HBA-DMD, NIK H.B. 2145 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 2145 By: Allen Public Safety 8/2/1999 Enrolled BACKGROUND AND PURPOSE Prior to the 76th Legislature, information about the 15,500 registered sex offenders in Texas was available through the police and sheriff's departments as well as on the Internet. This database was made possible through the mandatory sex offender registration law. The information available electronically included the name, age, zip code, and shoe size of the sex offender and was updated at least twice a week. What wasn't available was the sex offender's photo, specific street address, telephone number, and social security, and driver's license number. H.B. 2145 relates to persons subject to sex offender registration requirements and to the conditions for supervised release of those persons. These amendments to the Code of Criminal Procedure add requirements to state law as it existed prior to the 76th Legislature, in order to modify and update the sex offender registration process and database. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Article 26.13, Code of Criminal Procedure, by amending Subsection (a) and by adding Subsection (h), as follows: (a) Includes among other preexisting requirements for the court, the requirement of the court, prior to accepting a plea of guilty or a plea of nolo contendere, to admonish the defendant of the fact that the defendant will be required to meet the registration requirements of Chapter 62 (Sex Offender Registration Program), Code of Criminal Procedure, if the defendant is convicted of or placed on deferred adjudication for an offense for which a person is subject to registration under that chapter. (h) Requires the court, before accepting a plea of guilty or nolo contendere from a defendant described by Subsection (a), to ascertain whether the attorney representing the defendant has advised the defendant regarding registration requirements under Chapter 62. SECTION 2. Amends Article 42.01, Code of Criminal Procedure, by adding Section 7, to provide that in addition to the information described by Section 1, the judgment should reflect affirmative findings entered under Article 42.015. SECTION 3. Amends Chapter 42, Code of Criminal Procedure, by adding Article 42.015, as follows: Art. 42.015. FINDING OF AGE OF VICTIM. Requires the judge, in the trial of an offense under Section 20.02 (Unlawful Restraint), 20.03 (Kidnapping), or 20.04 (Aggravated Kidnapping), Penal Code, or an attempt, conspiracy, or solicitation to commit one of those offenses, to 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. SECTION 4. Amends Section 5, Article 42.12, Code of Criminal Procedure, by adding Subsection (e), as follows: (e) Requires the judge, 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, to 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. SECTION 5. (a) Amends Section 5(c), Article 42.12, Code of Criminal Procedure, to authorize the judge to 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, rather than a defendant charged with an offense described by Section 13B(b) of this article, 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. Prohibits the judge from dismissing 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. Deletes text authorizing the judge to dismiss the proceedings and discharge a defendant charged with a felony described by Section 13B(b) of this article only if in the judge's opinion the best interest of society and the defendant will be served and the defendant has successfully completed at least two-thirds of the period of community supervision. (b) Amends Section 20(b), Article 42.12, Code of Criminal Procedure, to include a defendant convicted of an offense for which on conviction registration as a sex offender is required under Chapter 62, as added by Chapter 668, Acts of the 75th Legislature, Regular Session, 1997, among other persons to whom this section does not apply. (c) Makes application of this Act prospective, as it applies to a defendant who receives deferred adjudication for an offense or is convicted of an offense. SECTION 6. (a) Amends Section 11, Article 42.12, Code of Criminal Procedure, by adding Subsection (g), to authorize a judge who grants community supervision to a person to require the person to make one payment in an amount not to exceed $50 to a children's advocacy center established under Subchapter E (Children's Advocacy Centers), Chapter 264 (Child Welfare Services), Family Code, if the person is charged with or convicted of an offense under Section 21.11 (Indecency With a Child) or 22.011(a)(2) (relating to sexual assault of a child), Penal Code. (b) Makes application of this Act prospective, as it applies to a person charged with or convicted of an offense. SECTION 7. Amends Article 62.01(3), Code of Criminal Procedure, to modify the definition of "penal institution." SECTION 8. Amends Articles 62.01(5) and (6), Code of Criminal Procedure, and adds Subdivision (7), to modify the definitions of "reportable conviction or adjudication" and "sexually violent offense" and add the definition of "residence." SECTION 9. Amends Chapter 62, Code of Criminal Procedure, as added by Chapter 668, Acts of the 75th Legislature, Regular Session, 1997, by adding Article 62.011, as follows: Art. 62.011. WORKERS OR STUDENTS. (a) Provides that a person is employed or carries on a vocation for purposes of this chapter if the person works on a full-time or part-time basis for a consecutive period exceeding 14 days or for an aggregate period exceeding 30 days in a calendar year, whether the person works for compensation or for governmental or educational benefit. (b) Provides that a person is a student for purposes of this chapter if the person enrolls in any educational facility, including a public or private primary or secondary school, including a high school or alternative learning center or a public or private institution of higher education, including a college, university, community college, or technical or trade institute. SECTION 10. Amends Article 62.02, Code of Criminal Procedure, by amending Subsection (a) and by adding Subsection (g), as follows: (a) Requires a person who is required to register as a condition of parole, release to mandatory supervision, or community supervision to register or, if the person is a person for whom registration is completed under this chapter, verify registration as provided by Subsection (d), with the local law enforcement authority in any municipality where the person resides or intends to reside for more than seven days. (g) Provides that if the other state has a registration requirement for sex offenders, a person who has a reportable conviction or adjudication, who resides in this state, and who is employed, carries on a vocation, or is a student in another state is required to register with the law enforcement authority that is identified by the Department of Public Safety (DPS) as the authority designated by that state to receive registration information, not later than the 10th day after the date on which the person begins to work or attend school in the other state. SECTION 11. Amends Chapter 62, Code of Criminal Procedure, as added by Chapter 668, Acts of the 75th Legislature, Regular Session, 1997, by adding Article 62.021, as follows: Art. 62.021. OUT-OF-STATE REGISTRANTS. (a) Provides that this article applies to a person who is required to register as a sex offender under the laws of another state with which DPS has entered into a reciprocal registration agreement and to certain persons who are not otherwise required to register under this chapter. (b) Provides that a person described by Subsection (a) is required to comply with the annual verification requirements of Article 62.06 in the same manner as a person who is required to verify registration on the basis of a reportable conviction or adjudication. (c) Provides that the expiration of the duty to register for a person described by Subsection (a) expires on the date the person's duty to register would expire in the other state had the person remained in that state. (d) Authorizes DPS to negotiate and enter into a reciprocal registration agreement with any other state to prevent residents of this state and residents of the other state from frustrating the public purpose of the registration of sex offenders by moving from one state to the other. SECTION 12. Amends Article 62.03, Code of Criminal Procedure, by amending Subsections (d), (e), and (f) and by adding Subsection (h), as follows: (d) Requires the Texas Youth Commission (TYC), a public or private vendor operating under contract with TYC, a local juvenile probation department, or a juvenile secure preadjudication or post-adjudication facility to conduct the prerelease notification and registration requirements specified in this article on the date a person who has a reportable adjudication of delinquent conduct described by Article 62.01(5)(K) or (M) is, as permitted by Section 60.002 (Execution of Interstate Compact), Family Code, placed under the supervision of the vendor, probation department, facility, or TYC. Makes a conforming change. (e) Requires the local law enforcement authority to verify the age of the person who is subject to registration, no later than eight days after receiving a registration form under Subsection (b), (c), or (d). Requires the authority, if the person subject to registration is 17 years of age or older and a student enrolled in a public or private secondary school, regardless of the basis on which the person is subject to registration, to immediately provide notice to the superintendent of the public school district and to the administrator of any private primary or secondary school located in the public school district in which the person subject to registration intends to reside by mail to the office of the superintendent or administrator, as appropriate. Requires the superintendent of a public school district, upon receiving a notice under this subsection, to release the information contained in the notice to appropriate school district personnel, including peace officers and security personnel, principals, nurses, and counselors. (f) Includes the person's full name, numeric street address or physical address, if a numeric street address is not available, and either a recent photograph of the person or the Internet address of a website on which the person's photograph is accessible free of charge, in the information the local law enforcement authority is authorized to include in a newspaper. Makes conforming and nonsubstantive changes. (h) Specifies the instructions that an official of the penal institution is required to inform a person before the person who will be subject to registration under this chapter is due to be released from a penal institution in this state. SECTION 13. Amends Articles 62.04(a), (f), and (g), Code of Criminal Procedure, as follows: (a) Requires a person who is required to register, if that person changes address, no later than seven days after changing the address, to report in person to the local law enforcement authority in the municipality or county in which the person's new residence is located and provide the authority with proof of identity and proof of residence. (f) Makes conforming changes. (g) Makes conforming changes. SECTION 14. Amends Article 62.05, Code of Criminal Procedure, to require a person to report to the local law enforcement authority any change in the person's physical health or job status no later than seven days after the date of the change, if the person who is required to register is not supervised by an officer listed in this section. Provides that for purposes of this subsection, a person's job status changes if the person leaves employment for any reason, remains employed by an employer but changes the location at which the person works, or begins employment with a new employer. Provides that for purposes of this subsection, a person's health status changes if the person is hospitalized as a result of an illness. SECTION 15. Amends Articles 62.06(a) and (b), Code of Criminal Procedure, as follows: (a) Requires a person subject to registration under this chapter who has for a sexually violent offense been convicted two or more times, received an order of deferred adjudication two or more times, or been convicted and received an order of deferred adjudication, rather than a person subject to registration under this chapter who has on two or more occasions been convicted of or received an order of deferred adjudication for a sexually violent offense, to report to the local law enforcement authority with whom the person is required to register at specified intervals. Provides specified provisions for which a person not subject to the 90-day reporting requirements under this subchapter must register no later than 30 days after the anniversary of the person's date of birth, rather than the 30th day after the anniversary of the date on which the person first registered under this chapter. Provides that for purposes of this subsection, a person complies with a requirement that the person register within a 90-day period following a date if the person registers at any time on or after the 83rd day following that date but before the 98th day after that date. (b) Provides that if the person is required to report not less than once in each 90-day period under Subsection (a), rather than if the person has on two or more occasions been convicted of or received an order of deferred adjudication for a sexually violent offense, or if the person is to report once a year in the 30 days either before or after the anniversary of the person's date of birth, rather than the anniversary of the date on which the person first registered under this chapter, if the person is required to report once a year under Subsection (a) the local law enforcement authority is authorized to direct the person to report not less than once in each 90-day period following the date the person first registered under this chapter. SECTION 16. Amends Chapter 62, Code of Criminal Procedure, as added by Chapter 668, Acts of the 75th Legislature, Regular Session, 1997, by adding Articles 62.061 and 62.062, as follows: Art. 62.061. REGISTRATION OF CERTAIN WORKERS OR STUDENTS. (a) Provides that a person is subject to this article and, except as otherwise provided by this article, to the other articles of this chapter if the person has a reportable conviction or adjudication, resides in another state, and is employed, carries on a vocation, or is a student in this state. (b) Provides that a person described by Subsection (a) is subject to the registration and verification requirements of Articles 62.02 and 62.06 and to the change of address requirements of Article 62.04, except that the registration and verification and the reporting of a change of address are based on the municipality or county in which the person works or attends school. Provides that the person is subject to the school notification requirements of Articles 62.03 and 62.04, except that notice provided to the superintendent and any administrator is based on the public school district in which the person works or attends school. (c) Provides that a person described by Subsection (a) is not subject to Article 62.12 and the newspaper publication requirements of Articles 62.03 and 62.04. (d) Provides that the duty to register for a person described by Subsection (a) ends when the person no longer works or studies in this state, provides notice of that fact to the local law enforcement authority in the municipality or county in which the person works or attends school, and receives notice of verification of that fact from the authority. Provides that the authority must verify that the person no longer works or studies in this state and must provide to the person notice of that verification within a reasonable time. (e) Provides that notwithstanding Subsection (a), this article does not apply to a person who has a reportable conviction or adjudication, who resides in another state, and who is employed, carries on a vocation, or is a student in this state if the person establishes another residence in this state to work or attend school in this state. Provides that however, that person remains subject to the other articles of this chapter based on that person's residence in this state. Art. 62.062. REGISTRATION OF PERSONS REGULARLY VISITING LOCATION. (a) Requires a person subject to this chapter who on at least three occasions during any month spends more than 48 consecutive hours in a municipality or county in this state, other than the municipality or county in which the person is registered under this chapter, before the last day of that month to report that fact to certain law enforcement officials. (b) Requires a person described by Subsection (a) to provide the local law enforcement authority with all information the person is required to provide under Article 62.02(b), the address of any location in the municipality or county, as appropriate, at which the person was lodged during the month, and a statement as to whether the person intends to return to the municipality or county during the succeeding month. (c) Provides that this article does not impose on a local law enforcement authority requirements of public notification or notification to schools relating to a person about whom the authority is not otherwise required by this chapter to make notifications. SECTION 17. Amends Article 62.08(b), Code of Criminal Procedure, to delete the person's photograph and numeric street address from the information in the database not available for the public. SECTION 18. Amends Articles 62.10(b) and (c), Code of Criminal Procedure, to provide conditions under which an offense under this article is a state jail felony, a felony of the third degree, and a felony of the second degree. Provides that if it is shown at the trial of a person for an offense under this article that the person has previously been convicted of an offense under this article, the punishment for the offense is increased to the punishment for the next highest degree of felony, rather than the person is required to be punished for a felony of the third degree. SECTION 19. Amends Section 54.04, Family Code, by adding Subsection (q), to require the judge to enter the finding in the order, if the judge orders a disposition under this section and there is an affirmative finding that the victim or intended victim was younger than 17 years of age at the time of the conduct. SECTION 20. Amends Section 58.007(a), Family Code, to add that this section does not apply to a record or file relating to a child that is subject to disclosure under Chapter 62, Code of Criminal Procedure, as added by Chapter 668, Acts of the 75th Legislature, Regular Session, 1997. Makes conforming and nonsubstantive changes. SECTION 21. Amends Section 411.135(a), Government Code, to add that any information under Chapter 62, Code of Criminal Procedure, as added by Chapter 668, Acts of the 75th Legislature, Regular Session,1997, including, to the extent available, a recent photograph of each person subject to registration under that chapter, rather than any information under Section 5, Article 6252-13c.1, V.T.C.S., and criminal history record information maintained by board relating to the conviction of or a grant of deferred adjudication to a person for any criminal offense, including arrest information relating to the conviction or grant of deferred adjudication, as information any person is entitled to obtain from DPS. Deletes criminal history record information maintained by DPS that is a court record of a public judicial proceeding and relating to the conviction of a person for any criminal offense or a grant of deferred adjudication to a person charged with a felony offense. SECTION 22. (a) Amends Section 15.031, Penal Code, to provide that a person commits an offense if, with intent that an offense under Sections 21.11, 22.011, 22.021 (Aggravated Sexual Assault), or 43.25 (Sexual Performance by a Child), Penal Code, be committed, the person by any means requests, commands, or attempts to induce a minor or another whom the person believes to be a minor to engage in specific conduct that, under the circumstances surrounding the actor's conduct as the actor believes them to be, would constitute an offense under one of those sections or would make the minor or other believed by the person to be a minor a party to the commission of an offense under one of those sections. Redesignates existing Subsections (c)-(e) as Subsections (d)-(f), respectively. (b) Amends Section 43.25(a)(2), Penal Code, to redefine "sexual conduct." (c) Amends Section 43.26(g), Penal Code, to provide that an offense under Subsection (e) (relating to the possession or promotion of child pornography) is a felony of the second, rather than third, degree. (d) Makes application of this section prospective. SECTION 23. Amends Section 21.11(b), Penal Code, to provide that it is an affirmative defense to prosecution under this section that the actor at the time of the offense was not required under Chapter 62, Code of Criminal Procedure, as added by Chapter 668, Acts of the 75th Legislature, Regular Session, 1997, to register for life as a sex offender or was not a person who under Chapter 62 had a reportable conviction or adjudication for an offense under this section. SECTION 24. Amends Section 22.011(e), Penal Code, to provide that it is an affirmative defense to prosecution under Subsection (a)(2) that the actor was not more than three years older than the victim and at the time of the offense was not required under Chapter 62, Code of Criminal Procedure, as added by Chapter 668, Acts of the 75th Legislature, Regular Session, 1997, to register for life as a sex offender or was not a person who under Chapter 62 had a reportable conviction or adjudication for an offense under this section and the victim was a child of 14 years of age or older. SECTION 25. Repealer: Section 62.12(c) Code of Criminal Procedure, which exempts a person registered under this chapter from registering in a county where the person resides if it is determined that the person no longer poses a threat to the community. SECTION 26. Amends Section 11(a), Chapter 668, Acts of the 75th Legislature, Regular Session, 1997, to establish September 1, 1997, rather than the effective date of this Act, as the date from which this change in law applies to a defendant. Includes TYC among the entities contracting with another entity having supervision and control of a defendant. SECTION 27. Makes application of this Act prospective, as it applies to an individual for whom deferred adjudication in the case is entered or a trial or disposition hearing for the offense or conduct is commenced. SECTION 28. Provides that the changes in law made by this Act to Article 62.01(5) and Article 62.03(d), Code of Criminal Procedure, apply to juvenile offenders adjudicated as having engaged in delinquent conduct before, on, or after the effective date of this Act, regardless of when the conduct occurred. SECTION 29. Makes application of Articles 62.06(a) and (b), Code of Criminal Procedure, prospective to a defendant who is confined in a penal institution, as that term is defined by Article 62.01(3), Code of Criminal Procedure, or is under the supervision and control of a juvenile probation office or an agency or entity operating under contract with a juvenile probation office, TYC, a community supervision and corrections department, or the pardons and paroles division of the Texas Department of Criminal Justice. SECTION 30. Requires the local law enforcement authority, with whom a person verifies registration by reporting to the authority not earlier than the 30th day before and not later than the 30th day after the anniversary of the date on which the person first registered with the authority to inform the person that the next occasion and each succeeding occasion on which the person verifies registration, the person must comply with Articles 62.06(a) and (b), Code of Criminal Procedure, as amended by this Act. Provides that the change in law to which this section applies does not affect the validity of any action taken by a person to verify registration before the person is provided an opportunity to be informed of the change in law made by this Act as required by this section. SECTION 31. Applies Section 58.007, Family Code, to records and files created or maintained under Chapter 62, Code of Criminal Procedure, as added by Chapter 668, Acts of the 75th Legislature, Regular Session, 1997, on or after September 1, 1995. SECTION 32. Requires DPS to implement the system described by Section 411.135, Government Code, as amended by this Act, no later than January 1, 2000. SECTION 33. Effective date: September 1, 1999, except as otherwise provided. SECTION 34. Emergency clause.