Texas 2017 - 85th Regular

Texas Senate Bill SB857 Compare Versions

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

Old	New	Differences
1	1	85R2292 MEW-F
2	2	By: Hughes S.B. No. 857
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the establishment, operation, and funding of
8	8	victim-offender mediation programs; authorizing fees.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 1, Article 28.01, Code of Criminal
11	11	Procedure, is amended to read as follows:
12	12	Sec. 1. The court may set any criminal case for a pre-trial
13	13	hearing before it is set for trial upon its merits, and direct the
14	14	defendant and the defendant's [his] attorney, if any of record, and
15	15	the State's attorney, to appear before the court at the time and
16	16	place stated in the court's order for a conference and hearing
17	17	regardless of whether the defendant has been formally charged. The
18	18	defendant must be present at the arraignment, and the defendant's
19	19	[his] presence is required during any pre-trial proceeding. The
20	20	pre-trial hearing shall be to determine any of the following
21	21	matters:
22	22	(1) Arraignment of the defendant, if such be
23	23	necessary; and appointment of counsel to represent the defendant,
24	24	if such be necessary;
25	25	(2) Pleadings of the defendant;
26	26	(3) Special pleas, if any;
27	27	(4) Exceptions to the form or substance of the
28	28	indictment or information;
29	29	(5) Motions for continuance either by the State or
30	30	defendant; provided that grounds for continuance not existing or
31	31	not known at the time may be presented and considered at any time
32	32	before the defendant announces ready for trial;
33	33	(6) Motions to suppress evidence--When a hearing on
34	34	the motion to suppress evidence is granted, the court may determine
35	35	the merits of said motion on the motions themselves, or upon
36	36	opposing affidavits, or upon oral testimony, subject to the
37	37	discretion of the court;
38	38	(7) Motions for change of venue by the State or the
39	39	defendant; provided, however, that such motions for change of
40	40	venue, if overruled at the pre-trial hearing, may be renewed by the
41	41	State or the defendant during the voir dire examination of the jury;
42	42	(8) Discovery;
43	43	(9) Entrapment; [and]
44	44	(10) Motion for appointment of interpreter; and
45	45	(11) Motion to allow the defendant to enter a pretrial
46	46	victim-offender mediation program established under Subchapter
47	47	A-1, Chapter 56.
48	48	SECTION 2. Chapter 56, Code of Criminal Procedure, is
49	49	amended by adding Subchapter A-1 to read as follows:
50	50	SUBCHAPTER A-1. PRETRIAL VICTIM-OFFENDER MEDIATION PROGRAM
51	51	Art. 56.21. AUTHORITY TO ESTABLISH PROGRAM. (a) The
52	52	commissioners court of a county or governing body of a municipality
53	53	may, in coordination with the office of the attorney representing
54	54	the state in the county or municipality, establish a pretrial
55	55	victim-offender mediation program for persons who:
56	56	(1) have been arrested for or charged with a
57	57	misdemeanor or state jail felony under Title 7, Penal Code; and
58	58	(2) have not previously been convicted of a felony or a
59	59	misdemeanor, other than a misdemeanor traffic offense punishable by
60	60	fine only.
61	61	(b) A court that implements a program under this subchapter
62	62	may adopt administrative rules and local rules of procedure as
63	63	necessary or appropriate to implement or operate the program.
64	64	(c) The commissioners court of a county or governing body of
65	65	a municipality that establishes a program under this subchapter
66	66	may:
67	67	(1) allow for referral to the program of arrested
68	68	persons described by Subsection (a) who have not yet been formally
69	69	charged with an offense;
70	70	(2) adopt administrative rules and local rules of
71	71	procedure as necessary or appropriate to implement or operate the
72	72	program; and
73	73	(3) approve additional program requirements as
74	74	recommended by the attorney representing the state.
75	75	Art. 56.22. PROGRAM. (a) A pretrial victim-offender
76	76	mediation program established under Article 56.21 on or after
77	77	September 1, 2017, must require:
78	78	(1) the designation of individual defendants who are
79	79	eligible to participate in the program, based on standards
80	80	established by Article 56.21 and any local standards approved by
81	81	the commissioners court of the county or the governing body of the
82	82	municipality, as applicable;
83	83	(2) the attorney representing the state to consent to
84	84	the referral of a defendant's matter to mediation under the
85	85	program;
86	86	(3) the consent of the victim to be obtained and
87	87	documented in the record of the court by the attorney representing
88	88	the state before the case may proceed to pretrial victim-offender
89	89	mediation; and
90	90	(4) the defendant to enter into a binding mediation
91	91	agreement in accordance with Article 56.23 that requires the
92	92	defendant to take responsibility for the defendant's actions and
93	93	addresses the specific circumstances of the defendant's actions,
94	94	which may:
95	95	(A) include an apology by the defendant; or
96	96	(B) require the defendant to:
97	97	(i) pay restitution to the victim;
98	98	(ii) perform community service; or
99	99	(iii) both pay restitution and perform
100	100	community service.
101	101	(b) A court may elect to apply the provisions under
102	102	Subsection (a) in implementing a pretrial victim-offender
103	103	mediation program that was established by the commissioners court
104	104	of a county or governing body of a municipality before September 1,
105	105	2017.
106	106	(c) All communications made in a pretrial victim-offender
107	107	mediation program are confidential and may not be introduced into
108	108	evidence except in an open court proceeding instituted to determine
109	109	the meaning of a mediation agreement.
110	110	(d) A pretrial victim-offender mediation program may
111	111	require the staff and other resources of pretrial services
112	112	departments and community supervision and corrections departments
113	113	to assist the court or the attorney representing the state in
114	114	monitoring the defendant's compliance with a mediation agreement
115	115	reached through the program.
116	116	(e) A pretrial victim-offender mediation may be conducted
117	117	by a court-appointed mediator who meets the training requirements
118	118	provided by Sections 154.052(a) and (b), Civil Practice and
119	119	Remedies Code, and has completed training in criminal justice
120	120	mediation, or by any other appropriate person designated by the
121	121	court. Neither the attorney representing the state nor the
122	122	attorney representing the defendant in the criminal action may
123	123	serve as a mediator in the defendant's pretrial victim-offender
124	124	mediation program.
125	125	(f) If a defendant enters a pretrial victim-offender
126	126	mediation program, the court may defer the proceedings without
127	127	accepting a plea of guilty or nolo contendere or entering an
128	128	adjudication of guilt. The court may not require the defendant to
129	129	admit guilt or enter a plea of guilty or nolo contendere to enter
130	130	the program.
131	131	(g) The case must be returned to the docket and proceed
132	132	through the regular criminal justice system if:
133	133	(1) a pretrial victim-offender mediation does not
134	134	result in a mediation agreement;
135	135	(2) the defendant fails to fulfill the terms of the
136	136	mediation agreement successfully by the date specified in the
137	137	mediation agreement; or
138	138	(3) the mediator determines, based on the mediator's
139	139	training and experience, that:
140	140	(A) the victim or defendant no longer wants to
141	141	participate or cooperate; or
142	142	(B) the mediation will be ineffective.
143	143	(h) If a case is returned to the docket under Subsection
144	144	(g), the defendant retains all of the rights that the defendant
145	145	possessed before entering the pretrial victim-offender mediation
146	146	program under this subchapter. Notwithstanding any other law, for
147	147	purposes of determining the duration and expiration of an
148	148	applicable statute of limitation under Chapter 12, the running of
149	149	the period of limitation is tolled while the defendant is enrolled
150	150	in a program under this subchapter.
151	151	(i) If the defendant successfully completes the mediation
152	152	agreement as represented to the court by the attorney representing
153	153	the state, after notice to the attorney representing the state and a
154	154	hearing at which the court determines that a dismissal of any
155	155	indictment or information charging the defendant with the
156	156	commission of the offense is in the best interest of justice, the
157	157	court shall dismiss the criminal action against the defendant.
158	158	(j) The court or the attorney representing the state may
159	159	extend the initial compliance period granted to the defendant.
160	160	(k) A determination by the court regarding whether the
161	161	mediation agreement has been successfully completed is final and
162	162	may not be appealed.
163	163	(l) If the defendant is not arrested or convicted of a
164	164	subsequent felony or misdemeanor other than a misdemeanor traffic
165	165	offense punishable by fine only on or before the first anniversary
166	166	of the date the defendant successfully completed a mediation
167	167	agreement under this subchapter, on the motion of the defendant,
168	168	the court shall enter an order of nondisclosure of criminal history
169	169	record information under Subchapter E-1, Chapter 411, Government
170	170	Code, as if the defendant had received a discharge and dismissal
171	171	under Article 42A.111, with respect to all records and files
172	172	related to the defendant's arrest for the offense for which the
173	173	defendant entered the pretrial victim-offender mediation program.
174	174	Art. 56.23. MEDIATION AGREEMENT. (a) A mediation
175	175	agreement under this subchapter must be in writing and:
176	176	(1) signed by the defendant and the victim; and
177	177	(2) ratified by the attorney representing the state in
178	178	the attorney's request for a court order to document and approve the
179	179	mediation agreement for the record.
180	180	(b) A mediation agreement may require testing, counseling,
181	181	and treatment of the defendant to address alcohol abuse, abuse of
182	182	controlled substances, mental health, or anger management or any
183	183	other service that is reasonably related to the offense for which
184	184	the defendant was arrested or charged.
185	185	(c) A mediation agreement is not valid for more than one
186	186	year after the date on which the mediation agreement is ratified
187	187	unless the court and the attorney representing the state approve
188	188	the extension of the agreement.
189	189	(d) A mediation agreement under this subchapter does not
190	190	constitute a plea or legal admission of responsibility.
191	191	Art. 56.24. LEGISLATIVE REVIEW. The lieutenant governor
192	192	and the speaker of the house of representatives may assign to
193	193	appropriate legislative committees interim duties relating to the
194	194	study, review, and evaluation of pretrial victim-offender
195	195	mediation programs established under this subchapter, and those
196	196	committees may make recommendations to the legislature for
197	197	appropriate policies to monitor, improve, or provide state
198	198	resources for those programs.
199	199	Art. 56.25. LOCAL REVIEW. The commissioners court of a
200	200	county or governing body of a municipality may request a
201	201	management, operations, or financial or accounting audit of a
202	202	pretrial victim-offender mediation program established under this
203	203	subchapter.
204	204	Art. 56.26. FEES. (a) A pretrial victim-offender
205	205	mediation program established under this subchapter shall collect
206	206	from a defendant in the program a reasonable program participation
207	207	fee not to exceed $500 and may collect from the defendant an alcohol
208	208	or controlled substance testing, counseling, and treatment fee in
209	209	an amount necessary to cover the costs of the testing, counseling,
210	210	or treatment, if such testing, counseling, or treatment is required
211	211	by the mediation agreement.
212	212	(b) Fees collected under this article may be paid on a
213	213	periodic basis or on a deferred payment schedule at the discretion
214	214	of the judge, magistrate, or program director administering the
215	215	pretrial victim-offender mediation program. The fees must be:
216	216	(1) based on the defendant's ability to pay; and
217	217	(2) used only for purposes specific to the program.
218	218	Art. 56.27. NOTICE. The office of an attorney representing
219	219	the state that participates in a pretrial victim-offender mediation
220	220	program established under this subchapter shall notify the public
221	221	by posting information about the program on the office's website.
222	222	SECTION 3. Subchapter A, Chapter 102, Code of Criminal
223	223	Procedure, is amended by adding Article 102.0179 to read as
224	224	follows:
225	225	Art. 102.0179. COSTS ATTENDANT TO PRETRIAL VICTIM-OFFENDER
226	226	MEDIATION. (a) A defendant who participates in a pretrial
227	227	victim-offender mediation program established under Subchapter
228	228	A-1, Chapter 56, on successful completion of the terms of the
229	229	defendant's mediation agreement or on conviction, shall pay as
230	230	court costs $15 plus an additional program participation fee as
231	231	described by Article 56.26 in the amount prescribed by that
232	232	article.
233	233	(b) The court clerk shall collect the costs imposed under
234	234	this article. The clerk shall keep a separate record of any money
235	235	collected under this article and shall pay any money collected to
236	236	the county or municipal treasurer, as appropriate, or to any other
237	237	official who discharges the duties commonly delegated to a
238	238	treasurer, for deposit in a fund to be known as the county pretrial
239	239	victim-offender mediation program fund or in a fund to be known as
240	240	the municipal pretrial victim-offender mediation program fund, as
241	241	appropriate.
242	242	(c) A county or municipality that collects court costs under
243	243	this article shall use the money in a fund described by Subsection
244	244	(b) exclusively for the maintenance of the pretrial victim-offender
245	245	mediation program operated in the county or municipality.
246	246	SECTION 4. Chapter 54, Family Code, is amended by adding
247	247	Section 54.035 to read as follows:
248	248	Sec. 54.035. VICTIM-OFFENDER MEDIATION. (a) The Texas
249	249	Juvenile Justice Board by rule shall establish guidelines
250	250	permitting victim-offender mediation programs to be implemented
251	251	and administered by juvenile boards.
252	252	(b) In a mediation program authorized under this section,
253	253	each victim to whom this section applies must be informed of the
254	254	victim's right to request victim-offender mediation.
255	255	(c) Participation in a victim-offender mediation program
256	256	under this section by a child and by a victim must be voluntary. If a
257	257	child's case is forwarded to the office of the prosecuting attorney
258	258	under Section 53.01, the prosecuting attorney must consent to the
259	259	mediation in which the child may participate under the program.
260	260	(d) If an agreement is not reached between the victim and
261	261	the child or if the child does not successfully complete the terms
262	262	of the agreement, as determined by the juvenile court, the child's
263	263	case shall proceed in accordance with the applicable provisions of
264	264	this title.
265	265	SECTION 5. Section 57.002(a), Family Code, is amended to
266	266	read as follows:
267	267	(a) A victim, guardian of a victim, or close relative of a
268	268	deceased victim is entitled to the following rights within the
269	269	juvenile justice system:
270	270	(1) the right to receive from law enforcement agencies
271	271	adequate protection from harm and threats of harm arising from
272	272	cooperation with prosecution efforts;
273	273	(2) the right to have the court or person appointed by
274	274	the court take the safety of the victim or the victim's family into
275	275	consideration as an element in determining whether the child should
276	276	be detained before the child's conduct is adjudicated;
277	277	(3) the right, if requested, to be informed of
278	278	relevant court proceedings, including appellate proceedings, and
279	279	to be informed in a timely manner if those court proceedings have
280	280	been canceled or rescheduled;
281	281	(4) the right to be informed, when requested, by the
282	282	court or a person appointed by the court concerning the procedures
283	283	in the juvenile justice system, including general procedures
284	284	relating to:
285	285	(A) the preliminary investigation and deferred
286	286	prosecution of a case; and
287	287	(B) the appeal of the case;
288	288	(5) the right to provide pertinent information to a
289	289	juvenile court conducting a disposition hearing concerning the
290	290	impact of the offense on the victim and the victim's family by
291	291	testimony, written statement, or any other manner before the court
292	292	renders its disposition;
293	293	(6) the right to receive information regarding
294	294	compensation to victims as provided by Subchapter B, Chapter 56,
295	295	Code of Criminal Procedure, including information related to the
296	296	costs that may be compensated under that subchapter and the amount
297	297	of compensation, eligibility for compensation, and procedures for
298	298	application for compensation under that subchapter, the payment of
299	299	medical expenses under Article [Section] 56.06, Code of Criminal
300	300	Procedure, for a victim of a sexual assault, and when requested, to
301	301	referral to available social service agencies that may offer
302	302	additional assistance;
303	303	(7) the right to be informed, upon request, of
304	304	procedures for release under supervision or transfer of the person
305	305	to the custody of the Texas Department of Criminal Justice for
306	306	parole, to participate in the release or transfer for parole
307	307	process, to be notified, if requested, of the person's release,
308	308	escape, or transfer for parole proceedings concerning the person,
309	309	to provide to the Texas Juvenile Justice Department for inclusion
310	310	in the person's file information to be considered by the department
311	311	before the release under supervision or transfer for parole of the
312	312	person, and to be notified, if requested, of the person's release or
313	313	transfer for parole;
314	314	(8) the right to be provided with a waiting area,
315	315	separate or secure from other witnesses, including the child
316	316	alleged to have committed the conduct and relatives of the child,
317	317	before testifying in any proceeding concerning the child, or, if a
318	318	separate waiting area is not available, other safeguards should be
319	319	taken to minimize the victim's contact with the child and the
320	320	child's relatives and witnesses, before and during court
321	321	proceedings;
322	322	(9) the right to prompt return of any property of the
323	323	victim that is held by a law enforcement agency or the attorney for
324	324	the state as evidence when the property is no longer required for
325	325	that purpose;
326	326	(10) the right to have the attorney for the state
327	327	notify the employer of the victim, if requested, of the necessity of
328	328	the victim's cooperation and testimony in a proceeding that may
329	329	necessitate the absence of the victim from work for good cause;
330	330	(11) the right to be present at all public court
331	331	proceedings related to the conduct of the child as provided by
332	332	Section 54.08, subject to that section; [and]
333	333	(12) for a victim to whom Section 54.035 applies, the
334	334	right to request victim-offender mediation under that section; and
335	335	(13) any other right appropriate to the victim that a
336	336	victim of criminal conduct has under Article 56.02 or 56.021, Code
337	337	of Criminal Procedure.
338	338	SECTION 6. Section 58.003, Family Code, is amended by
339	339	adding Subsections (c-9) and (c-10) to read as follows:
340	340	(c-9) Notwithstanding Subsections (a) and (c) and subject
341	341	to Subsection (b), a juvenile court may order the sealing of records
342	342	concerning a child alleged to have engaged in delinquent conduct or
343	343	conduct indicating a need for supervision if the child successfully
344	344	completed a victim-offender mediation program under Section
345	345	54.035. The court may:
346	346	(1) immediately order the sealing of the records
347	347	without a hearing; or
348	348	(2) hold a hearing to determine whether to seal the
349	349	records.
350	350	(c-10) If the court orders the sealing of a child's records
351	351	under Subsection (c-9), a prosecuting attorney or juvenile
352	352	probation department may maintain until the child's 17th birthday a
353	353	separate record of the child's name and date of birth, the
354	354	allegation against the child, and the date the child successfully
355	355	completed the victim-offender mediation program. The prosecuting
356	356	attorney or juvenile probation department, as applicable, shall
357	357	send the record to the court as soon as practicable after the
358	358	child's 17th birthday to be added to the child's other sealed
359	359	records.
360	360	SECTION 7. Subchapter B, Chapter 102, Government Code, is
361	361	amended by adding Section 102.0215 to read as follows:
362	362	Sec. 102.0215. ADDITIONAL COURT COSTS: CODE OF CRIMINAL
363	363	PROCEDURE. A defendant who participates in a pretrial
364	364	victim-offender mediation program established under Subchapter
365	365	A-1, Chapter 56, Code of Criminal Procedure, shall pay on
366	366	successful completion of the terms of the defendant's mediation
367	367	agreement or on conviction, in addition to all other costs, to help
368	368	fund pretrial victim-offender mediation programs established under
369	369	that subchapter (Art. 102.0179, Code of Criminal Procedure) . . .
370	370	$15 plus an additional program participation fee in an amount not to
371	371	exceed $500.
372	372	SECTION 8. Subchapter A, Chapter 221, Human Resources Code,
373	373	is amended by adding Section 221.013 to read as follows:
374	374	Sec. 221.013. MEDIATION MONITORING. The department shall
375	375	monitor the success of victim-offender mediation programs
376	376	established under Section 54.035, Family Code.
377	377	SECTION 9. (a) Subchapter A-1, Chapter 56, Code of Criminal
378	378	Procedure, as added by this Act, applies to a defendant who enters a
379	379	pretrial victim-offender mediation program under that subchapter
380	380	regardless of whether the defendant committed the offense for which
381	381	the defendant enters the program before, on, or after the effective
382	382	date of this Act.
383	383	(b) Article 102.0179, Code of Criminal Procedure, and
384	384	Section 102.0215, Government Code, as added by this Act, apply only
385	385	to an offense committed on or after the effective date of this Act.
386	386	An offense committed before the effective date of this Act is
387	387	governed by the law in effect on the date the offense was committed,
388	388	and the former law is continued in effect for that purpose. For
389	389	purposes of this subsection, an offense was committed before the
390	390	effective date of this Act if any element of the offense was
391	391	committed before that date.
392	392	SECTION 10. (a) Not later than December 1, 2017, the Texas
393	393	Juvenile Justice Board shall establish guidelines for
394	394	victim-offender mediation programs as required by Section 54.035,
395	395	Family Code, as added by this Act.
396	396	(b) Section 54.035, Family Code, as added by this Act,
397	397	applies only to a victim-offender mediation under that section that
398	398	occurs on or after January 1, 2018, regardless of whether the
399	399	conduct that is the basis of the mediation occurs before, on, or
400	400	after that date.
401	401	SECTION 11. This Act takes effect September 1, 2017.