86R16623 JSC-F
By: González of Dallas H.B. No. 4594
A BILL TO BE ENTITLED
AN ACT
relating to the punishment for certain possession offenses under
the Texas Controlled Substances Act; changing eligibility for and
conditions of community supervision.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Articles 42A.551(a) and (d), Code of Criminal
Procedure, are amended to read as follows:
(a) Except as otherwise provided by Subsection (b) [or (c)],
on conviction of a state jail felony under Section [481.115(b),
481.1151(b)(1), 481.116(b), 481.1161(b)(3), 481.121(b)(3), or]
481.129(g)(1), Health and Safety Code, that is punished under
Section 12.35(a), Penal Code, the judge shall suspend the
imposition of the sentence and place the defendant on community
supervision.
(d) On conviction of a state jail felony punished under
Section 12.35(a), Penal Code, other than a state jail felony listed
in Subsection (a) or defined as a possession offense under
Subchapter L-1, and subject to Subsection (e), the judge may:
(1) suspend the imposition of the sentence and place
the defendant on community supervision; or
(2) order the sentence to be executed:
(A) in whole; or
(B) in part, with a period of community
supervision to begin immediately on release of the defendant from
confinement.
SECTION 2. Chapter 42A, Code of Criminal Procedure, is
amended by adding Subchapter L-1 to read as follows:
SUBCHAPTER L-1. COMMUNITY SUPERVISION FOR CERTAIN POSSESSION
OFFENSES
Art. 42A.581. DEFINITION. In this subchapter, "possession
offense" means an offense under Section 481.115, 481.1151, 481.116,
481.1161, 481.117, 481.118, 481.119(b), 481.121, 483.041(a), or
485.031, Health and Safety Code, that is punishable as a felony of
the third degree or state jail felony.
Art. 42A.582. PLACEMENT ON COMMUNITY SUPERVISION;
EXECUTION OF SENTENCE. (a) On conviction of a possession offense,
the judge shall suspend the imposition of the sentence and place the
defendant on community supervision, except that the judge may order
the sentence to be executed if:
(1) for a state jail felony, the defendant has been
previously convicted of a possession offense; or
(2) for a felony of the third degree:
(A) the judge determines by a preponderance of
the evidence that the defendant:
(i) is a danger to the safety of others; or
(ii) possessed the substance with the
intent to deliver the substance;
(B) the defendant has been previously convicted
of a felony offense other than:
(i) a possession offense; or
(ii) a felony offense punished under
Section 12.44, Penal Code;
(C) the defendant is convicted in the same
proceeding of an additional felony offense, other than:
(i) a possession offense; or
(ii) a felony offense punished under
Section 12.44, Penal Code; or
(D) the judge determines by clear and convincing
evidence, based on an evidence-based drug and alcohol assessment,
that the defendant is unlikely to benefit from participation in a
course of treatment in a drug treatment program or facility, and the
defendant has been previously:
(i) convicted on two or more occasions of a
possession offense; or
(ii) discharged from a drug court program
established under Chapter 123, Government Code, after failing to
successfully complete the program.
(b) A judge who makes a determination described by
Subsection (a)(2)(A) or (D) shall enter the reasons for making that
determination in the record of the proceeding.
(c) The judge may suspend in whole or in part the imposition
of any fine imposed on a conviction if a defendant is placed on
community supervision under this subchapter.
Art. 42A.583. CONDITIONS OF COMMUNITY SUPERVISION. (a) A
court granting community supervision under this subchapter shall
require as a condition of community supervision that the defendant:
(1) submit to an evidence-based risks and needs
screening and evaluation procedure approved by the community
justice assistance division of the Texas Department of Criminal
Justice, including a procedure developed under Section 509.003(d),
Government Code;
(2) if the evaluation indicates a need for treatment,
participate in a prescribed course of treatment in a drug treatment
program or facility:
(A) licensed or approved by the Department of
State Health Services; or
(B) that complies with standards established by
the community justice assistance division of the Texas Department
of Criminal Justice; and
(3) pay a fee to cover all or part of the cost of the
course of treatment based on the defendant's ability to pay.
(b) A course of treatment under Subsection (a)(2) may
include:
(1) treatment in a faith-based program;
(2) outpatient treatment;
(3) halfway house treatment;
(4) narcotic replacement therapy prescribed by a
physician;
(5) drug education or prevention courses; and
(6) inpatient or residential drug treatment to address
special detoxification, relapse, or severe dependence issues.
(c) In referring a defendant to a course of treatment under
Subsection (a)(2) and imposing conditions for participation in the
course of treatment, the judge shall order the defendant to
participate in the level of treatment that the evaluation indicates
is appropriate for the defendant to achieve:
(1) the outcome objectives prescribed by the drug
treatment program or facility; and
(2) the recommendations of a drug treatment
professional.
(d) A court granting community supervision under this
subchapter may require as a condition of that community
supervision, in addition to any required participation in a course
of treatment under Subsection (a)(2) and other appropriate
conditions, that the defendant participate in:
(1) vocational training;
(2) family counseling;
(3) literacy training; or
(4) community service.
Art. 42A.584. VIOLATION OF CONDITIONS OF COMMUNITY
SUPERVISION. (a) Notwithstanding Article 42A.751(b), if a
defendant placed on community supervision under this subchapter
violates the terms of that supervision by committing another
possession offense or a misdemeanor offense involving the
possession of a controlled substance or by violating any drug
treatment-related condition of community supervision, the judge
may:
(1) use graduated sanctions and incentives offered to
a defendant by the community supervision and corrections department
supervising the defendant or the courts served by that department,
including:
(A) global positioning or another form of
electronic monitoring;
(B) mental health treatment or cognitive and
behavioral programs;
(C) alcohol or substance abuse monitoring and
testing;
(D) faith-based community programs and
resources, including mentoring programs;
(E) placing the defendant under the supervision
of a supervision officer with a reduced or specialized caseload and
subjecting the defendant to increased home visits and field
contacts, if sufficient resources are available;
(F) strategies to reduce the number of technical
violations committed by the defendant; and
(G) increased coordination between the court and
the community supervision and corrections department supervising
the defendant; and
(2) revoke the community supervision of the defendant
if the judge determines by a preponderance of the evidence that the
defendant:
(A) poses a danger to the safety of others; or
(B) is unlikely to benefit from a course of
treatment in a drug treatment program or facility.
(b) A judge who modifies a defendant's conditions of
community supervision in response to the defendant's commission of
an offense or violation of a treatment-related condition of
community supervision under Subsection (a) shall consider imposing
one or more of the following additional conditions of community
supervision:
(1) intensified drug treatment;
(2) vocational training;
(3) family counseling;
(4) literacy education;
(5) community service;
(6) intensive supervision; and
(7) confinement under Subchapter M in an intermediate
sanction facility operated by or under contract with the Texas
Department of Criminal Justice for a period not to exceed 120 days.
Art. 42A.585. DETERMINATION OF BENEFIT OF TREATMENT. In
making a determination under this subchapter as to whether a
defendant is unlikely to benefit from participation in a course of
treatment in a drug treatment program or facility, the judge shall
consider whether the defendant has previously:
(1) committed a serious violation of the rules of a
drug treatment program or facility; or
(2) repeatedly committed violations of the rules of a
drug treatment program or facility to an extent that inhibited the
defendant's ability to function in the program or facility.
Art. 42A.586. DISMISSAL. (a) After successful completion
of a term of community supervision imposed under this subchapter,
including completion of any required course of treatment in a drug
treatment program or facility, a defendant may petition the court
for dismissal of the charges.
(b) If the judge, after providing notice and giving
attorneys for the defendant and the state an opportunity to be
heard, determines that the defendant substantially complied with
the conditions of community supervision and successfully completed
any required course of treatment, the judge shall discharge the
defendant, set aside the verdict or permit the defendant to
withdraw the plea, and dismiss the accusation, complaint,
information, or indictment in the manner provided by Article
42A.701.
SECTION 3. Subchapter E-1, Chapter 411, Government Code, is
amended by adding Section 411.0732 to read as follows:
Sec. 411.0732. PROCEDURE FOR COMMUNITY SUPERVISION
FOLLOWING CONVICTION; SET-ASIDE CONVICTIONS FOR CERTAIN FELONY
POSSESSION OFFENSES. (a) This section applies only to a person
who, on conviction of a possession offense, is placed on community
supervision under Subchapter L-1, Chapter 42A, Code of Criminal
Procedure, and with respect to whom the conviction is subsequently
set aside by the court under Article 42A.701(f) of that chapter.
(b) Notwithstanding any other provision of this subchapter
or Subchapter F, a person described by Subsection (a) who satisfies
the requirements of Section 411.074 may petition the court that
placed the person on community supervision for an order of
nondisclosure of criminal history record information under this
section.
(c) After notice to the state, an opportunity for a hearing,
and a determination that the person is entitled to file the petition
and that issuance of the order is in the best interest of justice,
the court shall issue an order prohibiting criminal justice
agencies from disclosing to the public criminal history record
information related to the offense giving rise to the community
supervision.
(d) A person may petition the court that placed the person
on community supervision for an order of nondisclosure of criminal
history record information under this section only after the fifth
anniversary of the date the conviction is set aside.
SECTION 4. Chapter 509, Government Code, is amended by
adding Section 509.018 to read as follows:
Sec. 509.018. ANNUAL REPORT ON COMMUNITY SUPERVISION WITH
DRUG TREATMENT. (a) Not later than December 1 of each year, the
Texas Department of Criminal Justice shall study and report to the
legislature on the effectiveness and financial impact to the state
during the preceding state fiscal year of placing defendants on
community supervision with drug treatment for a felony possession
offense under Subchapter L-1, Chapter 42A, Code of Criminal
Procedure.
(b) The study and report must include an analysis of:
(1) the implementation of Subchapter L-1, Chapter 42A,
Code of Criminal Procedure, including the amount of cost savings
the state realizes through that implementation;
(2) the adequacy of funding available for operation of
the programs described by Subchapter L-1, Chapter 42A, Code of
Criminal Procedure;
(3) the effect of implementing Subchapter L-1, Chapter
42A, Code of Criminal Procedure, with respect to:
(A) incarceration costs incurred by the state and
local governments, including the cost of constructing prisons and
jails;
(B) the recidivism rate among defendants placed
on community supervision under Subchapter L-1, Chapter 42A, Code of
Criminal Procedure, compared with other defendants; and
(C) the number of defendants placed on community
supervision under Subchapter L-1, Chapter 42A, Code of Criminal
Procedure, who utilize state welfare benefits, compared with other
defendants; and
(4) other effects of or issues with implementing
Subchapter L-1, Chapter 42A, Code of Criminal Procedure, that are
identified by the Texas Department of Criminal Justice.
SECTION 5. Article 42A.551(c), Code of Criminal Procedure,
is repealed.
SECTION 6. (a) In a criminal action under Section 481.115,
481.1151, 481.116, 481.1161, 481.117, 481.118, 481.119(b),
481.121, 483.041(a), or 485.031, Health and Safety Code, pending on
or commenced on or after the effective date of this Act, for an
offense committed before the effective date of this Act, the
defendant, if adjudged guilty, shall be assessed the punishment
under Subchapter L-1, Chapter 42A, Code of Criminal Procedure, as
added by this Act, if the offense is a possession offense described
by Article 42A.581, Code of Criminal Procedure, as added by this
Act, and the defendant meets the eligibility requirements under
that subchapter and other law and so elects by written motion filed
with the trial court before the sentencing hearing begins.
(b) If the defendant does not make the election under
Subsection (a) of this section, punishment is governed by the law in
effect on the date the offense was committed, and the former law is
continued in effect for that purpose.
SECTION 7. The change in law made by Section 411.0732,
Government Code, as added by this Act, applies to a person whose
conviction for a possession offense is set aside under Article
42A.701(f), Code of Criminal Procedure, on or after the effective
date of this Act, regardless of whether the offense for which the
person was convicted was committed before, on, or after the
effective date of this Act.
SECTION 8. The Texas Department of Criminal Justice shall
submit to the legislature the initial report required by Section
509.018, Government Code, as added by this Act, not later than
December 1, 2020.
SECTION 9. This Act takes effect September 1, 2019.