By: Ellis, Carona, Whitmire S.B. No. 1118
(In the Senate - Filed February 24, 2009; March 13, 2009,
read first time and referred to Committee on Criminal Justice;
April 21, 2009, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 5, Nays 1; April 21, 2009,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1118 By: Whitmire
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. Subdivisions (1) and (2), Subsection (a),
Section 15, Article 42.12, Code of Criminal Procedure, are amended
to read as follows:
(1) On conviction of a state jail felony under Section
[481.115(b),] 481.1151(b)(1), 481.116(b), 481.121(b)(3), or
481.129(g)(1), Health and Safety Code, that is punished under
Section 12.35(a), Penal Code, the judge shall suspend the
imposition of the sentence and place the defendant on community
supervision, unless the defendant has previously been convicted of
a felony, other than a felony punished under Section 12.44(a),
Penal Code, or unless the conviction resulted from an adjudication
of the guilt of a defendant previously placed on deferred
adjudication community supervision for the offense, in which event
the judge may suspend the imposition of the sentence and place the
defendant on community supervision or may order the sentence to be
executed. The provisions of this subdivision requiring the judge
to suspend the imposition of the sentence and place the defendant on
community supervision do not apply to a defendant who under Section
481.1151(b)(1), Health and Safety Code, possessed more than five
abuse units of the controlled substance or under Section
481.121(b)(3), Health and Safety Code, possessed more than one
pound of marihuana.
(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) or a state jail felony under Section
481.115(b), Health and Safety Code, 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, Health and Safety Code, that is
punishable as:
(A) a state jail felony; or
(B) a felony of the third degree, if the offense
involves the possession of two grams or less of the controlled
substance; or
(2) Section 481.121, Health and Safety Code, that is
punishable as a Class A or B misdemeanor.
(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:
(A) is a danger to the safety of others; or
(B) possessed the controlled substance with the
intent to deliver the substance in violation of Section 481.112 or
481.120, Health and Safety Code, as applicable;
(2) the defendant has been previously convicted of an
offense other than:
(A) a drug possession offense or a state jail
felony listed in Section 15(a); 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 a state jail
felony listed in Section 15(a); 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;
(4) the judge determines that a drug treatment program
or other treatment services that are appropriate for the defendant
are not available in the area in which the defendant resides; or
(5) 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
course of treatment in a drug treatment program or facility, and the
defendant has been previously:
(A) convicted on two or more occasions of a drug
possession offense or state jail felony listed in Section 15(a); 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 makes a determination described by
Subsection (b)(1), (4), or (5) to execute the defendant's sentence
shall enter the 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 drug treatment
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 prescribed by a
physician;
(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 under
Subsection (e)(2) and imposing conditions for participation in the
course of treatment, the judge shall order the defendant to
participate in the level of treatment that the evaluation indicates
is appropriate for the defendant to achieve:
(1) the outcome objectives prescribed by the drug
treatment program or facility; and
(2) the recommendations of a drug treatment
professional.
(h) A court granting community supervision under this
section may require as a condition of community supervision, in
addition to any required participation in a course of treatment
under Subsection (e)(2) 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 state
jail felony listed in Section 15(a) 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) placing the defendant under the supervision
of a supervision officer with a reduced or specialized caseload and
subjecting the defendant to increased home visits and field
contacts, if sufficient resources are available;
(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 a course of
treatment in a drug treatment program or facility.
(j) A judge who modifies a defendant's conditions of
supervision in response to the defendant's commission of another
drug possession offense or state jail felony listed in Section
15(a) 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
course of treatment in a drug treatment program or facility, the
judge shall consider whether the defendant has previously:
(1) committed a serious violation of the rules of a
drug treatment program or facility; or
(2) repeatedly committed violations of the rules of a
drug treatment program or facility to an extent that inhibited the
defendant's ability to function in the program or facility.
(l) After successful completion of a term of community
supervision imposed under this section, including completion of any
required course of treatment in a drug treatment program or
facility, 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 any required
course of treatment, 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).
(m) The drug treatment program account is created as a
dedicated account in the general revenue fund of the state
treasury. Money in the account may be appropriated only to the
Texas Department of Criminal Justice for distribution to drug
treatment programs or facilities that provide a course of treatment
to defendants under this section and that apply for the money.
Funds collected and distributed under this subsection are subject
to audit by the comptroller.
SECTION 3. Subchapter A, Chapter 102, Code of Criminal
Procedure, is amended by adding Article 102.0179 to read as
follows:
Art. 102.0179. ADDITIONAL COSTS ATTENDANT TO CERTAIN
INTOXICATION AND DRUG CONVICTIONS. (a) In addition to other costs
on conviction imposed by this chapter, including costs described by
Article 102.0178, a person shall pay $50 as a court cost on
conviction of any offense under Chapter 49, Penal Code, or Chapter
481, Health and Safety Code.
(b) In this article, a person is considered to have been
convicted if:
(1) a sentence is imposed;
(2) the person is placed on community supervision,
including deferred adjudication community supervision; or
(3) the court defers final disposition of the person's
case.
(c) Court costs under this article are collected in the same
manner as other fines or costs. An officer collecting the costs
shall send to the comptroller costs collected under this article
for deposit to the credit of the drug treatment program account
established under Section 15B, Article 42.12.
SECTION 4. (a) Section 102.021, Government Code, is
amended to conform to Chapter 1263 (H.B. 3060), Acts of the 80th
Legislature, Regular Session, 2007, and is further amended to read
as follows:
Sec. 102.021. COURT COSTS ON CONVICTION: CODE OF CRIMINAL
PROCEDURE. A person convicted of an offense shall pay the following
under the Code of Criminal Procedure, in addition to all other
costs:
(1) court cost on conviction of any offense, other
than a conviction of an offense relating to a pedestrian or the
parking of a motor vehicle (Art. 102.0045, Code of Criminal
Procedure) . . . $4;
(2) a fee for services of prosecutor (Art. 102.008,
Code of Criminal Procedure) . . . $25;
(3) fees for services of peace officer:
(A) issuing a written notice to appear in court
for certain violations (Art. 102.011, Code of Criminal Procedure)
. . . $5;
(B) executing or processing an issued arrest
warrant, [or] capias, or capias pro fine (Art. 102.011, Code of
Criminal Procedure) . . . $50;
(C) summoning a witness (Art. 102.011, Code of
Criminal Procedure) . . . $5;
(D) serving a writ not otherwise listed (Art.
102.011, Code of Criminal Procedure) . . . $35;
(E) taking and approving a bond and, if
necessary, returning the bond to courthouse (Art. 102.011, Code of
Criminal Procedure) . . . $10;
(F) commitment or release (Art. 102.011, Code of
Criminal Procedure) . . . $5;
(G) summoning a jury (Art. 102.011, Code of
Criminal Procedure) . . . $5;
(H) attendance of a prisoner in habeas corpus
case if prisoner has been remanded to custody or held to bail (Art.
102.011, Code of Criminal Procedure) . . . $8 each day;
(I) mileage for certain services performed (Art.
102.011, Code of Criminal Procedure) . . . $0.29 per mile; and
(J) services of a sheriff or constable who serves
process and attends examining trial in certain cases (Art. 102.011,
Code of Criminal Procedure) . . . not to exceed $5;
(4) services of a peace officer in conveying a witness
outside the county (Art. 102.011, Code of Criminal Procedure) . . .
$10 per day or part of a day, plus actual necessary travel expenses;
(5) overtime of peace officer for time spent
testifying in the trial or traveling to or from testifying in the
trial (Art. 102.011, Code of Criminal Procedure) . . . actual cost;
(6) court costs on an offense relating to rules of the
road, when offense occurs within a school crossing zone (Art.
102.014, Code of Criminal Procedure) . . . $25;
(7) court costs on an offense of passing a school bus
(Art. 102.014, Code of Criminal Procedure) . . . $25;
(8) court costs on an offense of truancy or
contributing to truancy (Art. 102.014, Code of Criminal Procedure)
. . . $20;
(9) cost for visual recording of intoxication arrest
before conviction (Art. 102.018, Code of Criminal Procedure) . . .
$15;
(10) cost of certain evaluations (Art. 102.018, Code
of Criminal Procedure) . . . actual cost;
(11) additional costs attendant to certain
intoxication convictions under Chapter 49, Penal Code, for
emergency medical services, trauma facilities, and trauma care
systems (Art. 102.0185, Code of Criminal Procedure) . . . $100;
(12) additional costs attendant to certain child
sexual assault and related convictions, for child abuse prevention
programs (Art. 102.0186, Code of Criminal Procedure) . . . $100;
(13) cost for DNA testing for certain felonies (Art.
102.020, Code of Criminal Procedure) . . . $250;
(14) court cost on an offense of public lewdness or
indecent exposure (Art. 102.020, Code of Criminal Procedure) . . .
$50;
(15) if required by the court, a restitution fee for
costs incurred in collecting restitution installments and for the
compensation to victims of crime fund (Art. 42.037, Code of
Criminal Procedure) . . . $12; [and]
(16) if directed by the justice of the peace or
municipal court judge hearing the case, court costs on conviction
in a criminal action (Art. 45.041, Code of Criminal Procedure)
. . . part or all of the costs as directed by the judge;
(17) costs attendant to convictions under Chapter 49,
Penal Code, and under Chapter 481, Health and Safety Code, to help
fund drug court programs established under Chapter 469, Health and
Safety Code (Art. 102.0178, Code of Criminal Procedure) . . . $50;
and
(18) costs attendant to convictions under Chapter 49,
Penal Code, and under Chapter 481, Health and Safety Code, for
certain drug treatment programs and facilities (Art. 102.0179, Code
of Criminal Procedure) . . . $50.
(b) Section 102.0215, Government Code, is repealed.
SECTION 5. 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 6. 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 December 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, including the amount of cost savings
the state realizes through that implementation;
(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.
(c) The comptroller shall verify the findings of the
department in analyzing the cost savings realized by the state
through the implementation of Section 15B, Article 42.12, Code of
Criminal Procedure. The department may retain an amount not to
exceed 20 percent of the amount of the actual savings attributable
to implementation of that section, to the extent that the savings
come from funds appropriated to the department and to the extent the
department distributed that amount to drug treatment programs or
facilities that provide a course of treatment to defendants under
that section. The department may transfer savings attributable to
implementation of that section from the first year of the fiscal
biennium to the second year of the fiscal biennium, provided that
the department uses the full amount transferred for distribution to
drug treatment programs or facilities as described by this
subsection.
SECTION 7. (a) In a criminal action under Section 481.115
or 481.121, 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 8. Article 102.0179, Code of Criminal Procedure, as
added by this Act, applies only to a cost on conviction for an
offense committed on or after the effective date of this Act. An
offense committed before the effective date of this Act is covered
by the law in effect when the offense was committed, and the former
law is continued in effect for that purpose. For purposes of this
section, an offense was committed before the effective date of this
Act if any element of the offense was committed before that date.
SECTION 9. The change in law made by Subsection (d-1),
Section 411.081, 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 10. 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
December 1, 2010.
SECTION 11. This Act takes effect September 1, 2009.
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