81R10833 KCR-D
By: West S.B. No. 1709
A BILL TO BE ENTITLED
AN ACT
relating to the prosecution of certain sexual offenses and to
exempting certain persons from the duty to register as a sex
offender in this state.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 42.017, Code of Criminal Procedure, is
amended to read as follows:
Art. 42.017. FINDING REGARDING AGE-BASED OFFENSE. In the
trial of an offense under Section 21.02, 21.11, 22.011, 22.021, or
43.25, Penal Code, the judge shall make an affirmative finding of
fact and enter the affirmative finding in the judgment in the case
if the judge determines that:
(1) at the time of the offense, the defendant was not
more than 4 years older than the victim or intended victim [younger
than 19 years of age] and the victim or intended victim was at least
13 years of age; and
(2) the conviction is based solely on the ages of the
defendant and the victim or intended victim at the time of the
offense.
SECTION 2. Section 5(g), Article 42.12, Code of Criminal
Procedure, is amended to read as follows:
(g) If a judge places on community supervision under this
section a defendant charged with an offense under Section 21.11,
22.011, 22.021, or 43.25, Penal Code, the judge shall make an
affirmative finding of fact and file a statement of that
affirmative finding with the papers in the case if the judge
determines that:
(1) at the time of the offense, the defendant was not
more than 4 years older than the victim or intended victim [younger
than 19 years of age] and the victim or intended victim was at least
13 years of age; and
(2) the charge to which the plea is entered under this
section is based solely on the ages of the defendant and the victim
or intended victim at the time of the offense.
SECTION 3. Article 62.301, Code of Criminal Procedure, is
amended by amending Subsections (a), (c), and (d) and adding
Subsection (a-1) to read as follows:
(a) If eligible under Subsection (b) or (c), a person
required to register under this chapter may petition the court
having jurisdiction over the case for an order exempting the person
from registration under this chapter at any time on or after the
date of the person's sentencing or [after] the date the person is
placed on deferred adjudication community supervision, as
applicable.
(a-1) A person is eligible to petition the court as
described by Subsection (a) if the person:
(1) is required to register only a result of a single
reportable adjudication, other than an adjudication of delinquent
conduct, for an offense under Section 21.11, 22.011, 22.021, or
43.25, Penal Code;
(2) was 20 years of age or older and younger than 25
years of age at the time the offense was committed; and
(3) before the date of the petition, received a
dismissal and discharge under Section 5(c), Article 42.12.
(c) A defendant who before September 1, 2009 [2001], is
convicted of or placed on deferred adjudication community
supervision for an offense under Section 21.11, 22.011, 22.021, or
43.25, Penal Code, is eligible to petition the court as described by
Subsection (a). The court may consider the petition only if the
petition states and the court finds that the defendant would have
been entitled to the entry of an affirmative finding under Article
42.017 or Section 5(g), Article 42.12, as appropriate, had the
conviction or placement on deferred adjudication community
supervision occurred after September 1, 2009 [2001].
(d) After a hearing on the petition described by Subsection
(a), the court shall [may] issue an order exempting the person from
registration under this chapter if it appears by a preponderance of
the evidence:
(1) as presented by a registered sex offender
treatment provider, that the exemption does not threaten public
safety; and
(2) that the person's conduct did not occur without the
consent of the victim or intended victim as described by Section
22.011(b), Penal Code.
SECTION 4. Section 22.011, Penal Code, is amended by adding
Subsections (e-1), (g), and (h) to read as follows:
(e-1) It is an affirmative defense to prosecution under
Subsection (a)(2) that:
(1) the actor reasonably believed that the victim was
17 years of age or older and:
(A) was not required under Chapter 62, Code of
Criminal Procedure, to register for life as a sex offender; or
(B) was not a person who under Chapter 62, Code of
Criminal Procedure, had a reportable conviction or adjudication for
an offense under this section or Section 22.021; and
(2) the victim:
(A) was 13 years of age or older; and
(B) in the presence of the actor, displayed
tangible, false evidence or made a false statement that:
(i) was intentionally designed to mislead
another as to the victim's age; and
(ii) when considered objectively by the
court with other circumstances, can reasonably be thought to be an
accurate identification of the victim or an accurate representation
of the victim's age.
(g) Subsection (e-1) does not invalidate or otherwise
diminish Rule 412, Texas Rules of Evidence.
(h) Subsection (e-1) does not apply to an actor who engaged
in the prohibited conduct with the victim over a period that is 180
days or longer.
SECTION 5. Section 22.021, Penal Code, is amended by adding
Subsections (d-1), (g), and (h) to read as follows:
(d-1) It is an affirmative defense to prosecution under
Subsection (a)(2)(B) that:
(1) the actor reasonably believed that the victim was
17 years of age or older and:
(A) was not required under Chapter 62, Code of
Criminal Procedure, to register for life as a sex offender; or
(B) was not a person who under Chapter 62, Code of
Criminal Procedure, had a reportable conviction or adjudication for
an offense under this section or Section 22.011; and
(2) the victim:
(A) was 13 years of age or older; and
(B) in the presence of the actor, displayed
tangible, false evidence or made a false statement that:
(i) was intentionally designed to mislead
another as to the victim's age; and
(ii) when considered objectively by the
court with other circumstances, can reasonably be thought to be an
accurate identification of the victim or an accurate representation
of the victim's age.
(g) Subsection (d-1) does not invalidate or otherwise
diminish Rule 412, Texas Rules of Evidence.
(h) Subsection (d-1) does not apply to an actor who engaged
in the prohibited conduct with the victim over a period that is 180
days or longer.
SECTION 6. Article 42.017, Code of Criminal Procedure, and
Section 5(g), Article 42.12, Code of Criminal Procedure, as amended
by this Act, apply only to a judgment of conviction entered on or
after the effective date of this Act or a grant of deferred
adjudication made on or after the effective date of this Act.
SECTION 7. The changes in law made by this Act in amending
Chapter 62, Code of Criminal Procedure, apply to any person who, on
or after the effective date of this Act, is required to register
under that chapter, regardless of whether the offense or conduct
for which the person is required to register occurs before, on, or
after the effective date of this Act.
SECTION 8. The change in law made by this Act in amending
Sections 22.011 and 22.021, Penal Code, 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 covered by the
law in effect when the offense was committed, and the former law is
continued in effect for that purpose. For the 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. This Act takes effect September 1, 2009.