CODE OF CRIMINAL PROCEDURE
CHAPTER 42. JUDGMENT AND SENTENCE
Art. 42.01. [766] [853] [831] Judgment
Sec. 1. A judgment is the written declaration of the court signed by
the trial judge and entered of record showing the conviction or
acquittal of the defendant. The sentence served shall be based on
the information contained in the judgment. The judgment should
reflect:
1. The title and number of the case;
2. That the case was called and the parties appeared, naming the
attorney for the state, the defendant, and the attorney for the
defendant, or, where a defendant is not represented by counsel,
that the defendant knowingly, intelligently, and voluntarily
waived the right to representation by counsel;
3. The plea or pleas of the defendant to the offense charged;
4. Whether the case was tried before a jury or a jury was waived;
5. The submission of the evidence, if any;
6. In cases tried before a jury that the jury was charged by the
court;
7. The verdict or verdicts of the jury or the finding or findings of
the court;
8. In the event of a conviction that the defendant is adjudged
guilty of the offense as found by the verdict of the jury or the
finding of the court, and that the defendant be punished in
accordance with the jury's verdict or the court's finding as to the
proper punishment;
9. In the event of conviction where death or any punishment is
assessed that the defendant be sentenced to death, a term of
confinement or community supervision, or to pay a fine, as the case
may be;
10. In the event of conviction where the imposition of sentence is
suspended and the defendant is placed on community supervision,
setting forth the punishment assessed, the length of community
supervision, and the conditions of community supervision;
11. In the event of acquittal that the defendant be discharged;
12. The county and court in which the case was tried and, if there
was a change of venue in the case, the name of the county in which
the prosecution was originated;
13. The offense or offenses for which the defendant was convicted;
14. The date of the offense or offenses and degree of offense for
which the defendant was convicted;
15. The term of sentence;
16. The date judgment is entered;
17. The date sentence is imposed;
18. The date sentence is to commence and any credit for time served;
19. The terms of any order entered pursuant to Article 42.08 of this
code that the defendant's sentence is to run cumulatively or
concurrently with another sentence or sentences;
20. The terms of any plea bargain;
21. Affirmative findings entered pursuant to Subdivision (2) of
Subsection (a) of Section 3g of Article 42.12 of this code;
22. The terms of any fee payment ordered under Articles 37.072 and
42.151 of this code;
23. The defendant's thumbprint taken in accordance with Article
38.33 of this code;
24. In the event that the judge orders the defendant to repay a
reward or part of a reward under Articles 37.073 and 42.152 of this
code, a statement of the amount of the payment or payments required
to be made;
25. In the event that the court orders restitution to be paid to the
victim, a statement of the amount of restitution ordered and:
(A) the name of the victim and the permanent mailing address of the
victim at the time of the judgment; or
(B) if the court determines that the inclusion of the victim's name
and address in the judgment is not in the best interest of the
victim, the name and address of a person or agency that will accept
and forward restitution payments to the victim;
26. In the event that a presentence investigation is required by
Section 9(a), (b), (h), or (i), Article 42.12 of this code, a
statement that the presentence investigation was done according to
the applicable provision; and
27. In the event of conviction of an offense for which registration
as a sex offender is required under Chapter 62, a statement that the
registration requirement of that chapter applies to the defendant
and a statement of the age of the victim of the offense.
Sec. 2. The judge may order the prosecuting attorney, or the
attorney or attorneys representing any defendant, or the court
clerk under the supervision of an attorney, to prepare the
judgment, or the court may prepare the same.
Sec. 3. The provisions of this article shall apply to both felony
and misdemeanor cases.
Sec. 4. The Office of Court Administration of the Texas Judicial
System shall promulgate a standardized felony judgment form that
conforms to the requirements of Section 1 of this article.
Sec. 5. In addition to the information described by Section 1 of
this article, the judgment should reflect affirmative findings
entered pursuant to Article 42.013 of this code.
Sec. 6. In addition to the information described by Section 1 of
this article, the judgment should reflect affirmative findings
entered pursuant to Article 42.014 of this code.
Sec. 7. In addition to the information described by Section 1, the
judgment should reflect affirmative findings entered pursuant to
Article 42.015.
Sec. 8. In addition to the information described by Section 1, the
judgment should reflect affirmative findings entered pursuant to
Article 42.017.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1975,
64th Leg., p. 245, ch. 95, Sec. 1, eff. Sept. 1, 1975.
Amended by Acts 1981, 67th Leg., p. 809, ch. 291, Sec. 111, eff.
Sept. 1, 1981. Sec. 1 amended by Acts 1985, 69th Leg., ch. 344, Sec.
1, eff. Jan. 1, 1986; Sec. 4 added by Acts 1985, 69th Leg., ch. 344,
Sec. 2, eff. June 10, 1985; Sec. 1 amended by Acts 1987, 70th Leg.,
ch. 110, Sec. 2, eff. Aug. 31, 1987; Acts 1989, 71st Leg., ch. 360,
Sec. 2, eff. Sept. 1, 1989; Acts 1989, 71st Leg., ch. 603, Sec. 2,
eff. Sept. 1, 1989; Acts 1989, 71st Leg., ch. 611, Sec. 2, eff.
Sept. 1, 1989; Acts 1989, 71st Leg., ch. 806, Sec. 1, eff. Sept. 1,
1989; Sec. 1 amended by Acts 1991, 72nd Leg., ch. 16, Sec. 4.04,
eff. Aug. 26, 1991; Sec. 1 amended by Acts 1991, 72nd Leg., 2nd
C.S., ch. 10, Sec. 7.02, eff. Dec. 1, 1991. Amended by Acts 1993,
73rd Leg., ch. 900, Sec. 5.03, eff. Sept. 1, 1993. Sec. 5 added by
Acts 1993, 73rd Leg., ch. 900, Sec. 9.02, eff. Sept. 1, 1993; Sec. 6
added by Acts 1993, 73rd Leg., ch. 987, Sec. 4, eff. Sept. 1, 1993;
Sec. 1 amended by Acts 1995, 74th Leg., ch. 258, Sec. 9, eff. Sept.
1, 1995; Sec. 1 amended by Acts 1997, 75th Leg., ch. 668, Sec. 2,
eff. Sept. 1, 1997; Sec. 2 amended by Acts 1999, 76th Leg., ch. 580,
Sec. 6, eff. Sept. 1, 1999; Sec. 7 added by Acts 1999, 76th Leg.,
ch. 1193, Sec. 1, eff. Sept. 1, 1999; Sec. 7 added by Acts 1999,
76th Leg., ch. 1415, Sec. 2, eff. Sept. 1, 1999; Sec. 8 added by
Acts 2001, 77th Leg., ch. 1159, Sec. 1, eff. Sept. 1, 2001.
Art. 42.011. Judgment affecting an officer or jailer
If a person licensed under Chapter 415, Government Code, is charged
with the commission of a felony and a court that knows the person is
licensed under that chapter convicts the person or places the
person on community supervision, the clerk of the court shall send
the Commission on Law Enforcement Officer Standards and Education,
by mail or electronically, the license number of the person and a
certified copy of the court's judgment reflecting that the person
has been convicted or placed on community supervision.
Added by Acts 1995, 74th Leg., ch. 538, Sec. 10, eff. Sept. 1, 1995.
Art. 42.012. Finding That Controlled Substance Used to Commit
Offense
In the punishment phase of the trial of an offense under Chapter 29,
Chapter 31, or Title 5, Penal Code, if the court determines beyond a
reasonable doubt that the defendant administered or provided a
controlled substance to the victim of the offense with the intent of
facilitating the commission of the offense, the court shall make an
affirmative finding of that fact and enter the affirmative finding
in the judgment of that case.
Added by Acts 1999, 76th Leg., ch. 417, Sec. 2(b), eff. Sept. 1,
1999. Renumbered from Vernon's Ann. C.C.P. art. 42.015 by Acts
2001, 77th Leg., ch. 1420, Sec. 21.001(9), eff. Sept. 1, 2001.
Art. 42.013. Finding of family violence
Finding of family violence
Art. 42.013. In the trial of an offense under Title 5, Penal Code,
if the court determines that the offense involved family violence,
as defined by Section 71.004, Family Code, the court shall make an
affirmative finding of that fact and enter the affirmative finding
in the judgment of the case.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 9.01, eff. Sept. 1,
1993. Amended by Acts 2003, 78th Leg., ch. 1276, Sec. 7.002(h),
eff. Sept. 1, 2003.
Art. 42.014. Finding That Offense Was Committed Because of Bias or
Prejudice
(a) In the trial of an offense under Title 5, Penal Code, or Section
28.02, 28.03, or 28.08, Penal Code, the judge shall make an
affirmative finding of fact and enter the affirmative finding in
the judgment of the case if at the guilt or innocence phase of the
trial, the judge or the jury, whichever is the trier of fact,
determines beyond a reasonable doubt that the defendant
intentionally selected the person against whom the offense was
committed or intentionally selected property damaged or affected as
a result of the offense because of the defendant's bias or prejudice
against a group identified by race, color, disability, religion,
national origin or ancestry, age, gender, or sexual preference.
(b) The sentencing judge may, as a condition of punishment, require
attendance in an educational program to further tolerance and
acceptance of others.
(c) In this article, "sexual preference" has the following meaning
only: a preference for heterosexuality, homosexuality, or
bisexuality.
Added by Acts 1993, 73rd Leg., ch. 987, Sec. 5, eff. Sept. 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 318, Sec. 50, eff. Sept. 1,
1995; Acts 2001, 77th Leg., ch. 85, Sec. 1.02, eff. Sept. 1, 2001.
Art. 42.015. Finding of Age of Victim
In the trial of an offense under Section 20.02, 20.03, or 20.04,
Penal Code, or an attempt, conspiracy, or solicitation to commit
one of those offenses, the judge shall make an affirmative finding
of fact and enter the affirmative finding in the judgment in the
case if the judge determines that the victim or intended victim was
younger than 17 years of age at the time of the offense.
Added by Acts 1999, 76th Leg., ch. 1193, Sec. 2, eff. Sept. 1, 1999;
Acts 1999, 76th Leg., ch. 1415, Sec. 3, eff. Sept. 1, 1999.
Art. 42.016. Special Driver's License or Identification
Requirements for Certain Sex Offenders
If a person is convicted of, receives a grant of deferred
adjudication for, or is adjudicated as having engaged in delinquent
conduct based on a violation of an offense for which a conviction or
adjudication requires registration as a sex offender under Chapter
62, as added by Chapter 668, Acts of the 75th Legislature, Regular
Session, 1997, the court shall:
(1) issue an order requiring the Texas Department of Public Safety
to include in any driver's license record or personal
identification certificate record maintained by the department for
the person an indication that the person is subject to the
registration requirements of Chapter 62, as added by Chapter 668,
Acts of the 75th Legislature, Regular Session, 1997;
(2) require the person to apply to the Texas Department of Public
Safety in person for an original or renewal driver's license or
personal identification certificate not later than the 30th day
after the date the person is released or the date the department
sends written notice to the person of the requirements of Article
62.065, as applicable, and to annually renew the license or
certificate;
(3) notify the person of the consequence of the conviction or order
of deferred adjudication as it relates to the order issued under
this article; and
(4) send to the Texas Department of Public Safety a copy of the
record of conviction, a copy of the order granting deferred
adjudication, or a copy of the juvenile adjudication, as
applicable, and a copy of the order issued under this article.
Added by Acts 1999, 76th Leg., ch. 1401, Sec. 1, eff. Sept. 1, 2000.
Art. 42.017. Finding Regarding Age-Based Offense
In the trial of an offense under Section 21.11, 22.011, 22.021, or
43.25, Penal Code, the judge shall make an affirmative finding of
fact and enter the affirmative finding in the judgment in the case
if the judge determines that:
(1) at the time of the offense, the defendant was younger than 19
years of age and the victim was at least 13 years of age; and
(2) the conviction is based solely on the ages of the defendant and
the victim or intended victim at the time of the offense.
Added by Acts 2001, 77th Leg., ch. 1159, Sec. 2, eff. Sept. 1, 2001.
Art. 42.018. Notice Provided by Clerk of Court
(a) This article applies only:
(1) to conviction or deferred adjudication granted on the basis of:
(A) an offense under Title 5, Penal Code; or
(B) an offense on conviction of which a defendant is required to
register as a sex offender under Chapter 62; and
(2) if the victim of the offense is under 18 years of age.
(b) Not later than the fifth day after the date a person who holds a
certificate issued under Subchapter B, Chapter 21, Education Code,
is convicted or granted deferred adjudication on the basis of an
offense, the clerk of the court in which the conviction or deferred
adjudication is entered shall provide to the State Board for
Educator Certification written notice of the person's conviction or
deferred adjudication, including the offense on which the
conviction or deferred adjudication was based.
Added by Acts 2003, 78th Leg., ch. 920, Sec. 2, eff. June 20, 2003.
Art. 42.019. Motor Fuel Theft
(a) A judge shall enter an affirmative finding in the judgment in a
case if the judge or jury, whichever is the finder of fact,
determines beyond a reasonable doubt in the guilt or innocence
phase of the trial of an offense under Section 31.03, Penal Code,
that the defendant, in committing the offense:
(1) dispensed motor fuel into the fuel tank of a motor vehicle on
the premises of an establishment at which motor fuel is offered for
retail sale; and
(2) after dispensing the motor fuel, left the premises of the
establishment without paying the establishment for the motor fuel.
(b) If a judge enters an affirmative finding as required by
Subsection (a) and determines that the defendant has previously
been convicted of an offense the judgment for which contains an
affirmative finding under Subsection (a), the judge shall enter a
special affirmative finding in the judgment in the case.
Added by Acts 2001, 77th Leg., ch. 359, Sec. 1, eff. Sept. 1, 2001.
Art. 42.02. [767] [854] [832] Sentence
The sentence is that part of the judgment, or order revoking a
suspension of the imposition of a sentence, that orders that the
punishment be carried into execution in the manner prescribed by
law.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Amended by Acts 1981, 67th Leg., p. 809, ch. 291, Sec. 112, eff.
Sept. 1, 1981; Acts 1993, 73rd Leg., ch. 900, Sec. 5.03, eff. Sept.
1, 1993.
Art. 42.023. Judge may consider alternative sentencing
Before pronouncing sentence on a defendant convicted of a criminal
offense, the judge may consider whether the defendant should be
committed for care and treatment under Section 462.081, Health and
Safety Code.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 5.03, eff. Sept. 1,
1993.
Art. 42.03. [768] [855] [833] Pronouncing sentence; time; credit
for time spent in jail between arrest and sentence or pending appeal
Sec. 1. (a) Except as provided in Article 42.14, sentence shall be
pronounced in the defendant's presence.
(b) The court shall permit a victim, close relative of a deceased
victim, or guardian of a victim, as defined by Article 56.01 of this
code, to appear in person to present to the court and to the
defendant a statement of the person's views about the offense, the
defendant, and the effect of the offense on the victim. The victim,
relative, or guardian may not direct questions to the defendant
while making the statement. The court reporter may not transcribe
the statement. The statement must be made:
(1) after punishment has been assessed and the court has determined
whether or not to grant community supervision in the case;
(2) after the court has announced the terms and conditions of the
sentence; and
(3) after sentence is pronounced.
Sec. 2. (a) In all criminal cases the judge of the court in which the
defendant was convicted shall give the defendant credit on his
sentence for the time that the defendant has spent in jail in said
cause, other than confinement served as a condition of community
supervision, from the time of his arrest and confinement until his
sentence by the trial court.
(b) In all revocations of a suspension of the imposition of a
sentence the judge shall enter the restitution or reparation due
and owing on the date of the revocation.
Sec. 3. If a defendant appeals his conviction, is not released on
bail, and is retained in a jail as provided in Section 7, Article
42.09, pending his appeal, the judge of the court in which the
defendant was convicted shall give the defendant credit on his
sentence for the time that the defendant has spent in jail pending
disposition of his appeal. The court shall endorse on both the
commitment and the mandate from the appellate court all credit
given the defendant under this section, and the institutional
division of the Texas Department of Criminal Justice shall grant
the credit in computing the defendant's eligibility for parole and
discharge.
Sec. 4. When a defendant who has been sentenced to imprisonment in
the institutional division of the Texas Department of Criminal
Justice has spent time in jail pending trial and sentence or pending
appeal, the judge of the sentencing court shall direct the sheriff
to attach to the commitment papers a statement assessing the
defendant's conduct while in jail.
Secs. 5 and 6. Repealed by Acts 1989, 71st Leg., ch. 785, Sec. 4.24,
eff. Sept. 1, 1989.
Secs. 7 to 8. Deleted by Acts 1993, 73rd Leg., ch. 900, Sec. 5.03,
eff. Sept. 1, 1993.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1967,
60th Leg., p. 1743, ch. 659, Sec. 28, eff. Aug. 28, 1967; Acts 1973,
63rd Leg., p. 205, ch. 91, Sec. 1, eff. Aug. 27, 1973; Acts 1977,
65th Leg., p. 1036, ch. 382, Sec. 1, eff. Aug. 29, 1977; Acts 1977,
65th Leg., p. 2076, ch. 827, Sec. 1, eff. Aug. 29, 1977.
Sec. 1 amended by Acts 1981, 67th Leg., p. 809, ch. 291, Sec. 113,
eff. Sept. 1, 1981; Sec. 2 amended by Acts 1981, 67th Leg., p. 353,
ch. 141, Sec. 1, eff. Sept. 1, 1981; Sec. 5 amended by Acts 1981,
67th Leg., p. 2418, ch. 616, Sec. 1, eff. Aug. 31, 1981; Sec. 5(a)
amended by Acts 1983, 68th Leg., p. 4666, ch. 809, Sec. 1, eff. Aug.
29, 1983; Sec. 6 added by Acts 1983, 68th Leg., p. 3792, ch. 586,
Sec. 4, eff. Aug. 29, 1983; Sec. 5(b), (d) amended by Acts 1985,
69th Leg., ch. 232, Sec. 13, eff. Sept. 1, 1985; Sec. 4 amended by
Acts 1989, 71st Leg., ch. 785, Sec. 4.06, eff. June 15, 1989; Sec. 7
added by Acts 1989, 71st Leg., ch. 848, Sec. 1, eff. June 14, 1989;
Acts 1989, 71st Leg., ch. 1040, Sec. 1, eff. Aug. 28, 1989; Sec. 8
added by Acts 1989, 71st Leg., ch. 1040, Sec. 2, eff. Aug. 28, 1989;
Sec. 1 amended by Acts 1991, 72nd Leg., ch. 278, Sec. 1, eff. June 5,
1991; Sec. 2(a) amended by Acts 1991, 72nd Leg., 2nd C.S., ch. 10,
Sec. 14.01, eff. Oct. 1, 1991; Sec. 7(a), (b), (d) amended by Acts
1991, 72nd Leg., 2nd C.S., ch. 10, Sec. 14.02, eff. Oct. 1, 1991;
Sec. 7A amended by Acts 1991, 72nd Leg., ch. 16, Sec. 4.05, eff.
Aug. 26, 1991; Acts 1991, 72nd Leg., 2nd C.S., ch. 10, Sec. 14.03,
eff. Oct. 1, 1991; Sec. 8(a) amended by Acts 1991, 72nd Leg., 2nd
C.S., ch. 10, Sec. 14.04, eff. Oct. 1, 1991; Sec. 8(f) added by Acts
1991, 72nd Leg., 2nd C.S., ch. 10, Sec. 8.02, eff. Dec. 1, 1991;
Acts 1991, 72nd Leg., 2nd C.S., ch. 10, Sec. 15.03, eff. Oct. 1,
1991; Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 5.03, eff.
Sept. 1, 1993; Sec. 1(b) amended by Acts 1995, 74th Leg., ch. 556,
Sec. 1, eff. Sept. 1, 1995; Sec. 8(g) repealed by Acts 2003, 78th
Leg., ch. 406, Sec. 2, eff. Sept. 1, 2003.
Art. 42.031. Work release program
Sec. 1. (a) The sheriff of each county may attempt to secure
employment for each defendant sentenced to the county jail work
release program under Article 42.034 of this code and each
defendant confined in the county jail awaiting transfer to the
institutional division of the Texas Department of Criminal Justice.
(b) The employer of a defendant participating in a program under
this article shall pay the defendant's salary to the sheriff. The
sheriff shall deposit the salary into a special fund to be given to
the defendant on his release after deducting:
(1) the cost to the county for the defendant's confinement during
the pay period based on the average daily cost of confining
defendants in the county jail, as determined by the commissioners
court of the county;
(2) support of the defendant's dependents; and
(3) restitution to the victims of an offense committed by the
defendant.
(c) At the time of sentencing or at a later date, the court
sentencing a defendant may direct the sheriff not to deduct the cost
described under Subdivision (1) of Subsection (b) of this section
or to deduct only a specified portion of the cost if the court
determines that the full deduction would cause a significant
financial hardship to the defendant's dependents.
(d) If the sheriff does not find employment for a defendant who
would otherwise be sentenced to imprisonment in the institutional
division, the sheriff shall:
(1) transfer the defendant to the sheriff of a county who agrees to
accept the defendant as a participant in the county jail work
release program; or
(2) retain the defendant in the county jail for employment as soon
as possible in a jail work release program.
Sec. 2. A defendant participating in a program under this article
shall be confined in the county jail or in another facility
designated by the sheriff at all times except for:
(1) time spent at work and traveling to or from work; and
(2) time spent attending or traveling to or from an education or
rehabilitation program approved by the sheriff.
Sec. 3. (a) The sheriff of each county shall classify each felon
serving a sentence in the county jail work release program for the
purpose of awarding good conduct time credit in the same manner as
inmates of the institutional division of the Texas Department of
Criminal Justice are classified under Chapter 498, Government Code,
and shall award good conduct time in the same manner as the director
of the department does in that chapter.
(b) If the sheriff determines that the defendant is conducting
himself in a manner that is dangerous to inmates in the county jail
or to society as a whole, the sheriff may remove the defendant from
participation in the program pending a hearing before the
sentencing court. At the hearing, if the court determines that the
sheriff's assessment of the defendant's conduct is correct, the
court may terminate the defendant's participation in the program
and order the defendant to the term of imprisonment that the
defendant would have received had he not entered the program. If
the court determines that the sheriff's assessment is incorrect,
the court shall order the sheriff to readmit the defendant to the
program. A defendant shall receive as credit toward his sentence
any time served as a participant in the program.
Added by Acts 1989, 71st Leg., ch. 2, Sec. 5.03(a), eff. Aug. 28,
1989. Sec. 1 amended by Acts 1991, 72nd Leg., 2nd C.S., ch. 10, Sec.
14.10, eff. Oct. 1, 1991; Sec. 3 amended by Acts 1991, 72nd Leg.,
2nd C.S., ch. 10, Sec. 14.11, eff. Oct. 1, 1991. Amended by Acts
1993, 73rd Leg., ch. 900, Sec. 5.03, eff. Sept. 1, 1993.
Art. 42.032. Good conduct
Sec. 1. To encourage county jail discipline, a distinction may be
made to give orderly, industrious, and obedient defendants the
comforts and privileges they deserve. The reward for good conduct
may consist of a relaxation of strict county jail rules and
extension of social privileges consistent with proper discipline.
Sec. 2. The sheriff in charge of each county jail may grant
commutation of time for good conduct, industry, and obedience. A
deduction not to exceed one day for each day of the original
sentence actually served may be made for the term or terms of
sentences if a charge of misconduct has not been sustained against
the defendant.
Sec. 3. This article applies whether or not the judgment of
conviction is a fine or jail sentence or both, but the deduction in
time may not exceed one-third of the original sentence as to fines
and court costs assessed in the judgment of conviction.
Sec. 4. A defendant serving two or more cumulative sentences shall
be allowed commutation as if the sentences were one sentence.
Sec. 5. Any part or all of the commutation accrued under this
article may be forfeited and taken away by the sheriff:
(1) for a sustained charge of misconduct in violation of any rule
known to the defendant, including escape or attempt to escape, if
the sheriff has complied with discipline proceedings as approved by
the Commission on Jail Standards; or
(2) on receipt by the sheriff of a certified copy of a final order of
a state or federal court that dismisses as frivolous or malicious a
lawsuit brought by a defendant while the defendant was in the
custody of the sheriff.
Sec. 6. Except for credit earned by a defendant under Article 43.10,
no other time allowance or credits in addition to the commutation of
time under this article may be deducted from the term or terms of
sentences.
Sec. 7. The sheriff shall keep a conduct record in card or ledger
form and a calendar card on each defendant showing all forfeitures
of commutation time and the reasons for the forfeitures.
Added by Acts 1989, 71st Leg., ch. 2, Sec. 5.04(a), eff. Aug. 28,
1989. Amended by Acts 1991, 72nd Leg., 2nd C.S., ch. 10, Sec.
14.05, eff. Oct. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 5.03,
eff. Sept. 1, 1993; Sec. 5 amended by Acts 1999, 76th Leg., ch. 655,
Sec. 2(a), eff. June 18, 1999.
Art. 42.033. Sentence to serve time during off-work hours
(a) Where jail time has been awarded to a person sentenced for a
misdemeanor or sentenced to confinement in the county jail for a
felony or when a defendant is serving a period of confinement as a
condition of community supervision, the trial judge, at the time of
the pronouncement of sentence or at any time while the defendant is
serving the sentence or period of confinement, when in the judge's
discretion the ends of justice would best be served, may permit the
defendant to serve the defendant's sentence or period of
confinement intermittently during his off-work hours or on
weekends. The judge may require bail of the defendant to ensure the
faithful performance of the sentence or period of confinement. The
judge may attach conditions regarding the employment, travel, and
other conduct of the defendant during the performance of such a
sentence or period of confinement.
(b) The court may impose as a condition to permitting a defendant to
serve the jail time assessed or period of confinement
intermittently an additional requirement that the defendant make
any of the following payments to the court, agencies, or persons, or
that the defendant execute a letter and direct it to the defendant's
employer directing the employer to deduct from the defendant's
salary an amount directed by the court, which is to be sent by the
employer to the clerk of the court. The money received by the court
under this section may be used to pay the following expenses as
directed by the court:
(1) the support of the defendant's dependents, if necessary;
(2) the defendant's documented personal, business, and travel
expenses;
(3) reimbursement of the general fund of the county for the
maintenance of the defendant in jail; and
(4) installment payments on restitution, fines, and court costs
ordered by the court.
(c) The condition imposed under Subsection (b) of this article is
not binding on an employer, except that income withheld for child
support is governed by Chapter 158, Family Code.
(d) The court may permit the defendant to serve the defendant's
sentence or period of confinement intermittently in order for the
defendant to continue employment if the court imposes confinement
for failure to pay a fine or court costs, as punishment for criminal
nonsupport under Section 25.05, Penal Code, or for contempt of a
court order for periodic payments for the support of a child.
(e) The court may permit the defendant to seek employment or obtain
medical, psychological, or substance abuse treatment or counseling
or obtain training or needed education under the same terms and
conditions that apply to employment under this article.
Added by Acts 1989, 71st Leg., ch. 785, Sec. 4.07, eff. Sept. 1,
1989. Subsecs. (a), (b), (d) amended by Acts 1991, 72nd Leg., 2nd
C.S., ch. 10, Sec. 14.06, eff. Oct. 1, 1991. Amended by Acts 1993,
73rd Leg., ch. 900, Sec. 5.03, eff. Sept. 1, 1993. Subsec. (c)
amended by Acts 1997, 75th Leg., ch. 165, Sec. 7.03, eff. Sept. 1,
1997.
Art. 42.034. County jail work release program
(a) If jail time has been awarded to a person sentenced for a
misdemeanor or sentenced to confinement in the county jail for a
felony, the trial judge at the time of pronouncement of sentence or
at any time while the defendant is serving the sentence, when in the
judge's discretion the ends of justice would best be served, may
require the defendant to serve an alternate term for the same period
of time in the county jail work release program of the county in
which the offense occurred, if the person is classified by the
sheriff as a low-risk offender under the classification system
developed by the Commission on Jail Standards under Section
511.009, Government Code.
(b) The sheriff shall provide a classification report for a
defendant to a judge as necessary so that the judge can determine
whether to require the defendant to participate in the work release
program under this article.
(c) A defendant sentenced under this article who would otherwise be
sentenced to confinement in jail may earn good conduct credit in the
same manner as provided by Article 42.032 of this code, but only
while actually confined.
Added by Acts 1989, 71st Leg., ch. 785, Sec. 4.08, eff. Sept. 1,
1989. Subsecs. (a), (b) amended by Acts 1991, 72nd Leg., 2nd C.S.,
ch. 10, Sec. 14.07, eff. Oct. 1, 1991. Amended by Acts 1993, 73rd
Leg., ch. 900, Sec. 5.03, eff. Sept. 1, 1993; Acts 1995, 74th Leg.,
ch. 722, Sec. 1, eff. Sept. 1, 1995.
Art. 42.035. Electronic monitoring; house arrest
(a) A court in a county served by a community supervision and
corrections department that has an electronic monitoring program
approved by the community justice assistance division of the Texas
Department of Criminal Justice may require a defendant to serve all
or part of a sentence of confinement in county jail by submitting to
electronic monitoring rather than being confined in the county
jail.
(b) A judge, at the time of the pronouncement of a sentence of
confinement or at any time while the defendant is serving the
sentence, on the judge's own motion or on the written motion of the
defendant, may permit the defendant to serve the sentence under
house arrest, including electronic monitoring and any other
conditions the court chooses to impose, during the person's
off-work hours. The judge may require bail of the defendant to
ensure the faithful performance of the sentence.
(c) The court may require the defendant to pay to the community
supervision and corrections department or the county any reasonable
cost incurred because of the defendant's participation in the house
arrest program, including the cost of electronic monitoring.
(d) A defendant who submits to electronic monitoring or
participates in the house arrest program under this section
discharges a sentence of confinement without deductions, good
conduct time credits, or commutations.
Added by Acts 1989, 71st Leg., ch. 785, Sec. 4.09, eff. Sept. 1,
1989. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 5.03, eff.
Sept. 1, 1993.
Art. 42.036. Community service
(a) A court may require a defendant, other than a defendant
convicted of an offense under Sections 49.04-49.08, Penal Code, to
serve all or part of a sentence of confinement or period of
confinement required as a condition of community supervision in
county jail by performing community service rather than by being
confined in county jail unless the sentence of confinement was
imposed by the jury in the case.
(b) In its order requiring a defendant to participate in community
service work, the court must specify:
(1) the number of hours the defendant is required to work; and
(2) the entity or organization for which the defendant is required
to work.
(c) The court may order the defendant to perform community service
work under this article only for a governmental entity or a
nonprofit organization that provides services to the general public
that enhance social welfare and the general well-being of the
community. A governmental entity or nonprofit organization that
accepts a defendant under this section to perform community service
must agree to supervise the defendant in the performance of the
defendant's work and report on the defendant's work to the community
supervision and corrections department or court-related services
office.
(d) The court may require bail of a defendant to ensure the
defendant's faithful performance of community service and may
attach conditions to the bail as it determines are proper.
(e) A court may not order a defendant who is employed to perform
more than 16 hours per week of community service under this article
unless the court determines that requiring the defendant to work
additional hours does not work a hardship on the defendant or the
defendant's dependents. A court may not order a defendant who is
unemployed to perform more than 32 hours per week of community
service under this article, but may direct the defendant to use the
remaining hours of the week to seek employment.
(f) A defendant is considered to have served one day in jail for
each eight hours of community service performed under this article.
(g) Deleted by Acts 1993, 73rd Leg., ch. 900, Sec. 5.03, eff. Sept.
1, 1993.
(h) Repealed by Acts 1995, 74th Leg., ch. 76, Sec. 3.14, eff. Sept.
1, 1995.
Added by Acts 1989, 71st Leg., ch. 785, Sec. 4.10, eff. Sept. 1,
1989. Subsec. (f) amended by Acts 1990, 71st Leg., 6th C.S., ch.
25, Sec. 27, eff. June 18, 1990; Subsec. (a) amended by Acts 1991,
72nd Leg., 2nd C.S., ch. 10, Sec. 14.08, eff. Oct. 1, 1991; Subsec.
(h) added by Acts 1991, 72nd Leg., 2nd C.S., ch. 10, Sec. 15.01,
eff. Oct. 1, 1991; Subsec. (h) amended by Acts 1993, 73rd Leg., ch.
201, Sec. 2, eff. Aug. 30, 1993. Amended by Acts 1993, 73rd Leg.,
ch. 900, Sec. 5.03, eff. Sept. 1, 1993; Subsec. (h) repealed by
Acts 1995, 74th Leg., ch. 76, Sec. 3.14, eff. Sept. 1, 1995.
Art. 42.037. Restitution
(a) In addition to any fine authorized by law, the court that
sentences a defendant convicted of an offense may order the
defendant to make restitution to any victim of the offense. If the
court does not order restitution or orders partial restitution
under this subsection, the court shall state on the record the
reasons for not making the order or for the limited order.
(b)(1) If the offense results in damage to or loss or destruction of
property of a victim of the offense, the court may order the
defendant:
(A) to return the property to the owner of the property or someone
designated by the owner; or
(B) if return of the property is impossible or impractical or is an
inadequate remedy, to pay an amount equal to the greater of:
(i) the value of the property on the date of the damage, loss, or
destruction; or
(ii) the value of the property on the date of sentencing, less the
value of any part of the property that is returned on the date the
property is returned.
(2) If the offense results in bodily injury to a victim, the court
may order the defendant to do any one or more of the following:
(A) pay an amount equal to the cost of necessary medical and related
professional services and devices relating to physical,
psychiatric, and psychological care, including nonmedical care and
treatment rendered in accordance with a method of healing
recognized by the law of the place of treatment;
(B) pay an amount equal to the cost of necessary physical and
occupational therapy and rehabilitation; or
(C) reimburse the victim for income lost by the victim as a result
of the offense.
(3) If the offense results in the death of a victim, the court may,
in addition to an order under Subdivision (2) of this subsection,
order the defendant to pay an amount equal to the cost of necessary
funeral and related services.
(4) If the victim or the victim's estate consents, the court may, in
addition to an order under Subdivision (2) of this subsection,
order the defendant to make restitution by performing services
instead of by paying money or make restitution to a person or
organization designated by the victim or the estate.
(c) The court, in determining whether to order restitution and the
amount of restitution, shall consider:
(1) the amount of the loss sustained by any victim as a result of the
offense;
(2) the financial resources of the defendant;
(3) the financial needs and earning ability of the defendant and the
defendant's dependents; and
(4) other factors the court deems appropriate.
(d) If the court orders restitution under this article and the
victim is deceased the court shall order the defendant to make
restitution to the victim's estate.
(e) The court shall impose an order of restitution that is as fair
as possible to the victim. The imposition of the order may not
unduly complicate or prolong the sentencing process.
(f)(1) The court may not order restitution for a loss for which the
victim has received or will receive compensation. The court may, in
the interest of justice, order restitution to any person who has
compensated the victim for the loss to the extent the person paid
compensation. An order of restitution shall require that all
restitution to a victim be made before any restitution to any other
person is made under the order.
(2) Any amount recovered by a victim from a person ordered to pay
restitution in a federal or state civil proceeding is reduced by any
amount previously paid to the victim by the person under an order of
restitution.
(g)(1) The court may require a defendant to make restitution under
this article within a specified period or in specified
installments.
(2) The end of the period or the last installment may not be later
than:
(A) the end of the period of probation, if probation is ordered;
(B) five years after the end of the term of imprisonment imposed, if
the court does not order probation; or
(C) five years after the date of sentencing in any other case.
(3) If the court does not provide otherwise, the defendant shall
make restitution immediately.
(4) Except as provided by Subsection (n), the order of restitution
must require the defendant to make restitution directly to the
victim or other person eligible for restitution under this article
or to deliver the amount or property due as restitution to a
community supervision and corrections department for transfer to
the victim or person.
(h) If a defendant is placed on community supervision or is paroled
or released on mandatory supervision, the court or the parole panel
shall order the payment of restitution ordered under this article
as a condition of community supervision, parole, or mandatory
supervision. The court may revoke community supervision and the
parole panel may revoke parole or mandatory supervision if the
defendant fails to comply with the order. In determining whether to
revoke community supervision, parole, or mandatory supervision,
the court or parole panel shall consider:
(1) the defendant's employment status;
(2) the defendant's earning ability;
(3) the defendant's financial resources;
(4) the willfulness of the defendant's failure to pay; and
(5) any other special circumstances that may affect the defendant's
ability to pay.
(i) In addition to any other terms and conditions of probation
imposed under Article 42.12 of this code, the court may require a
probationer to reimburse the crime victims compensation fund
created under Subchapter B, Chapter 56 for any amounts paid from
that fund to a victim of the probationer's offense. In this
subsection, "victim" has the meaning assigned by Article 56.01 of
this code.
(j) The court may order a community supervision and corrections
department to obtain information pertaining to the factors listed
in Subsection (c) of this article. The probation officer shall
include the information in the report required under Section 9(a),
Article 42.12, of this code or a separate report, as the court
directs. The court shall permit the defendant and the prosecuting
attorney to read the report.
(k) The court shall resolve any dispute relating to the proper
amount or type of restitution. The standard of proof is a
preponderance of the evidence. The burden of demonstrating the
amount of the loss sustained by a victim as a result of the offense
is on the prosecuting attorney. The burden of demonstrating the
financial resources of the defendant and the financial needs of the
defendant and the defendant's dependents is on the defendant. The
burden of demonstrating other matters as the court deems
appropriate is on the party designated by the court as justice
requires.
(l) Conviction of a defendant for an offense involving the act
giving rise to restitution under this article estops the defendant
from denying the essential allegations of that offense in any
subsequent federal civil proceeding or state civil proceeding
brought by the victim, to the extent consistent with state law.
(m) An order of restitution may be enforced by the state or a victim
named in the order to receive the restitution in the same manner as
a judgment in a civil action.
(n) If a defendant is convicted of or receives deferred
adjudication for an offense under Section 25.05, Penal Code, if the
child support order on which prosecution of the offense was based
required the defendant to pay the support to a local registry or the
Title IV-D agency, and if the court orders restitution under this
article, the order of restitution must require the defendant to pay
the child support in the following manner:
(1) during any period in which the defendant is under the
supervision of a community supervision and corrections department,
to the department for transfer to the local registry or Title IV-D
agency designated as the place of payment in the child support
order; and
(2) during any period in which the defendant is not under the
supervision of a department, directly to the registry or agency
described by Subdivision (1).
(o) The pardons and paroles division may waive a supervision fee or
an administrative fee imposed on an inmate under Section 508.182,
Government Code, during any period in which the inmate is required
to pay restitution under this article.
Added by Acts 1993, 73rd Leg., ch. 806, Sec. 1, eff. Sept. 1, 1993.
Subsec. (a) amended by Acts 1995, 74th Leg., ch. 318, Sec. 51, eff.
Sept. 1, 1995; Subsec. (i) amended by Acts 1995, 74th Leg., ch. 76,
Sec. 5.95(111), eff. Sept. 1, 1995; Subsec. (g)(4) amended by Acts
1999, 76th Leg., ch. 40, Sec. 2, eff. Sept. 1, 1999; Subsec. (n)
added by Acts 1999, 76th Leg., ch. 40, Sec. 3, eff. Sept. 1, 1999;
Subsec. (h) amended by Acts 2001, 77th Leg., ch. 856, Sec. 10, eff.
Sept. 1, 2001; Subsec. (o) added by Acts 2001, 77th Leg., ch. 1034,
Sec. 2, eff. Sept. 1, 2001.
Art. 42.0371. Mandatory Restitution for Kidnapped or Abducted
Children
(a) The court shall order a defendant convicted of an offense under
Chapter 20, Penal Code, or Section 25.03, 25.031, or 25.04, Penal
Code, to pay restitution in an amount equal to the cost of necessary
rehabilitation, including medical, psychiatric, and psychological
care and treatment, for the victim of the offense if the victim is
younger than 17 years of age.
(b) The court shall, after considering the financial circumstances
of the defendant, specify in a restitution order issued under
Subsection (a) the manner in which the defendant must pay the
restitution.
(c) A restitution order issued under Subsection (a) may be enforced
by the state or a victim named in the order to receive the
restitution in the same manner as a judgment in a civil action.
(d) The court may hold a hearing, make findings of fact, and amend a
restitution order issued under Subsection (a) if the defendant
fails to pay the victim named in the order in the manner specified
by the court.
Added by Acts 1999, 76th Leg., ch. 657, Sec. 1, eff. Sept. 1, 1999.
Art. 42.038. Reimbursement for Confinement Expenses
(a) In addition to any fine, cost, or fee authorized by law, a court
that sentences a defendant convicted of a misdemeanor to serve a
term of confinement in county jail and orders execution of the
sentence may require the defendant to reimburse the county for the
defendant's confinement at a rate of $25 a day.
(b) A court that requires a defendant convicted of a misdemeanor or
placed on deferred adjudication for a misdemeanor to submit to a
period of confinement in county jail as a condition of community
supervision may also require as a condition of community
supervision that the defendant reimburse the county for the
defendant's confinement, with the amount of reimbursement
determined as if the defendant were serving an executed sentence.
(c) A judge may not require reimbursement under this article if the
judge determines the defendant is indigent based on the defendant's
sworn statement or affidavit filed with the court. A court that
requires reimbursement under this article may require the defendant
to reimburse the county only for those days the defendant is
confined after the date of conviction or on which a plea of guilty
or nolo contendere was entered. The court may not require a
defendant to reimburse the county for those days the defendant was
confined after arrest and before the date of conviction or on which
the plea of guilty or nolo contendere was entered.
(d) The court, in determining whether to order reimbursement under
this article, shall consider:
(1) the defendant's employment status, earning ability, and
financial resources; and
(2) any other special circumstances that may affect the defendant's
ability to pay, including child support obligations and including
any financial responsibilities owed by the defendant to dependents
or restitution payments owed by the defendant to a victim.
(e) On the day on which a defendant who is required to reimburse the
county under this article discharges an executed sentence of
confinement or completes the period of confinement required as a
condition of community supervision, the sheriff shall present to
the defendant a bill computed by multiplying the daily rate of $25
times the number of days the defendant was confined in the county
jail, not counting the day on which the execution of the sentence or
the period of confinement began. For purposes of this subsection, a
defendant who is confined in county jail for only a portion of a day
is nonetheless considered to have been confined for the whole day.
(f) The court may require a defendant to reimburse the county under
this article by paying to the sheriff the bill presented by the
sheriff within a specified period or in specified installments.
The end of the period or the last installment may not be later than:
(1) the end of the period of community supervision, if community
supervision is ordered; or
(2) the fifth anniversary of the last day of the term of
confinement, if the court does not order community supervision.
Added by Acts 1999, 76th Leg., ch. 295, Sec. 1, eff. Sept. 1, 1999.
Art. 42.04. [769] [856] [834] Sentence when appeal is taken
When a defendant is sentenced to death, no date shall be set for the
execution of sentence until after the receipt by the clerk of the
trial court of the mandate of affirmance of the court of criminal
appeals.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Amended by Acts 1981, 67th Leg., p. 809, ch. 291, Sec. 114, eff.
Sept. 1, 1981.
Art. 42.05. [770] [857] [835] If court is about to adjourn
The time limit within which any act is to be done within the meaning
of this Code shall not be affected by the expiration of the term of
the court.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Art. 42.07. [773] [860-861] Reasons to prevent sentence
Before pronouncing sentence, the defendant shall be asked whether
he has anything to say why the sentence should not be pronounced
against him. The only reasons which can be shown, on account of
which sentence cannot be pronounced, are:
1. That the defendant has received a pardon from the proper
authority, on the presentation of which, legally authenticated, he
shall be discharged.
2. That the defendant is incompetent to stand trial; and if
evidence be shown to support a finding of incompetency to stand
trial, no sentence shall be pronounced, and the court shall proceed
under Chapter 46B; and
3. When a person who has been convicted escapes after conviction and
before sentence and an individual supposed to be the same has been
arrested he may before sentence is pronounced, deny that he is the
person convicted, and an issue be accordingly tried before a jury,
or before the court if a jury is waived, as to his identity.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1975,
64th Leg., p. 1102, ch. 415, Sec. 3, eff. June 19, 1975.
Amended by Acts 1981, 67th Leg., p. 810, ch. 291, Sec. 115, eff.
Sept. 1, 1981; Acts 2003, 78th Leg., ch. 35, Sec. 3, eff. Jan. 1,
2004.
Art. 42.08. [774] [840] [862] Cumulative or concurrent sentence
(a) When the same defendant has been convicted in two or more cases,
judgment and sentence shall be pronounced in each case in the same
manner as if there had been but one conviction. Except as provided
by Sections (b) and (c) of this article, in the discretion of the
court, the judgment in the second and subsequent convictions may
either be that the sentence imposed or suspended shall begin when
the judgment and the sentence imposed or suspended in the preceding
conviction has ceased to operate, or that the sentence imposed or
suspended shall run concurrently with the other case or cases, and
sentence and execution shall be accordingly; provided, however,
that the cumulative total of suspended sentences in felony cases
shall not exceed 10 years, and the cumulative total of suspended
sentences in misdemeanor cases shall not exceed the maximum period
of confinement in jail applicable to the misdemeanor offenses,
though in no event more than three years, including extensions of
periods of community supervision under Section 22, Article 42.12,
of this code, if none of the offenses are offenses under Chapter 49,
Penal Code, or four years, including extensions, if any of the
offenses are offenses under Chapter 49, Penal Code.
(b) If a defendant is sentenced for an offense committed while the
defendant was an inmate in the institutional division of the Texas
Department of Criminal Justice and the defendant has not completed
the sentence he was serving at the time of the offense, the judge
shall order the sentence for the subsequent offense to commence
immediately on completion of the sentence for the original offense.
(c) If a defendant has been convicted in two or more cases and the
court suspends the imposition of the sentence in one of the cases,
the court may not order a sentence of confinement to commence on the
completion of a suspended sentence for an offense.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Amended by Acts 1985, 69th Leg., ch. 29, Sec. 1, eff. Sept. 1, 1985;
Acts 1987, 70th Leg., ch. 513, Sec. 1, eff. Aug. 31, 1987; Subsec.
(a) amended by Acts 1989, 71st Leg., ch. 785, Sec. 4.11, eff. Sept.
1, 1989. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 5.03, eff.
Sept. 1, 1993.
Art. 42.09. [775] Commencement of sentence; status during appeal;
pen packet
Sec. 1. Except as provided in Sections 2 and 3, a defendant shall be
delivered to a jail or to the institutional division of the Texas
Department of Criminal Justice when his sentence is pronounced, or
his sentence to death is announced, by the court. The defendant's
sentence begins to run on the day it is pronounced, but with all
credits, if any, allowed by Article 42.03.
Sec. 2. If a defendant appeals his conviction and is released on
bail pending disposition of his appeal, when his conviction is
affirmed, the clerk of the trial court, on receipt of the mandate
from the appellate court, shall issue a commitment against the
defendant. The officer executing the commitment shall endorse
thereon the date he takes the defendant into custody and the
defendant's sentence begins to run from the date endorsed on the
commitment. The institutional division of the Texas Department of
Criminal Justice shall admit the defendant named in the commitment
on the basis of the commitment.
Sec. 3. If a defendant is convicted of a felony and sentenced to
death, life, or a term of more than ten years in the institutional
division of the Texas Department of Criminal Justice and he gives
notice of appeal, he shall be transferred to the institutional
division on a commitment pending a mandate from the court of appeals
or the Court of Criminal Appeals.
Sec. 4. If a defendant is convicted of a felony, is eligible for
release on bail pending appeal under article 44.04(b), and gives
notice of appeal, he shall be transferred to the Institutional
Division of the Texas Department of Criminal Justice on a
commitment pending a mandate from the Court of Appeals or the Court
of Criminal Appeals upon request in open court or upon written
request to the sentencing court. Upon a valid transfer to the
institutional division under this section, the defendant may not
thereafter be released on bail pending his appeal.
Sec. 5. If a defendant is transferred to the institutional division
of the Texas Department of Criminal Justice pending appeal under
Section 3 or 4, his sentence shall be computed as if no appeal had
been taken if the appeal is affirmed.
Sec. 6. All defendants who have been transferred to the
institutional division of the Texas Department of Criminal Justice
pending the appeal of their convictions under this article shall be
under the control and authority of the institutional division for
all purposes as if no appeal were pending.
Sec. 7. If a defendant is sentenced to a term of imprisonment in the
institutional division of the Texas Department of Criminal Justice
but is not transferred to the institutional division under Section
3 or 4 of this article, the court, before the date on which it would
lose jurisdiction under Section 6(a), Article 42.12, of this code,
shall send to the department a document containing a statement of
the date on which the defendant's sentence was pronounced and
credits earned by the defendant under Article 42.03 of this code as
of the date of the statement.
Sec. 8. (a) A county that transfers a defendant to the Texas
Department of Criminal Justice under this article shall deliver to
an officer designated by the department:
(1) a copy of the judgment entered pursuant to Article 42.01 of this
code, completed on a standardized felony judgment form described by
Section 4 of that article;
(2) a copy of any order revoking community supervision and imposing
sentence pursuant to Section 23, Article 42.12, of this code,
including:
(A) any amounts owed for restitution, fines, and court costs,
completed on a standardized felony judgment form described by
Section 4, Article 42.01, of this code; and
(B) a copy of the client supervision plan prepared for the defendant
by the community supervision and corrections department
supervising the defendant, if such a plan was prepared;
(3) a written report that states the nature and the seriousness of
each offense and that states the citation to the provision or
provisions of the Penal Code or other law under which the defendant
was convicted;
(4) a copy of the victim impact statement, if one has been prepared
in the case under Article 56.03 of this code;
(5) a statement as to whether there was a change in venue in the case
and, if so, the names of the county prosecuting the offense and the
county in which the case was tried;
(6) a copy of the record of arrest for each offense;
(7) if requested, information regarding the criminal history of the
defendant, including the defendant's state identification number
if the number has been issued;
(8) a copy of the indictment or information for each offense;
(9) a checklist sent by the department to the county and completed
by the county in a manner indicating that the documents required by
this subsection and Subsection (c) of this section accompany the
defendant;
(10) if prepared, a copy of a presentence or postsentence
investigation report prepared under Section 9, Article 42.12 of
this code;
(11) a copy of any detainer, issued by an agency of the federal
government, that is in the possession of the county and that has
been placed on the defendant; and
(12) a written description of a hold or warrant, issued by any other
jurisdiction, that the county is aware of and that has been placed
on or issued for the defendant.
(b) The Texas Department of Criminal Justice shall not take a
defendant into custody under this article until the designated
officer receives the documents required by Subsections (a) and (c)
of this section. The designated officer shall certify under the
seal of the department the documents received under Subsections (a)
and (c) of this section. A document certified under this subsection
is self-authenticated for the purposes of Rules 901 and 902, Texas
Rules of Criminal Evidence.
(c) A county that transfers a defendant to the Texas Department of
Criminal Justice under this article shall also deliver to the
designated officer any presentence or postsentence investigation
report, revocation report, psychological or psychiatric evaluation
of the defendant, including an evaluation prepared for the juvenile
court before transferring the defendant to criminal court and
contained in the criminal prosecutor's file, and available social
or psychological background information relating to the defendant
and may deliver to the designated officer any additional
information upon which the judge or jury bases the punishment
decision.
(d) The institutional division of the Texas Department of Criminal
Justice shall make documents received under Subsections (a) and (c)
available to the pardons and paroles division on the request of the
pardons and paroles division and shall, on release of a defendant on
parole or to mandatory supervision, immediately provide the pardons
and paroles division with copies of documents received under
Subsection (a). The pardons and paroles division shall provide to
the parole officer appointed to supervise the defendant a
comprehensive summary of the information contained in the documents
referenced in this section not later than the 14th day after the
date of the defendant's release. The summary shall include a
current photograph of the defendant and a complete set of the
defendant's fingerprints. Upon written request from the county
sheriff, the photograph and fingerprints shall be filed with the
sheriff of the county to which the parolee is assigned if that
county is not the county from which the parolee was sentenced.
(e) A county is not required to deliver separate documents
containing information relating to citations to provisions of the
Penal Code or other law and to changes of venue, as otherwise
required by Subsections (a)(3) and (a)(5) of this article, if the
standardized felony judgment form described by Section 4, Article
42.01, of this code is modified to require that information.
(f) Except as provided by Subsection (g) of this section, the county
sheriff is responsible for ensuring that documents and information
required by this section accompany defendants sentenced by district
courts in the county to the Texas Department of Criminal Justice.
(g) If the presiding judge of the administrative judicial region in
which the county is located determines that the county sheriff is
unable to perform the duties required by Subsection (f) of this
section, the presiding judge may impose those duties on:
(1) the district clerk; or
(2) the prosecutor of each district court in the county.
(h) If a parole panel releases on parole a person who is confined in
a jail in this state, a federal correctional institution, or a
correctional institution in another state, the Texas Department of
Criminal Justice shall request the sheriff who would otherwise be
required to transfer the person to the department to forward to the
department the information described by Subsections (a) and (c) of
this section. The sheriff shall comply with the request of the
department . The department shall determine whether the information
forwarded by the sheriff under this subsection contains a
thumbprint taken from the person in the manner provided by Article
38.33 of this code and, if not, the department shall obtain a
thumbprint taken in the manner provided by that article and shall
forward the thumbprint to the department for inclusion with the
information sent by the sheriff.
(i) A county may deliver the documents required under Subsections
(a) and (c) of this section to the Texas Department of Criminal
Justice by electronic means. For purposes of this subsection,
"electronic means" means the transmission of data between word
processors, data processors, or similar automated information
equipment over dedicated cables, commercial lines, or other similar
methods of transmission.
(j) If after a county transfers a defendant or inmate to the Texas
Department of Criminal Justice the charges on which the defendant
or inmate was convicted and for which the defendant or inmate was
transferred are dismissed, the county shall immediately notify an
officer designated by the department of the dismissal.
Sec. 9. A county that transfers a defendant to the Texas Department
of Criminal Justice under this article may deliver to an officer
designated by the department a certified copy of a final order of a
state or federal court that dismisses as frivolous or malicious a
lawsuit brought by the inmate while the inmate was confined in the
county jail awaiting transfer to the department following
conviction of a felony or revocation of community supervision,
parole, or mandatory supervision. The county may deliver the copy
to the department at the time of the transfer of the inmate or at any
time after the transfer of the inmate.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973,
63rd Leg., p. 206, ch. 91, Sec. 2, eff. Aug. 27, 1973; Acts 1977,
65th Leg., p. 2018, ch. 806, Sec. 1, eff. Aug. 29, 1977.
Amended by Acts 1981, 67th Leg., p. 810, ch. 291, Sec. 117, eff.
Sept. 1, 1981. Sec. 7 added by Acts 1983, 68th Leg., p. 148, ch. 40,
Sec. 1, eff. April 26, 1983; Acts 1983, 68th Leg., p. 4668, ch. 810,
Sec. 1, eff. Sept. 1, 1983; Sec. 8 amended by Acts 1985, 69th Leg.,
ch. 344, Sec. 3, eff. Jan. 1, 1986; Acts 1987, 70th Leg., ch. 1049,
Sec. 53, eff. Sept. 1, 1987; Sec. 8(a) amended by Acts 1989, 71st
Leg., ch. 785, Sec. 4.12, eff. Sept. 1, 1989; Sec. 8(h) added by
Acts 1989, 71st Leg., ch. 33, Sec. 2, eff. April 26, 1989; Sec. 8(a)
amended by Acts 1991, 72nd Leg., 2nd C.S., ch. 10, Sec. 11.05, eff.
Aug. 29, 1991. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 5.03,
eff. Sept. 1, 1993; Sec. 8(a) to (c) amended by Acts 1995, 74th
Leg., ch. 321, Sec. 3.001, eff. Sept. 1, 1995; Sec. 8(d) amended by
Acts 1995, 74th Leg., ch. 321, Sec. 3.001, eff. Sept. 1, 1995; Acts
1995, 74th Leg., ch. 723, Sec. 1, eff. Sept. 1, 1995; Sec. 8(f),
(h), (i) amended by Acts 1995, 74th Leg., ch. 321, Sec. 3.001, eff.
Sept. 1, 1995; Sec. 8(a) amended by Acts 1999, 76th Leg., ch. 1188,
Sec. 1.42, eff. Sept. 1, 1999; Sec. 8(c) amended by Acts 1999, 76th
Leg., ch. 1477, Sec. 29, eff. Sept. 1, 1999; Sec. 9 added by Acts
1999, 76th Leg., ch. 655, Sec. 1, eff. June 18, 1999; Sec. 4 amended
by Acts 2001, 77th Leg., ch. 214, Sec. 1, eff. May 22, 2001; Sec.
8(j) added by Acts 2001, 77th Leg., ch. 453, Sec. 1, eff. June 8,
2001; Sec. 8(a) amended by Acts 2003, 78th Leg., ch. 14, Sec. 1,
eff. Sept. 1, 2003.
Art. 42.10. [781a] Satisfaction of judgment as in misdemeanor
convictions
When a person is convicted of a felony, and the punishment assessed
is only a fine or a term in jail, or both, the judgment may be
satisfied in the same manner as a conviction for a misdemeanor is by
law satisfied.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Art. 42.11. [781c] Uniform Act for out-of-State probationer and
parolee supervision
Sec. 1. This Act may be cited as the Uniform Act for out-of-State
probationer and parolee supervision.
Sec. 2. The Governor of this State is hereby authorized and directed
to execute a compact on behalf of the State of Texas with any of the
United States legally joining therein in the form substantially as
follows:
Entering into by and among the contracting state, signatories
hereto, with the consent of the Congress of the United States of
America, granted by an Act entitled "An Act granting the consent of
Congress to any two or more States to enter into agreements or
compacts for cooperative effort and mutual assistance in the
prevention of crime and for other purposes".
A COMPACT
The contracting States solemnly agree:
(1) That it shall be competent for the duly constituted judicial and
administrative authorities of a State party to this compact (herein
called "sending State"), to permit any person convicted of an
offense within such State and placed on probation or released on
parole to reside in any other State party to this compact (herein
called "receiving State"), while on probation or parole, if
(a) Such person is in fact a resident of or has his family residing
within the receiving State and can obtain employment there; and
(b) Though not a resident of the receiving State and not having his
family residing there, the receiving State consents to such person
being sent there.
Before granting such permission, opportunity shall be granted to
the receiving State to investigate the home and prospective
employment of such person.
A resident of the receiving State, within the meaning of this
section is one who has been an actual inhabitant of such State
continuously for more than one year prior to his coming to the
sending State and has not resided within the sending State more than
six continuous months immediately preceding the commission of the
offense for which he has been convicted.
(2) That each receiving State will assume the duties of visitation
of and supervision over probationers or parolees of any sending
State and in the exercise of those duties will be governed by the
same standards that prevail for its own probationers and parolees.
(3) That duly accredited officers of a sending State may at all
times enter a receiving State and there apprehend and retake any
person on probation or parole. For that purpose no formalities will
be required other than establishing the authority of the officer
and the identity of the person to be retaken. All legal
requirements to obtain extradition of fugitives from justice are
hereby expressly waived on the part of States party hereto, as to
such persons. The decision of the sending State to retake a person
on probation or parole shall be conclusive upon and not reviewable
within the receiving State; provided, however, that if at the time
when a State seeks to retake a probationer or parolee there should
be pending against him within the receiving State any criminal
charge, or he should be suspected of having committed within such
State a criminal offense, he shall not be retaken without the
consent of the receiving State until discharged from prosecution or
from any imprisonment for such offense.
(4) That the duly accredited officers of the sending State will be
permitted to transport prisoners being retaken through any and all
States party to this compact, without interference.
(5) That the Governor of each State may designate an officer who,
acting jointly with like officers of other contracting States, if
and when appointed, shall promulgate such rules and regulations as
may be deemed necessary to more effectively carry out the terms of
this compact.
(6) That this compact shall become operative immediately upon its
execution by any State as between it and other State or States so
executing. When executed it shall have the full force and effect of
law within such State, the form of execution to be in accordance
with the laws of the executing State.
(7) That this compact shall continue in force and remain binding
upon each executing State until renounced by it. The duties and
obligations hereunder of a renouncing State shall continue as to
parolees or probationers residing therein at the time of withdrawal
until retaken or finally discharged by the sending State.
Renunciation of this compact shall be by the same authority which
executed it, by sending six months notice in writing of its
intention to withdraw from the compact to the other States party
hereto.
Sec. 3. The title of the officer designated by the Governor under
Subdivision (5) of the compact is the Interstate Compact
Administrator for Probation and Parole. The Interstate Compact
Administrator is authorized to appoint two Deputy Interstate
Compact Administrators, with one deputy primarily responsible for
issues dealing with probationers and the other primarily
responsible for issues dealing with parolees. The executive
director of the Texas Department of Criminal Justice or the
executive director's designee is authorized and directed to do all
things necessary or incidental to the carrying out of the compact in
every particular.
Sec. 3a. Repealed by Acts 1991, 72nd Leg., 1st C.S., ch. 17, Sec.
7.01(27), eff. Nov. 12, 1991.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973,
63rd Leg., p. 547, ch. 233, Sec. 1, eff. Aug. 27, 1973; Acts 1977,
65th Leg., p. 1851, ch. 735, Sec. 2.134, eff. Aug. 29, 1977.
Sec. 3a amended by Acts 1985, 69th Leg., ch. 479, Sec. 162, eff.
Sept. 1, 1985; Acts 1987, 70th Leg., ch. 939, Sec. 1, eff. Sept. 1,
1987; repealed by Acts 1991, 72nd Leg., 1st C.S., ch. 17, Sec.
7.01(27), eff. Nov. 12, 1991; Sec. 1 amended by Acts 1995, 74th
Leg., ch. 321, Sec. 3.002, eff. Sept. 1, 1995; Sec. 3 amended by
Acts 1997, 75th Leg., ch. 514, Sec. 1, eff. May 31, 1997.
Art. 42.111. Deferral of Proceedings in Cases Appealed to County
Court
If a defendant convicted of a misdemeanor punishable by fine only
appeals the conviction to a county court, on the trial in county
court the defendant may enter a plea of guilty or nolo contendere to
the offense. If the defendant enters a plea of guilty or nolo
contendere, the court may defer further proceedings without
entering an adjudication of guilt in the same manner as provided for
the deferral of proceedings in justice court or municipal court
under Article 45.051 of this code. This article does not apply to a
misdemeanor case disposed of under Subchapter B, Chapter 543,
Transportation Code, or a serious traffic violation as defined by
Section 522.003, Transportation Code.
Added by Acts 1989, 71st Leg., ch. 399, Sec. 2, eff. June 14, 1989.
Amended by Acts 1991, 72nd Leg., ch. 775, Sec. 18, eff. Sept. 1,
1991; Acts 1999, 76th Leg., ch. 62, Sec. 3.03, eff. Sept. 1, 1999;
Acts 1999, 76th Leg., ch. 1545, Sec. 62, eff. Sept. 1, 1999.
Art. 42.12. [781d] Community supervision
Purpose
Sec. 1. It is the purpose of this article to place wholly within the
state courts the responsibility for determining when the imposition
of sentence in certain cases shall be suspended, the conditions of
community supervision, and the supervision of defendants placed on
community supervision, in consonance with the powers assigned to
the judicial branch of this government by the Constitution of
Texas. It is the purpose of this article to remove from existing
statutes the limitations, other than questions of
constitutionality, that have acted as barriers to effective systems
of community supervision in the public interest.
Definitions
Sec. 2. In this article:
(1) "Court" means a court of record having original criminal
jurisdiction.
(2) "Community supervision" means the placement of a defendant by a
court under a continuum of programs and sanctions, with conditions
imposed by the court for a specified period during which:
(A) criminal proceedings are deferred without an adjudication of
guilt; or
(B) a sentence of imprisonment or confinement, imprisonment and
fine, or confinement and fine, is probated and the imposition of
sentence is suspended in whole or in part.
(3) "Supervision officer" means a person appointed or employed
under Section 76.004, Government Code, to supervise defendants
placed on community supervision.
(4) "Electronic monitoring" includes voice tracking systems,
position tracking systems, position location systems, biometric
tracking systems, and any other electronic or telecommunications
system that may be used to assist in the supervision of individuals
under this article.
Judge Ordered Community Supervision
Sec. 3. (a) A judge, in the best interest of justice, the public,
and the defendant, after conviction or a plea of guilty or nolo
contendere, may suspend the imposition of the sentence and place
the defendant on community supervision or impose a fine applicable
to the offense and place the defendant on community supervision.
(b) Except as provided by Subsection (f), in a felony case the
minimum period of community supervision is the same as the minimum
term of imprisonment applicable to the offense and the maximum
period of community supervision is 10 years.
(c) The maximum period of community supervision in a misdemeanor
case is two years.
(d) A judge may increase the maximum period of community
supervision in the manner provided by Section 22(c) or 22A of this
article.
(e) A defendant is not eligible for community supervision under
this section if the defendant:
(1) is sentenced to a term of imprisonment that exceeds 10 years;
or
(2) is sentenced to serve a term of confinement under Section 12.35,
Penal Code.
(f) The minimum period of community supervision for a felony
described by Section 13B(b) is five years and the maximum period of
supervision is 10 years.
(g) A judge shall not deny community supervision to a defendant
based solely on the defendant's inability to speak, read, write,
hear, or understand English.
Secs. 3a to 3f. [Blank].
Limitation on Judge Ordered Community Supervision
Sec. 3g. (a) The provisions of Section 3 of this article do not
apply:
(1) to a defendant adjudged guilty of an offense under:
(A) Section 19.02, Penal Code (Murder);
(B) Section 19.03, Penal Code (Capital murder);
(C) Section 21.11(a)(1), Penal Code (Indecency with a child);
(D) Section 20.04, Penal Code (Aggravated kidnapping);
(E) Section 22.021, Penal Code (Aggravated sexual assault);
(F) Section 29.03, Penal Code (Aggravated robbery);
(G) Chapter 481, Health and Safety Code, for which punishment is
increased under:
(i) Section 481.140, Health and Safety Code; or
(ii) Section 481.134(c), (d), (e), or (f), Health and Safety Code,
if it is shown that the defendant has been previously convicted of
an offense for which punishment was increased under any of those
subsections; or
(H) Section 22.011, Penal Code (Sexual assault); or
(2) to a defendant when it is shown that a deadly weapon as defined
in Section 1.07, Penal Code, was used or exhibited during the
commission of a felony offense or during immediate flight
therefrom, and that the defendant used or exhibited the deadly
weapon or was a party to the offense and knew that a deadly weapon
would be used or exhibited. On an affirmative finding under this
subdivision, the trial court shall enter the finding in the
judgment of the court. On an affirmative finding that the deadly
weapon was a firearm, the court shall enter that finding in its
judgment.
(b) If there is an affirmative finding under Subsection (a)(2) in
the trial of a felony of the second degree or higher that the deadly
weapon used or exhibited was a firearm and the defendant is granted
community supervision, the court may order the defendant confined
in the institutional division of the Texas Department of Criminal
Justice for not less than 60 and not more than 120 days. At any time
after the defendant has served 60 days in the custody of the
institutional division, the sentencing judge, on his own motion or
on motion of the defendant, may order the defendant released to
community supervision. The institutional division shall release
the defendant to community supervision after he has served 120
days.
Jury Recommended Community Supervision
Sec. 4. (a) A jury that imposes confinement as punishment for an
offense may recommend to the judge that the judge suspend the
imposition of the sentence and place the defendant on community
supervision. A judge shall suspend the imposition of the sentence
and place the defendant on community supervision if the jury makes
that recommendation in the verdict.
(b) If the jury recommends to the judge that the judge place the
defendant on community supervision, the judge shall place the
defendant on community supervision for any period permitted under
Section 3(b) or 3(c) of this article, as appropriate.
(c) A judge may increase the maximum period of community
supervision in the manner provided by Section 22(c) or Section 22A
of this article.
(d) A defendant is not eligible for community supervision under
this section if the defendant:
(1) is sentenced to a term of imprisonment that exceeds 10 years;
(2) is sentenced to serve a term of confinement under Section 12.35,
Penal Code;
(3) does not file a sworn motion under Subsection (e) of this
section or for whom the jury does not enter in the verdict a finding
that the information contained in the motion is true; or
(4) is adjudged guilty of an offense for which punishment is
increased under Section 481.134(c), (d), (e), or (f), Health and
Safety Code, if it is shown that the defendant has been previously
convicted of an offense for which punishment was increased under
any one of those subsections.
(e) A defendant is eligible for community supervision under this
section only if before the trial begins the defendant files a
written sworn motion with the judge that the defendant has not
previously been convicted of a felony in this or any other state,
and the jury enters in the verdict a finding that the information in
the defendant's motion is true.
Deferred Adjudication; Community Supervision
Sec. 5. (a) Except as provided by Subsection (d) of this section,
when in the judge's opinion the best interest of society and the
defendant will be served, the judge may, after receiving a plea of
guilty or plea of nolo contendere, hearing the evidence, and
finding that it substantiates the defendant's guilt, defer further
proceedings without entering an adjudication of guilt, and place
the defendant on community supervision. A judge may place on
community supervision under this section a defendant charged with
an offense under Section 21.11, 22.011, or 22.021, Penal Code,
regardless of the age of the victim, or a defendant charged with a
felony described by Section 13B(b) of this article, only if the
judge makes a finding in open court that placing the defendant on
community supervision is in the best interest of the victim. The
failure of the judge to find that deferred adjudication is in the
best interest of the victim is not grounds for the defendant to set
aside the plea, deferred adjudication, or any subsequent conviction
or sentence. After placing the defendant on community supervision
under this section, the judge shall inform the defendant orally or
in writing of the possible consequences under Subsection (b) of
this section of a violation of community supervision. If the
information 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 Subsection (b) of
this section is not a ground for reversal unless the defendant shows
that he was harmed by the failure of the judge to provide the
information. In a felony case, the period of community supervision
may not exceed 10 years. For a defendant charged with a felony
under Section 21.11, 22.011, or 22.021, Penal Code, regardless of
the age of the victim, and for a defendant charged with a felony
described by Section 13B(b) of this article, the period of
community supervision may not be less than five years. In a
misdemeanor case, the period of community supervision may not
exceed two years. A judge may increase the maximum period of
community supervision in the manner provided by Section 22(c) or
22A of this article. The judge may impose a fine applicable to the
offense and require any reasonable conditions of community
supervision, including mental health treatment under Section 11(d)
of this article, that a judge could impose on a defendant placed on
community supervision for a conviction that was probated and
suspended, including confinement. The provisions of Section 15 of
this article specifying whether a defendant convicted of a state
jail felony is to be confined in a county jail or state jail felony
facility and establishing the minimum and maximum terms of
confinement as a condition of community supervision apply in the
same manner to a defendant placed on community supervision after
pleading guilty or nolo contendere to a state jail felony. However,
upon written motion of the defendant requesting final adjudication
filed within 30 days after entering such plea and the deferment of
adjudication, the judge shall proceed to final adjudication as in
all other cases.
(b) On violation of a condition of community supervision imposed
under Subsection (a) of this section, the defendant may be arrested
and detained as provided in Section 21 of this article. The
defendant is entitled to a hearing limited to the determination by
the court of whether it proceeds with an adjudication of guilt on
the original charge. No appeal may be taken from this
determination. After an adjudication of guilt, all proceedings,
including assessment of punishment, pronouncement of sentence,
granting of community supervision, and defendant's appeal continue
as if the adjudication of guilt had not been deferred. A court
assessing punishment after an adjudication of guilt of a defendant
charged with a state jail felony may suspend the imposition of the
sentence and place the defendant on community supervision or may
order the sentence to be executed, regardless of whether the
defendant has previously been convicted of a felony.
(c) On expiration of a community supervision period imposed under
Subsection (a) of this section, if the judge has not proceeded to
adjudication of guilt, the judge shall dismiss the proceedings
against the defendant and discharge him. The judge may dismiss the
proceedings and discharge a defendant, other than a defendant
charged with an offense requiring the defendant to register as a sex
offender under Chapter 62, as added by Chapter 668, Acts of the 75th
Legislature, Regular Session, 1997, prior to the expiration of the
term of community supervision if in the judge's opinion the best
interest of society and the defendant will be served. The judge may
not dismiss the proceedings and discharge a defendant charged with
an offense requiring the defendant to register under Chapter 62, as
added by Chapter 668, Acts of the 75th Legislature, Regular
Session, 1997. Except as provided by Section 12.42(g), Penal Code,
a dismissal and discharge under this section may not be deemed a
conviction for the purposes of disqualifications or disabilities
imposed by law for conviction of an offense. For any defendant who
receives a dismissal and discharge under this section:
(1) upon conviction of a subsequent offense, the fact that the
defendant had previously received community supervision with a
deferred adjudication of guilt shall be admissible before the court
or jury to be considered on the issue of penalty;
(2) if the defendant is an applicant for a license or is a licensee
under Chapter 42, Human Resources Code, the Texas Department of
Human Services may consider the fact that the defendant previously
has received community supervision with a deferred adjudication of
guilt under this section in issuing, renewing, denying, or revoking
a license under that chapter; and
(3) if the defendant is a person who has applied for registration to
provide mental health or medical services for the rehabilitation of
sex offenders, the Interagency Council on Sex Offender Treatment
may consider the fact that the defendant has received community
supervision under this section in issuing, renewing, denying, or
revoking a license or registration issued by that council.
(d) In all other cases the judge may grant deferred adjudication
unless:
(1) the defendant is charged with an offense:
(A) under Section 49.04, 49.05, 49.06, 49.07, or 49.08, Penal Code;
or
(B) for which punishment may be increased under Section 481.134(c),
(d), (e), or (f), Health and Safety Code, if it is shown that the
defendant has been previously convicted of an offense for which
punishment was increased under any one of those subsections; or
(2) the defendant:
(A) is charged with an offense under Section 21.11, 22.011, or
22.021, Penal Code, regardless of the age of the victim, or a felony
described by Section 13B(b) of this article; and
(B) has previously been placed on community supervision for any
offense under Paragraph (A) of this subdivision.
(e) If a judge places on community supervision under this section a
defendant charged with an offense under Section 20.02, 20.03, or
20.04, Penal Code, or an attempt, conspiracy, or solicitation to
commit one of those offenses, the judge shall make an affirmative
finding of fact and file a statement of that affirmative finding
with the papers in the case if the judge determines that the victim
or intended victim was younger than 17 years of age at the time of
the offense.
(f) A record in the custody of the court clerk regarding a case in
which a person is granted deferred adjudication is not
confidential.
(g) If a judge places on community supervision under this section a
defendant charged with an offense under Section 21.11, 22.011,
22.021, or 43. 25, Penal Code, the judge shall make an affirmative
finding of fact and file a statement of that affirmative finding
with the papers in the case if the judge determines that:
(1) at the time of the offense, the defendant was younger than 19
years of age and the victim or intended victim was at least 13 years
of age; and
(2) the charge to which the plea is entered under this section is
based solely on the ages of the defendant and the victim or intended
victim at the time of the offense.
(h) 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 community supervision imposed on the
defendant has expired, if before the expiration the attorney
representing the state files a motion to proceed with the
adjudication and a capias is issued for the arrest of the defendant.
Continuing Court Jurisdiction in Felony Cases
Sec. 6. (a) For the purposes of this section, the jurisdiction of a
court in which a sentence requiring imprisonment in the
institutional division of the Texas Department of Criminal Justice
is imposed by the judge of the court shall continue for 180 days
from the date the execution of the sentence actually begins. Before
the expiration of 180 days from the date the execution of the
sentence actually begins, the judge of the court that imposed such
sentence may on his own motion, on the motion of the attorney
representing the state, or on the written motion of the defendant,
suspend further execution of the sentence and place the defendant
on community supervision under the terms and conditions of this
article, if in the opinion of the judge the defendant would not
benefit from further imprisonment and:
(1) the defendant is otherwise eligible for community supervision
under this article; and
(2) the defendant had never before been incarcerated in a
penitentiary serving a sentence for a felony.
(b) When the defendant or the attorney representing the state files
a written motion requesting suspension by the judge of further
execution of the sentence and placement of the defendant on
community supervision, and when requested to do so by the judge, the
clerk of the court shall request a copy of the defendant's record
while imprisoned from the institutional division of the Texas
Department of Criminal Justice or, if the defendant is confined in
county jail, from the sheriff. Upon receipt of such request, the
institutional division of the Texas Department of Criminal Justice
or the sheriff shall forward to the judge, as soon as possible, a
full and complete copy of the defendant's record while imprisoned
or confined. When the defendant files a written motion requesting
suspension of further execution of the sentence and placement on
community supervision, he shall immediately deliver or cause to be
delivered a true and correct copy of the motion to the office of the
attorney representing the state.
(c) The judge may deny the motion without a hearing but may not
grant the motion without holding a hearing and providing the
attorney representing the state and the defendant the opportunity
to present evidence on the motion.
Continuing Court Jurisdiction in Misdemeanor Cases
Sec. 7. (a) For the purposes of this section, the jurisdiction of
the courts in this state in which a sentence requiring confinement
in a jail is imposed for conviction of a misdemeanor shall continue
for 180 days from the date the execution of the sentence actually
begins. The judge of the court that imposed such sentence may on
his own motion, on the motion of the attorney representing the
state, or on the written motion of the defendant suspend further
execution of the sentence and place the defendant on community
supervision under the terms and conditions of this article, if in
the opinion of the judge the defendant would not benefit from
further confinement.
(b) When the defendant files a written motion with the court
requesting suspension of further execution of the sentence and
placement on community supervision or when requested to do so by the
judge, the clerk of the court shall request a copy of the
defendant's record while confined from the agency operating the
jail where the defendant is confined. Upon receipt of such request,
the agency operating the jail where the defendant is confined shall
forward to the court as soon as possible a full and complete copy of
the defendant's record while confined.
(c) The judge may deny the motion without a hearing but may not
grant a motion without holding a hearing and allowing the attorney
representing the state and the defendant to present evidence in the
case.
State Boot Camp Program
Sec. 8. (a) For the purposes of this section, the jurisdiction of a
court in which a sentence requiring imprisonment in the
institutional division of the Texas Department of Criminal Justice
is imposed for conviction of a felony shall continue for 180 days
from the date on which the convicted person is received into custody
by the institutional division. After the expiration of 75 days but
prior to the expiration of 180 days from the date on which the
convicted person is received into custody by the institutional
division, the judge of the court that imposed the sentence may
suspend further execution of the sentence imposed and place the
person on community supervision under the terms and conditions of
this article, if in the opinion of the judge the person would not
benefit from further imprisonment. The court shall clearly
indicate in its order recommending the placement of the person in
the state boot camp program that the court is not retaining
jurisdiction over the person for the purposes of Section 6 of this
article. A court may recommend a person for placement in the state
boot camp program only if:
(1) the person is otherwise eligible for community supervision
under this article;
(2) the person is 17 years of age or older but younger than 26 years
and is physically and mentally capable of participating in a
program that requires strenuous physical activity; and
(3) the person is not convicted of an offense punishable as a state
jail felony.
(b) On the 76th day after the day on which the convicted person is
received into custody by the institutional division, the
institutional division shall send the convicting court the record
of the person's progress, conduct, and conformity to institutional
division rules.
(c) The judge's recommendation that a person be placed in the state
boot camp program created under Section 499.052, Government Code,
does not give the court the power to hold the Texas Department of
Criminal Justice or any officer or employee of the department in
contempt of court for failure to adhere to that recommendation.
Presentence Investigations
Sec. 9. (a) Except as provided by Subsection (g) of this section,
before the imposition of sentence by a judge in a felony case, and
except as provided by Subsection (b) of this section, before the
imposition of sentence by a judge in a misdemeanor case the judge
shall direct a supervision officer to report to the judge in writing
on the circumstances of the offense with which the defendant is
charged, the amount of restitution necessary to adequately
compensate a victim of the offense, the criminal and social history
of the defendant, and any other information relating to the
defendant or the offense requested by the judge. It is not
necessary that the report contain a sentencing recommendation, but
the report must contain a proposed client supervision plan
describing programs and sanctions that the community supervision
and corrections department would provide the defendant if the judge
suspended the imposition of the sentence or granted deferred
adjudication.
(b) The judge is not required to direct a supervision officer to
prepare a report in a misdemeanor case if:
(1) the defendant requests that a report not be made and the judge
agrees to the request; or
(2) the judge finds that there is sufficient information in the
record to permit the meaningful exercise of sentencing discretion
and the judge explains this finding on the record.
(c) The judge may not inspect a report and the contents of the
report may not be disclosed to any person unless:
(1) the defendant pleads guilty or nolo contendere or is convicted
of the offense; or
(2) the defendant, in writing, authorizes the judge to inspect the
report.
(d) Before sentencing a defendant, the judge shall permit the
defendant or his counsel to read the presentence report.
(e) The judge shall allow the defendant or his attorney to comment
on a presentence investigation or a postsentence report and, with
the approval of the judge, introduce testimony or other information
alleging a factual inaccuracy in the investigation or report.
(f) The judge shall allow the attorney representing the state
access to any information made available to the defendant under
this section.
(g) Unless requested by the defendant, a judge is not required to
direct an officer to prepare a presentence report in a felony case
under this section if:
(1) punishment is to be assessed by a jury;
(2) the defendant is convicted of or enters a plea of guilty or nolo
contendere to capital murder;
(3) the only available punishment is imprisonment; or
(4) the judge is informed that a plea bargain agreement exists,
under which the defendant agrees to a punishment of imprisonment,
and the judge intends to follow the agreement.
(h) On a determination by the judge that alcohol or drug abuse may
have contributed to the commission of the offense, or in any case
involving a second or subsequent offense under Section 49.04, Penal
Code, committed within five years of the date on which the most
recent preceding offense was committed, or a second or subsequent
offense under Section 49.07 or 49.08 of that code that involves the
operation of a motor vehicle, committed within five years of the
date on which the most recent preceding offense was committed, the
judge shall direct a supervision officer approved by the community
supervision and corrections department or the judge or a person,
program, or other agency approved by the Texas Commission on
Alcohol and Drug Abuse, to conduct an evaluation to determine the
appropriateness of, and a course of conduct necessary for, alcohol
or drug rehabilitation for a defendant and to report that
evaluation to the judge. The evaluation shall be made:
(1) after arrest and before conviction, if requested by the
defendant;
(2) after conviction and before sentencing, if the judge assesses
punishment in the case;
(3) after sentencing and before the entry of a final judgment, if
the jury assesses punishment in the case; or
(4) after community supervision is granted, if the evaluation is
required as a condition of community supervision under Section 13
of this article.
(i) A presentence investigation conducted on any defendant
convicted of a felony offense who appears to the judge through its
own observation or on suggestion of a party to have a mental
impairment shall include a psychological evaluation which
determines, at a minimum, the defendant's IQ and adaptive behavior
score. The results of the evaluation shall be included in the
report to the judge as required by Subsection (a) of this section.
(j) The judge by order may direct that any information and records
that are not privileged and that are relevant to a report required
by Subsection (a) or Subsection (k) of this section be released to
an officer conducting a presentence investigation under Subsection
(i) of this section or a postsentence report under Subsection (k) of
this section. The judge may also issue a subpoena to obtain that
information. A report and all information obtained in connection
with a presentence investigation or postsentence report are
confidential and may be released only:
(1) to those persons and under those circumstances authorized under
Subsections (d), (e), (f), (h), (k), and (l) of this section;
(2) pursuant to Section 614.017, Health and Safety Code; or
(3) as directed by the judge for the effective supervision of the
defendant.
(k) If a presentence report in a felony case is not required under
this section, the judge may direct the officer to prepare a
postsentence report containing the same information that would have
been required for the presentence report, other than a proposed
client supervision plan and any information that is reflected in
the judgment. If the postsentence report is ordered, the officer
shall send the report to the clerk of the court not later than the
30th day after the date on which sentence is pronounced or deferred
adjudication is granted, and the clerk shall deliver the
postsentence report with the papers in the case to a designated
officer of the Texas Department of Criminal Justice, as described
by Section 8(a), Article 42.09.
(l), (m) Repealed by Acts 2003, 78th Leg., ch. 353, Sec. 5.
Sex Offenders: Presentence Investigation and Postsentence
Treatment and Supervision
Sec. 9A. (a) In this section:
(1) "Council" means the Council on Sex Offender Treatment.
(2) "Sex offender" means a person who has been convicted or has
entered a plea of guilty or nolo contendere for an offense under any
one of the following provisions of the Penal Code:
(A) Section 20.04(a)(4) (Aggravated Kidnapping), if the person
committed the offense with the intent to violate or abuse the victim
sexually;
(B) Section 21.08 (Indecent Exposure);
(C) Section 21.11 (Indecency with a Child);
(D) Section 22.011 (Sexual Assault);
(E) Section 22.021 (Aggravated Sexual Assault);
(F) Section 25.02 (Prohibited Sexual Conduct);
(G) Section 30.02 (Burglary), if:
(i) the offense is punishable under Subsection (d) of that section;
and
(ii) the person committed the offense with the intent to commit a
felony listed in this subsection;
(H) Section 43.25 (Sexual Performance by a Child); or
(I) Section 43.26 (Possession or Promotion of Child Pornography).
(b) If the defendant is a sex offender, a supervision officer may
release information in a presentence or postsentence report
concerning the social and criminal history of the defendant to a
person who:
(1) is licensed or certified in this state to provide mental health
or medical services, including a:
(A) physician;
(B) psychiatrist;
(C) psychologist;
(D) licensed professional counselor;
(E) licensed marriage and family therapist; or
(F) certified social worker; and
(2) provides mental health or medical services for the
rehabilitation of the defendant.
(c) If the defendant is a sex offender, the judge shall direct a
supervision officer approved by the community supervision and
corrections department or the judge or a person, program, or other
agency approved by the council to evaluate the appropriateness of,
and a course of conduct necessary for, treatment, specialized
supervision, or rehabilitation of the defendant and to report the
results of the evaluation to the judge. The judge may require the
evaluation to use offense-specific standards of practice adopted by
the council and may require the report to reflect those standards.
The evaluation shall be made after conviction and before the entry
of a final judgment or, if requested by the defendant, after arrest
and before conviction.
Authority to Impose, Modify, or Revoke Community Supervision
Sec. 10. (a) Only the court in which the defendant was tried may
grant community supervision, impose conditions, revoke the
community supervision, or discharge the defendant, unless the judge
has transferred jurisdiction of the case to another court with the
latter's consent. Except as provided by Subsection (d) of this
section, only the judge may alter conditions of community
supervision. In a felony case, only the judge who originally
sentenced the defendant may suspend execution thereof and place the
defendant under community supervision pursuant to Section 6 of this
article. If the judge who originally sentenced the defendant is
deceased or disabled or if the office is vacant and the judge who
originally sentenced the defendant is deceased or disabled or if
