82R22719 SJM-D
By: McClendon H.B. No. 2019
Substitute the following for H.B. No. 2019:
By: Aliseda C.S.H.B. No. 2019
A BILL TO BE ENTITLED
AN ACT
relating to the establishment, operation, and funding of
victim-offender mediation programs.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1, Article 28.01, Code of Criminal
Procedure, is amended to read as follows:
Sec. 1. The court may set any criminal case for a pre-trial
hearing before it is set for trial upon its merits, and direct the
defendant and his attorney, if any of record, and the State's
attorney, to appear before the court at the time and place stated in
the court's order for a conference and hearing. The defendant must
be present at the arraignment, and his presence is required during
any pre-trial proceeding. The pre-trial hearing shall be to
determine any of the following matters:
(1) Arraignment of the defendant, if such be
necessary; and appointment of counsel to represent the defendant,
if such be necessary;
(2) Pleadings of the defendant;
(3) Special pleas, if any;
(4) Exceptions to the form or substance of the
indictment or information;
(5) Motions for continuance either by the State or
defendant; provided that grounds for continuance not existing or
not known at the time may be presented and considered at any time
before the defendant announces ready for trial;
(6) Motions to suppress evidence--When a hearing on
the motion to suppress evidence is granted, the court may determine
the merits of said motion on the motions themselves, or upon
opposing affidavits, or upon oral testimony, subject to the
discretion of the court;
(7) Motions for change of venue by the State or the
defendant; provided, however, that such motions for change of
venue, if overruled at the pre-trial hearing, may be renewed by the
State or the defendant during the voir dire examination of the jury;
(8) Discovery;
(9) Entrapment; [and]
(10) Motion for appointment of interpreter; and
(11) Motion to allow the defendant to enter a pretrial
victim-offender mediation program established under Subchapter
A-1, Chapter 56.
SECTION 2. Chapter 56, Code of Criminal Procedure, is
amended by adding Subchapter A-1 to read as follows:
SUBCHAPTER A-1. PRETRIAL VICTIM-OFFENDER MEDIATION PROGRAM
Art. 56.21. AUTHORITY TO ESTABLISH PROGRAM. (a) The
commissioners court of a county or governing body of a municipality
may establish a pretrial victim-offender mediation program for
persons who:
(1) have been arrested for or charged with a
misdemeanor under Title 7, Penal Code, in any court in this state
other than a district court; and
(2) have not previously been convicted of a felony or a
misdemeanor, other than a misdemeanor regulating traffic and
punishable by fine only.
(b) A county court, statutory county court, municipal
court, or justice court that implements a program under this
subchapter may adopt administrative rules as necessary or
convenient to implement or operate the program, including
additional criteria related to a defendant's eligibility to enter
the program.
(c) The commissioners court of a county or governing body of
a municipality that establishes a pretrial victim-offender
mediation program under this subchapter may:
(1) allow for the referral to the program of arrested
persons who have not yet been indicted or otherwise formally
charged; and
(2) adopt administrative procedures as necessary to
implement and operate the program, including additional program
requirements that have been approved by the attorney representing
the state in the county or municipality, as applicable.
Art. 56.22. PROGRAM. (a) A pretrial victim-offender
mediation program established under Article 56.21 is coordinated by
the attorney representing the state and must require:
(1) the attorney representing the state:
(A) to identify defendants who are eligible to
participate in the program, including a consideration by the
attorney representing the state of whether the defendant meets any
additional locally developed eligibility criteria; and
(B) to the extent feasible, to provide to each
victim of an offense described by Article 56.21(a)(1) information
and literature indicating that a victim-offender mediation program
may be available in the criminal case if certain eligibility
criteria are met by the defendant;
(2) the consent of the victim, the defendant, and the
attorney representing the state to be obtained before the case may
proceed to pretrial victim-offender mediation; and
(3) the defendant to enter into a binding mediation
agreement in accordance with Article 56.24 that:
(A) includes an apology by the defendant; and
(B) requires the defendant to:
(i) pay restitution to the victim; or
(ii) perform community service.
(b) All communications made in a pretrial victim-offender
mediation program are confidential and may not be introduced into
evidence except in a proceeding involving a question concerning the
meaning of a mediation agreement.
(c) A pretrial victim-offender mediation program may
require the staff and other resources of pretrial services
departments and community supervision correction departments to
assist in monitoring the defendant's compliance with a mediation
agreement reached through the program.
(d) A pretrial victim-offender mediation may be conducted
by a court-appointed mediator who meets the training requirements
provided by Sections 154.052(a) and (b), Civil Practice and
Remedies Code, or by any other appropriate person designated by the
court. Neither the attorney representing the state nor the
attorney representing the defendant in the criminal action may
serve as a mediator under the pretrial victim-offender mediation
program.
(e) If a defendant enters a pretrial victim-offender
mediation program, the court may defer the proceedings without
accepting a plea of guilty or nolo contendere or entering an
adjudication of guilt. The court may not require the defendant to
admit guilt or enter a plea of guilty or nolo contendere to enter
the program.
(f) The case must be returned to the docket and proceed
through the regular criminal justice system if:
(1) a pretrial victim-offender mediation does not
result in a mediation agreement; or
(2) the defendant fails to successfully fulfill the
terms of the mediation agreement by the date specified in the
mediation agreement.
(g) If a case is returned to the docket under Subsection
(f), the defendant retains all of the rights that the defendant
possessed before entering the pretrial victim-offender mediation
program under this subchapter. Notwithstanding any other law, for
purposes of determining the duration and expiration of an
applicable statute of limitation under Chapter 12, the running of
the period of limitation is tolled while the defendant is enrolled
in a program under this subchapter.
(h) The court on the motion of the attorney representing the
state shall dismiss the indictment or information charging the
defendant with the commission of the offense, if the defendant:
(1) successfully completes the mediation agreement as
determined by the attorney representing the state; and
(2) either:
(A) pays all court costs; or
(B) enters a payment plan approved by the court
or the attorney representing the state for such payment.
(i) The attorney representing the state or the court may
extend the initial compliance period granted to the defendant. A
determination by the court regarding whether the mediation
agreement has been successfully completed is final and may not be
appealed.
(j) If the defendant is not arrested or convicted of a
subsequent felony or misdemeanor other than a misdemeanor
regulating traffic and punishable by fine only on or before the
first anniversary of the date the defendant successfully completed
a mediation agreement under this subchapter, on the motion of the
defendant, the court shall enter an order of nondisclosure under
Section 411.081, Government Code, as if the defendant had received
a discharge and dismissal under Section 5(c), Article 42.12, with
respect to all records and files related to the defendant's arrest
for the offense for which the defendant entered the pretrial
victim-offender mediation program.
Art. 56.23. MOTION AND HEARING. (a) The court on its own
motion may, and on the motion of either party shall, hold a pretrial
hearing to determine whether to allow an eligible defendant to
enter a pretrial victim-offender mediation program under this
subchapter.
(b) The court shall conduct a pretrial hearing under this
article in accordance with Chapter 28 and the rules of evidence.
(c) At a pretrial hearing under this article, either party
may present any evidence relevant to the defendant's eligibility
under Article 56.22 and other additional locally developed
eligibility criteria to enter a pretrial victim-offender mediation
program.
Art. 56.24. MEDIATION AGREEMENT. (a) A mediation
agreement under this subchapter must be:
(1) signed by the defendant and the victim; and
(2) ratified by the attorney representing the state in
a request for a court order documenting and approving the mediation
agreement.
(b) A mediation agreement under this subchapter may require
testing, counseling, and treatment of the defendant to address
alcohol abuse, abuse of controlled substances, mental health, or
anger management or any other service that is reasonably related to
the offense for which the defendant was arrested or charged.
(c) A mediation agreement under this subchapter is not valid
for more than one year after the date on which the mediation
agreement is ratified unless the court and the attorney
representing the state approve the extension of the agreement.
(d) A mediation agreement under this subchapter does not
constitute a plea or legal admission of responsibility.
Art. 56.25. OVERSIGHT. (a) The lieutenant governor and the
speaker of the house of representatives may assign to appropriate
legislative committees duties relating to the oversight of pretrial
victim-offender mediation programs established under this
subchapter.
(b) A legislative committee or the governor may request the
state auditor to perform a management, operations, or financial or
accounting audit of a pretrial victim-offender mediation program
established under this subchapter.
Art. 56.26. FEES. (a) A pretrial victim-offender
mediation program established under this subchapter may collect
from a defendant in the program:
(1) a reasonable program participation fee not to
exceed $500; and
(2) an alcohol or controlled substance testing,
counseling, and treatment fee in an amount necessary to cover the
costs of the testing, counseling, or treatment if such testing,
counseling, or treatment is required by the mediation agreement.
(b) Fees collected under this article may be paid on a
periodic basis or on a deferred payment schedule at the discretion
of the judge, magistrate, or program director administering the
pretrial victim-offender mediation program. The fees must be:
(1) based on the defendant's ability to pay; and
(2) used only for purposes specific to the program.
SECTION 3. Subchapter A, Chapter 102, Code of Criminal
Procedure, is amended by adding Article 102.0179 to read as
follows:
Art. 102.0179. COSTS ATTENDANT TO PRETRIAL VICTIM-OFFENDER
MEDIATION. (a) A defendant who participates in a pretrial
victim-offender mediation program established under Subchapter
A-1, Chapter 56, on successful completion of the terms of the
defendant's mediation agreement or on conviction, shall pay as
court costs $15 plus an additional program participation fee as
described by Article 56.26 in the amount prescribed by that
article.
(b) The court clerk shall collect the costs imposed under
this article. The clerk shall keep a separate record of any money
collected under this article and shall pay any money collected to
the county or municipal treasurer, as appropriate, or to any other
official who discharges the duties commonly delegated to a
treasurer, for deposit in a fund to be known as the county pretrial
victim-offender mediation program fund or in a fund to be known as
the municipal pretrial victim-offender mediation program fund, as
appropriate.
(c) A county or municipality that collects court costs under
this article shall use the money in a fund described by Subsection
(b) exclusively for the maintenance of the pretrial victim-offender
mediation program operated in the county or municipality.
SECTION 4. Subchapter B, Chapter 102, Government Code, is
amended by adding Section 102.0216 to read as follows:
Sec. 102.0216. ADDITIONAL COURT COSTS: CODE OF CRIMINAL
PROCEDURE. A defendant who participates in a pretrial
victim-offender mediation program established under Subchapter
A-1, Chapter 56, Code of Criminal Procedure, shall pay on
successful completion of the terms of the defendant's mediation
agreement or on conviction, in addition to all other costs, to help
fund pretrial victim-offender mediation programs established under
that subchapter (Art. 102.0179, Code of Criminal Procedure) . . .
$15 plus an additional program participation fee in an amount not to
exceed $500.
SECTION 5. (a) The change in law made by this Act in adding
Subchapter A-1, Chapter 56, Code of Criminal Procedure, applies to
a defendant who enters a pretrial victim-offender mediation program
under that subchapter regardless of whether the defendant committed
the offense for which the defendant enters the program before, on,
or after the effective date of this Act.
(b) The change in law made by this Act in adding Article
102.0179, Code of Criminal Procedure, and Section 102.0216,
Government Code, 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 governed 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 subsection, an offense was
committed before the effective date of this Act if any element of
the offense was committed before that date.
SECTION 6. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2011.