Texas 2011 - 82nd Regular

Texas House Bill HB2019 Compare Versions

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1	1	82R22719 SJM-D
2	2	By: McClendon H.B. No. 2019
3	3	Substitute the following for H.B. No. 2019:
4	4	By: Aliseda C.S.H.B. No. 2019
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the establishment, operation, and funding of
10	10	victim-offender mediation programs.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 1, Article 28.01, Code of Criminal
13	13	Procedure, is amended to read as follows:
14	14	Sec. 1. The court may set any criminal case for a pre-trial
15	15	hearing before it is set for trial upon its merits, and direct the
16	16	defendant and his attorney, if any of record, and the State's
17	17	attorney, to appear before the court at the time and place stated in
18	18	the court's order for a conference and hearing. The defendant must
19	19	be present at the arraignment, and his presence is required during
20	20	any pre-trial proceeding. The pre-trial hearing shall be to
21	21	determine any of the following matters:
22	22	(1) Arraignment of the defendant, if such be
23	23	necessary; and appointment of counsel to represent the defendant,
24	24	if such be necessary;
25	25	(2) Pleadings of the defendant;
26	26	(3) Special pleas, if any;
27	27	(4) Exceptions to the form or substance of the
28	28	indictment or information;
29	29	(5) Motions for continuance either by the State or
30	30	defendant; provided that grounds for continuance not existing or
31	31	not known at the time may be presented and considered at any time
32	32	before the defendant announces ready for trial;
33	33	(6) Motions to suppress evidence--When a hearing on
34	34	the motion to suppress evidence is granted, the court may determine
35	35	the merits of said motion on the motions themselves, or upon
36	36	opposing affidavits, or upon oral testimony, subject to the
37	37	discretion of the court;
38	38	(7) Motions for change of venue by the State or the
39	39	defendant; provided, however, that such motions for change of
40	40	venue, if overruled at the pre-trial hearing, may be renewed by the
41	41	State or the defendant during the voir dire examination of the jury;
42	42	(8) Discovery;
43	43	(9) Entrapment; [and]
44	44	(10) Motion for appointment of interpreter; and
45	45	(11) Motion to allow the defendant to enter a pretrial
46	46	victim-offender mediation program established under Subchapter
47	47	A-1, Chapter 56.
48	48	SECTION 2. Chapter 56, Code of Criminal Procedure, is
49	49	amended by adding Subchapter A-1 to read as follows:
50	50	SUBCHAPTER A-1. PRETRIAL VICTIM-OFFENDER MEDIATION PROGRAM
51	51	Art. 56.21. AUTHORITY TO ESTABLISH PROGRAM. (a) The
52	52	commissioners court of a county or governing body of a municipality
53	53	may establish a pretrial victim-offender mediation program for
54	54	persons who:
55	55	(1) have been arrested for or charged with a
56	56	misdemeanor under Title 7, Penal Code, in any court in this state
57	57	other than a district court; and
58	58	(2) have not previously been convicted of a felony or a
59	59	misdemeanor, other than a misdemeanor regulating traffic and
60	60	punishable by fine only.
61	61	(b) A county court, statutory county court, municipal
62	62	court, or justice court that implements a program under this
63	63	subchapter may adopt administrative rules as necessary or
64	64	convenient to implement or operate the program, including
65	65	additional criteria related to a defendant's eligibility to enter
66	66	the program.
67	67	(c) The commissioners court of a county or governing body of
68	68	a municipality that establishes a pretrial victim-offender
69	69	mediation program under this subchapter may:
70	70	(1) allow for the referral to the program of arrested
71	71	persons who have not yet been indicted or otherwise formally
72	72	charged; and
73	73	(2) adopt administrative procedures as necessary to
74	74	implement and operate the program, including additional program
75	75	requirements that have been approved by the attorney representing
76	76	the state in the county or municipality, as applicable.
77	77	Art. 56.22. PROGRAM. (a) A pretrial victim-offender
78	78	mediation program established under Article 56.21 is coordinated by
79	79	the attorney representing the state and must require:
80	80	(1) the attorney representing the state:
81	81	(A) to identify defendants who are eligible to
82	82	participate in the program, including a consideration by the
83	83	attorney representing the state of whether the defendant meets any
84	84	additional locally developed eligibility criteria; and
85	85	(B) to the extent feasible, to provide to each
86	86	victim of an offense described by Article 56.21(a)(1) information
87	87	and literature indicating that a victim-offender mediation program
88	88	may be available in the criminal case if certain eligibility
89	89	criteria are met by the defendant;
90	90	(2) the consent of the victim, the defendant, and the
91	91	attorney representing the state to be obtained before the case may
92	92	proceed to pretrial victim-offender mediation; and
93	93	(3) the defendant to enter into a binding mediation
94	94	agreement in accordance with Article 56.24 that:
95	95	(A) includes an apology by the defendant; and
96	96	(B) requires the defendant to:
97	97	(i) pay restitution to the victim; or
98	98	(ii) perform community service.
99	99	(b) All communications made in a pretrial victim-offender
100	100	mediation program are confidential and may not be introduced into
101	101	evidence except in a proceeding involving a question concerning the
102	102	meaning of a mediation agreement.
103	103	(c) A pretrial victim-offender mediation program may
104	104	require the staff and other resources of pretrial services
105	105	departments and community supervision correction departments to
106	106	assist in monitoring the defendant's compliance with a mediation
107	107	agreement reached through the program.
108	108	(d) A pretrial victim-offender mediation may be conducted
109	109	by a court-appointed mediator who meets the training requirements
110	110	provided by Sections 154.052(a) and (b), Civil Practice and
111	111	Remedies Code, or by any other appropriate person designated by the
112	112	court. Neither the attorney representing the state nor the
113	113	attorney representing the defendant in the criminal action may
114	114	serve as a mediator under the pretrial victim-offender mediation
115	115	program.
116	116	(e) If a defendant enters a pretrial victim-offender
117	117	mediation program, the court may defer the proceedings without
118	118	accepting a plea of guilty or nolo contendere or entering an
119	119	adjudication of guilt. The court may not require the defendant to
120	120	admit guilt or enter a plea of guilty or nolo contendere to enter
121	121	the program.
122	122	(f) The case must be returned to the docket and proceed
123	123	through the regular criminal justice system if:
124	124	(1) a pretrial victim-offender mediation does not
125	125	result in a mediation agreement; or
126	126	(2) the defendant fails to successfully fulfill the
127	127	terms of the mediation agreement by the date specified in the
128	128	mediation agreement.
129	129	(g) If a case is returned to the docket under Subsection
130	130	(f), the defendant retains all of the rights that the defendant
131	131	possessed before entering the pretrial victim-offender mediation
132	132	program under this subchapter. Notwithstanding any other law, for
133	133	purposes of determining the duration and expiration of an
134	134	applicable statute of limitation under Chapter 12, the running of
135	135	the period of limitation is tolled while the defendant is enrolled
136	136	in a program under this subchapter.
137	137	(h) The court on the motion of the attorney representing the
138	138	state shall dismiss the indictment or information charging the
139	139	defendant with the commission of the offense, if the defendant:
140	140	(1) successfully completes the mediation agreement as
141	141	determined by the attorney representing the state; and
142	142	(2) either:
143	143	(A) pays all court costs; or
144	144	(B) enters a payment plan approved by the court
145	145	or the attorney representing the state for such payment.
146	146	(i) The attorney representing the state or the court may
147	147	extend the initial compliance period granted to the defendant. A
148	148	determination by the court regarding whether the mediation
149	149	agreement has been successfully completed is final and may not be
150	150	appealed.
151	151	(j) If the defendant is not arrested or convicted of a
152	152	subsequent felony or misdemeanor other than a misdemeanor
153	153	regulating traffic and punishable by fine only on or before the
154	154	first anniversary of the date the defendant successfully completed
155	155	a mediation agreement under this subchapter, on the motion of the
156	156	defendant, the court shall enter an order of nondisclosure under
157	157	Section 411.081, Government Code, as if the defendant had received
158	158	a discharge and dismissal under Section 5(c), Article 42.12, with
159	159	respect to all records and files related to the defendant's arrest
160	160	for the offense for which the defendant entered the pretrial
161	161	victim-offender mediation program.
162	162	Art. 56.23. MOTION AND HEARING. (a) The court on its own
163	163	motion may, and on the motion of either party shall, hold a pretrial
164	164	hearing to determine whether to allow an eligible defendant to
165	165	enter a pretrial victim-offender mediation program under this
166	166	subchapter.
167	167	(b) The court shall conduct a pretrial hearing under this
168	168	article in accordance with Chapter 28 and the rules of evidence.
169	169	(c) At a pretrial hearing under this article, either party
170	170	may present any evidence relevant to the defendant's eligibility
171	171	under Article 56.22 and other additional locally developed
172	172	eligibility criteria to enter a pretrial victim-offender mediation
173	173	program.
174	174	Art. 56.24. MEDIATION AGREEMENT. (a) A mediation
175	175	agreement under this subchapter must be:
176	176	(1) signed by the defendant and the victim; and
177	177	(2) ratified by the attorney representing the state in
178	178	a request for a court order documenting and approving the mediation
179	179	agreement.
180	180	(b) A mediation agreement under this subchapter may require
181	181	testing, counseling, and treatment of the defendant to address
182	182	alcohol abuse, abuse of controlled substances, mental health, or
183	183	anger management or any other service that is reasonably related to
184	184	the offense for which the defendant was arrested or charged.
185	185	(c) A mediation agreement under this subchapter is not valid
186	186	for more than one year after the date on which the mediation
187	187	agreement is ratified unless the court and the attorney
188	188	representing the state approve the extension of the agreement.
189	189	(d) A mediation agreement under this subchapter does not
190	190	constitute a plea or legal admission of responsibility.
191	191	Art. 56.25. OVERSIGHT. (a) The lieutenant governor and the
192	192	speaker of the house of representatives may assign to appropriate
193	193	legislative committees duties relating to the oversight of pretrial
194	194	victim-offender mediation programs established under this
195	195	subchapter.
196	196	(b) A legislative committee or the governor may request the
197	197	state auditor to perform a management, operations, or financial or
198	198	accounting audit of a pretrial victim-offender mediation program
199	199	established under this subchapter.
200	200	Art. 56.26. FEES. (a) A pretrial victim-offender
201	201	mediation program established under this subchapter may collect
202	202	from a defendant in the program:
203	203	(1) a reasonable program participation fee not to
204	204	exceed $500; and
205	205	(2) an alcohol or controlled substance testing,
206	206	counseling, and treatment fee in an amount necessary to cover the
207	207	costs of the testing, counseling, or treatment if such testing,
208	208	counseling, or treatment is required by the mediation agreement.
209	209	(b) Fees collected under this article may be paid on a
210	210	periodic basis or on a deferred payment schedule at the discretion
211	211	of the judge, magistrate, or program director administering the
212	212	pretrial victim-offender mediation program. The fees must be:
213	213	(1) based on the defendant's ability to pay; and
214	214	(2) used only for purposes specific to the program.
215	215	SECTION 3. Subchapter A, Chapter 102, Code of Criminal
216	216	Procedure, is amended by adding Article 102.0179 to read as
217	217	follows:
218	218	Art. 102.0179. COSTS ATTENDANT TO PRETRIAL VICTIM-OFFENDER
219	219	MEDIATION. (a) A defendant who participates in a pretrial
220	220	victim-offender mediation program established under Subchapter
221	221	A-1, Chapter 56, on successful completion of the terms of the
222	222	defendant's mediation agreement or on conviction, shall pay as
223	223	court costs $15 plus an additional program participation fee as
224	224	described by Article 56.26 in the amount prescribed by that
225	225	article.
226	226	(b) The court clerk shall collect the costs imposed under
227	227	this article. The clerk shall keep a separate record of any money
228	228	collected under this article and shall pay any money collected to
229	229	the county or municipal treasurer, as appropriate, or to any other
230	230	official who discharges the duties commonly delegated to a
231	231	treasurer, for deposit in a fund to be known as the county pretrial
232	232	victim-offender mediation program fund or in a fund to be known as
233	233	the municipal pretrial victim-offender mediation program fund, as
234	234	appropriate.
235	235	(c) A county or municipality that collects court costs under
236	236	this article shall use the money in a fund described by Subsection
237	237	(b) exclusively for the maintenance of the pretrial victim-offender
238	238	mediation program operated in the county or municipality.
239	239	SECTION 4. Subchapter B, Chapter 102, Government Code, is
240	240	amended by adding Section 102.0216 to read as follows:
241	241	Sec. 102.0216. ADDITIONAL COURT COSTS: CODE OF CRIMINAL
242	242	PROCEDURE. A defendant who participates in a pretrial
243	243	victim-offender mediation program established under Subchapter
244	244	A-1, Chapter 56, Code of Criminal Procedure, shall pay on
245	245	successful completion of the terms of the defendant's mediation
246	246	agreement or on conviction, in addition to all other costs, to help
247	247	fund pretrial victim-offender mediation programs established under
248	248	that subchapter (Art. 102.0179, Code of Criminal Procedure) . . .
249	249	$15 plus an additional program participation fee in an amount not to
250	250	exceed $500.
251	251	SECTION 5. (a) The change in law made by this Act in adding
252	252	Subchapter A-1, Chapter 56, Code of Criminal Procedure, applies to
253	253	a defendant who enters a pretrial victim-offender mediation program
254	254	under that subchapter regardless of whether the defendant committed
255	255	the offense for which the defendant enters the program before, on,
256	256	or after the effective date of this Act.
257	257	(b) The change in law made by this Act in adding Article
258	258	102.0179, Code of Criminal Procedure, and Section 102.0216,
259	259	Government Code, applies only to an offense committed on or after
260	260	the effective date of this Act. An offense committed before the
261	261	effective date of this Act is governed by the law in effect when the
262	262	offense was committed, and the former law is continued in effect for
263	263	that purpose. For purposes of this subsection, an offense was
264	264	committed before the effective date of this Act if any element of
265	265	the offense was committed before that date.
266	266	SECTION 6. This Act takes effect immediately if it receives
267	267	a vote of two-thirds of all the members elected to each house, as
268	268	provided by Section 39, Article III, Texas Constitution. If this
269	269	Act does not receive the vote necessary for immediate effect, this
270	270	Act takes effect September 1, 2011.