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A BILL TO BE ENTITLED
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AN ACT
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relating to the punishment for certain possession offenses under |
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the Texas Controlled Substances Act; changing eligibility for and |
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conditions of community supervision. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Articles 42A.551(a) and (d), Code of Criminal |
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Procedure, are amended to read as follows: |
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(a) Except as otherwise provided by Subsection (b) [or (c)], |
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on conviction of a state jail felony under Section [481.115(b),
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481.1151(b)(1), 481.116(b), 481.1161(b)(3), 481.121(b)(3), or] |
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481.129(g)(1), Health and Safety Code, that is punished under |
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Section 12.35(a), Penal Code, the judge shall suspend the |
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imposition of the sentence and place the defendant on community |
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supervision. |
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(d) On conviction of a state jail felony punished under |
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Section 12.35(a), Penal Code, other than a state jail felony listed |
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in Subsection (a) or defined as a possession offense under |
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Subchapter L-1, and subject to Subsection (e), the judge may: |
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(1) suspend the imposition of the sentence and place |
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the defendant on community supervision; or |
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(2) order the sentence to be executed: |
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(A) in whole; or |
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(B) in part, with a period of community |
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supervision to begin immediately on release of the defendant from |
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confinement. |
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SECTION 2. Chapter 42A, Code of Criminal Procedure, is |
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amended by adding Subchapter L-1 to read as follows: |
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SUBCHAPTER L-1. COMMUNITY SUPERVISION FOR CERTAIN POSSESSION |
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OFFENSES |
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Art. 42A.581. DEFINITION. In this subchapter, "possession |
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offense" means an offense under Section 481.115, 481.1151, 481.116, |
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481.1161, 481.117, 481.118, 481.119(b), 481.121, 483.041(a), or |
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485.031, Health and Safety Code, that is punishable as a felony of |
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the third degree or state jail felony. |
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Art. 42A.582. PLACEMENT ON COMMUNITY SUPERVISION; |
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EXECUTION OF SENTENCE. (a) On conviction of a possession offense, |
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the judge shall suspend the imposition of the sentence and place the |
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defendant on community supervision, except that the judge may order |
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the sentence to be executed if: |
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(1) for a state jail felony, the defendant has been |
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previously convicted of a possession offense; or |
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(2) for a felony of the third degree: |
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(A) the judge determines by a preponderance of |
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the evidence that the defendant: |
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(i) is a danger to the safety of others; or |
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(ii) possessed the substance with the |
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intent to deliver the substance; |
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(B) the defendant has been previously convicted |
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of a felony offense other than: |
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(i) a possession offense; or |
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(ii) a felony offense punished under |
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Section 12.44, Penal Code; |
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(C) the defendant is convicted in the same |
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proceeding of an additional felony offense, other than: |
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(i) a possession offense; or |
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(ii) a felony offense punished under |
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Section 12.44, Penal Code; or |
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(D) the judge determines by clear and convincing |
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evidence, based on an evidence-based drug and alcohol assessment, |
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that the defendant is unlikely to benefit from participation in a |
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course of treatment in a drug treatment program or facility, and the |
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defendant has been previously: |
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(i) convicted on two or more occasions of a |
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possession offense; or |
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(ii) discharged from a drug court program |
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established under Chapter 123, Government Code, after failing to |
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successfully complete the program. |
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(b) A judge who makes a determination described by |
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Subsection (a)(2)(A) or (D) shall enter the reasons for making that |
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determination in the record of the proceeding. |
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(c) The judge may suspend in whole or in part the imposition |
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of any fine imposed on a conviction if a defendant is placed on |
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community supervision under this subchapter. |
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Art. 42A.583. CONDITIONS OF COMMUNITY SUPERVISION. (a) A |
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court granting community supervision under this subchapter shall |
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require as a condition of community supervision that the defendant: |
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(1) submit to an evidence-based risks and needs |
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screening and evaluation procedure approved by the community |
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justice assistance division of the Texas Department of Criminal |
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Justice, including a procedure developed under Section 509.003(d), |
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Government Code; |
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(2) if the evaluation indicates a need for treatment, |
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participate in a prescribed course of treatment in a drug treatment |
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program or facility: |
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(A) licensed or approved by the Department of |
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State Health Services; or |
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(B) that complies with standards established by |
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the community justice assistance division of the Texas Department |
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of Criminal Justice; and |
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(3) pay a fee to cover all or part of the cost of the |
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course of treatment based on the defendant's ability to pay. |
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(b) A course of treatment under Subsection (a)(2) may |
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include: |
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(1) treatment in a faith-based program; |
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(2) outpatient treatment; |
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(3) halfway house treatment; |
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(4) narcotic replacement therapy prescribed by a |
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physician; |
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(5) drug education or prevention courses; and |
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(6) inpatient or residential drug treatment to address |
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special detoxification, relapse, or severe dependence issues. |
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(c) In referring a defendant to a course of treatment under |
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Subsection (a)(2) and imposing conditions for participation in the |
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course of treatment, the judge shall order the defendant to |
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participate in the level of treatment that the evaluation indicates |
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is appropriate for the defendant to achieve: |
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(1) the outcome objectives prescribed by the drug |
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treatment program or facility; and |
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(2) the recommendations of a drug treatment |
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professional. |
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(d) A court granting community supervision under this |
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subchapter may require as a condition of that community |
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supervision, in addition to any required participation in a course |
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of treatment under Subsection (a)(2) and other appropriate |
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conditions, that the defendant participate in: |
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(1) vocational training; |
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(2) family counseling; |
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(3) literacy training; or |
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(4) community service. |
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Art. 42A.584. VIOLATION OF CONDITIONS OF COMMUNITY |
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SUPERVISION. (a) Notwithstanding Article 42A.751(b), if a |
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defendant placed on community supervision under this subchapter |
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violates the terms of that supervision by committing another |
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possession offense or a misdemeanor offense involving the |
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possession of a controlled substance or by violating any drug |
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treatment-related condition of community supervision, the judge |
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may: |
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(1) use graduated sanctions and incentives offered to |
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a defendant by the community supervision and corrections department |
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supervising the defendant or the courts served by that department, |
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including: |
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(A) global positioning or another form of |
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electronic monitoring; |
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(B) mental health treatment or cognitive and |
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behavioral programs; |
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(C) alcohol or substance abuse monitoring and |
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testing; |
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(D) faith-based community programs and |
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resources, including mentoring programs; |
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(E) placing the defendant under the supervision |
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of a supervision officer with a reduced or specialized caseload and |
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subjecting the defendant to increased home visits and field |
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contacts, if sufficient resources are available; |
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(F) strategies to reduce the number of technical |
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violations committed by the defendant; and |
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(G) increased coordination between the court and |
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the community supervision and corrections department supervising |
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the defendant; and |
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(2) revoke the community supervision of the defendant |
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if the judge determines by a preponderance of the evidence that the |
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defendant: |
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(A) poses a danger to the safety of others; or |
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(B) is unlikely to benefit from a course of |
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treatment in a drug treatment program or facility. |
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(b) A judge who modifies a defendant's conditions of |
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community supervision in response to the defendant's commission of |
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an offense or violation of a treatment-related condition of |
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community supervision under Subsection (a) shall consider imposing |
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one or more of the following additional conditions of community |
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supervision: |
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(1) intensified drug treatment; |
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(2) vocational training; |
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(3) family counseling; |
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(4) literacy education; |
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(5) community service; |
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(6) intensive supervision; and |
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(7) confinement under Subchapter M in an intermediate |
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sanction facility operated by or under contract with the Texas |
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Department of Criminal Justice for a period not to exceed 120 days. |
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Art. 42A.585. DETERMINATION OF BENEFIT OF TREATMENT. In |
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making a determination under this subchapter as to whether a |
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defendant is unlikely to benefit from participation in a course of |
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treatment in a drug treatment program or facility, the judge shall |
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consider whether the defendant has previously: |
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(1) committed a serious violation of the rules of a |
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drug treatment program or facility; or |
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(2) repeatedly committed violations of the rules of a |
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drug treatment program or facility to an extent that inhibited the |
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defendant's ability to function in the program or facility. |
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Art. 42A.586. DISMISSAL. (a) After successful completion |
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of a term of community supervision imposed under this subchapter, |
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including completion of any required course of treatment in a drug |
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treatment program or facility, a defendant may petition the court |
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for dismissal of the charges. |
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(b) If the judge, after providing notice and giving |
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attorneys for the defendant and the state an opportunity to be |
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heard, determines that the defendant substantially complied with |
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the conditions of community supervision and successfully completed |
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any required course of treatment, the judge shall discharge the |
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defendant, set aside the verdict or permit the defendant to |
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withdraw the plea, and dismiss the accusation, complaint, |
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information, or indictment in the manner provided by Article |
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42A.701. |
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SECTION 3. Subchapter E-1, Chapter 411, Government Code, is |
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amended by adding Section 411.0732 to read as follows: |
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Sec. 411.0732. PROCEDURE FOR COMMUNITY SUPERVISION |
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FOLLOWING CONVICTION; SET-ASIDE CONVICTIONS FOR CERTAIN FELONY |
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POSSESSION OFFENSES. (a) This section applies only to a person |
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who, on conviction of a possession offense, is placed on community |
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supervision under Subchapter L-1, Chapter 42A, Code of Criminal |
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Procedure, and with respect to whom the conviction is subsequently |
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set aside by the court under Article 42A.701(f) of that chapter. |
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(b) Notwithstanding any other provision of this subchapter |
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or Subchapter F, a person described by Subsection (a) who satisfies |
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the requirements of Section 411.074 may petition the court that |
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placed the person on community supervision for an order of |
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nondisclosure of criminal history record information under this |
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section. |
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(c) After notice to the state, an opportunity for a hearing, |
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and a determination that the person is entitled to file the petition |
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and that issuance of the order is in the best interest of justice, |
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the court shall issue an order prohibiting criminal justice |
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agencies from disclosing to the public criminal history record |
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information related to the offense giving rise to the community |
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supervision. |
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(d) A person may petition the court that placed the person |
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on community supervision for an order of nondisclosure of criminal |
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history record information under this section only after the fifth |
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anniversary of the date the conviction is set aside. |
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SECTION 4. Chapter 509, Government Code, is amended by |
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adding Section 509.018 to read as follows: |
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Sec. 509.018. ANNUAL REPORT ON COMMUNITY SUPERVISION WITH |
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DRUG TREATMENT. (a) Not later than December 1 of each year, the |
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Texas Department of Criminal Justice shall study and report to the |
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legislature on the effectiveness and financial impact to the state |
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during the preceding state fiscal year of placing defendants on |
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community supervision with drug treatment for a felony possession |
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offense under Subchapter L-1, Chapter 42A, Code of Criminal |
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Procedure. |
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(b) The study and report must include an analysis of: |
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(1) the implementation of Subchapter L-1, Chapter 42A, |
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Code of Criminal Procedure, including the amount of cost savings |
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the state realizes through that implementation; |
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(2) the adequacy of funding available for operation of |
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the programs described by Subchapter L-1, Chapter 42A, Code of |
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Criminal Procedure; |
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(3) the effect of implementing Subchapter L-1, Chapter |
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42A, Code of Criminal Procedure, with respect to: |
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(A) incarceration costs incurred by the state and |
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local governments, including the cost of constructing prisons and |
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jails; |
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(B) the recidivism rate among defendants placed |
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on community supervision under Subchapter L-1, Chapter 42A, Code of |
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Criminal Procedure, compared with other defendants; and |
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(C) the number of defendants placed on community |
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supervision under Subchapter L-1, Chapter 42A, Code of Criminal |
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Procedure, who utilize state welfare benefits, compared with other |
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defendants; and |
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(4) other effects of or issues with implementing |
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Subchapter L-1, Chapter 42A, Code of Criminal Procedure, that are |
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identified by the Texas Department of Criminal Justice. |
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SECTION 5. Article 42A.551(c), Code of Criminal Procedure, |
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is repealed. |
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SECTION 6. (a) In a criminal action under Section 481.115, |
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481.1151, 481.116, 481.1161, 481.117, 481.118, 481.119(b), |
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481.121, 483.041(a), or 485.031, Health and Safety Code, pending on |
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or commenced on or after the effective date of this Act, for an |
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offense committed before the effective date of this Act, the |
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defendant, if adjudged guilty, shall be assessed the punishment |
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under Subchapter L-1, Chapter 42A, Code of Criminal Procedure, as |
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added by this Act, if the offense is a possession offense described |
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by Article 42A.581, Code of Criminal Procedure, as added by this |
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Act, and the defendant meets the eligibility requirements under |
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that subchapter and other law and so elects by written motion filed |
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with the trial court before the sentencing hearing begins. |
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(b) If the defendant does not make the election under |
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Subsection (a) of this section, punishment is governed by the law in |
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effect on the date the offense was committed, and the former law is |
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continued in effect for that purpose. |
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SECTION 7. The change in law made by Section 411.0732, |
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Government Code, as added by this Act, applies to a person whose |
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conviction for a possession offense is set aside under Article |
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42A.701(f), Code of Criminal Procedure, on or after the effective |
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date of this Act, regardless of whether the offense for which the |
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person was convicted was committed before, on, or after the |
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effective date of this Act. |
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SECTION 8. The Texas Department of Criminal Justice shall |
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submit to the legislature the initial report required by Section |
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509.018, Government Code, as added by this Act, not later than |
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December 1, 2020. |
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SECTION 9. This Act takes effect September 1, 2019. |