1-1 By: Cain, et al. (Senate Sponsor - Whitmire) H.B. No. 697
1-2 (In the Senate - Received from the House April 13, 1993;
1-3 April 14, 1993, read first time and referred to Committee on
1-4 Criminal Justice; May 25, 1993, reported adversely, with favorable
1-5 Committee Substitute by the following vote: Yeas 5, Nays 0;
1-6 May 25, 1993, sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Whitmire x
1-10 Brown x
1-11 Nelson x
1-12 Sibley x
1-13 Sims x
1-14 Turner x
1-15 West x
1-16 COMMITTEE SUBSTITUTE FOR H.B. No. 697 By: Whitmire
1-17 A BILL TO BE ENTITLED
1-18 AN ACT
1-19 relating to civil actions to abate certain activities of
1-20 combinations or criminal street gangs.
1-21 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-22 SECTION 1. Sections 125.001, 125.021, and 125.041, Civil
1-23 Practice and Remedies Code, are amended to read as follows:
1-24 Sec. 125.001. Common Nuisance. A person who knowingly
1-25 maintains a place to which persons habitually go for the purpose of
1-26 prostitution or gambling in violation of the Penal Code, for the
1-27 purpose of engaging in organized criminal activity as a member of a
1-28 combination or as a member of a criminal street gang as described
1-29 by Section 71.02, Penal Code, or for the delivery or use of a
1-30 controlled substance in violation of Chapter 481, Health and Safety
1-31 Code, maintains a common nuisance.
1-32 Sec. 125.021. Public Nuisance. The habitual use or the
1-33 threatened or contemplated habitual use of any place for any of the
1-34 following purposes is a public nuisance:
1-35 (1) gambling, gambling promotion, or communicating
1-36 gambling information prohibited by law;
1-37 (2) promotion or aggravated promotion of prostitution;
1-38 (3) compelling prostitution;
1-39 (4) commercial manufacture, commercial distribution,
1-40 or commercial exhibition of obscene material;
1-41 (5) commercial exhibition of live dances or other acts
1-42 depicting real or simulated sexual intercourse or deviate sexual
1-43 intercourse;
1-44 (6) engaging in a voluntary fight between a man and a
1-45 bull if the fight is for a thing of value or a championship, if a
1-46 thing of value is wagered on the fight, or if an admission fee for
1-47 the fight is directly or indirectly charged, as prohibited by law;
1-48 <or>
1-49 (7) engaging in organized criminal activity as a
1-50 member of a combination or as a member of a criminal street gang as
1-51 described by Section 71.02, Penal Code; or
1-52 (8) delivering or using a controlled substance in
1-53 violation of Chapter 481, Health and Safety Code.
1-54 Sec. 125.041. Public Nuisance. For the purposes of this
1-55 subchapter, a public nuisance is considered to exist at a place if
1-56 one or more of the following acts occurs at that place on a regular
1-57 basis:
1-58 (1) gambling, gambling promotion, or communication of
1-59 gambling information, as prohibited by Chapter 47, Penal Code;
1-60 (2) promotion or aggravated promotion of prostitution,
1-61 as prohibited by Chapter 43, Penal Code;
1-62 (3) compelling prostitution, as prohibited by Chapter
1-63 43, Penal Code;
1-64 (4) commercial manufacture, commercial distribution,
1-65 or commercial exhibition of material that is obscene, as defined by
1-66 Section 43.21, Penal Code;
1-67 (5) commercial exhibition of a live dance or other act
1-68 in which a person engages in real or simulated sexual intercourse
2-1 or deviate sexual intercourse, as defined by Section 43.01, Penal
2-2 Code; <or>
2-3 (6) engaging in organized criminal activity as a
2-4 member of a combination or as a member of a criminal street gang as
2-5 described by Section 71.02, Penal Code; or
2-6 (7) manufacture, delivery, or use of a controlled
2-7 substance in violation of Chapter 481, Health and Safety Code.
2-8 SECTION 2. Section 125.004, Civil Practice and Remedies
2-9 Code, is amended by amending Subsection (b) and adding Subsection
2-10 (g) to read as follows:
2-11 (b) Evidence that persons have been convicted of gambling,
2-12 committing prostitution, engaging in organized criminal activity as
2-13 a member of a combination or a criminal street gang as described by
2-14 Section 71.02, Penal Code, or delivering or using a controlled
2-15 substance in violation of Chapter 481, Health and Safety Code, in
2-16 the place involved is admissible to show knowledge on the part of
2-17 the defendant that the act occurred. The originals or certified
2-18 copies of the papers and judgments of those convictions are
2-19 admissible in the suit for injunction, and oral evidence is
2-20 admissible to show that the offense for which a person was
2-21 convicted was committed at the place involved.
2-22 (g) Proof that organized criminal activity by a member of a
2-23 combination or a criminal street gang as described by Section
2-24 71.02, Penal Code, is frequently committed at a place or proof that
2-25 a place is frequently used for engaging in organized criminal
2-26 activity by a member of a combination or a criminal street gang as
2-27 described by Section 71.02, Penal Code, is prima facie evidence
2-28 that the owner and any other person in care, custody, or control of
2-29 the place knowingly permitted the act, unless the act constitutes
2-30 conspiring to commit an offense as described by Section 71.02,
2-31 Penal Code.
2-32 SECTION 3. Chapter 125, Civil Practice and Remedies Code, is
2-33 amended by adding Subchapter D to read as follows:
2-34 SUBCHAPTER D. MEMBERSHIP IN CRIMINAL STREET GANG
2-35 Sec. 125.061. DEFINITIONS. In this subchapter,
2-36 "combination" and "criminal street gang" have the meanings assigned
2-37 by Section 71.01, Penal Code.
2-38 Sec. 125.062. PUBLIC NUISANCE; COMBINATION OR CRIMINAL
2-39 STREET GANG. A combination or criminal street gang that
2-40 continuously or regularly associates in organized criminal
2-41 activities as described by Section 71.02, Penal Code, is a public
2-42 nuisance.
2-43 Sec. 125.063. PUBLIC NUISANCE; USE OF PLACE. The habitual
2-44 use of a place for engaging in organized criminal activity as
2-45 described by Section 71.02, Penal Code, is a public nuisance.
2-46 Sec. 125.064. SUIT TO ABATE NUISANCE. (a) A district,
2-47 county, or city attorney, the attorney general, or a person
2-48 affected by the nuisance may sue to enjoin a public nuisance under
2-49 this subchapter.
2-50 (b) Any person who habitually associates with others to
2-51 engage in organized criminal activity as a member of a combination
2-52 or criminal street gang may be made a defendant in the suit. The
2-53 owner and any other person in care, custody, or control of a place
2-54 that is habitually used for engaging in organized criminal activity
2-55 as described by Section 71.02, Penal Code, may be made a defendant
2-56 in this suit.
2-57 (c) If the suit is brought by the state, the petition does
2-58 not require verification.
2-59 Sec. 125.065. COURT ORDER. (a) If the court finds that a
2-60 combination or criminal street gang constitutes a public nuisance,
2-61 the court may enter an order enjoining a defendant in the suit from
2-62 engaging in the organized criminal activities of the combination or
2-63 gang.
2-64 (b) If the court finds that a place is habitually used in a
2-65 manner that constitutes a public nuisance, the court may include in
2-66 its order reasonable requirements to prevent the use of the place
2-67 for organized criminal activity.
2-68 Sec. 125.066. VIOLATION OF COURT ORDER. A person who
2-69 violates a temporary or permanent injunctive order under this
2-70 subchapter is subject to the following sentences for civil
3-1 contempt:
3-2 (1) a fine of not less than $1,000 nor more than
3-3 $10,000;
3-4 (2) confinement in jail for a term of not less than 10
3-5 nor more than 30 days; or
3-6 (3) both fine and confinement.
3-7 Sec. 125.067. CONTINUATION OF ACTIVITIES PENDING TRIAL OR
3-8 APPEAL; APPEAL. (a) A person may not continue the enjoined
3-9 activity pending trial or appeal on the merits of an injunctive
3-10 order in a suit brought under this subchapter.
3-11 (b) Not later than the 90th day after the date of the
3-12 injunctive order, an appropriate court of appeals shall hear and
3-13 decide an appeal taken by a person enjoined under this subchapter.
3-14 (c) If an appeal is not taken by a person temporarily
3-15 enjoined under this subchapter, the person is entitled to a trial
3-16 on the merits not later than the 90th day after the date of the
3-17 temporary injunctive order.
3-18 Sec. 125.068. ATTORNEY'S FEES. In an action brought under
3-19 this subchapter, the court may award a prevailing party reasonable
3-20 attorney's fees and costs.
3-21 Sec. 125.069. USE OF PLACE; EVIDENCE. In an action brought
3-22 under this subchapter, proof that organized criminal activity by a
3-23 member of a combination or a criminal street gang as described by
3-24 Section 71.02, Penal Code, is frequently committed at a place or
3-25 proof that a place is frequently used for engaging in organized
3-26 criminal activity by a member of a combination or a criminal street
3-27 gang as described by Section 71.02, Penal Code, is prima facie
3-28 evidence that the owner and any other person in care, custody, or
3-29 control of the place knowingly permitted the act, unless, the act
3-30 constitutes conspiring to commit an offense as described by Section
3-31 71.02.
3-32 SECTION 4. This Act applies only to conduct that occurs on
3-33 or after the effective date of this Act, except that evidence of
3-34 conduct that occurred before the effective date of this Act may be
3-35 considered for the purpose of determining whether a person
3-36 habitually associated with others to engage in organized criminal
3-37 activity as a member of a combination or criminal street gang or
3-38 whether a place is habitually used for engaging in organized
3-39 criminal activity by a member of a combination or criminal street
3-40 gang. Conduct that occurred before the effective date of this Act
3-41 is governed by the law in effect at the time the conduct occurred,
3-42 and that law is continued in effect for that purpose.
3-43 SECTION 5. The importance of this legislation and the
3-44 crowded condition of the calendars in both houses create an
3-45 emergency and an imperative public necessity that the
3-46 constitutional rule requiring bills to be read on three several
3-47 days in each house be suspended, and this rule is hereby suspended,
3-48 and that this Act take effect and be in force from and after its
3-49 passage, and it is so enacted.
3-50 * * * * *
3-51 Austin,
3-52 Texas
3-53 May 25, 1993
3-54 Hon. Bob Bullock
3-55 President of the Senate
3-56 Sir:
3-57 We, your Committee on Criminal Justice to which was referred H.B.
3-58 No. 697, have had the same under consideration, and I am instructed
3-59 to report it back to the Senate with the recommendation that it do
3-60 not pass, but that the Committee Substitute adopted in lieu thereof
3-61 do pass and be printed.
3-62 Whitmire,
3-63 Chairman
3-64 * * * * *
3-65 WITNESSES
3-66 FOR AGAINST ON
3-67 ___________________________________________________________________
3-68 Name: Sheriff Dan Smith x
3-69 Representing: Sheriff's Assoc. of Texas
3-70 City: Belton
4-1 -------------------------------------------------------------------
4-2 Name: Drew T. Durham x
4-3 Representing: Office of the Attorney Gen.
4-4 City: Austin
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4-6 Name: Lacey Sloan x
4-7 Representing: Tx. Assoc. Against Sex. Assault
4-8 City: Austin
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