By De La Garza, Gallegos, et al.                        H.B. No. 57
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the underlying offenses on which prosecution of the
    1-3  offense of engaging in organized criminal or street gang activity
    1-4  may be based.
    1-5        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-6        SECTION 1.  Section 71.02(a), Penal Code, is amended to read
    1-7  as follows:
    1-8        (a)  A person commits an offense if, with the intent to
    1-9  establish, maintain, or participate in a combination or in the
   1-10  profits of a combination <or as a member of a criminal street
   1-11  gang>, he commits or conspires to commit one or more of the
   1-12  following:
   1-13              (1)  murder, capital murder, involuntary manslaughter,
   1-14  arson, aggravated robbery, robbery, burglary, theft, aggravated
   1-15  kidnapping, kidnapping, aggravated assault, assault, aggravated
   1-16  sexual assault, sexual assault, criminal mischief constituting a
   1-17  Class A misdemeanor or a Class B or Class C misdemeanor which would
   1-18  be a second conviction for the offense, burglary of a vehicle,
   1-19  unauthorized use of a vehicle, retaliation, tampering with a
   1-20  witness, or forgery;
   1-21              (2)  any felony gambling offense;
   1-22              (3)  promotion of prostitution, aggravated promotion of
   1-23  prostitution, or compelling prostitution;
   1-24              (4)  unlawful manufacture, transportation, repair,
    2-1  possession, or sale of firearms or prohibited weapons;
    2-2              (5)  unlawful manufacture, delivery, dispensation, or
    2-3  distribution of a controlled substance, controlled substance
    2-4  analogue, miscellaneous substance under Section 481.119, Health and
    2-5  Safety Code, or dangerous drug, or unlawful possession of a
    2-6  controlled substance, controlled substance analogue, miscellaneous
    2-7  substance under Section 481.119, Health and Safety Code, or
    2-8  dangerous drug <through forgery, fraud, misrepresentation, or
    2-9  deception>;
   2-10              (6)  any unlawful wholesale promotion or possession of
   2-11  any obscene material or obscene device with the intent to wholesale
   2-12  promote the same;
   2-13              (7)  any unlawful employment, authorization, or
   2-14  inducing of a child younger than 17 years of age in an obscene
   2-15  sexual performance;
   2-16              (8)  any felony offense under Chapter 32, Penal Code;
   2-17  or
   2-18              (9)  any offense under Chapter 36, Penal Code.
   2-19        SECTION 2.  (a)  Section 71.02, Penal Code, is amended by
   2-20  amending Subsections (b) and (c) and adding Subsection (d) to read
   2-21  as follows:
   2-22        (b)  Except as provided in Subsection (c) of this section, an
   2-23  offense under this section is one category higher than the most
   2-24  serious offense listed in Subsection (d) or Subdivisions (1)
   2-25  through (9) of Subsection (a) of this section that was committed,
   2-26  and if the most serious offense is a Class A misdemeanor, the
   2-27  offense is a felony of the third degree, except that if the most
    3-1  serious offense is a felony of the first degree, the offense is a
    3-2  felony of the first degree.
    3-3        (c)  Conspiring to commit an offense under this section is of
    3-4  the same degree as the most serious offense listed in Subsection
    3-5  (d) or Subdivisions (1) through (9) of Subsection (a) of this
    3-6  section that the person conspired to commit.
    3-7        (d)  A person commits an offense if, with the intent to
    3-8  establish, maintain, or participate in a combination or in the
    3-9  profits of a combination, he commits or conspires to commit an
   3-10  offense under Section 42.15 of this code (discharging a firearm at
   3-11  a habitation, building, or vehicle).
   3-12        (b)  Section 71.03, Penal Code, is amended to read as
   3-13  follows:
   3-14        Sec. 71.03.  Defenses Excluded.  It is no defense to
   3-15  prosecution under Section 71.02 of this code that:
   3-16              (1)  one or more members of the combination are not
   3-17  criminally responsible for the object offense;
   3-18              (2)  one or more members of the combination have been
   3-19  acquitted, have not been prosecuted or convicted, have been
   3-20  convicted of a different offense, or are immune from prosecution;
   3-21              (3)  a person has been charged with, acquitted, or
   3-22  convicted of any offense listed in Subsection (a) or (d) of Section
   3-23  71.02 of this code; or
   3-24              (4)  once the initial combination of five or more
   3-25  persons is formed there is a change in the number or identity of
   3-26  persons in the combination as long as two or more persons remain in
   3-27  the combination and are involved in a continuing course of conduct
    4-1  constituting an offense under this chapter.
    4-2        (c)  Sections 71.05(a) and (c), Penal Code, are amended to
    4-3  read as follows:
    4-4        (a)  It is an affirmative defense to prosecution under
    4-5  Section 71.02 of this code that under circumstances manifesting a
    4-6  voluntary and complete renunciation of his criminal objective the
    4-7  actor withdrew from the combination before commission of an offense
    4-8  listed in Subsection (d) or Subdivisions (1) through (9) <(7)> of
    4-9  Subsection (a) of Section 71.02 of this code and took further
   4-10  affirmative action that prevented the commission of the offense.
   4-11        (c)  Evidence that the defendant withdrew from the
   4-12  combination before commission of an offense listed in Subsection
   4-13  (d) or Subdivisions (1) through (9) <(7)> of Subsection (a) of
   4-14  Section 71.02 of this code and made substantial effort to prevent
   4-15  the commission of an offense listed in Subsection (d) or
   4-16  Subdivisions (1) through (9) <(7)> of Subsection (a) of Section
   4-17  71.02 of this code shall be admissible as mitigation at the hearing
   4-18  on punishment if he has been found guilty under Section 71.02 of
   4-19  this code, and in the event of a finding of renunciation under this
   4-20  subsection, the punishment shall be one grade lower than that
   4-21  provided under Section 71.02 of this code.
   4-22        SECTION 3.  (a)  Section 71.02, Penal Code, is amended by
   4-23  amending Subsections (b) and (c) and adding Subsection (e) to read
   4-24  as follows:
   4-25        (b)  Except as provided in Subsection (c) of this section, an
   4-26  offense under this section is one category higher than the most
   4-27  serious offense listed in Subsection (e) or Subdivisions (1)
    5-1  through (9) of Subsection (a) of this section that was committed,
    5-2  and if the most serious offense is a Class A misdemeanor, the
    5-3  offense is a felony of the third degree, except that if the most
    5-4  serious offense is a felony of the first degree, the offense is a
    5-5  felony of the first degree.
    5-6        (c)  Conspiring to commit an offense under this section is of
    5-7  the same degree as the most serious offense listed in Subsection
    5-8  (e) or Subdivisions (1) through (9) of Subsection (a) of this
    5-9  section that the person conspired to commit.
   5-10        (e)  A person commits an offense if, with the intent to
   5-11  establish, maintain, or participate in a combination or in the
   5-12  profits of a combination, he commits or conspires to commit an
   5-13  offense under Section 42.16 of this code (discharging a firearm
   5-14  from a vehicle).
   5-15        (b)  Section 71.03, Penal Code, is amended to read as
   5-16  follows:
   5-17        Sec. 71.03.  Defenses Excluded.  It is no defense to
   5-18  prosecution under Section 71.02 of this code that:
   5-19              (1)  one or more members of the combination are not
   5-20  criminally responsible for the object offense;
   5-21              (2)  one or more members of the combination have been
   5-22  acquitted, have not been prosecuted or convicted, have been
   5-23  convicted of a different offense, or are immune from prosecution;
   5-24              (3)  a person has been charged with, acquitted, or
   5-25  convicted of any offense listed in Subsection (a) or (e) of Section
   5-26  71.02 of this code; or
   5-27              (4)  once the initial combination of five or more
    6-1  persons is formed there is a change in the number or identity of
    6-2  persons in the combination as long as two or more persons remain in
    6-3  the combination and are involved in a continuing course of conduct
    6-4  constituting an offense under this chapter.
    6-5        (c)  Sections 71.05(a) and (c), Penal Code, are amended to
    6-6  read as follows:
    6-7        (a)  It is an affirmative defense to prosecution under
    6-8  Section 71.02 of this code that under circumstances manifesting a
    6-9  voluntary and complete renunciation of his criminal objective the
   6-10  actor withdrew from the combination before commission of an offense
   6-11  listed in Subsection (e) or Subdivisions (1) through (9) <(7)> of
   6-12  Subsection (a) of Section 71.02 of this code and took further
   6-13  affirmative action that prevented the commission of the offense.
   6-14        (c)  Evidence that the defendant withdrew from the
   6-15  combination before commission of an offense listed in Subsection
   6-16  (e) or Subdivisions (1) through (9) <(7)> of Subsection (a) of
   6-17  Section 71.02 of this code and made substantial effort to prevent
   6-18  the commission of an offense listed in Subsection (e) or
   6-19  Subdivisions (1) through (9) <(7)> of Subsection (a) of Section
   6-20  71.02 of this code shall be admissible as mitigation at the hearing
   6-21  on punishment if he has been found guilty under Section 71.02 of
   6-22  this code, and in the event of a finding of renunciation under this
   6-23  subsection, the punishment shall be one grade lower than that
   6-24  provided under Section 71.02 of this code.
   6-25        SECTION 4.  The section heading to Section 71.02, Penal Code,
   6-26  is amended to read as follows:
   6-27        Sec. 71.02.  ENGAGING IN ORGANIZED CRIMINAL OR STREET GANG
    7-1  ACTIVITY.
    7-2        SECTION 5.  Section 71.01(d), Penal Code, is repealed.
    7-3        SECTION 6.  (a)  The change in law made by this Act applies
    7-4  only to an offense committed on or after the effective date of this
    7-5  Act.  For purposes of this section, an offense is committed before
    7-6  the effective date of this Act if any element of the offense occurs
    7-7  before that date.
    7-8        (b)  An offense committed before the effective date of this
    7-9  Act is governed by the law in effect when the offense was
   7-10  committed, and the former law is continued in effect for that
   7-11  purpose.
   7-12        SECTION 7.  (a)  Except as provided by Subsections (b) and
   7-13  (c) of this section, this Act takes effect September 1, 1993.
   7-14        (b)  Section 2 of this Act takes effect September 1, 1993,
   7-15  but only if the change in law proposed by H.B. No. 28, 73rd
   7-16  Legislature, Regular Session, 1993, adding Section 42.15 to the
   7-17  Penal Code, takes effect on or before that date.  If H.B. No. 28
   7-18  does not take effect on or before September 1, 1993, Section 2 has
   7-19  no effect.
   7-20        (c)  Section 3 of this Act takes effect September 1, 1993,
   7-21  but only if the change in law proposed by H.B. No. 27, 73rd
   7-22  Legislature, Regular Session, 1993, adding Section 42.16 to the
   7-23  Penal Code, takes effect on or before that date.  If H.B. No. 27
   7-24  does not take effect on or before September 1, 1993, Section 3 has
   7-25  no effect.
   7-26        SECTION 8.  The importance of this legislation and the
   7-27  crowded condition of the calendars in both houses create an
    8-1  emergency and an imperative public necessity that the
    8-2  constitutional rule requiring bills to be read on three several
    8-3  days in each house be suspended, and this rule is hereby suspended.