81R2257 PEP-F
By: Ellis, et al. S.B. No. 1118
A BILL TO BE ENTITLED
AN ACT
relating to community supervision for certain drug possession
offenses and to a person's eligibility for an order of
nondisclosure following a term of community supervision for any of
those offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 15(a)(2), Article 42.12, Code of
Criminal Procedure, is amended to read as follows:
(2) On conviction of a state jail felony punished
under Section 12.35(a), Penal Code, [other than a state jail felony
listed in Subdivision (1),] the judge may suspend the imposition of
the sentence and place the defendant on community supervision or
may order the sentence to be executed.
SECTION 2. Article 42.12, Code of Criminal Procedure, is
amended by adding Section 15B to read as follows:
Sec. 15B. COMMUNITY SUPERVISION FOR POSSESSION OF
CONTROLLED SUBSTANCE. (a) In this section, "drug possession
offense" means an offense under:
(1) Section 481.115, 481.116, 481.117, 481.118,
481.119(b), 483.041(a), or 485.031, Health and Safety Code, that is
punishable as a felony of the third degree or as any lower category
of offense;
(2) Section 481.1151, Health and Safety Code, that is
punishable as a state jail felony; or
(3) Section 481.121, Health and Safety Code, that is
punishable as a Class A misdemeanor or as any lower category of
offense.
(b) On conviction of a drug possession offense, the judge
shall suspend the imposition of the sentence and place the
defendant on community supervision, except that the judge may order
the sentence to be executed if:
(1) the judge determines by a preponderance of the
evidence that the defendant is a danger to the safety of others;
(2) the defendant has been previously convicted of an
offense other than:
(A) a drug possession offense; or
(B) an offense under the Transportation Code
punishable by fine only or an offense related to a pedestrian or the
parking of a motor vehicle punishable by fine only;
(3) the defendant is convicted in the same proceeding
of an additional offense, other than:
(A) a drug possession offense; or
(B) an offense under the Transportation Code
punishable by fine only or an offense related to a pedestrian or the
parking of a motor vehicle punishable by fine only; or
(4) the judge determines by clear and convincing
evidence, based on an evidence-based drug and alcohol assessment,
that the defendant is unlikely to benefit from participation in a
drug treatment program, and the defendant has previously been:
(A) convicted on two or more occasions of a drug
possession offense; or
(B) discharged from a drug court program
established under Chapter 469, Health and Safety Code, after
failing to successfully complete the program.
(c) A judge who determines under Subsection (b) that a
defendant is a danger to the safety of others or is unlikely to
benefit from participation in a drug treatment program shall enter
reasons for making that determination in the record of the
proceeding.
(d) The judge may suspend wholly or partly the imposition of
any fine imposed on a conviction if a defendant is placed on
community supervision under this section.
(e) A court granting community supervision under this
section shall require as a condition of community supervision that
the defendant:
(1) submit to an evidence-based risks and needs
screening and evaluation procedure approved by the community
justice assistance division of the Texas Department of Criminal
Justice, including a procedure developed under Section 509.003(d),
Government Code;
(2) if the evaluation indicates a need for treatment,
participate in a prescribed course of treatment in a program or
facility:
(A) licensed or approved by the Department of
State Health Services; or
(B) that complies with standards established by
the community justice assistance division of the Texas Department
of Criminal Justice; and
(3) pay a fee to cover all or part of the cost of the
course of treatment based on the defendant's ability to pay.
(f) A course of treatment under Subsection (e)(2) may
include:
(1) treatment in a faith-based program;
(2) outpatient treatment;
(3) halfway house treatment;
(4) narcotic replacement therapy;
(5) drug education or prevention courses; and
(6) inpatient or residential drug treatment to address
special detoxification, relapse, or severe dependence issues.
(g) In referring a defendant to a course of treatment in a
program described by Subsection (e)(2) and imposing conditions for
participation in the program, the judge shall order the defendant
to participate in the level of care that is the least restrictive
and most cost-effective to achieve:
(1) the outcome objectives prescribed by the program;
and
(2) the recommendations of a treatment professional.
(h) A court granting community supervision under this
section may require as a condition of community supervision, in
addition to the drug treatment program and other appropriate
conditions, that the defendant participate in:
(1) vocational training;
(2) family counseling;
(3) literacy training; or
(4) community service.
(i) Notwithstanding Section 21(b), if a defendant placed on
community supervision under this section violates the terms of that
supervision by committing another drug possession offense or by
violating any treatment-related condition of supervision, the
judge may:
(1) use graduated sanctions and incentives offered to
a defendant by the community supervision and corrections department
supervising the defendant or the courts served by that department,
including:
(A) global positioning or another form of
electronic monitoring;
(B) mental health treatment or cognitive and
behavioral programs;
(C) alcohol or substance abuse monitoring and
testing;
(D) faith-based community programs and
resources, including mentoring programs;
(E) a reduced or specialized caseload for the
supervision officer and increased home visits and field contacts by
the officer;
(F) strategies to reduce the number of technical
violations committed by the defendant; and
(G) increased coordination between the court and
the community supervision and corrections department supervising
the defendant; and
(2) revoke the community supervision of the defendant
if the judge determines by a preponderance of the evidence that the
defendant:
(A) poses a danger to the safety of others; or
(B) is unlikely to benefit from participation in
a drug treatment program.
(j) A judge who modifies a defendant's conditions of
supervision in response to the defendant's commission of another
drug possession offense or violation of a treatment-related
condition of supervision shall consider imposing one or more of the
following additional conditions of supervision:
(1) intensified drug treatment;
(2) vocational training;
(3) family counseling;
(4) literacy education;
(5) community service;
(6) intensive supervision; and
(7) confinement under Section 18 in an intermediate
sanction facility operated by or under contract with the Texas
Department of Criminal Justice for a period not to exceed 120 days.
(k) In making a determination under this section as to
whether a defendant is unlikely to benefit from participation in a
drug treatment program, the judge shall consider whether the
defendant has previously:
(1) committed a serious violation of the rules of a
drug treatment program; or
(2) repeatedly committed violations of the rules of a
drug treatment program to an extent that inhibited the defendant's
ability to function in the program.
(l) After successful completion of a term of community
supervision imposed under this section, including completion of a
drug treatment program, a defendant may petition the court for
dismissal of the charges. If the judge, after providing notice and
giving attorneys for the defendant and the state an opportunity to
be heard, determines that the defendant substantially complied with
the conditions of supervision and successfully completed the drug
treatment program, the judge shall discharge the defendant, set
aside the verdict or permit the defendant to withdraw the plea, and
dismiss the accusation, complaint, information, or indictment in
the manner provided by Section 20(a).
SECTION 3. Section 411.081, Government Code, is amended by
adding Subsection (d-1) and amending Subsection (e) to read as
follows:
(d-1) Notwithstanding any other provision of this
subchapter, if a person is placed on community supervision under
Section 15B, Article 42.12, Code of Criminal Procedure, and
subsequently receives a discharge and dismissal under Section
15B(l), Article 42.12, Code of Criminal Procedure, and satisfies
the requirements of Subsection (e), the person may petition the
court that placed the defendant on community supervision for an
order of nondisclosure under this subsection. After notice to the
state and a hearing on whether the person is entitled to file the
petition and issuance of the order is in the best interest of
justice, the court shall issue an order prohibiting criminal
justice agencies from disclosing to the public criminal history
record information related to the offense giving rise to the
community supervision. A criminal justice agency may disclose
criminal history record information that is the subject of the
order only to other criminal justice agencies, for criminal justice
purposes, an agency or entity listed in Subsection (i), or the
person who is the subject of the order. A person may petition the
court that placed the person on community supervision for an order
of nondisclosure on payment of a $28 fee to the clerk of the court in
addition to any other fee that generally applies to the filing of a
civil petition. The payment may be made only after:
(1) the discharge and dismissal, if the offense for
which the person was placed on community supervision was a
misdemeanor; or
(2) the fifth anniversary of the discharge and
dismissal, if the offense for which the person was placed on
community supervision was a felony.
(e) A person is entitled to petition the court under
Subsection (d) or (d-1) only if during the period of the community
supervision, including deferred adjudication community
supervision, for which the order of nondisclosure is requested and
during the applicable period described by Subsection (d)(1), (2),
or (3) or by Subsection (d-1)(1) or (2), as appropriate, the person
is not convicted of or placed on deferred adjudication community
supervision under Section 5, Article 42.12, Code of Criminal
Procedure, for any offense other than an offense under the
Transportation Code punishable by fine only or, for purposes of
Subsection (d-1), the person is not convicted of or placed on
community supervision, including deferred adjudication community
supervision, for another drug possession offense described by
Section 15B, Article 42.12, Code of Criminal Procedure. A person is
not entitled to petition the court under Subsection (d) or (d-1) if
the person was placed on community supervision, including [the]
deferred adjudication community supervision, for, or has been
previously convicted of or placed on any other deferred
adjudication for:
(1) an offense requiring registration as a sex
offender under Chapter 62, Code of Criminal Procedure;
(2) an offense under Section 20.04, Penal Code,
regardless of whether the offense is a reportable conviction or
adjudication for purposes of Chapter 62, Code of Criminal
Procedure;
(3) an offense under Section 19.02, 19.03, 22.04,
22.041, 25.07, or 42.072, Penal Code; or
(4) any other offense involving family violence, as
defined by Section 71.004, Family Code.
SECTION 4. Chapter 509, Government Code, is amended by
adding Section 509.013 to read as follows:
Sec. 509.013. ANNUAL REPORT ON COMMUNITY SUPERVISION WITH
DRUG TREATMENT. (a) Not later than November 1 of each year, the
Texas Department of Criminal Justice shall study and report to the
legislature on the effectiveness and financial impact to the state
during the preceding state fiscal year of placing defendants on
community supervision with drug treatment for a drug possession
offense under Section 15B, Article 42.12, Code of Criminal
Procedure.
(b) The study and report must include an analysis of:
(1) the implementation of Section 15B, Article 42.12,
Code of Criminal Procedure;
(2) the adequacy of funding available for operation of
the programs described by Section 15B, Article 42.12, Code of
Criminal Procedure;
(3) the effect of implementing Section 15B, Article
42.12, Code of Criminal Procedure, with respect to:
(A) incarceration costs incurred by the state and
local governments, including the cost of constructing prisons and
jails;
(B) the recidivism rate among defendants placed
on community supervision under Section 15B, Article 42.12, Code of
Criminal Procedure, compared with other defendants; and
(C) the number of defendants placed on community
supervision under Section 15B, Article 42.12, Code of Criminal
Procedure, who utilize state welfare benefits, compared with other
defendants; and
(4) other effects of or issues with implementing
Section 15B, Article 42.12, Code of Criminal Procedure, that are
identified by the Texas Department of Criminal Justice.
SECTION 5. Sections 15(a)(1) and (c)(2) and (3), Article
42.12, Code of Criminal Procedure, are repealed.
SECTION 6. (a) In a criminal action under Section
481.115, 481.1151, 481.116, 481.117, 481.118, 481.119(b), 481.121,
483.041(a), or 485.031, Health and Safety Code, pending on or
commenced on or after the effective date of this Act, for an offense
committed before the effective date, the defendant, if adjudged
guilty, shall be assessed the punishment under Section 15B, Article
42.12, Code of Criminal Procedure, as added by this Act, if the
defendant meets the eligibility requirements under that section and
other law and so elects by written motion filed with the trial court
before the sentencing hearing begins.
(b) If the defendant does not make the election under
Subsection (a) of this section, punishment is covered by the law in
effect when the offense was committed, and the former law is
continued in effect for that purpose.
SECTION 7. The change in law made by Section 411.081(d-1),
Government Code, as added by this Act, applies to a person placed on
community supervision under Section 15B, Article 42.12, Code of
Criminal Procedure, as added by this Act, on or after the effective
date of this Act regardless of when the person committed the offense
for which the person is placed on community supervision.
SECTION 8. The Texas Department of Criminal Justice shall
submit to the legislature the first report required by Section
509.013, Government Code, as added by this Act, not later than
November 1, 2010.
SECTION 9. This Act takes effect September 1, 2009.