85R2292 MEW-F     By: Hughes S.B. No. 857       A BILL TO BE ENTITLED   AN ACT   relating to the establishment, operation, and funding of   victim-offender mediation programs; authorizing fees.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Section 1, Article 28.01, Code of Criminal   Procedure, is amended to read as follows:          Sec. 1.  The court may set any criminal case for a pre-trial   hearing before it is set for trial upon its merits, and direct the   defendant and the defendant's [his] attorney, if any of record, and   the State's attorney, to appear before the court at the time and   place stated in the court's order for a conference and hearing   regardless of whether the defendant has been formally charged. The   defendant must be present at the arraignment, and the defendant's    [his] presence is required during any pre-trial proceeding. The   pre-trial hearing shall be to determine any of the following   matters:                (1)  Arraignment of the defendant, if such be   necessary; and appointment of counsel to represent the defendant,   if such be necessary;                (2)  Pleadings of the defendant;                (3)  Special pleas, if any;                (4)  Exceptions to the form or substance of the   indictment or information;                (5)  Motions for continuance either by the State or   defendant; provided that grounds for continuance not existing or   not known at the time may be presented and considered at any time   before the defendant announces ready for trial;                (6)  Motions to suppress evidence--When a hearing on   the motion to suppress evidence is granted, the court may determine   the merits of said motion on the motions themselves, or upon   opposing affidavits, or upon oral testimony, subject to the   discretion of the court;                (7)  Motions for change of venue by the State or the   defendant; provided, however, that such motions for change of   venue, if overruled at the pre-trial hearing, may be renewed by the   State or the defendant during the voir dire examination of the jury;                (8)  Discovery;                (9)  Entrapment; [and]                (10)  Motion for appointment of interpreter; and                (11)  Motion to allow the defendant to enter a pretrial   victim-offender mediation program established under Subchapter   A-1, Chapter 56.          SECTION 2.  Chapter 56, Code of Criminal Procedure, is   amended by adding Subchapter A-1 to read as follows:   SUBCHAPTER A-1.  PRETRIAL VICTIM-OFFENDER MEDIATION PROGRAM          Art. 56.21.  AUTHORITY TO ESTABLISH PROGRAM.  (a)  The   commissioners court of a county or governing body of a municipality   may, in coordination with the office of the attorney representing   the state in the county or municipality, establish a pretrial   victim-offender mediation program for persons who:                (1)  have been arrested for or charged with a   misdemeanor or state jail felony under Title 7, Penal Code; and                (2)  have not previously been convicted of a felony or a   misdemeanor, other than a misdemeanor traffic offense punishable by   fine only.          (b)  A court that implements a program under this subchapter   may adopt administrative rules and local rules of procedure as   necessary or appropriate to implement or operate the program.          (c)  The commissioners court of a county or governing body of   a municipality that establishes a program under this subchapter   may:                (1)  allow for referral to the program of arrested   persons described by Subsection (a) who have not yet been formally   charged with an offense;                (2)  adopt administrative rules and local rules of   procedure as necessary or appropriate to implement or operate the   program; and                (3)  approve additional program requirements as   recommended by the attorney representing the state.          Art. 56.22.  PROGRAM. (a) A pretrial victim-offender   mediation program established under Article 56.21 on or after   September 1, 2017, must require:                (1)  the designation of individual defendants who are   eligible to participate in the program, based on standards   established by Article 56.21 and any local standards approved by   the commissioners court of the county or the governing body of the   municipality, as applicable;                (2)  the attorney representing the state to consent to   the referral of a defendant's matter to mediation under the   program;                (3)  the consent of the victim to be obtained and   documented in the record of the court by the attorney representing   the state before the case may proceed to pretrial victim-offender   mediation; and                (4)  the defendant to enter into a binding mediation   agreement in accordance with Article 56.23 that requires the   defendant to take responsibility for the defendant's actions and   addresses the specific circumstances of the defendant's actions,   which may:                      (A)  include an apology by the defendant; or                      (B)  require the defendant to:                            (i)  pay restitution to the victim;                            (ii)  perform community service; or                            (iii)  both pay restitution and perform   community service.          (b)  A court may elect to apply the provisions under   Subsection (a) in implementing a pretrial victim-offender   mediation program that was established by the commissioners court   of a county or governing body of a municipality before September 1,   2017.          (c)  All communications made in a pretrial victim-offender   mediation program are confidential and may not be introduced into   evidence except in an open court proceeding instituted to determine   the meaning of a mediation agreement.          (d)  A pretrial victim-offender mediation program may   require the staff and other resources of pretrial services   departments and community supervision and corrections departments   to assist the court or the attorney representing the state in   monitoring the defendant's compliance with a mediation agreement   reached through the program.          (e)  A pretrial victim-offender mediation may be conducted   by a court-appointed mediator who meets the training requirements   provided by Sections 154.052(a) and (b), Civil Practice and   Remedies Code, and has completed training in criminal justice   mediation, or by any other appropriate person designated by the   court.  Neither the attorney representing the state nor the   attorney representing the defendant in the criminal action may   serve as a mediator in the defendant's pretrial victim-offender   mediation program.          (f)  If a defendant enters a pretrial victim-offender   mediation program, the court may defer the proceedings without   accepting a plea of guilty or nolo contendere or entering an   adjudication of guilt.  The court may not require the defendant to   admit guilt or enter a plea of guilty or nolo contendere to enter   the program.          (g)  The case must be returned to the docket and proceed   through the regular criminal justice system if:                (1)  a pretrial victim-offender mediation does not   result in a mediation agreement;                (2)  the defendant fails to fulfill the terms of the   mediation agreement successfully by the date specified in the   mediation agreement; or                (3)  the mediator determines, based on the mediator's   training and experience, that:                      (A)  the victim or defendant no longer wants to   participate or cooperate; or                      (B)  the mediation will be ineffective.          (h)  If a case is returned to the docket under Subsection   (g), the defendant retains all of the rights that the defendant   possessed before entering the pretrial victim-offender mediation   program under this subchapter. Notwithstanding any other law, for   purposes of determining the duration and expiration of an   applicable statute of limitation under Chapter 12, the running of   the period of limitation is tolled while the defendant is enrolled   in a program under this subchapter.          (i)  If the defendant successfully completes the mediation   agreement as represented to the court by the attorney representing   the state, after notice to the attorney representing the state and a   hearing at which the court determines that a dismissal of any   indictment or information charging the defendant with the   commission of the offense is in the best interest of justice, the   court shall dismiss the criminal action against the defendant.          (j)  The court or the attorney representing the state may   extend the initial compliance period granted to the defendant.          (k)  A determination by the court regarding whether the   mediation agreement has been successfully completed is final and   may not be appealed.          (l)  If the defendant is not arrested or convicted of a   subsequent felony or misdemeanor other than a misdemeanor traffic   offense punishable by fine only on or before the first anniversary   of the date the defendant successfully completed a mediation   agreement under this subchapter, on the motion of the defendant,   the court shall enter an order of nondisclosure of criminal history   record information under Subchapter E-1, Chapter 411, Government   Code, as if the defendant had received a discharge and dismissal   under Article 42A.111, with respect to all records and files   related to the defendant's arrest for the offense for which the   defendant entered the pretrial victim-offender mediation program.          Art. 56.23.  MEDIATION AGREEMENT. (a) A mediation   agreement under this subchapter must be in writing and:                (1)  signed by the defendant and the victim; and                (2)  ratified by the attorney representing the state in   the attorney's request for a court order to document and approve the   mediation agreement for the record.          (b)  A mediation agreement may require testing, counseling,   and treatment of the defendant to address alcohol abuse, abuse of   controlled substances, mental health, or anger management or any   other service that is reasonably related to the offense for which   the defendant was arrested or charged.          (c)  A mediation agreement is not valid for more than one   year after the date on which the mediation agreement is ratified   unless the court and the attorney representing the state approve   the extension of the agreement.          (d)  A mediation agreement under this subchapter does not   constitute a plea or legal admission of responsibility.          Art. 56.24.  LEGISLATIVE REVIEW. The lieutenant governor   and the speaker of the house of representatives may assign to   appropriate legislative committees interim duties relating to the   study, review, and evaluation of pretrial victim-offender   mediation programs established under this subchapter, and those   committees may make recommendations to the legislature for   appropriate policies to monitor, improve, or provide state   resources for those programs.          Art. 56.25.  LOCAL REVIEW. The commissioners court of a   county or governing body of a municipality may request a   management, operations, or financial or accounting audit of a   pretrial victim-offender mediation program established under this   subchapter.          Art. 56.26.  FEES. (a) A pretrial victim-offender   mediation program established under this subchapter shall collect   from a defendant in the program a reasonable program participation   fee not to exceed $500 and may collect from the defendant an alcohol   or controlled substance testing, counseling, and treatment fee in   an amount necessary to cover the costs of the testing, counseling,   or treatment, if such testing, counseling, or treatment is required   by the mediation agreement.          (b)  Fees collected under this article may be paid on a   periodic basis or on a deferred payment schedule at the discretion   of the judge, magistrate, or program director administering the   pretrial victim-offender mediation program. The fees must be:                (1)  based on the defendant's ability to pay; and                (2)  used only for purposes specific to the program.          Art. 56.27.  NOTICE. The office of an attorney representing   the state that participates in a pretrial victim-offender mediation   program established under this subchapter shall notify the public   by posting information about the program on the office's website.          SECTION 3.  Subchapter A, Chapter 102, Code of Criminal   Procedure, is amended by adding Article 102.0179 to read as   follows:          Art. 102.0179.  COSTS ATTENDANT TO PRETRIAL VICTIM-OFFENDER   MEDIATION. (a) A defendant who participates in a pretrial   victim-offender mediation program established under Subchapter   A-1, Chapter 56, on successful completion of the terms of the   defendant's mediation agreement or on conviction, shall pay as   court costs $15 plus an additional program participation fee as   described by Article 56.26 in the amount prescribed by that   article.          (b)  The court clerk shall collect the costs imposed under   this article. The clerk shall keep a separate record of any money   collected under this article and shall pay any money collected to   the county or municipal treasurer, as appropriate, or to any other   official who discharges the duties commonly delegated to a   treasurer, for deposit in a fund to be known as the county pretrial   victim-offender mediation program fund or in a fund to be known as   the municipal pretrial victim-offender mediation program fund, as   appropriate.          (c)  A county or municipality that collects court costs under   this article shall use the money in a fund described by Subsection   (b) exclusively for the maintenance of the pretrial victim-offender   mediation program operated in the county or municipality.          SECTION 4.  Chapter 54, Family Code, is amended by adding   Section 54.035 to read as follows:          Sec. 54.035.  VICTIM-OFFENDER MEDIATION. (a) The Texas   Juvenile Justice Board by rule shall establish guidelines   permitting victim-offender mediation programs to be implemented   and administered by juvenile boards.          (b)  In a mediation program authorized under this section,   each victim to whom this section applies must be informed of the   victim's right to request victim-offender mediation.          (c)  Participation in a victim-offender mediation program   under this section by a child and by a victim must be voluntary. If a   child's case is forwarded to the office of the prosecuting attorney   under Section 53.01, the prosecuting attorney must consent to the   mediation in which the child may participate under the program.          (d)  If an agreement is not reached between the victim and   the child or if the child does not successfully complete the terms   of the agreement, as determined by the juvenile court, the child's   case shall proceed in accordance with the applicable provisions of   this title.          SECTION 5.  Section 57.002(a), Family Code, is amended to   read as follows:          (a)  A victim, guardian of a victim, or close relative of a   deceased victim is entitled to the following rights within the   juvenile justice system:                (1)  the right to receive from law enforcement agencies   adequate protection from harm and threats of harm arising from   cooperation with prosecution efforts;                (2)  the right to have the court or person appointed by   the court take the safety of the victim or the victim's family into   consideration as an element in determining whether the child should   be detained before the child's conduct is adjudicated;                (3)  the right, if requested, to be informed of   relevant court proceedings, including appellate proceedings, and   to be informed in a timely manner if those court proceedings have   been canceled or rescheduled;                (4)  the right to be informed, when requested, by the   court or a person appointed by the court concerning the procedures   in the juvenile justice system, including general procedures   relating to:                      (A)  the preliminary investigation and deferred   prosecution of a case; and                      (B)  the appeal of the case;                (5)  the right to provide pertinent information to a   juvenile court conducting a disposition hearing concerning the   impact of the offense on the victim and the victim's family by   testimony, written statement, or any other manner before the court   renders its disposition;                (6)  the right to receive information regarding   compensation to victims as provided by Subchapter B, Chapter 56,   Code of Criminal Procedure, including information related to the   costs that may be compensated under that subchapter and the amount   of compensation, eligibility for compensation, and procedures for   application for compensation under that subchapter, the payment of   medical expenses under Article [Section] 56.06, Code of Criminal   Procedure, for a victim of a sexual assault, and when requested, to   referral to available social service agencies that may offer   additional assistance;                (7)  the right to be informed, upon request, of   procedures for release under supervision or transfer of the person   to the custody of the Texas Department of Criminal Justice for   parole, to participate in the release or transfer for parole   process, to be notified, if requested, of the person's release,   escape, or transfer for parole proceedings concerning the person,   to provide to the Texas Juvenile Justice Department for inclusion   in the person's file information to be considered by the department   before the release under supervision or transfer for parole of the   person, and to be notified, if requested, of the person's release or   transfer for parole;                (8)  the right to be provided with a waiting area,   separate or secure from other witnesses, including the child   alleged to have committed the conduct and relatives of the child,   before testifying in any proceeding concerning the child, or, if a   separate waiting area is not available, other safeguards should be   taken to minimize the victim's contact with the child and the   child's relatives and witnesses, before and during court   proceedings;                (9)  the right to prompt return of any property of the   victim that is held by a law enforcement agency or the attorney for   the state as evidence when the property is no longer required for   that purpose;                (10)  the right to have the attorney for the state   notify the employer of the victim, if requested, of the necessity of   the victim's cooperation and testimony in a proceeding that may   necessitate the absence of the victim from work for good cause;                (11)  the right to be present at all public court   proceedings related to the conduct of the child as provided by   Section 54.08, subject to that section; [and]                (12)  for a victim to whom Section 54.035 applies, the   right to request victim-offender mediation under that section; and                (13)  any other right appropriate to the victim that a   victim of criminal conduct has under Article 56.02 or 56.021, Code   of Criminal Procedure.          SECTION 6.  Section 58.003, Family Code, is amended by   adding Subsections (c-9) and (c-10) to read as follows:          (c-9)  Notwithstanding Subsections (a) and (c) and subject   to Subsection (b), a juvenile court may order the sealing of records   concerning a child alleged to have engaged in delinquent conduct or   conduct indicating a need for supervision if the child successfully   completed a victim-offender mediation program under Section   54.035.  The court may:                (1)  immediately order the sealing of the records   without a hearing; or                (2)  hold a hearing to determine whether to seal the   records.          (c-10)  If the court orders the sealing of a child's records   under Subsection (c-9), a prosecuting attorney or juvenile   probation department may maintain until the child's 17th birthday a   separate record of the child's name and date of birth, the   allegation against the child, and the date the child successfully   completed the victim-offender mediation program.  The prosecuting   attorney or juvenile probation department, as applicable, shall   send the record to the court as soon as practicable after the   child's 17th birthday to be added to the child's other sealed   records.          SECTION 7.  Subchapter B, Chapter 102, Government Code, is   amended by adding Section 102.0215 to read as follows:          Sec. 102.0215.  ADDITIONAL COURT COSTS: CODE OF CRIMINAL   PROCEDURE. A defendant who participates in a pretrial   victim-offender mediation program established under Subchapter   A-1, Chapter 56, Code of Criminal Procedure, shall pay on   successful completion of the terms of the defendant's mediation   agreement or on conviction, in addition to all other costs, to help   fund pretrial victim-offender mediation programs established under   that subchapter (Art. 102.0179, Code of Criminal Procedure) . . .   $15 plus an additional program participation fee in an amount not to   exceed $500.          SECTION 8.  Subchapter A, Chapter 221, Human Resources Code,   is amended by adding Section 221.013 to read as follows:          Sec. 221.013.  MEDIATION MONITORING. The department shall   monitor the success of victim-offender mediation programs   established under Section 54.035, Family Code.          SECTION 9.  (a)  Subchapter A-1, Chapter 56, Code of Criminal   Procedure, as added by this Act, applies to a defendant who enters a   pretrial victim-offender mediation program under that subchapter   regardless of whether the defendant committed the offense for which   the defendant enters the program before, on, or after the effective   date of this Act.          (b)  Article 102.0179, Code of Criminal Procedure, and   Section 102.0215, Government Code, as added by this Act, apply only   to an offense committed on or after the effective date of this Act.   An offense committed before the effective date of this Act is   governed by the law in effect on the date the offense was committed,   and the former law is continued in effect for that purpose. For   purposes of this subsection, an offense was committed before the   effective date of this Act if any element of the offense was   committed before that date.          SECTION 10.  (a)  Not later than December 1, 2017, the Texas   Juvenile Justice Board shall establish guidelines for   victim-offender mediation programs as required by Section 54.035,   Family Code, as added by this Act.          (b)  Section 54.035, Family Code, as added by this Act,   applies only to a victim-offender mediation under that section that   occurs on or after January 1, 2018, regardless of whether the   conduct that is the basis of the mediation occurs before, on, or   after that date.          SECTION 11.  This Act takes effect September 1, 2017.