81R7013 PEP-D
By: Carona S.B. No. 1078
A BILL TO BE ENTITLED
AN ACT
relating to the conduct constituting the offense of graffiti, the
consequences of engaging in that conduct, and the authority of
certain governmental entities to take certain actions designed to
eradicate graffiti.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 28.08, Penal Code, is amended to read as
follows:
Sec. 28.08. GRAFFITI. (a) A person commits an offense if,
without the effective consent of the owner, the person
intentionally or knowingly defaces, makes markings[, including
inscriptions, slogans, drawings, or paintings,] on, or otherwise
alters the appearance of the tangible property of the owner with:
(1) [aerosol] paint;
(2) an indelible marker; [or]
(3) an etching or engraving device; or
(4) a chemical.
(b) Except as provided by Subsections (d) and (d-1)
[Subsection (d)], an offense under this section is:
(1) a Class B misdemeanor if the amount of pecuniary
loss is less than $500;
(2) a Class A misdemeanor if the amount of pecuniary
loss is $500 or more but less than $1,500;
(3) a state jail felony if the amount of pecuniary loss
is $1,500 or more but less than $20,000;
(4) a felony of the third degree if the amount of
pecuniary loss is $20,000 or more but less than $100,000;
(5) a felony of the second degree if the amount of
pecuniary loss is $100,000 or more but less than $200,000; or
(6) a felony of the first degree if the amount of
pecuniary loss is $200,000 or more.
(c) When more than one item of tangible property, belonging
to one or more owners, is altered [marked] in violation of this
section pursuant to one scheme or continuing course of conduct, the
conduct may be considered as one offense, and the amounts of
pecuniary loss to property resulting from the alterations to
[marking of] the property may be aggregated in determining the
grade of the offense.
(d) An offense under this section is a state jail felony if:
(1) the alteration [marking] is made on a school, an
institution of higher education, a place of worship or human
burial, a public monument, [or] a community center that provides
medical, social, or educational programs, railroad property,
property of the United States Postal Service, a street sign, or an
official traffic-control device; and
(2) the amount of the pecuniary loss to real property
or to tangible personal property is less than $20,000.
(d-1) If it is shown on the trial of an offense under this
section other than a felony of the first degree or a Class A
misdemeanor that the defendant has been previously convicted of an
offense under this section, the punishment for the offense is
increased to the punishment prescribed for the next highest
category of offense. If the offense is a Class A misdemeanor, the
minimum term of confinement for the offense is increased to 180
days.
(e) In this section:
(1) ["Aerosol paint" means an aerosolized paint
product.
[(2)] "Etching or engraving device" means a device
that makes a delineation or impression on tangible property,
regardless of the manufacturer's intended use for that device.
(2) [(3)] "Indelible marker" means a device that makes
a mark with a paint or ink product that is specifically formulated
to be more difficult to erase, wash out, or remove than ordinary
paint or ink products.
(3) [(4)] "Institution of higher education" has the
meaning assigned by Section 481.134, Health and Safety Code.
(4) "Marking" includes an inscription, a slogan, a
drawing, and a painting.
(5) "Official traffic-control device" has the meaning
assigned by Section 541.304, Transportation Code.
(6) "School" means a private or public elementary or
secondary school.
SECTION 2. Article 42.037(s), Code of Criminal Procedure,
is amended to read as follows:
(s)(1) If a court orders a defendant convicted of an offense
under Section 28.08, Penal Code, to make restitution to the victim
of the offense, the court may order the defendant to make
restitution as provided by Subsection (b)(1)(B) or by personally
restoring the property by removing or painting over any alterations
[markings] the defendant made to the property.
(2) A court shall order a defendant convicted of an
offense under Section 28.08, Penal Code, to make restitution to a
political subdivision that owns public property or erected [erects]
a street sign or official traffic-control device that was altered
by [on which] the defendant [makes markings] in violation of
Section 28.08, Penal Code. The amount of the restitution ordered
must be equal to the lesser of the amount of restitution authorized
by Subsection (b)(1)(B) or the cost to the political subdivision of
restoring the public property, street sign, or official
traffic-control device. If the court orders a defendant to make
restitution under this subdivision and the defendant is financially
unable to make the restitution, the court may order the defendant to
perform a specific number of hours of community service, including
service restoring the property by removing or painting over any
alterations [markings] the defendant made to the property, to
satisfy the restitution. For purposes of this subdivision,
"official traffic-control device" has the meaning assigned by
Section 541.304, Transportation Code.
SECTION 3. Subchapter C, Chapter 101, Civil Practice and
Remedies Code, is amended by adding Section 101.067 to read as
follows:
Sec. 101.067. GRAFFITI REMOVAL. This chapter does not
apply to a claim for property damage caused by the removal of
graffiti under Section 250.007, Local Government Code.
SECTION 4. Section 53.03(h), Family Code, is amended to
read as follows:
(h) If the child is alleged to have engaged in delinquent
conduct or conduct indicating a need for supervision that violates
Section 28.08, Penal Code, deferred prosecution under this section
may include:
(1) voluntary attendance in a class with instruction
in self-responsibility and empathy for a victim of an offense
conducted by a local juvenile probation department, if the class is
available; and
(2) voluntary restoration of the property damaged by
the child by removing or painting over any alterations [markings]
made by the child to the property, if the owner of the property
consents to the restoration.
SECTION 5. Section 54.046(a), Family Code, is amended to
read as follows:
(a) If a juvenile court places on probation under Section
54.04(d) a child adjudicated as having engaged in conduct in
violation of Section 28.08, Penal Code, in addition to other
conditions of probation, the court:
(1) may order the child to:
(A) reimburse the owner of the property for the
cost of restoring the property; or
(B) with consent of the owner of the property,
restore the property by removing or painting over any alterations
[markings] made by the child to [on] the property; and
(2) if the child altered [made markings on] public
property, a street sign, or an official traffic-control device in
violation of Section 28.08, Penal Code, may order the child to:
(A) make to the political subdivision that owns
the public property or erected the street sign or official
traffic-control device restitution in an amount equal to the lesser
of the cost to the political subdivision of replacing or restoring
the public property, street sign, or official traffic-control
device; or
(B) with the consent of the political
subdivision, restore the public property, street sign, or official
traffic-control device by removing or painting over any alterations
[markings] made by the child to [on] the property, sign, or device.
SECTION 6. Section 54.0481(a), Family Code, as added by
Chapter 1053 (H.B. 2151), Acts of the 80th Legislature, Regular
Session, 2007, is amended to read as follows:
(a) A juvenile court, in a disposition hearing under Section
54.04 regarding a child who has been adjudicated to have engaged in
delinquent conduct that violates Section 28.08, Penal Code:
(1) may order the child or a parent or other person
responsible for the child's support to make restitution by:
(A) reimbursing the owner of the property for the
cost of restoring the property; or
(B) with the consent of the owner of the
property, personally restoring the property by removing or painting
over any alterations [markings] the child made to the property; and
(2) if the child altered [made markings on] public
property, a street sign, or an official traffic-control device in
violation of Section 28.08, Penal Code, may order the child or a
parent or other person responsible for the child's support to:
(A) make to the political subdivision that owns
the public property or erected the street sign or official
traffic-control device restitution in an amount equal to the lesser
of the cost to the political subdivision of replacing or restoring
the public property, street sign, or official traffic-control
device; or
(B) with the consent of the political
subdivision, restore the public property, street sign, or official
traffic-control device by removing or painting over any alterations
[markings] made by the child to [on] the property, sign, or device.
SECTION 7. Chapter 250, Local Government Code, is amended
by adding Section 250.007 to read as follows:
Sec. 250.007. GRAFFITI REMOVAL. (a) A county by order or a
municipality by ordinance may require the owner of property within
the jurisdiction of the county or municipality to remove graffiti
from the owner's property on receipt of notice from the county or
municipality.
(b) The order or ordinance must require a property owner to
remove the graffiti on or before the 30th day after the date the
property owner receives notice under Subsection (a), except that if
the property owner requests the county or municipality, as
applicable, to remove the graffiti or if the property owner fails to
remove the graffiti on or before the 30th day after the date of
receipt of the notice, the county or municipality may remove the
graffiti and charge the expenses of removal to the property owner in
accordance with a fee schedule adopted by the county or
municipality.
(c) The notice required by Subsection (a) must be given:
(1) personally to the owner in writing;
(2) by letter sent by certified mail, addressed to the
property owner at the property owner's address as contained in the
records of the appraisal district in which the property is located;
or
(3) if service cannot be obtained under Subdivision
(1) or (2):
(A) by publication at least once in a newspaper
of general circulation in the county or municipality;
(B) by posting the notice on or near the front
door of each building on the property to which the notice relates;
or
(C) by posting the notice on a placard attached
to a stake driven into the ground on the property to which the
notice relates.
(d) The county or municipality may assess expenses incurred
under Subsection (b) against the property on which the work is
performed to remove the graffiti.
(e) To obtain a lien against the property for expenses
incurred under Subsection (b), the governing body of the county or
municipality must file a statement of expenses with the county
clerk. The statement must state the name of the property owner, if
known, and the legal description of the property. The lien attaches
on the filing of the statement with the county clerk.
SECTION 8. The changes in law made by this Act apply only to
an offense committed or conduct engaged in on or after the effective
date of this Act. An offense committed or conduct engaged in before
the effective date of this Act is governed by the law in effect when
the offense was committed or the conduct was engaged in, and the
former law is continued in effect for that purpose. For purposes of
this section, an offense was committed or conduct was engaged in
before the effective date of this Act if any element of the offense
or conduct occurred before that date.
SECTION 9. This Act takes effect September 1, 2009.