Texas 2019 - 86th Regular

Texas House Bill HB4009 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	~~By: Toth, Wu, Thompson of Brazoria, Canales, H.B. No. 4009~~
2		-	~~et al~~.
	1	+	86R10724 MEW-F
	2	+	By: Toth H.B. No. 4009
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 an offense
57		-	other than a felony offense; and
58		-	(2) have not previously been convicted of a felony.
	57	+	other than an offense under one or more of the following sections of
	58	+	the Penal Code:
	59	+	(A) Section 19.02 (murder);
	60	+	(B) Section 19.03 (capital murder);
	61	+	(C) Section 20.03 (kidnapping);
	62	+	(D) Section 20.04 (aggravated kidnapping);
	63	+	(E) Section 20A.03 (continuous trafficking of
	64	+	persons);
	65	+	(F) Section 21.02 (continuous sexual abuse of
	66	+	young child or children);
	67	+	(G) Section 21.11 (indecency with a child);
	68	+	(H) Section 22.01(a)(1) (assault), if the
	69	+	offense involved family violence as defined by Section 71.004,
	70	+	Family Code;
	71	+	(I) Section 22.011 (sexual assault);
	72	+	(J) Section 22.02 (aggravated assault);
	73	+	(K) Section 22.021 (aggravated sexual assault);
	74	+	(L) Section 22.04 (injury to a child, elderly
	75	+	individual, or disabled individual); or
	76	+	(M) Section 29.03 (aggravated robbery); and
	77	+	(2) have not previously been convicted of a felony or a
	78	+	misdemeanor, other than a traffic offense punishable by fine only.
59	79		(b) A court that implements a program under this subchapter
60	80		may adopt administrative rules and local rules of procedure as
61	81		necessary or appropriate to implement or operate the program.
62	82		(c) The commissioners court of a county or governing body of
63	83		a municipality that establishes a program under this subchapter
64	84		may:
65	85		(1) with the consent of the attorney representing the
66	86		state, allow for referral to the program of arrested persons
67	87		described by Subsection (a) who have not yet been formally charged
68	88		with an offense;
69	89		(2) adopt administrative rules and local rules of
70	90		procedure as necessary or appropriate to implement or operate the
71	91		program; and
72	92		(3) approve additional program requirements as
73	93		recommended by the attorney representing the state.
74	94		Art. 56.22. PROGRAM. (a) A pretrial victim-offender
75	95		mediation program established under Article 56.21 on or after
76	96		September 1, 2019, must require:
77	97		(1) the designation of individual defendants who are
78	98		eligible to participate in the program, based on standards
79	99		established by Article 56.21 and any local standards approved by
80	100		the commissioners court of the county or the governing body of the
81	101		municipality, as applicable;
82	102		(2) the attorney representing the state to consent to
83	103		the referral of a defendant's matter to mediation under the
84	104		program;
85	105		(3) the consent of the victim to be obtained and
86	106		documented in the record of the court by the attorney representing
87	107		the state before the case may proceed to pretrial victim-offender
88	108		mediation; and
89	109		(4) the defendant to enter into a binding mediation
90	110		agreement in accordance with Article 56.23 that requires the
91	111		defendant to take responsibility for the defendant's actions and
92	112		addresses the specific circumstances of the defendant's actions,
93	113		which may:
94	114		(A) include an apology by the defendant; or
95	115		(B) require the defendant to:
96	116		(i) pay restitution to the victim;
97	117		(ii) perform community service; or
98	118		(iii) both pay restitution and perform
99	119		community service.
100	120		(b) A court that implements a pretrial victim-offender
101	121		mediation program established before September 1, 2019, may elect
102	122		to apply the provisions under Subsection (a) in implementing the
103	123		program.
104	124		(c) All communications made in a pretrial victim-offender
105	125		mediation program are confidential and may not be introduced into
106	126		evidence except in an open court proceeding instituted to determine
107	127		the meaning of a mediation agreement.
108	128		(d) A pretrial victim-offender mediation program may
109	129		require the staff and other resources of pretrial services
110	130		departments and community supervision and corrections departments
111	131		to assist the court or the attorney representing the state in
112	132		monitoring the defendant's compliance with a mediation agreement
113	133		reached through the program.
114	134		(e) A pretrial victim-offender mediation may be conducted
115	135		by a court-appointed mediator who meets the training requirements
116	136		provided by Sections 154.052(a) and (b), Civil Practice and
117	137		Remedies Code, and has completed training in criminal justice
118	138		mediation, or by any other appropriate person designated by the
119	139		court. Neither the attorney representing the state nor the
120	140		attorney representing the defendant in the criminal action may
121	141		serve as a mediator in the defendant's pretrial victim-offender
122	142		mediation program.
123	143		(f) If a defendant enters a pretrial victim-offender
124	144		mediation program, the court may defer the proceedings without
125	145		accepting a plea of guilty or nolo contendere or entering an
126	146		adjudication of guilt. The court may not require the defendant to
127	147		admit guilt or enter a plea of guilty or nolo contendere to enter
128	148		the program.
129	149		(g) The case must be returned to the docket and proceed
130	150		through the regular criminal justice system if:
131	151		(1) a pretrial victim-offender mediation does not
132	152		result in a mediation agreement;
133	153		(2) the defendant fails to fulfill the terms of the
134	154		mediation agreement successfully by the date specified in the
135	155		mediation agreement; or
136	156		(3) the mediator determines, based on the mediator's
137	157		training and experience, that:
138	158		(A) the victim or defendant no longer wants to
139	159		participate or cooperate; or
140	160		(B) the mediation will be ineffective.
141	161		(h) If a case is returned to the docket under Subsection
142	162		(g), the defendant retains all of the rights that the defendant
143	163		possessed before entering the pretrial victim-offender mediation
144	164		program under this subchapter. Notwithstanding any other law, for
145	165		purposes of determining the duration and expiration of an
146	166		applicable statute of limitation under Chapter 12, the running of
147	167		the period of limitation is tolled while the defendant is enrolled
148	168		in a program under this subchapter.
149	169		(i) If the defendant successfully completes the mediation
150	170		agreement as represented to the court by the attorney representing
151	171		the state, after notice to the attorney representing the state and a
152	172		hearing at which the court determines that a dismissal of any
153	173		indictment or information charging the defendant with the
154	174		commission of the offense is in the best interest of justice, the
155	175		court shall dismiss the criminal action against the defendant.
156	176		(j) The court or the attorney representing the state may
157	177		extend the initial compliance period granted to the defendant.
158	178		(k) A determination by the court regarding whether the
159	179		mediation agreement has been successfully completed is final and
160	180		may not be appealed.
161	181		(l) If the defendant is not arrested or convicted of a
162		-	subsequent felony on or before the first anniversary of the date the
163		-	defendant successfully completed a mediation agreement under this
164		-	subchapter, on the motion of the defendant, the court shall enter an
165		-	order of nondisclosure of criminal history record information under
166		-	Subchapter E-1, Chapter 411, Government Code, as if the defendant
167		-	had received a discharge and dismissal under Article 42A.111, with
168		-	respect to all records and files related to the defendant's arrest
169		-	for the offense for which the defendant entered the pretrial
170		-	victim-offender mediation program.
	182	+	subsequent felony or misdemeanor other than a traffic offense
	183	+	punishable by fine only on or before the first anniversary of the
	184	+	date the defendant successfully completed a mediation agreement
	185	+	under this subchapter, on the motion of the defendant, the court
	186	+	shall enter an order of nondisclosure of criminal history record
	187	+	information under Subchapter E-1, Chapter 411, Government Code, as
	188	+	if the defendant had received a discharge and dismissal under
	189	+	Article 42A.111, with respect to all records and files related to
	190	+	the defendant's arrest for the offense for which the defendant
	191	+	entered the pretrial victim-offender mediation program.
171	192		Art. 56.23. MEDIATION AGREEMENT. (a) A mediation
172	193		agreement under this subchapter must be in writing and:
173	194		(1) signed by the defendant and the victim; and
174	195		(2) ratified by the attorney representing the state in
175	196		the attorney's request for a court order to document and approve the
176	197		mediation agreement for the record.
177	198		(b) A mediation agreement may require testing, counseling,
178	199		and treatment of the defendant to address alcohol abuse, abuse of
179	200		controlled substances, mental health, or anger management or any
180	201		other service that is reasonably related to the offense for which
181	202		the defendant was arrested or charged.
182	203		(c) A mediation agreement is not valid for more than one
183	204		year after the date on which the mediation agreement is ratified
184	205		unless the court and the attorney representing the state approve
185	206		the extension of the agreement.
186	207		(d) A mediation agreement under this subchapter does not
187	208		constitute a plea or legal admission of responsibility.
188	209		Art. 56.24. LEGISLATIVE REVIEW. The lieutenant governor
189	210		and the speaker of the house of representatives may assign to
190	211		appropriate legislative committees interim duties relating to the
191	212		study, review, and evaluation of pretrial victim-offender
192	213		mediation programs established under this subchapter, and those
193	214		committees may make recommendations to the legislature for
194	215		appropriate policies to monitor, improve, or provide state
195	216		resources for those programs.
196	217		Art. 56.25. LOCAL REVIEW. The commissioners court of a
197	218		county or governing body of a municipality may request a
198	219		management, operations, or financial or accounting audit of a
199	220		pretrial victim-offender mediation program established under this
200	221		subchapter.
201	222		Art. 56.26. FEES. (a) A pretrial victim-offender
202	223		mediation program established under this subchapter shall collect
203	224		from a defendant in the program a reasonable program participation
204	225		fee in an amount necessary to cover the costs of the program,
205	226		including alcohol or controlled substance testing, counseling, and
206	227		treatment, if such testing, counseling, or treatment is required by
207	228		the mediation agreement.
208	229		(b) Fees collected under this article may be paid on a
209	230		periodic basis or on a deferred payment schedule at the discretion
210	231		of the judge, magistrate, or program director administering the
211	232		pretrial victim-offender mediation program. The fees must be:
212	233		(1) based on the defendant's ability to pay; and
213	234		(2) used only for purposes specific to the program.
214	235		Art. 56.27. NOTICE. The office of an attorney representing
215	236		the state that participates in a pretrial victim-offender mediation
216	237		program established under this subchapter shall notify the public
217	238		by posting information about the program on the office's website.
218	239		SECTION 3. Subchapter A, Chapter 102, Code of Criminal
219	240		Procedure, is amended by adding Article 102.0179 to read as
220	241		follows:
221	242		Art. 102.0179. COSTS ATTENDANT TO PRETRIAL VICTIM-OFFENDER
222	243		MEDIATION. (a) A defendant who participates in a pretrial
223	244		victim-offender mediation program established under Subchapter
224	245		A-1, Chapter 56, on successful completion of the terms of the
225	246		defendant's mediation agreement or on conviction, shall pay as
226	247		court costs $15 plus the program participation fee as described by
227	248		Article 56.26.
228	249		(b) The court clerk shall collect the costs imposed under
229	250		this article. The clerk shall keep a separate record of any money
230	251		collected under this article and shall pay any money collected to
231	252		the county or municipal treasurer, as appropriate, or to any other
232	253		official who discharges the duties commonly delegated to a
233	254		treasurer, for deposit in a fund to be known as the county pretrial
234	255		victim-offender mediation program fund or in a fund to be known as
235	256		the municipal pretrial victim-offender mediation program fund, as
236	257		appropriate.
237	258		(c) A county or municipality that collects court costs under
238	259		this article shall use the money in a fund described by Subsection
239	260		(b) exclusively for the maintenance of the pretrial victim-offender
240	261		mediation program operated in the county or municipality.
241	262		SECTION 4. Chapter 54, Family Code, is amended by adding
242	263		Section 54.035 to read as follows:
243	264		Sec. 54.035. VICTIM-OFFENDER MEDIATION. (a) The Texas
244	265		Juvenile Justice Board by rule shall establish guidelines
245	266		permitting victim-offender mediation programs to be implemented
246	267		and administered by juvenile boards.
247	268		(b) In a mediation program authorized under this section,
248	269		each victim to whom this section applies must be informed of the
249	270		victim's right to request victim-offender mediation.
250	271		(c) Participation in a victim-offender mediation program
251	272		under this section by a child and by a victim must be voluntary. If a
252	273		child's case is forwarded to the office of the prosecuting attorney
253	274		under Section 53.01, the prosecuting attorney must consent to the
254	275		mediation in which the child may participate under the program.
255	276		(d) If an agreement is not reached between the victim and
256	277		the child or if the child does not successfully complete the terms
257	278		of the agreement, as determined by the juvenile court, the child's
258	279		case shall proceed in accordance with the applicable provisions of
259	280		this title.
260	281		SECTION 5. Section 57.002(a), Family Code, is amended to
261	282		read as follows:
262	283		(a) A victim, guardian of a victim, or close relative of a
263	284		deceased victim is entitled to the following rights within the
264	285		juvenile justice system:
265	286		(1) the right to receive from law enforcement agencies
266	287		adequate protection from harm and threats of harm arising from
267	288		cooperation with prosecution efforts;
268	289		(2) the right to have the court or person appointed by
269	290		the court take the safety of the victim or the victim's family into
270	291		consideration as an element in determining whether the child should
271	292		be detained before the child's conduct is adjudicated;
272	293		(3) the right, if requested, to be informed of
273	294		relevant court proceedings, including appellate proceedings, and
274	295		to be informed in a timely manner if those court proceedings have
275	296		been canceled or rescheduled;
276	297		(4) the right to be informed, when requested, by the
277	298		court or a person appointed by the court concerning the procedures
278	299		in the juvenile justice system, including general procedures
279	300		relating to:
280	301		(A) the preliminary investigation and deferred
281	302		prosecution of a case; and
282	303		(B) the appeal of the case;
283	304		(5) the right to provide pertinent information to a
284	305		juvenile court conducting a disposition hearing concerning the
285	306		impact of the offense on the victim and the victim's family by
286	307		testimony, written statement, or any other manner before the court
287	308		renders its disposition;
288	309		(6) the right to receive information regarding
289	310		compensation to victims as provided by Subchapter B, Chapter 56,
290	311		Code of Criminal Procedure, including information related to the
291	312		costs that may be compensated under that subchapter and the amount
292	313		of compensation, eligibility for compensation, and procedures for
293	314		application for compensation under that subchapter, the payment of
294	315		medical expenses under Article [Section] 56.06, Code of Criminal
295	316		Procedure, for a victim of a sexual assault, and when requested, to
296	317		referral to available social service agencies that may offer
297	318		additional assistance;
298	319		(7) the right to be informed, upon request, of
299	320		procedures for release under supervision or transfer of the person
300	321		to the custody of the Texas Department of Criminal Justice for
301	322		parole, to participate in the release or transfer for parole
302	323		process, to be notified, if requested, of the person's release,
303	324		escape, or transfer for parole proceedings concerning the person,
304	325		to provide to the Texas Juvenile Justice Department for inclusion
305	326		in the person's file information to be considered by the department
306	327		before the release under supervision or transfer for parole of the
307	328		person, and to be notified, if requested, of the person's release or
308	329		transfer for parole;
309	330		(8) the right to be provided with a waiting area,
310	331		separate or secure from other witnesses, including the child
311	332		alleged to have committed the conduct and relatives of the child,
312	333		before testifying in any proceeding concerning the child, or, if a
313	334		separate waiting area is not available, other safeguards should be
314	335		taken to minimize the victim's contact with the child and the
315	336		child's relatives and witnesses, before and during court
316	337		proceedings;
317	338		(9) the right to prompt return of any property of the
318	339		victim that is held by a law enforcement agency or the attorney for
319	340		the state as evidence when the property is no longer required for
320	341		that purpose;
321	342		(10) the right to have the attorney for the state
322	343		notify the employer of the victim, if requested, of the necessity of
323	344		the victim's cooperation and testimony in a proceeding that may
324	345		necessitate the absence of the victim from work for good cause;
325	346		(11) the right to be present at all public court
326	347		proceedings related to the conduct of the child as provided by
327	348		Section 54.08, subject to that section; [and]
328	349		(12) for a victim to whom Section 54.035 applies, the
329	350		right to request victim-offender mediation under that section; and
330	351		(13) any other right appropriate to the victim that a
331	352		victim of criminal conduct has under Article 56.02 or 56.021, Code
332	353		of Criminal Procedure.
333	354		SECTION 6. Subchapter C-1, Chapter 58, Family Code, is
334	355		amended by adding Section 58.2561 to read as follows:
335	356		Sec. 58.2561. SEALING RECORDS ON COMPLETION OF
336	357		VICTIM-OFFENDER MEDIATION PROGRAM. (a) Notwithstanding Sections
337	358		58.253 and 58.255 and subject to Section 58.256(d), a juvenile
338	359		court may order the sealing of records concerning a child alleged to
339	360		have engaged in delinquent conduct or conduct indicating a need for
340	361		supervision if the child successfully completed a victim-offender
341	362		mediation program under Section 54.035. The court may:
342	363		(1) immediately order the sealing of the records
343	364		without a hearing; or
344	365		(2) hold a hearing to determine whether to seal the
345	366		records.
346	367		(b) If the court orders the sealing of a child's records
347	368		under Subsection (a), a prosecuting attorney or juvenile probation
348	369		department may maintain until the child's 17th birthday a separate
349	370		record of the child's name and date of birth, the allegation against
350	371		the child, and the date the child successfully completed the
351	372		victim-offender mediation program. The prosecuting attorney or
352	373		juvenile probation department, as applicable, shall send the record
353	374		to the court as soon as practicable after the child's 17th birthday
354	375		to be added to the child's other sealed records.
355	376		SECTION 7. Subchapter B, Chapter 102, Government Code, is
356	377		amended by adding Section 102.0215 to read as follows:
357	378		Sec. 102.0215. ADDITIONAL COURT COSTS: CODE OF CRIMINAL
358	379		PROCEDURE. A defendant who participates in a pretrial
359	380		victim-offender mediation program established under Subchapter
360	381		A-1, Chapter 56, Code of Criminal Procedure, shall pay on
361	382		successful completion of the terms of the defendant's mediation
362	383		agreement or on conviction, in addition to all other costs, to help
363	384		fund pretrial victim-offender mediation programs established under
364	385		that subchapter (Art. 102.0179, Code of Criminal Procedure) . . .
365	386		$15 plus an additional program participation fee in an amount
366	387		necessary to cover the costs of the program.
367	388		SECTION 8. Subchapter A, Chapter 221, Human Resources Code,
368	389		is amended by adding Section 221.013 to read as follows:
369	390		Sec. 221.013. MEDIATION MONITORING. The department shall
370	391		monitor the success of victim-offender mediation programs
371	392		established under Section 54.035, Family Code.
372	393		SECTION 9. (a) Subchapter A-1, Chapter 56, Code of Criminal
373	394		Procedure, as added by this Act, applies to a defendant who enters a
374	395		pretrial victim-offender mediation program under that subchapter
375	396		regardless of whether the defendant committed the offense for which
376	397		the defendant enters the program before, on, or after the effective
377	398		date of this Act.
378	399		(b) Article 102.0179, Code of Criminal Procedure, and
379	400		Section 102.0215, Government Code, as added by this Act, apply only
380	401		to an offense committed on or after the effective date of this Act.
381	402		An offense committed before the effective date of this Act is
382	403		governed by the law in effect on the date the offense was committed,
383	404		and the former law is continued in effect for that purpose. For
384	405		purposes of this subsection, an offense was committed before the
385	406		effective date of this Act if any element of the offense was
386	407		committed before that date.
387	408		SECTION 10. (a) Not later than December 1, 2019, the Texas
388	409		Juvenile Justice Board shall establish guidelines for
389	410		victim-offender mediation programs as required by Section 54.035,
390	411		Family Code, as added by this Act.
391	412		(b) Section 54.035, Family Code, as added by this Act,
392	413		applies only to a victim-offender mediation under that section that
393	414		occurs on or after January 1, 2020, regardless of whether the
394	415		conduct that is the basis of the mediation occurs before, on, or
395	416		after that date.
396	417		SECTION 11. This Act takes effect September 1, 2019.