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.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. Subchapter D, Chapter 12, Penal Code, is amended
1-8 by adding Section 12.48 to read as follows:
1-9 Sec. 12.48. PENALTY IF CRIME COMMITTED BY STREET GANG
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:
4-23 TITLE 11. ORGANIZED CRIME <AND CRIMINAL STREET GANGS>
4-24 (b) The heading of Chapter 71, Penal Code, is amended to
4-25 read as follows:
4-26 CHAPTER 71. ORGANIZED CRIME <AND CRIMINAL STREET GANGS>
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.