Texas 2015 - 84th Regular

Texas House Bill HB2907 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	84R10587 GCB-D
2	2	By: Canales H.B. No. 2907
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to allowing deferred adjudication community supervision
8	8	for first-time offenders charged with certain intoxication
9	9	offenses, requiring the use of an ignition interlock device on
10	10	conviction of or placement on deferred adjudication for certain
11	11	intoxication offenses, and authorizing ethyl alcohol monitoring as
12	12	a condition of community supervision for certain intoxication
13	13	offenses; imposing a fee.
14	14	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
15	15	SECTION 1. Section 2, Article 42.12, Code of Criminal
16	16	Procedure, is amended by adding Subdivision (5) to read as follows:
17	17	(5) "Ethyl alcohol monitoring device" means:
18	18	(A) a device worn by the defendant that detects
19	19	ethyl alcohol in the defendant's perspiration through transdermal
20	20	testing; or
21	21	(B) a portable ethyl alcohol detection device
22	22	carried by the defendant that:
23	23	(i) requires the defendant at specified or
24	24	random intervals to submit a breath sample;
25	25	(ii) analyzes and records the sample;
26	26	(iii) transmits the results of the
27	27	analysis; and
28	28	(iv) is capable by facial recognition
29	29	technology or other technological means of verifying that the
30	30	breath sample was provided by the defendant.
31	31	SECTION 2. Section 5, Article 42.12, Code of Criminal
32	32	Procedure, is amended by amending Subsection (d) and adding
33	33	Subsection (d-1) to read as follows:
34	34	(d) In all other cases the judge may grant deferred
35	35	adjudication unless:
36	36	(1) the defendant is charged with an offense:
37	37	(A) under Section 49.07 or 49.08 [Sections
38	38	49.04-49.08], Penal Code; [or]
39	39	(B) under Section 49.04, 49.045, 49.05, 49.06, or
40	40	49.065, Penal Code, if it is shown that the defendant has been
41	41	previously convicted of or placed on deferred adjudication for an
42	42	offense under any of those sections or under Section 49.07 or 49.08,
43	43	Penal Code; or
44	44	(C) for which punishment may be increased under
45	45	Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it
46	46	is shown that the defendant has been previously convicted of an
47	47	offense for which punishment was increased under any one of those
48	48	subsections;
49	49	(2) the defendant:
50	50	(A) is charged with an offense under Section
51	51	21.11, 22.011, or 22.021, Penal Code, regardless of the age of the
52	52	victim, or a felony described by Section 13B(b) of this article; and
53	53	(B) has previously been placed on community
54	54	supervision for any offense under Paragraph (A) of this
55	55	subdivision;
56	56	(3) the defendant is charged with an offense under:
57	57	(A) Section 21.02, Penal Code; or
58	58	(B) Section 22.021, Penal Code, that is
59	59	punishable under Subsection (f) of that section or under Section
60	60	12.42(c)(3) or (4), Penal Code; or
61	61	(4) the defendant is charged with an offense under
62	62	Section 19.02, Penal Code, except that the judge may grant deferred
63	63	adjudication on determining that the defendant did not cause the
64	64	death of the deceased, did not intend to kill the deceased or
65	65	another, and did not anticipate that a human life would be taken.
66	66	(d-1) For a defendant charged with an offense under Section
67	67	49.04, 49.045, 49.05, 49.06, or 49.065, Penal Code, the judge may
68	68	defer adjudication and place the defendant on community supervision
69	69	only if, at the time of the offense for which the defendant was
70	70	arrested, the defendant:
71	71	(1) did not cause a traffic accident or the injury or
72	72	death of another;
73	73	(2) if requested by a peace officer, provided a blood,
74	74	breath, or urine specimen and the analysis of the specimen showed an
75	75	alcohol concentration lower than 0.15 at the time the analysis was
76	76	performed; and
77	77	(3) was not charged with another offense, other than a
78	78	Class C misdemeanor, arising from the same incident as the offense
79	79	under Section 49.04, 49.045, 49.05, 49.06, or 49.065.
80	80	SECTION 3. Section 13, Article 42.12, Code of Criminal
81	81	Procedure, is amended by amending Subsections (a), (f), (g), (h),
82	82	(i), and (n) and adding Subsection (o) to read as follows:
83	83	(a) A judge placing [granting community supervision to] a
84	84	defendant on community supervision for [convicted of] an offense
85	85	under Chapter 49, Penal Code, shall require as a condition of
86	86	community supervision that the defendant submit to:
87	87	(1) not less than 72 hours of continuous confinement
88	88	in county jail if the defendant was punished under Section
89	89	49.09(a), Penal Code; not less than five days of confinement in
90	90	county jail if the defendant was punished under Section 49.09(a),
91	91	Penal Code, and was subject to Section 49.09(h), Penal Code; not
92	92	less than 10 days of confinement in county jail if the defendant was
93	93	punished under Section 49.09(b) or (c), Penal Code; or not less than
94	94	30 days of confinement in county jail if the defendant was convicted
95	95	under Section 49.07, Penal Code; and
96	96	(2) an evaluation by a supervision officer or by a
97	97	person, program, or facility approved by the Department of State
98	98	Health Services [Texas Commission on Alcohol and Drug Abuse] for
99	99	the purpose of having the facility prescribe and carry out a course
100	100	of conduct necessary for the rehabilitation of the defendant's drug
101	101	or alcohol dependence condition.
102	102	(f) If a judge places [grants community supervision to] a
103	103	defendant on community supervision for [convicted of] an offense
104	104	under Sections 49.04-49.08, Penal Code, and if before receiving
105	105	community supervision the defendant has not submitted to an
106	106	evaluation under Section 9 of this article, the judge shall require
107	107	the defendant to submit to the evaluation as a condition of
108	108	community supervision. If the evaluation indicates to the judge
109	109	that the defendant is in need of treatment for drug or alcohol
110	110	dependency, the judge shall require the defendant to submit to that
111	111	treatment as a condition of community supervision in a program or
112	112	facility approved or licensed by the Department of State Health
113	113	Services [Texas Commission on Alcohol and Drug Abuse] or in a
114	114	program or facility that complies with standards established by the
115	115	community justice assistance division of the Texas Department of
116	116	Criminal Justice, after consultation by the division with the
117	117	department [commission].
118	118	(g) A jury that recommends that a defendant be placed on
119	119	community supervision for [a person convicted of] an offense under
120	120	Sections 49.04-49.08, Penal Code, may recommend that any driver's
121	121	license issued to the defendant under Chapter 521, Transportation
122	122	Code, not be suspended. This subsection does not apply to a
123	123	defendant [person] punished under Section 49.09(a) or (b), Penal
124	124	Code, and subject to Section 49.09(h) of that code.
125	125	(h) The judge shall require [If] a defendant placed on
126	126	community supervision for [person convicted of] an offense under
127	127	Sections 49.04-49.08, Penal Code, [is placed on community
128	128	supervision, the judge shall require,] as a condition of the
129	129	community supervision, to [that the defendant] attend and
130	130	successfully complete before the 181st day after the day community
131	131	supervision is granted an educational program jointly approved by
132	132	the Department of State Health Services [Texas Commission on
133	133	Alcohol and Drug Abuse], the Department of Public Safety, the
134	134	Traffic Safety Section of the Texas Department of Transportation,
135	135	and the community justice assistance division of the Texas
136	136	Department of Criminal Justice designed to rehabilitate persons who
137	137	have driven while intoxicated. The Department of State Health
138	138	Services [Texas Commission on Alcohol and Drug Abuse] shall publish
139	139	the jointly approved rules and shall monitor, coordinate, and
140	140	provide training to persons providing the educational programs.
141	141	The Department of State Health Services [Texas Commission on
142	142	Alcohol and Drug Abuse] is responsible for the administration of
143	143	the certification of approved educational programs and may charge a
144	144	nonrefundable application fee for the initial certification of
145	145	approval and for renewal of a certificate. The judge may waive the
146	146	educational program requirement or may grant an extension of time
147	147	to successfully complete the program that expires not later than
148	148	one year after the beginning date of the defendant's [person's]
149	149	community supervision, however, if the defendant by a motion in
150	150	writing shows good cause. In determining good cause, the judge may
151	151	consider but is not limited to: the defendant's school and work
152	152	schedule, the defendant's health, the distance that the defendant
153	153	must travel to attend an educational program, and the fact that the
154	154	defendant resides out of state, has no valid driver's license, or
155	155	does not have access to transportation. The judge shall set out the
156	156	finding of good cause for waiver in the judgment. If a defendant is
157	157	required, as a condition of community supervision, to attend an
158	158	educational program or if the court waives the educational program
159	159	requirement, the court clerk shall immediately report that fact to
160	160	the Department of Public Safety, on a form prescribed by the
161	161	department, for inclusion in the defendant's [person's] driving
162	162	record. If the court grants an extension of time in which the
163	163	defendant [person] may complete the program, the court clerk shall
164	164	immediately report that fact to the Department of Public Safety on a
165	165	form prescribed by the department. The report must include the
166	166	beginning date of the defendant's [person's] community
167	167	supervision. Upon the defendant's [person's] successful
168	168	completion of the educational program, the defendant's [person's]
169	169	instructor shall give notice to the Department of Public Safety for
170	170	inclusion in the defendant's [person's] driving record and to the
171	171	community supervision and corrections department. The community
172	172	supervision and corrections department shall then forward the
173	173	notice to the court clerk for filing. If the Department of Public
174	174	Safety does not receive notice that a defendant required to
175	175	complete an educational program has successfully completed the
176	176	program within the period required by this section, as shown on
177	177	department records, the department shall revoke the defendant's
178	178	driver's license, permit, or privilege or prohibit the defendant
179	179	[person] from obtaining a license or permit, as provided by
180	180	Sections 521.344(e) and (f), Transportation Code. The Department
181	181	of Public Safety may not reinstate a license suspended under this
182	182	subsection unless the defendant [person] whose license was
183	183	suspended makes application to the department for reinstatement of
184	184	the defendant's [person's] license and pays to the department a
185	185	reinstatement fee of $100. The Department of Public Safety shall
186	186	remit all fees collected under this subsection to the comptroller
187	187	for deposit in the general revenue fund. This subsection does not
188	188	apply to a defendant if a jury recommends community supervision for
189	189	the defendant and also recommends that the defendant's driver's
190	190	license not be suspended.
191	191	(i)(1) If a defendant is placed on community supervision for
192	192	[person convicted of] an offense under Sections 49.04-49.08, Penal
193	193	Code, [is placed on community supervision,] the court may require
194	194	as a condition of community supervision that the defendant have a
195	195	device installed, on the motor vehicle owned by the defendant or on
196	196	the vehicle most regularly driven by the defendant, that uses a
197	197	deep-lung breath analysis mechanism to make impractical the
198	198	operation of the motor vehicle if ethyl alcohol is detected in the
199	199	breath of the operator and that the defendant not operate any motor
200	200	vehicle that is not equipped with that device.
201	201	(2) [If it is shown on the trial of the offense that an
202	202	analysis of a specimen of the person's blood, breath, or urine
203	203	showed an alcohol concentration level of 0.15 or more at the time
204	204	the analysis was performed, or if the person is convicted of an
205	205	offense under Sections 49.04-49.06, Penal Code, and punished under
206	206	Section 49.09(a) or (b), Penal Code, or of a second or subsequent
207	207	offense under Section 49.07 or 49.08, Penal Code, and the person
208	208	after conviction of either offense is placed on community
209	209	supervision, the court shall require as a condition of community
210	210	supervision that the defendant have the device installed on the
211	211	appropriate vehicle and that the defendant not operate any motor
212	212	vehicle unless the vehicle is equipped with that device.] Before
213	213	placing a defendant on community supervision for [a person
214	214	convicted of] an offense under Sections 49.04-49.08, Penal Code,
215	215	the court shall determine from criminal history record information
216	216	maintained by the Department of Public Safety whether the defendant
217	217	[person] has previously been convicted of or placed on deferred
218	218	adjudication for an offense [one or more previous convictions]
219	219	under Sections 49.04-49.08, Penal Code[, or has one previous
220	220	conviction under Sections 49.04-49.07, Penal Code, or one previous
221	221	conviction under Section 49.08, Penal Code].
222	222	(3) If it is shown on the trial of the offense that an
223	223	analysis of a specimen of the defendant's [person's] blood, breath,
224	224	or urine showed an alcohol concentration level of 0.15 or more at
225	225	the time the analysis was performed, if the defendant refused to
226	226	submit a specimen of the defendant's blood, breath, or urine when
227	227	requested by a peace officer, or if the court determines that the
228	228	defendant [person] has previously been convicted of or placed on
229	229	deferred adjudication for an offense under Sections 49.04-49.08
230	230	[one or more such previous convictions], the court shall require as
231	231	a condition of community supervision that the defendant have that
232	232	device installed on each [the] motor vehicle owned by the defendant
233	233	or on the vehicle most regularly driven by the defendant and that
234	234	the defendant not operate any motor vehicle that [unless the
235	235	vehicle] is not equipped with the device described in this
236	236	subsection.
237	237	(4) If the defendant is not otherwise restricted to
238	238	the operation of a motor vehicle equipped with a device described by
239	239	this subsection at the discretion of the court under Subdivision
240	240	(1) or as required by Subdivision (3), the court shall order the
241	241	appropriate supervision officer to use an empirically validated
242	242	risk assessment screening instrument to determine the risk that the
243	243	defendant will commit a subsequent offense under Sections
244	244	49.04-49.08, Penal Code. If the assessment shows that the
245	245	defendant is at high risk for committing a subsequent offense under
246	246	one of those sections, the court shall require as a condition of
247	247	community supervision that the defendant have a device described by
248	248	this subsection installed on each motor vehicle owned by the
249	249	defendant or on the vehicle most regularly driven by the defendant
250	250	and that the defendant not operate any motor vehicle that is not
251	251	equipped with that device.
252	252	(5) If the court orders a device under this
253	253	subsection, the [The] court shall require the defendant to obtain
254	254	the device at the defendant's own cost before the 30th day after the
255	255	date of conviction unless the court finds that to do so would not be
256	256	in the best interest of justice and enters its findings on record.
257	257	(6) The court shall require the defendant to provide
258	258	evidence to the court within the 30-day period that the device has
259	259	been installed on the appropriate vehicle and order the device to
260	260	remain installed on that vehicle for a period not less than 50
261	261	percent of the supervision period.
262	262	(7) If the court determines the defendant [offender]
263	263	is unable to pay for the device, the court may impose a reasonable
264	264	payment schedule not to exceed twice the period of the court's
265	265	order.
266	266	(8) The Department of Public Safety shall approve
267	267	devices for use under this subsection. Section 521.247,
268	268	Transportation Code, applies to the approval of a device under this
269	269	subsection and the consequences of that approval.
270	270	(9) Notwithstanding the provisions of this section, if
271	271	a defendant [person] is required to operate a motor vehicle in the
272	272	course and scope of the defendant's [person's] employment and if the
273	273	vehicle is owned by the employer, the defendant [person] may
274	274	operate that vehicle without installation of an approved ignition
275	275	interlock device if the employer has been notified of that driving
276	276	privilege restriction and if proof of that notification is with the
277	277	vehicle. This employment exemption does not apply, however, if the
278	278	business entity that owns the vehicle is owned or controlled by the
279	279	defendant [person whose driving privilege has been restricted].
280	280	(10) A previous conviction or placement on deferred
281	281	adjudication may not be used for purposes of restricting a
282	282	defendant [person] to the operation of a motor vehicle equipped
283	283	with an interlock ignition device under this subsection if:
284	284	(A) [(1)] the [previous conviction was a final
285	285	conviction under Section 49.04, 49.045, 49.05, 49.06, 49.07, or
286	286	49.08, Penal Code, and was for an] offense for which the defendant
287	287	was convicted or placed on deferred adjudication was an offense
288	288	under Section 49.04, 49.045, 49.05, 49.06, 49.07, or 49.08, Penal
289	289	Code, committed more than 10 years before the instant offense for
290	290	which the defendant [person] was [convicted and] placed on
291	291	community supervision; and
292	292	(B) [(2)] the defendant [person] has not been
293	293	convicted of or placed on deferred adjudication for an offense
294	294	under Section 49.04, 49.045, 49.05, 49.06, 49.07, or 49.08 of that
295	295	code, committed within 10 years before the date of [on which] the
296	296	instant offense for which the defendant [person] was [convicted
297	297	and] placed on community supervision.
298	298	(11) The vendor of ignition interlock devices who
299	299	installs a device under this subsection shall pay to the local
300	300	community supervision and corrections department a one-time fee of
301	301	$360 to help defray the cost of monitoring compliance with a court
302	302	order issued under this subsection.
303	303	(12) If, at the time of the offense, the defendant
304	304	refused a request of a peace officer to provide a specimen of the
305	305	defendant's breath or blood for alcohol testing, the vendor of an
306	306	ignition interlock device who installs the device under this
307	307	subsection on the vehicle of the defendant, or provides an ethyl
308	308	alcohol monitoring device ordered for the defendant under
309	309	Subsection (o), shall ensure that the device is capable of
310	310	verifying by facial recognition technology or other technological
311	311	means that a breath sample is provided by the defendant.
312	312	(13) If a defendant required as a condition of
313	313	community supervision to have installed an ignition interlock
314	314	device on the defendant's vehicle under this subsection certifies
315	315	to the court by affidavit that the defendant is not subject to that
316	316	condition because the defendant does not own or have access to a
317	317	vehicle, the judge shall require the defendant to submit to ethyl
318	318	alcohol monitoring under Subsection (o), unless the judge
319	319	determines the defendant is indigent.
320	320	(n) Notwithstanding any other provision of this section or
321	321	other law, the judge who places on community supervision a
322	322	defendant who was younger than 21 years of age at the time of the
323	323	offense and was placed on community supervision [convicted] for an
324	324	offense under Sections 49.04-49.08, Penal Code, shall:
325	325	(1) order that the defendant's driver's license be
326	326	suspended for 90 days beginning on the date that the defendant
327	327	[person] is placed on community supervision; and
328	328	(2) require as a condition of community supervision
329	329	that the defendant not operate a motor vehicle unless the vehicle is
330	330	equipped with the device described by Subsection (i) of this
331	331	section or, if the defendant does not own or have access to a
332	332	vehicle, require the defendant to submit to ethyl alcohol
333	333	monitoring under Subsection (o), unless the court finds that the
334	334	defendant is indigent.
335	335	(o)(1) This subsection applies to a defendant for whom a
336	336	judge may order or is required to order the installation and use of
337	337	an ignition interlock device under Subsection (i), including a
338	338	defendant who certifies to the court the inability to comply with an
339	339	ignition interlock device requirement because the defendant does
340	340	not own or have access to a vehicle.
341	341	(2) Notwithstanding Subsection (i) and subject to
342	342	Subdivision (6), in lieu of or in addition to requiring a defendant
343	343	to install and use an ignition interlock device under that
344	344	subsection, the judge may require the defendant to submit to ethyl
345	345	alcohol monitoring under this subsection. The judge must specify
346	346	the date by which the defendant must begin wearing or using the
347	347	ethyl alcohol monitoring device.
348	348	(3) The judge may revoke community supervision if:
349	349	(A) the defendant refuses to wear or use the
350	350	ethyl alcohol monitoring device;
351	351	(B) the defendant tampers with or otherwise
352	352	attempts to disable the device;
353	353	(C) the device shows that the defendant has
354	354	violated a condition of community supervision; or
355	355	(D) the defendant fails to pay the costs of ethyl
356	356	alcohol monitoring, if:
357	357	(i) payment is ordered under Subdivision
358	358	(4) as a condition of community supervision; and
359	359	(ii) the judge determines that the
360	360	defendant is not indigent and is financially able to make the
361	361	payments as ordered.
362	362	(4) The cost of the ethyl alcohol monitoring device
363	363	may be ordered paid as a condition of community supervision by the
364	364	defendant to the court or to the entity designated by the judge
365	365	under Subdivision (5) or waived or reduced based on the defendant's
366	366	ability to pay. The court may impose a reasonable payment schedule
367	367	for the cost of the device, in whole or in part, as applicable, for a
368	368	period not to exceed twice the period of the court's order requiring
369	369	ethyl alcohol monitoring.
370	370	(5) The judge may designate an appropriate entity to
371	371	verify that the defendant is wearing or using the ethyl alcohol
372	372	monitoring device appropriately and to monitor the device.
373	373	(6) Except as provided by Section 49.09(i), a judge
374	374	may not order ethyl alcohol monitoring in lieu of an ignition
375	375	interlock device under this subsection for a defendant subject to
376	376	Section 49.09(h), Penal Code. The judge may order ethyl alcohol
377	377	monitoring in addition to the ignition interlock device required
378	378	under that section.
379	379	SECTION 4. Section 49.09, Penal Code, is amended by
380	380	amending Subsection (h) and adding Subsection (i) to read as
381	381	follows:
382	382	(h) This subsection applies only to a person convicted of a
383	383	second or subsequent offense relating to the operating of a motor
384	384	vehicle while intoxicated committed within five years of the date
385	385	on which the most recent preceding offense was committed. The court
386	386	shall enter an order that requires the defendant to have a device
387	387	installed, on each motor vehicle owned or operated by the
388	388	defendant, that uses a deep-lung breath analysis mechanism to make
389	389	impractical the operation of the motor vehicle if ethyl alcohol is
390	390	detected in the breath of the operator, and that requires that
391	391	before the first anniversary of the ending date of the period of
392	392	license suspension under Section 521.344, Transportation Code, the
393	393	defendant not operate any motor vehicle that is not equipped with
394	394	that device. The court shall require the defendant to obtain the
395	395	device at the defendant's own cost on or before that ending date,
396	396	require the defendant to provide evidence to the court on or before
397	397	that ending date that the device has been installed on each
398	398	appropriate vehicle, and order the device to remain installed on
399	399	each vehicle until the first anniversary of that ending date. If
400	400	the court determines the offender is unable to pay for the device,
401	401	the court may impose a reasonable payment schedule not to extend
402	402	beyond the first anniversary of the date of installation. The
403	403	Department of Public Safety shall approve devices for use under
404	404	this subsection. Section 521.247, Transportation Code, applies to
405	405	the approval of a device under this subsection and the consequences
406	406	of that approval. Failure to comply with an order entered under
407	407	this subsection is punishable by contempt. For purposes of this
408	408	subsection, a person is considered to be convicted of an offense if
409	409	the person is placed on deferred adjudication community supervision
410	410	under Section 5, Article 42.12, Code of Criminal Procedure, for an
411	411	offense under Section 49.04, 49.045, 49.05, 49.06, or 49.065. For
412	412	the purpose of enforcing this subsection, the court that enters an
413	413	order under this subsection retains jurisdiction over the defendant
414	414	until the date on which the device is no longer required to remain
415	415	installed. To the extent of a conflict between this subsection and
416	416	Section 13 [13(i)], Article 42.12, Code of Criminal Procedure, this
417	417	subsection controls.
418	418	(i) If a defendant otherwise required under Subsection (h)
419	419	to have installed an ignition interlock device on the defendant's
420	420	vehicle certifies to the court by affidavit that the defendant is
421	421	not subject to that requirement because the defendant does not own
422	422	or have access to a vehicle, the judge shall require the defendant
423	423	to submit to ethyl alcohol monitoring under Subsection 13(o),
424	424	Article 42.12, Code of Criminal Procedure, unless the judge
425	425	determines the defendant is indigent.
426	426	SECTION 5. (a) The Legislative Budget Board shall perform
427	427	or contract for the performance of a study to analyze the efficacy
428	428	of this Act in reducing recidivism and promoting public safety
429	429	during the three-year period following the passage of this Act.
430	430	(b) The Legislative Budget Board shall submit to the
431	431	legislature two reports on the study conducted under this section
432	432	along with any recommendations based on the results of the study.
433	433	The first report must be submitted not later than December 1, 2016,
434	434	and the second report must be submitted not later than December 1,
435	435	2018.
436	436	(c) This section expires January 1, 2019.
437	437	SECTION 6. The change in law made by this Act applies only
438	438	to a defendant who is placed on community supervision on or after
439	439	the effective date of this Act, regardless of whether the offense
440	440	for which the defendant is placed on community supervision is
441	441	committed before, on, or after that date.
442	442	SECTION 7. This Act takes effect September 1, 2015.