Texas 2009 - 81st Regular

Texas Senate Bill SB1709 Compare Versions

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1	1	By: West S.B. No. 1709
2	2	(In the Senate - Filed March 10, 2009; March 20, 2009, read
3	3	first time and referred to Committee on Criminal Justice;
4	4	May 7, 2009, reported adversely, with favorable Committee
5	5	Substitute by the following vote: Yeas 5, Nays 0; May 7, 2009,
6	6	sent to printer.)
7	7	COMMITTEE SUBSTITUTE FOR S.B. No. 1709 By: Whitmire
8	8
9	9
10	10	A BILL TO BE ENTITLED
11	11	AN ACT
12	12	relating to the prosecution and punishment of certain sexual
13	13	offenses and to exempting certain persons from the duty to register
14	14	as a sex offender in this state.
15	15	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
16	16	SECTION 1. Article 42.017, Code of Criminal Procedure, is
17	17	amended to read as follows:
18	18	Art. 42.017. FINDING REGARDING AGE-BASED OFFENSE. In the
19	19	trial of an offense under Section 21.02, 21.11, 22.011, 22.021, or
20	20	43.25, Penal Code, the judge shall make an affirmative finding of
21	21	fact and enter the affirmative finding in the judgment in the case
22	22	if the judge determines that:
23	23	(1) at the time of the offense, the defendant was not
24	24	more than four years older than the victim or intended victim
25	25	[younger than 19 years of age] and the victim or intended victim was
26	26	at least 13 years of age; and
27	27	(2) the conviction is based solely on the ages of the
28	28	defendant and the victim or intended victim at the time of the
29	29	offense.
30	30	SECTION 2. Subsection (g), Section 5, Article 42.12, Code
31	31	of Criminal Procedure, is amended to read as follows:
32	32	(g) If a judge places on community supervision under this
33	33	section a defendant charged with an offense under Section 21.11,
34	34	22.011, 22.021, or 43.25, Penal Code, the judge shall make an
35	35	affirmative finding of fact and file a statement of that
36	36	affirmative finding with the papers in the case if the judge
37	37	determines that:
38	38	(1) at the time of the offense, the defendant was not
39	39	more than four years older than the victim or intended victim
40	40	[younger than 19 years of age] and the victim or intended victim was
41	41	at least 13 years of age; and
42	42	(2) the charge to which the plea is entered under this
43	43	section is based solely on the ages of the defendant and the victim
44	44	or intended victim at the time of the offense.
45	45	SECTION 3. Subdivisions (5) and (6), Article 62.001, Code
46	46	of Criminal Procedure, are amended to read as follows:
47	47	(5) "Reportable conviction or adjudication" means a
48	48	conviction or adjudication, including an adjudication of
49	49	delinquent conduct or a deferred adjudication, that, regardless of
50	50	the pendency of an appeal, is a conviction for or an adjudication
51	51	for or based on:
52	52	(A) a violation of Section 21.02 (Continuous
53	53	sexual abuse of young child or children), 21.11 (Indecency with a
54	54	child), 22.011 (Sexual assault), 22.021 (Aggravated sexual
55	55	assault), or 25.02 (Prohibited sexual conduct), Penal Code, other
56	56	than a violation of Section 21.11 or 22.011, Penal Code, for which
57	57	the judgment in the case contains an affirmative finding under
58	58	Article 42.017 or the papers in the case contain an affirmative
59	59	finding described by Section 5(g), Article 42.12;
60	60	(B) a violation of Section 43.05 (Compelling
61	61	prostitution), 43.25 (Sexual performance by a child), or 43.26
62	62	(Possession or promotion of child pornography), Penal Code;
63	63	(C) a violation of Section 20.04(a)(4)
64	64	(Aggravated kidnapping), Penal Code, if the actor committed the
65	65	offense or engaged in the conduct with intent to violate or abuse
66	66	the victim sexually;
67	67	(D) a violation of Section 30.02 (Burglary),
68	68	Penal Code, if the offense or conduct is punishable under
69	69	Subsection (d) of that section and the actor committed the offense
70	70	or engaged in the conduct with intent to commit a felony listed in
71	71	Paragraph (A) or (C);
72	72	(E) a violation of Section 20.02 (Unlawful
73	73	restraint), 20.03 (Kidnapping), or 20.04 (Aggravated kidnapping),
74	74	Penal Code, if, as applicable:
75	75	(i) the judgment in the case contains an
76	76	affirmative finding under Article 42.015; or
77	77	(ii) the order in the hearing or the papers
78	78	in the case contain an affirmative finding that the victim or
79	79	intended victim was younger than 17 years of age;
80	80	(F) the second violation of Section 21.08
81	81	(Indecent exposure), Penal Code, but not if the second violation
82	82	results in a deferred adjudication;
83	83	(G) an attempt, conspiracy, or solicitation, as
84	84	defined by Chapter 15, Penal Code, to commit an offense or engage in
85	85	conduct listed in Paragraph (A), (B), (C), (D), or (E);
86	86	(H) a violation of the laws of another state,
87	87	federal law, the laws of a foreign country, or the Uniform Code of
88	88	Military Justice for or based on the violation of an offense
89	89	containing elements that are substantially similar to the elements
90	90	of an offense listed under Paragraph (A), (B), (C), (D), (E), (G),
91	91	or (J), but not if the violation results in a deferred adjudication;
92	92	(I) the second violation of the laws of another
93	93	state, federal law, the laws of a foreign country, or the Uniform
94	94	Code of Military Justice for or based on the violation of an offense
95	95	containing elements that are substantially similar to the elements
96	96	of the offense of indecent exposure, but not if the second violation
97	97	results in a deferred adjudication; or
98	98	(J) a violation of Section 33.021 (Online
99	99	solicitation of a minor), Penal Code.
100	100	(6) "Sexually violent offense" means a reportable
101	101	conviction or adjudication for any of the following offenses if
102	102	committed by a person 17 years of age or older:
103	103	(A) an offense under Section 21.02 (Continuous
104	104	sexual abuse of young child or children), 21.11(a)(1) (Indecency
105	105	with a child), 22.011 (Sexual assault), or 22.021 (Aggravated
106	106	sexual assault), Penal Code;
107	107	(B) an offense under Section 43.25 (Sexual
108	108	performance by a child), Penal Code;
109	109	(C) an offense under Section 20.04(a)(4)
110	110	(Aggravated kidnapping), Penal Code, if the defendant committed the
111	111	offense with intent to violate or abuse the victim sexually;
112	112	(D) an offense under Section 30.02 (Burglary),
113	113	Penal Code, if the offense is punishable under Subsection (d) of
114	114	that section and the defendant committed the offense with intent to
115	115	commit a felony listed in Paragraph (A) or (C) of Subdivision (5);
116	116	or
117	117	(E) an offense under the laws of another state,
118	118	federal law, the laws of a foreign country, or the Uniform Code of
119	119	Military Justice if the offense contains elements that are
120	120	substantially similar to the elements of an offense listed under
121	121	Paragraph (A), (B), (C), or (D).
122	122	SECTION 4. Article 62.301, Code of Criminal Procedure, is
123	123	amended by amending Subsections (a) and (c) and adding Subsection
124	124	(a-1) to read as follows:
125	125	(a) If eligible under Subsection (a-1), (b), or (c), a
126	126	person required to register under this chapter may petition the
127	127	court having jurisdiction over the case for an order exempting the
128	128	person from registration under this chapter at any time on or after
129	129	the date of the person's sentencing or [after] the date the person
130	130	is placed on deferred adjudication community supervision, as
131	131	applicable.
132	132	(a-1) A person is eligible to petition the court as
133	133	described by Subsection (a) if the person:
134	134	(1) is required to register only as a result of a
135	135	single reportable adjudication, other than an adjudication of
136	136	delinquent conduct, for an offense under Section 21.11 or 22.011,
137	137	Penal Code, if the charge for the offense is based solely on the
138	138	ages of the person and the victim or intended victim;
139	139	(2) was younger than 25 years of age at the time the
140	140	offense was committed; and
141	141	(3) before the date of the petition, received a
142	142	dismissal and discharge under Section 5(c), Article 42.12.
143	143	(c) A defendant who before September 1, 2009 [2001], is
144	144	convicted of or placed on deferred adjudication community
145	145	supervision for an offense under Section 21.11, 22.011, 22.021, or
146	146	43.25, Penal Code, is eligible to petition the court as described by
147	147	Subsection (a). The court may consider the petition only if the
148	148	petition states and the court finds that the defendant would have
149	149	been entitled to the entry of an affirmative finding under Article
150	150	42.017 or Section 5(g), Article 42.12, as appropriate, had the
151	151	conviction or placement on deferred adjudication community
152	152	supervision occurred after September 1, 2009 [2001].
153	153	SECTION 5. Article 62.402, Code of Criminal Procedure, is
154	154	amended to read as follows:
155	155	Art. 62.402. DETERMINATION OF MINIMUM REQUIRED
156	156	REGISTRATION PERIOD. (a) The department [council] by rule shall
157	157	determine the minimum required registration period under the Adam
158	158	Walsh Child Protection and Safety Act of 2006 (42 U.S.C. Section
159	159	16901 et seq.) [14071 (Jacob Wetterling Crimes Against Children and
160	160	Sexually Violent Offender Registration Program)] for each
161	161	reportable conviction or adjudication under this chapter, if this
162	162	state is to receive the maximum amount of federal money available to
163	163	a state as described by that law.
164	164	(b) After determining the minimum required registration
165	165	period for each reportable conviction or adjudication under
166	166	Subsection (a), the department [council] shall compile and publish
167	167	a list of reportable convictions or adjudications for which a
168	168	person must register under this chapter for a period that exceeds
169	169	the minimum required registration period under federal law.
170	170	(c) To the extent possible, the department [council] shall
171	171	periodically verify with the Office of Sex Offender Sentencing,
172	172	Monitoring, Apprehending, Registering, and Tracking [Bureau of
173	173	Justice Assistance] or another appropriate federal agency the
174	174	accuracy of the list of reportable convictions or adjudications
175	175	described by Subsection (b).
176	176	SECTION 6. Subsection (b), Section 21.11, Penal Code, is
177	177	amended to read as follows:
178	178	(b) It is an affirmative defense to prosecution under this
179	179	section that the actor:
180	180	(1) was not more than four [three] years older than the
181	181	victim and of the opposite sex;
182	182	(2) did not use duress, force, or a threat against the
183	183	victim at the time of the offense; and
184	184	(3) at the time of the offense:
185	185	(A) was not required under Chapter 62, Code of
186	186	Criminal Procedure, to register for life as a sex offender; or
187	187	(B) was not a person who under Chapter 62, Code of
188	188	Criminal Procedure, had a reportable conviction or adjudication for
189	189	an offense under this section.
190	190	SECTION 7. Subsection (e), Section 22.011, Penal Code, is
191	191	amended to read as follows:
192	192	(e) It is an affirmative defense to prosecution under
193	193	Subsection (a)(2) that:
194	194	(1) the actor was not more than four [three] years
195	195	older than the victim and at the time of the offense:
196	196	(A) was not required under Chapter 62, Code of
197	197	Criminal Procedure, to register for life as a sex offender; or
198	198	(B) was not a person who under Chapter 62, Code of
199	199	Criminal Procedure, had a reportable conviction or adjudication for
200	200	an offense under this section; and
201	201	(2) the victim:
202	202	(A) was a child of 14 years of age or older; and
203	203	(B) was not a person whom the actor was
204	204	prohibited from marrying or purporting to marry or with whom the
205	205	actor was prohibited from living under the appearance of being
206	206	married under Section 25.01.
207	207	SECTION 8. Article 42.017 and Subsection (g), Section 5,
208	208	Article 42.12, Code of Criminal Procedure, as amended by this Act,
209	209	apply only to a judgment of conviction entered on or after the
210	210	effective date of this Act or a grant of deferred adjudication made
211	211	on or after the effective date of this Act.
212	212	SECTION 9. The changes in law made by this Act in amending
213	213	Chapter 62, Code of Criminal Procedure, apply to any person who, on
214	214	or after the effective date of this Act, is required to register
215	215	under that chapter, regardless of whether the offense or conduct
216	216	for which the person is required to register occurs before, on, or
217	217	after the effective date of this Act.
218	218	SECTION 10. The change in law made by this Act in amending
219	219	Sections 21.11 and 22.011, Penal Code, apply only to an offense
220	220	committed on or after the effective date of this Act. An offense
221	221	committed before the effective date of this Act is covered by the
222	222	law in effect when the offense was committed, and the former law is
223	223	continued in effect for that purpose. For the purposes of this
224	224	section, an offense was committed before the effective date of this
225	225	Act if any element of the offense was committed before that date.
226	226	SECTION 11. This Act takes effect September 1, 2009.
227	227	* * * * *