By: Christian, et al. H.B. No. 1320
COMMITTEE SUBSTITUTE FOR H.B. No. 1320By: Ellis By: Ellis
(In the Senate - Received from the House May 6, 2009;
May 7, 2009, read first time and referred to Committee on Criminal
Justice; May 23, 2009, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 6, Nays 0;
May 23, 2009, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to creating an offense for engaging in certain conduct
relating to cockfighting and to the criminal and civil consequences
of committing that offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 42, Penal Code, is amended by adding
Section 42.105 to read as follows:
Sec. 42.105. COCKFIGHTING. (a) In this section:
(1) "Cock" means the male of any type of domestic fowl.
(2) "Cockfighting" means any situation in which one
cock attacks or fights with another cock.
(3) "Gaff" means an artificial steel spur designed to
attach to the leg of a cock to replace or supplement the cock's
natural spur.
(4) "Slasher" means a steel weapon resembling a curved
knife blade designed to attach to the foot of a cock.
(b) A person commits an offense if the person knowingly:
(1) causes a cock to fight with another cock;
(2) participates in the earnings of or operates a
facility used for cockfighting;
(3) uses or permits another to use any real estate,
building, room, tent, arena, or other property for cockfighting;
(4) owns or trains a cock with the intent that the cock
be used in an exhibition of cockfighting;
(5) manufactures, buys, sells, barters, exchanges,
possesses, advertises, or otherwise offers a gaff, slasher, or
other sharp implement designed for attachment to a cock with the
intent that the implement be used in cockfighting; or
(6) attends as a spectator an exhibition of
cockfighting.
(c) An offense under Subsection (b)(1), (2), (3), or (5) is
a state jail felony. An offense under Subsection (b)(4) is a Class
A misdemeanor. An offense under Subsection (b)(6) is a Class C
misdemeanor, except that the offense is a Class A misdemeanor if it
is shown on the trial of the offense that the person has been
previously convicted of an offense under that subsection.
SECTION 2. Section 71.02(a), Penal Code, is amended to read
as follows:
(a) A person commits an offense if, with the intent to
establish, maintain, or participate in a combination or in the
profits of a combination or as a member of a criminal street gang,
he commits or conspires to commit one or more of the following:
(1) murder, capital murder, arson, aggravated
robbery, robbery, burglary, theft, aggravated kidnapping,
kidnapping, aggravated assault, aggravated sexual assault, sexual
assault, forgery, deadly conduct, assault punishable as a Class A
misdemeanor, burglary of a motor vehicle, or unauthorized use of a
motor vehicle;
(2) any gambling offense punishable as a Class A
misdemeanor;
(3) promotion of prostitution, aggravated promotion
of prostitution, or compelling prostitution;
(4) unlawful manufacture, transportation, repair, or
sale of firearms or prohibited weapons;
(5) unlawful manufacture, delivery, dispensation, or
distribution of a controlled substance or dangerous drug, or
unlawful possession of a controlled substance or dangerous drug
through forgery, fraud, misrepresentation, or deception;
(6) any unlawful wholesale promotion or possession of
any obscene material or obscene device with the intent to wholesale
promote the same;
(7) any offense under Subchapter B, Chapter 43,
depicting or involving conduct by or directed toward a child
younger than 18 years of age;
(8) any felony offense under Chapter 32;
(9) any offense under Chapter 36;
(10) any offense under Chapter 34 or 35;
(11) any offense under Section 37.11(a);
(12) any offense under Chapter 20A; [or]
(13) any offense under Section 37.10; or
(14) any offense under Section 42.105.
SECTION 3. Article 14.06(d), Code of Criminal Procedure, is
amended to read as follows:
(d) Subsection (c) applies only to a person charged with
committing an offense under:
(1) Section 481.121, Health and Safety Code, if the
offense is punishable under Subsection (b)(1) or (2) of that
section;
(2) Section 28.03, Penal Code, if the offense is
punishable under Subsection (b)(2) of that section;
(3) Section 28.08, Penal Code, if the offense is
punishable under Subsection (b)(1) of that section;
(4) Section 31.03, Penal Code, if the offense is
punishable under Subsection (e)(2)(A) of that section;
(5) Section 31.04, Penal Code, if the offense is
punishable under Subsection (e)(2) of that section;
(6) Section 38.114, Penal Code, if the offense is
punishable as a Class B misdemeanor; [or]
(7) Section 42.105, Penal Code, if the offense is
punishable as a Class A misdemeanor; or
(8) Section 521.457, Transportation Code.
SECTION 4. Articles 18.18(a), (b), (e), and (f), Code of
Criminal Procedure, are amended to read as follows:
(a) Following the final conviction of a person for
possession of a gambling device or equipment, altered gambling
equipment, or gambling paraphernalia, for an offense involving a
criminal instrument, for an offense involving an obscene device or
material, for an offense involving child pornography, or for an
offense involving a scanning device or re-encoder, the court
entering the judgment of conviction shall order that the machine,
device, gambling equipment or gambling paraphernalia, instrument,
obscene device or material, child pornography, or scanning device
or re-encoder be destroyed or forfeited to the state. Not later
than the 30th day after the final conviction of a person for an
offense involving a prohibited weapon, the court entering the
judgment of conviction on its own motion, on the motion of the
prosecuting attorney in the case, or on the motion of the law
enforcement agency initiating the complaint on notice to the
prosecuting attorney in the case if the prosecutor fails to move for
the order shall order that the prohibited weapon be destroyed or
forfeited to the law enforcement agency that initiated the
complaint. If the court fails to enter the order within the time
required by this subsection, any magistrate in the county in which
the offense occurred may enter the order. Following the final
conviction of a person for an offense involving dog fighting or
cockfighting, the court entering the judgment of conviction shall
order that any dog-fighting or cockfighting equipment be destroyed
or forfeited to the state. Destruction of dogs and cocks, if
necessary, must be carried out by a veterinarian licensed in this
state or, if one is not available, by trained personnel of a humane
society or an animal shelter. If forfeited, the court shall order
the contraband delivered to the state, any political subdivision of
the state, or to any state institution or agency. If gambling
proceeds were seized, the court shall order them forfeited to the
state and shall transmit them to the grand jury of the county in
which they were seized for use in investigating alleged violations
of the Penal Code, or to the state, any political subdivision of the
state, or to any state institution or agency.
(b) If there is no prosecution or conviction following
seizure, the magistrate to whom the return was made shall notify in
writing the person found in possession of the alleged gambling
device or equipment, altered gambling equipment or gambling
paraphernalia, gambling proceeds, prohibited weapon, obscene
device or material, child pornography, scanning device or
re-encoder, criminal instrument, or dog-fighting or cockfighting
equipment to show cause why the property seized should not be
destroyed or the proceeds forfeited. The magistrate, on the motion
of the law enforcement agency seizing a prohibited weapon, shall
order the weapon destroyed or forfeited to the law enforcement
agency seizing the weapon, unless a person shows cause as to why the
prohibited weapon should not be destroyed or forfeited. A law
enforcement agency shall make a motion under this section in a
timely manner after the time at which the agency is informed in
writing by the attorney representing the state that no prosecution
will arise from the seizure.
(e) Any person interested in the alleged gambling device or
equipment, altered gambling equipment or gambling paraphernalia,
gambling proceeds, prohibited weapon, obscene device or material,
child pornography, scanning device or re-encoder, criminal
instrument, or dog-fighting or cockfighting equipment seized must
appear before the magistrate on the 20th day following the date the
notice was mailed or posted. Failure to timely appear forfeits any
interest the person may have in the property or proceeds seized, and
no person after failing to timely appear may contest destruction or
forfeiture.
(f) If a person timely appears to show cause why the
property or proceeds should not be destroyed or forfeited, the
magistrate shall conduct a hearing on the issue and determine the
nature of property or proceeds and the person's interest therein.
Unless the person proves by a preponderance of the evidence that the
property or proceeds is not gambling equipment, altered gambling
equipment, gambling paraphernalia, gambling device, gambling
proceeds, prohibited weapon, obscene device or material, child
pornography, criminal instrument, scanning device or re-encoder,
or dog-fighting or cockfighting equipment and that he is entitled
to possession, the magistrate shall dispose of the property or
proceeds in accordance with Paragraph (a) of this article.
SECTION 5. Article 18.18(g), Code of Criminal Procedure, as
effective April 1, 2009, is amended to read as follows:
(g) For purposes of this article:
(1) "criminal instrument" has the meaning defined in
the Penal Code;
(2) "gambling device or equipment, altered gambling
equipment or gambling paraphernalia" has the meaning defined in the
Penal Code;
(3) "prohibited weapon" has the meaning defined in the
Penal Code;
(4) "dog-fighting equipment" means:
(A) equipment used for training or handling a
fighting dog, including a harness, treadmill, cage, decoy, pen,
house for keeping a fighting dog, feeding apparatus, or training
pen;
(B) equipment used for transporting a fighting
dog, including any automobile, or other vehicle, and its
appurtenances which are intended to be used as a vehicle for
transporting a fighting dog;
(C) equipment used to promote or advertise an
exhibition of dog fighting, including a printing press or similar
equipment, paper, ink, or photography equipment; or
(D) a dog trained, being trained, or intended to
be used to fight with another dog;
(4-a) "cockfighting equipment" means:
(A) equipment used for training or handling a
fighting cock, including a cage, decoy, gaff, slasher, pen, house
for keeping a fighting cock, feeding apparatus, or training pen;
(B) equipment used for transporting a fighting
cock, including any automobile or other vehicle and its
appurtenances that are intended to be used as a vehicle for
transporting a fighting cock;
(C) equipment used to promote or advertise an
exhibition of cockfighting, including a printing press or similar
equipment, paper, ink, or photography equipment; or
(D) a cock trained, being trained, or intended to
be used to fight with another cock;
(4-b) "gaff" and "slasher" have the meanings assigned
by Section 42.105, Penal Code;
(5) "obscene device" and "obscene" have the meanings
assigned by Section 43.21, Penal Code;
(6) "re-encoder" has the meaning assigned by Section
522.001, Business & Commerce Code;
(7) "scanning device" has the meaning assigned by
Section 522.001, Business & Commerce Code; and
(8) "obscene material" and "child pornography"
include digital images and the media and equipment on which those
images are stored.
SECTION 6. Article 59.01(2), Code of Criminal Procedure, as
amended by Chapters 127 (S.B. 1694), 822 (H.B. 73), and 885 (H.B.
2278), Acts of the 80th Legislature, Regular Session, 2007, is
reenacted and amended to read as follows:
(2) "Contraband" means property of any nature,
including real, personal, tangible, or intangible, that is:
(A) used in the commission of:
(i) any first or second degree felony under
the Penal Code;
(ii) any felony under Section 15.031(b),
20.05, 21.11, 38.04, Subchapter B of Chapter 43, or Chapter 29, 30,
31, 32, 33, 33A, or 35, Penal Code;
(iii) any felony under The Securities Act
(Article 581-1 et seq., Vernon's Texas Civil Statutes); or
(iv) any offense under Chapter 49, Penal
Code, that is punishable as a felony of the third degree or state
jail felony, if the defendant has been previously convicted three
times of an offense under that chapter;
(B) used or intended to be used in the commission
of:
(i) any felony under Chapter 481, Health
and Safety Code (Texas Controlled Substances Act);
(ii) any felony under Chapter 483, Health
and Safety Code;
(iii) a felony under Chapter 153, Finance
Code;
(iv) any felony under Chapter 34, Penal
Code;
(v) a Class A misdemeanor under Subchapter
B, Chapter 365, Health and Safety Code, if the defendant has been
previously convicted twice of an offense under that subchapter;
(vi) any felony under Chapter 152, Finance
Code;
(vii) any felony under Chapter 32, Human
Resources Code, or Chapter 31, 32, 35A, or 37, Penal Code, that
involves the state Medicaid program;
(viii) a Class B misdemeanor under Chapter
522, Business & Commerce Code; [or]
(ix) a Class A misdemeanor under Section
35.153, Business & Commerce Code; or
(x) any offense under Section 42.105, Penal
Code;
(C) the proceeds gained from the commission of a
felony listed in Paragraph (A) or (B) of this subdivision, a
misdemeanor listed in Paragraph (B)(viii) or (x) of this
subdivision, or a crime of violence;
(D) acquired with proceeds gained from the
commission of a felony listed in Paragraph (A) or (B) of this
subdivision, a misdemeanor listed in Paragraph (B)(viii) or (x) of
this subdivision, or a crime of violence; or
(E) used to facilitate or intended to be used to
facilitate the commission of a felony under Section 15.031 or
43.25, Penal Code.
SECTION 7. Chapter 59, Code of Criminal Procedure, is
amended by adding Article 59.011 to read as follows:
Art. 59.011. If property described by Article
59.01(2)(B)(x) is subject to forfeiture under this chapter and
Article 18.18, the attorney representing the state may proceed
under either provision.
SECTION 8. The changes in law made by this Act apply only to
an offense committed on or after the effective date of this Act or
to the forfeiture of property used in the commission of that
offense. An offense committed before the effective date of this
Act, or the forfeiture of property used in the commission of that
offense, is governed by the law in effect when the offense was
committed, and the former law is continued in effect for that
purpose. For purposes of this section, an offense was committed
before the effective date of this Act if any element of the offense
occurred before that date.
SECTION 9. This Act takes effect September 1, 2009.
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