Texas 2011 - 82nd Regular

Texas House Bill HB38 Compare Versions

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Old	New	Differences
1	1	82R18823 NAJ-F
2	2	By: Menendez H.B. No. 38
3	3	Substitute the following for H.B. No. 38:
4	4	By: Gallego C.S.H.B. No. 38
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the criminal penalty for and certain civil consequences
10	10	of damaging property with graffiti.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 28.08, Penal Code, is amended by
13	13	amending Subsections (b), (c), and (d) and adding Subsection (b-1)
14	14	to read as follows:
15	15	(b) Except as provided by Subsection (c) [(d)], an offense
16	16	under this section is[:
17	17	[(1)] a Class A [B] misdemeanor, except that the
18	18	offense is a state jail felony if the marking is made on a school, an
19	19	institution of higher education, a place of worship or human
20	20	burial, a public monument, a city hall, a courthouse, or a community
21	21	center that provides medical, social, or educational programs [if
22	22	the amount of pecuniary loss is less than $500;
23	23	[(2) a Class A misdemeanor if the amount of pecuniary
24	24	loss is $500 or more but less than $1,500;
25	25	[(3) a state jail felony if the amount of pecuniary
26	26	loss is $1,500 or more but less than $20,000;
27	27	[(4) a felony of the third degree if the amount of
28	28	pecuniary loss is $20,000 or more but less than $100,000;
29	29	[(5) a felony of the second degree if the amount of
30	30	pecuniary loss is $100,000 or more but less than $200,000; or
31	31	[(6) a felony of the first degree if the amount of
32	32	pecuniary loss is $200,000 or more].
33	33	(b-1) The minimum term of confinement for an offense under
34	34	this section is 72 hours.
35	35	(c) An offense under this section is increased to the next
36	36	higher category of offense if it is shown on the trial of the
37	37	offense that the defendant has been previously convicted of an
38	38	offense under this section. [When more than one item of tangible
39	39	property, belonging to one or more owners, is marked in violation of
40	40	this section pursuant to one scheme or continuing course of
41	41	conduct, the conduct may be considered as one offense, and the
42	42	amounts of pecuniary loss to property resulting from the marking of
43	43	the property may be aggregated in determining the grade of the
44	44	offense.]
45	45	(d) For the purposes of Subsection (c) [An offense under
46	46	this section is a state jail felony if]:
47	47	(1) a defendant has been previously convicted of an
48	48	offense under this section if the defendant was adjudged guilty of
49	49	the offense or entered a plea of guilty or nolo contendere in return
50	50	for a grant of deferred adjudication, regardless of whether the
51	51	sentence for the offense was ever imposed or whether the sentence
52	52	was probated and the defendant was subsequently discharged from
53	53	community supervision [the marking is made on a school, an
54	54	institution of higher education, a place of worship or human
55	55	burial, a public monument, or a community center that provides
56	56	medical, social, or educational programs]; and
57	57	(2) a conviction under the laws of another state for an
58	58	offense containing elements that are substantially similar to the
59	59	elements of an offense under this section is a conviction of an
60	60	offense under this section [the amount of the pecuniary loss to real
61	61	property or to tangible personal property is less than $20,000].
62	62	SECTION 2. Section 125.061(3), Civil Practice and Remedies
63	63	Code, is amended to read as follows:
64	64	(3) "Gang activity" means the following types of
65	65	conduct:
66	66	(A) organized criminal activity as described by
67	67	Section 71.02, Penal Code;
68	68	(B) terroristic threat as described by Section
69	69	22.07, Penal Code;
70	70	(C) coercing, soliciting, or inducing gang
71	71	membership as described by Section 71.022 [22.015], Penal Code;
72	72	(D) criminal trespass as described by Section
73	73	30.05, Penal Code;
74	74	(E) disorderly conduct as described by Section
75	75	42.01, Penal Code;
76	76	(F) criminal mischief as described by Section
77	77	28.03, Penal Code, that causes a pecuniary loss of $500 or more;
78	78	(G) a graffiti offense in violation of Section
79	79	28.08, Penal Code, that:
80	80	(i) causes a pecuniary loss of $500 or more;
81	81	or
82	82	(ii) occurs at a school, an institution of
83	83	higher education, a place of worship or human cemetery, a public
84	84	monument, a city hall, a courthouse, or a community center that
85	85	provides medical, social, or educational programs;
86	86	(H) a weapons offense in violation of Chapter 46,
87	87	Penal Code; or
88	88	(I) unlawful possession of a substance or other
89	89	item in violation of Chapter 481, Health and Safety Code.
90	90	SECTION 3. Section 521.320, Transportation Code, is amended
91	91	to read as follows:
92	92	Sec. 521.320. SUSPENSION FOR CONVICTION OR ADJUDICATION
93	93	INVOLVING GRAFFITI [CERTAIN CRIMINAL MISCHIEF]; LICENSE DENIAL.
94	94	(a) A court shall [may] order the department to suspend a person's
95	95	driver's license on conviction of an offense under Section 28.08,
96	96	Penal Code. A juvenile court shall order the department to suspend
97	97	a person's provisional license or driver's license if the person has
98	98	been adjudicated to have engaged in delinquent conduct that
99	99	violates Section 28.08, Penal Code.
100	100	(b) A court shall [may] order the department to deny an
101	101	application for reinstatement or issuance of a driver's license to
102	102	a person convicted of an offense under Section 28.08, Penal Code,
103	103	who, on the date of the conviction, did not hold a driver's license.
104	104	A juvenile court shall order the department to deny an application
105	105	for reinstatement or issuance of a provisional license or driver's
106	106	license to a person who has been adjudicated to have engaged in
107	107	delinquent conduct that violates Section 28.08, Penal Code, and
108	108	who, on the date of the adjudication, did not hold a provisional
109	109	license or driver's license.
110	110	(c) The period of suspension under this section is two years
111	111	[one year] after the date of a final conviction or the date on which
112	112	the disposition is made, as applicable. The period of license
113	113	denial is two years [one year] after the date the person applies to
114	114	the department for reinstatement or issuance of a provisional
115	115	license or driver's license.
116	116	(d) The department may not reinstate a provisional license
117	117	or driver's license suspended under Subsection (a) unless the
118	118	person whose license was suspended applies to the department for
119	119	reinstatement.
120	120	(e) A person whose license is suspended under Subsection (a)
121	121	remains eligible to receive an occupational license under
122	122	Subchapter L or a hardship license under Section 521.223.
123	123	(f) For the purposes of this section, a person is convicted
124	124	of an offense regardless of whether the sentence is imposed or the
125	125	person is placed on community supervision for the offense under
126	126	Article 42.12, Code of Criminal Procedure.
127	127	SECTION 4. The changes in law made by this Act in amending
128	128	Section 28.08, Penal Code, and Section 521.320, Transportation
129	129	Code, apply only to an offense committed on or after the effective
130	130	date of this Act. An offense committed before the effective date of
131	131	this Act is governed by the law in effect when the offense was
132	132	committed, and the former law is continued in effect for that
133	133	purpose. For purposes of this section, an offense was committed
134	134	before the effective date of this Act if any element of the offense
135	135	occurred before that date.
136	136	SECTION 5. The change in law made by this Act in amending
137	137	Section 125.061, Civil Practice and Remedies Code, applies only to
138	138	a cause of action that accrues on or after the effective date of
139	139	this Act. A cause of action that accrued before the effective date
140	140	of this Act is governed by the law in effect immediately before the
141	141	effective date of this Act, and that law is continued in effect for
142	142	that purpose.
143	143	SECTION 6. This Act takes effect September 1, 2011.