|
|
|
A BILL TO BE ENTITLED
|
|
AN ACT
|
|
relating to the establishment, operation, and funding of |
|
victim-offender mediation programs; authorizing a fee. |
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
SECTION 1. Section 1, Article 28.01, Code of Criminal |
|
Procedure, is amended to read as follows: |
|
Sec. 1. The court may set any criminal case for a pre-trial |
|
hearing before it is set for trial upon its merits, and direct the |
|
defendant and his attorney, if any of record, and the State's |
|
attorney, to appear before the court at the time and place stated in |
|
the court's order for a conference and hearing regardless of |
|
whether the defendant has been formally charged. The defendant |
|
must be present at the arraignment, and his presence is required |
|
during any pre-trial proceeding. The pre-trial hearing shall be to |
|
determine any of the following matters: |
|
(1) Arraignment of the defendant, if such be |
|
necessary; and appointment of counsel to represent the defendant, |
|
if such be necessary; |
|
(2) Pleadings of the defendant; |
|
(3) Special pleas, if any; |
|
(4) Exceptions to the form or substance of the |
|
indictment or information; |
|
(5) Motions for continuance either by the State or |
|
defendant; provided that grounds for continuance not existing or |
|
not known at the time may be presented and considered at any time |
|
before the defendant announces ready for trial; |
|
(6) Motions to suppress evidence--When a hearing on |
|
the motion to suppress evidence is granted, the court may determine |
|
the merits of said motion on the motions themselves, or upon |
|
opposing affidavits, or upon oral testimony, subject to the |
|
discretion of the court; |
|
(7) Motions for change of venue by the State or the |
|
defendant; provided, however, that such motions for change of |
|
venue, if overruled at the pre-trial hearing, may be renewed by the |
|
State or the defendant during the voir dire examination of the jury; |
|
(8) Discovery; |
|
(9) Entrapment; [and] |
|
(10) Motion for appointment of interpreter; and |
|
(11) Motion to allow the defendant to enter a pretrial |
|
victim-offender mediation program established under Subchapter |
|
A-1, Chapter 56. |
|
SECTION 2. Chapter 56, Code of Criminal Procedure, is |
|
amended by adding Subchapter A-1 to read as follows: |
|
SUBCHAPTER A-1. PRETRIAL VICTIM-OFFENDER MEDIATION PROGRAM |
|
Art. 56.21. AUTHORITY TO ESTABLISH PROGRAM. (a) The |
|
commissioners court of a county or governing body of a municipality |
|
may, in coordination with the office of the attorney representing |
|
the state in the county or municipality, establish a pretrial |
|
victim-offender mediation program for persons who: |
|
(1) have been arrested for or charged with a |
|
misdemeanor under Title 7, Penal Code, in any court in this state |
|
other than a district court; and |
|
(2) have not previously been convicted of a felony or a |
|
misdemeanor, other than a misdemeanor regulating traffic and |
|
punishable by fine only. |
|
(b) A county court, statutory county court, municipal |
|
court, or justice court that implements a program under this |
|
subchapter may adopt administrative rules and local rules of |
|
procedure as necessary or appropriate to implement or operate the |
|
program. |
|
(c) The commissioners court of a county or governing body of |
|
a municipality that establishes a program under this subchapter |
|
may: |
|
(1) allow for referral to the program of arrested |
|
persons described by Subsection (a) who have not yet been formally |
|
charged with an offense; |
|
(2) adopt administrative rules and local rules of |
|
procedure as necessary or appropriate to implement or operate the |
|
program; and |
|
(3) approve additional program requirements as |
|
recommended by the attorney representing the state. |
|
Art. 56.22. PROGRAM. (a) A pretrial victim-offender |
|
mediation program established under Article 56.21 must require: |
|
(1) the designation of individual defendants who are |
|
eligible to participate in the program, based on standards |
|
established by Article 56.21 and any local standards approved by |
|
the commissioners court of the county or the governing body of the |
|
municipality, as applicable; |
|
(2) the attorney representing the state to consent to |
|
a defendant's participation in the program; |
|
(3) the consent of the victim to be obtained and |
|
documented in the record of the court by the attorney representing |
|
the state before the case may proceed to pretrial victim-offender |
|
mediation; and |
|
(4) the defendant to enter into a binding mediation |
|
agreement in accordance with Article 56.23 that: |
|
(A) includes an apology by the defendant; and |
|
(B) requires the defendant to: |
|
(i) pay restitution to the victim; |
|
(ii) perform community service; or |
|
(iii) both pay restitution and perform |
|
community service. |
|
(b) All communications made in a pretrial victim-offender |
|
mediation program are confidential and may not be introduced into |
|
evidence except in an open court proceeding instituted to determine |
|
the meaning of a mediation agreement. |
|
(c) A pretrial victim-offender mediation program may |
|
require the staff and other resources of pretrial services |
|
departments and community supervision and corrections departments |
|
to assist the court or the attorney representing the state in |
|
monitoring the defendant's compliance with a mediation agreement |
|
reached through the program. |
|
(d) A pretrial victim-offender mediation may be conducted |
|
by a court-appointed mediator who meets the training requirements |
|
provided by Sections 154.052(a) and (b), Civil Practice and |
|
Remedies Code, or by any other appropriate person designated by the |
|
court. Neither the attorney representing the state nor the |
|
attorney representing the defendant in the criminal action may |
|
serve as a mediator under the pretrial victim-offender mediation |
|
program. |
|
(e) If a defendant enters a pretrial victim-offender |
|
mediation program, the court may defer the proceedings without |
|
accepting a plea of guilty or nolo contendere or entering an |
|
adjudication of guilt. The court may not require the defendant to |
|
admit guilt or enter a plea of guilty or nolo contendere to enter |
|
the program. |
|
(f) The case must be returned to the docket and proceed |
|
through the regular criminal justice system if: |
|
(1) a pretrial victim-offender mediation does not |
|
result in a mediation agreement; or |
|
(2) the defendant fails to fulfill the terms of the |
|
mediation agreement successfully by the date specified in the |
|
mediation agreement. |
|
(g) If a case is returned to the docket under Subsection |
|
(f), the defendant retains all of the rights that the defendant |
|
possessed before entering the pretrial victim-offender mediation |
|
program under this subchapter. Notwithstanding any other law, for |
|
purposes of determining the duration and expiration of an |
|
applicable statute of limitation under Chapter 12, the running of |
|
the period of limitation is tolled while the defendant is enrolled |
|
in a program under this subchapter. |
|
(h) The attorney representing the state or the court may |
|
extend the initial compliance period granted to the defendant. |
|
(i) A determination by the court regarding whether the |
|
mediation agreement has been successfully completed is final and |
|
may not be appealed. |
|
(j) If the defendant is not arrested or convicted of a |
|
subsequent felony or misdemeanor other than a misdemeanor |
|
regulating traffic and punishable by fine only on or before the |
|
first anniversary of the date the defendant successfully completed |
|
a mediation agreement under this subchapter, on the motion of the |
|
defendant, the court shall enter an order of nondisclosure under |
|
Section 411.081, Government Code, as if the defendant had received |
|
a discharge and dismissal under Section 5(c), Article 42.12, with |
|
respect to all records and files related to the defendant's arrest |
|
for the offense for which the defendant entered the pretrial |
|
victim-offender mediation program. |
|
Art. 56.23. MEDIATION AGREEMENT. (a) A mediation |
|
agreement under this subchapter must be written and: |
|
(1) signed by the defendant and the victim; and |
|
(2) ratified by the attorney representing the state in |
|
the attorney's request for a court order to document and approve the |
|
mediation agreement for the record. |
|
(b) A mediation agreement may require testing, counseling, |
|
and treatment of the defendant to address alcohol abuse, abuse of |
|
controlled substances, mental health, or anger management or any |
|
other service that is reasonably related to the offense for which |
|
the defendant was arrested or charged. |
|
(c) A mediation agreement is not valid for more than one |
|
year after the date on which the mediation agreement is ratified |
|
unless the court and the attorney representing the state approve |
|
the extension of the agreement. |
|
(d) A mediation agreement under this subchapter does not |
|
constitute a plea or legal admission of responsibility. |
|
Art. 56.24. LEGISLATIVE REVIEW. The lieutenant governor |
|
and the speaker of the house of representatives may assign to |
|
appropriate legislative committees duties relating to the study, |
|
review, and evaluation of pretrial victim-offender mediation |
|
programs established under this subchapter, and those committees |
|
may make recommendations to the legislature for appropriate |
|
policies to monitor, improve, or provide state resources for those |
|
programs. |
|
Art. 56.25. LOCAL REVIEW. The commissioners court of a |
|
county or governing body of a municipality may request a |
|
management, operations, or financial or accounting audit of a |
|
pretrial victim-offender mediation program established under this |
|
subchapter. |
|
Art. 56.26. FEES. (a) A pretrial victim-offender |
|
mediation program established under this subchapter shall collect |
|
from a defendant in the program a reasonable program participation |
|
fee not to exceed $500 and may collect from the defendant an alcohol |
|
or controlled substance testing, counseling, and treatment fee in |
|
an amount necessary to cover the costs of the testing, counseling, |
|
or treatment, if such testing, counseling, or treatment is required |
|
by the mediation agreement. |
|
(b) Fees collected under this article may be paid on a |
|
periodic basis or on a deferred payment schedule at the discretion |
|
of the judge, magistrate, or program director administering the |
|
pretrial victim-offender mediation program. The fees must be: |
|
(1) based on the defendant's ability to pay; and |
|
(2) used only for purposes specific to the program. |
|
Art. 56.27. NOTICE. The office of an attorney representing |
|
the state that participates in a pretrial victim-offender mediation |
|
program established under this subchapter shall notify the public |
|
by posting information about the program on the office's website. |
|
SECTION 3. Subchapter A, Chapter 102, Code of Criminal |
|
Procedure, is amended by adding Article 102.0179 to read as |
|
follows: |
|
Art. 102.0179. COSTS ATTENDANT TO PRETRIAL VICTIM-OFFENDER |
|
MEDIATION. (a) A defendant who participates in a pretrial |
|
victim-offender mediation program established under Subchapter |
|
A-1, Chapter 56, on successful completion of the terms of the |
|
defendant's mediation agreement or on conviction, shall pay as |
|
court costs $15 plus an additional program participation fee as |
|
described by Article 56.26 in the amount prescribed by that |
|
article. |
|
(b) The court clerk shall collect the costs imposed under |
|
this article. The clerk shall keep a separate record of any money |
|
collected under this article and shall pay any money collected to |
|
the county or municipal treasurer, as appropriate, or to any other |
|
official who discharges the duties commonly delegated to a |
|
treasurer, for deposit in a fund to be known as the county pretrial |
|
victim-offender mediation program fund or in a fund to be known as |
|
the municipal pretrial victim-offender mediation program fund, as |
|
appropriate. |
|
(c) A county or municipality that collects court costs under |
|
this article shall use the money in a fund described by Subsection |
|
(b) exclusively for the maintenance of the pretrial victim-offender |
|
mediation program operated in the county or municipality. |
|
SECTION 4. Subchapter B, Chapter 102, Government Code, is |
|
amended by adding Section 102.0216 to read as follows: |
|
Sec. 102.0216. ADDITIONAL COURT COSTS: CODE OF CRIMINAL |
|
PROCEDURE. A defendant who participates in a pretrial |
|
victim-offender mediation program established under Subchapter |
|
A-1, Chapter 56, Code of Criminal Procedure, shall pay on |
|
successful completion of the terms of the defendant's mediation |
|
agreement or on conviction, in addition to all other costs, to help |
|
fund pretrial victim-offender mediation programs established under |
|
that subchapter (Art. 102.0179, Code of Criminal Procedure) . . . |
|
$15 plus an additional program participation fee in an amount not to |
|
exceed $500. |
|
SECTION 5. (a) The change in law made by this Act in adding |
|
Subchapter A-1, Chapter 56, Code of Criminal Procedure, applies to |
|
a defendant who enters a pretrial victim-offender mediation program |
|
under that subchapter regardless of whether the defendant committed |
|
the offense for which the defendant enters the program before, on, |
|
or after the effective date of this Act. |
|
(b) The change in law made by this Act in adding Article |
|
102.0179, Code of Criminal Procedure, and Section 102.0216, |
|
Government Code, applies 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 when the |
|
offense was committed, and the former law is continued in effect for |
|
that purpose. For purposes of this subsection, an offense was |
|
committed before the effective date of this Act if any element of |
|
the offense was committed before that date. |
|
SECTION 6. This Act takes effect immediately if it receives |
|
a vote of two-thirds of all the members elected to each house, as |
|
provided by Section 39, Article III, Texas Constitution. If this |
|
Act does not receive the vote necessary for immediate effect, this |
|
Act takes effect September 1, 2013. |