83R7545 GCB-D
By: Dutton H.B. No. 2131
A BILL TO BE ENTITLED
AN ACT
relating to the creation of a specialty court for certain
first-time DWI offenders; imposing fees for participation and
alcohol monitoring.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle B, Title 6, Health and Safety Code, is
amended by adding Chapter 470 to read as follows:
CHAPTER 470. DIVERT PROGRAM
Sec. 470.001. DIVERT PROGRAM DEFINED; PROCEDURES FOR
CERTAIN DEFENDANTS. (a) In this chapter, "Direct Intervention
using Voluntary Education, Restitution, and Treatment Program" or
"DIVERT program" means a program that has the following essential
characteristics:
(1) the integration of alcohol and other drug
treatment services in the processing of certain first-time driving
while intoxicated cases in the judicial system;
(2) the use of a nonadversarial approach involving
prosecutors and defense attorneys to promote public safety, raise
community awareness of the consequences of driving while
intoxicated, and protect the due process rights of program
participants;
(3) early identification and prompt placement of
eligible participants in the program;
(4) access to a continuum of evidence-based alcohol,
drug, and other related treatment and rehabilitative services;
(5) monitoring of abstinence through weekly alcohol
and other drug testing;
(6) a coordinated strategy to govern program responses
to participants' compliance;
(7) minimization of court appearances during the
period of participation in the program;
(8) application of uniform criteria to the entry,
supervision, and treatment of each program participant;
(9) monitoring and evaluation of program goals and
effectiveness;
(10) continuing interdisciplinary education to
promote effective program planning, implementation, and
operations; and
(11) development of partnerships with public agencies
and community organizations.
(b) If a defendant successfully completes a DIVERT program,
after notice to the state and a hearing on whether the defendant is
otherwise entitled to the petition and whether issuance of the
order is in the best interest of justice, notwithstanding Section
5(d), Article 42.12, Code of Criminal Procedure, 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, Code of Criminal Procedure, with
respect to all records and files related to the defendant's arrest
for the offense for which the defendant entered the program if the
defendant:
(1) has not been previously convicted of any felony
offense; and
(2) is not before the second anniversary of the
defendant's successful completion of the program convicted of:
(A) an offense under Chapter 49, Penal Code,
other than an offense under Section 49.02 or 49.031 of that code;
(B) an offense under Chapter 481; or
(C) any offense punishable as a felony.
Sec. 470.002. EVALUATION AND CONDITIONS. (a) Treatment,
education, and supervision provided under the program must be based
on a series of evaluations designed to assess the treatment and
education needs of each program participant with respect to the
participant's alcohol or drug dependency and motivation.
(b) Except as otherwise provided by this section, program
administrators shall impose on each program participant conditions
for successful completion of the program based on the needs
assessment conducted under Subsection (a).
(c) Program administrators shall require any participant
younger than 25 years of age to attend a video course of not less
than four hours designed to empower young drivers to adopt safer
driving habits and reduce injury and death among young drivers,
such as the video course titled "Alive at 25" developed by the
National Safety Council.
(d) The court shall require a program participant as a
condition of participation in the program to, for a period of one
year:
(1) if the participant owns or regularly drives a
motor vehicle:
(A) have installed on the motor vehicle owned by
the participant or on the vehicle most regularly driven by the
participant a device that uses a deep-lung breath analysis
mechanism to make impractical the operation of a motor vehicle if
ethyl alcohol is detected in the breath of the operator; and
(B) not operate any motor vehicle unless the
vehicle is equipped with that device; or
(2) if the participant does not own or regularly drive
a motor vehicle:
(A) obtain a deep-lung breath analysis mechanism
that detects ethyl alcohol on the participant's breath; and
(B) use the mechanism at intervals prescribed by
the court.
(e) The court may designate an appropriate agency to verify
the installation of the device described by Subsection (d)(1) or
the acquisition of the mechanism described by Subsection (d)(2) and
to monitor the device or mechanism. If the magistrate designates an
agency under this subsection, in each month during which the agency
verifies the installation of the device or the acquisition of the
mechanism or provides a monitoring service for the device or
mechanism, the participant shall pay a fee to the designated agency
in the amount set by the court. The participant shall pay the
initial fee at the time the agency verifies the installation of the
device or the acquisition of the mechanism. In each subsequent
month during which the participant is required to pay a fee, the
participant shall pay the fee on the first occasion in that month
that the agency provides a monitoring service. The court shall set
the fee in an amount not to exceed $10 as determined by the county
auditor, or by the commissioners court of the county if the county
does not have a county auditor, to be sufficient to cover the cost
incurred by the designated agency in conducting the verification or
providing the monitoring service, as applicable in that county.
Sec. 470.003. AUTHORITY TO ESTABLISH PROGRAM. The
commissioners court of a county or governing body of a municipality
may establish a DIVERT program for persons:
(1) who are arrested for, charged with, or convicted
of an offense under Section 49.04, Penal Code, or who are juveniles
detained for, taken into custody for, or adjudicated as having
engaged in conduct constituting an offense under Section 49.04,
Penal Code;
(2) who have not been previously convicted of or
adjudicated as having engaged in conduct constituting an offense
under Chapter 49, Penal Code, other than an offense under Section
49.02 or 49.031, Penal Code; and
(3) for whom participation in the program is in the
best interests of the community, as determined by the court and the
attorney representing the state.
Sec. 470.004. ESTABLISHMENT OF REGIONAL PROGRAM. The
commissioners courts of two or more counties, or the governing
bodies of two or more municipalities, may elect to establish a
regional DIVERT program under this chapter for the participating
counties or municipalities.
Sec. 470.005. 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 DIVERT programs established under this chapter.
(b) A legislative committee or the governor may request the
state auditor to perform a management, operations, or financial or
accounting audit of a DIVERT program established under this
chapter.
(c) The director or administrator of a DIVERT program
established under this chapter shall:
(1) notify the criminal justice division of the
governor's office before or on implementation of the program; and
(2) provide information regarding the performance of
the program to the division on request.
Sec. 470.006. FEES. (a) A DIVERT program established under
this chapter may collect from a participant in the program:
(1) a reasonable program fee not to exceed $1,000; and
(2) an alcohol or controlled substance testing,
counseling, and treatment fee in an amount necessary to cover the
costs of the testing, counseling, and treatment.
(b) Fees collected under this section 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
program. The fees must be:
(1) based on the participant's ability to pay; and
(2) used only for purposes specific to the program.
Sec. 470.007. PROGRAM IN CERTAIN COUNTIES MANDATORY. (a)
The commissioners court of a county with a population of more than
200,000 shall establish a DIVERT program under Section 470.003.
(b) A county required under this section to establish a
DIVERT program shall apply for federal and state funds available to
pay the costs of the program. The criminal justice division of the
governor's office may assist a county in applying for federal funds
as required by this subsection.
(c) Notwithstanding Subsection (a), a county is required to
establish a DIVERT program under this section only if the county
receives federal or state funding specifically for that purpose.
(d) A county that does not establish a DIVERT program as
required by this section and maintain the program is ineligible to
receive from the state:
(1) funds for a community supervision and corrections
department; and
(2) grants for substance abuse treatment programs
administered by the criminal justice division of the governor's
office.
Sec. 470.008. USE OF OTHER DRUG AND ALCOHOL AWARENESS
PROGRAMS. (a) In addition to using a DIVERT program established
under this chapter, the commissioners court of a county or a court
may use other drug-awareness programs or drug-related and
alcohol-related driving awareness programs to treat persons
convicted of drug-related or alcohol-related offenses.
(b) If the county or municipality in which a person resides
has established both a DIVERT program under this chapter and a drug
court program under Section 469.005, and if the person is eligible
to be a participant in both programs, the court may order the person
to participate in either program as the court determines
appropriate.
Sec. 470.009. SUSPENSION OR DISMISSAL OF COMMUNITY SERVICE
REQUIREMENT. (a) Notwithstanding Sections 13 and 16, Article
42.12, Code of Criminal Procedure, to encourage participation in a
DIVERT program established under this chapter, the judge or
magistrate administering the program may suspend any requirement
that, as a condition of community supervision, a participant in the
program work a specified number of hours at a community service
project or projects.
(b) On a participant's successful completion of a DIVERT
program, a judge or magistrate may excuse the participant from any
condition of community supervision previously suspended under
Subsection (a).
Sec. 470.010. OCCUPATIONAL DRIVER'S LICENSE.
Notwithstanding Section 521.242, Transportation Code, if a
participant's driver's license has been suspended as a result of an
alcohol-related or drug-related enforcement contact, as defined by
Section 524.001, Transportation Code, or as a result of a
conviction under Section 49.04, Penal Code, or an adjudication of
conduct constituting an offense under that section, the judge or
magistrate administering a DIVERT program under this chapter may
order that an occupational license be issued to the participant. An
order issued under this section is subject to Sections
521.248-521.252, Transportation Code, except that any reference to
a petition under Section 521.242 of that code does not apply.
SECTION 2. Subchapter B, Chapter 103, Government Code, is
amended by adding Sections 103.0292 and 103.0293 to read as
follows:
Sec. 103.0292. ADDITIONAL MISCELLANEOUS FEES AND COSTS:
HEALTH AND SAFETY CODE. A program fee for a DIVERT program
established under Section 470.003, Health and Safety Code, shall be
collected under Section 470.006, Health and Safety Code, in a
reasonable amount not to exceed $1,000.
Sec. 103.0293. ADDITIONAL MISCELLANEOUS FEES AND COSTS:
HEALTH AND SAFETY CODE. A participant in a DIVERT program
administered under Chapter 470, Health and Safety Code, who is
ordered by the court to have an ignition interlock device installed
on the participant's vehicle or to obtain and use a breath analysis
mechanism shall pay a fee in an amount set by a court not to exceed
$10 in each month that the designated agency verifies the
installation of a device or the acquisition of a mechanism or
provides a monitoring service.
SECTION 3. (a) Except as provided by Subsection (b) of
this section, the commissioners court of a county shall establish a
DIVERT program as required by Section 470.007, Health and Safety
Code, as added by this Act, not later than September 1, 2014.
(b) A county is required under Section 470.007, Health and
Safety Code, as added by this Act, to establish a DIVERT program
only if the county receives federal funding specifically for that
purpose or the legislature appropriates money specifically for that
purpose. If the county does not receive federal funding
specifically for that purpose and the legislature does not
appropriate money specifically for that purpose, a county may, but
is not required to, establish a DIVERT program under Section
470.003, Health and Safety Code, as added by this Act, using other
money available for that purpose.
SECTION 4. This Act takes effect September 1, 2013.