By:  Jones, D.                                         H.B. No. 180
       73R862 DRH-F
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the creation of the offense of criminal street gang
    1-3  activity and the punishment and sentencing of persons convicted of
    1-4  offenses committed for the benefit of, at the direction of, or in
    1-5  association with a criminal street gang.
    1-7        SECTION 1.  Subchapter D, Chapter 12, Penal Code, is amended
    1-8  by adding Section 12.48 to read as follows:
   1-10  MEMBER.  (a)  The punishment prescribed for a felony is increased
   1-11  to the punishment prescribed for the next highest category of
   1-12  felony, or if the offense is a felony of the first degree, the
   1-13  minimum term of imprisonment is increased to 15 years, if it is
   1-14  shown on the trial of the offense that the defendant committed the
   1-15  offense:
   1-16              (1)  for the benefit of, at the direction of, or in
   1-17  association with a criminal street gang; and
   1-18              (2)  with the specific intent to promote criminal
   1-19  conduct by criminal street gang members.
   1-20        (b)  This section does not apply to an offense:
   1-21              (1)  under Section 42.021 of this code; or
   1-22              (2)  for which the punishment otherwise prescribed is
   1-23  the punishment for a capital felony.
   1-24        (c)  In this section, "criminal street gang" means an ongoing
    2-1  group of three or more persons having:
    2-2              (1)  a common name, identifying sign, or symbol; and
    2-3              (2)  the commission of criminal offenses as one of its
    2-4  primary activities.
    2-5        (d)  An offense for which the punishment is enhanced under
    2-6  this section may also be used for enhancement purposes under
    2-7  Section 12.42 of this code.
    2-8        SECTION 2.  Chapter 42, Penal Code, is amended by adding
    2-9  Section 42.021 to read as follows:
   2-10        Sec. 42.021.  CRIMINAL STREET GANG ACTIVITY.  (a)  A person
   2-11  commits an offense if the person knowingly participates in criminal
   2-12  street gang activity.
   2-13        (b)  In this section:
   2-14              (1)  "Criminal street gang" has the meaning assigned by
   2-15  Section 12.48(c) of this code.
   2-16              (2)  "Criminal street gang activity" means conduct by
   2-17  one or more members of a criminal street gang that:
   2-18                    (A)  creates an immediate danger of damage to
   2-19  property or injury to persons;
   2-20                    (B)  substantially obstructs law enforcement or
   2-21  other governmental functions or services;
   2-22                    (C)  by force, threat of force, or physical
   2-23  action deprives any person of a legal right or disturbs any person
   2-24  in the enjoyment of a legal right; or
   2-25                    (D)  constitutes an offense under this code.
   2-26        (c)  It is no defense to prosecution under this section that
   2-27  another who was a member of the criminal street gang has been
    3-1  acquitted, has not been arrested, prosecuted, or convicted, has
    3-2  been convicted of a different offense or of a different type or
    3-3  class of offense, or is immune from prosecution.
    3-4        (d)  Except as provided in Subsections (e) and (f) of this
    3-5  section, an offense under this section is a Class A misdemeanor.
    3-6        (e)  An offense under this section is an offense of the same
    3-7  classification as any offense of a higher grade committed by anyone
    3-8  engaged in the criminal street gang activity if the offense was:
    3-9              (1)  in the furtherance of the purpose of the criminal
   3-10  street gang; or
   3-11              (2)  an offense that should have been anticipated as a
   3-12  result of the criminal street gang activity.
   3-13        (f)  An offense under this section is a felony of the third
   3-14  degree if the person uses a deadly weapon while participating in
   3-15  the criminal street gang activity.
   3-16        (g)  If conduct constituting an offense under this section
   3-17  also constitutes an offense under another section of this code, the
   3-18  person may be prosecuted under either section.
   3-19        SECTION 3.  Section 71.02(a), Penal Code, is amended to read
   3-20  as follows:
   3-21        (a)  A person commits an offense if, with the intent to
   3-22  establish, maintain, or participate in a combination or in the
   3-23  profits of a combination <or as a member of a criminal street
   3-24  gang>, he commits or conspires to commit one or more of the
   3-25  following:
   3-26              (1)  murder, capital murder, arson, aggravated robbery,
   3-27  robbery, burglary, theft, aggravated kidnapping, kidnapping,
    4-1  aggravated assault, aggravated sexual assault, sexual assault, or
    4-2  forgery;
    4-3              (2)  any felony gambling offense;
    4-4              (3)  promotion of prostitution, aggravated promotion of
    4-5  prostitution, or compelling prostitution;
    4-6              (4)  unlawful manufacture, transportation, repair, or
    4-7  sale of firearms or prohibited weapons;
    4-8              (5)  unlawful manufacture, delivery, dispensation, or
    4-9  distribution of a controlled substance or dangerous drug, or
   4-10  unlawful possession of a controlled substance or dangerous drug
   4-11  through forgery, fraud, misrepresentation, or deception;
   4-12              (6)  any unlawful wholesale promotion or possession of
   4-13  any obscene material or obscene device with the intent to wholesale
   4-14  promote the same;
   4-15              (7)  any unlawful employment, authorization, or
   4-16  inducing of a child younger than 17 years of age in an obscene
   4-17  sexual performance;
   4-18              (8)  any felony offense under Chapter 32, Penal Code;
   4-19  or
   4-20              (9)  any offense under Chapter 36, Penal Code.
   4-21        SECTION 4.  (a)  The heading of Title 11, Penal Code, is
   4-22  amended to read as follows:
   4-24        (b)  The heading of Chapter 71, Penal Code, is amended to
   4-25  read as follows:
   4-27        SECTION 5.  Section 3g(a), Article 42.12, Code of Criminal
    5-1  Procedure, is amended to read as follows:
    5-2        Sec. 3g.  (a)  The provisions of Section 3 of this article do
    5-3  not apply:
    5-4              (1)  to a defendant adjudged guilty of an offense:
    5-5                    (A)  for which punishment is increased under
    5-6  Section 12.48, Penal Code;
    5-7                    (B)  defined by the following sections of the
    5-8  Penal Code:
    5-9                          (i) <(A)>  Section 19.03 (Capital murder);
   5-10                          (ii) <(B)>  Section 20.04 (Aggravated
   5-11  kidnapping);
   5-12                          (iii) <(C)>  Section 22.021 (Aggravated
   5-13  sexual assault);
   5-14                          (iv) <(D)>  Section 29.03 (Aggravated
   5-15  robbery); or
   5-16                    (C)  Section 42.021, Penal Code, if the offense
   5-17  is punishable as a felony under that section;
   5-18              (2)  to a defendant when it is shown that a deadly
   5-19  weapon as defined in Section 1.07(a)(11), Penal Code, was used or
   5-20  exhibited during the commission of a felony offense or during
   5-21  immediate flight therefrom, and that the defendant used or
   5-22  exhibited the deadly weapon or was a party to the offense and knew
   5-23  that a deadly weapon would be used or exhibited.  On an affirmative
   5-24  finding under this subdivision, the trial court shall enter the
   5-25  finding in the judgment of the court.  On an affirmative finding
   5-26  that the deadly weapon was a firearm, the court shall enter that
   5-27  finding in its judgment.
    6-1        SECTION 6.  Article 42.12, Code of Criminal Procedure, is
    6-2  amended by adding Section 13A to read as follows:
    6-3        Sec. 13A.  CRIMINAL STREET GANG PROBATION.  If the court
    6-4  grants probation to a person convicted of a misdemeanor under
    6-5  Section 42.021, Penal Code, the court shall require as a condition
    6-6  of probation that the defendant serve 180 days in jail.
    6-7        SECTION 7.  Sections 8(b) and (c), Article 42.18, Code of
    6-8  Criminal Procedure, are amended to read as follows:
    6-9        (b)(1)  A prisoner under sentence of death is not eligible
   6-10  for parole.
   6-11              (2)  If a prisoner is serving a life sentence for a
   6-12  capital felony, the prisoner is not eligible for release on parole
   6-13  until the actual calendar time the prisoner has served, without
   6-14  consideration of good conduct time, equals 35 calendar years.
   6-15              (3)  If a prisoner is serving a sentence for the
   6-16  offenses listed in Subdivision (1)(B)(ii), (iii), <(1)(B), (C),> or
   6-17  (iv) <(D)> of Section 3g(a), Article 42.12 of this code, or if the
   6-18  judgment contains an affirmative finding under Subdivision (2) of
   6-19  Subsection (a) of Section 3g of that article, he is not eligible
   6-20  for release on parole until his actual calendar time served,
   6-21  without consideration of good conduct time, equals one-fourth of
   6-22  the maximum sentence or 15 calendar years, whichever is less, but
   6-23  in no event shall he be eligible for release on parole in less than
   6-24  two calendar years.
   6-25              (4)  Except as provided by Subsection (m) of this
   6-26  section, all other prisoners shall be eligible for release on
   6-27  parole when their calendar time served plus good conduct time
    7-1  equals one-fourth of the maximum sentence imposed or 15 years,
    7-2  whichever is less.
    7-3        (c)  Except as otherwise provided by this subsection, a
    7-4  prisoner who is not on parole shall be released to mandatory
    7-5  supervision by order of a parole panel when the calendar time he
    7-6  has served plus any accrued good conduct time equal the maximum
    7-7  term to which he was sentenced.  A prisoner released to mandatory
    7-8  supervision shall, upon release, be deemed as if released on
    7-9  parole.  To the extent practicable, arrangements for the prisoner's
   7-10  proper employment, maintenance, and care shall be made prior to his
   7-11  release to mandatory supervision.  The period of mandatory
   7-12  supervision shall be for a period equivalent to the maximum term
   7-13  for which the prisoner was sentenced less calendar time actually
   7-14  served on the sentence.  The time served on mandatory supervision
   7-15  is calculated as calendar time.  Every prisoner while on mandatory
   7-16  supervision shall remain in the legal custody of the state and
   7-17  shall be amenable to conditions of supervision ordered by the
   7-18  parole panel.  A prisoner may not be released to mandatory
   7-19  supervision if the prisoner is serving a sentence for an offense
   7-20  and the judgment for the offense contains an affirmative finding
   7-21  under Subdivision (2), Subsection (a), Section 3g, Article 42.12,
   7-22  of this code, if the prisoner is serving a sentence for an offense
   7-23  for which punishment is increased under Section 12.48, Penal Code,
   7-24  or if the prisoner is serving a sentence for:
   7-25              (1)  a first degree felony under Section 19.02, Penal
   7-26  Code (Murder);
   7-27              (2)  a capital felony under Section 19.03, Penal Code
    8-1  (Capital Murder);
    8-2              (3)  a first degree felony or a second degree felony
    8-3  under Section 20.04, Penal Code (Aggravated Kidnapping);
    8-4              (4)  a second degree felony under Section 22.011, Penal
    8-5  Code (Sexual Assault);
    8-6              (5)  a second degree or third degree felony under
    8-7  Section 22.02, Penal Code (Aggravated Assault);
    8-8              (6)  a first degree felony under Section 22.021, Penal
    8-9  Code (Aggravated Sexual Assault);
   8-10              (7)  a first degree felony under Section 22.03, Penal
   8-11  Code (Deadly Assault on Law Enforcement or Corrections Officer or
   8-12  Court Participant);
   8-13              (8)  a first degree felony under Section 22.04, Penal
   8-14  Code (Injury to a Child or an Elderly Individual);
   8-15              (9)  a first degree felony under Section 28.02, Penal
   8-16  Code (Arson);
   8-17              (10)  a second degree felony under Section 29.02, Penal
   8-18  Code (Robbery);
   8-19              (11)  a first degree felony under Section 29.03, Penal
   8-20  Code (Aggravated Robbery); <or>
   8-21              (12)  a first degree felony under Section 30.02, Penal
   8-22  Code (Burglary), if the offense is punished under Subsection (d)(2)
   8-23  or (d)(3) of that section; or
   8-24              (13)  a felony under Section 42.021, Penal Code
   8-25  (Criminal Street Gang Activity).
   8-26        SECTION 8.  Section 71.01(d), Penal Code, is repealed.
   8-27        SECTION 9.  (a)  The change in law made by this Act applies
    9-1  only to the punishment for an offense committed on or after the
    9-2  effective date of this Act.  For purposes of this section, an
    9-3  offense is committed before the effective date of this Act if any
    9-4  element of the offense occurs before the effective date.
    9-5        (b)  An offense committed before the effective date of this
    9-6  Act is covered by the law in effect when the offense was committed,
    9-7  and the former law is continued in effect for this purpose.
    9-8        SECTION 10.  This Act takes effect September 1, 1993.
    9-9        SECTION 11.  The importance of this legislation and the
   9-10  crowded condition of the calendars in both houses create an
   9-11  emergency and an imperative public necessity that the
   9-12  constitutional rule requiring bills to be read on three several
   9-13  days in each house be suspended, and this rule is hereby suspended.