By: Ellis S.B. No. 1686

A BILL TO BE ENTITLED

AN ACT

Relating to revocation of community supervision for use or possession of small amounts of marihuana.

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

SECTION 1. Sections 21 Article 42.12, Code of Criminal Procedure, are amended to read as follows:

(a) At any time during the period of community supervision the judge may issue a warrant for violation of any of the conditions of the community supervision and cause a defendant convicted under Section 43.02, Penal Code, or under Chapter 481, Health and Safety Code, or Sections 485.031 through 485.035, Health and Safety Code, or placed on deferred adjudication after being charged with one of those offenses, to be subject to the control measures of Section 81.083, Health and Safety Code, and to the court-ordered-management provisions of Subchapter G, Chapter 81, Health and Safety Code.

(b) At any time during the period of community supervision the judge may issue a warrant for violation of any of the conditions of the community supervision and cause the defendant to be arrested. Any supervision officer, police officer or other officer with power of arrest may arrest such defendant with or without a warrant upon the order of the judge to be noted on the docket of the court. Subject to Subsection (b-1), a defendant arrested under this subsection may be detained in the county jail or other appropriate place of confinement until he can be taken before the judge for a determination regarding the alleged violation. The arresting officer shall immediately report the arrest and detention to the judge.

(b-1) Without any unnecessary delay, but not later than 48 hours after the person is arrested, the arresting officer or the person with custody of the arrested person shall take the arrested person before the judge who ordered the arrest for the alleged violation of a condition of community supervision or, if the judge is unavailable, before a magistrate of the county in which the person was arrested. The judge or magistrate shall perform all appropriate duties and may exercise all appropriate powers as provided by Article 15.17 with respect to an arrest for a new criminal offense, except that only the judge who ordered the arrest for the alleged violation may authorize the person's release on bail. The arrested person may be taken before the judge or magistrate under this subsection by means of an electronic broadcast system as provided by and subject to the requirements of Article 15.17.

(b-2) If the defendant has not been released on bail as permitted under Subsection (b-1), on motion by the defendant the judge who ordered the arrest for the alleged violation of a condition of community supervision shall cause the defendant to be brought before the judge for a hearing on the alleged violation within 20 days of filing of said motion, and after a hearing without a jury, may either continue, extend, modify, or revoke the community supervision. A judge may revoke the community supervision of a defendant who is imprisoned in a penal institution without a hearing if the defendant in writing before a court of record in the jurisdiction where imprisoned waives his right to a hearing and to counsel, affirms that he has nothing to say as to why sentence should not be pronounced against him, and requests the judge to revoke community supervision and to pronounce sentence. In a felony case, the state may amend the motion to revoke community supervision any time up to seven days before the date of the revocation hearing, after which time the motion may not be amended except for good cause shown, and in no event may the state amend the motion after the commencement of taking evidence at the hearing. The judge may continue the hearing for good cause shown by either the defendant or the state.

(c) The court may not revoke the community supervision of a defendant if, at the community supervision revocation hearing, the court finds that the only evidence supporting the alleged violation of a condition of community supervision is the uncorroborated results of a polygraph examination. In a community supervision revocation hearing at which it is alleged only that the defendant violated the conditions of community supervision by failing to pay compensation paid to appointed counsel, community supervision fees, or court costs, the state must prove by a preponderance of the evidence that the defendant was able to pay and did not pay as ordered by the judge. The court may order a community supervision and corrections department to obtain information pertaining to the factors listed under Article 42.037(h) and include that information in the report required under Section 9(a) or a separate report, as the court directs.

(d) A defendant has a right to counsel at a hearing under this section. The court shall appoint counsel for an indigent defendant in accordance with the procedures adopted under Article 26.04.

(e) A court retains jurisdiction to hold a hearing under Subsection (b-2) and to revoke, continue, or modify community supervision, regardless of whether the period of community supervision imposed on the defendant has expired, if before the expiration the attorney representing the state files a motion to revoke, continue, or modify community supervision and a capias is issued for the arrest of the defendant.

(f) A court may not revoke the community supervision of a defendant if, at the community supervision revocation hearing, the court finds that the only evidence supporting the alleged violation of a condition of community supervision involves conduct that would constitute a misdemeanor under Sec. 481.121 of the Health & Safety Code, unless there is sufficient evidence of an additional violation other than failing to pay compensation paid to appointed counsel, community supervision fees, or court costs when the state has proven by a preponderance of the evidence that the defendant was able to pay and did not pay as ordered by the judge.