86R2966 MEW-F
 
  By: Hughes S.B. No. 495
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the establishment, operation, and funding of
  victim-offender mediation programs; authorizing fees.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 1, Article 28.01, Code of Criminal
  Procedure, is amended to read as follows:
         Sec. 1.  The court may set any criminal case for a pre-trial
  hearing before it is set for trial upon its merits, and direct the
  defendant and the defendant's [his] attorney, if any of record, and
  the State's attorney, to appear before the court at the time and
  place stated in the court's order for a conference and hearing
  regardless of whether the defendant has been formally charged. The
  defendant must be present at the arraignment, and the defendant's 
  [his] presence is required during any pre-trial proceeding. The
  pre-trial hearing shall be to determine any of the following
  matters:
               (1)  Arraignment of the defendant, if such be
  necessary; and appointment of counsel to represent the defendant,
  if such be necessary;
               (2)  Pleadings of the defendant;
               (3)  Special pleas, if any;
               (4)  Exceptions to the form or substance of the
  indictment or information;
               (5)  Motions for continuance either by the State or
  defendant; provided that grounds for continuance not existing or
  not known at the time may be presented and considered at any time
  before the defendant announces ready for trial;
               (6)  Motions to suppress evidence--When a hearing on
  the motion to suppress evidence is granted, the court may determine
  the merits of said motion on the motions themselves, or upon
  opposing affidavits, or upon oral testimony, subject to the
  discretion of the court;
               (7)  Motions for change of venue by the State or the
  defendant; provided, however, that such motions for change of
  venue, if overruled at the pre-trial hearing, may be renewed by the
  State or the defendant during the voir dire examination of the jury;
               (8)  Discovery;
               (9)  Entrapment; [and]
               (10)  Motion for appointment of interpreter; and
               (11)  Motion to allow the defendant to enter a pretrial
  victim-offender mediation program established under Subchapter
  A-1, Chapter 56.
         SECTION 2.  Chapter 56, Code of Criminal Procedure, is
  amended by adding Subchapter A-1 to read as follows:
  SUBCHAPTER A-1.  PRETRIAL VICTIM-OFFENDER MEDIATION PROGRAM
         Art. 56.21.  AUTHORITY TO ESTABLISH PROGRAM.  (a)  The
  commissioners court of a county or governing body of a municipality
  may, in coordination with the office of the attorney representing
  the state in the county or municipality, establish a pretrial
  victim-offender mediation program for persons who:
               (1)  have been arrested for or charged with a
  misdemeanor under Title 7, Penal Code; and
               (2)  have not previously been convicted of a felony or a
  misdemeanor, other than a misdemeanor traffic offense punishable by
  fine only.
         (b)  A court that implements a program under this subchapter
  may adopt administrative rules and local rules of procedure as
  necessary or appropriate to implement or operate the program.
         (c)  The commissioners court of a county or governing body of
  a municipality that establishes a program under this subchapter
  may:
               (1)  allow for referral to the program of arrested
  persons described by Subsection (a) who have not yet been formally
  charged with an offense;
               (2)  adopt administrative rules and local rules of
  procedure as necessary or appropriate to implement or operate the
  program; and
               (3)  approve additional program requirements as
  recommended by the attorney representing the state.
         Art. 56.22.  PROGRAM. (a) A pretrial victim-offender
  mediation program established under Article 56.21 on or after
  September 1, 2019, must require:
               (1)  the designation of individual defendants who are
  eligible to participate in the program, based on standards
  established by Article 56.21 and any local standards approved by
  the commissioners court of the county or the governing body of the
  municipality, as applicable;
               (2)  the attorney representing the state to consent to
  the referral of a defendant's matter to mediation under the
  program;
               (3)  the consent of the victim to be obtained and
  documented in the record of the court by the attorney representing
  the state before the case may proceed to pretrial victim-offender
  mediation; and
               (4)  the defendant to enter into a binding mediation
  agreement in accordance with Article 56.23 that requires the
  defendant to take responsibility for the defendant's actions and
  addresses the specific circumstances of the defendant's actions,
  which may:
                     (A)  include an apology by the defendant; or
                     (B)  require the defendant to:
                           (i)  pay restitution to the victim;
                           (ii)  perform community service; or
                           (iii)  both pay restitution and perform
  community service.
         (b)  A court may elect to apply the provisions under
  Subsection (a) in implementing a pretrial victim-offender
  mediation program that was established by the commissioners court
  of a county or governing body of a municipality before September 1,
  2019.
         (c)  All communications made in a pretrial victim-offender
  mediation program are confidential and may not be introduced into
  evidence except in an open court proceeding instituted to determine
  the meaning of a mediation agreement.
         (d)  A pretrial victim-offender mediation program may
  require the staff and other resources of pretrial services
  departments and community supervision and corrections departments
  to assist the court or the attorney representing the state in
  monitoring the defendant's compliance with a mediation agreement
  reached through the program.
         (e)  A pretrial victim-offender mediation may be conducted
  by a court-appointed mediator who meets the training requirements
  provided by Sections 154.052(a) and (b), Civil Practice and
  Remedies Code, and has completed training in criminal justice
  mediation, or by any other appropriate person designated by the
  court.  Neither the attorney representing the state nor the
  attorney representing the defendant in the criminal action may
  serve as a mediator in the defendant's pretrial victim-offender
  mediation program.
         (f)  If a defendant enters a pretrial victim-offender
  mediation program, the court may defer the proceedings without
  accepting a plea of guilty or nolo contendere or entering an
  adjudication of guilt.  The court may not require the defendant to
  admit guilt or enter a plea of guilty or nolo contendere to enter
  the program.
         (g)  The case must be returned to the docket and proceed
  through the regular criminal justice system if:
               (1)  a pretrial victim-offender mediation does not
  result in a mediation agreement;
               (2)  the defendant fails to fulfill the terms of the
  mediation agreement successfully by the date specified in the
  mediation agreement; or
               (3)  the mediator determines, based on the mediator's
  training and experience, that:
                     (A)  the victim or defendant no longer wants to
  participate or cooperate; or
                     (B)  the mediation will be ineffective.
         (h)  If a case is returned to the docket under Subsection
  (g), the defendant retains all of the rights that the defendant
  possessed before entering the pretrial victim-offender mediation
  program under this subchapter. Notwithstanding any other law, for
  purposes of determining the duration and expiration of an
  applicable statute of limitation under Chapter 12, the running of
  the period of limitation is tolled while the defendant is enrolled
  in a program under this subchapter.
         (i)  If the defendant successfully completes the mediation
  agreement as represented to the court by the attorney representing
  the state, after notice to the attorney representing the state and a
  hearing at which the court determines that a dismissal of any
  indictment or information charging the defendant with the
  commission of the offense is in the best interest of justice, the
  court shall dismiss the criminal action against the defendant.
         (j)  The court or the attorney representing the state may
  extend the initial compliance period granted to the defendant.
         (k)  A determination by the court regarding whether the
  mediation agreement has been successfully completed is final and
  may not be appealed.
         (l)  If the defendant is not arrested or convicted of a
  subsequent felony or misdemeanor other than a misdemeanor traffic
  offense punishable by fine only on or before the first anniversary
  of the date the defendant successfully completed a mediation
  agreement under this subchapter, on the motion of the defendant,
  the court shall enter an order of nondisclosure of criminal history
  record information under Subchapter E-1, Chapter 411, Government
  Code, as if the defendant had received a discharge and dismissal
  under Article 42A.111, with respect to all records and files
  related to the defendant's arrest for the offense for which the
  defendant entered the pretrial victim-offender mediation program.
         Art. 56.23.  MEDIATION AGREEMENT. (a) A mediation
  agreement under this subchapter must be in writing and:
               (1)  signed by the defendant and the victim; and
               (2)  ratified by the attorney representing the state in
  the attorney's request for a court order to document and approve the
  mediation agreement for the record.
         (b)  A mediation agreement may require testing, counseling,
  and treatment of the defendant to address alcohol abuse, abuse of
  controlled substances, mental health, or anger management or any
  other service that is reasonably related to the offense for which
  the defendant was arrested or charged.
         (c)  A mediation agreement is not valid for more than one
  year after the date on which the mediation agreement is ratified
  unless the court and the attorney representing the state approve
  the extension of the agreement.
         (d)  A mediation agreement under this subchapter does not
  constitute a plea or legal admission of responsibility.
         Art. 56.24.  LEGISLATIVE REVIEW. The lieutenant governor
  and the speaker of the house of representatives may assign to
  appropriate legislative committees interim duties relating to the
  study, review, and evaluation of pretrial victim-offender
  mediation programs established under this subchapter, and those
  committees may make recommendations to the legislature for
  appropriate policies to monitor, improve, or provide state
  resources for those programs.
         Art. 56.25.  LOCAL REVIEW. The commissioners court of a
  county or governing body of a municipality may request a
  management, operations, or financial or accounting audit of a
  pretrial victim-offender mediation program established under this
  subchapter.
         Art. 56.26.  FEES. (a) A pretrial victim-offender
  mediation program established under this subchapter shall collect
  from a defendant in the program a reasonable program participation
  fee not to exceed $500 and may collect from the defendant an alcohol
  or controlled substance testing, counseling, and treatment fee in
  an amount necessary to cover the costs of the testing, counseling,
  or treatment, if such testing, counseling, or treatment is required
  by the mediation agreement.
         (b)  Fees collected under this article may be paid on a
  periodic basis or on a deferred payment schedule at the discretion
  of the judge, magistrate, or program director administering the
  pretrial victim-offender mediation program. The fees must be:
               (1)  based on the defendant's ability to pay; and
               (2)  used only for purposes specific to the program.
         Art. 56.27.  NOTICE. The office of an attorney representing
  the state that participates in a pretrial victim-offender mediation
  program established under this subchapter shall notify the public
  by posting information about the program on the office's website.
         SECTION 3.  Subchapter A, Chapter 102, Code of Criminal
  Procedure, is amended by adding Article 102.0179 to read as
  follows:
         Art. 102.0179.  COSTS ATTENDANT TO PRETRIAL VICTIM-OFFENDER
  MEDIATION. (a) A defendant who participates in a pretrial
  victim-offender mediation program established under Subchapter
  A-1, Chapter 56, on successful completion of the terms of the
  defendant's mediation agreement or on conviction, shall pay as
  court costs $15 plus an additional program participation fee as
  described by Article 56.26 in the amount prescribed by that
  article.
         (b)  The court clerk shall collect the costs imposed under
  this article. The clerk shall keep a separate record of any money
  collected under this article and shall pay any money collected to
  the county or municipal treasurer, as appropriate, or to any other
  official who discharges the duties commonly delegated to a
  treasurer, for deposit in a fund to be known as the county pretrial
  victim-offender mediation program fund or in a fund to be known as
  the municipal pretrial victim-offender mediation program fund, as
  appropriate.
         (c)  A county or municipality that collects court costs under
  this article shall use the money in a fund described by Subsection
  (b) exclusively for the maintenance of the pretrial victim-offender
  mediation program operated in the county or municipality.
         SECTION 4.  Chapter 54, Family Code, is amended by adding
  Section 54.035 to read as follows:
         Sec. 54.035.  VICTIM-OFFENDER MEDIATION. (a) The Texas
  Juvenile Justice Board by rule shall establish guidelines
  permitting victim-offender mediation programs to be implemented
  and administered by juvenile boards.
         (b)  In a mediation program authorized under this section,
  each victim to whom this section applies must be informed of the
  victim's right to request victim-offender mediation.
         (c)  Participation in a victim-offender mediation program
  under this section by a child and by a victim must be voluntary. If a
  child's case is forwarded to the office of the prosecuting attorney
  under Section 53.01, the prosecuting attorney must consent to the
  mediation in which the child may participate under the program.
         (d)  If an agreement is not reached between the victim and
  the child or if the child does not successfully complete the terms
  of the agreement, as determined by the juvenile court, the child's
  case shall proceed in accordance with the applicable provisions of
  this title.
         SECTION 5.  Section 57.002(a), Family Code, is amended to
  read as follows:
         (a)  A victim, guardian of a victim, or close relative of a
  deceased victim is entitled to the following rights within the
  juvenile justice system:
               (1)  the right to receive from law enforcement agencies
  adequate protection from harm and threats of harm arising from
  cooperation with prosecution efforts;
               (2)  the right to have the court or person appointed by
  the court take the safety of the victim or the victim's family into
  consideration as an element in determining whether the child should
  be detained before the child's conduct is adjudicated;
               (3)  the right, if requested, to be informed of
  relevant court proceedings, including appellate proceedings, and
  to be informed in a timely manner if those court proceedings have
  been canceled or rescheduled;
               (4)  the right to be informed, when requested, by the
  court or a person appointed by the court concerning the procedures
  in the juvenile justice system, including general procedures
  relating to:
                     (A)  the preliminary investigation and deferred
  prosecution of a case; and
                     (B)  the appeal of the case;
               (5)  the right to provide pertinent information to a
  juvenile court conducting a disposition hearing concerning the
  impact of the offense on the victim and the victim's family by
  testimony, written statement, or any other manner before the court
  renders its disposition;
               (6)  the right to receive information regarding
  compensation to victims as provided by Subchapter B, Chapter 56,
  Code of Criminal Procedure, including information related to the
  costs that may be compensated under that subchapter and the amount
  of compensation, eligibility for compensation, and procedures for
  application for compensation under that subchapter, the payment of
  medical expenses under Article [Section] 56.06, Code of Criminal
  Procedure, for a victim of a sexual assault, and when requested, to
  referral to available social service agencies that may offer
  additional assistance;
               (7)  the right to be informed, upon request, of
  procedures for release under supervision or transfer of the person
  to the custody of the Texas Department of Criminal Justice for
  parole, to participate in the release or transfer for parole
  process, to be notified, if requested, of the person's release,
  escape, or transfer for parole proceedings concerning the person,
  to provide to the Texas Juvenile Justice Department for inclusion
  in the person's file information to be considered by the department
  before the release under supervision or transfer for parole of the
  person, and to be notified, if requested, of the person's release or
  transfer for parole;
               (8)  the right to be provided with a waiting area,
  separate or secure from other witnesses, including the child
  alleged to have committed the conduct and relatives of the child,
  before testifying in any proceeding concerning the child, or, if a
  separate waiting area is not available, other safeguards should be
  taken to minimize the victim's contact with the child and the
  child's relatives and witnesses, before and during court
  proceedings;
               (9)  the right to prompt return of any property of the
  victim that is held by a law enforcement agency or the attorney for
  the state as evidence when the property is no longer required for
  that purpose;
               (10)  the right to have the attorney for the state
  notify the employer of the victim, if requested, of the necessity of
  the victim's cooperation and testimony in a proceeding that may
  necessitate the absence of the victim from work for good cause;
               (11)  the right to be present at all public court
  proceedings related to the conduct of the child as provided by
  Section 54.08, subject to that section; [and]
               (12)  for a victim to whom Section 54.035 applies, the
  right to request victim-offender mediation under that section; and
               (13)  any other right appropriate to the victim that a
  victim of criminal conduct has under Article 56.02 or 56.021, Code
  of Criminal Procedure.
         SECTION 6.  Subchapter C-1, Chapter 58, Family Code, is
  amended by adding Section 58.2561 to read as follows:
         Sec. 58.2561.  SEALING RECORDS ON COMPLETION OF
  VICTIM-OFFENDER MEDIATION PROGRAM.  (a)  Notwithstanding Sections
  58.253 and 58.255 and subject to Section 58.256(d), a juvenile
  court may order the sealing of records concerning a child alleged to
  have engaged in delinquent conduct or conduct indicating a need for
  supervision if the child successfully completed a victim-offender
  mediation program under Section 54.035.  The court may:
               (1)  immediately order the sealing of the records
  without a hearing; or
               (2)  hold a hearing to determine whether to seal the
  records.
         (b)  If the court orders the sealing of a child's records
  under Subsection (a), a prosecuting attorney or juvenile probation
  department may maintain until the child's 17th birthday a separate
  record of the child's name and date of birth, the allegation against
  the child, and the date the child successfully completed the
  victim-offender mediation program.  The prosecuting attorney or
  juvenile probation department, as applicable, shall send the record
  to the court as soon as practicable after the child's 17th birthday
  to be added to the child's other sealed records.
         SECTION 7.  Subchapter B, Chapter 102, Government Code, is
  amended by adding Section 102.0215 to read as follows:
         Sec. 102.0215.  ADDITIONAL COURT COSTS: CODE OF CRIMINAL
  PROCEDURE. A defendant who participates in a pretrial
  victim-offender mediation program established under Subchapter
  A-1, Chapter 56, Code of Criminal Procedure, shall pay on
  successful completion of the terms of the defendant's mediation
  agreement or on conviction, in addition to all other costs, to help
  fund pretrial victim-offender mediation programs established under
  that subchapter (Art. 102.0179, Code of Criminal Procedure) . . .
  $15 plus an additional program participation fee in an amount not to
  exceed $500.
         SECTION 8.  Subchapter A, Chapter 221, Human Resources Code,
  is amended by adding Section 221.013 to read as follows:
         Sec. 221.013.  MEDIATION MONITORING. The department shall
  monitor the success of victim-offender mediation programs
  established under Section 54.035, Family Code.
         SECTION 9.  (a)  Subchapter A-1, Chapter 56, Code of Criminal
  Procedure, as added by this Act, applies to a defendant who enters a
  pretrial victim-offender mediation program under that subchapter
  regardless of whether the defendant committed the offense for which
  the defendant enters the program before, on, or after the effective
  date of this Act.
         (b)  Article 102.0179, Code of Criminal Procedure, and
  Section 102.0215, Government Code, as added by this Act, apply only
  to an offense committed on or after the effective date of this Act.
  An offense committed before the effective date of this Act is
  governed by the law in effect on the date the offense was committed,
  and the former law is continued in effect for that purpose. For
  purposes of this subsection, an offense was committed before the
  effective date of this Act if any element of the offense was
  committed before that date.
         SECTION 10.  (a)  Not later than December 1, 2019, the Texas
  Juvenile Justice Board shall establish guidelines for
  victim-offender mediation programs as required by Section 54.035,
  Family Code, as added by this Act.
         (b)  Section 54.035, Family Code, as added by this Act,
  applies only to a victim-offender mediation under that section that
  occurs on or after January 1, 2020, regardless of whether the
  conduct that is the basis of the mediation occurs before, on, or
  after that date.
         SECTION 11.  This Act takes effect September 1, 2019.