Bill Text: TX SB90 | 2013-2014 | 83rd Legislature | Introduced


Bill Title: Relating to community supervision for certain drug possession offenses.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced - Dead) 2013-03-18 - Co-author authorized [SB90 Detail]

Download: Texas-2013-SB90-Introduced.html
  83R818 BEF-F
 
  By: Ellis S.B. No. 90
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to community supervision for certain drug possession
  offenses.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Sections 15(a)(1) and (2), Article 42.12, Code
  of Criminal Procedure, are amended to read as follows:
               (1)  On conviction of a state jail felony under Section
  [481.115(b), 481.1151(b)(1), 481.116(b),] 481.1161(b)(3),
  481.121(b)(3), or 481.129(g)(1), Health and Safety Code, that is
  punished under Section 12.35(a), Penal Code, the judge shall
  suspend the imposition of the sentence and place the defendant on
  community supervision, unless the defendant has previously been
  convicted of a felony, other than a felony punished under Section
  12.44(a), Penal Code, or unless the conviction resulted from an
  adjudication of the guilt of a defendant previously placed on
  deferred adjudication community supervision for the offense, in
  which event the judge may suspend the imposition of the sentence and
  place the defendant on community supervision or may order the
  sentence to be executed.  The provisions of this subdivision
  requiring the judge to suspend the imposition of the sentence and
  place the defendant on community supervision do not apply to a
  defendant who:
                     (A)  [under Section 481.1151(b)(1), Health and
  Safety Code, possessed more than five abuse units of the controlled
  substance;
                     [(B)]  under Section 481.1161(b)(3), Health and
  Safety Code, possessed more than one pound, by aggregate weight,
  including adulterants or dilutants, of the controlled substance; or
                     (B) [(C)]  under Section 481.121(b)(3), Health
  and Safety Code, possessed more than one pound of marihuana.
               (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) or a state jail felony that is a drug
  possession offense under Section 15B, 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, Health and Safety Code, that is
  punishable as a state jail felony or felony of the third degree;
               (2)  Section 481.1151 or 481.116, Health and Safety
  Code, that is punishable as a state jail felony; or
               (3)  Section 481.1161 or 481.121, Health and Safety
  Code, that is punishable as a Class A or B misdemeanor.
         (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:
                     (A)  is a danger to the safety of others; or
                     (B)  possessed the controlled substance with the
  intent to deliver the substance in violation of Section 481.112,
  481.1121, 481.113, or 481.120, Health and Safety Code, as
  applicable;
               (2)  the defendant has been previously convicted of an
  offense other than:
                     (A)  a drug possession offense or a state jail
  felony listed in Section 15(a); 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 a state jail
  felony listed in Section 15(a); 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;
               (4)  the judge determines that a drug treatment program
  or other treatment services that are appropriate for the defendant
  are not available in the area in which the defendant resides; or
               (5)  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
  course of treatment in a drug treatment program or facility, and the
  defendant has been previously:
                     (A)  convicted on two or more occasions of a drug
  possession offense or state jail felony listed in Section 15(a); 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 makes a determination described by
  Subsection (b)(1), (4), or (5) to execute the defendant's sentence
  shall enter the 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 drug treatment
  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 prescribed by a
  physician;
               (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 under
  Subsection (e)(2) and imposing conditions for participation in the
  course of treatment, the judge shall order the defendant to
  participate in the level of treatment that the evaluation indicates
  is appropriate for the defendant to achieve:
               (1)  the outcome objectives prescribed by the drug
  treatment program or facility; and
               (2)  the recommendations of a drug treatment
  professional.
         (h)  A court granting community supervision under this
  section may require as a condition of community supervision, in
  addition to any required participation in a course of treatment
  under Subsection (e)(2) 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 state
  jail felony listed in Section 15(a) 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)  placing the defendant under the supervision
  of a supervision officer with a reduced or specialized caseload and
  subjecting the defendant to increased home visits and field
  contacts, if sufficient resources are available;
                     (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 a course of
  treatment in a drug treatment program or facility.
         (j)  A judge who modifies a defendant's conditions of
  supervision in response to the defendant's commission of another
  drug possession offense or state jail felony listed in Section
  15(a) 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
  course of treatment in a drug treatment program or facility, the
  judge shall consider whether the defendant has previously:
               (1)  committed a serious violation of the rules of a
  drug treatment program or facility; or
               (2)  repeatedly committed violations of the rules of a
  drug treatment program or facility to an extent that inhibited the
  defendant's ability to function in the program or facility.
         (l)  After successful completion of a term of community
  supervision imposed under this section, including completion of any
  required course of treatment in a drug treatment program or
  facility, 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 any required
  course of treatment, 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).
         (m)  The drug treatment program account is created as a
  dedicated account in the general revenue fund of the state
  treasury.  Money in the account may be appropriated only to the
  Texas Department of Criminal Justice for distribution to drug
  treatment programs or facilities that provide a course of treatment
  to defendants under this section and that apply for the money.
  Funds collected and distributed under this subsection are subject
  to audit by the comptroller.
         SECTION 3.  Subchapter A, Chapter 102, Code of Criminal
  Procedure, is amended by adding Article 102.0179 to read as
  follows:
         Art. 102.0179.  ADDITIONAL COSTS ATTENDANT TO CERTAIN
  INTOXICATION AND DRUG CONVICTIONS. (a)  In addition to other costs
  on conviction imposed by this chapter, including costs described by
  Article 102.0178, a person shall pay $50 as a court cost on
  conviction of any offense under Chapter 49, Penal Code, or Chapter
  481, Health and Safety Code.
         (b)  In this article, a person is considered to have been
  convicted if:
               (1)  a sentence is imposed;
               (2)  the person is placed on community supervision,
  including deferred adjudication community supervision; or
               (3)  the court defers final disposition of the person's
  case.
         (c)  Court costs under this article are collected in the same
  manner as other fines or costs.  An officer collecting the costs
  shall send to the comptroller costs collected under this article
  for deposit to the credit of the drug treatment program account
  established under Section 15B, Article 42.12.
         SECTION 4.  Section 102.021, Government Code, is amended to
  read as follows:
         Sec. 102.021.  COURT COSTS ON CONVICTION:  CODE OF CRIMINAL
  PROCEDURE.  A person convicted of an offense shall pay the
  following under the Code of Criminal Procedure, in addition to all
  other costs:
               (1)  court cost on conviction of any offense, other
  than a conviction of an offense relating to a pedestrian or the
  parking of a motor vehicle (Art. 102.0045, Code of Criminal
  Procedure) . . . $4;
               (2)  a fee for services of prosecutor (Art. 102.008,
  Code of Criminal Procedure) . . . $25;
               (3)  fees for services of peace officer:
                     (A)  issuing a written notice to appear in court
  for certain violations (Art. 102.011, Code of Criminal Procedure)
  . . . $5;
                     (B)  executing or processing an issued arrest
  warrant, capias, or capias pro fine (Art. 102.011, Code of Criminal
  Procedure) . . . $50;
                     (C)  summoning a witness (Art. 102.011, Code of
  Criminal Procedure) . . . $5;
                     (D)  serving a writ not otherwise listed (Art.
  102.011, Code of Criminal Procedure) . . . $35;
                     (E)  taking and approving a bond and, if
  necessary, returning the bond to courthouse (Art. 102.011, Code of
  Criminal Procedure) . . . $10;
                     (F)  commitment or release (Art. 102.011, Code of
  Criminal Procedure) . . . $5;
                     (G)  summoning a jury (Art. 102.011, Code of
  Criminal Procedure) . . . $5;
                     (H)  attendance of a prisoner in habeas corpus
  case if prisoner has been remanded to custody or held to bail (Art.
  102.011, Code of Criminal Procedure) . . . $8 each day;
                     (I)  mileage for certain services performed (Art.
  102.011, Code of Criminal Procedure) . . . $0.29 per mile; and
                     (J)  services of a sheriff or constable who serves
  process and attends examining trial in certain cases (Art. 102.011,
  Code of Criminal Procedure) . . . not to exceed $5;
               (4)  services of a peace officer in conveying a witness
  outside the county (Art. 102.011, Code of Criminal Procedure) . . .
  $10 per day or part of a day, plus actual necessary travel expenses;
               (5)  overtime of peace officer for time spent
  testifying in the trial or traveling to or from testifying in the
  trial (Art. 102.011, Code of Criminal Procedure) . . . actual cost;
               (6)  court costs on an offense relating to rules of the
  road, when offense occurs within a school crossing zone (Art.
  102.014, Code of Criminal Procedure) . . . $25;
               (7)  court costs on an offense of passing a school bus
  (Art. 102.014, Code of Criminal Procedure) . . . $25;
               (8)  court costs on an offense of truancy or
  contributing to truancy (Art. 102.014, Code of Criminal Procedure)
  . . . $20;
               (9)  cost for visual recording of intoxication arrest
  before conviction (Art. 102.018, Code of Criminal Procedure) . . .
  $15;
               (10)  cost of certain evaluations (Art. 102.018, Code
  of Criminal Procedure) . . . actual cost;
               (11)  additional costs attendant to certain
  intoxication convictions under Chapter 49, Penal Code, for
  emergency medical services, trauma facilities, and trauma care
  systems (Art. 102.0185, Code of Criminal Procedure) . . . $100;
               (12)  additional costs attendant to certain child
  sexual assault and related convictions, for child abuse prevention
  programs (Art. 102.0186, Code of Criminal Procedure) . . . $100;
               (13)  court cost for DNA testing for certain felonies
  (Art. 102.020(a)(1), Code of Criminal Procedure) . . . $250;
               (14)  court cost for DNA testing for the offense of
  public lewdness or indecent exposure (Art. 102.020(a)(2), Code of
  Criminal Procedure) . . . $50;
               (15)  court cost for DNA testing for certain felonies
  (Art. 102.020(a)(3), Code of Criminal Procedure) . . . $34;
               (16)  if required by the court, a restitution fee for
  costs incurred in collecting restitution installments and for the
  compensation to victims of crime fund (Art. 42.037, Code of
  Criminal Procedure) . . . $12;
               (17)  if directed by the justice of the peace or
  municipal court judge hearing the case, court costs on conviction
  in a criminal action (Art. 45.041, Code of Criminal Procedure)
  . . . part or all of the costs as directed by the judge; [and]
               (18)  costs attendant to convictions under Chapter 49,
  Penal Code, and under Chapter 481, Health and Safety Code, to help
  fund drug court programs established under Chapter 469, Health and
  Safety Code (Art. 102.0178, Code of Criminal Procedure) . . . $60;
  and
               (19)  costs attendant to convictions under Chapter 49,
  Penal Code, and under Chapter 481, Health and Safety Code, for
  certain drug treatment programs and facilities (Art. 102.0179, Code
  of Criminal Procedure) . . . $50.
         SECTION 5.  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 December 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, including the amount of cost savings
  the state realizes through that implementation;
               (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.
         (c)  The comptroller shall verify the findings of the
  department in analyzing the cost savings realized by the state
  through the implementation of Section 15B, Article 42.12, Code of
  Criminal Procedure.  The department may retain the amount of the
  actual savings attributable to implementation of that section, to
  the extent that the savings come from funds appropriated to the
  department and to the extent the department distributed that amount
  to drug treatment programs or facilities that provide a course of
  treatment to defendants under that section. The department may
  transfer savings attributable to implementation of that section
  from the first year of the fiscal biennium to the second year of the
  fiscal biennium, provided that the department uses the full amount
  transferred for distribution to drug treatment programs or
  facilities as described by this subsection.
         SECTION 6.  (a)   In a criminal action under Section
  481.115, 481.1151, 481.116, 481.1161, or 481.121, 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 of this Act,
  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 offense is described by Section 15B(a) of
  that article and 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.  Article 102.0179, Code of Criminal Procedure, as
  added by this Act, applies only to a cost on conviction for an
  offense committed on or after the effective date of this Act. An
  offense committed before the effective date of this Act is covered
  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
  section, an offense was committed before the effective date of this
  Act if any element of the offense occurred before that date.
         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
  December 1, 2014.
         SECTION 9.  This Act takes effect September 1, 2013.
feedback