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.