Texas 2013 - 83rd Regular

Texas House Bill HB167 Compare Versions

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1	1	By: McClendon, et al. (Senate Sponsor - Zaffirini) H.B. No. 167
2	2	(In the Senate - Received from the House May 8, 2013;
3	3	May 9, 2013, read first time and referred to Committee on Criminal
4	4	Justice; May 17, 2013, reported favorably by the following vote:
5	5	Yeas 5, Nays 2; May 17, 2013, sent to printer.)
6	6
7	7
8	8	A BILL TO BE ENTITLED
9	9	AN ACT
10	10	relating to the establishment, operation, and funding of
11	11	victim-offender mediation programs; authorizing a fee.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. Section 1, Article 28.01, Code of Criminal
14	14	Procedure, is amended to read as follows:
15	15	Sec. 1. The court may set any criminal case for a pre-trial
16	16	hearing before it is set for trial upon its merits, and direct the
17	17	defendant and his attorney, if any of record, and the State's
18	18	attorney, to appear before the court at the time and place stated in
19	19	the court's order for a conference and hearing regardless of
20	20	whether the defendant has been formally charged. The defendant
21	21	must be present at the arraignment, and his presence is required
22	22	during any pre-trial proceeding. The pre-trial hearing shall be to
23	23	determine any of the following matters:
24	24	(1) Arraignment of the defendant, if such be
25	25	necessary; and appointment of counsel to represent the defendant,
26	26	if such be necessary;
27	27	(2) Pleadings of the defendant;
28	28	(3) Special pleas, if any;
29	29	(4) Exceptions to the form or substance of the
30	30	indictment or information;
31	31	(5) Motions for continuance either by the State or
32	32	defendant; provided that grounds for continuance not existing or
33	33	not known at the time may be presented and considered at any time
34	34	before the defendant announces ready for trial;
35	35	(6) Motions to suppress evidence--When a hearing on
36	36	the motion to suppress evidence is granted, the court may determine
37	37	the merits of said motion on the motions themselves, or upon
38	38	opposing affidavits, or upon oral testimony, subject to the
39	39	discretion of the court;
40	40	(7) Motions for change of venue by the State or the
41	41	defendant; provided, however, that such motions for change of
42	42	venue, if overruled at the pre-trial hearing, may be renewed by the
43	43	State or the defendant during the voir dire examination of the jury;
44	44	(8) Discovery;
45	45	(9) Entrapment; [and]
46	46	(10) Motion for appointment of interpreter; and
47	47	(11) Motion to allow the defendant to enter a pretrial
48	48	victim-offender mediation program established under Subchapter
49	49	A-1, Chapter 56.
50	50	SECTION 2. Chapter 56, Code of Criminal Procedure, is
51	51	amended by adding Subchapter A-1 to read as follows:
52	52	SUBCHAPTER A-1. PRETRIAL VICTIM-OFFENDER MEDIATION PROGRAM
53	53	Art. 56.21. AUTHORITY TO ESTABLISH PROGRAM. (a) The
54	54	commissioners court of a county or governing body of a municipality
55	55	may, in coordination with the office of the attorney representing
56	56	the state in the county or municipality, establish a pretrial
57	57	victim-offender mediation program for persons who:
58	58	(1) have been arrested for or charged with a
59	59	misdemeanor under Title 7, Penal Code, in any court in this state
60	60	other than a district court; and
61	61	(2) have not previously been convicted of a felony or a
62	62	misdemeanor, other than a misdemeanor regulating traffic and
63	63	punishable by fine only.
64	64	(b) A county court, statutory county court, municipal
65	65	court, or justice court that implements a program under this
66	66	subchapter may adopt administrative rules and local rules of
67	67	procedure as necessary or appropriate to implement or operate the
68	68	program.
69	69	(c) The commissioners court of a county or governing body of
70	70	a municipality that establishes a program under this subchapter
71	71	may:
72	72	(1) allow for referral to the program of arrested
73	73	persons described by Subsection (a) who have not yet been formally
74	74	charged with an offense;
75	75	(2) adopt administrative rules and local rules of
76	76	procedure as necessary or appropriate to implement or operate the
77	77	program; and
78	78	(3) approve additional program requirements as
79	79	recommended by the attorney representing the state.
80	80	Art. 56.22. PROGRAM. (a) A pretrial victim-offender
81	81	mediation program established under Article 56.21 must require:
82	82	(1) the designation of individual defendants who are
83	83	eligible to participate in the program, based on standards
84	84	established by Article 56.21 and any local standards approved by
85	85	the commissioners court of the county or the governing body of the
86	86	municipality, as applicable;
87	87	(2) the attorney representing the state to consent to
88	88	a defendant's participation in the program;
89	89	(3) the consent of the victim to be obtained and
90	90	documented in the record of the court by the attorney representing
91	91	the state before the case may proceed to pretrial victim-offender
92	92	mediation; and
93	93	(4) the defendant to enter into a binding mediation
94	94	agreement in accordance with Article 56.23 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;
98	98	(ii) perform community service; or
99	99	(iii) both pay restitution and perform
100	100	community service.
101	101	(b) All communications made in a pretrial victim-offender
102	102	mediation program are confidential and may not be introduced into
103	103	evidence except in an open court proceeding instituted to determine
104	104	the meaning of a mediation agreement.
105	105	(c) A pretrial victim-offender mediation program may
106	106	require the staff and other resources of pretrial services
107	107	departments and community supervision and corrections departments
108	108	to assist the court or the attorney representing the state in
109	109	monitoring the defendant's compliance with a mediation agreement
110	110	reached through the program.
111	111	(d) A pretrial victim-offender mediation may be conducted
112	112	by a court-appointed mediator who meets the training requirements
113	113	provided by Sections 154.052(a) and (b), Civil Practice and
114	114	Remedies Code, or by any other appropriate person designated by the
115	115	court. Neither the attorney representing the state nor the
116	116	attorney representing the defendant in the criminal action may
117	117	serve as a mediator under the pretrial victim-offender mediation
118	118	program.
119	119	(e) If a defendant enters a pretrial victim-offender
120	120	mediation program, the court may defer the proceedings without
121	121	accepting a plea of guilty or nolo contendere or entering an
122	122	adjudication of guilt. The court may not require the defendant to
123	123	admit guilt or enter a plea of guilty or nolo contendere to enter
124	124	the program.
125	125	(f) The case must be returned to the docket and proceed
126	126	through the regular criminal justice system if:
127	127	(1) a pretrial victim-offender mediation does not
128	128	result in a mediation agreement; or
129	129	(2) the defendant fails to fulfill the terms of the
130	130	mediation agreement successfully by the date specified in the
131	131	mediation agreement.
132	132	(g) If a case is returned to the docket under Subsection
133	133	(f), the defendant retains all of the rights that the defendant
134	134	possessed before entering the pretrial victim-offender mediation
135	135	program under this subchapter. Notwithstanding any other law, for
136	136	purposes of determining the duration and expiration of an
137	137	applicable statute of limitation under Chapter 12, the running of
138	138	the period of limitation is tolled while the defendant is enrolled
139	139	in a program under this subchapter.
140	140	(h) The attorney representing the state or the court may
141	141	extend the initial compliance period granted to the defendant.
142	142	(i) A determination by the court regarding whether the
143	143	mediation agreement has been successfully completed is final and
144	144	may not be appealed.
145	145	(j) If the defendant is not arrested or convicted of a
146	146	subsequent felony or misdemeanor other than a misdemeanor
147	147	regulating traffic and punishable by fine only on or before the
148	148	first anniversary of the date the defendant successfully completed
149	149	a mediation agreement under this subchapter, on the motion of the
150	150	defendant, the court shall enter an order of nondisclosure under
151	151	Section 411.081, Government Code, as if the defendant had received
152	152	a discharge and dismissal under Section 5(c), Article 42.12, with
153	153	respect to all records and files related to the defendant's arrest
154	154	for the offense for which the defendant entered the pretrial
155	155	victim-offender mediation program.
156	156	Art. 56.23. MEDIATION AGREEMENT. (a) A mediation
157	157	agreement under this subchapter must be written and:
158	158	(1) signed by the defendant and the victim; and
159	159	(2) ratified by the attorney representing the state in
160	160	the attorney's request for a court order to document and approve the
161	161	mediation agreement for the record.
162	162	(b) A mediation agreement may require testing, counseling,
163	163	and treatment of the defendant to address alcohol abuse, abuse of
164	164	controlled substances, mental health, or anger management or any
165	165	other service that is reasonably related to the offense for which
166	166	the defendant was arrested or charged.
167	167	(c) A mediation agreement is not valid for more than one
168	168	year after the date on which the mediation agreement is ratified
169	169	unless the court and the attorney representing the state approve
170	170	the extension of the agreement.
171	171	(d) A mediation agreement under this subchapter does not
172	172	constitute a plea or legal admission of responsibility.
173	173	Art. 56.24. LEGISLATIVE REVIEW. The lieutenant governor
174	174	and the speaker of the house of representatives may assign to
175	175	appropriate legislative committees duties relating to the study,
176	176	review, and evaluation of pretrial victim-offender mediation
177	177	programs established under this subchapter, and those committees
178	178	may make recommendations to the legislature for appropriate
179	179	policies to monitor, improve, or provide state resources for those
180	180	programs.
181	181	Art. 56.25. LOCAL REVIEW. The commissioners court of a
182	182	county or governing body of a municipality may request a
183	183	management, operations, or financial or accounting audit of a
184	184	pretrial victim-offender mediation program established under this
185	185	subchapter.
186	186	Art. 56.26. FEES. (a) A pretrial victim-offender
187	187	mediation program established under this subchapter shall collect
188	188	from a defendant in the program a reasonable program participation
189	189	fee not to exceed $500 and may collect from the defendant an alcohol
190	190	or controlled substance testing, counseling, and treatment fee in
191	191	an amount necessary to cover the costs of the testing, counseling,
192	192	or treatment, if such testing, counseling, or treatment is required
193	193	by the mediation agreement.
194	194	(b) Fees collected under this article may be paid on a
195	195	periodic basis or on a deferred payment schedule at the discretion
196	196	of the judge, magistrate, or program director administering the
197	197	pretrial victim-offender mediation program. The fees must be:
198	198	(1) based on the defendant's ability to pay; and
199	199	(2) used only for purposes specific to the program.
200	200	Art. 56.27. NOTICE. The office of an attorney representing
201	201	the state that participates in a pretrial victim-offender mediation
202	202	program established under this subchapter shall notify the public
203	203	by posting information about the program on the office's website.
204	204	SECTION 3. Subchapter A, Chapter 102, Code of Criminal
205	205	Procedure, is amended by adding Article 102.0179 to read as
206	206	follows:
207	207	Art. 102.0179. COSTS ATTENDANT TO PRETRIAL VICTIM-OFFENDER
208	208	MEDIATION. (a) A defendant who participates in a pretrial
209	209	victim-offender mediation program established under Subchapter
210	210	A-1, Chapter 56, on successful completion of the terms of the
211	211	defendant's mediation agreement or on conviction, shall pay as
212	212	court costs $15 plus an additional program participation fee as
213	213	described by Article 56.26 in the amount prescribed by that
214	214	article.
215	215	(b) The court clerk shall collect the costs imposed under
216	216	this article. The clerk shall keep a separate record of any money
217	217	collected under this article and shall pay any money collected to
218	218	the county or municipal treasurer, as appropriate, or to any other
219	219	official who discharges the duties commonly delegated to a
220	220	treasurer, for deposit in a fund to be known as the county pretrial
221	221	victim-offender mediation program fund or in a fund to be known as
222	222	the municipal pretrial victim-offender mediation program fund, as
223	223	appropriate.
224	224	(c) A county or municipality that collects court costs under
225	225	this article shall use the money in a fund described by Subsection
226	226	(b) exclusively for the maintenance of the pretrial victim-offender
227	227	mediation program operated in the county or municipality.
228	228	SECTION 4. Subchapter B, Chapter 102, Government Code, is
229	229	amended by adding Section 102.0216 to read as follows:
230	230	Sec. 102.0216. ADDITIONAL COURT COSTS: CODE OF CRIMINAL
231	231	PROCEDURE. A defendant who participates in a pretrial
232	232	victim-offender mediation program established under Subchapter
233	233	A-1, Chapter 56, Code of Criminal Procedure, shall pay on
234	234	successful completion of the terms of the defendant's mediation
235	235	agreement or on conviction, in addition to all other costs, to help
236	236	fund pretrial victim-offender mediation programs established under
237	237	that subchapter (Art. 102.0179, Code of Criminal Procedure) . . .
238	238	$15 plus an additional program participation fee in an amount not to
239	239	exceed $500.
240	240	SECTION 5. (a) The change in law made by this Act in adding
241	241	Subchapter A-1, Chapter 56, Code of Criminal Procedure, applies to
242	242	a defendant who enters a pretrial victim-offender mediation program
243	243	under that subchapter regardless of whether the defendant committed
244	244	the offense for which the defendant enters the program before, on,
245	245	or after the effective date of this Act.
246	246	(b) The change in law made by this Act in adding Article
247	247	102.0179, Code of Criminal Procedure, and Section 102.0216,
248	248	Government Code, applies only to an offense committed on or after
249	249	the effective date of this Act. An offense committed before the
250	250	effective date of this Act is governed by the law in effect when the
251	251	offense was committed, and the former law is continued in effect for
252	252	that purpose. For purposes of this subsection, an offense was
253	253	committed before the effective date of this Act if any element of
254	254	the offense was committed before that date.
255	255	SECTION 6. This Act takes effect immediately if it receives
256	256	a vote of two-thirds of all the members elected to each house, as
257	257	provided by Section 39, Article III, Texas Constitution. If this
258	258	Act does not receive the vote necessary for immediate effect, this
259	259	Act takes effect September 1, 2013.
260	260	* * * * *