85R8469 GCB-D
By: Perry S.B. No. 1182
A BILL TO BE ENTITLED
AN ACT
relating to the prosecution, punishment, and certain civil
consequences of conduct causing the birth of a child born addicted
to a controlled substance; creating an offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 22, Penal Code, is amended by adding
Section 22.042 to read as follows:
Sec. 22.042. INGESTION OF CONTROLLED SUBSTANCE WHILE
PREGNANT. (a) In this section:
(1) "Born addicted to a controlled substance" means a
child who, during the first month after birth:
(A) experiences observable withdrawal from a
controlled substance;
(B) exhibits observable or harmful effects in the
child's physical appearance or functioning attributable to
addiction to a controlled substance; or
(C) exhibits the demonstrable presence of a
controlled substance in the child's bodily fluids.
(2) "Controlled substance" and "prescription" have
the meanings assigned by Section 481.002, Health and Safety Code.
(b) A person commits an offense if the person ingests a
controlled substance while pregnant, resulting in the birth of a
child who is born addicted to a controlled substance.
(c) It is a defense to prosecution under this section that
the child was born addicted to a controlled substance that the actor
ingested pursuant to a prescription issued by a licensed physician.
(d) It is a defense to prosecution under this section that
the actor attended counseling sessions for substance abusers or
participated in substance abuse treatment services while pregnant
with the child who is born addicted to a controlled substance.
(e) An offense under this section is a Class A misdemeanor.
(f) The enhancements provided by Sections 12.43 and 12.49 do
not apply to an offense under this section.
SECTION 2. Subchapter C, Chapter 42A, Code of Criminal
Procedure, is amended by adding Article 42A.1011 to read as
follows:
Art. 42A.1011. DEFERRED ADJUDICATION COMMUNITY SUPERVISION
OR COMMUNITY SUPERVISION FOR INGESTION OF CONTROLLED SUBSTANCE
WHILE PREGNANT. (a) Except as provided by Subsection (b), if a
defendant is determined in a trial on the merits to have committed
an offense under Section 22.042, Penal Code, or in the trial of such
an offense the defendant enters a plea of guilty or nolo contendere
and, after hearing the evidence, the judge finds that it
substantiates the defendant's guilt, the judge shall:
(1) defer further proceedings without entering an
adjudication of guilt;
(2) place the defendant on deferred adjudication
community supervision; and
(3) inform the defendant orally or in writing of the
possible consequences under Articles 42A.108 and 42A.110 of a
violation of a condition of deferred adjudication community
supervision.
(b) If the information provided to the defendant under
Subsection (a)(3) is provided orally, the judge must record and
maintain the judge's statement to the defendant. The failure of a
judge to inform a defendant of possible consequences under Articles
42A.108 and 42A.110 is not a ground for reversal unless the
defendant shows that the defendant was harmed by the failure of the
judge to provide the information.
(c) If a defendant has previously been placed on deferred
adjudication community supervision under this section, on
conviction or after receiving a plea of guilty or nolo contendere,
after hearing the evidence and finding that it substantiates the
defendant's guilt, the judge shall place the defendant on community
supervision.
(d) A judge who places a defendant on deferred adjudication
community supervision under Subsection (a) or community
supervision under Subsection (c) shall require the defendant, as a
condition of community supervision, to attend counseling sessions
for substance abusers or participate in substance abuse treatment
services in a program or facility approved or licensed by the
Department of State Health Services.
SECTION 3. Section 261.001(1), Family Code, is amended to
read as follows:
(1) "Abuse" includes the following acts or omissions
by a person:
(A) mental or emotional injury to a child that
results in an observable and material impairment in the child's
growth, development, or psychological functioning;
(B) causing or permitting the child to be in a
situation in which the child sustains a mental or emotional injury
that results in an observable and material impairment in the
child's growth, development, or psychological functioning;
(C) physical injury that results in substantial
harm to the child, or the genuine threat of substantial harm from
physical injury to the child, including an injury that is at
variance with the history or explanation given and excluding an
accident or reasonable discipline by a parent, guardian, or
managing or possessory conservator that does not expose the child
to a substantial risk of harm;
(D) failure to make a reasonable effort to
prevent an action by another person that results in physical injury
that results in substantial harm to the child;
(E) sexual conduct harmful to a child's mental,
emotional, or physical welfare, including conduct that constitutes
the offense of continuous sexual abuse of young child or children
under Section 21.02, Penal Code, indecency with a child under
Section 21.11, Penal Code, sexual assault under Section 22.011,
Penal Code, or aggravated sexual assault under Section 22.021,
Penal Code;
(F) failure to make a reasonable effort to
prevent sexual conduct harmful to a child;
(G) compelling or encouraging the child to engage
in sexual conduct as defined by Section 43.01, Penal Code,
including compelling or encouraging the child in a manner that
constitutes an offense of trafficking of persons under Section
20A.02(a)(7) or (8), Penal Code, prostitution under Section
43.02(b), Penal Code, or compelling prostitution under Section
43.05(a)(2), Penal Code;
(H) causing, permitting, encouraging, engaging
in, or allowing the photographing, filming, or depicting of the
child if the person knew or should have known that the resulting
photograph, film, or depiction of the child is obscene as defined by
Section 43.21, Penal Code, or pornographic;
(I) the current use by a person of a controlled
substance as defined by Chapter 481, Health and Safety Code, in a
manner or to the extent that the use results in physical, mental, or
emotional injury to a child;
(J) causing, expressly permitting, or
encouraging a child to use a controlled substance as defined by
Chapter 481, Health and Safety Code;
(K) causing, permitting, encouraging, engaging
in, or allowing a sexual performance by a child as defined by
Section 43.25, Penal Code; [or]
(L) knowingly causing, permitting, encouraging,
engaging in, or allowing a child to be trafficked in a manner
punishable as an offense under Section 20A.02(a)(5), (6), (7), or
(8), Penal Code, or the failure to make a reasonable effort to
prevent a child from being trafficked in a manner punishable as an
offense under any of those sections; or
(M) allowing a child to be born addicted to a
controlled substance, as defined by Section 22.042, Penal Code.
SECTION 4. Section 262.102, Family Code, is amended by
adding Subsection (b-2) to read as follows:
(b-2) In determining whether there is an immediate danger to
the physical health or safety of a child who is younger than one
year of age, the court may consider whether the child was the
subject of abuse described by Section 261.001(1)(M).
SECTION 5. Section 262.104, Family Code, is amended by
amending Subsection (a) and adding Subsection (c) to read as
follows:
(a) If there is no time to obtain a temporary order,
temporary restraining order, or attachment under Section
262.102(a) before taking possession of a child consistent with the
health and safety of that child, an authorized representative of
the Department of Family and Protective Services, a law enforcement
officer, or a juvenile probation officer may take possession of a
child without a court order under the following conditions, only:
(1) on personal knowledge of facts that would lead a
person of ordinary prudence and caution to believe that there is an
immediate danger to the physical health or safety of the child;
(2) on information furnished by another that has been
corroborated by personal knowledge of facts and all of which taken
together would lead a person of ordinary prudence and caution to
believe that there is an immediate danger to the physical health or
safety of the child;
(3) on personal knowledge of facts that would lead a
person of ordinary prudence and caution to believe that the child
has been the victim of sexual abuse or of trafficking under Section
20A.02 or 20A.03, Penal Code;
(4) on information furnished by another that has been
corroborated by personal knowledge of facts and all of which taken
together would lead a person of ordinary prudence and caution to
believe that the child has been the victim of sexual abuse or of
trafficking under Section 20A.02 or 20A.03, Penal Code; [or]
(5) on information furnished by another that has been
corroborated by personal knowledge of facts and all of which taken
together would lead a person of ordinary prudence and caution to
believe that the parent or person who has possession of the child is
currently using a controlled substance as defined by Chapter 481,
Health and Safety Code, and the use constitutes an immediate danger
to the physical health or safety of the child; or
(6) if the child is younger than one year of age, on
information furnished by another that has been corroborated by
personal knowledge of facts and all of which taken together would
lead a person of ordinary prudence and caution to believe that the
child was born addicted to a controlled substance, as defined by
Section 22.042, Penal Code, and there is an immediate danger to the
physical health or safety of the child.
(c) An authorized representative of the Department of
Family and Protective Services, a law enforcement officer, or a
juvenile probation officer who takes possession of a child without
a court order under a condition described by Subsection (a)(6) must
report the facts that supported taking possession of the child to
the local prosecutor with jurisdiction over an offense under
Section 22.042, Penal Code.
SECTION 6. The change in law made by this Act to Section
261.001, Family Code, applies only to an investigation of child
abuse alleged to have occurred on or after the effective date of
this Act.
SECTION 7. This Act takes effect September 1, 2017.