By: Whitmire S.B. No. 253
73R3127 DLF-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to civil actions to abate certain activities of
1-3 combinations or criminal street gangs.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Sections 125.001, 125.021, and 125.041, Civil
1-6 Practice and Remedies Code, are amended to read as follows:
1-7 Sec. 125.001. Common Nuisance. A person who knowingly
1-8 maintains a place to which persons habitually go for the purpose of
1-9 prostitution or gambling in violation of the Penal Code, for the
1-10 purpose of engaging in organized criminal activity as a member of a
1-11 combination or as a member of a criminal street gang as described
1-12 by Section 71.02, Penal Code, or for the delivery or use of a
1-13 controlled substance in violation of Chapter 481, Health and Safety
1-14 Code, maintains a common nuisance.
1-15 Sec. 125.021. Public Nuisance. The habitual use or the
1-16 threatened or contemplated habitual use of any place for any of the
1-17 following purposes is a public nuisance:
1-18 (1) gambling, gambling promotion, or communicating
1-19 gambling information prohibited by law;
1-20 (2) promotion or aggravated promotion of prostitution;
1-21 (3) compelling prostitution;
1-22 (4) commercial manufacture, commercial distribution,
1-23 or commercial exhibition of obscene material;
1-24 (5) commercial exhibition of live dances or other acts
2-1 depicting real or simulated sexual intercourse or deviate sexual
2-2 intercourse;
2-3 (6) engaging in a voluntary fight between a man and a
2-4 bull if the fight is for a thing of value or a championship, if a
2-5 thing of value is wagered on the fight, or if an admission fee for
2-6 the fight is directly or indirectly charged, as prohibited by law;
2-7 <or>
2-8 (7) engaging in organized criminal activity as a
2-9 member of a combination or as a member of a criminal street gang as
2-10 described by Section 71.02, Penal Code; or
2-11 (8) delivering or using a controlled substance in
2-12 violation of Chapter 481, Health and Safety Code.
2-13 Sec. 125.041. Public Nuisance. For the purposes of this
2-14 subchapter, a public nuisance is considered to exist at a place if
2-15 one or more of the following acts occurs at that place on a regular
2-16 basis:
2-17 (1) gambling, gambling promotion, or communication of
2-18 gambling information, as prohibited by Chapter 47, Penal Code;
2-19 (2) promotion or aggravated promotion of prostitution,
2-20 as prohibited by Chapter 43, Penal Code;
2-21 (3) compelling prostitution, as prohibited by Chapter
2-22 43, Penal Code;
2-23 (4) commercial manufacture, commercial distribution,
2-24 or commercial exhibition of material that is obscene, as defined by
2-25 Section 43.21, Penal Code;
2-26 (5) commercial exhibition of a live dance or other act
2-27 in which a person engages in real or simulated sexual intercourse
3-1 or deviate sexual intercourse, as defined by Section 43.01, Penal
3-2 Code; <or>
3-3 (6) engaging in organized criminal activity as a
3-4 member of a combination or as a member of a criminal street gang as
3-5 described by Section 71.02, Penal Code; or
3-6 (7) manufacture, delivery, or use of a controlled
3-7 substance in violation of Chapter 481, Health and Safety Code.
3-8 SECTION 2. Sections 125.004(a) and (b), Civil Practice and
3-9 Remedies Code, are amended to read as follows:
3-10 (a) Proof that prostitution or gambling in violation of the
3-11 Penal Code, that organized criminal activity by a member of a
3-12 combination or criminal street gang as described by Section 71.02,
3-13 Penal Code, or that the delivery or use of a controlled substance
3-14 in violation of Chapter 481, Health and Safety Code, is frequently
3-15 committed at the place involved, or that the place is frequently
3-16 used for engaging in organized criminal activity by a member of a
3-17 combination or criminal street gang as described by Section 71.02,
3-18 Penal Code, is prima facie evidence that the proprietor knowingly
3-19 permitted the act.
3-20 (b) Evidence that persons have been convicted of gambling,
3-21 committing prostitution, engaging in organized criminal activity as
3-22 a member of a combination or a criminal street gang as described by
3-23 Section 71.02, Penal Code, or delivering or using a controlled
3-24 substance in violation of Chapter 481, Health and Safety Code, in
3-25 the place involved is admissible to show knowledge on the part of
3-26 the defendant that the act occurred. The originals or certified
3-27 copies of the papers and judgments of those convictions are
4-1 admissible in the suit for injunction, and oral evidence is
4-2 admissible to show that the offense for which a person was
4-3 convicted was committed at the place involved.
4-4 SECTION 3. Chapter 125, Civil Practice and Remedies Code, is
4-5 amended by adding Subchapter D to read as follows:
4-6 SUBCHAPTER D. MEMBERSHIP IN CRIMINAL STREET GANG
4-7 Sec. 125.061. DEFINITIONS. In this subchapter,
4-8 "combination" and "criminal street gang" have the meanings assigned
4-9 by Section 71.01, Penal Code.
4-10 Sec. 125.062. PUBLIC NUISANCE; COMBINATION OR CRIMINAL
4-11 STREET GANG. A combination or criminal street gang that
4-12 continuously or regularly associates in organized criminal
4-13 activities as described by Section 71.02, Penal Code, is a public
4-14 nuisance.
4-15 Sec. 125.063. PUBLIC NUISANCE; USE OF PLACE. The habitual
4-16 use of a place for engaging in organized criminal activity as
4-17 described by Section 71.02, Penal Code, is a public nuisance.
4-18 Sec. 125.064. SUIT TO ABATE NUISANCE. (a) A district,
4-19 county, or city attorney, the attorney general, or a resident of
4-20 the state may sue to enjoin a public nuisance under this
4-21 subchapter.
4-22 (b) Any person who habitually associates with others to
4-23 engage in organized criminal activity as a member of a combination
4-24 or criminal street gang may be made a defendant in the suit. Any
4-25 person who owns or is responsible for maintaining a place that is
4-26 habitually used for engaging in organized criminal activity as
4-27 described by Section 71.02, Penal Code, may be made a defendant in
5-1 the suit.
5-2 (c) If the suit is brought by the state, the petition does
5-3 not require verification.
5-4 (d) If the suit is brought by a resident, the resident is
5-5 not required to show personal injury.
5-6 Sec. 125.065. COURT ORDER. (a) If the court finds that a
5-7 combination or criminal street gang constitutes a public nuisance,
5-8 the court may enter an order enjoining a defendant in the suit from
5-9 engaging in the organized criminal activities of the combination or
5-10 gang.
5-11 (b) If the court finds that a place is habitually used in a
5-12 manner that constitutes a public nuisance, the court may include in
5-13 its order reasonable requirements to prevent the use of the place
5-14 for organized criminal activity.
5-15 Sec. 125.066. VIOLATION OF COURT ORDER. A person who
5-16 violates a temporary or permanent injunctive order under this
5-17 subchapter is subject to the following sentences for civil
5-18 contempt:
5-19 (1) a fine of not less than $1,000 nor more than
5-20 $10,000;
5-21 (2) confinement in jail for a term of not less than 10
5-22 nor more than 30 days; or
5-23 (3) both fine and confinement.
5-24 Sec. 125.067. CONTINUATION OF ACTIVITIES PENDING TRIAL OR
5-25 APPEAL; APPEAL. (a) A person may not continue the enjoined
5-26 activity pending trial or appeal on the merits of an injunctive
5-27 order in a suit brought under this subchapter.
6-1 (b) Not later than the 90th day after the date of the
6-2 injunctive order, an appropriate court of appeals shall hear and
6-3 decide an appeal taken by a person enjoined under this subchapter.
6-4 (c) If an appeal is not taken by a person temporarily
6-5 enjoined under this subchapter, the person is entitled to a trial
6-6 on the merits not later than the 90th day after the date of the
6-7 temporary injunctive order.
6-8 Sec. 125.068. ATTORNEY'S FEES. In an action brought under
6-9 this subchapter, the court may award a prevailing party reasonable
6-10 attorney's fees and costs.
6-11 SECTION 4. This Act applies only to conduct that occurs on
6-12 or after the effective date of this Act, except that evidence of
6-13 conduct that occurred before the effective date of this Act may be
6-14 considered for the purpose of determining whether a person
6-15 habitually associated with others to engage in organized criminal
6-16 activity as a member of a combination or criminal street gang or
6-17 whether a place is habitually used for engaging in organized
6-18 criminal activity by a member of a combination or criminal street
6-19 gang. Conduct that occurred before the effective date of this Act
6-20 is governed by the law in effect at the time the conduct occurred,
6-21 and that law is continued in effect for that purpose.
6-22 SECTION 5. The importance of this legislation and the
6-23 crowded condition of the calendars in both houses create an
6-24 emergency and an imperative public necessity that the
6-25 constitutional rule requiring bills to be read on three several
6-26 days in each house be suspended, and this rule is hereby suspended,
6-27 and that this Act take effect and be in force from and after its
7-1 passage, and it is so enacted.