81R2543 KCR-D
By: Carona S.B. No. 364
A BILL TO BE ENTITLED
AN ACT
relating to the punishment for certain offenses committed against a
public servant by a member of a criminal street gang.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 42, Code of Criminal Procedure, is
amended by adding Article 42.0145 to read as follows:
Art. 42.0145. FINDING THAT GANG-RELATED OFFENSE COMMITTED
AGAINST PUBLIC SERVANT. (a) In this article:
(1) "Criminal street gang" has the meaning assigned by
Section 71.01, Penal Code.
(2) "Government" has the meaning assigned by Section
1.07, Penal Code.
(3) "Public servant" has the meaning assigned by
Section 1.07, Penal Code.
(b) In the trial of an offense under Title 4, 5, 7, or 8,
Penal Code, the judge shall make an affirmative finding of fact and
enter the affirmative finding in the judgment of the case if, at the
guilt or innocence phase of the trial, the trier of fact determines
beyond a reasonable doubt that:
(1) the defendant was at the time of the offense a
member of a criminal street gang;
(2) the defendant committed the offense with the
intent to further the criminal activities of the criminal street
gang or to avoid detection as a member of a criminal street gang;
and
(3) the offense was committed against:
(A) a public servant who was lawfully discharging
a public duty and wearing a distinctive uniform or badge indicating
employment as a public servant; or
(B) government property that is clearly and
conspicuously marked as government property and routinely used by a
public servant in the lawful discharge of a public duty.
SECTION 2. Subchapter D, Chapter 12, Penal Code, is amended
by adding Section 12.475 to read as follows:
Sec. 12.475. PENALTY FOR GANG-RELATED OFFENSE COMMITTED
AGAINST PUBLIC SERVANT. (a) Except as provided by Subsections (b)
and (c), if an affirmative finding under Article 42.0145, Code of
Criminal Procedure, is made during the trial of an offense, 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 punishment for the offense is
increased to a state jail felony.
(b) If the punishment scheme for an offense contains a
specific enhancement provision increasing punishment for a
defendant who is a member of a criminal street gang to a higher
category of offense than the higher category described by
Subsection (a), the specific enhancement provision controls over
this section.
(c) This section does not apply to the punishment for an
offense an element of which is being a member of or coercing,
soliciting, or inducing membership in a criminal street gang.
SECTION 3. Section 28.03, Penal Code, is amended by adding
Subsection (k) to read as follows:
(k) Notwithstanding Subsection (b), an offense under this
section is a state jail felony if:
(1) the tangible property damaged, destroyed, or
tampered with is government property that is clearly and
conspicuously marked as government property and routinely used by a
public servant in the lawful discharge of a public duty;
(2) the actor is at the time of the offense a member of
a criminal street gang, as defined by Section 71.01; and
(3) the amount of the pecuniary loss to the tangible
property is less than $1,500.
SECTION 4. The change in law made by this Act applies only
to an offense committed on or after the effective date of this Act.
An offense committed before the effective date of this Act is
covered by the law in effect when the offense was committed, and the
former law is continued in effect for that purpose. For purposes of
this section, an offense was committed before the effective date of
this Act if any element of the offense occurred before that date.
SECTION 5. This Act takes effect September 1, 2009.