By: Zaffirini, et al. S.B. No. 1637
(Collier, Thompson of Harris)
A BILL TO BE ENTITLED
AN ACT
relating to the administrative, civil, and criminal consequences,
including fines, fees, and costs, imposed on persons arrested for,
charged with, or convicted of certain criminal offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 1, Code of Criminal Procedure, is
amended by adding Article 1.053 to read as follows:
Art. 1.053. PRESENT ABILITY TO PAY. Except as otherwise
specifically provided, in determining a defendant's ability to pay
for any purpose, the court shall consider only the defendant's
present ability to pay.
SECTION 2. Article 43.015, Code of Criminal Procedure, is
amended by adding Subdivision (3) to read as follows:
(3) "Cost" includes any fee imposed on a defendant by
the court at the time a judgment is entered.
SECTION 3. Chapter 43, Code of Criminal Procedure, is
amended by adding Article 43.035 to read as follows:
Art. 43.035. RECONSIDERATION OF FINE OR COSTS. (a) If a
defendant notifies the court that the defendant has difficulty
paying the fine and costs in compliance with the judgment, the court
shall hold a hearing to determine whether that portion of the
judgment imposes an undue hardship on the defendant.
(b) For purposes of Subsection (a), a defendant may notify
the court by:
(1) voluntarily appearing and informing the court or
the clerk of the court in the manner established by the court for
that purpose;
(2) filing a motion with the court;
(3) mailing a letter to the court; or
(4) any other method established by the court for that
purpose.
(c) If the court determines at the hearing under Subsection
(a) that the portion of the judgment regarding the fine and costs
imposes an undue hardship on the defendant, the court shall
consider whether the fine and costs should be satisfied through one
or more methods listed under Article 42.15(a-1).
(d) The court may decline to hold a hearing under Subsection
(a) if the court:
(1) previously held a hearing under that subsection
with respect to the case and is able to determine without
holding a hearing that the portion of the judgment regarding the
fine and costs does not impose an undue hardship on the
defendant; or
(2) is able to determine without holding a hearing
that:
(A) the applicable portion of the judgment
imposes an undue hardship on the defendant; and
(B) the fine and costs should be satisfied
through one or more methods listed under Article 42.15(a-1).
(e) The court retains jurisdiction for the purpose of making
a determination under this article.
SECTION 4. The heading to Article 43.05, Code of Criminal
Procedure, is amended to read as follows:
Art. 43.05. ISSUANCE AND RECALL OF CAPIAS PRO FINE [SHALL
RECITE].
SECTION 5. Article 43.05(a-1), Code of Criminal Procedure,
as added by Chapter 1127 (S.B. 1913), Acts of the 85th Legislature,
Regular Session, 2017, is amended to read as follows:
(a-1) A court may not issue a capias pro fine for the
defendant's failure to satisfy the judgment according to its terms
unless the court holds a hearing to determine whether the judgment
imposes an undue hardship on the defendant [on the defendant's
ability to satisfy the judgment] and the defendant fails to:
(1) [the defendant fails to] appear at the hearing; or
(2) comply with an order issued under Subsection (a-3)
as a result of the hearing [based on evidence presented at the
hearing, the court determines that the capias pro fine should be
issued].
SECTION 6. Article 43.05, Code of Criminal Procedure, is
amended by amending Subsection (a-2) and adding Subsections (a-3)
and (a-4) to read as follows:
(a-2) If the court determines at the hearing under
Subsection (a-1) that the judgment imposes an undue hardship on the
defendant, the court shall determine whether the fine and costs
should be satisfied through one or more methods listed under
Article 42.15(a-1). The court retains jurisdiction for the purpose
of making a determination under this subsection.
(a-3) If the court determines at the hearing under
Subsection (a-1) that the judgment does not impose an undue
hardship on the defendant, the court shall order the defendant to
comply with the judgment not later than the 30th day after the date
the determination is made.
(a-4) The court shall recall a capias pro fine if, before
the capias pro fine is executed, the defendant:
(1) provides notice to the court under Article 43.035
and a hearing is set under that article; or
(2) [the defendant] voluntarily appears and makes a
good faith effort to resolve the capias pro fine [amount owed; and
[(2) the amount owed is resolved in any manner
authorized by this code].
SECTION 7. Article 43.09(f), Code of Criminal Procedure, is
amended to read as follows:
(f) A court may require a defendant who is unable to pay a
fine or costs to discharge all or part of the fine or costs by
performing community service. The court may allow a defendant to
perform the required community service in the county in which the
defendant resides.
SECTION 8. Article 43.091, Code of Criminal Procedure, is
amended to read as follows:
Art. 43.091. WAIVER OF PAYMENT OF FINES AND COSTS FOR
CERTAIN DEFENDANTS AND FOR CHILDREN. (a) A court may waive
payment of all or part of a fine [or costs] imposed on a defendant if
the court determines that:
(1) the defendant is indigent or does not have
sufficient resources or income to pay all or part of the fine [or
costs] or was, at the time the offense was committed, a child as
defined by Article 45.058(h); and
(2) each alternative method of discharging the fine
[or cost] under Article 43.09 or 42.15 would impose an undue
hardship on the defendant.
(b) A determination of undue hardship made under Subsection
(a)(2) is in the court's discretion. In making that determination,
the court may consider, as applicable, the defendant's:
(1) significant physical or mental impairment or
disability;
(2) pregnancy and childbirth;
(3) substantial family commitments or
responsibilities, including child or dependent care;
(4) work responsibilities and hours;
(5) transportation limitations;
(6) homelessness or housing insecurity; and
(7) any other factor the court determines relevant.
(c) A court may waive payment of all or part of the costs
imposed on a defendant if the court determines that the defendant:
(1) is indigent or does not have sufficient resources
or income to pay all or part of the costs; or
(2) was, at the time the offense was committed, a child
as defined by Article 45.058(h).
(d) This subsection applies only to a defendant placed on
community supervision, including deferred adjudication community
supervision, whose fine or costs are wholly or partly waived under
this article. At any time during the defendant's period of
community supervision, the court, on the court's own motion or by
motion of the attorney representing the state, may reconsider the
waiver of the fine or costs. After providing written notice to the
defendant and an opportunity for the defendant to present
information relevant to the defendant's ability to pay, the court
may order the defendant to pay all or part of the waived amount of
the fine or costs only if the court determines that the defendant
has sufficient resources or income to pay that amount.
SECTION 9. Subchapter A, Chapter 45, Code of Criminal
Procedure, is amended by adding Article 45.004 to read as follows:
Art. 45.004. GENERAL DEFINITION. In this chapter, "cost"
includes any fee imposed on a defendant by the justice or judge at
the time a judgment is entered.
SECTION 10. Subchapter B, Chapter 45, Code of Criminal
Procedure, is amended by adding Articles 45.0201 and 45.0445 to
read as follows:
Art. 45.0201. APPEARANCE BY TELEPHONE OR VIDEOCONFERENCE.
If the justice or judge determines that requiring a defendant to
appear before the justice or judge in person for a hearing under
Article 45.0445 or 45.045 would impose an undue hardship on the
defendant, the justice or judge may allow the defendant to appear by
telephone or videoconference.
Art. 45.0445. RECONSIDERATION OF FINE OR COSTS. (a) If
the defendant notifies the justice or judge that the defendant has
difficulty paying the fine and costs in compliance with the
judgment, the justice or judge shall hold a hearing to determine
whether the judgment imposes an undue hardship on the defendant.
(b) For purposes of Subsection (a), a defendant may notify
the justice or judge by:
(1) voluntarily appearing and informing the justice or
judge or the clerk of the court in the manner established by the
justice or judge for that purpose;
(2) filing a motion with the justice or judge;
(3) mailing a letter to the justice or judge; or
(4) any other method established by the justice or
judge for that purpose.
(c) If the justice or judge determines at the hearing under
Subsection (a) that the judgment imposes an undue hardship on the
defendant, the justice or judge shall consider whether to allow the
defendant to satisfy the fine and costs through one or more methods
listed under Article 45.041(a-1).
(d) The justice or judge may decline to hold a hearing under
Subsection (a) if the justice or judge:
(1) previously held a hearing under that subsection
with respect to the case and is able to determine without holding a
hearing that the judgment does not impose an undue hardship on the
defendant; or
(2) is able to determine without holding a hearing
that:
(A) the judgment imposes an undue hardship on the
defendant; and
(B) the fine and costs should be satisfied
through one or more methods listed under Article 45.041(a-1).
(e) The justice or judge retains jurisdiction for the
purpose of making a determination under this article.
SECTION 11. Article 45.045(a-2), Code of Criminal
Procedure, as added by Chapter 1127 (S.B. 1913), Acts of the 85th
Legislature, Regular Session, 2017, is amended to read as follows:
(a-2) The court may not issue a capias pro fine for the
defendant's failure to satisfy the judgment according to its terms
unless the court holds a hearing to determine whether the judgment
imposes an undue hardship on the defendant [on the defendant's
ability to satisfy the judgment] and the defendant fails to:
(1) [the defendant fails to] appear at the hearing; or
(2) comply with an order issued under Subsection (a-4)
as a result of the hearing [based on evidence presented at the
hearing, the court determines that the capias pro fine should be
issued].
SECTION 12. Article 45.045, Code of Criminal Procedure, is
amended by amending Subsection (a-3) and adding Subsections (a-4)
and (a-5) to read as follows:
(a-3) If the justice or judge determines at the hearing
under Subsection (a-2) that the judgment imposes an undue hardship
on the defendant, the justice or judge shall determine whether the
fine and costs should be satisfied through one or more methods
listed under Article 45.041(a-1). The justice or judge retains
jurisdiction for the purpose of making a determination under this
subsection.
(a-4) If the justice or judge determines at the hearing
under Subsection (a-2) that the judgment does not impose an undue
hardship on the defendant, the justice or judge shall order the
defendant to comply with the judgment not later than the 30th day
after the date the determination is made.
(a-5) The court shall recall a capias pro fine if, before
the capias pro fine is executed, the defendant:
(1) provides notice to the justice or judge under
Article 45.0445 and a hearing is set under that article; or
(2) [the defendant] voluntarily appears and makes a
good faith effort to resolve the capias pro fine [amount owed; and
[(2) the amount owed is resolved in any manner
authorized by this chapter].
SECTION 13. Article 45.049, Code of Criminal Procedure, is
amended by adding Subsection (a-1) to read as follows:
(a-1) A justice or judge may allow a defendant to perform in
the county in which the defendant resides any community service
required under this article.
SECTION 14. Article 45.0491, Code of Criminal Procedure, is
amended to read as follows:
Art. 45.0491. WAIVER OF PAYMENT OF FINES AND COSTS FOR
CERTAIN DEFENDANTS AND FOR CHILDREN. (a) A municipal court,
regardless of whether the court is a court of record, or a justice
court may waive payment of all or part of a fine [or costs] imposed
on a defendant if the court determines that:
(1) the defendant is indigent or does not have
sufficient resources or income to pay all or part of the fine [or
costs] or was, at the time the offense was committed, a child as
defined by Article 45.058(h); and
(2) discharging the fine [or costs] under Article
45.049 or as otherwise authorized by this chapter would impose an
undue hardship on the defendant.
(b) A defendant is presumed to be indigent or to not have
sufficient resources or income to pay all or part of the fine or
costs for purposes of Subsection (a) or (d) if the defendant:
(1) is in the conservatorship of the Department of
Family and Protective Services, or was in the conservatorship of
that department at the time of the offense; or
(2) is designated as a homeless child or youth or an
unaccompanied youth, as those terms are defined by 42 U.S.C.
Section 11434a, or was so designated at the time of the offense.
(c) A determination of undue hardship made under Subsection
(a)(2) is in the court's discretion. In making that determination,
the court may consider, as applicable, the defendant's:
(1) significant physical or mental impairment or
disability;
(2) pregnancy and childbirth;
(3) substantial family commitments or
responsibilities, including child or dependent care;
(4) work responsibilities and hours;
(5) transportation limitations;
(6) homelessness or housing insecurity; and
(7) any other factors the court determines relevant.
(d) A municipal court, regardless of whether the court is a
court of record, or a justice court may waive payment of all or part
of the costs imposed on a defendant if the court determines that the
defendant:
(1) is indigent or does not have sufficient resources
or income to pay all or part of the costs; or
(2) was, at the time the offense was committed, a child
as defined by Article 45.058(h).
SECTION 15. Article 45.051(a-1), Code of Criminal
Procedure, as amended by Chapters 227 (H.B. 350) and 777 (H.B.
1964), Acts of the 82nd Legislature, Regular Session, 2011, is
reenacted and amended to read as follows:
(a-1) Notwithstanding any other provision of law, as an
alternative to requiring a defendant charged with one or more
offenses to make payment of all court costs as required by
Subsection (a), the judge may:
(1) allow the defendant to enter into an agreement for
payment of those costs in installments during the defendant's
period of probation;
(2) require an eligible defendant to discharge all or
part of those costs by performing community service or attending a
tutoring program under Article 45.049 or 45.0492; [or]
(3) waive all or part of the court costs under Article
45.0491(d); or
(4) take any combination of actions authorized by
Subdivision (1), [or] (2), or (3).
SECTION 16. Section 702.003, Transportation Code, is
amended by adding Subsections (b-1), (g), and (h) and amending
Subsections (c) and (e-1) to read as follows:
(b-1) Information that is provided to make a determination
under Subsection (a) and that concerns an outstanding warrant from
the municipality for failure to pay a fine expires on the second
anniversary of the date the information was provided and may not be
used to refuse registration after that date. Once information
about an outstanding warrant for failure to pay a fine is provided
under Subsection (b), subsequent information about other warrants
for failure to pay a fine that are issued before the second
anniversary of the date the initial information was provided may
not be used, either before or after the second anniversary of that
date, to refuse registration under this section unless the motor
vehicle is no longer subject to refusal of registration because of
notice received under Subsection (c).
(c) A municipality that has a contract under Subsection (b)
shall notify the county assessor-collector or the department
regarding a person for whom the county assessor-collector or the
department has refused to register a motor vehicle on:
(1) entry of a judgment against the person and the
person's payment to the court or other means of discharge,
including a waiver, of the fine for the violation and of all court
costs;
(2) perfection of an appeal of the case for which the
arrest warrant was issued; or
(3) dismissal of the charge for which the arrest
warrant was issued.
(e-1) Except as otherwise provided by this section, a [A]
municipality that has a contract under Subsection (b) may impose an
additional $20 fee to a person who has an outstanding warrant from
the municipality for failure to appear or failure to pay a fine on a
complaint that involves the violation of a traffic law. The
additional fee may be used only to reimburse the department or the
county assessor-collector for its expenses for providing services
under the contract, or another county department for expenses
related to services under the contract.
(g) A municipal court judge or justice of the peace who has
jurisdiction over the underlying offense may waive an additional
fee imposed under Subsection (e-1) if the judge or justice makes a
finding that the defendant is economically unable to pay the fee or
that good cause exists for the waiver.
(h) If a municipality is notified that the court having
jurisdiction over the underlying offense has waived the fine that
is the subject of the warrant due to the defendant's indigency, the
municipality may not impose an additional fee on the defendant
under Subsection (e-1).
SECTION 17. The following provisions of the Code of
Criminal Procedure are repealed:
(1) Article 42.15(a-1), as added by Chapter 977 (H.B.
351), Acts of the 85th Legislature, Regular Session, 2017;
(2) Article 43.05(a-1), as added by Chapter 977 (H.B.
351), Acts of the 85th Legislature, Regular Session, 2017;
(3) Article 45.041(a-1), as added by Chapter 977 (H.B.
351), Acts of the 85th Legislature, Regular Session, 2017; and
(4) Article 45.045(a-2), as added by Chapter 977 (H.B.
351), Acts of the 85th Legislature, Regular Session, 2017.
SECTION 18. Notwithstanding Section 32, Chapter 977 (H.B.
351), and Section 28, Chapter 1127 (S.B. 1913), Acts of the 85th
Legislature, Regular Session, 2017, Section 706.006,
Transportation Code, as amended by those Acts, applies to any fee
assessed on or after the effective date of this Act, regardless of
whether the offense, complaint, citation, or other violation giving
rise to the fee occurred before, on, or after the effective date of
this Act.
SECTION 19. Articles 1.053 and 45.0201, Code of Criminal
Procedure, as added by this Act, apply to a proceeding that
commences before, on, or after the effective date of this Act.
SECTION 20. Articles 43.035 and 45.0445, Code of Criminal
Procedure, as added by this Act, apply to a notification received by
a court on or after the effective date of this Act, regardless of
whether the judgment of conviction was entered before, on, or after
the effective date of this Act.
SECTION 21. The changes in law made by this Act to Articles
43.09, 43.091, 45.049, 45.0491, and 45.051, Code of Criminal
Procedure, apply to a sentencing proceeding that commences before,
on, or after the effective date of this Act.
SECTION 22. The change in law made by this Act to Articles
43.05 and 45.045, Code of Criminal Procedure, applies only to a
capias pro fine issued on or after the effective date of this Act. A
capias pro fine issued before the effective date of this Act is
governed by the law in effect on the date the capias pro fine was
issued, and the former law is continued in effect for that purpose.
SECTION 23. The changes in law made by this Act to Section
702.003, Transportation Code, apply only to an offense committed on
or after the effective date of this Act. An offense committed
before the effective date of this Act 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. For purposes of this section,
an offense was committed before the effective date of this Act if
any element of the offense occurred before that date.
SECTION 24. This Act takes effect September 1, 2019.