87R6382 SCL/MCK/JAM-D

By: Thompson of Harris, Parker, Burrows, H.B. No. 1540

Bell of Kaufman, Morales of Harris

A BILL TO BE ENTITLED

AN ACT

relating to regulation of certain facilities and establishments with respect to, civil remedies for certain criminal activities affecting, and certain criminal offenses involving health, safety, and welfare; creating a criminal offense; increasing criminal penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 11.44(b), Alcoholic Beverage Code, is amended to read as follows:

(b) The commission shall deny an application for a permit or license for any location of an applicant who submitted a prior application that expired or was voluntarily surrendered before the hearing on the application was held on a protest involving allegations of prostitution, a shooting, stabbing, or other violent act, or an offense involving drugs, [or] trafficking of persons, or drink solicitation as described by Section 104.01 before the third anniversary of the date the prior application expired or was voluntarily surrendered.

SECTION 2. Section 11.46(c), Alcoholic Beverage Code, is amended to read as follows:

(c) The commission shall deny for a period of one year after cancellation an application for a mixed beverage permit or private club registration permit for a premises where a license or permit has been canceled during the preceding 12 months as a result of:

(1) a shooting, stabbing, or other violent act; [,] or

(2) [as a result of] an offense involving drugs, prostitution, [or] trafficking of persons, or drink solicitation as described by Section 104.01.

SECTION 3. Section 61.42(c), Alcoholic Beverage Code, as effective September 1, 2021, is amended to read as follows:

(c) The commission shall deny for a period of one year an application for a retail dealer's on-premise license or a wine and malt beverage retailer's permit for a premises where a license or permit has been canceled during the preceding 12 months as a result of:

(1) a shooting, stabbing, or other violent act; [,] or

(2) [as a result of] an offense involving drugs, prostitution, [or] trafficking of persons, or drink solicitation as described by Section 104.01.

SECTION 4. Section 125.0017, Civil Practice and Remedies Code, as added by Chapter 858 (H.B. 2552), Acts of the 85th Legislature, Regular Session, 2017, is amended to read as follows:

Sec. 125.0017. NOTICE BY LAW ENFORCEMENT OF [ARREST FOR] CERTAIN ACTIVITIES. If a law enforcement agency has reason to believe [makes an arrest related to] an activity described by Section 125.0015(a)(6), (7), or (18) has occurred [that occurs] at property leased to a person operating a massage establishment as defined by Section 455.001, Occupations Code, [not later than the seventh day after the date of the arrest,] the law enforcement agency may [shall] provide written notice by certified mail to each person maintaining the property of the alleged activity [arrest].

SECTION 5. Section 125.0025(b), Civil Practice and Remedies Code, is amended to read as follows:

(b) Except as provided by Section 125.005 [125.003(d)], on a finding that a web address or computer network is a common nuisance, the sole remedy available is a judicial finding issued to the attorney general.

SECTION 6. Sections 125.004(a-1) and (a-2), Civil Practice and Remedies Code, are amended to read as follows:

(a-1) Proof in the form of a person's arrest or the testimony of a law enforcement agent that an activity described by Section 125.0015(a)(6) or (7) is committed at a place licensed as a massage establishment under Chapter 455, Occupations Code, or advertised as offering massage therapy or massage services, after notice [of an arrest] was provided to the defendant in accordance with Section 125.0017, is prima facie evidence that the defendant:

(1) knowingly tolerated the activity; and

(2) did not make a reasonable attempt to abate the activity.

(a-2) Proof that an activity described by Section 125.0015(a)(18) is committed at a place maintained by the defendant, after notice [of an arrest] was provided to the defendant in accordance with Section 125.0017, is prima facie evidence that the defendant:

(1) knowingly tolerated the activity; and

(2) did not make a reasonable attempt to abate the activity.

SECTION 7. Section 125.004(a-3), Civil Practice and Remedies Code, as added by Chapter 858 (H.B. 2552), Acts of the 85th Legislature, Regular Session, 2017, is amended to read as follows:

(a-3) For purposes of Subsections (a-1) and (a-2), notice is considered to be provided to the defendant the earlier of:

(1) seven days after the postmark date of the notice provided under Section 125.0017; or

(2) the date the defendant actually received notice under Section 125.0017.

SECTION 8. Subchapter A, Chapter 125, Civil Practice and Remedies Code, is amended by adding Section 125.005 to read as follows:

Sec. 125.005. ATTORNEY'S FEES AND COSTS IN ACTION UNDER CHAPTER. In an action brought under this chapter, the court may award a prevailing party reasonable attorney's fees in addition to costs incurred in bringing the action. In determining the amount of attorney's fees, the court shall consider:

(1) the time and labor involved;

(2) the novelty and difficulty of the questions;

(3) the expertise, reputation, and ability of the attorney; and

(4) any other factor considered relevant by the court.

SECTION 9. Section 125.070(d), Civil Practice and Remedies Code, is amended to read as follows:

(d) A district, county, or city attorney or the attorney general may sue for money damages on behalf of the state or a governmental entity. If the state or a governmental entity prevails in a suit under this section, the state or governmental entity may recover:

(1) actual damages;

(2) a civil penalty in an amount not to exceed $20,000 for each violation; and

(3) court costs and attorney's fees in accordance with Section 125.005.

SECTION 10. Section 140A.002, Civil Practice and Remedies Code, is amended to read as follows:

Sec. 140A.002. CIVIL RACKETEERING. A person or enterprise commits racketeering if, for financial gain, the person or enterprise commits an offense under Chapter 20A, Penal Code (trafficking of persons)[, and the offense or an element of the offense:

[(1) occurs in more than one county in this state; or

[(2) is facilitated by the use of United States mail, e-mail, telephone, facsimile, or a wireless communication from one county in this state to another].

SECTION 11. Section 140A.102(b), Civil Practice and Remedies Code, is amended to read as follows:

(b) Following a final determination of liability under this chapter, the court may issue an appropriate order, including an order that:

(1) requires a person to divest any direct or indirect interest in an enterprise;

(2) imposes reasonable restrictions on the future activities or investments of a person that affect the laws of this state, including prohibiting a person from engaging in the type of endeavor or enterprise that gave rise to the racketeering offense, to the extent permitted by the constitutions of this state and the United States;

(3) requires the dissolution or reorganization of an enterprise involved in the suit;

(4) orders the recovery of reasonable fees, expenses, and costs incurred in obtaining injunctive relief or civil remedies or in conducting investigations under this chapter, including court costs, investigation costs, attorney's fees, witness fees, and deposition fees;

(5) orders payment to the state of an amount equal to:

(A) the gain acquired or maintained through racketeering; or

(B) the amount for which a person is liable under this chapter;

(6) orders payment to the state of a civil penalty by a person or enterprise found liable for racketeering, in an amount not to exceed $250,000 for each separately alleged and proven act of racketeering;

(7) orders payment of damages to the state for racketeering shown to have materially damaged the state; and [or]

(8) orders that property attached under Chapter 61 be used to satisfy an award of the court, including damages, penalties, costs, and fees.

SECTION 12. Section 140A.104(d), Civil Practice and Remedies Code, is amended to read as follows:

(d) An enterprise may not be held liable under this chapter based on the conduct of a person [an agent] unless the finder of fact finds by a preponderance of the evidence that a director or high managerial agent performed, authorized, requested, commanded, participated in, ratified, or recklessly tolerated the unlawful conduct of the person [agent].

SECTION 13. Articles 42A.453(a) and (c), Code of Criminal Procedure, are amended to read as follows:

(a) In this article, "playground," "premises," "school," "video arcade facility," and "youth center" have the meanings assigned by Section 481.134, Health and Safety Code, and "general residential operation" has the meaning assigned by Section 42.002, Human Resources Code.

(c) If a judge grants community supervision to a defendant described by Subsection (b) and the judge determines that a child as defined by Section 22.011(c), Penal Code, was the victim of the offense, the judge shall establish a child safety zone applicable to the defendant by requiring as a condition of community supervision that the defendant:

(1) not:

(A) supervise or participate in any program that:

(i) includes as participants or recipients persons who are 17 years of age or younger; and

(ii) regularly provides athletic, civic, or cultural activities; or

(B) go in, on, or within 1,000 feet of a premises where children commonly gather, including a school, day-care facility, playground, public or private youth center, public swimming pool, [or] video arcade facility, or general residential operation operating as a residential treatment center; and

(2) attend psychological counseling sessions for sex offenders with an individual or organization that provides sex offender treatment or counseling as specified or approved by the judge or the defendant's supervision officer.

SECTION 14. Section 481.134(a), Health and Safety Code, is amended by adding Subdivision (8) to read as follows:

(8) "General residential operation" has the meaning assigned by Section 42.002, Human Resources Code.

SECTION 15. Sections 481.134(b), (c), (d), (e), and (f), Health and Safety Code, are amended to read as follows:

(b) An offense otherwise punishable as a state jail felony under Section 481.112, 481.1121, 481.113, 481.114, or 481.120 is punishable as a felony of the third degree, and an offense otherwise punishable as a felony of the second degree under any of those sections is punishable as a felony of the first degree, if it is shown at the punishment phase of the trial of the offense that the offense was committed:

(1) in, on, or within 1,000 feet of premises owned, rented, or leased by an institution of higher learning, the premises of a public or private youth center, or a playground; [or]

(2) in, on, or within 300 feet of the premises of a public swimming pool or video arcade facility; or

(3) by any unauthorized person 18 years of age or older, in, on, or within 1,000 feet of premises owned, rented, or leased by a general residential operation operating as a residential treatment center.

(c) The minimum term of confinement or imprisonment for an offense otherwise punishable under Section 481.112(c), (d), (e), or (f), 481.1121(b)(2), (3), or (4), 481.113(c), (d), or (e), 481.114(c), (d), or (e), 481.115(c)-(f), 481.1151(b)(2), (3), (4), or (5), 481.116(c), (d), or (e), 481.1161(b)(4), (5), or (6), 481.117(c), (d), or (e), 481.118(c), (d), or (e), 481.120(b)(4), (5), or (6), or 481.121(b)(4), (5), or (6) is increased by five years and the maximum fine for the offense is doubled if it is shown on the trial of the offense that the offense was committed:

(1) in, on, or within 1,000 feet of the premises of a school, the premises of a public or private youth center, or a playground; [or]

(2) on a school bus; or

(3) by any unauthorized person 18 years of age or older, in, on, or within 1,000 feet of premises owned, rented, or leased by a general residential operation operating as a residential treatment center.

(d) An offense otherwise punishable under Section 481.112(b), 481.1121(b)(1), 481.113(b), 481.114(b), 481.115(b), 481.1151(b)(1), 481.116(b), 481.1161(b)(3), 481.120(b)(3), or 481.121(b)(3) is a felony of the third degree if it is shown on the trial of the offense that the offense was committed:

(1) in, on, or within 1,000 feet of any real property that is owned, rented, or leased to a school or school board, the premises of a public or private youth center, or a playground; [or]

(2) on a school bus; or

(3) by any unauthorized person 18 years of age or older, in, on, or within 1,000 feet of premises owned, rented, or leased by a general residential operation operating as a residential treatment center.

(e) An offense otherwise punishable under Section 481.117(b), 481.119(a), 481.120(b)(2), or 481.121(b)(2) is a state jail felony if it is shown on the trial of the offense that the offense was committed:

(1) in, on, or within 1,000 feet of any real property that is owned, rented, or leased to a school or school board, the premises of a public or private youth center, or a playground; [or]

(2) on a school bus; or

(3) by any unauthorized person 18 years of age or older, in, on, or within 1,000 feet of premises owned, rented, or leased by a general residential operation operating as a residential treatment center.

(f) An offense otherwise punishable under Section 481.118(b), 481.119(b), 481.120(b)(1), or 481.121(b)(1) is a Class A misdemeanor if it is shown on the trial of the offense that the offense was committed:

(1) in, on, or within 1,000 feet of any real property that is owned, rented, or leased to a school or school board, the premises of a public or private youth center, or a playground; [or]

(2) on a school bus; or

(3) by any unauthorized person 18 years of age or older, in, on, or within 1,000 feet of premises owned, rented, or leased by a general residential operation operating as a residential treatment center.

SECTION 16. Section 42.002, Human Resources Code, is amended by adding Subdivision (25) to read as follows:

(25) "Grounds" means, with regard to property, the real property, whether fenced or unfenced, of the parcel of land on which is located any appurtenant building, structure, or other improvement, including a public or private driveway, street, sidewalk or walkway, parking lot, and parking garage on the property.

SECTION 17. Sections 42.042(e), (g), and (g-2), Human Resources Code, are amended to read as follows:

(e) The executive commissioner shall promulgate minimum standards that apply to licensed child-care facilities and to registered family homes covered by this chapter and that will:

(1) promote the health, safety, and welfare of children attending a facility or registered family home;

(2) promote safe, comfortable, and healthy physical facilities and registered family homes for children;

(3) ensure adequate supervision of children by capable, qualified, and healthy personnel;

(4) ensure adequate and healthy food service where food service is offered;

(5) prohibit racial discrimination by child-care facilities and registered family homes;

(6) require procedures for parental and guardian consultation in the formulation of children's educational and therapeutic programs;

(7) prevent the breakdown of foster care and adoptive placement; [and]

(8) ensure that a child-care facility or registered family home:

(A) follows the directions of a child's physician or other health care provider in providing specialized medical assistance required by the child; and

(B) maintains for a reasonable time a copy of any directions from the physician or provider that the parent provides to the facility or home; and

(9) ensure that a child's health, safety, and welfare are adequately protected on the grounds of a child-care facility or registered family home.

(g) In promulgating minimum standards the executive commissioner may recognize and treat differently the types of services provided by and the grounds appurtenant to the following:

(1) listed family homes;

(2) registered family homes;

(3) child-care facilities, including general residential operations, cottage home operations, specialized child-care homes, group day-care homes, and day-care centers;

(4) child-placing agencies;

(5) agency foster homes;

(6) continuum-of-care residential operations;

(7) before-school or after-school programs; and

(8) school-age programs.

(g-2) The executive commissioner by rule shall adopt minimum standards that apply to general residential operations that provide comprehensive residential and nonresidential services to persons who are victims of trafficking under Section 20A.02, Penal Code. In adopting the minimum standards under this subsection, the executive commissioner shall consider:

(1) the special circumstances, [and] needs, and precautions required of victims of trafficking of persons; [and]

(2) the role of the general residential operations in assisting, [and] supporting, and protecting victims of trafficking of persons; and

(3) the vulnerability of victims of trafficking of persons on the grounds of a general residential operation operating as a residential treatment center.

SECTION 18. Subchapter C, Chapter 42, Human Resources Code, is amended by adding Section 42.068 to read as follows:

Sec. 42.068. REQUIRED POSTING OF NO TRESPASSING NOTICE; CRIMINAL PENALTY. (a) Each general residential operation operating as a residential treatment center shall post "No Trespassing" notices on the grounds of the general residential operation in the following locations:

(1) parallel to and along the exterior boundaries of the general residential operation's grounds;

(2) at each roadway or other way of access to the grounds;

(3) for grounds not fenced, at least every five hundred feet along the exterior boundaries of the grounds;

(4) at each entrance to the grounds; and

(5) at conspicuous places reasonably likely to be viewed by intruders.

(b) Each "No Trespassing" notice posted on the grounds of a general residential operation operating as a residential treatment center must:

(1) state that entry to the property is forbidden;

(2) include a description of the provisions of Section 30.05, Penal Code, including the penalties for violating Section 30.05, Penal Code;

(3) include the name and address of the person under whose authority the notice is posted;

(4) be written in English and Spanish; and

(5) be at least 8-1/2 by 11 inches in size.

(c) The executive commissioner by rule shall determine and prescribe the requirements regarding the placement, installation, design, size, wording, and maintenance procedures for the "No Trespassing" notices.

(d) The commission shall provide without charge to each general residential operation operating as a residential treatment center the number of "No Trespassing" notices required to comply with this section and rules adopted under this section.

(e) A person who operates a general residential operation operating as a residential treatment center commits an offense if the commission provides "No Trespassing" notices to the facility and the person fails to display the "No Trespassing" notices on the operation's grounds as required by this section before the end of the 30th business day after the date the operation receives the notices. An offense under this subsection is a Class C misdemeanor.

SECTION 19. Section 20A.01, Penal Code, is amended by adding Subdivision (1-a) to read as follows:

(1-a) "Coercion" as defined by Section 1.07 includes:

(A) destroying, concealing, confiscating, or withholding from a trafficked person, or threatening to destroy, conceal, confiscate, or withhold from a trafficked person, the person's actual or purported:

(i) government records; or

(ii) identifying information or documents;

(B) causing a trafficked person, without the person's consent, to become intoxicated, as defined by Section 49.01, to a degree that impairs the person's ability to appraise the nature of or resist engaging in any conduct, including performing or providing labor or services; or

(C) withholding alcohol or a controlled substance to a degree that impairs the ability of a trafficked person with a chemical dependency, as defined by Section 462.001, Health and Safety Code, to appraise the nature of or resist engaging in any conduct, including performing or providing labor or services.

SECTION 20. Section 20A.02(b), Penal Code, is amended to read as follows:

(b) Except as otherwise provided by this subsection, an offense under this section is a felony of the second degree. An offense under this section is a felony of the first degree if:

(1) the applicable conduct constitutes an offense under Subsection (a)(5), (6), (7), or (8), regardless of whether the actor knows the age of the child at the time of the offense;

(2) the commission of the offense results in the death of the person who is trafficked; [or]

(3) the commission of the offense results in the death of an unborn child of the person who is trafficked; or

(4) the actor recruited, enticed, or obtained the victim of the offense from a shelter or facility operating as a residential treatment center that serves runaway youth, foster children, the homeless, or persons subjected to human trafficking, domestic violence, or sexual assault.

SECTION 21. Section 30.05(a), Penal Code, is amended to read as follows:

(a) A person commits an offense if the person enters or remains on or in property of another, including residential land, agricultural land, a recreational vehicle park, a building, a general residential operation operating as a residential treatment center, or an aircraft or other vehicle, without effective consent and the person:

(1) had notice that the entry was forbidden; or

(2) received notice to depart but failed to do so.

SECTION 22. Section 30.05(b), Penal Code, is amended by adding Subdivision (13) to read as follows:

(13) "General residential operation" has the meaning assigned by Section 42.002, Human Resources Code.

SECTION 23. Section 30.05(d), Penal Code, is amended to read as follows:

(d) An offense under this section is:

(1) a Class B misdemeanor, except as provided by Subdivisions (2) and (3);

(2) a Class C misdemeanor, except as provided by Subdivision (3), if the offense is committed:

(A) on agricultural land and within 100 feet of the boundary of the land; or

(B) on residential land and within 100 feet of a protected freshwater area; and

(3) a Class A misdemeanor if:

(A) the offense is committed:

(i) in a habitation or a shelter center;

(ii) on a Superfund site; or

(iii) on or in a critical infrastructure facility;

(B) the offense is committed on or in property of an institution of higher education and it is shown on the trial of the offense that the person has previously been convicted of:

(i) an offense under this section relating to entering or remaining on or in property of an institution of higher education; or

(ii) an offense under Section 51.204(b)(1), Education Code, relating to trespassing on the grounds of an institution of higher education; [or]

(C) the person carries a deadly weapon during the commission of the offense; or

(D) the offense is committed on the property of or within a general residential operation operating as a residential treatment center.

SECTION 24. Section 71.028(a), Penal Code, is amended to read as follows:

(a) In this section:

(1) "General residential operation" has the meaning assigned by Section 42.002, Human Resources Code.

(2) "Institution of higher education," "playground," "premises," "school," "video arcade facility," and "youth center" have the meanings assigned by Section 481.134, Health and Safety Code.

(3) [(2)] "Shopping mall" means an enclosed public walkway or hall area that connects retail, service, or professional establishments.

SECTION 25. Section 71.028(c), Penal Code, is amended to read as follows:

(c) Except as provided by Subsection (d), the punishment prescribed for an offense described by Subsection (b) is increased to the punishment prescribed for the next highest category of offense if the actor is 17 years of age or older and it is shown beyond a reasonable doubt on the trial of the offense that the actor committed the offense at a location that was:

(1) in, on, or within 1,000 feet of any:

(A) real property that is owned, rented, or leased by a school or school board;

(B) premises owned, rented, or leased by an institution of higher education;

(C) premises of a public or private youth center; [or]

(D) playground; or

(E) general residential operation operating as a residential treatment center;

(2) in, on, or within 300 feet of any:

(A) shopping mall;

(B) movie theater;

(C) premises of a public swimming pool; or

(D) premises of a video arcade facility; or

(3) on a school bus.

SECTION 26. The following provisions are repealed:

(1) Section 125.0017, Civil Practice and Remedies Code, as added by Chapter 1135 (H.B. 240), Acts of the 85th Legislature, Regular Session, 2017;

(2) Section 125.003(d), Civil Practice and Remedies Code;

(3) Section 125.004(a-3), Civil Practice and Remedies Code, as added by Chapter 1135 (H.B. 240), Acts of the 85th Legislature, Regular Session, 2017;

(4) Section 125.068, Civil Practice and Remedies Code; and

(5) Section 20A.02(a-1), Penal Code.

SECTION 27. (a) Sections 11.44(b), 11.46(c), and 61.42(c), Alcoholic Beverage Code, as amended by this Act, apply to an application for an alcoholic beverage permit or license filed on or after the effective date of this Act or pending on the effective date of this Act.

(b) The change in law made to the Civil Practice and Remedies Code by this Act applies only to a cause of action that accrues on or after the effective date of this Act. A cause of action that accrues before the effective date of this Act is governed by the law applicable to the cause of action immediately before the effective date of this Act, and that law is continued in effect for that purpose.

(c) The change in law made to Section 481.134, Health and Safety Code, and the Penal Code 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 governed by the law in effect on the date 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 28. This Act takes effect September 1, 2021.