By: Hinojosa S.B. No. 146
(In the Senate - Filed November 8, 2010; January 31, 2011,
read first time and referred to Committee on Criminal Justice;
May 2, 2011, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 6, Nays 0; May 2, 2011, sent
to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 146 By: Hinojosa
A BILL TO BE ENTITLED
AN ACT
relating to the offense of smuggling of persons and unlawful
transport of an individual; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Chapter 20, Penal Code, is amended
to read as follows:
CHAPTER 20. KIDNAPPING, [AND] UNLAWFUL RESTRAINT, AND
SMUGGLING OF PERSONS
SECTION 2. Section 20.05, Penal Code, is amended to read as
follows:
Sec. 20.05. SMUGGLING OF PERSONS [UNLAWFUL TRANSPORT].
(a) A person commits an offense if the person intentionally uses a
motor vehicle, aircraft, or watercraft to transport an individual
with the intent to conceal the individual from a peace officer or
special investigator and flees from a person the actor knows is a
peace officer or special investigator attempting to lawfully arrest
or detain the actor [for pecuniary benefit transports an individual
in a manner that:
[(1) is designed to conceal the individual from local,
state, or federal law enforcement authorities; and
[(2) creates a substantial likelihood that the
individual will suffer serious bodily injury or death].
(b) Except as provided by Subsection (c), an [An] offense
under this section is a state jail felony.
(c) An offense under this section is a felony of the third
degree if the actor commits the offense:
(1) for pecuniary benefit; or
(2) in a manner that creates a substantial likelihood
that the transported individual will suffer serious bodily injury
or death.
(d) It is an affirmative defense to prosecution under this
section that the actor is related to the transported individual
within the third degree of consanguinity or, at the time of the
offense, within the third degree of affinity.
(e) If conduct constituting an offense under this section
also constitutes an offense under another section of this code, the
actor may be prosecuted under either section.
SECTION 3. Subsection (a), Section 71.02, Penal Code, as
amended by Chapters 153 (S.B. 2225), 1130 (H.B. 2086), and 1357
(S.B. 554), Acts of the 81st Legislature, Regular Session, 2009, is
reenacted and amended to read as follows:
(a) A person commits an offense if, with the intent to
establish, maintain, or participate in a combination or in the
profits of a combination or as a member of a criminal street gang,
the person commits or conspires to commit one or more of the
following:
(1) murder, capital murder, arson, aggravated
robbery, robbery, burglary, theft, aggravated kidnapping,
kidnapping, aggravated assault, aggravated sexual assault, sexual
assault, forgery, deadly conduct, assault punishable as a Class A
misdemeanor, burglary of a motor vehicle, or unauthorized use of a
motor vehicle;
(2) any gambling offense punishable as a Class A
misdemeanor;
(3) promotion of prostitution, aggravated promotion
of prostitution, or compelling prostitution;
(4) unlawful manufacture, transportation, repair, or
sale of firearms or prohibited weapons;
(5) unlawful manufacture, delivery, dispensation, or
distribution of a controlled substance or dangerous drug, or
unlawful possession of a controlled substance or dangerous drug
through forgery, fraud, misrepresentation, or deception;
(6) any unlawful wholesale promotion or possession of
any obscene material or obscene device with the intent to wholesale
promote the same;
(7) any offense under Subchapter B, Chapter 43,
depicting or involving conduct by or directed toward a child
younger than 18 years of age;
(8) any felony offense under Chapter 32;
(9) any offense under Chapter 36;
(10) any offense under Chapter 34 or 35;
(11) any offense under Section 37.11(a);
(12) any offense under Chapter 20A;
(13) any offense under Section 37.10; [or]
(14) any offense under Section 38.06, 38.07, 38.09, or
38.11;
(15) [(14)] any offense under Section 42.10;
(16) [(14)] any offense under Section 46.06(a)(1) or
46.14; or
(17) any offense under Section 20.05.
SECTION 4. Article 13.12, Code of Criminal Procedure, is
amended to read as follows:
Art. 13.12. FALSE IMPRISONMENT, [AND] KIDNAPPING, AND
SMUGGLING OF PERSONS
Venue for false imprisonment, [and] kidnapping, and
smuggling of persons is in either the county in which the offense
was committed, or in any county through, into, or out of which the
person falsely imprisoned, [or] kidnapped, or transported may have
been taken.
SECTION 5. Subdivision (2), Article 59.01, Code of Criminal
Procedure, as amended by Chapters 153 (S.B. 2225), 1130 (H.B.
2086), and 1357 (S.B. 554), Acts of the 81st Legislature, Regular
Session, 2009, is reenacted and amended to read as follows:
(2) "Contraband" means property of any nature,
including real, personal, tangible, or intangible, that is:
(A) used in the commission of:
(i) any first or second degree felony under
the Penal Code;
(ii) any felony under Section 15.031(b),
20.05, 21.11, 38.04, Subchapter B of Chapter 43, or Chapter 29, 30,
31, 32, 33, 33A, or 35, Penal Code;
(iii) any felony under The Securities Act
(Article 581-1 et seq., Vernon's Texas Civil Statutes); or
(iv) any offense under Chapter 49, Penal
Code, that is punishable as a felony of the third degree or state
jail felony, if the defendant has been previously convicted three
times of an offense under that chapter;
(B) used or intended to be used in the commission
of:
(i) any felony under Chapter 481, Health
and Safety Code (Texas Controlled Substances Act);
(ii) any felony under Chapter 483, Health
and Safety Code;
(iii) a felony under Chapter 153, Finance
Code;
(iv) any felony under Chapter 34, Penal
Code;
(v) a Class A misdemeanor under Subchapter
B, Chapter 365, Health and Safety Code, if the defendant has been
previously convicted twice of an offense under that subchapter;
(vi) any felony under Chapter 152, Finance
Code;
(vii) any felony under Chapter 32, Human
Resources Code, or Chapter 31, 32, 35A, or 37, Penal Code, that
involves the state Medicaid program;
(viii) a Class B misdemeanor under Chapter
522, Business & Commerce Code;
(ix) a Class A misdemeanor under Section
306.051, Business & Commerce Code; [or]
(x) any offense under Section 42.10, Penal
Code;
(xi) [(x)] any offense under Section
46.06(a)(1) or 46.14, Penal Code;
(xii) [(x)] any offense under Chapter 71,
Penal Code; or
(xiii) any offense under Section 20.05,
Penal Code;
(C) the proceeds gained from the commission of a
felony listed in Paragraph (A) or (B) of this subdivision, a
misdemeanor listed in Paragraph (B)(viii), [or] (x), (xi), or (xii)
of this subdivision, or a crime of violence;
(D) acquired with proceeds gained from the
commission of a felony listed in Paragraph (A) or (B) of this
subdivision, a misdemeanor listed in Paragraph (B)(viii), [or] (x),
(xi), or (xii) of this subdivision, or a crime of violence; or
(E) used to facilitate or intended to be used to
facilitate the commission of a felony under Section 15.031 or
43.25, Penal Code.
SECTION 6. The changes in law made by this Act in amending
Sections 20.05 and 71.02, Penal 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 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 7. The change in law made by this Act in amending
Subdivision (2), Article 59.01, Code of Criminal Procedure, applies
only to the forfeiture of property in relation to an offense
committed on or after the effective date of this Act. Forfeiture of
property in relation to 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 8. To the extent of any conflict, this Act prevails
over another Act of the 82nd Legislature, Regular Session, 2011,
relating to nonsubstantive additions to and corrections in enacted
codes.
SECTION 9. This Act takes effect September 1, 2011.
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