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Texas Senate Bill SB1436

Texas 2011 - 82nd Regular

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11 By: Van de Putte S.B. No. 1436
22 (In the Senate - Filed March 10, 2011; March 14, 2011, read
33 first time and referred to Committee on Criminal Justice;
44 March 21, 2011, reported favorably by the following vote: Yeas 7,
55 Nays 0; March 21, 2011, sent to printer.)
66
77
88 A BILL TO BE ENTITLED
99 AN ACT
1010 relating to creating the offense of continuous trafficking of
1111 persons; providing a penalty and other civil consequences.
1212 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1313 SECTION 1. Chapter 20A, Penal Code, is amended by adding
1414 Section 20A.03 to read as follows:
1515 Sec. 20A.03. CONTINUOUS TRAFFICKING OF PERSONS. (a) A
1616 person commits an offense if, during a period that is 30 or more
1717 days in duration, the person engages two or more times in conduct
1818 that constitutes an offense under Section 20A.02.
1919 (b) If a jury is the trier of fact, members of the jury are
2020 not required to agree unanimously on which specific conduct engaged
2121 in by the defendant constituted an offense under Section 20A.02 or
2222 on which exact date the defendant engaged in that conduct. The jury
2323 must agree unanimously that the defendant, during a period that is
2424 30 or more days in duration, engaged in conduct that constituted an
2525 offense under Section 20A.02.
2626 (c) If the victim of an offense under Subsection (a) is the
2727 same victim as a victim of an offense under Section 20A.02, a
2828 defendant may not be convicted of the offense under Section 20A.02
2929 in the same criminal action as the offense under Subsection (a),
3030 unless the offense under Section 20A.02:
3131 (1) is charged in the alternative;
3232 (2) occurred outside the period in which the offense
3333 alleged under Subsection (a) was committed; or
3434 (3) is considered by the trier of fact to be a lesser
3535 included offense of the offense alleged under Subsection (a).
3636 (d) A defendant may not be charged with more than one count
3737 under Subsection (a) if all of the conduct that constitutes an
3838 offense under Section 20A.02 is alleged to have been committed
3939 against the same victim.
4040 (e) An offense under this section is a felony of the first
4141 degree, punishable by imprisonment in the Texas Department of
4242 Criminal Justice for life or for any term of not more than 99 years
4343 or less than 25 years.
4444 SECTION 2. Article 12.01, Code of Criminal Procedure, is
4545 amended to read as follows:
4646 Art. 12.01. FELONIES. Except as provided in Article 12.03,
4747 felony indictments may be presented within these limits, and not
4848 afterward:
4949 (1) no limitation:
5050 (A) murder and manslaughter;
5151 (B) sexual assault under Section 22.011(a)(2),
5252 Penal Code, or aggravated sexual assault under Section
5353 22.021(a)(1)(B), Penal Code;
5454 (C) sexual assault, if during the investigation
5555 of the offense biological matter is collected and subjected to
5656 forensic DNA testing and the testing results show that the matter
5757 does not match the victim or any other person whose identity is
5858 readily ascertained;
5959 (D) continuous sexual abuse of young child or
6060 children under Section 21.02, Penal Code;
6161 (E) indecency with a child under Section 21.11,
6262 Penal Code; [or]
6363 (F) an offense involving leaving the scene of an
6464 accident under Section 550.021, Transportation Code, if the
6565 accident resulted in the death of a person; or
6666 (G) continuous trafficking of persons under
6767 Section 20A.03, Penal Code;
6868 (2) ten years from the date of the commission of the
6969 offense:
7070 (A) theft of any estate, real, personal or mixed,
7171 by an executor, administrator, guardian or trustee, with intent to
7272 defraud any creditor, heir, legatee, ward, distributee,
7373 beneficiary or settlor of a trust interested in such estate;
7474 (B) theft by a public servant of government
7575 property over which he exercises control in his official capacity;
7676 (C) forgery or the uttering, using or passing of
7777 forged instruments;
7878 (D) injury to an elderly or disabled individual
7979 punishable as a felony of the first degree under Section 22.04,
8080 Penal Code;
8181 (E) sexual assault, except as provided by
8282 Subdivision (1); or
8383 (F) arson;
8484 (3) seven years from the date of the commission of the
8585 offense:
8686 (A) misapplication of fiduciary property or
8787 property of a financial institution;
8888 (B) securing execution of document by deception;
8989 (C) a felony violation under Chapter 162, Tax
9090 Code;
9191 (D) false statement to obtain property or credit
9292 under Section 32.32, Penal Code;
9393 (E) money laundering;
9494 (F) credit card or debit card abuse under Section
9595 32.31, Penal Code; or
9696 (G) fraudulent use or possession of identifying
9797 information under Section 32.51, Penal Code;
9898 (4) five years from the date of the commission of the
9999 offense:
100100 (A) theft or robbery;
101101 (B) except as provided by Subdivision (5),
102102 kidnapping or burglary;
103103 (C) injury to an elderly or disabled individual
104104 that is not punishable as a felony of the first degree under Section
105105 22.04, Penal Code;
106106 (D) abandoning or endangering a child; or
107107 (E) insurance fraud;
108108 (5) if the investigation of the offense shows that the
109109 victim is younger than 17 years of age at the time the offense is
110110 committed, 20 years from the 18th birthday of the victim of one of
111111 the following offenses:
112112 (A) sexual performance by a child under Section
113113 43.25, Penal Code;
114114 (B) aggravated kidnapping under Section
115115 20.04(a)(4), Penal Code, if the defendant committed the offense
116116 with the intent to violate or abuse the victim sexually; or
117117 (C) burglary under Section 30.02, Penal Code, if
118118 the offense is punishable under Subsection (d) of that section and
119119 the defendant committed the offense with the intent to commit an
120120 offense described by Subdivision (1)(B) or (D) of this article or
121121 Paragraph (B) of this subdivision;
122122 (6) ten years from the 18th birthday of the victim of
123123 the offense: injury to a child under Section 22.04, Penal Code; or
124124 (7) three years from the date of the commission of the
125125 offense: all other felonies.
126126 SECTION 3. Subsection (b), Article 17.03, Code of Criminal
127127 Procedure, is amended to read as follows:
128128 (b) Only the court before whom the case is pending may
129129 release on personal bond a defendant who:
130130 (1) is charged with an offense under the following
131131 sections of the Penal Code:
132132 (A) Section 19.03 (Capital Murder);
133133 (B) Section 20.04 (Aggravated Kidnapping);
134134 (C) Section 22.021 (Aggravated Sexual Assault);
135135 (D) Section 22.03 (Deadly Assault on Law
136136 Enforcement or Corrections Officer, Member or Employee of Board of
137137 Pardons and Paroles, or Court Participant);
138138 (E) Section 22.04 (Injury to a Child, Elderly
139139 Individual, or Disabled Individual);
140140 (F) Section 29.03 (Aggravated Robbery);
141141 (G) Section 30.02 (Burglary);
142142 (H) Section 71.02 (Engaging in Organized
143143 Criminal Activity); [or]
144144 (I) Section 21.02 (Continuous Sexual Abuse of
145145 Young Child or Children); or
146146 (J) Section 20A.03 (Continuous Trafficking of
147147 Persons);
148148 (2) is charged with a felony under Chapter 481, Health
149149 and Safety Code, or Section 485.033, Health and Safety Code,
150150 punishable by imprisonment for a minimum term or by a maximum fine
151151 that is more than a minimum term or maximum fine for a first degree
152152 felony; or
153153 (3) does not submit to testing for the presence of a
154154 controlled substance in the defendant's body as requested by the
155155 court or magistrate under Subsection (c) of this article or submits
156156 to testing and the test shows evidence of the presence of a
157157 controlled substance in the defendant's body.
158158 SECTION 4. Subsection (a), Article 17.032, Code of Criminal
159159 Procedure, is amended to read as follows:
160160 (a) In this article, "violent offense" means an offense
161161 under the following sections of the Penal Code:
162162 (1) Section 19.02 (murder);
163163 (2) Section 19.03 (capital murder);
164164 (3) Section 20.03 (kidnapping);
165165 (4) Section 20.04 (aggravated kidnapping);
166166 (5) Section 21.11 (indecency with a child);
167167 (6) Section 22.01(a)(1) (assault);
168168 (7) Section 22.011 (sexual assault);
169169 (8) Section 22.02 (aggravated assault);
170170 (9) Section 22.021 (aggravated sexual assault);
171171 (10) Section 22.04 (injury to a child, elderly
172172 individual, or disabled individual);
173173 (11) Section 29.03 (aggravated robbery); [or]
174174 (12) Section 21.02 (continuous sexual abuse of young
175175 child or children); or
176176 (13) Section 20A.03 (continuous trafficking of
177177 persons).
178178 SECTION 5. Article 17.091, Code of Criminal Procedure, is
179179 amended to read as follows:
180180 Art. 17.091. NOTICE OF CERTAIN BAIL REDUCTIONS REQUIRED.
181181 Before a judge or magistrate reduces the amount of bail set for a
182182 defendant charged with an offense listed in Section 3g, Article
183183 42.12, [or] an offense described by Article 62.001(5), or an
184184 offense under Section 20A.03, Penal Code, the judge or magistrate
185185 shall provide:
186186 (1) to the attorney representing the state, reasonable
187187 notice of the proposed bail reduction; and
188188 (2) on request of the attorney representing the state
189189 or the defendant or the defendant's counsel, an opportunity for a
190190 hearing concerning the proposed bail reduction.
191191 SECTION 6. Subsection (a), Section 23.101, Government Code,
192192 is amended to read as follows:
193193 (a) The trial courts of this state shall regularly and
194194 frequently set hearings and trials of pending matters, giving
195195 preference to hearings and trials of the following:
196196 (1) temporary injunctions;
197197 (2) criminal actions, with the following actions given
198198 preference over other criminal actions:
199199 (A) criminal actions against defendants who are
200200 detained in jail pending trial;
201201 (B) criminal actions involving a charge that a
202202 person committed an act of family violence, as defined by Section
203203 71.004, Family Code;
204204 (C) an offense under:
205205 (i) Section 21.02 or 21.11, Penal Code;
206206 (ii) Chapter 22, Penal Code, if the victim
207207 of the alleged offense is younger than 17 years of age;
208208 (iii) Section 25.02, Penal Code, if the
209209 victim of the alleged offense is younger than 17 years of age;
210210 (iv) Section 25.06, Penal Code; [or]
211211 (v) Section 43.25, Penal Code; or
212212 (vi) Section 20A.03, Penal Code; and
213213 (D) an offense described by Article 62.001(6)(C)
214214 or (D), Code of Criminal Procedure;
215215 (3) election contests and suits under the Election
216216 Code;
217217 (4) orders for the protection of the family under
218218 Subtitle B, Title 4, Family Code;
219219 (5) appeals of final rulings and decisions of the
220220 division of workers' compensation of the Texas Department of
221221 Insurance regarding workers' compensation claims and claims under
222222 the Federal Employers' Liability Act and the Jones Act;
223223 (6) appeals of final orders of the commissioner of the
224224 General Land Office under Section 51.3021, Natural Resources Code;
225225 (7) actions in which the claimant has been diagnosed
226226 with malignant mesothelioma, other malignant asbestos-related
227227 cancer, malignant silica-related cancer, or acute silicosis; and
228228 (8) appeals brought under Section 42.01 or 42.015, Tax
229229 Code, of orders of appraisal review boards of appraisal districts
230230 established for counties with a population of less than 175,000.
231231 SECTION 7. Subsection (a), Section 411.1471, Government
232232 Code, is amended to read as follows:
233233 (a) This section applies to a defendant who is:
234234 (1) indicted or waives indictment for a felony
235235 prohibited or punishable under any of the following Penal Code
236236 sections:
237237 (A) Section 20.04(a)(4);
238238 (B) Section 21.11;
239239 (C) Section 22.011;
240240 (D) Section 22.021;
241241 (E) Section 25.02;
242242 (F) Section 30.02(d);
243243 (G) Section 43.05;
244244 (H) Section 43.25;
245245 (I) Section 43.26; [or]
246246 (J) Section 21.02; or
247247 (K) Section 20A.03;
248248 (2) arrested for a felony described by Subdivision (1)
249249 after having been previously convicted of or placed on deferred
250250 adjudication for an offense described by Subdivision (1) or an
251251 offense punishable under Section 30.02(c)(2), Penal Code; or
252252 (3) convicted of an offense under Section 21.07 or
253253 21.08, Penal Code.
254254 SECTION 8. Subsection (b), Section 499.027, Government
255255 Code, is amended to read as follows:
256256 (b) An inmate is not eligible under this subchapter to be
257257 considered for release to intensive supervision parole if:
258258 (1) the inmate is awaiting transfer to the
259259 institutional division, or serving a sentence, for an offense for
260260 which the judgment contains an affirmative finding under Section
261261 3g(a)(2), Article 42.12, Code of Criminal Procedure;
262262 (2) the inmate is awaiting transfer to the
263263 institutional division, or serving a sentence, for an offense
264264 listed in one of the following sections of the Penal Code:
265265 (A) Section 19.02 (murder);
266266 (B) Section 19.03 (capital murder);
267267 (C) Section 19.04 (manslaughter);
268268 (D) Section 20.03 (kidnapping);
269269 (E) Section 20.04 (aggravated kidnapping);
270270 (F) Section 21.11 (indecency with a child);
271271 (G) Section 22.011 (sexual assault);
272272 (H) Section 22.02 (aggravated assault);
273273 (I) Section 22.021 (aggravated sexual assault);
274274 (J) Section 22.04 (injury to a child or an
275275 elderly individual);
276276 (K) Section 25.02 (prohibited sexual conduct);
277277 (L) Section 25.08 (sale or purchase of a child);
278278 (M) Section 28.02 (arson);
279279 (N) Section 29.02 (robbery);
280280 (O) Section 29.03 (aggravated robbery);
281281 (P) Section 30.02 (burglary), if the offense is
282282 punished as a first-degree felony under that section;
283283 (Q) Section 43.04 (aggravated promotion of
284284 prostitution);
285285 (R) Section 43.05 (compelling prostitution);
286286 (S) Section 43.24 (sale, distribution, or
287287 display of harmful material to minor);
288288 (T) Section 43.25 (sexual performance by a
289289 child);
290290 (U) Section 46.10 (deadly weapon in penal
291291 institution);
292292 (V) Section 15.01 (criminal attempt), if the
293293 offense attempted is listed in this subsection;
294294 (W) Section 15.02 (criminal conspiracy), if the
295295 offense that is the subject of the conspiracy is listed in this
296296 subsection;
297297 (X) Section 15.03 (criminal solicitation), if
298298 the offense solicited is listed in this subsection; [or]
299299 (Y) Section 21.02 (continuous sexual abuse of
300300 young child or children); or
301301 (Z) Section 20A.03 (continuous trafficking of
302302 persons); or
303303 (3) the inmate is awaiting transfer to the
304304 institutional division, or serving a sentence, for an offense under
305305 Chapter 481, Health and Safety Code, punishable by a minimum term of
306306 imprisonment or a maximum fine that is greater than the minimum term
307307 of imprisonment or the maximum fine for a first degree felony.
308308 SECTION 9. Section 508.046, Government Code, is amended to
309309 read as follows:
310310 Sec. 508.046. EXTRAORDINARY VOTE REQUIRED. To release on
311311 parole an inmate who was convicted of an offense under Section
312312 20A.03, 21.02, 21.11(a)(1), or 22.021, Penal Code, or who is
313313 required under Section 508.145(c) to serve 35 calendar years before
314314 becoming eligible for release on parole, all members of the board
315315 must vote on the release on parole of the inmate, and at least
316316 two-thirds of the members must vote in favor of the release on
317317 parole. A member of the board may not vote on the release unless the
318318 member first receives a copy of a written report from the department
319319 on the probability that the inmate would commit an offense after
320320 being released on parole.
321321 SECTION 10. Subsection (d), Section 508.145, Government
322322 Code, is amended to read as follows:
323323 (d) An inmate serving a sentence for an offense described by
324324 Section 3g(a)(1)(A), (C), (D), (E), (F), (G), (H), (I), (J), or (K),
325325 Article 42.12, Code of Criminal Procedure, or for an offense for
326326 which the judgment contains an affirmative finding under Section
327327 3g(a)(2) of that article, or for an offense under Section 20A.03,
328328 Penal Code, is not eligible for release on parole until the inmate's
329329 actual calendar time served, without consideration of good conduct
330330 time, equals one-half of the sentence or 30 calendar years,
331331 whichever is less, but in no event is the inmate eligible for
332332 release on parole in less than two calendar years.
333333 SECTION 11. Subsection (a), Section 508.149, Government
334334 Code, is amended to read as follows:
335335 (a) An inmate may not be released to mandatory supervision
336336 if the inmate is serving a sentence for or has been previously
337337 convicted of:
338338 (1) an offense for which the judgment contains an
339339 affirmative finding under Section 3g(a)(2), Article 42.12, Code of
340340 Criminal Procedure;
341341 (2) a first degree felony or a second degree felony
342342 under Section 19.02, Penal Code;
343343 (3) a capital felony under Section 19.03, Penal Code;
344344 (4) a first degree felony or a second degree felony
345345 under Section 20.04, Penal Code;
346346 (5) an offense under Section 21.11, Penal Code;
347347 (6) a felony under Section 22.011, Penal Code;
348348 (7) a first degree felony or a second degree felony
349349 under Section 22.02, Penal Code;
350350 (8) a first degree felony under Section 22.021, Penal
351351 Code;
352352 (9) a first degree felony under Section 22.04, Penal
353353 Code;
354354 (10) a first degree felony under Section 28.02, Penal
355355 Code;
356356 (11) a second degree felony under Section 29.02, Penal
357357 Code;
358358 (12) a first degree felony under Section 29.03, Penal
359359 Code;
360360 (13) a first degree felony under Section 30.02, Penal
361361 Code;
362362 (14) a felony for which the punishment is increased
363363 under Section 481.134 or Section 481.140, Health and Safety Code;
364364 (15) an offense under Section 43.25, Penal Code;
365365 (16) an offense under Section 21.02, Penal Code; [or]
366366 (17) a first degree felony under Section 15.03, Penal
367367 Code; or
368368 (18) an offense under Section 20A.03, Penal Code.
369369 SECTION 12. Subsection (a), Section 508.151, Government
370370 Code, is amended to read as follows:
371371 (a) For the purpose of diverting inmates to halfway houses
372372 under Section 508.118, a parole panel, after reviewing all
373373 available pertinent information, may designate a presumptive
374374 parole date for an inmate who:
375375 (1) has never been convicted of an offense listed
376376 under Section 3g(a)(1), Article 42.12, Code of Criminal Procedure,
377377 or an offense under Section 20A.03 or 21.02, Penal Code; and
378378 (2) has never had a conviction with a judgment that
379379 contains an affirmative finding under Section 3g(a)(2), Article
380380 42.12, Code of Criminal Procedure.
381381 SECTION 13. Subsection (c), Section 12.35, Penal Code, is
382382 amended to read as follows:
383383 (c) An individual adjudged guilty of a state jail felony
384384 shall be punished for a third degree felony if it is shown on the
385385 trial of the offense that:
386386 (1) a deadly weapon as defined by Section 1.07 was used
387387 or exhibited during the commission of the offense or during
388388 immediate flight following the commission of the offense, and that
389389 the individual used or exhibited the deadly weapon or was a party to
390390 the offense and knew that a deadly weapon would be used or
391391 exhibited; or
392392 (2) the individual has previously been finally
393393 convicted of any felony:
394394 (A) under Section 20A.03 or 21.02 or listed in
395395 Section 3g(a)(1), Article 42.12, Code of Criminal Procedure; or
396396 (B) for which the judgment contains an
397397 affirmative finding under Section 3g(a)(2), Article 42.12, Code of
398398 Criminal Procedure.
399399 SECTION 14. Subdivision (4), Subsection (c), Section 12.42,
400400 Penal Code, is amended to read as follows:
401401 (4) Notwithstanding Subdivision (1) or (2), a
402402 defendant shall be punished by imprisonment in the Texas Department
403403 of Criminal Justice for life without parole if it is shown on the
404404 trial of an offense under Section 20A.03 or 21.02 that the defendant
405405 has previously been finally convicted of:
406406 (A) an offense under Section 20A.03 or 21.02; or
407407 (B) an offense that was committed under the laws
408408 of another state and that contains elements that are substantially
409409 similar to the elements of an offense under Section 20A.03 or 21.02.
410410 SECTION 15. The change in law made by this Act applies only
411411 to an offense committed on or after the effective date of this Act.
412412 An offense committed before the effective date of this Act is
413413 governed by the law in effect on the date the offense was committed,
414414 and the former law is continued in effect for that purpose. For
415415 purposes of this section, an offense was committed before the
416416 effective date of this Act if any element of the offense occurred
417417 before that date.
418418 SECTION 16. This Act takes effect September 1, 2011.
419419 * * * * *