SB803 - Relating to a hearing for an alleged violation of community supervision by a defendant and the manner in which that defendant is required to appear before the court.

  89R5846 LHC-F     By: West S.B. No. 803       A BILL TO BE ENTITLED   AN ACT   relating to a hearing for an alleged violation of community   supervision by a defendant and the manner in which that defendant is   required to appear before the court.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Article 42A.108, Code of Criminal Procedure, is   amended to read as follows:          Art. 42A.108.  VIOLATION OF CONDITION OF DEFERRED   ADJUDICATION COMMUNITY SUPERVISION; HEARING.  (a)  On violation of   a condition of deferred adjudication community supervision imposed   under Article 42A.104, the defendant may be arrested and detained   or may be issued a summons as provided by [ in ] Article 42A.751.          (b)  The defendant is entitled to a hearing limited to a   determination by the court of whether the court will proceed with an   adjudication of guilt on the original charge.  The court may not   proceed with an adjudication of guilt on the original charge if the   court finds that the only evidence supporting the alleged violation   of a condition of deferred adjudication community supervision is   the uncorroborated results of a polygraph examination.  The   determination to proceed with an adjudication of guilt on the   original charge is reviewable in the same manner as a revocation   hearing conducted under Article 42A.751 [ 42A.751(d) ] in a case in   which the adjudication of guilt was not deferred.          (c)  A court retains jurisdiction to hold a hearing under   Subsection (b) and to proceed with an adjudication of guilt,   regardless of whether the period of deferred adjudication community   supervision imposed on the defendant has expired, if before the   expiration of the supervision period:                (1)  the attorney representing the state files a motion   to proceed with the adjudication; and                (2)  a capias is issued for the arrest of the defendant   or a summons is issued for the defendant in the manner described by   Article 42A.751 .          SECTION 2.  Article 42A.556, Code of Criminal Procedure, is   amended to read as follows:          Art. 42A.556.  SANCTIONS IMPOSED ON MODIFICATION OF   COMMUNITY SUPERVISION.  If in a state jail felony case a defendant   violates a condition of community supervision imposed under this   chapter and after a hearing under Article 42A.751 [ 42A.751(d) ] the   judge modifies the defendant's community supervision, the judge may   impose any sanction permitted by Article 42A.752, except that if   the judge requires a defendant to serve a term of confinement in a   state jail felony facility as a modification of the defendant's   community supervision, the minimum term of confinement is 90 days   and the maximum term of confinement is 180 days.          SECTION 3.  Article 42A.558(a), Code of Criminal Procedure,   is amended to read as follows:          (a)  If in a state jail felony case a defendant violates a   condition of community supervision imposed under this chapter and   after a hearing under Article 42A.751 [ 42A.751(d) ] the judge   revokes the defendant's community supervision, the judge shall   dispose of the case in the manner provided by Article 42A.755.          SECTION 4.  Article 42A.655(d), Code of Criminal Procedure,   is amended to read as follows:          (d)  Notwithstanding any other law, if a defendant is ordered   to make a payment included under Subsection (b), the court shall   reconsider whether the defendant has sufficient resources or income   to make the payment at any hearing held under Article 42A.751   [ 42A.751(d) ].          SECTION 5.  Article 42A.702(g), Code of Criminal Procedure,   is amended to read as follows:          (g)  A court may order that some or all of the time credits to   which a defendant is entitled under this article be forfeited if,   before the expiration of the original period or a reduced period of   community supervision, the court:                (1)  after a hearing under Article 42A.751   [ 42A.751(d) ], finds that a defendant violated one or more   conditions of community supervision; and                (2)  modifies or continues the defendant's period of   community supervision under Article 42A.752 or revokes the   defendant's community supervision under Article 42A.755.          SECTION 6.  Article 42A.751, Code of Criminal Procedure, is   amended by amending Subsections (d) and (l) and adding Subsections   (d-1), (d-2), (d-3), and (d-4) to read as follows:          (d)  If the defendant has not been released on bail as   permitted under Subsection (c), on motion by the defendant, the   judge who ordered the arrest for the alleged violation of a   condition of community supervision shall cause the defendant to be   brought before the judge for a hearing on the alleged violation   within 20 days of the date the motion is filed.           (d-1)     On request of the attorney representing the state or   the defendant's supervision officer or at the judge's discretion,   the judge may issue a summons instead of a warrant or capias for a   violation of any condition of community supervision.   The summons   must be in the same form as the warrant or capias, except that it   must summon the defendant to appear at a stated time and place for a   hearing on the alleged violation before the court that placed the   defendant on community supervision.           (d-2)     A summons issued under Subsection (d-1) must be served   on the defendant by:                 (1)     delivering a copy of the summons to the defendant   personally;                 (2)     leaving the summons at the defendant's residence   with a person of suitable age and discretion who resides there; or                 (3)     mailing the summons to the defendant's last known   address.           (d-3)     If the defendant fails to appear in response to a   summons issued under Subsection (d-1), the judge shall issue a   warrant or capias as otherwise described by this article.           (d-4)  A hearing under this article must be conducted [ After   a hearing ] without a jury .  After the hearing [ , ] the judge may   continue, extend, modify, or revoke the community supervision.          (l)  A court retains jurisdiction to hold a hearing under   this article [ Subsection (d) ] and to revoke, continue, or modify   community supervision, regardless of whether the period of   community supervision imposed on the defendant has expired, if   before the expiration of the supervision period:                (1)  the attorney representing the state files a motion   to revoke, continue, or modify community supervision; and                (2)  a capias is issued for the arrest of the defendant ,   or a summons is issued for the defendant under Subsection (d-1) .          SECTION 7.  Article 42A.752(a), Code of Criminal Procedure,   is amended to read as follows:          (a)  If after a hearing under Article 42A.751 [ 42A.751(d) ] a   judge continues or modifies community supervision after   determining that the defendant violated a condition of community   supervision, the judge may impose any other conditions the judge   determines are appropriate, including:                (1)  a requirement that the defendant perform community   service for a number of hours specified by the court under Article   42A.304, or an increase in the number of hours that the defendant   has previously been required to perform under that article in an   amount not to exceed double the number of hours permitted by that   article;                (2)  an extension of the period of community   supervision, in the manner described by Article 42A.753;                (3)  an increase in the defendant's fine, in the manner   described by Subsection (b); or                (4)  the placement of the defendant in a substance   abuse felony punishment program operated under Section 493.009,   Government Code, if:                      (A)  the defendant is convicted of a felony other   than:                            (i)  a felony under Section 21.11, 22.011,   or 22.021, Penal Code; or                            (ii)  criminal attempt of a felony under   Section 21.11, 22.011, or 22.021, Penal Code; and                      (B)  the judge makes an affirmative finding that:                            (i)  drug or alcohol abuse significantly   contributed to the commission of the offense or violation of a   condition of community supervision, as applicable; and                            (ii)  the defendant is a suitable candidate   for treatment, as determined by the suitability criteria   established by the Texas Board of Criminal Justice under Section   493.009(b), Government Code.          SECTION 8.  Article 42A.755(a), Code of Criminal Procedure,   is amended to read as follows:          (a)  If community supervision is revoked after a hearing   under Article 42A.751 [ 42A.751(d) ], the judge may:                (1)  proceed to dispose of the case as if there had been   no community supervision; or                (2)  if the judge determines that the best interests of   society and the defendant would be served by a shorter term of   confinement, reduce the term of confinement originally assessed to   any term of confinement not less than the minimum prescribed for the   offense of which the defendant was convicted.          SECTION 9.  Article 42A.756, Code of Criminal Procedure, is   amended to read as follows:          Art. 42A.756.  DUE DILIGENCE DEFENSE.  For the purposes of a   hearing under Article 42A.751 [ 42A.751(d) ], it is an affirmative   defense to revocation for an alleged violation based on a failure to   report to a supervision officer as directed or to remain within a   specified place that no supervision officer, peace officer, or   other officer with the power of arrest under a warrant issued by a   judge for that alleged violation contacted or attempted to contact   the defendant in person at the defendant's last known residence   address or last known employment address, as reflected in the files   of the department serving the county in which the order of community   supervision was entered.          SECTION 10.  Article 42A.757(b), Code of Criminal Procedure,   is amended to read as follows:          (b)  At a hearing at which the defendant is provided the same   rights as are provided to a defendant at a hearing under Article   42A.751 [ 42A.751(d) ], the judge may extend the defendant's   supervision period for a period not to exceed 10 additional years if   the judge determines that:                (1)  the defendant has not sufficiently demonstrated a   commitment to avoid future criminal behavior; 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