; |
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(2) if requested by a peace officer, provided a blood, |
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breath, or urine specimen and the analysis of the specimen showed an |
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alcohol concentration lower than 0.15 at the time the analysis was |
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performed; and |
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(3) was not charged with another offense, other than a |
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Class C misdemeanor, arising from the same incident as the offense |
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under Section 49.04, 49.045, 49.05, 49.06, or 49.065. |
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SECTION 3. Section 13, Article 42.12, Code of Criminal |
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Procedure, is amended by amending Subsections (a), (f), (g), (h), |
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(i), and (n) and adding Subsection (o) to read as follows: |
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(a) A judge placing [granting community supervision to] a |
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defendant on community supervision for [convicted of] an offense |
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under Chapter 49, Penal Code, shall require as a condition of |
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community supervision that the defendant submit to: |
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(1) not less than 72 hours of continuous confinement |
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in county jail if the defendant was punished under Section |
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49.09(a), Penal Code; not less than five days of confinement in |
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county jail if the defendant was punished under Section 49.09(a), |
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Penal Code, and was subject to Section 49.09(h), Penal Code; not |
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less than 10 days of confinement in county jail if the defendant was |
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punished under Section 49.09(b) or (c), Penal Code; or not less than |
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30 days of confinement in county jail if the defendant was convicted |
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under Section 49.07, Penal Code; and |
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(2) an evaluation by a supervision officer or by a |
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person, program, or facility approved by the Department of State |
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Health Services [Texas Commission on Alcohol and Drug Abuse] for |
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the purpose of having the facility prescribe and carry out a course |
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of conduct necessary for the rehabilitation of the defendant's drug |
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or alcohol dependence condition. |
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(f) If a judge places [grants community supervision to] a |
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defendant on community supervision for [convicted of] an offense |
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under Sections 49.04-49.08, Penal Code, and if before receiving |
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community supervision the defendant has not submitted to an |
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evaluation under Section 9 of this article, the judge shall require |
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the defendant to submit to the evaluation as a condition of |
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community supervision. If the evaluation indicates to the judge |
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that the defendant is in need of treatment for drug or alcohol |
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dependency, the judge shall require the defendant to submit to that |
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treatment as a condition of community supervision in a program or |
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facility approved or licensed by the Department of State Health |
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Services [Texas Commission on Alcohol and Drug Abuse] or in a |
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program or facility that complies with standards established by the |
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community justice assistance division of the Texas Department of |
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Criminal Justice, after consultation by the division with the |
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department [commission]. |
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(g) A jury that recommends that a defendant be placed on |
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community supervision for [a person convicted of] an offense under |
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Sections 49.04-49.08, Penal Code, may recommend that any driver's |
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license issued to the defendant under Chapter 521, Transportation |
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|
Code, not be suspended. This subsection does not apply to a |
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defendant [person] punished under Section 49.09(a) or (b), Penal |
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Code, and subject to Section 49.09(h) of that code. |
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(h) The judge shall require [If] a defendant placed on |
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community supervision for [person convicted of] an offense under |
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Sections 49.04-49.08, Penal Code, [is placed on community
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supervision, the judge shall require,] as a condition of the |
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community supervision, to [that the defendant] attend and |
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successfully complete before the 181st day after the day community |
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supervision is granted an educational program jointly approved by |
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the Department of State Health Services [Texas Commission on
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Alcohol and Drug Abuse], the Department of Public Safety, the |
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Traffic Safety Section of the Texas Department of Transportation, |
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and the community justice assistance division of the Texas |
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Department of Criminal Justice designed to rehabilitate persons who |
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have driven while intoxicated. The Department of State Health |
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Services [Texas Commission on Alcohol and Drug Abuse] shall publish |
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the jointly approved rules and shall monitor, coordinate, and |
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provide training to persons providing the educational programs. |
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The Department of State Health Services [Texas Commission on
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Alcohol and Drug Abuse] is responsible for the administration of |
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the certification of approved educational programs and may charge a |
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nonrefundable application fee for the initial certification of |
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approval and for renewal of a certificate. The judge may waive the |
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educational program requirement or may grant an extension of time |
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to successfully complete the program that expires not later than |
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one year after the beginning date of the defendant's [person's] |
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community supervision, however, if the defendant by a motion in |
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writing shows good cause. In determining good cause, the judge may |
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consider but is not limited to: the defendant's school and work |
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schedule, the defendant's health, the distance that the defendant |
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must travel to attend an educational program, and the fact that the |
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defendant resides out of state, has no valid driver's license, or |
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|
does not have access to transportation. The judge shall set out the |
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finding of good cause for waiver in the judgment. If a defendant is |
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required, as a condition of community supervision, to attend an |
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educational program or if the court waives the educational program |
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requirement, the court clerk shall immediately report that fact to |
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the Department of Public Safety, on a form prescribed by the |
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department, for inclusion in the defendant's [person's] driving |
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record. If the court grants an extension of time in which the |
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defendant [person] may complete the program, the court clerk shall |
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immediately report that fact to the Department of Public Safety on a |
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form prescribed by the department. The report must include the |
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beginning date of the defendant's [person's] community |
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|
supervision. Upon the defendant's [person's] successful |
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|
completion of the educational program, the defendant's [person's] |
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|
instructor shall give notice to the Department of Public Safety for |
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inclusion in the defendant's [person's] driving record and to the |
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community supervision and corrections department. The community |
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supervision and corrections department shall then forward the |
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notice to the court clerk for filing. If the Department of Public |
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Safety does not receive notice that a defendant required to |
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complete an educational program has successfully completed the |
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program within the period required by this section, as shown on |
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department records, the department shall revoke the defendant's |
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driver's license, permit, or privilege or prohibit the defendant |
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[person] from obtaining a license or permit, as provided by |
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Sections 521.344(e) and (f), Transportation Code. The Department |
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|
of Public Safety may not reinstate a license suspended under this |
|
|
subsection unless the defendant [person] whose license was |
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|
suspended makes application to the department for reinstatement of |
|
|
the defendant's [person's] license and pays to the department a |
|
|
reinstatement fee of $100. The Department of Public Safety shall |
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remit all fees collected under this subsection to the comptroller |
|
|
for deposit in the general revenue fund. This subsection does not |
|
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apply to a defendant if a jury recommends community supervision for |
|
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the defendant and also recommends that the defendant's driver's |
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license not be suspended. |
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(i)(1) If a defendant is placed on community supervision for |
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[person convicted of] an offense under Sections 49.04-49.08, Penal |
|
|
Code, [is placed on community supervision,] the court may require |
|
|
as a condition of community supervision that the defendant have a |
|
|
device installed, on the motor vehicle owned by the defendant or on |
|
|
the vehicle most regularly driven by the defendant, that uses a |
|
|
deep-lung breath analysis mechanism to make impractical the |
|
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operation of the motor vehicle if ethyl alcohol is detected in the |
|
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breath of the operator and that the defendant not operate any motor |
|
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vehicle that is not equipped with that device. |
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(2) [If it is shown on the trial of the offense that an
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analysis of a specimen of the person's blood, breath, or urine
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showed an alcohol concentration level of 0.15 or more at the time
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the analysis was performed, or if the person is convicted of an
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offense under Sections 49.04-49.06, Penal Code, and punished under
|
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|
Section 49.09(a) or (b), Penal Code, or of a second or subsequent
|
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|
offense under Section 49.07 or 49.08, Penal Code, and the person
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after conviction of either offense is placed on community
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|
supervision, the court shall require as a condition of community
|
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|
supervision that the defendant have the device installed on the
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appropriate vehicle and that the defendant not operate any motor
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vehicle unless the vehicle is equipped with that device.] Before |
|
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placing a defendant on community supervision for [a person
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|
convicted of] an offense under Sections 49.04-49.08, Penal Code, |
|
|
the court shall determine from criminal history record information |
|
|
maintained by the Department of Public Safety whether the defendant |
|
|
[person] has previously been convicted of or placed on deferred |
|
|
adjudication for an offense [one or more previous convictions] |
|
|
under Sections 49.04-49.08, Penal Code[, or has one previous
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|
conviction under Sections 49.04-49.07, Penal Code, or one previous
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|
conviction under Section 49.08, Penal Code]. |
|
|
(3) If it is shown on the trial of the offense that an |
|
|
analysis of a specimen of the defendant's [person's] blood, breath, |
|
|
or urine showed an alcohol concentration level of 0.15 or more at |
|
|
the time the analysis was performed, if the defendant refused to |
|
|
submit a specimen of the defendant's blood, breath, or urine when |
|
|
requested by a peace officer, or if the court determines that the |
|
|
defendant [person] has previously been convicted of or placed on |
|
|
deferred adjudication for an offense under Sections 49.04-49.08 |
|
|
[one or more such previous convictions], the court shall require as |
|
|
a condition of community supervision that the defendant have that |
|
|
device installed on each [the] motor vehicle owned by the defendant |
|
|
or on the vehicle most regularly driven by the defendant and that |
|
|
the defendant not operate any motor vehicle that [unless the
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|
vehicle] is not equipped with the device described in this |
|
|
subsection. |
|
|
(4) If the defendant is not otherwise restricted to |
|
|
the operation of a motor vehicle equipped with a device described by |
|
|
this subsection at the discretion of the court under Subdivision |
|
|
(1) or as required by Subdivision (3), the court shall order the |
|
|
appropriate supervision officer to use an empirically validated |
|
|
risk assessment screening instrument to determine the risk that the |
|
|
defendant will commit a subsequent offense under Sections |
|
|
49.04-49.08, Penal Code. If the assessment shows that the |
|
|
defendant is at high risk for committing a subsequent offense under |
|
|
one of those sections, the court shall require as a condition of |
|
|
community supervision that the defendant have a device described by |
|
|
this subsection installed on each motor vehicle owned by the |
|
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defendant or on the vehicle most regularly driven by the defendant |
|
|
and that the defendant not operate any motor vehicle that is not |
|
|
equipped with that device. |
|
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(5) If the court orders a device under this |
|
|
subsection, the [The] court shall require the defendant to obtain |
|
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the device at the defendant's own cost before the 30th day after the |
|
|
date of conviction unless the court finds that to do so would not be |
|
|
in the best interest of justice and enters its findings on record. |
|
|
(6) The court shall require the defendant to provide |
|
|
evidence to the court within the 30-day period that the device has |
|
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been installed on the appropriate vehicle and order the device to |
|
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remain installed on that vehicle for a period not less than 50 |
|
|
percent of the supervision period. |
|
|
(7) If the court determines the defendant [offender] |
|
|
is unable to pay for the device, the court may impose a reasonable |
|
|
payment schedule not to exceed twice the period of the court's |
|
|
order. |
|
|
(8) The Department of Public Safety shall approve |
|
|
devices for use under this subsection. Section 521.247, |
|
|
Transportation Code, applies to the approval of a device under this |
|
|
subsection and the consequences of that approval. |
|
|
(9) Notwithstanding the provisions of this section, if |
|
|
a defendant [person] is required to operate a motor vehicle in the |
|
|
course and scope of the defendant's [person's] employment and if the |
|
|
vehicle is owned by the employer, the defendant [person] may |
|
|
operate that vehicle without installation of an approved ignition |
|
|
interlock device if the employer has been notified of that driving |
|
|
privilege restriction and if proof of that notification is with the |
|
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vehicle. This employment exemption does not apply, however, if the |
|
|
business entity that owns the vehicle is owned or controlled by the |
|
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defendant [person whose driving privilege has been restricted]. |
|
|
(10) A previous conviction or placement on deferred |
|
|
adjudication may not be used for purposes of restricting a |
|
|
defendant [person] to the operation of a motor vehicle equipped |
|
|
with an interlock ignition device under this subsection if: |
|
|
(A) [(1)] the [previous conviction was a final
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|
conviction under Section 49.04, 49.045, 49.05, 49.06, 49.07, or
|
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|
49.08, Penal Code, and was for an] offense for which the defendant |
|
|
was convicted or placed on deferred adjudication was an offense |
|
|
under Section 49.04, 49.045, 49.05, 49.06, 49.07, or 49.08, Penal |
|
|
Code, committed more than 10 years before the instant offense for |
|
|
which the defendant [person] was [convicted and] placed on |
|
|
community supervision; and |
|
|
(B) [(2)] the defendant [person] has not been |
|
|
convicted of or placed on deferred adjudication for an offense |
|
|
under Section 49.04, 49.045, 49.05, 49.06, 49.07, or 49.08 of that |
|
|
code, committed within 10 years before the date of [on which] the |
|
|
instant offense for which the defendant [person] was [convicted
|
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|
and] placed on community supervision. |
|
|
(11) The vendor of ignition interlock devices who |
|
|
installs a device under this subsection shall pay to the local |
|
|
community supervision and corrections department a one-time fee of |
|
|
$360 to help defray the cost of monitoring compliance with a court |
|
|
order issued under this subsection. |
|
|
(12) If, at the time of the offense, the defendant |
|
|
refused a request of a peace officer to provide a specimen of the |
|
|
defendant's breath or blood for alcohol testing, the vendor of an |
|
|
ignition interlock device who installs the device under this |
|
|
subsection on the vehicle of the defendant, or provides an ethyl |
|
|
alcohol monitoring device ordered for the defendant under |
|
|
Subsection (o), shall ensure that the device is capable of |
|
|
verifying by facial recognition technology or other technological |
|
|
means that a breath sample is provided by the defendant. |
|
|
(13) If a defendant required as a condition of |
|
|
community supervision to have installed an ignition interlock |
|
|
device on the defendant's vehicle under this subsection certifies |
|
|
to the court by affidavit that the defendant is not subject to that |
|
|
condition because the defendant does not own or have access to a |
|
|
vehicle, the judge shall require the defendant to submit to ethyl |
|
|
alcohol monitoring under Subsection (o), unless the judge |
|
|
determines the defendant is indigent. |
|
|
(n) Notwithstanding any other provision of this section or |
|
|
other law, the judge who places on community supervision a |
|
|
defendant who was younger than 21 years of age at the time of the |
|
|
offense and was placed on community supervision [convicted] for an |
|
|
offense under Sections 49.04-49.08, Penal Code, shall: |
|
|
(1) order that the defendant's driver's license be |
|
|
suspended for 90 days beginning on the date that the defendant |
|
|
[person] is placed on community supervision; and |
|
|
(2) require as a condition of community supervision |
|
|
that the defendant not operate a motor vehicle unless the vehicle is |
|
|
equipped with the device described by Subsection (i) of this |
|
|
section or, if the defendant does not own or have access to a |
|
|
vehicle, require the defendant to submit to ethyl alcohol |
|
|
monitoring under Subsection (o), unless the court finds that the |
|
|
defendant is indigent. |
|
|
(o)(1) This subsection applies to a defendant for whom a |
|
|
judge may order or is required to order the installation and use of |
|
|
an ignition interlock device under Subsection (i), including a |
|
|
defendant who certifies to the court the inability to comply with an |
|
|
ignition interlock device requirement because the defendant does |
|
|
not own or have access to a vehicle. |
|
|
(2) Notwithstanding Subsection (i) and subject to |
|
|
Subdivision (6), in lieu of or in addition to requiring a defendant |
|
|
to install and use an ignition interlock device under that |
|
|
subsection, the judge may require the defendant to submit to ethyl |
|
|
alcohol monitoring under this subsection. The judge must specify |
|
|
the date by which the defendant must begin wearing or using the |
|
|
ethyl alcohol monitoring device. |
|
|
(3) The judge may revoke community supervision if: |
|
|
(A) the defendant refuses to wear or use the |
|
|
ethyl alcohol monitoring device; |
|
|
(B) the defendant tampers with or otherwise |
|
|
attempts to disable the device; |
|
|
(C) the device shows that the defendant has |
|
|
violated a condition of community supervision; or |
|
|
(D) the defendant fails to pay the costs of ethyl |
|
|
alcohol monitoring, if: |
|
|
(i) payment is ordered under Subdivision |
|
|
(4) as a condition of community supervision; and |
|
|
(ii) the judge determines that the |
|
|
defendant is not indigent and is financially able to make the |
|
|
payments as ordered. |
|
|
(4) The cost of the ethyl alcohol monitoring device |
|
|
may be ordered paid as a condition of community supervision by the |
|
|
defendant to the court or to the entity designated by the judge |
|
|
under Subdivision (5) or waived or reduced based on the defendant's |
|
|
ability to pay. The court may impose a reasonable payment schedule |
|
|
for the cost of the device, in whole or in part, as applicable, for a |
|
|
period not to exceed twice the period of the court's order requiring |
|
|
ethyl alcohol monitoring. |
|
|
(5) The judge may designate an appropriate entity to |
|
|
verify that the defendant is wearing or using the ethyl alcohol |
|
|
monitoring device appropriately and to monitor the device. |
|
|
(6) Except as provided by Section 49.09(i), a judge |
|
|
may not order ethyl alcohol monitoring in lieu of an ignition |
|
|
interlock device under this subsection for a defendant subject to |
|
|
Section 49.09(h), Penal Code. The judge may order ethyl alcohol |
|
|
monitoring in addition to the ignition interlock device required |
|
|
under that section. |
|
|
SECTION 4. Section 49.09, Penal Code, is amended by |
|
|
amending Subsection (h) and adding Subsection (i) to read as |
|
|
follows: |
|
|
(h) This subsection applies only to a person convicted of a |
|
|
second or subsequent offense relating to the operating of a motor |
|
|
vehicle while intoxicated committed within five years of the date |
|
|
on which the most recent preceding offense was committed. The court |
|
|
shall enter an order that requires the defendant to have a device |
|
|
installed, on each motor vehicle owned or operated by the |
|
|
defendant, that uses a deep-lung breath analysis mechanism to make |
|
|
impractical the operation of the motor vehicle if ethyl alcohol is |
|
|
detected in the breath of the operator, and that requires that |
|
|
before the first anniversary of the ending date of the period of |
|
|
license suspension under Section 521.344, Transportation Code, the |
|
|
defendant not operate any motor vehicle that is not equipped with |
|
|
that device. The court shall require the defendant to obtain the |
|
|
device at the defendant's own cost on or before that ending date, |
|
|
require the defendant to provide evidence to the court on or before |
|
|
that ending date that the device has been installed on each |
|
|
appropriate vehicle, and order the device to remain installed on |
|
|
each vehicle until the first anniversary of that ending date. If |
|
|
the court determines the offender is unable to pay for the device, |
|
|
the court may impose a reasonable payment schedule not to extend |
|
|
beyond the first anniversary of the date of installation. The |
|
|
Department of Public Safety shall approve devices for use under |
|
|
this subsection. Section 521.247, Transportation Code, applies to |
|
|
the approval of a device under this subsection and the consequences |
|
|
of that approval. Failure to comply with an order entered under |
|
|
this subsection is punishable by contempt. For purposes of this |
|
|
subsection, a person is considered to be convicted of an offense if |
|
|
the person is placed on deferred adjudication community supervision |
|
|
under Section 5, Article 42.12, Code of Criminal Procedure, for an |
|
|
offense under Section 49.04, 49.045, 49.05, 49.06, or 49.065. For |
|
|
the purpose of enforcing this subsection, the court that enters an |
|
|
order under this subsection retains jurisdiction over the defendant |
|
|
until the date on which the device is no longer required to remain |
|
|
installed. To the extent of a conflict between this subsection and |
|
|
Section 13 [13(i)], Article 42.12, Code of Criminal Procedure, this |
|
|
subsection controls. |
|
|
(i) If a defendant otherwise required under Subsection (h) |
|
|
to have installed an ignition interlock device on the defendant's |
|
|
vehicle certifies to the court by affidavit that the defendant is |
|
|
not subject to that requirement because the defendant does not own |
|
|
or have access to a vehicle, the judge shall require the defendant |
|
|
to submit to ethyl alcohol monitoring under Subsection 13(o), |
|
|
Article 42.12, Code of Criminal Procedure, unless the judge |
|
|
determines the defendant is indigent. |
|
|
SECTION 5. (a) The Legislative Budget Board shall perform |
|
|
or contract for the performance of a study to analyze the efficacy |
|
|
of this Act in reducing recidivism and promoting public safety |
|
|
during the three-year period following the passage of this Act. |
|
|
(b) The Legislative Budget Board shall submit to the |
|
|
legislature two reports on the study conducted under this section |
|
|
along with any recommendations based on the results of the study. |
|
|
The first report must be submitted not later than December 1, 2016, |
|
|
and the second report must be submitted not later than December 1, |
|
|
2018. |
|
|
(c) This section expires January 1, 2019. |
|
|
SECTION 6. The change in law made by this Act applies only |
|
|
to a defendant who is placed on community supervision on or after |
|
|
the effective date of this Act, regardless of whether the offense |
|
|
for which the defendant is placed on community supervision is |
|
|
committed before, on, or after that date. |
|
|
SECTION 7. This Act takes effect September 1, 2015. |