Texas 2009 - 81st Regular

Texas Senate Bill SB1078 Compare Versions

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

Old	New	Differences
1	1	81R7013 PEP-D
2	2	By: Carona S.B. No. 1078
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	consequences of engaging in that conduct, and the authority of
9	9	certain governmental entities to take certain actions designed to
10	10	eradicate graffiti.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 28.08, Penal Code, is amended to read as
13	13	follows:
14	14	Sec. 28.08. GRAFFITI. (a) A person commits an offense if,
15	15	without the effective consent of the owner, the person
16	16	intentionally or knowingly defaces, makes markings[, including
17	17	inscriptions, slogans, drawings, or paintings,] on, or otherwise
18	18	alters the appearance of the tangible property of the owner with:
19	19	(1) [aerosol] paint;
20	20	(2) an indelible marker; [or]
21	21	(3) an etching or engraving device; or
22	22	(4) a chemical.
23	23	(b) Except as provided by Subsections (d) and (d-1)
24	24	[Subsection (d)], an offense under this section is:
25	25	(1) a Class B misdemeanor if the amount of pecuniary
26	26	loss is less than $500;
27	27	(2) a Class A misdemeanor if the amount of pecuniary
28	28	loss is $500 or more but less than $1,500;
29	29	(3) a state jail felony if the amount of pecuniary loss
30	30	is $1,500 or more but less than $20,000;
31	31	(4) a felony of the third degree if the amount of
32	32	pecuniary loss is $20,000 or more but less than $100,000;
33	33	(5) a felony of the second degree if the amount of
34	34	pecuniary loss is $100,000 or more but less than $200,000; or
35	35	(6) a felony of the first degree if the amount of
36	36	pecuniary loss is $200,000 or more.
37	37	(c) When more than one item of tangible property, belonging
38	38	to one or more owners, is altered [marked] in violation of this
39	39	section pursuant to one scheme or continuing course of conduct, the
40	40	conduct may be considered as one offense, and the amounts of
41	41	pecuniary loss to property resulting from the alterations to
42	42	[marking of] the property may be aggregated in determining the
43	43	grade of the offense.
44	44	(d) An offense under this section is a state jail felony if:
45	45	(1) the alteration [marking] is made on a school, an
46	46	institution of higher education, a place of worship or human
47	47	burial, a public monument, [or] a community center that provides
48	48	medical, social, or educational programs, railroad property,
49	49	property of the United States Postal Service, a street sign, or an
50	50	official traffic-control device; and
51	51	(2) the amount of the pecuniary loss to real property
52	52	or to tangible personal property is less than $20,000.
53	53	(d-1) If it is shown on the trial of an offense under this
54	54	section other than a felony of the first degree or a Class A
55	55	misdemeanor that the defendant has been previously convicted of an
56	56	offense under this section, the punishment for the offense is
57	57	increased to the punishment prescribed for the next highest
58	58	category of offense. If the offense is a Class A misdemeanor, the
59	59	minimum term of confinement for the offense is increased to 180
60	60	days.
61	61	(e) In this section:
62	62	(1) ["Aerosol paint" means an aerosolized paint
63	63	product.
64	64	[(2)] "Etching or engraving device" means a device
65	65	that makes a delineation or impression on tangible property,
66	66	regardless of the manufacturer's intended use for that device.
67	67	(2) [(3)] "Indelible marker" means a device that makes
68	68	a mark with a paint or ink product that is specifically formulated
69	69	to be more difficult to erase, wash out, or remove than ordinary
70	70	paint or ink products.
71	71	(3) [(4)] "Institution of higher education" has the
72	72	meaning assigned by Section 481.134, Health and Safety Code.
73	73	(4) "Marking" includes an inscription, a slogan, a
74	74	drawing, and a painting.
75	75	(5) "Official traffic-control device" has the meaning
76	76	assigned by Section 541.304, Transportation Code.
77	77	(6) "School" means a private or public elementary or
78	78	secondary school.
79	79	SECTION 2. Article 42.037(s), Code of Criminal Procedure,
80	80	is amended to read as follows:
81	81	(s)(1) If a court orders a defendant convicted of an offense
82	82	under Section 28.08, Penal Code, to make restitution to the victim
83	83	of the offense, the court may order the defendant to make
84	84	restitution as provided by Subsection (b)(1)(B) or by personally
85	85	restoring the property by removing or painting over any alterations
86	86	[markings] the defendant made to the property.
87	87	(2) A court shall order a defendant convicted of an
88	88	offense under Section 28.08, Penal Code, to make restitution to a
89	89	political subdivision that owns public property or erected [erects]
90	90	a street sign or official traffic-control device that was altered
91	91	by [on which] the defendant [makes markings] in violation of
92	92	Section 28.08, Penal Code. The amount of the restitution ordered
93	93	must be equal to the lesser of the amount of restitution authorized
94	94	by Subsection (b)(1)(B) or the cost to the political subdivision of
95	95	restoring the public property, street sign, or official
96	96	traffic-control device. If the court orders a defendant to make
97	97	restitution under this subdivision and the defendant is financially
98	98	unable to make the restitution, the court may order the defendant to
99	99	perform a specific number of hours of community service, including
100	100	service restoring the property by removing or painting over any
101	101	alterations [markings] the defendant made to the property, to
102	102	satisfy the restitution. For purposes of this subdivision,
103	103	"official traffic-control device" has the meaning assigned by
104	104	Section 541.304, Transportation Code.
105	105	SECTION 3. Subchapter C, Chapter 101, Civil Practice and
106	106	Remedies Code, is amended by adding Section 101.067 to read as
107	107	follows:
108	108	Sec. 101.067. GRAFFITI REMOVAL. This chapter does not
109	109	apply to a claim for property damage caused by the removal of
110	110	graffiti under Section 250.007, Local Government Code.
111	111	SECTION 4. Section 53.03(h), Family Code, is amended to
112	112	read as follows:
113	113	(h) If the child is alleged to have engaged in delinquent
114	114	conduct or conduct indicating a need for supervision that violates
115	115	Section 28.08, Penal Code, deferred prosecution under this section
116	116	may include:
117	117	(1) voluntary attendance in a class with instruction
118	118	in self-responsibility and empathy for a victim of an offense
119	119	conducted by a local juvenile probation department, if the class is
120	120	available; and
121	121	(2) voluntary restoration of the property damaged by
122	122	the child by removing or painting over any alterations [markings]
123	123	made by the child to the property, if the owner of the property
124	124	consents to the restoration.
125	125	SECTION 5. Section 54.046(a), Family Code, is amended to
126	126	read as follows:
127	127	(a) If a juvenile court places on probation under Section
128	128	54.04(d) a child adjudicated as having engaged in conduct in
129	129	violation of Section 28.08, Penal Code, in addition to other
130	130	conditions of probation, the court:
131	131	(1) may order the child to:
132	132	(A) reimburse the owner of the property for the
133	133	cost of restoring the property; or
134	134	(B) with consent of the owner of the property,
135	135	restore the property by removing or painting over any alterations
136	136	[markings] made by the child to [on] the property; and
137	137	(2) if the child altered [made markings on] public
138	138	property, a street sign, or an official traffic-control device in
139	139	violation of Section 28.08, Penal Code, may order the child to:
140	140	(A) make to the political subdivision that owns
141	141	the public property or erected the street sign or official
142	142	traffic-control device restitution in an amount equal to the lesser
143	143	of the cost to the political subdivision of replacing or restoring
144	144	the public property, street sign, or official traffic-control
145	145	device; or
146	146	(B) with the consent of the political
147	147	subdivision, restore the public property, street sign, or official
148	148	traffic-control device by removing or painting over any alterations
149	149	[markings] made by the child to [on] the property, sign, or device.
150	150	SECTION 6. Section 54.0481(a), Family Code, as added by
151	151	Chapter 1053 (H.B. 2151), Acts of the 80th Legislature, Regular
152	152	Session, 2007, is amended to read as follows:
153	153	(a) A juvenile court, in a disposition hearing under Section
154	154	54.04 regarding a child who has been adjudicated to have engaged in
155	155	delinquent conduct that violates Section 28.08, Penal Code:
156	156	(1) may order the child or a parent or other person
157	157	responsible for the child's support to make restitution by:
158	158	(A) reimbursing the owner of the property for the
159	159	cost of restoring the property; or
160	160	(B) with the consent of the owner of the
161	161	property, personally restoring the property by removing or painting
162	162	over any alterations [markings] the child made to the property; and
163	163	(2) if the child altered [made markings on] public
164	164	property, a street sign, or an official traffic-control device in
165	165	violation of Section 28.08, Penal Code, may order the child or a
166	166	parent or other person responsible for the child's support to:
167	167	(A) make to the political subdivision that owns
168	168	the public property or erected the street sign or official
169	169	traffic-control device restitution in an amount equal to the lesser
170	170	of the cost to the political subdivision of replacing or restoring
171	171	the public property, street sign, or official traffic-control
172	172	device; or
173	173	(B) with the consent of the political
174	174	subdivision, restore the public property, street sign, or official
175	175	traffic-control device by removing or painting over any alterations
176	176	[markings] made by the child to [on] the property, sign, or device.
177	177	SECTION 7. Chapter 250, Local Government Code, is amended
178	178	by adding Section 250.007 to read as follows:
179	179	Sec. 250.007. GRAFFITI REMOVAL. (a) A county by order or a
180	180	municipality by ordinance may require the owner of property within
181	181	the jurisdiction of the county or municipality to remove graffiti
182	182	from the owner's property on receipt of notice from the county or
183	183	municipality.
184	184	(b) The order or ordinance must require a property owner to
185	185	remove the graffiti on or before the 30th day after the date the
186	186	property owner receives notice under Subsection (a), except that if
187	187	the property owner requests the county or municipality, as
188	188	applicable, to remove the graffiti or if the property owner fails to
189	189	remove the graffiti on or before the 30th day after the date of
190	190	receipt of the notice, the county or municipality may remove the
191	191	graffiti and charge the expenses of removal to the property owner in
192	192	accordance with a fee schedule adopted by the county or
193	193	municipality.
194	194	(c) The notice required by Subsection (a) must be given:
195	195	(1) personally to the owner in writing;
196	196	(2) by letter sent by certified mail, addressed to the
197	197	property owner at the property owner's address as contained in the
198	198	records of the appraisal district in which the property is located;
199	199	or
200	200	(3) if service cannot be obtained under Subdivision
201	201	(1) or (2):
202	202	(A) by publication at least once in a newspaper
203	203	of general circulation in the county or municipality;
204	204	(B) by posting the notice on or near the front
205	205	door of each building on the property to which the notice relates;
206	206	or
207	207	(C) by posting the notice on a placard attached
208	208	to a stake driven into the ground on the property to which the
209	209	notice relates.
210	210	(d) The county or municipality may assess expenses incurred
211	211	under Subsection (b) against the property on which the work is
212	212	performed to remove the graffiti.
213	213	(e) To obtain a lien against the property for expenses
214	214	incurred under Subsection (b), the governing body of the county or
215	215	municipality must file a statement of expenses with the county
216	216	clerk. The statement must state the name of the property owner, if
217	217	known, and the legal description of the property. The lien attaches
218	218	on the filing of the statement with the county clerk.
219	219	SECTION 8. The changes in law made by this Act apply only to
220	220	an offense committed or conduct engaged in on or after the effective
221	221	date of this Act. An offense committed or conduct engaged in before
222	222	the effective date of this Act is governed by the law in effect when
223	223	the offense was committed or the conduct was engaged in, and the
224	224	former law is continued in effect for that purpose. For purposes of
225	225	this section, an offense was committed or conduct was engaged in
226	226	before the effective date of this Act if any element of the offense
227	227	or conduct occurred before that date.
228	228	SECTION 9. This Act takes effect September 1, 2009.