73R7091 E
By De La Garza, Gallegos, et al. H.B. No. 57
Substitute the following for H.B. No. 57:
By De La Garza C.S.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.