82R18823 NAJ-F
By: Menendez H.B. No. 38
Substitute the following for H.B. No. 38:
By: Gallego C.S.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. Section 28.08, Penal Code, is amended by
amending Subsections (b), (c), and (d) and adding Subsection (b-1)
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 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].
(b-1) The minimum term of confinement for an offense under
this section is 72 hours.
(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 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 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 3. 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 4. 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 on or after the effective
date of this Act. An offense committed before the effective date of
this Act is governed 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. 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 6. This Act takes effect September 1, 2011.