81R3264 JSC-D
By: Deuell S.B. No. 486
A BILL TO BE ENTITLED
AN ACT
relating to a person's eligibility for community supervision on
conviction of intoxication manslaughter.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 3g(a), Article 42.12, Code of Criminal
Procedure, as amended by Chapters 405 (S.B. 877) and 593 (H.B. 8),
Acts of the 80th Legislature, Regular Session, 2007, is reenacted
and amended to read as follows:
(a) The provisions of Section 3 of this article do not
apply:
(1) to a defendant adjudged guilty of an offense
under:
(A) Section 19.02, Penal Code (Murder);
(B) Section 19.03, Penal Code (Capital murder);
(C) Section 21.11(a)(1), Penal Code (Indecency
with a child);
(D) Section 20.04, Penal Code (Aggravated
kidnapping);
(E) Section 22.021, Penal Code (Aggravated
sexual assault);
(F) Section 29.03, Penal Code (Aggravated
robbery);
(G) Chapter 481, Health and Safety Code, for
which punishment is increased under:
(i) Section 481.140, Health and Safety
Code; or
(ii) Section 481.134(c), (d), (e), or (f),
Health and Safety Code, if it is shown that the defendant has been
previously convicted of an offense for which punishment was
increased under any of those subsections;
(H) Section 22.011, Penal Code (Sexual assault);
[or]
(I) Section 22.04(a)(1), Penal Code (Injury to a
child, elderly individual, or disabled individual), if the offense
is punishable as a felony of the first degree and the victim of the
offense is a child; [or]
(J) [(I)] Section 43.25, Penal Code (Sexual
performance by a child); or
(K) Section 49.08, Penal Code (Intoxication
manslaughter); or
(2) to a defendant when it is shown that a deadly
weapon as defined in Section 1.07, Penal Code, was used or exhibited
during the commission of a felony offense or during immediate
flight therefrom, and that the defendant used or exhibited the
deadly weapon or was a party to the offense and knew that a deadly
weapon would be used or exhibited. On an affirmative finding under
this subdivision, the trial court shall enter the finding in the
judgment of the court. On an affirmative finding that the deadly
weapon was a firearm, the court shall enter that finding in its
judgment.
SECTION 2. Section 4(d), Article 42.12, Code of Criminal
Procedure, as amended by Chapters 593 (H.B. 8) and 1205 (H.B. 1678),
Acts of the 80th Legislature, Regular Session, 2007, is reenacted
and amended to read as follows:
(d) A defendant is not eligible for community supervision
under this section if the defendant:
(1) is sentenced to a term of imprisonment that
exceeds 10 years;
(2) is convicted of a state jail felony for which
suspension of the imposition of the sentence occurs automatically
under Section 15(a);
(3) does not file a sworn motion under Subsection (e)
of this section or for whom the jury does not enter in the verdict a
finding that the information contained in the motion is true;
(4) is convicted of an offense for which punishment is
increased under Section 481.134(c), (d), (e), or (f), Health and
Safety Code, if it is shown that the defendant has been previously
convicted of an offense for which punishment was increased under
any one of those subsections;
(5) is convicted of an offense listed in Section
3g(a)(1)(C), (E), or (H), if the victim of the offense was younger
than 14 years of age at the time the offense was committed;
(6) is convicted of an offense listed in Section
3g(a)(1)(D), if the victim of the offense was younger than 14 years
of age at the time the offense was committed and the actor committed
the offense with the intent to violate or abuse the victim sexually;
[or]
(7) is convicted of an offense listed in Section
3g(a)(1)(J) or (K); or
(8) [3g(a)(1)(I)] is adjudged guilty of an offense
under Section 19.02, Penal Code.
SECTION 3. Sections 13(f), (g), (h), (i), and (n), Article
42.12, Code of Criminal Procedure, are amended to read as follows:
(f) If a judge grants community supervision to a defendant
convicted of an offense under Sections 49.04-49.07 [49.04-49.08],
Penal Code, and if before receiving community supervision the
defendant has not submitted to an evaluation under Section 9 of this
article, the judge shall require the defendant to submit to the
evaluation as a condition of community supervision. If the
evaluation indicates to the judge that the defendant is in need of
treatment for drug or alcohol dependency, the judge shall require
the defendant to submit to that treatment as a condition of
community supervision in a program or facility approved or licensed
by the Texas Commission on Alcohol and Drug Abuse or in a program or
facility that complies with standards established by the community
justice assistance division of the Texas Department of Criminal
Justice, after consultation by the division with the commission.
(g) A jury that recommends community supervision for a
person convicted of an offense under Sections 49.04-49.07
[49.04-49.08], Penal Code, may recommend that any driver's license
issued to the defendant under Chapter 521, Transportation Code, not
be suspended. This subsection does not apply to a person punished
under Section 49.09(a) or (b), Penal Code, and subject to Section
49.09(h) of that code.
(h) If a person convicted of an offense under Sections
49.04-49.07 [49.04-49.08], Penal Code, is placed on community
supervision, the judge shall require, as a condition of the
community supervision, that the defendant attend and successfully
complete before the 181st day after the day community supervision
is granted an educational program jointly approved by the Texas
Commission on Alcohol and Drug Abuse, the Department of Public
Safety, the Traffic Safety Section of the Texas Department of
Transportation, and the community justice assistance division of
the Texas Department of Criminal Justice designed to rehabilitate
persons who have driven while intoxicated. The Texas Commission on
Alcohol and Drug Abuse shall publish the jointly approved rules and
shall monitor, coordinate, and provide training to persons
providing the educational programs. The Texas Commission on
Alcohol and Drug Abuse is responsible for the administration of the
certification of approved educational programs and may charge a
nonrefundable application fee for the initial certification of
approval and for renewal of a certificate. The judge may waive the
educational program requirement or may grant an extension of time
to successfully complete the program that expires not later than
one year after the beginning date of the person's community
supervision, however, if the defendant by a motion in writing shows
good cause. In determining good cause, the judge may consider but
is not limited to: the defendant's school and work schedule, the
defendant's health, the distance that the defendant must travel to
attend an educational program, and the fact that the defendant
resides out of state, has no valid driver's license, or does not
have access to transportation. The judge shall set out the finding
of good cause for waiver in the judgment. If a defendant is
required, as a condition of community supervision, to attend an
educational program or if the court waives the educational program
requirement, the court clerk shall immediately report that fact to
the Department of Public Safety, on a form prescribed by the
department, for inclusion in the person's driving record. If the
court grants an extension of time in which the person may complete
the program, the court clerk shall immediately report that fact to
the Department of Public Safety on a form prescribed by the
department. The report must include the beginning date of the
person's community supervision. Upon the person's successful
completion of the educational program, the person's instructor
shall give notice to the Department of Public Safety for inclusion
in the person's driving record and to the community supervision and
corrections department. The community supervision and corrections
department shall then forward the notice to the court clerk for
filing. If the Department of Public Safety does not receive notice
that a defendant required to complete an educational program has
successfully completed the program within the period required by
this section, as shown on department records, the department shall
revoke the defendant's driver's license, permit, or privilege or
prohibit the person from obtaining a license or permit, as provided
by Sections 521.344(e) and (f), Transportation Code. The Department
of Public Safety may not reinstate a license suspended under this
subsection unless the person whose license was suspended makes
application to the department for reinstatement of the person's
license and pays to the department a reinstatement fee of $50. The
Department of Public Safety shall remit all fees collected under
this subsection to the comptroller for deposit in the general
revenue fund. This subsection does not apply to a defendant if a
jury recommends community supervision for the defendant and also
recommends that the defendant's driver's license not be suspended.
(i) If a person convicted of an offense under Sections
49.04-49.07 [49.04-49.08], Penal Code, is placed on community
supervision, the court may require as a condition of community
supervision that the defendant have a device installed, on the
motor vehicle owned by the defendant or on the vehicle most
regularly driven by the defendant, that uses a deep-lung breath
analysis mechanism to make impractical the operation of the motor
vehicle if ethyl alcohol is detected in the breath of the operator
and that the defendant not operate any motor vehicle that is not
equipped with that device. If it is shown on the trial of the
offense that an analysis of a specimen of the person's blood,
breath, or urine showed an alcohol concentration level of 0.15 or
more at the time the analysis was performed, or if the person is
convicted of an offense under Sections 49.04-49.06, Penal Code, and
punished under Section 49.09(a) or (b), Penal Code, or of a second
or subsequent offense under Section 49.07 or 49.08, Penal Code, and
the person after conviction of either offense is placed on
community supervision, the court shall require as a condition of
community supervision that the defendant have the device installed
on the appropriate vehicle and that the defendant not operate any
motor vehicle unless the vehicle is equipped with that
device. Before placing on community supervision a person
convicted of an offense under Sections 49.04-49.07 [49.04-49.08],
Penal Code, the court shall determine from criminal history record
information maintained by the Department of Public Safety whether
the person has one or more previous convictions under Sections
49.04-49.08, Penal Code, or has one previous conviction under
Sections 49.04-49.07, Penal Code, or one previous conviction under
Section 49.08, Penal Code. If it is shown on the trial of the
offense that an analysis of a specimen of the person's blood,
breath, or urine showed an alcohol concentration level of 0.15 or
more at the time the analysis was performed, or if the court
determines that the person has one or more such previous
convictions, the court shall require as a condition of community
supervision that the defendant have that device installed on the
motor vehicle owned by the defendant or on the vehicle most
regularly driven by the defendant and that the defendant not
operate any motor vehicle unless the vehicle is equipped with the
device described in this subsection. The court shall require the
defendant to obtain the device at the defendant's own cost before
the 30th day after the date of conviction unless the court finds
that to do so would not be in the best interest of justice and enters
its findings on record. The court shall require the defendant to
provide evidence to the court within the 30-day period that the
device has been installed on the appropriate vehicle and order the
device to remain installed on that vehicle for a period not less
than 50 percent of the supervision period. If the court determines
the offender is unable to pay for the device, the court may impose a
reasonable payment schedule not to exceed twice the period of the
court's order. The Department of Public Safety shall approve
devices for use under this subsection. Section 521.247,
Transportation Code, applies to the approval of a device under this
subsection and the consequences of that approval. Notwithstanding
the provisions of this section, if a person is required to operate a
motor vehicle in the course and scope of the person's employment and
if the vehicle is owned by the employer, the person may operate that
vehicle without installation of an approved ignition interlock
device if the employer has been notified of that driving privilege
restriction and if proof of that notification is with the
vehicle. This employment exemption does not apply, however, if the
business entity that owns the vehicle is owned or controlled by the
person whose driving privilege has been restricted. A previous
conviction may not be used for purposes of restricting a person to
the operation of a motor vehicle equipped with an interlock
ignition device under this subsection if:
(1) the previous conviction was a final conviction
under Section 49.04, 49.045, 49.05, 49.06, 49.07, or 49.08, Penal
Code, and was for an offense committed more than 10 years before the
instant offense for which the person was convicted and placed on
community supervision; and
(2) the person has not been convicted of an offense
under Section 49.04, 49.045, 49.05, 49.06, 49.07, or 49.08 of that
code, committed within 10 years before the date on which the instant
offense for which the person was convicted and placed on community
supervision.
(n) Notwithstanding any other provision of this section or
other law, the judge who places on community supervision a
defendant who is younger than 21 years of age and convicted for an
offense under Sections 49.04-49.07 [49.04-49.08], Penal Code,
shall:
(1) order that the defendant's driver's license be
suspended for 90 days beginning on the date that the person is
placed on community supervision; and
(2) require as a condition of community supervision
that the defendant not operate a motor vehicle unless the vehicle is
equipped with the device described by Subsection (i) of this
section.
SECTION 4. Section 20(b), Article 42.12, Code of Criminal
Procedure, is amended to read as follows:
(b) This section does not apply to a defendant convicted of
an offense under Sections 49.04-49.07 [49.04-49.08], Penal Code, a
defendant convicted of an offense for which on conviction
registration as a sex offender is required under Chapter 62, or a
defendant convicted of a felony described by Section 3g.
SECTION 5. Section 13(b), Article 42.12, Code of Criminal
Procedure, is repealed.
SECTION 6. The change in law made by this Act applies 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 purposes of
this section, an offense was committed before the effective date of
this Act if any element of the offense occurred before that date.
SECTION 7. This Act takes effect September 1, 2009.