Texas 2009 - 81st Regular

Texas House Bill HB4164 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R2958 GCB-D
2	2	By: Moody H.B. No. 4164
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the conduct constituting the offense of graffiti, the
8	8	creation and criminal prosecution of, and penalties for offenses
9	9	involving graffiti, and the authority of certain governmental
10	10	entities to take certain actions designed to prevent or eradicate
11	11	graffiti.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. Section 28.08(a), (c), and (d), Penal Code, are
14	14	amended to read as follows:
15	15	(a) A person commits an offense if, without the effective
16	16	consent of the owner, the person intentionally or knowingly:
17	17	(1) makes markings, including inscriptions, slogans,
18	18	drawings, or paintings, on the tangible property of the owner with:
19	19	(A) [(1)] aerosol paint;
20	20	(B) [(2)] an indelible marker; or
21	21	(C) [(3)] an etching or engraving device; or
22	22	(2) affixes a sticker to the tangible property of the
23	23	owner in a manner that causes damage to the property.
24	24	(c) When more than one item of tangible property, belonging
25	25	to one or more owners, is marked in violation of Subsection (a)(1)
26	26	[this section] pursuant to one scheme or continuing course of
27	27	conduct, the conduct may be considered as one offense, and the
28	28	amounts of pecuniary loss to property resulting from the marking of
29	29	the property may be aggregated in determining the grade of the
30	30	offense.
31	31	(d) An offense under Subsection (a)(1) [this section] is a
32	32	state jail felony if:
33	33	(1) the marking is made on a school, an institution of
34	34	higher education, a place of worship or human burial, a public
35	35	monument, or a community center that provides medical, social, or
36	36	educational programs; and
37	37	(2) the amount of the pecuniary loss to real property
38	38	or to tangible personal property is less than $20,000.
39	39	SECTION 2. Chapter 30, Penal Code, is amended by adding
40	40	Section 30.021 to read as follows:
41	41	Sec. 30.021. BURGLARY OF BUILDING TO CREATE GRAFFITI. (a) A
42	42	person commits an offense if, without the effective consent of the
43	43	owner, the person:
44	44	(1) enters a building (or any portion of a building)
45	45	not then open to the public, with the intent to commit an offense
46	46	under Section 28.08;
47	47	(2) remains concealed, with the intent to commit an
48	48	offense under Section 28.08, in a building; or
49	49	(3) enters a building and commits or attempts to
50	50	commit an offense under Section 28.08.
51	51	(b) For purposes of this section, "enter" has the meaning
52	52	assigned by Section 30.02.
53	53	(c) An offense under this section is a state jail felony.
54	54	SECTION 3. Section 71.02(a), Penal Code, is amended to read
55	55	as follows:
56	56	(a) A person commits an offense if, with the intent to
57	57	establish, maintain, or participate in a combination or in the
58	58	profits of a combination or as a member of a criminal street gang,
59	59	he commits or conspires to commit one or more of the following:
60	60	(1) murder, capital murder, arson, aggravated
61	61	robbery, robbery, burglary, theft, aggravated kidnapping,
62	62	kidnapping, aggravated assault, aggravated sexual assault, sexual
63	63	assault, forgery, deadly conduct, assault punishable as a Class A
64	64	misdemeanor, burglary of a motor vehicle, or unauthorized use of a
65	65	motor vehicle;
66	66	(2) any gambling offense punishable as a Class A
67	67	misdemeanor;
68	68	(3) promotion of prostitution, aggravated promotion
69	69	of prostitution, or compelling prostitution;
70	70	(4) unlawful manufacture, transportation, repair, or
71	71	sale of firearms or prohibited weapons;
72	72	(5) unlawful manufacture, delivery, dispensation, or
73	73	distribution of a controlled substance or dangerous drug, or
74	74	unlawful possession of a controlled substance or dangerous drug
75	75	through forgery, fraud, misrepresentation, or deception;
76	76	(6) any unlawful wholesale promotion or possession of
77	77	any obscene material or obscene device with the intent to wholesale
78	78	promote the same;
79	79	(7) any offense under Subchapter B, Chapter 43,
80	80	depicting or involving conduct by or directed toward a child
81	81	younger than 18 years of age;
82	82	(8) any felony offense under Chapter 32;
83	83	(9) any offense under Chapter 36;
84	84	(10) any offense under Chapter 34 or 35;
85	85	(11) any offense under Section 37.11(a);
86	86	(12) any offense under Chapter 20A; [or]
87	87	(13) any offense under Section 37.10; or
88	88	(14) any offense under Section 28.08.
89	89	SECTION 4. Articles 102.0171(a) and (c), Code of Criminal
90	90	Procedure, are amended to read as follows:
91	91	(a) A defendant convicted of an offense under Section 28.08,
92	92	Penal Code, in a county court, county court at law, or district
93	93	court shall pay a [$50] juvenile delinquency prevention and
94	94	graffiti eradication fee as a cost of court. The amount of the fee
95	95	under this section must be not less than $50 or more than $500. In
96	96	setting the amount of the fee, the court shall increase the fee
97	97	based on the amount of pecuniary loss in the case and the number of
98	98	times the defendant has been previously convicted under Section
99	99	28.08, Penal Code.
100	100	(c) The clerks of the respective courts shall collect the
101	101	costs and pay them to the county treasurer or to any other official
102	102	who discharges the duties commonly delegated to the county
103	103	treasurer for deposit in a fund to be known as the county juvenile
104	104	delinquency prevention fund. A fund designated by this subsection
105	105	may be used only to:
106	106	(1) repair damage caused by the commission of offenses
107	107	under Section 28.08, Penal Code;
108	108	(2) provide educational and intervention programs and
109	109	materials, including printed educational materials for
110	110	distribution to primary and secondary school students, designed to
111	111	prevent individuals from committing offenses under Section 28.08,
112	112	Penal Code;
113	113	(3) provide to the public rewards for identifying and
114	114	aiding in the apprehension and prosecution of offenders who commit
115	115	offenses under Section 28.08, Penal Code;
116	116	(4) provide funding for teen recognition and teen
117	117	recreation programs;
118	118	(5) provide funding for local teen court programs;
119	119	(6) provide funding for the local juvenile probation
120	120	department; [and]
121	121	(7) provide educational and intervention programs
122	122	designed to prevent juveniles from engaging in delinquent conduct;
123	123	and
124	124	(8) provide funding for community art programs.
125	125	SECTION 5. Subchapter C, Chapter 101, Civil Practice and
126	126	Remedies Code, is amended by adding Section 101.067 to read as
127	127	follows:
128	128	Sec. 101.067. GRAFFITI REMOVAL. This chapter does not
129	129	apply to a claim for property damage caused by the removal of
130	130	graffiti under Section 250.007, Local Government Code.
131	131	SECTION 6. Section 54.0461(a), Family Code, is amended to
132	132	read as follows:
133	133	(a) If a child is adjudicated as having engaged in
134	134	delinquent conduct that violates Section 28.08, Penal Code, the
135	135	juvenile court shall order the child, parent, or other person
136	136	responsible for the child's support to pay to the court a [$50]
137	137	juvenile delinquency prevention fee as a cost of court. The amount
138	138	of the fee under this section must be not less than $50 or more than
139	139	$500. In setting the amount of the fee, the court shall increase
140	140	the fee based on the amount of pecuniary loss resulting from the
141	141	conduct and the number of times the child has been previously
142	142	adjudicated as having engaged in delinquent conduct violating
143	143	Section 28.08, Penal Code.
144	144	SECTION 7. Section 102.041, Government Code, as amended by
145	145	Chapter 921 (H.B. 3167), Acts of the 80th Legislature, Regular
146	146	Session, 2007, is amended to read as follows:
147	147	Sec. 102.041. ADDITIONAL COURT COSTS ON CONVICTION IN
148	148	DISTRICT COURT: CODE OF CRIMINAL PROCEDURE. The clerk of a
149	149	district court shall collect fees and costs under the Code of
150	150	Criminal Procedure on conviction of a defendant as follows:
151	151	(1) a jury fee (Art. 102.004, Code of Criminal
152	152	Procedure) . . . $20;
153	153	(2) a fee for clerk of the court services (Art.
154	154	102.005, Code of Criminal Procedure) . . . $40;
155	155	(3) a records management and preservation services fee
156	156	(Art. 102.005, Code of Criminal Procedure) . . . $25;
157	157	(4) a security fee on a felony offense (Art. 102.017,
158	158	Code of Criminal Procedure) . . . $5;
159	159	(5) a security fee on a misdemeanor offense (Art.
160	160	102.017, Code of Criminal Procedure) . . . $3; and
161	161	(6) a juvenile delinquency prevention and graffiti
162	162	eradication fee (Art. 102.0171, Code of Criminal Procedure) . . .
163	163	not less than $50 or more than $500 [$5].
164	164	SECTION 8. Section 102.061, Government Code, as amended by
165	165	Chapter 921 (H.B. 3167), Acts of the 80th Legislature, Regular
166	166	Session, 2007, is amended to read as follows:
167	167	Sec. 102.061. ADDITIONAL COURT COSTS ON CONVICTION IN
168	168	STATUTORY COUNTY COURT: CODE OF CRIMINAL PROCEDURE. The clerk of a
169	169	statutory county court shall collect fees and costs under the Code
170	170	of Criminal Procedure on conviction of a defendant as follows:
171	171	(1) a jury fee (Art. 102.004, Code of Criminal
172	172	Procedure) . . . $20;
173	173	(2) a fee for services of the clerk of the court (Art.
174	174	102.005, Code of Criminal Procedure) . . . $40;
175	175	(3) a records management and preservation services fee
176	176	(Art. 102.005, Code of Criminal Procedure) . . . $25;
177	177	(4) a security fee on a misdemeanor offense (Art.
178	178	102.017, Code of Criminal Procedure) . . . $3;
179	179	(5) a juvenile delinquency prevention and graffiti
180	180	eradication fee (Art. 102.0171, Code of Criminal Procedure) . . .
181	181	not less than $50 or more than $500 [$5]; and
182	182	(6) a juvenile case manager fee (Art. 102.0174, Code
183	183	of Criminal Procedure) . . . not to exceed $5.
184	184	SECTION 9. Section 102.081, Government Code, as amended by
185	185	Chapter 921 (H.B. 3167), Acts of the 80th Legislature, Regular
186	186	Session, 2007, is amended to read as follows:
187	187	Sec. 102.081. ADDITIONAL COURT COSTS ON CONVICTION IN
188	188	COUNTY COURT: CODE OF CRIMINAL PROCEDURE. The clerk of a county
189	189	court shall collect fees and costs under the Code of Criminal
190	190	Procedure on conviction of a defendant as follows:
191	191	(1) a jury fee (Art. 102.004, Code of Criminal
192	192	Procedure) . . . $20;
193	193	(2) a fee for clerk of the court services (Art.
194	194	102.005, Code of Criminal Procedure) . . . $40;
195	195	(3) a records management and preservation services fee
196	196	(Art. 102.005, Code of Criminal Procedure) . . . $25;
197	197	(4) a security fee on a misdemeanor offense (Art.
198	198	102.017, Code of Criminal Procedure) . . . $3;
199	199	(5) a juvenile delinquency prevention and graffiti
200	200	eradication fee (Art. 102.0171, Code of Criminal Procedure) . . .
201	201	not less than $50 or more than $500 [$5]; and
202	202	(6) a juvenile case manager fee (Art. 102.0174, Code
203	203	of Criminal Procedure) . . . not to exceed $5.
204	204	SECTION 10. Section 103.0212, Government Code, is amended
205	205	to read as follows:
206	206	Sec. 103.0212. ADDITIONAL FEES AND COSTS IN CRIMINAL OR
207	207	CIVIL CASES: FAMILY CODE. An accused or defendant, or a party to a
208	208	civil suit, as applicable, shall pay the following fees and costs
209	209	under the Family Code if ordered by the court or otherwise required:
210	210	(1) in family matters:
211	211	(A) issuing writ of withholding (Sec. 8.262,
212	212	Family Code) . . . $15;
213	213	(B) filing copy of writ of withholding to
214	214	subsequent employer (Sec. 8.267, Family Code) . . . $15;
215	215	(C) issuing and delivering modified writ of
216	216	withholding or notice of termination (Sec. 8.302, Family Code)
217	217	. . . $15;
218	218	(D) issuing and delivering notice of termination
219	219	of withholding (Sec. 8.303, Family Code) . . . $15;
220	220	(E) issuance of change of name certificate (Sec.
221	221	45.106, Family Code) . . . $10;
222	222	(F) protective order fee (Sec. 81.003, Family
223	223	Code) . . . $16;
224	224	(G) filing suit requesting adoption of child
225	225	(Sec. 108.006, Family Code) . . . $15;
226	226	(H) filing fees for suits affecting parent-child
227	227	relationship (Sec. 110.002, Family Code):
228	228	(i) suit or motion for modification (Sec.
229	229	110.002, Family Code) . . . $15;
230	230	(ii) motion for enforcement (Sec. 110.002,
231	231	Family Code) . . . $15;
232	232	(iii) notice of application for judicial
233	233	writ of withholding (Sec. 110.002, Family Code) . . . $15;
234	234	(iv) motion to transfer (Sec. 110.002,
235	235	Family Code) . . . $15;
236	236	(v) petition for license suspension (Sec.
237	237	110.002, Family Code) . . . $15;
238	238	(vi) motion to revoke a stay of license
239	239	suspension (Sec. 110.002, Family Code) . . . $15; and
240	240	(vii) motion for contempt (Sec. 110.002,
241	241	Family Code) . . . $15;
242	242	(I) order or writ of income withholding to be
243	243	delivered to employer (Sec. 110.004, Family Code) . . . not to
244	244	exceed $15;
245	245	(J) filing fee for transferred case (Sec.
246	246	110.005, Family Code) . . . $45;
247	247	(K) filing a writ of withholding (Sec. 158.319,
248	248	Family Code) . . . $15;
249	249	(L) filing a request for modified writ of
250	250	withholding or notice of termination (Sec. 158.403, Family Code)
251	251	. . . not to exceed $15;
252	252	(M) filing an administrative writ to employer
253	253	(Sec. 158.503, Family Code) . . . not to exceed $15; and
254	254	(N) genetic testing fees in relation to a child
255	255	born to a gestational mother (Sec. 160.762, Family Code) . . . as
256	256	assessed by the court; and
257	257	(2) in juvenile court:
258	258	(A) fee schedule for deferred prosecution
259	259	services (Sec. 53.03, Family Code) . . . maximum fee of $15 a month;
260	260	(B) a teen court administration fee (Sec. 54.032,
261	261	Family Code) . . . not to exceed $10;
262	262	(C) court costs for juvenile probation diversion
263	263	fund (Sec. 54.0411, Family Code) . . . $20;
264	264	(D) a juvenile delinquency prevention fee (Sec.
265	265	54.0461, Family Code) . . . not less than $50 or more than $500
266	266	[$5]; and
267	267	(E) a court fee for child's probationary period
268	268	(Sec. 54.061, Family Code) . . . not to exceed $15 a month.
269	269	SECTION 11. Section 485.018(a), Health and Safety Code, is
270	270	amended to read as follows:
271	271	(a) A political subdivision or an agency of this state may
272	272	not enact an ordinance or rule that requires a business
273	273	establishment to display an abusable volatile chemical, other than
274	274	aerosol paint, in a manner that makes the chemical accessible to
275	275	patrons of the business only with the assistance of personnel of the
276	276	business.
277	277	SECTION 12. Chapter 250, Local Government Code, is amended
278	278	by adding Sections 250.006 and 250.007 to read as follows:
279	279	Sec. 250.006. REGULATION OF SALE OF AEROSOL PAINT;
280	280	SURCHARGE. (a) A county by order or a municipality by ordinance
281	281	may require a person who sells aerosol paint to:
282	282	(1) require proof of identification from the buyer
283	283	before making a sale to that buyer; and
284	284	(2) record the sale in a log and maintain the log for
285	285	at least two years after the date of the sale.
286	286	(b) An order adopted by a county under this section applies
287	287	only in the unincorporated area of the county.
288	288	(c) An order or ordinance adopted under this section may
289	289	require a surcharge not to exceed one dollar on each sale. Money
290	290	collected under this section may be used only for purposes related
291	291	to graffiti abatement.
292	292	Sec. 250.007. GRAFFITI REMOVAL. (a) A county or
293	293	municipality may require an owner of property within the
294	294	jurisdiction of the county or municipality to remove graffiti from
295	295	the owner's property.
296	296	(b) A requirement adopted under this section shall provide
297	297	that if an owner of property fails to remove graffiti not later than
298	298	the seventh day after the date of notice, the county or municipality
299	299	may:
300	300	(1) perform the work necessary to remove the graffiti;
301	301	or
302	302	(2) pay for the removal of the graffiti and charge the
303	303	expense to the owner of the property.
304	304	(c) The notice required by Subsection (b) must be given:
305	305	(1) personally to the owner in writing;
306	306	(2) by letter sent by certified mail, addressed to the
307	307	owner at the owner's address as contained in the records of the
308	308	appraisal district in which the property is located; or
309	309	(3) if service cannot be obtained under Subdivision
310	310	(1) or (2):
311	311	(A) by publication at least once;
312	312	(B) by posting the notice on or near the front
313	313	door of each building on the property to which the notice relates;
314	314	or
315	315	(C) by posting the notice on a placard attached
316	316	to a stake driven into the ground on the property to which the
317	317	notice relates.
318	318	(d) The county or municipality may assess expenses incurred
319	319	under Subsection (b) against the property on which the work is done
320	320	to remove the graffiti.
321	321	(e) To obtain a lien against the property for expenses
322	322	incurred under Subsection (b), the governing body of the county or
323	323	municipality must file a statement of expenses with the county
324	324	clerk. The statement must state the name of the owner, if known,
325	325	and the legal description of the property. The lien attaches on the
326	326	filing of the statement with the county clerk.
327	327	SECTION 13. The changes in law made by this Act apply only
328	328	to an offense committed on or after the effective date of this Act.
329	329	An offense committed before the effective date of this Act is
330	330	covered by the law in effect when the offense was committed, and the
331	331	former law is continued in effect for that purpose. For purposes of
332	332	this section, an offense was committed before the effective date of
333	333	this Act if any element of the offense was committed before that
334	334	date.
335	335	SECTION 14. This Act takes effect September 1, 2009.