By: McClendon, et al. (Senate Sponsor - Zaffirini) H.B. No. 167
(In the Senate - Received from the House May 8, 2013;
May 9, 2013, read first time and referred to Committee on Criminal
Justice; May 17, 2013, reported favorably by the following vote:
Yeas 5, Nays 2; May 17, 2013, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to the establishment, operation, and funding of
victim-offender mediation programs; authorizing a fee.
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 regardless of
whether the defendant has been formally charged. 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, in coordination with the office of the attorney representing
the state in the county or municipality, 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 and local rules of
procedure as necessary or appropriate to implement or operate the
program.
(c) The commissioners court of a county or governing body of
a municipality that establishes a program under this subchapter
may:
(1) allow for referral to the program of arrested
persons described by Subsection (a) who have not yet been formally
charged with an offense;
(2) adopt administrative rules and local rules of
procedure as necessary or appropriate to implement or operate the
program; and
(3) approve additional program requirements as
recommended by the attorney representing the state.
Art. 56.22. PROGRAM. (a) A pretrial victim-offender
mediation program established under Article 56.21 must require:
(1) the designation of individual defendants who are
eligible to participate in the program, based on standards
established by Article 56.21 and any local standards approved by
the commissioners court of the county or the governing body of the
municipality, as applicable;
(2) the attorney representing the state to consent to
a defendant's participation in the program;
(3) the consent of the victim to be obtained and
documented in the record of the court by the attorney representing
the state before the case may proceed to pretrial victim-offender
mediation; and
(4) the defendant to enter into a binding mediation
agreement in accordance with Article 56.23 that:
(A) includes an apology by the defendant; and
(B) requires the defendant to:
(i) pay restitution to the victim;
(ii) perform community service; or
(iii) both pay restitution and 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 an open court proceeding instituted to determine
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 and corrections departments
to assist the court or the attorney representing the state 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 fulfill the terms of the
mediation agreement successfully 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 attorney representing the state or the court may
extend the initial compliance period granted to the defendant.
(i) 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. MEDIATION AGREEMENT. (a) A mediation
agreement under this subchapter must be written and:
(1) signed by the defendant and the victim; and
(2) ratified by the attorney representing the state in
the attorney's request for a court order to document and approve the
mediation agreement for the record.
(b) A mediation agreement 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 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. 56.24. LEGISLATIVE REVIEW. The lieutenant governor
and the speaker of the house of representatives may assign to
appropriate legislative committees duties relating to the study,
review, and evaluation of pretrial victim-offender mediation
programs established under this subchapter, and those committees
may make recommendations to the legislature for appropriate
policies to monitor, improve, or provide state resources for those
programs.
Art. 56.25. LOCAL REVIEW. The commissioners court of a
county or governing body of a municipality may request 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 shall collect
from a defendant in the program a reasonable program participation
fee not to exceed $500 and may collect from the defendant 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.
Art. 56.27. NOTICE. The office of an attorney representing
the state that participates in a pretrial victim-offender mediation
program established under this subchapter shall notify the public
by posting information about the program on the office's website.
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, 2013.
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