84R10587 GCB-D
By: Canales H.B. No. 2907
A BILL TO BE ENTITLED
AN ACT
relating to allowing deferred adjudication community supervision
for first-time offenders charged with certain intoxication
offenses, requiring the use of an ignition interlock device on
conviction of or placement on deferred adjudication for certain
intoxication offenses, and authorizing ethyl alcohol monitoring as
a condition of community supervision for certain intoxication
offenses; imposing a fee.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 2, Article 42.12, Code of Criminal
Procedure, is amended by adding Subdivision (5) to read as follows:
(5) "Ethyl alcohol monitoring device" means:
(A) a device worn by the defendant that detects
ethyl alcohol in the defendant's perspiration through transdermal
testing; or
(B) a portable ethyl alcohol detection device
carried by the defendant that:
(i) requires the defendant at specified or
random intervals to submit a breath sample;
(ii) analyzes and records the sample;
(iii) transmits the results of the
analysis; and
(iv) is capable by facial recognition
technology or other technological means of verifying that the
breath sample was provided by the defendant.
SECTION 2. Section 5, Article 42.12, Code of Criminal
Procedure, is amended by amending Subsection (d) and adding
Subsection (d-1) to read as follows:
(d) In all other cases the judge may grant deferred
adjudication unless:
(1) the defendant is charged with an offense:
(A) under Section 49.07 or 49.08 [Sections
49.04-49.08], Penal Code; [or]
(B) under Section 49.04, 49.045, 49.05, 49.06, or
49.065, Penal Code, if it is shown that the defendant has been
previously convicted of or placed on deferred adjudication for an
offense under any of those sections or under Section 49.07 or 49.08,
Penal Code; or
(C) for which punishment may be increased under
Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it
is shown that the defendant has been previously convicted of an
offense for which punishment was increased under any one of those
subsections;
(2) the defendant:
(A) is charged with an offense under Section
21.11, 22.011, or 22.021, Penal Code, regardless of the age of the
victim, or a felony described by Section 13B(b) of this article; and
(B) has previously been placed on community
supervision for any offense under Paragraph (A) of this
subdivision;
(3) the defendant is charged with an offense under:
(A) Section 21.02, Penal Code; or
(B) Section 22.021, Penal Code, that is
punishable under Subsection (f) of that section or under Section
12.42(c)(3) or (4), Penal Code; or
(4) the defendant is charged with an offense under
Section 19.02, Penal Code, except that the judge may grant deferred
adjudication on determining that the defendant did not cause the
death of the deceased, did not intend to kill the deceased or
another, and did not anticipate that a human life would be taken.
(d-1) For a defendant charged with an offense under Section
49.04, 49.045, 49.05, 49.06, or 49.065, Penal Code, the judge may
defer adjudication and place the defendant on community supervision
only if, at the time of the offense for which the defendant was
arrested, the defendant:
(1) did not cause a traffic accident or the injury or
death of another;
(2) if requested by a peace officer, provided a blood,
breath, or urine specimen and the analysis of the specimen showed an
alcohol concentration lower than 0.15 at the time the analysis was
performed; and
(3) was not charged with another offense, other than a
Class C misdemeanor, arising from the same incident as the offense
under Section 49.04, 49.045, 49.05, 49.06, or 49.065.
SECTION 3. Section 13, Article 42.12, Code of Criminal
Procedure, is amended by amending Subsections (a), (f), (g), (h),
(i), and (n) and adding Subsection (o) to read as follows:
(a) A judge placing [granting community supervision to] a
defendant on community supervision for [convicted of] an offense
under Chapter 49, Penal Code, shall require as a condition of
community supervision that the defendant submit to:
(1) not less than 72 hours of continuous confinement
in county jail if the defendant was punished under Section
49.09(a), Penal Code; not less than five days of confinement in
county jail if the defendant was punished under Section 49.09(a),
Penal Code, and was subject to Section 49.09(h), Penal Code; not
less than 10 days of confinement in county jail if the defendant was
punished under Section 49.09(b) or (c), Penal Code; or not less than
30 days of confinement in county jail if the defendant was convicted
under Section 49.07, Penal Code; and
(2) an evaluation by a supervision officer or by a
person, program, or facility approved by the Department of State
Health Services [Texas Commission on Alcohol and Drug Abuse] for
the purpose of having the facility prescribe and carry out a course
of conduct necessary for the rehabilitation of the defendant's drug
or alcohol dependence condition.
(f) If a judge places [grants community supervision to] a
defendant on community supervision for [convicted of] an offense
under Sections 49.04-49.08, Penal Code, and if before receiving
community supervision the defendant has not submitted to an
evaluation under Section 9 of this article, the judge shall require
the defendant to submit to the evaluation as a condition of
community supervision. If the evaluation indicates to the judge
that the defendant is in need of treatment for drug or alcohol
dependency, the judge shall require the defendant to submit to that
treatment as a condition of community supervision in a program or
facility approved or licensed by the Department of State Health
Services [Texas Commission on Alcohol and Drug Abuse] or in a
program or facility that complies with standards established by the
community justice assistance division of the Texas Department of
Criminal Justice, after consultation by the division with the
department [commission].
(g) A jury that recommends that a defendant be placed on
community supervision for [a person convicted of] an offense under
Sections 49.04-49.08, Penal Code, may recommend that any driver's
license issued to the defendant under Chapter 521, Transportation
Code, not be suspended. This subsection does not apply to a
defendant [person] punished under Section 49.09(a) or (b), Penal
Code, and subject to Section 49.09(h) of that code.
(h) The judge shall require [If] a defendant placed on
community supervision for [person convicted of] an offense under
Sections 49.04-49.08, Penal Code, [is placed on community
supervision, the judge shall require,] as a condition of the
community supervision, to [that the defendant] attend and
successfully complete before the 181st day after the day community
supervision is granted an educational program jointly approved by
the Department of State Health Services [Texas Commission on
Alcohol and Drug Abuse], the Department of Public Safety, the
Traffic Safety Section of the Texas Department of Transportation,
and the community justice assistance division of the Texas
Department of Criminal Justice designed to rehabilitate persons who
have driven while intoxicated. The Department of State Health
Services [Texas Commission on Alcohol and Drug Abuse] shall publish
the jointly approved rules and shall monitor, coordinate, and
provide training to persons providing the educational programs.
The Department of State Health Services [Texas Commission on
Alcohol and Drug Abuse] is responsible for the administration of
the certification of approved educational programs and may charge a
nonrefundable application fee for the initial certification of
approval and for renewal of a certificate. The judge may waive the
educational program requirement or may grant an extension of time
to successfully complete the program that expires not later than
one year after the beginning date of the defendant's [person's]
community supervision, however, if the defendant by a motion in
writing shows good cause. In determining good cause, the judge may
consider but is not limited to: the defendant's school and work
schedule, the defendant's health, the distance that the defendant
must travel to attend an educational program, and the fact that the
defendant resides out of state, has no valid driver's license, or
does not have access to transportation. The judge shall set out the
finding of good cause for waiver in the judgment. If a defendant is
required, as a condition of community supervision, to attend an
educational program or if the court waives the educational program
requirement, the court clerk shall immediately report that fact to
the Department of Public Safety, on a form prescribed by the
department, for inclusion in the defendant's [person's] driving
record. If the court grants an extension of time in which the
defendant [person] may complete the program, the court clerk shall
immediately report that fact to the Department of Public Safety on a
form prescribed by the department. The report must include the
beginning date of the defendant's [person's] community
supervision. Upon the defendant's [person's] successful
completion of the educational program, the defendant's [person's]
instructor shall give notice to the Department of Public Safety for
inclusion in the defendant's [person's] driving record and to the
community supervision and corrections department. The community
supervision and corrections department shall then forward the
notice to the court clerk for filing. If the Department of Public
Safety does not receive notice that a defendant required to
complete an educational program has successfully completed the
program within the period required by this section, as shown on
department records, the department shall revoke the defendant's
driver's license, permit, or privilege or prohibit the defendant
[person] from obtaining a license or permit, as provided by
Sections 521.344(e) and (f), Transportation Code. The Department
of Public Safety may not reinstate a license suspended under this
subsection unless the defendant [person] whose license was
suspended makes application to the department for reinstatement of
the defendant's [person's] license and pays to the department a
reinstatement fee of $100. The Department of Public Safety shall
remit all fees collected under this subsection to the comptroller
for deposit in the general revenue fund. This subsection does not
apply to a defendant if a jury recommends community supervision for
the defendant and also recommends that the defendant's driver's
license not be suspended.
(i)(1) If a defendant is placed on community supervision for
[person convicted of] an offense under Sections 49.04-49.08, Penal
Code, [is placed on community supervision,] the court may require
as a condition of community supervision that the defendant have a
device installed, on the motor vehicle owned by the defendant or on
the vehicle most regularly driven by the defendant, that uses a
deep-lung breath analysis mechanism to make impractical the
operation of the motor vehicle if ethyl alcohol is detected in the
breath of the operator and that the defendant not operate any motor
vehicle that is not equipped with that device.
(2) [If it is shown on the trial of the offense that an
analysis of a specimen of the person's blood, breath, or urine
showed an alcohol concentration level of 0.15 or more at the time
the analysis was performed, or if the person is convicted of an
offense under Sections 49.04-49.06, Penal Code, and punished under
Section 49.09(a) or (b), Penal Code, or of a second or subsequent
offense under Section 49.07 or 49.08, Penal Code, and the person
after conviction of either offense is placed on community
supervision, the court shall require as a condition of community
supervision that the defendant have the device installed on the
appropriate vehicle and that the defendant not operate any motor
vehicle unless the vehicle is equipped with that device.] Before
placing a defendant on community supervision for [a person
convicted of] an offense under Sections 49.04-49.08, Penal Code,
the court shall determine from criminal history record information
maintained by the Department of Public Safety whether the defendant
[person] has previously been convicted of or placed on deferred
adjudication for an offense [one or more previous convictions]
under Sections 49.04-49.08, Penal Code[, or has one previous
conviction under Sections 49.04-49.07, Penal Code, or one previous
conviction under Section 49.08, Penal Code].
(3) If it is shown on the trial of the offense that an
analysis of a specimen of the defendant's [person's] blood, breath,
or urine showed an alcohol concentration level of 0.15 or more at
the time the analysis was performed, if the defendant refused to
submit a specimen of the defendant's blood, breath, or urine when
requested by a peace officer, or if the court determines that the
defendant [person] has previously been convicted of or placed on
deferred adjudication for an offense under Sections 49.04-49.08
[one or more such previous convictions], the court shall require as
a condition of community supervision that the defendant have that
device installed on each [the] motor vehicle owned by the defendant
or on the vehicle most regularly driven by the defendant and that
the defendant not operate any motor vehicle that [unless the
vehicle] is not equipped with the device described in this
subsection.
(4) If the defendant is not otherwise restricted to
the operation of a motor vehicle equipped with a device described by
this subsection at the discretion of the court under Subdivision
(1) or as required by Subdivision (3), the court shall order the
appropriate supervision officer to use an empirically validated
risk assessment screening instrument to determine the risk that the
defendant will commit a subsequent offense under Sections
49.04-49.08, Penal Code. If the assessment shows that the
defendant is at high risk for committing a subsequent offense under
one of those sections, the court shall require as a condition of
community supervision that the defendant have a device described by
this subsection installed on each motor vehicle owned by the
defendant or on the vehicle most regularly driven by the defendant
and that the defendant not operate any motor vehicle that is not
equipped with that device.
(5) If the court orders a device under this
subsection, the [The] court shall require the defendant to obtain
the device at the defendant's own cost before the 30th day after the
date of conviction unless the court finds that to do so would not be
in the best interest of justice and enters its findings on record.
(6) The court shall require the defendant to provide
evidence to the court within the 30-day period that the device has
been installed on the appropriate vehicle and order the device to
remain installed on that vehicle for a period not less than 50
percent of the supervision period.
(7) If the court determines the defendant [offender]
is unable to pay for the device, the court may impose a reasonable
payment schedule not to exceed twice the period of the court's
order.
(8) The Department of Public Safety shall approve
devices for use under this subsection. Section 521.247,
Transportation Code, applies to the approval of a device under this
subsection and the consequences of that approval.
(9) Notwithstanding the provisions of this section, if
a defendant [person] is required to operate a motor vehicle in the
course and scope of the defendant's [person's] employment and if the
vehicle is owned by the employer, the defendant [person] may
operate that vehicle without installation of an approved ignition
interlock device if the employer has been notified of that driving
privilege restriction and if proof of that notification is with the
vehicle. This employment exemption does not apply, however, if the
business entity that owns the vehicle is owned or controlled by the
defendant [person whose driving privilege has been restricted].
(10) A previous conviction or placement on deferred
adjudication may not be used for purposes of restricting a
defendant [person] to the operation of a motor vehicle equipped
with an interlock ignition device under this subsection if:
(A) [(1)] the [previous conviction was a final
conviction under Section 49.04, 49.045, 49.05, 49.06, 49.07, or
49.08, Penal Code, and was for an] offense for which the defendant
was convicted or placed on deferred adjudication was an offense
under Section 49.04, 49.045, 49.05, 49.06, 49.07, or 49.08, Penal
Code, committed more than 10 years before the instant offense for
which the defendant [person] was [convicted and] placed on
community supervision; and
(B) [(2)] the defendant [person] has not been
convicted of or placed on deferred adjudication for an offense
under Section 49.04, 49.045, 49.05, 49.06, 49.07, or 49.08 of that
code, committed within 10 years before the date of [on which] the
instant offense for which the defendant [person] was [convicted
and] placed on community supervision.
(11) The vendor of ignition interlock devices who
installs a device under this subsection shall pay to the local
community supervision and corrections department a one-time fee of
$360 to help defray the cost of monitoring compliance with a court
order issued under this subsection.
(12) If, at the time of the offense, the defendant
refused a request of a peace officer to provide a specimen of the
defendant's breath or blood for alcohol testing, the vendor of an
ignition interlock device who installs the device under this
subsection on the vehicle of the defendant, or provides an ethyl
alcohol monitoring device ordered for the defendant under
Subsection (o), shall ensure that the device is capable of
verifying by facial recognition technology or other technological
means that a breath sample is provided by the defendant.
(13) If a defendant required as a condition of
community supervision to have installed an ignition interlock
device on the defendant's vehicle under this subsection certifies
to the court by affidavit that the defendant is not subject to that
condition because the defendant does not own or have access to a
vehicle, the judge shall require the defendant to submit to ethyl
alcohol monitoring under Subsection (o), unless the judge
determines the defendant is indigent.
(n) Notwithstanding any other provision of this section or
other law, the judge who places on community supervision a
defendant who was younger than 21 years of age at the time of the
offense and was placed on community supervision [convicted] for an
offense under Sections 49.04-49.08, Penal Code, shall:
(1) order that the defendant's driver's license be
suspended for 90 days beginning on the date that the defendant
[person] is placed on community supervision; and
(2) require as a condition of community supervision
that the defendant not operate a motor vehicle unless the vehicle is
equipped with the device described by Subsection (i) of this
section or, if the defendant does not own or have access to a
vehicle, require the defendant to submit to ethyl alcohol
monitoring under Subsection (o), unless the court finds that the
defendant is indigent.
(o)(1) This subsection applies to a defendant for whom a
judge may order or is required to order the installation and use of
an ignition interlock device under Subsection (i), including a
defendant who certifies to the court the inability to comply with an
ignition interlock device requirement because the defendant does
not own or have access to a vehicle.
(2) Notwithstanding Subsection (i) and subject to
Subdivision (6), in lieu of or in addition to requiring a defendant
to install and use an ignition interlock device under that
subsection, the judge may require the defendant to submit to ethyl
alcohol monitoring under this subsection. The judge must specify
the date by which the defendant must begin wearing or using the
ethyl alcohol monitoring device.
(3) The judge may revoke community supervision if:
(A) the defendant refuses to wear or use the
ethyl alcohol monitoring device;
(B) the defendant tampers with or otherwise
attempts to disable the device;
(C) the device shows that the defendant has
violated a condition of community supervision; or
(D) the defendant fails to pay the costs of ethyl
alcohol monitoring, if:
(i) payment is ordered under Subdivision
(4) as a condition of community supervision; and
(ii) the judge determines that the
defendant is not indigent and is financially able to make the
payments as ordered.
(4) The cost of the ethyl alcohol monitoring device
may be ordered paid as a condition of community supervision by the
defendant to the court or to the entity designated by the judge
under Subdivision (5) or waived or reduced based on the defendant's
ability to pay. The court may impose a reasonable payment schedule
for the cost of the device, in whole or in part, as applicable, for a
period not to exceed twice the period of the court's order requiring
ethyl alcohol monitoring.
(5) The judge may designate an appropriate entity to
verify that the defendant is wearing or using the ethyl alcohol
monitoring device appropriately and to monitor the device.
(6) Except as provided by Section 49.09(i), a judge
may not order ethyl alcohol monitoring in lieu of an ignition
interlock device under this subsection for a defendant subject to
Section 49.09(h), Penal Code. The judge may order ethyl alcohol
monitoring in addition to the ignition interlock device required
under that section.
SECTION 4. Section 49.09, Penal Code, is amended by
amending Subsection (h) and adding Subsection (i) to read as
follows:
(h) This subsection applies only to a person convicted of a
second or subsequent offense relating to the operating of a motor
vehicle while intoxicated committed within five years of the date
on which the most recent preceding offense was committed. The court
shall enter an order that requires the defendant to have a device
installed, on each motor vehicle owned or operated by the
defendant, that uses a deep-lung breath analysis mechanism to make
impractical the operation of the motor vehicle if ethyl alcohol is
detected in the breath of the operator, and that requires that
before the first anniversary of the ending date of the period of
license suspension under Section 521.344, Transportation Code, the
defendant not operate any motor vehicle that is not equipped with
that device. The court shall require the defendant to obtain the
device at the defendant's own cost on or before that ending date,
require the defendant to provide evidence to the court on or before
that ending date that the device has been installed on each
appropriate vehicle, and order the device to remain installed on
each vehicle until the first anniversary of that ending date. If
the court determines the offender is unable to pay for the device,
the court may impose a reasonable payment schedule not to extend
beyond the first anniversary of the date of installation. The
Department of Public Safety shall approve devices for use under
this subsection. Section 521.247, Transportation Code, applies to
the approval of a device under this subsection and the consequences
of that approval. Failure to comply with an order entered under
this subsection is punishable by contempt. For purposes of this
subsection, a person is considered to be convicted of an offense if
the person is placed on deferred adjudication community supervision
under Section 5, Article 42.12, Code of Criminal Procedure, for an
offense under Section 49.04, 49.045, 49.05, 49.06, or 49.065. For
the purpose of enforcing this subsection, the court that enters an
order under this subsection retains jurisdiction over the defendant
until the date on which the device is no longer required to remain
installed. To the extent of a conflict between this subsection and
Section 13 [13(i)], Article 42.12, Code of Criminal Procedure, this
subsection controls.
(i) If a defendant otherwise required under Subsection (h)
to have installed an ignition interlock device on the defendant's
vehicle certifies to the court by affidavit that the defendant is
not subject to that requirement because the defendant does not own
or have access to a vehicle, the judge shall require the defendant
to submit to ethyl alcohol monitoring under Subsection 13(o),
Article 42.12, Code of Criminal Procedure, unless the judge
determines the defendant is indigent.
SECTION 5. (a) The Legislative Budget Board shall perform
or contract for the performance of a study to analyze the efficacy
of this Act in reducing recidivism and promoting public safety
during the three-year period following the passage of this Act.
(b) The Legislative Budget Board shall submit to the
legislature two reports on the study conducted under this section
along with any recommendations based on the results of the study.
The first report must be submitted not later than December 1, 2016,
and the second report must be submitted not later than December 1,
2018.
(c) This section expires January 1, 2019.
SECTION 6. The change in law made by this Act applies only
to a defendant who is placed on community supervision on or after
the effective date of this Act, regardless of whether the offense
for which the defendant is placed on community supervision is
committed before, on, or after that date.
SECTION 7. This Act takes effect September 1, 2015.