| 1 | 1 | | 81R3522 GCB-F |
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| 2 | 2 | | By: Ellis S.B. No. 2282 |
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| 3 | 3 | | |
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| 4 | 4 | | |
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| 5 | 5 | | A BILL TO BE ENTITLED |
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| 6 | 6 | | AN ACT |
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| 7 | 7 | | relating to creating an offense for engaging in certain conduct |
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| 8 | 8 | | relating to cockfighting and to the criminal and civil consequences |
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| 9 | 9 | | of committing that offense. |
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| 10 | 10 | | BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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| 11 | 11 | | SECTION 1. Chapter 42, Penal Code, is amended by adding |
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| 12 | 12 | | Section 42.105 to read as follows: |
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| 13 | 13 | | Sec. 42.105. COCKFIGHTING. (a) In this section: |
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| 14 | 14 | | (1) "Cock" means the male of any type of domestic fowl. |
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| 15 | 15 | | (2) "Cockfighting" means any situation in which one |
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| 16 | 16 | | cock attacks or fights with another cock. |
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| 17 | 17 | | (3) "Gaff" means an artificial steel spur designed to |
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| 18 | 18 | | attach to the leg of a cock to replace or supplement the cock's |
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| 19 | 19 | | natural spur. |
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| 20 | 20 | | (4) "Slasher" means a steel weapon resembling a curved |
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| 21 | 21 | | knife blade designed to attach to the foot of a cock. |
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| 22 | 22 | | (b) A person commits an offense if the person knowingly: |
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| 23 | 23 | | (1) causes a cock to fight with another cock; |
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| 24 | 24 | | (2) participates in the earnings of or operates a |
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| 25 | 25 | | facility used for cockfighting; |
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| 26 | 26 | | (3) uses or permits another to use any real estate, |
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| 27 | 27 | | building, room, tent, arena, or other property for cockfighting; |
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| 28 | 28 | | (4) owns or trains a cock with the intent that the cock |
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| 29 | 29 | | be used in an exhibition of cockfighting; |
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| 30 | 30 | | (5) manufactures, buys, sells, barters, exchanges, |
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| 31 | 31 | | possesses, advertises, or otherwise offers a gaff, slasher, or |
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| 32 | 32 | | other sharp implement designed for attachment to a cock with the |
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| 33 | 33 | | intent that the implement be used in cockfighting; or |
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| 34 | 34 | | (6) attends as a spectator an exhibition of |
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| 35 | 35 | | cockfighting. |
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| 36 | 36 | | (c) An offense under Subsection (b)(1), (2), (3), or (5) is |
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| 37 | 37 | | a state jail felony. An offense under Subsection (b)(4) or (6) is a |
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| 38 | 38 | | Class A misdemeanor. |
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| 39 | 39 | | SECTION 2. Section 71.02(a), Penal Code, is amended to read |
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| 40 | 40 | | as follows: |
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| 41 | 41 | | (a) A person commits an offense if, with the intent to |
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| 42 | 42 | | establish, maintain, or participate in a combination or in the |
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| 43 | 43 | | profits of a combination or as a member of a criminal street gang, |
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| 44 | 44 | | he commits or conspires to commit one or more of the following: |
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| 45 | 45 | | (1) murder, capital murder, arson, aggravated |
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| 46 | 46 | | robbery, robbery, burglary, theft, aggravated kidnapping, |
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| 47 | 47 | | kidnapping, aggravated assault, aggravated sexual assault, sexual |
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| 48 | 48 | | assault, forgery, deadly conduct, assault punishable as a Class A |
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| 49 | 49 | | misdemeanor, burglary of a motor vehicle, or unauthorized use of a |
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| 50 | 50 | | motor vehicle; |
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| 51 | 51 | | (2) any gambling offense punishable as a Class A |
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| 52 | 52 | | misdemeanor; |
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| 53 | 53 | | (3) promotion of prostitution, aggravated promotion |
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| 54 | 54 | | of prostitution, or compelling prostitution; |
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| 55 | 55 | | (4) unlawful manufacture, transportation, repair, or |
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| 56 | 56 | | sale of firearms or prohibited weapons; |
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| 57 | 57 | | (5) unlawful manufacture, delivery, dispensation, or |
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| 58 | 58 | | distribution of a controlled substance or dangerous drug, or |
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| 59 | 59 | | unlawful possession of a controlled substance or dangerous drug |
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| 60 | 60 | | through forgery, fraud, misrepresentation, or deception; |
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| 61 | 61 | | (6) any unlawful wholesale promotion or possession of |
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| 62 | 62 | | any obscene material or obscene device with the intent to wholesale |
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| 63 | 63 | | promote the same; |
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| 64 | 64 | | (7) any offense under Subchapter B, Chapter 43, |
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| 65 | 65 | | depicting or involving conduct by or directed toward a child |
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| 66 | 66 | | younger than 18 years of age; |
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| 67 | 67 | | (8) any felony offense under Chapter 32; |
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| 68 | 68 | | (9) any offense under Chapter 36; |
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| 69 | 69 | | (10) any offense under Chapter 34 or 35; |
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| 70 | 70 | | (11) any offense under Section 37.11(a); |
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| 71 | 71 | | (12) any offense under Chapter 20A; [or] |
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| 72 | 72 | | (13) any offense under Section 37.10; or |
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| 73 | 73 | | (14) any offense under Section 42.105. |
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| 74 | 74 | | SECTION 3. Articles 18.18(a), (b), (e), and (f), Code of |
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| 75 | 75 | | Criminal Procedure, are amended to read as follows: |
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| 76 | 76 | | (a) Following the final conviction of a person for |
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| 77 | 77 | | possession of a gambling device or equipment, altered gambling |
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| 78 | 78 | | equipment, or gambling paraphernalia, for an offense involving a |
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| 79 | 79 | | criminal instrument, for an offense involving an obscene device or |
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| 80 | 80 | | material, for an offense involving child pornography, or for an |
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| 81 | 81 | | offense involving a scanning device or re-encoder, the court |
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| 82 | 82 | | entering the judgment of conviction shall order that the machine, |
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| 83 | 83 | | device, gambling equipment or gambling paraphernalia, instrument, |
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| 84 | 84 | | obscene device or material, child pornography, or scanning device |
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| 85 | 85 | | or re-encoder be destroyed or forfeited to the state. Not later |
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| 86 | 86 | | than the 30th day after the final conviction of a person for an |
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| 87 | 87 | | offense involving a prohibited weapon, the court entering the |
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| 88 | 88 | | judgment of conviction on its own motion, on the motion of the |
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| 89 | 89 | | prosecuting attorney in the case, or on the motion of the law |
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| 90 | 90 | | enforcement agency initiating the complaint on notice to the |
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| 91 | 91 | | prosecuting attorney in the case if the prosecutor fails to move for |
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| 92 | 92 | | the order shall order that the prohibited weapon be destroyed or |
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| 93 | 93 | | forfeited to the law enforcement agency that initiated the |
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| 94 | 94 | | complaint. If the court fails to enter the order within the time |
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| 95 | 95 | | required by this subsection, any magistrate in the county in which |
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| 96 | 96 | | the offense occurred may enter the order. Following the final |
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| 97 | 97 | | conviction of a person for an offense involving dog fighting or |
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| 98 | 98 | | cockfighting, the court entering the judgment of conviction shall |
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| 99 | 99 | | order that any dog-fighting or cockfighting equipment be destroyed |
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| 100 | 100 | | or forfeited to the state. Destruction of dogs and cocks, if |
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| 101 | 101 | | necessary, must be carried out by a veterinarian licensed in this |
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| 102 | 102 | | state or, if one is not available, by trained personnel of a humane |
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| 103 | 103 | | society or an animal shelter. If forfeited, the court shall order |
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| 104 | 104 | | the contraband delivered to the state, any political subdivision of |
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| 105 | 105 | | the state, or to any state institution or agency. If gambling |
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| 106 | 106 | | proceeds were seized, the court shall order them forfeited to the |
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| 107 | 107 | | state and shall transmit them to the grand jury of the county in |
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| 108 | 108 | | which they were seized for use in investigating alleged violations |
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| 109 | 109 | | of the Penal Code, or to the state, any political subdivision of the |
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| 110 | 110 | | state, or to any state institution or agency. |
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| 111 | 111 | | (b) If there is no prosecution or conviction following |
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| 112 | 112 | | seizure, the magistrate to whom the return was made shall notify in |
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| 113 | 113 | | writing the person found in possession of the alleged gambling |
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| 114 | 114 | | device or equipment, altered gambling equipment or gambling |
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| 115 | 115 | | paraphernalia, gambling proceeds, prohibited weapon, obscene |
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| 116 | 116 | | device or material, child pornography, scanning device or |
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| 117 | 117 | | re-encoder, criminal instrument, or dog-fighting or cockfighting |
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| 118 | 118 | | equipment to show cause why the property seized should not be |
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| 119 | 119 | | destroyed or the proceeds forfeited. The magistrate, on the motion |
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| 120 | 120 | | of the law enforcement agency seizing a prohibited weapon, shall |
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| 121 | 121 | | order the weapon destroyed or forfeited to the law enforcement |
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| 122 | 122 | | agency seizing the weapon, unless a person shows cause as to why the |
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| 123 | 123 | | prohibited weapon should not be destroyed or forfeited. A law |
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| 124 | 124 | | enforcement agency shall make a motion under this section in a |
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| 125 | 125 | | timely manner after the time at which the agency is informed in |
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| 126 | 126 | | writing by the attorney representing the state that no prosecution |
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| 127 | 127 | | will arise from the seizure. |
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| 128 | 128 | | (e) Any person interested in the alleged gambling device or |
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| 129 | 129 | | equipment, altered gambling equipment or gambling paraphernalia, |
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| 130 | 130 | | gambling proceeds, prohibited weapon, obscene device or material, |
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| 131 | 131 | | child pornography, scanning device or re-encoder, criminal |
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| 132 | 132 | | instrument, or dog-fighting or cockfighting equipment seized must |
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| 133 | 133 | | appear before the magistrate on the 20th day following the date the |
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| 134 | 134 | | notice was mailed or posted. Failure to timely appear forfeits any |
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| 135 | 135 | | interest the person may have in the property or proceeds seized, and |
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| 136 | 136 | | no person after failing to timely appear may contest destruction or |
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| 137 | 137 | | forfeiture. |
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| 138 | 138 | | (f) If a person timely appears to show cause why the |
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| 139 | 139 | | property or proceeds should not be destroyed or forfeited, the |
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| 140 | 140 | | magistrate shall conduct a hearing on the issue and determine the |
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| 141 | 141 | | nature of property or proceeds and the person's interest therein. |
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| 142 | 142 | | Unless the person proves by a preponderance of the evidence that the |
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| 143 | 143 | | property or proceeds is not gambling equipment, altered gambling |
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| 144 | 144 | | equipment, gambling paraphernalia, gambling device, gambling |
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| 145 | 145 | | proceeds, prohibited weapon, obscene device or material, child |
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| 146 | 146 | | pornography, criminal instrument, scanning device or re-encoder, |
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| 147 | 147 | | or dog-fighting or cockfighting equipment and that he is entitled |
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| 148 | 148 | | to possession, the magistrate shall dispose of the property or |
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| 149 | 149 | | proceeds in accordance with Paragraph (a) of this article. |
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| 150 | 150 | | SECTION 4. Article 18.18(g), Code of Criminal Procedure, as |
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| 151 | 151 | | effective April 1, 2009, is amended to read as follows: |
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| 152 | 152 | | (g) For purposes of this article: |
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| 153 | 153 | | (1) "criminal instrument" has the meaning defined in |
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| 154 | 154 | | the Penal Code; |
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| 155 | 155 | | (2) "gambling device or equipment, altered gambling |
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| 156 | 156 | | equipment or gambling paraphernalia" has the meaning defined in the |
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| 157 | 157 | | Penal Code; |
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| 158 | 158 | | (3) "prohibited weapon" has the meaning defined in the |
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| 159 | 159 | | Penal Code; |
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| 160 | 160 | | (4) "dog-fighting equipment" means: |
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| 161 | 161 | | (A) equipment used for training or handling a |
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| 162 | 162 | | fighting dog, including a harness, treadmill, cage, decoy, pen, |
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| 163 | 163 | | house for keeping a fighting dog, feeding apparatus, or training |
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| 164 | 164 | | pen; |
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| 165 | 165 | | (B) equipment used for transporting a fighting |
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| 166 | 166 | | dog, including any automobile, or other vehicle, and its |
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| 167 | 167 | | appurtenances which are intended to be used as a vehicle for |
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| 168 | 168 | | transporting a fighting dog; |
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| 169 | 169 | | (C) equipment used to promote or advertise an |
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| 170 | 170 | | exhibition of dog fighting, including a printing press or similar |
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| 171 | 171 | | equipment, paper, ink, or photography equipment; or |
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| 172 | 172 | | (D) a dog trained, being trained, or intended to |
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| 173 | 173 | | be used to fight with another dog; |
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| 174 | 174 | | (4-a) "cockfighting equipment" means: |
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| 175 | 175 | | (A) equipment used for training or handling a |
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| 176 | 176 | | fighting cock, including a cage, decoy, gaff, slasher, pen, house |
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| 177 | 177 | | for keeping a fighting cock, feeding apparatus, or training pen; |
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| 178 | 178 | | (B) equipment used for transporting a fighting |
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| 179 | 179 | | cock, including any automobile or other vehicle and its |
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| 180 | 180 | | appurtenances that are intended to be used as a vehicle for |
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| 181 | 181 | | transporting a fighting cock; |
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| 182 | 182 | | (C) equipment used to promote or advertise an |
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| 183 | 183 | | exhibition of cockfighting, including a printing press or similar |
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| 184 | 184 | | equipment, paper, ink, or photography equipment; or |
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| 185 | 185 | | (D) a cock trained, being trained, or intended to |
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| 186 | 186 | | be used to fight with another cock; |
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| 187 | 187 | | (4-b) "gaff" and "slasher" have the meanings assigned |
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| 188 | 188 | | by Section 42.105, Penal Code; |
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| 189 | 189 | | (5) "obscene device" and "obscene" have the meanings |
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| 190 | 190 | | assigned by Section 43.21, Penal Code; |
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| 191 | 191 | | (6) "re-encoder" has the meaning assigned by Section |
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| 192 | 192 | | 522.001, Business & Commerce Code; |
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| 193 | 193 | | (7) "scanning device" has the meaning assigned by |
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| 194 | 194 | | Section 522.001, Business & Commerce Code; and |
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| 195 | 195 | | (8) "obscene material" and "child pornography" |
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| 196 | 196 | | include digital images and the media and equipment on which those |
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| 197 | 197 | | images are stored. |
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| 198 | 198 | | SECTION 5. Article 59.01(2), Code of Criminal Procedure, as |
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| 199 | 199 | | amended by Chapters 127 (S.B. 1694), 822 (H.B. 73), and 885 (H.B. |
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| 200 | 200 | | 2278), Acts of the 80th Legislature, Regular Session, 2007, is |
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| 201 | 201 | | reenacted and amended to read as follows: |
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| 202 | 202 | | (2) "Contraband" means property of any nature, |
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| 203 | 203 | | including real, personal, tangible, or intangible, that is: |
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| 204 | 204 | | (A) used in the commission of: |
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| 205 | 205 | | (i) any first or second degree felony under |
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| 206 | 206 | | the Penal Code; |
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| 207 | 207 | | (ii) any felony under Section 15.031(b), |
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| 208 | 208 | | 20.05, 21.11, 38.04, Subchapter B of Chapter 43, or Chapter 29, 30, |
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| 209 | 209 | | 31, 32, 33, 33A, or 35, Penal Code; |
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| 210 | 210 | | (iii) any felony under The Securities Act |
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| 211 | 211 | | (Article 581-1 et seq., Vernon's Texas Civil Statutes); or |
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| 212 | 212 | | (iv) any offense under Chapter 49, Penal |
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| 213 | 213 | | Code, that is punishable as a felony of the third degree or state |
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| 214 | 214 | | jail felony, if the defendant has been previously convicted three |
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| 215 | 215 | | times of an offense under that chapter; |
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| 216 | 216 | | (B) used or intended to be used in the commission |
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| 217 | 217 | | of: |
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| 218 | 218 | | (i) any felony under Chapter 481, Health |
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| 219 | 219 | | and Safety Code (Texas Controlled Substances Act); |
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| 220 | 220 | | (ii) any felony under Chapter 483, Health |
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| 221 | 221 | | and Safety Code; |
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| 222 | 222 | | (iii) a felony under Chapter 153, Finance |
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| 223 | 223 | | Code; |
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| 224 | 224 | | (iv) any felony under Chapter 34, Penal |
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| 225 | 225 | | Code; |
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| 226 | 226 | | (v) a Class A misdemeanor under Subchapter |
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| 227 | 227 | | B, Chapter 365, Health and Safety Code, if the defendant has been |
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| 228 | 228 | | previously convicted twice of an offense under that subchapter; |
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| 229 | 229 | | (vi) any felony under Chapter 152, Finance |
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| 230 | 230 | | Code; |
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| 231 | 231 | | (vii) any felony under Chapter 32, Human |
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| 232 | 232 | | Resources Code, or Chapter 31, 32, 35A, or 37, Penal Code, that |
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| 233 | 233 | | involves the state Medicaid program; |
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| 234 | 234 | | (viii) a Class B misdemeanor under Chapter |
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| 235 | 235 | | 522, Business & Commerce Code; [or] |
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| 236 | 236 | | (ix) a Class A misdemeanor under Section |
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| 237 | 237 | | 35.153, Business & Commerce Code; or |
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| 238 | 238 | | (x) any offense under Section 42.105, Penal |
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| 239 | 239 | | Code; |
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| 240 | 240 | | (C) the proceeds gained from the commission of a |
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| 241 | 241 | | felony listed in Paragraph (A) or (B) of this subdivision, a |
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| 242 | 242 | | misdemeanor listed in Paragraph (B)(viii) or (x) of this |
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| 243 | 243 | | subdivision, or a crime of violence; |
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| 244 | 244 | | (D) acquired with proceeds gained from the |
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| 245 | 245 | | commission of a felony listed in Paragraph (A) or (B) of this |
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| 246 | 246 | | subdivision, a misdemeanor listed in Paragraph (B)(viii) or (x) of |
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| 247 | 247 | | this subdivision, or a crime of violence; or |
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| 248 | 248 | | (E) used to facilitate or intended to be used to |
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| 249 | 249 | | facilitate the commission of a felony under Section 15.031 or |
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| 250 | 250 | | 43.25, Penal Code. |
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| 251 | 251 | | SECTION 6. Chapter 59, Code of Criminal Procedure, is |
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| 252 | 252 | | amended by adding Article 59.011 to read as follows: |
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| 253 | 253 | | Art. 59.011. If property described by Article |
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| 254 | 254 | | 59.01(2)(B)(x) is subject to forfeiture under this chapter and |
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| 255 | 255 | | Article 18.18, the attorney representing the state may proceed |
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| 256 | 256 | | under either provision. |
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| 257 | 257 | | SECTION 7. The changes in law made by this Act apply only to |
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| 258 | 258 | | an offense committed on or after the effective date of this Act or |
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| 259 | 259 | | to the forfeiture of property used in the commission of that |
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| 260 | 260 | | offense. An offense committed before the effective date of this |
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| 261 | 261 | | Act, or the forfeiture of property used in the commission of that |
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| 262 | 262 | | offense, is governed by the law in effect when the offense was |
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| 263 | 263 | | committed, and the former law is continued in effect for that |
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| 264 | 264 | | purpose. For purposes of this section, an offense was committed |
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| 265 | 265 | | before the effective date of this Act if any element of the offense |
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| 266 | 266 | | occurred before that date. |
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| 267 | 267 | | SECTION 8. This Act takes effect September 1, 2009. |
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