Bill Text: TX HB4594 | 2019-2020 | 86th Legislature | Introduced


Bill Title: Relating to the punishment for certain possession offenses under the Texas Controlled Substances Act; changing eligibility for and conditions of community supervision.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2019-04-11 - Left pending in committee [HB4594 Detail]

Download: Texas-2019-HB4594-Introduced.html
  86R16623 JSC-F
 
  By: González of Dallas H.B. No. 4594
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the punishment for certain possession offenses under
  the Texas Controlled Substances Act; changing eligibility for and
  conditions of community supervision.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Articles 42A.551(a) and (d), Code of Criminal
  Procedure, are amended to read as follows:
         (a)  Except as otherwise provided by Subsection (b) [or (c)],
  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.
         (d)  On conviction of a state jail felony punished under
  Section 12.35(a), Penal Code, other than a state jail felony listed
  in Subsection (a) or defined as a possession offense under
  Subchapter L-1, and subject to Subsection (e), the judge may:
               (1)  suspend the imposition of the sentence and place
  the defendant on community supervision; or
               (2)  order the sentence to be executed:
                     (A)  in whole; or
                     (B)  in part, with a period of community
  supervision to begin immediately on release of the defendant from
  confinement.
         SECTION 2.  Chapter 42A, Code of Criminal Procedure, is
  amended by adding Subchapter L-1 to read as follows:
  SUBCHAPTER L-1. COMMUNITY SUPERVISION FOR CERTAIN POSSESSION
  OFFENSES
         Art. 42A.581.  DEFINITION. In this subchapter, "possession
  offense" means an offense under Section 481.115, 481.1151, 481.116,
  481.1161, 481.117, 481.118, 481.119(b), 481.121, 483.041(a), or
  485.031, Health and Safety Code, that is punishable as a felony of
  the third degree or state jail felony.
         Art. 42A.582.  PLACEMENT ON COMMUNITY SUPERVISION;
  EXECUTION OF SENTENCE. (a) On conviction of a 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)  for a state jail felony, the defendant has been
  previously convicted of a possession offense; or
               (2)  for a felony of the third degree:
                     (A)  the judge determines by a preponderance of
  the evidence that the defendant:
                           (i)  is a danger to the safety of others; or
                           (ii)  possessed the substance with the
  intent to deliver the substance;
                     (B)  the defendant has been previously convicted
  of a felony offense other than:
                           (i)  a possession offense; or
                           (ii)  a felony offense punished under
  Section 12.44, Penal Code;
                     (C)  the defendant is convicted in the same
  proceeding of an additional felony offense, other than:
                           (i)  a possession offense; or
                           (ii)  a felony offense punished under
  Section 12.44, Penal Code; or
                     (D)  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:
                           (i)  convicted on two or more occasions of a
  possession offense; or
                           (ii)  discharged from a drug court program
  established under Chapter 123, Government Code, after failing to
  successfully complete the program.
         (b)  A judge who makes a determination described by
  Subsection (a)(2)(A) or (D) shall enter the reasons for making that
  determination in the record of the proceeding.
         (c)  The judge may suspend in whole or in part the imposition
  of any fine imposed on a conviction if a defendant is placed on
  community supervision under this subchapter.
         Art. 42A.583.  CONDITIONS OF COMMUNITY SUPERVISION.  (a)  A
  court granting community supervision under this subchapter 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.
         (b)  A course of treatment under Subsection (a)(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.
         (c)  In referring a defendant to a course of treatment under
  Subsection (a)(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.
         (d)  A court granting community supervision under this
  subchapter may require as a condition of that community
  supervision, in addition to any required participation in a course
  of treatment under Subsection (a)(2) and other appropriate
  conditions, that the defendant participate in:
               (1)  vocational training;
               (2)  family counseling;
               (3)  literacy training; or
               (4)  community service.
         Art. 42A.584.  VIOLATION OF CONDITIONS OF COMMUNITY
  SUPERVISION.  (a)  Notwithstanding Article 42A.751(b), if a
  defendant placed on community supervision under this subchapter
  violates the terms of that supervision by committing another
  possession offense or a misdemeanor offense involving the
  possession of a controlled substance or by violating any drug
  treatment-related condition of community 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.
         (b)  A judge who modifies a defendant's conditions of
  community supervision in response to the defendant's commission of
  an offense or violation of a treatment-related condition of
  community supervision under Subsection (a) shall consider imposing
  one or more of the following additional conditions of community
  supervision:
               (1)  intensified drug treatment;
               (2)  vocational training;
               (3)  family counseling;
               (4)  literacy education;
               (5)  community service;
               (6)  intensive supervision; and
               (7)  confinement under Subchapter M 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.
         Art. 42A.585.  DETERMINATION OF BENEFIT OF TREATMENT.  In
  making a determination under this subchapter 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.
         Art. 42A.586.  DISMISSAL.  (a)  After successful completion
  of a term of community supervision imposed under this subchapter,
  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.
         (b)  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 community 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 Article
  42A.701.
         SECTION 3.  Subchapter E-1, Chapter 411, Government Code, is
  amended by adding Section 411.0732 to read as follows:
         Sec. 411.0732.  PROCEDURE FOR COMMUNITY SUPERVISION
  FOLLOWING CONVICTION; SET-ASIDE CONVICTIONS FOR CERTAIN FELONY
  POSSESSION OFFENSES. (a) This section applies only to a person
  who, on conviction of a possession offense, is placed on community
  supervision under Subchapter L-1, Chapter 42A, Code of Criminal
  Procedure, and with respect to whom the conviction is subsequently
  set aside by the court under Article 42A.701(f) of that chapter.
         (b)  Notwithstanding any other provision of this subchapter
  or Subchapter F, a person described by Subsection (a) who satisfies
  the requirements of Section 411.074 may petition the court that
  placed the person on community supervision for an order of
  nondisclosure of criminal history record information under this
  section.
         (c)  After notice to the state, an opportunity for a hearing,
  and a determination that the person is entitled to file the petition
  and that 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.
         (d)  A person may petition the court that placed the person
  on community supervision for an order of nondisclosure of criminal
  history record information under this section only after the fifth
  anniversary of the date the conviction is set aside.
         SECTION 4.  Chapter 509, Government Code, is amended by
  adding Section 509.018 to read as follows:
         Sec. 509.018.  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 felony possession
  offense under Subchapter L-1, Chapter 42A, Code of Criminal
  Procedure.
         (b)  The study and report must include an analysis of:
               (1)  the implementation of Subchapter L-1, Chapter 42A,
  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 Subchapter L-1, Chapter 42A, Code of
  Criminal Procedure;
               (3)  the effect of implementing Subchapter L-1, Chapter
  42A, 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 Subchapter L-1, Chapter 42A, Code of
  Criminal Procedure, compared with other defendants; and
                     (C)  the number of defendants placed on community
  supervision under Subchapter L-1, Chapter 42A, Code of Criminal
  Procedure, who utilize state welfare benefits, compared with other
  defendants; and
               (4)  other effects of or issues with implementing
  Subchapter L-1, Chapter 42A, Code of Criminal Procedure, that are
  identified by the Texas Department of Criminal Justice.
         SECTION 5.  Article 42A.551(c), Code of Criminal Procedure,
  is repealed.
         SECTION 6.  (a)  In a criminal action under Section 481.115,
  481.1151, 481.116, 481.1161, 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 of this Act, the
  defendant, if adjudged guilty, shall be assessed the punishment
  under Subchapter L-1, Chapter 42A, Code of Criminal Procedure, as
  added by this Act, if the offense is a possession offense described
  by Article 42A.581, Code of Criminal Procedure, as added by this
  Act, and the defendant meets the eligibility requirements under
  that subchapter 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 governed by the law in
  effect on the date the offense was committed, and the former law is
  continued in effect for that purpose.
         SECTION 7.  The change in law made by Section 411.0732,
  Government Code, as added by this Act, applies to a person whose
  conviction for a possession offense is set aside under Article
  42A.701(f), Code of Criminal Procedure, on or after the effective
  date of this Act, regardless of whether the offense for which the
  person was convicted was committed before, on, or after the
  effective date of this Act.
         SECTION 8.  The Texas Department of Criminal Justice shall
  submit to the legislature the initial report required by Section
  509.018, Government Code, as added by this Act, not later than
  December 1, 2020.
         SECTION 9.  This Act takes effect September 1, 2019.
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