84R23336 MEW-F
By: McClendon, Keough H.B. No. 3184
Substitute the following for H.B. No. 3184:
By: Herrero C.S.H.B. No. 3184
A BILL TO BE ENTITLED
AN ACT
relating to the establishment, operation, and funding of
victim-offender mediation programs; authorizing fees.
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 the defendant's [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 the defendant's
[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 28, Code of Criminal Procedure, is
amended by adding Article 28.011 to read as follows:
Art. 28.011. MOTION FOR VICTIM-OFFENDER MEDIATION. The
court may require a defendant who has not been formally charged, the
defendant's attorney of record, if any, and the state's attorney to
appear before the court on a motion to allow the defendant to enter
a pretrial victim-offender mediation program established under
Subchapter A-1, Chapter 56.
SECTION 3. 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 or state jail felony under Title 7, Penal Code; 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 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
the referral of a defendant's matter to mediation under 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 requires the
defendant to take responsibility for the defendant's actions and
addresses the specific circumstances of the defendant's actions,
which may:
(A) include an apology by the defendant; or
(B) require 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, and has completed training in criminal justice
mediation, 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 in the defendant's 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;
(2) the defendant fails to fulfill the terms of the
mediation agreement successfully by the date specified in the
mediation agreement; or
(3) the mediator determines, based on the mediator's
training and experience, that:
(A) the victim or defendant no longer wants to
participate or cooperate; or
(B) the mediation will be ineffective.
(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) If the defendant successfully completes the mediation
agreement as represented to the court by the attorney representing
the state, after notice to the attorney representing the state and a
hearing at which the court determines that a dismissal of any
indictment or information charging the defendant with the
commission of the offense is in the best interest of justice, the
court shall dismiss the criminal action against the defendant.
(i) The court or the attorney representing the state may
extend the initial compliance period granted to the defendant.
(j) A determination by the court regarding whether the
mediation agreement has been successfully completed is final and
may not be appealed.
(k) 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 in writing 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 interim 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 4. 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 5. Chapter 54, Family Code, is amended by adding
Section 54.035 to read as follows:
Sec. 54.035. VICTIM-OFFENDER MEDIATION. (a) The Texas
Juvenile Justice Board by rule shall establish guidelines
permitting victim-offender mediation programs to be implemented
and administered by juvenile boards.
(b) In a mediation program authorized under this section,
each victim to whom this section applies must be informed of the
victim's right to request victim-offender mediation.
(c) Participation in a victim-offender mediation program
under this section by a child and by a victim must be voluntary. If a
child's case is forwarded to the office of the prosecuting attorney
under Section 53.01, the prosecuting attorney must consent to the
mediation in which the child may participate under the program.
(d) If an agreement is not reached between the victim and
the child or if the child does not successfully complete the terms
of the agreement, as determined by the juvenile court, the child's
case shall proceed in accordance with the applicable provisions of
this title.
SECTION 6. Section 57.002(a), Family Code, is amended to
read as follows:
(a) A victim, guardian of a victim, or close relative of a
deceased victim is entitled to the following rights within the
juvenile justice system:
(1) the right to receive from law enforcement agencies
adequate protection from harm and threats of harm arising from
cooperation with prosecution efforts;
(2) the right to have the court or person appointed by
the court take the safety of the victim or the victim's family into
consideration as an element in determining whether the child should
be detained before the child's conduct is adjudicated;
(3) the right, if requested, to be informed of
relevant court proceedings, including appellate proceedings, and
to be informed in a timely manner if those court proceedings have
been canceled or rescheduled;
(4) the right to be informed, when requested, by the
court or a person appointed by the court concerning the procedures
in the juvenile justice system, including general procedures
relating to:
(A) the preliminary investigation and deferred
prosecution of a case; and
(B) the appeal of the case;
(5) the right to provide pertinent information to a
juvenile court conducting a disposition hearing concerning the
impact of the offense on the victim and the victim's family by
testimony, written statement, or any other manner before the court
renders its disposition;
(6) the right to receive information regarding
compensation to victims as provided by Subchapter B, Chapter 56,
Code of Criminal Procedure, including information related to the
costs that may be compensated under that subchapter and the amount
of compensation, eligibility for compensation, and procedures for
application for compensation under that subchapter, the payment of
medical expenses under Article [Section] 56.06, Code of Criminal
Procedure, for a victim of a sexual assault, and when requested, to
referral to available social service agencies that may offer
additional assistance;
(7) the right to be informed, upon request, of
procedures for release under supervision or transfer of the person
to the custody of the Texas Department of Criminal Justice for
parole, to participate in the release or transfer for parole
process, to be notified, if requested, of the person's release,
escape, or transfer for parole proceedings concerning the person,
to provide to the Texas Juvenile Justice Department for inclusion
in the person's file information to be considered by the commission
before the release under supervision or transfer for parole of the
person, and to be notified, if requested, of the person's release or
transfer for parole;
(8) the right to be provided with a waiting area,
separate or secure from other witnesses, including the child
alleged to have committed the conduct and relatives of the child,
before testifying in any proceeding concerning the child, or, if a
separate waiting area is not available, other safeguards should be
taken to minimize the victim's contact with the child and the
child's relatives and witnesses, before and during court
proceedings;
(9) the right to prompt return of any property of the
victim that is held by a law enforcement agency or the attorney for
the state as evidence when the property is no longer required for
that purpose;
(10) the right to have the attorney for the state
notify the employer of the victim, if requested, of the necessity of
the victim's cooperation and testimony in a proceeding that may
necessitate the absence of the victim from work for good cause;
(11) the right to be present at all public court
proceedings related to the conduct of the child as provided by
Section 54.08, subject to that section; [and]
(12) for a victim to whom Section 54.035 applies, the
right to request victim-offender mediation under that section; and
(13) any other right appropriate to the victim that a
victim of criminal conduct has under Article 56.02 or 56.021, Code
of Criminal Procedure.
SECTION 7. Section 58.003, Family Code, is amended by
adding Subsections (c-9) and (c-10) to read as follows:
(c-9) Notwithstanding Subsections (a) and (c) and subject
to Subsection (b), a juvenile court may order the sealing of records
concerning a child alleged to have engaged in delinquent conduct or
conduct indicating a need for supervision if the child successfully
completed a victim-offender mediation program under Section
54.035. The court may:
(1) immediately order the sealing of the records
without a hearing; or
(2) hold a hearing to determine whether to seal the
records.
(c-10) If the court orders the sealing of a child's records
under Subsection (c-9), a prosecuting attorney or juvenile
probation department may maintain until the child's 17th birthday a
separate record of the child's name and date of birth, the
allegation against the child, and the date the child successfully
completed the victim-offender mediation program. The prosecuting
attorney or juvenile probation department, as applicable, shall
send the record to the court as soon as practicable after the
child's 17th birthday to be added to the child's other sealed
records.
SECTION 8. Subchapter B, Chapter 102, Government Code, is
amended by adding Section 102.0215 to read as follows:
Sec. 102.0215. 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 9. Subchapter A, Chapter 221, Human Resources Code,
is amended by adding Section 221.013 to read as follows:
Sec. 221.013. MEDIATION MONITORING. The department shall
monitor the success of victim-offender mediation programs
established under Section 54.035, Family Code.
SECTION 10. (a) Subchapter A-1, Chapter 56, Code of
Criminal Procedure, as added by this Act, 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) Article 102.0179, Code of Criminal Procedure, and
Section 102.0215, Government Code, as added by this Act, apply 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 11. (a) Not later than December 1, 2015, the Texas
Juvenile Justice Board shall establish guidelines for
victim-offender mediation programs as required by Section 54.035,
Family Code, as added by this Act.
(b) Section 54.035, Family Code, as added by this Act,
applies only to a victim-offender mediation under that section that
occurs on or after January 1, 2016, regardless of whether the
conduct that is the basis of the mediation occurs before, on, or
after that date.
SECTION 12. 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, 2015.