Bill Text: TX SB1182 | 2017-2018 | 85th Legislature | Introduced
Bill Title: Relating to the prosecution, punishment, and certain civil consequences of conduct causing the birth of a child born addicted to a controlled substance; creating an offense.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2017-03-09 - Referred to State Affairs [SB1182 Detail]
Download: Texas-2017-SB1182-Introduced.html
85R8469 GCB-D | ||
By: Perry | S.B. No. 1182 |
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relating to the prosecution, punishment, and certain civil | ||
consequences of conduct causing the birth of a child born addicted | ||
to a controlled substance; creating an offense. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Chapter 22, Penal Code, is amended by adding | ||
Section 22.042 to read as follows: | ||
Sec. 22.042. INGESTION OF CONTROLLED SUBSTANCE WHILE | ||
PREGNANT. (a) In this section: | ||
(1) "Born addicted to a controlled substance" means a | ||
child who, during the first month after birth: | ||
(A) experiences observable withdrawal from a | ||
controlled substance; | ||
(B) exhibits observable or harmful effects in the | ||
child's physical appearance or functioning attributable to | ||
addiction to a controlled substance; or | ||
(C) exhibits the demonstrable presence of a | ||
controlled substance in the child's bodily fluids. | ||
(2) "Controlled substance" and "prescription" have | ||
the meanings assigned by Section 481.002, Health and Safety Code. | ||
(b) A person commits an offense if the person ingests a | ||
controlled substance while pregnant, resulting in the birth of a | ||
child who is born addicted to a controlled substance. | ||
(c) It is a defense to prosecution under this section that | ||
the child was born addicted to a controlled substance that the actor | ||
ingested pursuant to a prescription issued by a licensed physician. | ||
(d) It is a defense to prosecution under this section that | ||
the actor attended counseling sessions for substance abusers or | ||
participated in substance abuse treatment services while pregnant | ||
with the child who is born addicted to a controlled substance. | ||
(e) An offense under this section is a Class A misdemeanor. | ||
(f) The enhancements provided by Sections 12.43 and 12.49 do | ||
not apply to an offense under this section. | ||
SECTION 2. Subchapter C, Chapter 42A, Code of Criminal | ||
Procedure, is amended by adding Article 42A.1011 to read as | ||
follows: | ||
Art. 42A.1011. DEFERRED ADJUDICATION COMMUNITY SUPERVISION | ||
OR COMMUNITY SUPERVISION FOR INGESTION OF CONTROLLED SUBSTANCE | ||
WHILE PREGNANT. (a) Except as provided by Subsection (b), if a | ||
defendant is determined in a trial on the merits to have committed | ||
an offense under Section 22.042, Penal Code, or in the trial of such | ||
an offense the defendant enters a plea of guilty or nolo contendere | ||
and, after hearing the evidence, the judge finds that it | ||
substantiates the defendant's guilt, the judge shall: | ||
(1) defer further proceedings without entering an | ||
adjudication of guilt; | ||
(2) place the defendant on deferred adjudication | ||
community supervision; and | ||
(3) inform the defendant orally or in writing of the | ||
possible consequences under Articles 42A.108 and 42A.110 of a | ||
violation of a condition of deferred adjudication community | ||
supervision. | ||
(b) If the information provided to the defendant under | ||
Subsection (a)(3) is provided orally, the judge must record and | ||
maintain the judge's statement to the defendant. The failure of a | ||
judge to inform a defendant of possible consequences under Articles | ||
42A.108 and 42A.110 is not a ground for reversal unless the | ||
defendant shows that the defendant was harmed by the failure of the | ||
judge to provide the information. | ||
(c) If a defendant has previously been placed on deferred | ||
adjudication community supervision under this section, on | ||
conviction or after receiving a plea of guilty or nolo contendere, | ||
after hearing the evidence and finding that it substantiates the | ||
defendant's guilt, the judge shall place the defendant on community | ||
supervision. | ||
(d) A judge who places a defendant on deferred adjudication | ||
community supervision under Subsection (a) or community | ||
supervision under Subsection (c) shall require the defendant, as a | ||
condition of community supervision, to attend counseling sessions | ||
for substance abusers or participate in substance abuse treatment | ||
services in a program or facility approved or licensed by the | ||
Department of State Health Services. | ||
SECTION 3. Section 261.001(1), Family Code, is amended to | ||
read as follows: | ||
(1) "Abuse" includes the following acts or omissions | ||
by a person: | ||
(A) mental or emotional injury to a child that | ||
results in an observable and material impairment in the child's | ||
growth, development, or psychological functioning; | ||
(B) causing or permitting the child to be in a | ||
situation in which the child sustains a mental or emotional injury | ||
that results in an observable and material impairment in the | ||
child's growth, development, or psychological functioning; | ||
(C) physical injury that results in substantial | ||
harm to the child, or the genuine threat of substantial harm from | ||
physical injury to the child, including an injury that is at | ||
variance with the history or explanation given and excluding an | ||
accident or reasonable discipline by a parent, guardian, or | ||
managing or possessory conservator that does not expose the child | ||
to a substantial risk of harm; | ||
(D) failure to make a reasonable effort to | ||
prevent an action by another person that results in physical injury | ||
that results in substantial harm to the child; | ||
(E) sexual conduct harmful to a child's mental, | ||
emotional, or physical welfare, including conduct that constitutes | ||
the offense of continuous sexual abuse of young child or children | ||
under Section 21.02, Penal Code, indecency with a child under | ||
Section 21.11, Penal Code, sexual assault under Section 22.011, | ||
Penal Code, or aggravated sexual assault under Section 22.021, | ||
Penal Code; | ||
(F) failure to make a reasonable effort to | ||
prevent sexual conduct harmful to a child; | ||
(G) compelling or encouraging the child to engage | ||
in sexual conduct as defined by Section 43.01, Penal Code, | ||
including compelling or encouraging the child in a manner that | ||
constitutes an offense of trafficking of persons under Section | ||
20A.02(a)(7) or (8), Penal Code, prostitution under Section | ||
43.02(b), Penal Code, or compelling prostitution under Section | ||
43.05(a)(2), Penal Code; | ||
(H) causing, permitting, encouraging, engaging | ||
in, or allowing the photographing, filming, or depicting of the | ||
child if the person knew or should have known that the resulting | ||
photograph, film, or depiction of the child is obscene as defined by | ||
Section 43.21, Penal Code, or pornographic; | ||
(I) the current use by a person of a controlled | ||
substance as defined by Chapter 481, Health and Safety Code, in a | ||
manner or to the extent that the use results in physical, mental, or | ||
emotional injury to a child; | ||
(J) causing, expressly permitting, or | ||
encouraging a child to use a controlled substance as defined by | ||
Chapter 481, Health and Safety Code; | ||
(K) causing, permitting, encouraging, engaging | ||
in, or allowing a sexual performance by a child as defined by | ||
Section 43.25, Penal Code; [ |
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(L) knowingly causing, permitting, encouraging, | ||
engaging in, or allowing a child to be trafficked in a manner | ||
punishable as an offense under Section 20A.02(a)(5), (6), (7), or | ||
(8), Penal Code, or the failure to make a reasonable effort to | ||
prevent a child from being trafficked in a manner punishable as an | ||
offense under any of those sections; or | ||
(M) allowing a child to be born addicted to a | ||
controlled substance, as defined by Section 22.042, Penal Code. | ||
SECTION 4. Section 262.102, Family Code, is amended by | ||
adding Subsection (b-2) to read as follows: | ||
(b-2) In determining whether there is an immediate danger to | ||
the physical health or safety of a child who is younger than one | ||
year of age, the court may consider whether the child was the | ||
subject of abuse described by Section 261.001(1)(M). | ||
SECTION 5. Section 262.104, Family Code, is amended by | ||
amending Subsection (a) and adding Subsection (c) to read as | ||
follows: | ||
(a) If there is no time to obtain a temporary order, | ||
temporary restraining order, or attachment under Section | ||
262.102(a) before taking possession of a child consistent with the | ||
health and safety of that child, an authorized representative of | ||
the Department of Family and Protective Services, a law enforcement | ||
officer, or a juvenile probation officer may take possession of a | ||
child without a court order under the following conditions, only: | ||
(1) on personal knowledge of facts that would lead a | ||
person of ordinary prudence and caution to believe that there is an | ||
immediate danger to the physical health or safety of the child; | ||
(2) on information furnished by another that has been | ||
corroborated by personal knowledge of facts and all of which taken | ||
together would lead a person of ordinary prudence and caution to | ||
believe that there is an immediate danger to the physical health or | ||
safety of the child; | ||
(3) on personal knowledge of facts that would lead a | ||
person of ordinary prudence and caution to believe that the child | ||
has been the victim of sexual abuse or of trafficking under Section | ||
20A.02 or 20A.03, Penal Code; | ||
(4) on information furnished by another that has been | ||
corroborated by personal knowledge of facts and all of which taken | ||
together would lead a person of ordinary prudence and caution to | ||
believe that the child has been the victim of sexual abuse or of | ||
trafficking under Section 20A.02 or 20A.03, Penal Code; [ |
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(5) on information furnished by another that has been | ||
corroborated by personal knowledge of facts and all of which taken | ||
together would lead a person of ordinary prudence and caution to | ||
believe that the parent or person who has possession of the child is | ||
currently using a controlled substance as defined by Chapter 481, | ||
Health and Safety Code, and the use constitutes an immediate danger | ||
to the physical health or safety of the child; or | ||
(6) if the child is younger than one year of age, on | ||
information furnished by another that has been corroborated by | ||
personal knowledge of facts and all of which taken together would | ||
lead a person of ordinary prudence and caution to believe that the | ||
child was born addicted to a controlled substance, as defined by | ||
Section 22.042, Penal Code, and there is an immediate danger to the | ||
physical health or safety of the child. | ||
(c) An authorized representative of the Department of | ||
Family and Protective Services, a law enforcement officer, or a | ||
juvenile probation officer who takes possession of a child without | ||
a court order under a condition described by Subsection (a)(6) must | ||
report the facts that supported taking possession of the child to | ||
the local prosecutor with jurisdiction over an offense under | ||
Section 22.042, Penal Code. | ||
SECTION 6. The change in law made by this Act to Section | ||
261.001, Family Code, applies only to an investigation of child | ||
abuse alleged to have occurred on or after the effective date of | ||
this Act. | ||
SECTION 7. This Act takes effect September 1, 2017. |