84R10587 GCB-D

By: Canales H.B. No. 2907

A BILL TO BE ENTITLED

AN ACT

relating to allowing deferred adjudication community supervision for first-time offenders charged with certain intoxication offenses, requiring the use of an ignition interlock device on conviction of or placement on deferred adjudication for certain intoxication offenses, and authorizing ethyl alcohol monitoring as a condition of community supervision for certain intoxication offenses; imposing a fee.

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

SECTION 1. Section 2, Article 42.12, Code of Criminal Procedure, is amended by adding Subdivision (5) to read as follows:

(5) "Ethyl alcohol monitoring device" means:

(A) a device worn by the defendant that detects ethyl alcohol in the defendant's perspiration through transdermal testing; or

(B) a portable ethyl alcohol detection device carried by the defendant that:

(i) requires the defendant at specified or random intervals to submit a breath sample;

(ii) analyzes and records the sample;

(iii) transmits the results of the analysis; and

(iv) is capable by facial recognition technology or other technological means of verifying that the breath sample was provided by the defendant.

SECTION 2. Section 5, Article 42.12, Code of Criminal Procedure, is amended by amending Subsection (d) and adding Subsection (d-1) to read as follows:

(d) In all other cases the judge may grant deferred adjudication unless:

(1) the defendant is charged with an offense:

(A) under Section 49.07 or 49.08 [Sections 49.04-49.08], Penal Code; [or]

(B) under Section 49.04, 49.045, 49.05, 49.06, or 49.065, Penal Code, if it is shown that the defendant has been previously convicted of or placed on deferred adjudication for an offense under any of those sections or under Section 49.07 or 49.08, Penal Code; or

(C) for which punishment may be increased under Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any one of those subsections;

(2) the defendant:

(A) is charged with an offense under Section 21.11, 22.011, or 22.021, Penal Code, regardless of the age of the victim, or a felony described by Section 13B(b) of this article; and

(B) has previously been placed on community supervision for any offense under Paragraph (A) of this subdivision;

(3) the defendant is charged with an offense under:

(A) Section 21.02, Penal Code; or

(B) Section 22.021, Penal Code, that is punishable under Subsection (f) of that section or under Section 12.42(c)(3) or (4), Penal Code; or

(4) the defendant is charged with an offense under Section 19.02, Penal Code, except that the judge may grant deferred adjudication on determining that the defendant did not cause the death of the deceased, did not intend to kill the deceased or another, and did not anticipate that a human life would be taken.

(d-1) For a defendant charged with an offense under Section 49.04, 49.045, 49.05, 49.06, or 49.065, Penal Code, the judge may defer adjudication and place the defendant on community supervision only if, at the time of the offense for which the defendant was arrested, the defendant:

(1) did not cause a traffic accident or the injury or death of another;

(2) if requested by a peace officer, provided a blood, breath, or urine specimen and the analysis of the specimen showed an alcohol concentration lower than 0.15 at the time the analysis was performed; and

(3) was not charged with another offense, other than a Class C misdemeanor, arising from the same incident as the offense under Section 49.04, 49.045, 49.05, 49.06, or 49.065.

SECTION 3. Section 13, Article 42.12, Code of Criminal Procedure, is amended by amending Subsections (a), (f), (g), (h), (i), and (n) and adding Subsection (o) to read as follows:

(a) A judge placing [granting community supervision to] a defendant on community supervision for [convicted of] an offense under Chapter 49, Penal Code, shall require as a condition of community supervision that the defendant submit to:

(1) not less than 72 hours of continuous confinement in county jail if the defendant was punished under Section 49.09(a), Penal Code; not less than five days of confinement in county jail if the defendant was punished under Section 49.09(a), Penal Code, and was subject to Section 49.09(h), Penal Code; not less than 10 days of confinement in county jail if the defendant was punished under Section 49.09(b) or (c), Penal Code; or not less than 30 days of confinement in county jail if the defendant was convicted under Section 49.07, Penal Code; and

(2) an evaluation by a supervision officer or by a person, program, or facility approved by the Department of State Health Services [Texas Commission on Alcohol and Drug Abuse] for the purpose of having the facility prescribe and carry out a course of conduct necessary for the rehabilitation of the defendant's drug or alcohol dependence condition.

(f) If a judge places [grants community supervision to] a defendant on community supervision for [convicted of] an offense under Sections 49.04-49.08, Penal Code, and if before receiving community supervision the defendant has not submitted to an evaluation under Section 9 of this article, the judge shall require the defendant to submit to the evaluation as a condition of community supervision. If the evaluation indicates to the judge that the defendant is in need of treatment for drug or alcohol dependency, the judge shall require the defendant to submit to that treatment as a condition of community supervision in a program or facility approved or licensed by the Department of State Health Services [Texas Commission on Alcohol and Drug Abuse] or in a program or facility that complies with standards established by the community justice assistance division of the Texas Department of Criminal Justice, after consultation by the division with the department [commission].

(g) A jury that recommends that a defendant be placed on community supervision for [a person convicted of] an offense under Sections 49.04-49.08, Penal Code, may recommend that any driver's license issued to the defendant under Chapter 521, Transportation Code, not be suspended. This subsection does not apply to a defendant [person] punished under Section 49.09(a) or (b), Penal Code, and subject to Section 49.09(h) of that code.

(h) The judge shall require [If] a defendant placed on community supervision for [person convicted of] an offense under Sections 49.04-49.08, Penal Code, [is placed on community supervision, the judge shall require,] as a condition of the community supervision, to [that the defendant] attend and successfully complete before the 181st day after the day community supervision is granted an educational program jointly approved by the Department of State Health Services [Texas Commission on Alcohol and Drug Abuse], the Department of Public Safety, the Traffic Safety Section of the Texas Department of Transportation, and the community justice assistance division of the Texas Department of Criminal Justice designed to rehabilitate persons who have driven while intoxicated. The Department of State Health Services [Texas Commission on Alcohol and Drug Abuse] shall publish the jointly approved rules and shall monitor, coordinate, and provide training to persons providing the educational programs. The Department of State Health Services [Texas Commission on Alcohol and Drug Abuse] is responsible for the administration of the certification of approved educational programs and may charge a nonrefundable application fee for the initial certification of approval and for renewal of a certificate. The judge may waive the educational program requirement or may grant an extension of time to successfully complete the program that expires not later than one year after the beginning date of the defendant's [person's] community supervision, however, if the defendant by a motion in writing shows good cause. In determining good cause, the judge may consider but is not limited to: the defendant's school and work schedule, the defendant's health, the distance that the defendant must travel to attend an educational program, and the fact that the defendant resides out of state, has no valid driver's license, or does not have access to transportation. The judge shall set out the finding of good cause for waiver in the judgment. If a defendant is required, as a condition of community supervision, to attend an educational program or if the court waives the educational program requirement, the court clerk shall immediately report that fact to the Department of Public Safety, on a form prescribed by the department, for inclusion in the defendant's [person's] driving record. If the court grants an extension of time in which the defendant [person] may complete the program, the court clerk shall immediately report that fact to the Department of Public Safety on a form prescribed by the department. The report must include the beginning date of the defendant's [person's] community supervision. Upon the defendant's [person's] successful completion of the educational program, the defendant's [person's] instructor shall give notice to the Department of Public Safety for inclusion in the defendant's [person's] driving record and to the community supervision and corrections department. The community supervision and corrections department shall then forward the notice to the court clerk for filing. If the Department of Public Safety does not receive notice that a defendant required to complete an educational program has successfully completed the program within the period required by this section, as shown on department records, the department shall revoke the defendant's driver's license, permit, or privilege or prohibit the defendant [person] from obtaining a license or permit, as provided by Sections 521.344(e) and (f), Transportation Code. The Department of Public Safety may not reinstate a license suspended under this subsection unless the defendant [person] whose license was 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 remit all fees collected under this subsection to the comptroller for deposit in the general revenue fund. This subsection does not apply to a defendant if a jury recommends community supervision for the defendant and also recommends that the defendant's driver's license not be suspended.

(i)(1) If a defendant is placed on community supervision for [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 operation of the motor vehicle if ethyl alcohol is detected in the breath of the operator and that the defendant not operate any motor vehicle that is not equipped with that device.

(2) [If it is shown on the trial of the offense that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, or if the person is convicted of an offense under Sections 49.04-49.06, Penal Code, and punished under Section 49.09(a) or (b), Penal Code, or of a second or subsequent offense under Section 49.07 or 49.08, Penal Code, and the person after conviction of either offense is placed on community supervision, the court shall require as a condition of community supervision that the defendant have the device installed on the appropriate vehicle and that the defendant not operate any motor vehicle unless the vehicle is equipped with that device.] Before placing a defendant on community supervision for [a person 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 conviction under Sections 49.04-49.07, Penal Code, or one previous 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 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 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.

(5) If the court orders a device under this subsection, the [The] court shall require the defendant to obtain 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 been installed on the appropriate vehicle and order the device to 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 vehicle. This employment exemption does not apply, however, if the business entity that owns the vehicle is owned or controlled by the 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 conviction under Section 49.04, 49.045, 49.05, 49.06, 49.07, or 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 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.