By: Ellis S.B. No. 1686
A BILL TO BE ENTITLED
AN ACT
Relating to revocation of community supervision for use or
possession of small amounts of marihuana.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 21 Article 42.12, Code of Criminal
Procedure, are amended to read as follows:
(a) At any time during the period of community supervision
the judge may issue a warrant for violation of any of the conditions
of the community supervision and cause a defendant convicted under
Section 43.02, Penal Code, or under Chapter 481, Health and Safety
Code, or Sections 485.031 through 485.035, Health and Safety Code,
or placed on deferred adjudication after being charged with one of
those offenses, to be subject to the control measures of Section
81.083, Health and Safety Code, and to the court-ordered-management
provisions of Subchapter G, Chapter 81, Health and Safety Code.
(b) At any time during the period of community supervision
the judge may issue a warrant for violation of any of the conditions
of the community supervision and cause the defendant to be
arrested. Any supervision officer, police officer or other officer
with power of arrest may arrest such defendant with or without a
warrant upon the order of the judge to be noted on the docket of the
court. Subject to Subsection (b-1), a defendant arrested under
this subsection may be detained in the county jail or other
appropriate place of confinement until he can be taken before the
judge for a determination regarding the alleged violation. The
arresting officer shall immediately report the arrest and detention
to the judge.
(b-1) Without any unnecessary delay, but not later than 48
hours after the person is arrested, the arresting officer or the
person with custody of the arrested person shall take the arrested
person before the judge who ordered the arrest for the alleged
violation of a condition of community supervision or, if the judge
is unavailable, before a magistrate of the county in which the
person was arrested. The judge or magistrate shall perform all
appropriate duties and may exercise all appropriate powers as
provided by Article 15.17 with respect to an arrest for a new
criminal offense, except that only the judge who ordered the arrest
for the alleged violation may authorize the person's release on
bail. The arrested person may be taken before the judge or
magistrate under this subsection by means of an electronic
broadcast system as provided by and subject to the requirements of
Article 15.17.
(b-2) If the defendant has not been released on bail as
permitted under Subsection (b-1), on motion by the defendant the
judge who ordered the arrest for the alleged violation of a
condition of community supervision shall cause the defendant to be
brought before the judge for a hearing on the alleged violation
within 20 days of filing of said motion, and after a hearing without
a jury, may either continue, extend, modify, or revoke the
community supervision. A judge may revoke the community
supervision of a defendant who is imprisoned in a penal institution
without a hearing if the defendant in writing before a court of
record in the jurisdiction where imprisoned waives his right to a
hearing and to counsel, affirms that he has nothing to say as to why
sentence should not be pronounced against him, and requests the
judge to revoke community supervision and to pronounce sentence.
In a felony case, the state may amend the motion to revoke community
supervision any time up to seven days before the date of the
revocation hearing, after which time the motion may not be amended
except for good cause shown, and in no event may the state amend the
motion after the commencement of taking evidence at the hearing.
The judge may continue the hearing for good cause shown by either
the defendant or the state.
(c) The court may not revoke the community supervision of a
defendant if, at the community supervision revocation hearing, the
court finds that the only evidence supporting the alleged violation
of a condition of community supervision is the uncorroborated
results of a polygraph examination. In a community supervision
revocation hearing at which it is alleged only that the defendant
violated the conditions of community supervision by failing to pay
compensation paid to appointed counsel, community supervision
fees, or court costs, the state must prove by a preponderance of the
evidence that the defendant was able to pay and did not pay as
ordered by the judge. The court may order a community supervision
and corrections department to obtain information pertaining to the
factors listed under Article 42.037(h) and include that information
in the report required under Section 9(a) or a separate report, as
the court directs.
(d) A defendant has a right to counsel at a hearing under
this section. The court shall appoint counsel for an indigent
defendant in accordance with the procedures adopted under Article
26.04.
(e) A court retains jurisdiction to hold a hearing under
Subsection (b-2) and to revoke, continue, or modify community
supervision, regardless of whether the period of community
supervision imposed on the defendant has expired, if before the
expiration the attorney representing the state files a motion to
revoke, continue, or modify community supervision and a capias is
issued for the arrest of the defendant.
(f) A court may not revoke the community supervision of a
defendant if, at the community supervision revocation hearing, the
court finds that the only evidence supporting the alleged violation
of a condition of community supervision involves conduct that would
constitute a misdemeanor under Sec. 481.121 of the Health & Safety
Code, unless there is sufficient evidence of an additional
violation other than failing to pay compensation paid to appointed
counsel, community supervision fees, or court costs when the state
has proven by a preponderance of the evidence that the defendant was
able to pay and did not pay as ordered by the judge.