| 1 | 1 | | 81R2543 KCR-D |
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| 2 | 2 | | By: Carona S.B. No. 364 |
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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 the punishment for certain offenses committed against a |
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| 8 | 8 | | public servant by a member of a criminal street gang. |
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| 9 | 9 | | BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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| 10 | 10 | | SECTION 1. Chapter 42, Code of Criminal Procedure, is |
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| 11 | 11 | | amended by adding Article 42.0145 to read as follows: |
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| 12 | 12 | | Art. 42.0145. FINDING THAT GANG-RELATED OFFENSE COMMITTED |
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| 13 | 13 | | AGAINST PUBLIC SERVANT. (a) In this article: |
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| 14 | 14 | | (1) "Criminal street gang" has the meaning assigned by |
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| 15 | 15 | | Section 71.01, Penal Code. |
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| 16 | 16 | | (2) "Government" has the meaning assigned by Section |
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| 17 | 17 | | 1.07, Penal Code. |
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| 18 | 18 | | (3) "Public servant" has the meaning assigned by |
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| 19 | 19 | | Section 1.07, Penal Code. |
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| 20 | 20 | | (b) In the trial of an offense under Title 4, 5, 7, or 8, |
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| 21 | 21 | | Penal Code, the judge shall make an affirmative finding of fact and |
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| 22 | 22 | | enter the affirmative finding in the judgment of the case if, at the |
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| 23 | 23 | | guilt or innocence phase of the trial, the trier of fact determines |
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| 24 | 24 | | beyond a reasonable doubt that: |
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| 25 | 25 | | (1) the defendant was at the time of the offense a |
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| 26 | 26 | | member of a criminal street gang; |
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| 27 | 27 | | (2) the defendant committed the offense with the |
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| 28 | 28 | | intent to further the criminal activities of the criminal street |
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| 29 | 29 | | gang or to avoid detection as a member of a criminal street gang; |
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| 30 | 30 | | and |
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| 31 | 31 | | (3) the offense was committed against: |
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| 32 | 32 | | (A) a public servant who was lawfully discharging |
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| 33 | 33 | | a public duty and wearing a distinctive uniform or badge indicating |
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| 34 | 34 | | employment as a public servant; or |
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| 35 | 35 | | (B) government property that is clearly and |
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| 36 | 36 | | conspicuously marked as government property and routinely used by a |
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| 37 | 37 | | public servant in the lawful discharge of a public duty. |
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| 38 | 38 | | SECTION 2. Subchapter D, Chapter 12, Penal Code, is amended |
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| 39 | 39 | | by adding Section 12.475 to read as follows: |
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| 40 | 40 | | Sec. 12.475. PENALTY FOR GANG-RELATED OFFENSE COMMITTED |
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| 41 | 41 | | AGAINST PUBLIC SERVANT. (a) Except as provided by Subsections (b) |
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| 42 | 42 | | and (c), if an affirmative finding under Article 42.0145, Code of |
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| 43 | 43 | | Criminal Procedure, is made during the trial of an offense, the |
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| 44 | 44 | | punishment for the offense is increased to the punishment |
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| 45 | 45 | | prescribed for the next highest category of offense. If the offense |
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| 46 | 46 | | is a Class A misdemeanor, the punishment for the offense is |
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| 47 | 47 | | increased to a state jail felony. |
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| 48 | 48 | | (b) If the punishment scheme for an offense contains a |
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| 49 | 49 | | specific enhancement provision increasing punishment for a |
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| 50 | 50 | | defendant who is a member of a criminal street gang to a higher |
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| 51 | 51 | | category of offense than the higher category described by |
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| 52 | 52 | | Subsection (a), the specific enhancement provision controls over |
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| 53 | 53 | | this section. |
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| 54 | 54 | | (c) This section does not apply to the punishment for an |
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| 55 | 55 | | offense an element of which is being a member of or coercing, |
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| 56 | 56 | | soliciting, or inducing membership in a criminal street gang. |
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| 57 | 57 | | SECTION 3. Section 28.03, Penal Code, is amended by adding |
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| 58 | 58 | | Subsection (k) to read as follows: |
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| 59 | 59 | | (k) Notwithstanding Subsection (b), an offense under this |
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| 60 | 60 | | section is a state jail felony if: |
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| 61 | 61 | | (1) the tangible property damaged, destroyed, or |
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| 62 | 62 | | tampered with is government property that is clearly and |
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| 63 | 63 | | conspicuously marked as government property and routinely used by a |
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| 64 | 64 | | public servant in the lawful discharge of a public duty; |
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| 65 | 65 | | (2) the actor is at the time of the offense a member of |
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| 66 | 66 | | a criminal street gang, as defined by Section 71.01; and |
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| 67 | 67 | | (3) the amount of the pecuniary loss to the tangible |
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| 68 | 68 | | property is less than $1,500. |
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| 69 | 69 | | SECTION 4. The change in law made by this Act applies only |
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| 70 | 70 | | to an offense committed on or after the effective date of this Act. |
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| 71 | 71 | | An offense committed before the effective date of this Act is |
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| 72 | 72 | | covered by the law in effect when the offense was committed, and the |
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| 73 | 73 | | former law is continued in effect for that purpose. For purposes of |
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| 74 | 74 | | this section, an offense was committed before the effective date of |
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| 75 | 75 | | this Act if any element of the offense occurred before that date. |
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| 76 | 76 | | SECTION 5. This Act takes effect September 1, 2009. |
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