By: Menendez H.B. No. 38
A BILL TO BE ENTITLED
AN ACT
relating to the criminal penalty for and certain civil consequences
of damaging property with graffiti.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 28.08(b), (c), and (d), Penal Code, are
amended to read as follows:
(b) Except as provided by Subsection (c) [(d)], an offense
under this section is[:
[(1)] a Class A [B] misdemeanor, except that the
offense is a state jail felony if the marking is made on a school, an
institution of higher education, a place of worship or human
burial, a public monument, a city hall, a courthouse, or a historic
structure, or on a community center that provides medical, social,
or educational programs [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) An offense under this section is increased to the next
higher category of offense if it is shown on the trial of the
offense that the defendant has been previously convicted of an
offense under this section. [When more than one item of tangible
property, belonging to one or more owners, is 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 marking of
the property may be aggregated in determining the grade of the
offense.]
(d) For the purposes of Subsection (c) [An offense under
this section is a state jail felony if]:
(1) a defendant has been previously convicted of an
offense under this section if the defendant was adjudged guilty of
the offense or entered a plea of guilty or nolo contendere in return
for a grant of deferred adjudication, regardless of whether the
sentence for the offense was ever imposed or whether the sentence
was probated and the defendant was subsequently discharged from
community supervision [the 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]; and
(2) a conviction under the laws of another state for an
offense containing elements that are substantially similar to the
elements of an offense under this section is a conviction of an
offense under this section [the amount of the pecuniary loss to real
property or to tangible personal property is less than $20,000].
SECTION 2. Section 28.08(e), Penal Code, is amended by
adding Subdivision (2-a) to read as follows:
(2-a) "Historic structure" means a structure that:
(A) is publicly owned and included on the
National Register of Historic Places;
(B) is designated as a Recorded Texas Historic
Landmark; or
(C) is designated as a State Archeological
Landmark.
SECTION 3. Section 125.061(3), Civil Practice and Remedies
Code, is amended to read as follows:
(3) "Gang activity" means the following types of
conduct:
(A) organized criminal activity as described by
Section 71.02, Penal Code;
(B) terroristic threat as described by Section
22.07, Penal Code;
(C) coercing, soliciting, or inducing gang
membership as described by Section 71.022 [22.015], Penal Code;
(D) criminal trespass as described by Section
30.05, Penal Code;
(E) disorderly conduct as described by Section
42.01, Penal Code;
(F) criminal mischief as described by Section
28.03, Penal Code, that causes a pecuniary loss of $500 or more;
(G) a graffiti offense in violation of Section
28.08, Penal Code, that:
(i) causes a pecuniary loss of $500 or more;
or
(ii) occurs at a school, an institution of
higher education, a place of worship or human cemetery, a public
monument, a city hall, a courthouse, or a historic structure, or at
a community center that provides medical, social, or educational
programs;
(H) a weapons offense in violation of Chapter 46,
Penal Code; or
(I) unlawful possession of a substance or other
item in violation of Chapter 481, Health and Safety Code.
SECTION 4. Article 42.12, Code of Criminal Procedure, is
amended by adding Section 13G to read as follows:
Sec. 13G. GRAFFITI COMMUNITY SUPERVISION. A judge granting
community supervision to a defendant convicted of an offense under
Section 20.08, Penal Code, shall require as a condition of
community supervision that the defendant submit to not less than 72
hours of confinement in county jail.
SECTION 5. Section 54.0481, Family Code, is amended by
amending Subsection (a) and adding Subsections (a-1) and (a-2) to
read as follows:
(a) Except as provided by Subsection (a-1), 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 markings the child made; and
(2) if the child 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 markings
made by the child on the property, sign, or device.
(a-1) A juvenile court, in a disposition hearing described
by Subsection (a) involving a child who has previously been
adjudicated for having engaged in delinquent conduct that violates
Section 28.08, Penal Code, in addition to any other disposition
ordered, if the child made markings on a historic structure or other
property described in Section 28.08(a), Penal Code, or private
property, shall order the child and the parent or other person
responsible for the child's support to make restitution by
personally restoring the property by removing or painting over any
markings the child made, with the consent of the owner of the
property.
(a-2) A juvenile court may not require that a child or a
child's parent or other person responsible for the child's support
personally restore the property under this section if:
(1) the child, parent, or other person is physically
or mentally incapable of participating in the restoration; or
(2) the restoration is inherently dangerous or would
otherwise endanger the health or safety of the child, parent, or
other person.
SECTION 6. Section 521.320, Transportation Code, is amended
to read as follows:
Sec. 521.320. SUSPENSION FOR CONVICTION OR ADJUDICATION
INVOLVING GRAFFITI [CERTAIN CRIMINAL MISCHIEF]; LICENSE DENIAL.
(a) A court shall [may] order the department to suspend a person's
driver's license on conviction of an offense under Section 28.08,
Penal Code. A juvenile court shall order the department to suspend
a person's provisional license or driver's license if the person has
been adjudicated to have engaged in delinquent conduct that
violates Section 28.08, Penal Code.
(b) A court shall [may] order the department to deny an
application for reinstatement or issuance of a driver's license to
a person convicted of an offense under Section 28.08, Penal Code,
who, on the date of the conviction, did not hold a driver's license.
A juvenile court shall order the department to deny an application
for reinstatement or issuance of a provisional license or driver's
license to a person who has been adjudicated to have engaged in
delinquent conduct that violates Section 28.08, Penal Code, and
who, on the date of the adjudication, did not hold a provisional
license or driver's license.
(c) The period of suspension under this section is two years
[one year] after the date of a final conviction or the date on which
the disposition is made, as applicable. The period of license
denial is two years [one year] after the date the person applies to
the department for reinstatement or issuance of a provisional
license or driver's license.
(d) The department may not reinstate a provisional license
or driver's license suspended under Subsection (a) unless the
person whose license was suspended applies to the department for
reinstatement.
(e) A person whose license is suspended under Subsection (a)
remains eligible to receive an occupational license under
Subchapter L or a hardship license under Section 521.223.
(f) For the purposes of this section, a person is convicted
of an offense regardless of whether the sentence is imposed or the
person is placed on community supervision for the offense under
Article 42.12, Code of Criminal Procedure.
SECTION 7. The changes in law made by this Act in amending
Section 28.08, Penal Code, and Section 521.320, Transportation
Code, apply only to an offense committed, or conduct violating a
penal law that occurs, on or after the effective date of this Act.
An offense committed, or conduct violating a penal law that occurs,
before the effective date of this Act is governed by the law in
effect when the offense was committed or the conduct occurred, and
the former law is continued in effect for that purpose. For
purposes of this section, an offense was committed, or conduct
violating a penal law occurred, before the effective date of this
Act if any element of the offense or violation occurred before that
date.
SECTION 8. The change in law made by this Act in amending
Section 125.061, Civil Practice and Remedies Code, applies only to
a cause of action that accrues on or after the effective date of
this Act. A cause of action that accrued before the effective date
of this Act is governed by the law in effect immediately before the
effective date of this Act, and that law is continued in effect for
that purpose.
SECTION 9. The change in law made by this Act to Section
54.0481, Family Code, applies only to conduct violating a penal law
that occurs on or after the effective date of this Act. Conduct
violating a penal law that occurs before the effective date of this
Act is governed by the law in effect on the date the conduct
occurred, and the former law is continued in effect for that
purpose. For purposes of this section, conduct violating a penal
law occurred before the effective date of this Act if any element of
the violation occurred before that date.
SECTION 10. This Act takes effect September 1, 2011.