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A BILL TO BE ENTITLED
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AN ACT
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relating to community supervision for certain drug possession |
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offenses and to a person's eligibility for an order of |
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nondisclosure following a term of community supervision for any of |
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those offenses. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 15(a)(2), Article 42.12, Code of |
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Criminal Procedure, is amended to read as follows: |
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(2) On conviction of a state jail felony punished |
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under Section 12.35(a), Penal Code, [other than a state jail felony
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listed in Subdivision (1),] the judge may suspend the imposition of |
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the sentence and place the defendant on community supervision or |
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may order the sentence to be executed. |
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SECTION 2. Article 42.12, Code of Criminal Procedure, is |
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amended by adding Section 15B to read as follows: |
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Sec. 15B. COMMUNITY SUPERVISION FOR POSSESSION OF |
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CONTROLLED SUBSTANCE. (a) In this section, "drug possession |
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offense" means an offense under: |
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(1) Section 481.115, 481.116, 481.117, 481.118, |
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481.119(b), 483.041(a), or 485.031, Health and Safety Code, that is |
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punishable as a felony of the third degree or as any lower category |
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of offense; |
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(2) Section 481.1151, Health and Safety Code, that is |
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punishable as a state jail felony; or |
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(3) Section 481.121, Health and Safety Code, that is |
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punishable as a Class A misdemeanor or as any lower category of |
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offense. |
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(b) On conviction of a drug possession offense, the judge |
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shall suspend the imposition of the sentence and place the |
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defendant on community supervision, except that the judge may order |
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the sentence to be executed if: |
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(1) the judge determines by a preponderance of the |
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evidence that the defendant is a danger to the safety of others; |
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(2) the defendant has been previously convicted of an |
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offense other than: |
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(A) a drug possession offense; or |
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(B) an offense under the Transportation Code |
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punishable by fine only or an offense related to a pedestrian or the |
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parking of a motor vehicle punishable by fine only; |
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(3) the defendant is convicted in the same proceeding |
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of an additional offense, other than: |
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(A) a drug possession offense; or |
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(B) an offense under the Transportation Code |
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punishable by fine only or an offense related to a pedestrian or the |
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parking of a motor vehicle punishable by fine only; or |
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(4) the judge determines by clear and convincing |
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evidence, based on an evidence-based drug and alcohol assessment, |
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that the defendant is unlikely to benefit from participation in a |
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course of treatment in a drug treatment program or facility, and the |
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defendant has previously been: |
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(A) convicted on two or more occasions of a drug |
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possession offense; or |
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(B) discharged from a drug court program |
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established under Chapter 469, Health and Safety Code, after |
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failing to successfully complete the program. |
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(c) A judge who determines under Subsection (b) that a |
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defendant is a danger to the safety of others or is unlikely to |
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benefit from participation in a course of treatment in a drug |
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treatment program or facility shall enter reasons for making that |
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determination in the record of the proceeding. |
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(d) The judge may suspend wholly or partly the imposition of |
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any fine imposed on a conviction if a defendant is placed on |
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community supervision under this section. |
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(e) A court granting community supervision under this |
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section shall require as a condition of community supervision that |
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the defendant: |
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(1) submit to an evidence-based risks and needs |
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screening and evaluation procedure approved by the community |
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justice assistance division of the Texas Department of Criminal |
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Justice, including a procedure developed under Section 509.003(d), |
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Government Code; |
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(2) if the evaluation indicates a need for treatment, |
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participate in a prescribed course of treatment in a drug treatment |
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program or facility: |
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(A) licensed or approved by the Department of |
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State Health Services; or |
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(B) that complies with standards established by |
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the community justice assistance division of the Texas Department |
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of Criminal Justice; and |
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(3) pay a fee to cover all or part of the cost of the |
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course of treatment based on the defendant's ability to pay. |
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(f) A course of treatment under Subsection (e)(2) may |
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include: |
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(1) treatment in a faith-based program; |
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(2) outpatient treatment; |
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(3) halfway house treatment; |
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(4) narcotic replacement therapy prescribed by a |
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physician; |
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(5) drug education or prevention courses; and |
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(6) inpatient or residential drug treatment to address |
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special detoxification, relapse, or severe dependence issues. |
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(g) In referring a defendant to a course of treatment under |
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Subsection (e)(2) and imposing conditions for participation in the |
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course of treatment, the judge shall order the defendant to |
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participate in the course of treatment that is the least |
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restrictive and most cost-effective to achieve: |
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(1) the outcome objectives prescribed by the drug |
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treatment program or facility; and |
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(2) the recommendations of a drug treatment |
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professional. |
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(h) A court granting community supervision under this |
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section may require as a condition of community supervision, in |
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addition to any required participation in a course of treatment |
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under Subsection (e)(2) and other appropriate conditions, that the |
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defendant participate in: |
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(1) vocational training; |
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(2) family counseling; |
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(3) literacy training; or |
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(4) community service. |
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(i) Notwithstanding Section 21(b), if a defendant placed on |
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community supervision under this section violates the terms of that |
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supervision by committing another drug possession offense or by |
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violating any treatment-related condition of supervision, the |
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judge may: |
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(1) use graduated sanctions and incentives offered to |
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a defendant by the community supervision and corrections department |
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supervising the defendant or the courts served by that department, |
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including: |
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(A) global positioning or another form of |
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electronic monitoring; |
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(B) mental health treatment or cognitive and |
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behavioral programs; |
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(C) alcohol or substance abuse monitoring and |
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testing; |
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(D) faith-based community programs and |
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resources, including mentoring programs; |
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(E) placing the defendant under the supervision |
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of a supervision officer with a reduced or specialized caseload and |
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subjecting the defendant to increased home visits and field |
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contacts if sufficient resources are available; |
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(F) strategies to reduce the number of technical |
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violations committed by the defendant; and |
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(G) increased coordination between the court and |
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the community supervision and corrections department supervising |
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the defendant; and |
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(2) revoke supervision if the judge determines by a |
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preponderance of the evidence that the defendant: |
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(A) poses a danger to the safety of others; or |
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(B) is unlikely to benefit from a course of |
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treatment in a drug treatment program or facility. |
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(j) A judge who modifies a defendant's conditions of |
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supervision in response to the defendant's commission of another |
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drug possession offense or violation of a treatment-related |
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condition of supervision shall consider imposing one or more of the |
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following additional conditions of supervision: |
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(1) intensified drug treatment; |
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(2) vocational training; |
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(3) family counseling; |
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(4) literacy education; |
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(5) community service; |
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(6) intensive supervision; and |
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(7) confinement under Section 18 in an intermediate |
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sanction facility operated by or under contract with the Texas |
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Department of Criminal Justice for a period not to exceed 120 days. |
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(k) In making a determination under this section as to |
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whether a defendant is unlikely to benefit from participation in a |
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course of treatment in a drug treatment program or facility, the |
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judge shall consider whether the defendant has previously: |
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(1) committed a serious violation of the rules of a |
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drug treatment program or facility; or |
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(2) repeatedly committed violations of the rules of a |
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drug treatment program or facility to an extent that inhibited the |
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defendant's ability to function in the program or facility. |
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(l) After successful completion of a term of community |
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supervision imposed under this section, including completion of any |
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required course of treatment in a drug treatment program or |
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facility, a defendant may petition the court for dismissal of the |
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charges. If the judge, after providing notice and giving attorneys |
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for the defendant and the state an opportunity to be heard, |
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determines that the defendant substantially complied with the |
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conditions of supervision and successfully completed any required |
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course of treatment, the judge shall discharge the defendant, set |
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aside the verdict or permit the defendant to withdraw the plea, and |
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dismiss the accusation, complaint, information, or indictment in |
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the manner provided by Section 20(a). |
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SECTION 3. Section 411.081, Government Code, is amended by |
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adding Subsection (d-1) and amending Subsection (e) to read as |
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follows: |
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(d-1) Notwithstanding any other provision of this |
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subchapter, if a person is placed on community supervision under |
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Section 15B, Article 42.12, Code of Criminal Procedure, and |
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subsequently receives a discharge and dismissal under Section |
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15B(l), Article 42.12, Code of Criminal Procedure, and satisfies |
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the requirements of Subsection (e), the person may petition the |
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court that placed the defendant on community supervision for an |
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order of nondisclosure under this subsection. After notice to the |
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state and a hearing on whether the person is entitled to file the |
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petition and issuance of the order is in the best interest of |
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justice, the court shall issue an order prohibiting criminal |
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justice agencies from disclosing to the public criminal history |
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record information related to the offense giving rise to the |
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community supervision. A criminal justice agency may disclose |
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criminal history record information that is the subject of the |
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order only to other criminal justice agencies, for criminal justice |
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purposes, an agency or entity listed in Subsection (i), or the |
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person who is the subject of the order. A person may petition the |
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court that placed the person on community supervision for an order |
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of nondisclosure on payment of a $28 fee to the clerk of the court in |
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addition to any other fee that generally applies to the filing of a |
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civil petition. The payment may be made only after: |
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(1) the discharge and dismissal, if the offense for |
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which the person was placed on community supervision was a |
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misdemeanor; or |
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(2) the fifth anniversary of the discharge and |
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dismissal, if the offense for which the person was placed on |
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community supervision was a felony. |
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(e) A person is entitled to petition the court under |
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Subsection (d) or (d-1) only if during the period of the community |
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supervision, including deferred adjudication community |
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supervision, for which the order of nondisclosure is requested and |
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during the applicable period described by Subsection (d)(1), (2), |
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or (3) or by Subsection (d-1)(1) or (2), as appropriate, the person |
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is not convicted of or placed on deferred adjudication community |
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supervision under Section 5, Article 42.12, Code of Criminal |
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Procedure, for any offense other than an offense under the |
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Transportation Code punishable by fine only or, for purposes of |
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Subsection (d-1), the person is not convicted of or placed on |
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community supervision, including deferred adjudication community |
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supervision, for another drug possession offense, as defined by |
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Section 15B(a), Article 42.12, Code of Criminal Procedure. A |
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person is not entitled to petition the court under Subsection (d) or |
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(d-1) if the person was placed on community supervision, including |
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[the] deferred adjudication community supervision, for, or has been |
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previously convicted of or placed on any other deferred |
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adjudication for: |
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(1) an offense requiring registration as a sex |
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offender under Chapter 62, Code of Criminal Procedure; |
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(2) an offense under Section 20.04, Penal Code, |
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regardless of whether the offense is a reportable conviction or |
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adjudication for purposes of Chapter 62, Code of Criminal |
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Procedure; |
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(3) an offense under Section 19.02, 19.03, 22.04, |
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22.041, 25.07, or 42.072, Penal Code; or |
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(4) any other offense involving family violence, as |
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defined by Section 71.004, Family Code. |
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SECTION 4. Chapter 509, Government Code, is amended by |
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adding Section 509.013 to read as follows: |
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Sec. 509.013. ANNUAL REPORT ON COMMUNITY SUPERVISION WITH |
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DRUG TREATMENT. (a) Not later than December 1 of each year, the |
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Texas Department of Criminal Justice shall study and report to the |
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legislature on the effectiveness and financial impact to the state |
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during the preceding state fiscal year of placing defendants on |
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community supervision with drug treatment for a drug possession |
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offense under Section 15B, Article 42.12, Code of Criminal |
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Procedure. |
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(b) The study and report must include an analysis of: |
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(1) the implementation of Section 15B, Article 42.12, |
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Code of Criminal Procedure; |
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(2) the adequacy of funding available for operation of |
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the programs described by Section 15B, Article 42.12, Code of |
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Criminal Procedure; |
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(3) the effect of implementing Section 15B, Article |
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42.12, Code of Criminal Procedure, with respect to: |
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(A) incarceration costs incurred by the state and |
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local governments, including the cost of constructing prisons and |
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jails; |
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(B) the recidivism rate among defendants placed |
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on community supervision under Section 15B, Article 42.12, Code of |
|
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Criminal Procedure, compared with other defendants; and |
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(C) the number of defendants placed on community |
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supervision under Section 15B, Article 42.12, Code of Criminal |
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Procedure, who utilize state welfare benefits, compared with other |
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defendants; and |
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(4) other effects of or issues with implementing |
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Section 15B, Article 42.12, Code of Criminal Procedure, that are |
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identified by the Texas Department of Criminal Justice. |
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SECTION 5. Sections 15(a)(1), (c)(2), and (c)(3), Article |
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42.12, Code of Criminal Procedure, are repealed. |
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SECTION 6. (a) In a criminal action under Section 481.115, |
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481.1151, 481.116, 481.117, 481.118, 481.119(b), 481.121, |
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483.041(a), or 485.031, Health and Safety Code, pending on or |
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commenced on or after the effective date of this Act, for an offense |
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committed before the effective date, the defendant, if adjudged |
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guilty, shall be assessed the punishment under Section 15B, Article |
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42.12, Code of Criminal Procedure, as added by this Act, if the |
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defendant meets the eligibility requirements under that section and |
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other law and so elects by written motion filed with the trial court |
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before the sentencing hearing begins. |
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(b) If the defendant does not make the election under |
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Subsection (a) of this section, punishment is covered by the law in |
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effect on the date the offense was committed, and the former law is |
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continued in effect for that purpose. |
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SECTION 7. The change in law made by Section 411.081(d-1), |
|
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Government Code, as added by this Act, applies to a person placed on |
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community supervision under Section 15B, Article 42.12, Code of |
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Criminal Procedure, as added by this Act, on or after the effective |
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date of this Act regardless of when the person committed the offense |
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for which the person is placed on community supervision. |
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SECTION 8. The Texas Department of Criminal Justice shall |
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submit to the legislature the first report required by Section |
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509.013, Government Code, as added by this Act, not later than |
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December 1, 2012. |
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SECTION 9. This Act takes effect September 1, 2011. |