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  81R2257 PEP-F
 
  By: Ellis, et al. S.B. No. 1118
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to community supervision for certain drug possession
  offenses and to a person's eligibility for an order of
  nondisclosure following a term of community supervision for any of
  those offenses.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 15(a)(2), Article 42.12, Code of
  Criminal Procedure, is amended to read as follows:
               (2)  On conviction of a state jail felony punished
  under Section 12.35(a), Penal Code, [other than a state jail felony
  listed in Subdivision (1),] the judge may suspend the imposition of
  the sentence and place the defendant on community supervision or
  may order the sentence to be executed.
         SECTION 2.  Article 42.12, Code of Criminal Procedure, is
  amended by adding Section 15B to read as follows:
         Sec. 15B.  COMMUNITY SUPERVISION FOR POSSESSION OF
  CONTROLLED SUBSTANCE.  (a)  In this section, "drug possession
  offense" means an offense under:
               (1)  Section 481.115, 481.116, 481.117, 481.118,
  481.119(b), 483.041(a), or 485.031, Health and Safety Code, that is
  punishable as a felony of the third degree or as any lower category
  of offense;
               (2)  Section 481.1151, Health and Safety Code, that is
  punishable as a state jail felony; or
               (3)  Section 481.121, Health and Safety Code, that is
  punishable as a Class A misdemeanor or as any lower category of
  offense.
         (b)  On conviction of a drug 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)  the judge determines by a preponderance of the
  evidence that the defendant is a danger to the safety of others;
               (2)  the defendant has been previously convicted of an
  offense other than:
                     (A)  a drug possession offense; or
                     (B)  an offense under the Transportation Code
  punishable by fine only or an offense related to a pedestrian or the
  parking of a motor vehicle punishable by fine only;
               (3)  the defendant is convicted in the same proceeding
  of an additional offense, other than:
                     (A)  a drug possession offense; or
                     (B)  an offense under the Transportation Code
  punishable by fine only or an offense related to a pedestrian or the
  parking of a motor vehicle punishable by fine only; or
               (4)  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
  drug treatment program, and the defendant has previously been:
                     (A)  convicted on two or more occasions of a drug
  possession offense; or
                     (B)  discharged from a drug court program
  established under Chapter 469, Health and Safety Code, after
  failing to successfully complete the program.
         (c)  A judge who determines under Subsection (b) that a
  defendant is a danger to the safety of others or is unlikely to
  benefit from participation in a drug treatment program shall enter
  reasons for making that determination in the record of the
  proceeding.
         (d)  The judge may suspend wholly or partly the imposition of
  any fine imposed on a conviction if a defendant is placed on
  community supervision under this section.
         (e)  A court granting community supervision under this
  section 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 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.
         (f)  A course of treatment under Subsection (e)(2) may
  include:
               (1)  treatment in a faith-based program;
               (2)  outpatient treatment;
               (3)  halfway house treatment;
               (4)  narcotic replacement therapy;
               (5)  drug education or prevention courses; and
               (6)  inpatient or residential drug treatment to address
  special detoxification, relapse, or severe dependence issues.
         (g)  In referring a defendant to a course of treatment in a
  program described by Subsection (e)(2) and imposing conditions for
  participation in the program, the judge shall order the defendant
  to participate in the level of care that is the least restrictive
  and most cost-effective to achieve:
               (1)  the outcome objectives prescribed by the program;
  and
               (2)  the recommendations of a treatment professional.
         (h)  A court granting community supervision under this
  section may require as a condition of community supervision, in
  addition to the drug treatment program and other appropriate
  conditions, that the defendant participate in:
               (1)  vocational training;
               (2)  family counseling;
               (3)  literacy training; or
               (4)  community service.
         (i)  Notwithstanding Section 21(b), if a defendant placed on
  community supervision under this section violates the terms of that
  supervision by committing another drug possession offense or by
  violating any treatment-related condition of 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)  a reduced or specialized caseload for the
  supervision officer and increased home visits and field contacts by
  the officer;
                     (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 participation in
  a drug treatment program.
         (j)  A judge who modifies a defendant's conditions of
  supervision in response to the defendant's commission of another
  drug possession offense or violation of a treatment-related
  condition of supervision shall consider imposing one or more of the
  following additional conditions of supervision:
               (1)  intensified drug treatment;
               (2)  vocational training;
               (3)  family counseling;
               (4)  literacy education;
               (5)  community service;
               (6)  intensive supervision; and
               (7)  confinement under Section 18 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.
         (k)  In making a determination under this section as to
  whether a defendant is unlikely to benefit from participation in a
  drug treatment program, the judge shall consider whether the
  defendant has previously:
               (1)  committed a serious violation of the rules of a
  drug treatment program; or
               (2)  repeatedly committed violations of the rules of a
  drug treatment program to an extent that inhibited the defendant's
  ability to function in the program.
         (l)  After successful completion of a term of community
  supervision imposed under this section, including completion of a
  drug treatment program, a defendant may petition the court for
  dismissal of the charges.  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 supervision and successfully completed the drug
  treatment program, 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 Section 20(a).
         SECTION 3.  Section 411.081, Government Code, is amended by
  adding Subsection (d-1) and amending Subsection (e) to read as
  follows:
         (d-1)  Notwithstanding any other provision of this
  subchapter, if a person is placed on community supervision under
  Section 15B, Article 42.12, Code of Criminal Procedure, and
  subsequently receives a discharge and dismissal under Section
  15B(l), Article 42.12, Code of Criminal Procedure, and satisfies
  the requirements of Subsection (e), the person may petition the
  court that placed the defendant on community supervision for an
  order of nondisclosure under this subsection. After notice to the
  state and a hearing on whether the person is entitled to file the
  petition and 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. A criminal justice agency may disclose
  criminal history record information that is the subject of the
  order only to other criminal justice agencies, for criminal justice
  purposes, an agency or entity listed in Subsection (i), or the
  person who is the subject of the order. A person may petition the
  court that placed the person on community supervision for an order
  of nondisclosure on payment of a $28 fee to the clerk of the court in
  addition to any other fee that generally applies to the filing of a
  civil petition.  The payment may be made only after:
               (1)  the discharge and dismissal, if the offense for
  which the person was placed on community supervision was a
  misdemeanor; or
               (2)  the fifth anniversary of the discharge and
  dismissal, if the offense for which the person was placed on
  community supervision was a felony.
         (e)  A person is entitled to petition the court under
  Subsection (d) or (d-1) only if during the period of the community
  supervision, including deferred adjudication community
  supervision, for which the order of nondisclosure is requested and
  during the applicable period described by Subsection (d)(1), (2),
  or (3) or by Subsection (d-1)(1) or (2), as appropriate, the person
  is not convicted of or placed on deferred adjudication community
  supervision under Section 5, Article 42.12, Code of Criminal
  Procedure, for any offense other than an offense under the
  Transportation Code punishable by fine only or, for purposes of
  Subsection (d-1), the person is not convicted of or placed on
  community supervision, including deferred adjudication community
  supervision, for another drug possession offense described by
  Section 15B, Article 42.12, Code of Criminal Procedure. A person is
  not entitled to petition the court under Subsection (d) or (d-1) if
  the person was placed on community supervision, including [the]
  deferred adjudication community supervision, for, or has been
  previously convicted of or placed on any other deferred
  adjudication for:
               (1)  an offense requiring registration as a sex
  offender under Chapter 62, Code of Criminal Procedure;
               (2)  an offense under Section 20.04, Penal Code,
  regardless of whether the offense is a reportable conviction or
  adjudication for purposes of Chapter 62, Code of Criminal
  Procedure;
               (3)  an offense under Section 19.02, 19.03, 22.04,
  22.041, 25.07, or 42.072, Penal Code; or
               (4)  any other offense involving family violence, as
  defined by Section 71.004, Family Code.
         SECTION 4.  Chapter 509, Government Code, is amended by
  adding Section 509.013 to read as follows:
         Sec. 509.013.  ANNUAL REPORT ON COMMUNITY SUPERVISION WITH
  DRUG TREATMENT.  (a)  Not later than November 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 drug possession
  offense under Section 15B, Article 42.12, Code of Criminal
  Procedure.
         (b)  The study and report must include an analysis of:
               (1)  the implementation of Section 15B, Article 42.12,
  Code of Criminal Procedure;
               (2)  the adequacy of funding available for operation of
  the programs described by Section 15B, Article 42.12, Code of
  Criminal Procedure;
               (3)  the effect of implementing Section 15B, Article
  42.12, 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 Section 15B, Article 42.12, Code of
  Criminal Procedure, compared with other defendants; and
                     (C)  the number of defendants placed on community
  supervision under Section 15B, Article 42.12, Code of Criminal
  Procedure, who utilize state welfare benefits, compared with other
  defendants; and
               (4)  other effects of or issues with implementing
  Section 15B, Article 42.12, Code of Criminal Procedure, that are
  identified by the Texas Department of Criminal Justice.
         SECTION 5.  Sections 15(a)(1) and (c)(2) and (3), Article
  42.12, Code of Criminal Procedure, are repealed.
         SECTION 6.  (a)   In a criminal action under Section
  481.115, 481.1151, 481.116, 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, the defendant, if adjudged
  guilty, shall be assessed the punishment under Section 15B, Article
  42.12, Code of Criminal Procedure, as added by this Act, if the
  defendant meets the eligibility requirements under that section 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 covered by the law in
  effect when the offense was committed, and the former law is
  continued in effect for that purpose.
         SECTION 7.  The change in law made by Section 411.081(d-1),
  Government Code, as added by this Act, applies to a person placed on
  community supervision under Section 15B, Article 42.12, Code of
  Criminal Procedure, as added by this Act, on or after the effective
  date of this Act regardless of when the person committed the offense
  for which the person is placed on community supervision.
         SECTION 8.  The Texas Department of Criminal Justice shall
  submit to the legislature the first report required by Section
  509.013, Government Code, as added by this Act, not later than
  November 1, 2010.
         SECTION 9.  This Act takes effect September 1, 2009.