By: Gallego H.B. No. 3691
A BILL TO BE ENTITLED
AN ACT
relating to the provision by certain judges or community
supervision and corrections departments of certain programs and
services, including certain pretrial programs and services, and to
the imposition of certain sanctions against defendants supervised
by those departments.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 76.002, Government Code, is amended by
adding Subsections (a-1) and (f) and amending Subsection (e) to
read as follows:
(a-1) The statutory county court judges trying criminal
cases in the county or counties served by the judicial district may
establish a pretrial victim-offender mediation program in
accordance with Subchapter A-1, Chapter 56, Code of Criminal
Procedure.
(e) The board shall [may] adopt rules allowing departments
to contract with one another for services or facilities or to
contract as provided by Subsection (f).
(f) In lieu of establishing a department as required by
Subsection (a), programs and services may be provided under this
chapter in a judicial district through a contract with a department
established for another judicial district.
SECTION 2. Chapter 76, Government Code, is amended by
adding Section 76.0021 to read as follows:
Sec. 76.0021. SYSTEM OF PROGRESSIVE INTERMEDIATE
SANCTIONS. (a) In addition to performing the duties delegated
under Section 76.002, the judges described by that section shall,
for the district courts and county courts at law in the judicial
district that try criminal cases:
(1) adopt a single system of progressive intermediate
sanctions for violations of conditions of community supervision
that includes:
(A) sanctions for a failure to report, to
participate in a program or service, to refrain from the use of
alcohol or a controlled substance, or to pay fines, fees, and costs;
and
(B) sanctions targeted for special cases or high
risk offenders; and
(2) establish a review process to follow in
considering a reduction in or early termination of community
supervision.
(b) In adopting a system of progressive intermediate
sanctions under this section, the judges described by Section
76.002 shall consider and may adopt the model list of intermediate
sanctions established under Section 509.017, Government Code.
SECTION 3. 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 Section
76.002, Government Code.
SECTION 4. Section 10, Article 42.12, Code of Criminal
Procedure, is amended by amending Subsections (a), (d), and (e) and
adding Subsections (d-1) and (d-2) to read as follows:
(a) Only the court in which the defendant was tried may
grant community supervision, impose conditions, revoke the
community supervision, or discharge the defendant, unless the judge
has transferred jurisdiction of the case to another court with the
latter's consent. Except as provided by Subsections [Subsection]
(d) and (d-1) of this section, only the judge may alter conditions
of community supervision. In a felony case, only the judge who
originally sentenced the defendant may suspend execution thereof
and place the defendant under community supervision pursuant to
Section 6 of this article. If the judge who originally sentenced
the defendant is deceased or disabled or if the office is vacant and
the judge who originally sentenced the defendant is deceased or
disabled or if the office is vacant and a motion is filed in
accordance with Section 6 of this article, the clerk of the court
shall promptly forward a copy of the motion to the presiding judge
of the administrative judicial district for that court, who may
deny the motion without a hearing or appoint a judge to hold a
hearing on the motion.
(d) A judge that places a defendant on community supervision
may authorize the supervision officer supervising the defendant [or
a magistrate appointed by the district courts in the county that
give preference to criminal cases] to modify the conditions of
community supervision for the limited purpose of imposing an
intermediate sanction under Subsection (d-1) [transferring the
defendant to different programs within the community supervision
continuum of programs and sanctions]. Before imposing an
intermediate sanction, a supervision officer shall provide written
notice to the defendant of the nature of the violation or violations
involved, the date on which each violation occurred, and the
intermediate sanction to be imposed.
(d-1) The imposition of an intermediate sanction under this
section must conform with the system of progressive intermediate
sanctions adopted under Section 76.0021, Government Code. On
receipt of notice under Subsection (d), the defendant shall
immediately accept or object to the imposition of the intermediate
sanction. A defendant who objects to the imposition of the
intermediate sanction is entitled to an administrative review to be
conducted by the community supervision and corrections department
supervising the defendant not later than the fifth day after the
date the defendant received the notice. At the conclusion of the
administrative review, the director of the community supervision
and corrections department, or the director's designee, shall
dismiss or affirm the imposition of the intermediate sanction. If
the director or director's designee, as applicable, affirms the
imposition of the intermediate sanction, the intermediate sanction
becomes effective immediately. On successful completion of an
intermediate sanction, the court may not revoke community
supervision, proceed to an adjudication in the case, or impose any
other sanction based on the violation for which the intermediate
sanction was imposed.
(d-2) A supervision officer may not:
(1) impose an intermediate sanction under Subsection
(d) or (d-1) in response to a violation of the terms of community
supervision if the violation is based on the commission of a felony
offense; or
(2) impose as an intermediate sanction under
Subsection (d) or (d-1) any condition extending the term of
community supervision, increasing a fine, or placing a defendant in
a correctional facility, as defined by Section 1.07, Penal Code.
(e) A [If a] supervision officer who [or magistrate]
modifies the conditions of community supervision by imposing an
intermediate sanction[, the officer or magistrate] shall:
(1) deliver a copy of the modified conditions to the
defendant;
(2) [, shall] file a copy of the modified conditions
with the sentencing court; [,] and
(3) [shall] note the date of delivery of the copy in
the defendant's file. [If the defendant agrees to the modification
in writing, the officer or magistrate shall file a copy of the
modified conditions with the district clerk and the conditions
shall be enforced as modified. If the defendant does not agree to
the modification in writing, the supervision officer or magistrate
shall refer the case to the judge of the court for modification in
the manner provided by Section 22 of this article.]
SECTION 5. Section 11(a), Article 42.12, Code of Criminal
Procedure, is amended to read as follows:
(a) The judge of the court having jurisdiction of the case
shall determine the conditions of community supervision and may, at
any time during the period of community supervision, alter or
modify the conditions. The judge may impose any reasonable
condition that is designed to protect or restore the community,
protect or restore the victim, or punish, rehabilitate, or reform
the defendant. Conditions of community supervision may include,
but shall not be limited to, the conditions that the defendant
shall:
(1) Commit no offense against the laws of this State or
of any other State or of the United States;
(2) Avoid injurious or vicious habits;
(3) Avoid persons or places of disreputable or harmful
character, including any person, other than a family member of the
defendant, who is an active member of a criminal street gang;
(4) Report to the supervision officer as directed by
the judge or supervision officer, [and] obey all rules and
regulations of the community supervision and corrections
department, and comply with any intermediate sanction imposed by
the supervision officer under Section 10, unless the condition is
dismissed by the director of the community supervision and
corrections department or by the director's designee;
(5) Permit the supervision officer to visit the
defendant at the defendant's home or elsewhere;
(6) Work faithfully at suitable employment as far as
possible;
(7) Remain within a specified place;
(8) Pay the defendant's fine, if one is assessed, and
all court costs whether a fine is assessed or not, in one or several
sums;
(9) Support the defendant's dependents;
(10) Participate, for a time specified by the judge,
in any community-based program, including a community-service work
program under Section 16 of this article;
(11) Reimburse the county in which the prosecution was
instituted for compensation paid to appointed counsel for defending
the defendant in the case, if counsel was appointed, or if the
defendant was represented by a county-paid public defender, in an
amount that would have been paid to an appointed attorney had the
county not had a public defender;
(12) Remain under custodial supervision in a community
corrections facility, obey all rules and regulations of the
facility, and pay a percentage of the defendant's income to the
facility for room and board;
(13) Pay a percentage of the defendant's income to the
defendant's dependents for their support while under custodial
supervision in a community corrections facility;
(14) Submit to testing for alcohol or controlled
substances;
(15) Attend counseling sessions for substance abusers
or participate in substance abuse treatment services in a program
or facility approved or licensed by the Texas Commission on Alcohol
and Drug Abuse;
(16) With the consent of the victim of a misdemeanor
offense or of any offense under Title 7, Penal Code, participate in
victim-defendant mediation;
(17) Submit to electronic monitoring;
(18) Reimburse the compensation to victims of crime
fund for any amounts paid from that fund to or on behalf of a victim,
as defined by Article 56.32, of the defendant's offense or if no
reimbursement is required, make one payment to the compensation to
victims of crime fund in an amount not to exceed $50 if the offense
is a misdemeanor or not to exceed $100 if the offense is a felony;
(19) Reimburse a law enforcement agency for the
analysis, storage, or disposal of raw materials, controlled
substances, chemical precursors, drug paraphernalia, or other
materials seized in connection with the offense;
(20) Pay all or part of the reasonable and necessary
costs incurred by the victim for psychological counseling made
necessary by the offense or for counseling and education relating
to acquired immune deficiency syndrome or human immunodeficiency
virus made necessary by the offense;
(21) Make one payment in an amount not to exceed $50 to
a crime stoppers organization as defined by Section 414.001,
Government Code, and as certified by the Texas Crime Stoppers
Council;
(22) Submit a DNA sample to the Department of Public
Safety under Subchapter G, Chapter 411, Government Code, for the
purpose of creating a DNA record of the defendant;
(23) In any manner required by the judge, provide
public notice of the offense for which the defendant was placed on
community supervision in the county in which the offense was
committed; and
(24) Reimburse the county in which the prosecution was
instituted for compensation paid to any interpreter in the case.
SECTION 6. 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) A
statutory county court judge may establish a pretrial
victim-offender mediation program under Section 76.002, Government
Code, for persons who:
(1) have been arrested for or charged with a
misdemeanor under Title 7, Penal Code, in a statutory county court
in this state; 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 statutory county 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 judge of a statutory county court 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.
Art. 56.22. PROGRAM. (a) A pretrial victim-offender
mediation program established under Section 76.002, Government
Code, 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 7. 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 Section
76.002, Government Code, 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 treasurer or to any other official who discharges the
duties commonly delegated to the county treasurer for deposit in a
fund to be known as the county pretrial victim-offender mediation
program fund.
(c) A county 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.
SECTION 8. 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 Section 76.002
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 section (Art. 102.0179, Code of Criminal
Procedure) . . . $15 plus an additional program participation fee
in an amount not to exceed $500.
SECTION 9. Chapter 509, Government Code, is amended by
adding Section 509.017 to read as follows:
Sec. 509.017. MODEL LIST OF PROGRESSIVE INTERMEDIATE
SANCTIONS. The division shall establish a model list of
progressive intermediate sanctions that may be adopted in a
judicial district under Section 76.0021.
SECTION 10. (a) The change in law made by this Act in
adding Section 76.002(a-1), Government Code, and 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 11. (a) The judges described by Section 76.002,
Government Code, shall adopt the system and establish the review
process required by Section 76.0021, Government Code, as added by
this Act, not later than January 1, 2012.
(b) The community justice assistance division of the Texas
Department of Criminal Justice shall adopt the model list of
progressive intermediate sanctions as required by Section 509.017,
Government Code, as added by this Act, not later than November 1,
2011.
SECTION 12. 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.