By De La Garza H.B. No. 439
74R2918 NSC-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to drug-free and weapon-free zones and to the imposition
1-3 of penalties for the possession, delivery, manufacture, or
1-4 possession with the intent to deliver or manufacture a controlled
1-5 substance in drug-free zones or on school buses and penalties for
1-6 certain offenses involving weapons committed in weapon-free zones.
1-7 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-8 SECTION 1. Section 481.134, Health and Safety Code, is
1-9 amended to read as follows:
1-10 Sec. 481.134. Drug-Free Zones. (a) In this section:
1-11 (1) "Minor" means a person who is younger than 18
1-12 years of age.
1-13 (2) <(1)> "Institution of higher education" means any
1-14 public or private technical institute, junior college, senior
1-15 college or university, medical or dental unit, or other agency of
1-16 higher education as defined by Section 61.003, Education Code.
1-17 (3) <(2)> "Playground" means any outdoor facility that
1-18 is not on the premises of a school and that:
1-19 (A) is intended for recreation;
1-20 (B) is open to the public; and
1-21 (C) contains three or more separate apparatus
1-22 intended for the recreation of children, such as slides, swing
1-23 sets, and teeterboards.
1-24 (4) <(3)> "Premises" means real property and all
2-1 buildings and appurtenances pertaining to the real property.
2-2 (5) <(4)> "School" means a private or public
2-3 elementary or secondary school.
2-4 (6) <(5)> "Video arcade facility" means any facility
2-5 that:
2-6 (A) is open to the public, including persons who
2-7 are 17 years of age or younger;
2-8 (B) is intended primarily for the use of pinball
2-9 or video machines; and
2-10 (C) contains at least three pinball or video
2-11 machines.
2-12 (7) <(6)> "Youth center" means any recreational
2-13 facility or gymnasium that:
2-14 (A) is intended primarily for use by persons who
2-15 are 17 years of age or younger; and
2-16 (B) regularly provides athletic, civic, or
2-17 cultural activities.
2-18 (b) The minimum term of confinement or imprisonment for an
2-19 offense otherwise punishable <and the maximum fine for an offense>
2-20 under Section 481.112(c)-(f), 481.113(c), (d), or (e), 481.114(c),
2-21 (d), or (e), 481.115(c)-(f), 481.116(c), (d), or (e), 481.117(c),
2-22 (d), or (e), 481.118(c), (d), or (e), 481.120(b)(4), (5), or (6),
2-23 or 481.121(b)(4), (5), or (6) is increased by five years and the
2-24 maximum fine for the offense is <481.112, 481.113, 481.114,
2-25 481.119, or 481.120 are> doubled if it is shown on the trial of the
2-26 offense that the offense was committed:
2-27 (1) in, on, or within 1,000 feet of premises of
3-1 <owned, rented, or leased by> a school <or an institution of higher
3-2 learning or a playground>; <or>
3-3 (2) on a school bus;
3-4 (3) in, on, or within 1,000 feet of the premises of an
3-5 institution of higher education; or
3-6 (4) in, on, or within 300 feet of the premises of a
3-7 playground, public or private youth center, public swimming pool,
3-8 or video arcade facility.
3-9 (c) An offense otherwise punishable under Section
3-10 481.112(b), 481.113(b), 481.114(b), 481.115(b), 481.116(b),
3-11 481.120(b)(3), or 481.121(b)(3) is a felony of the third degree if
3-12 it is shown on the trial of the offense that the offense was
3-13 committed:
3-14 (1) in, on, or within 1,000 feet of any real property
3-15 that is owned, rented, or leased to a school or school board;
3-16 (2) on a school bus;
3-17 (3) in, on, or within 1,000 feet of the premises of an
3-18 institution of higher education; or
3-19 (4) in, on, or within 300 feet of the premises of a
3-20 playground, public or private youth center, public swimming pool,
3-21 or video arcade facility.
3-22 (d) An offense otherwise punishable under Section
3-23 481.117(b), 481.119(a), 481.120(b)(2), or 481.121(b)(2) is a state
3-24 jail felony if it is shown on the trial of the offense that the
3-25 offense was committed:
3-26 (1) in, on, or within 1,000 feet of any real property
3-27 that is owned, rented, or leased to a school or school board;
4-1 (2) on a school bus;
4-2 (3) in, on, or within 1,000 feet of the premises of an
4-3 institution of higher education; or
4-4 (4) in, on, or within 300 feet of the premises of a
4-5 playground, public or private youth center, public swimming pool,
4-6 or video arcade facility.
4-7 (e) An offense otherwise punishable under Section
4-8 481.118(b), 481.119(b), 481.120(b)(1), or 481.121(b)(1) is a Class
4-9 A misdemeanor if it is shown on the trial of the offense that the
4-10 offense was committed:
4-11 (1) in, on, or within 1,000 feet of any real property
4-12 that is owned, rented, or leased to a school or school board;
4-13 (2) on a school bus;
4-14 (3) in, on, or within 1,000 feet of the premises of an
4-15 institution of higher education; or
4-16 (4) in, on, or within 300 feet of the premises of a
4-17 playground, public or private youth center, public swimming pool,
4-18 or video arcade facility.
4-19 (f) Subsection (e) does not apply to an offense if:
4-20 (1) the offense was committed inside a private
4-21 residence; and
4-22 (2) no minor was present in the private residence at
4-23 the time the offense was committed.
4-24 (g) Punishment that is increased for a conviction for an
4-25 offense listed under this section may not run concurrently with
4-26 punishment for a conviction under any other criminal statute.
4-27 SECTION 2. Section 3g(a), Article 42.12, Code of Criminal
5-1 Procedure, is amended to read as follows:
5-2 (a) The provisions of Section 3 of this article do not
5-3 apply:
5-4 (1) to a defendant adjudged guilty of an offense under
5-5 <defined by the following sections of the Penal Code>:
5-6 (A) Section 19.02, Penal Code (Murder);
5-7 (B) Section 19.03, Penal Code (Capital murder);
5-8 (C) Section 21.11(a)(1), Penal Code (Indecency
5-9 with a child);
5-10 (D) Section 20.04, Penal Code (Aggravated
5-11 kidnapping);
5-12 (E) Section 22.021, Penal Code (Aggravated
5-13 sexual assault);
5-14 (F) Section 29.03, Penal Code (Aggravated
5-15 robbery); or
5-16 (G) Chapter 481, Health and Safety Code, for
5-17 which punishment is increased under Section 481.134, Health and
5-18 Safety Code, if it is shown that the defendant has been previously
5-19 convicted of an offense for which punishment was increased under
5-20 that section; or
5-21 (2) to a defendant when it is shown that a deadly
5-22 weapon as defined in Section 1.07, Penal Code, was used or
5-23 exhibited during the commission of a felony offense or during
5-24 immediate flight therefrom, and that the defendant used or
5-25 exhibited the deadly weapon or was a party to the offense and knew
5-26 that a deadly weapon would be used or exhibited. On an affirmative
5-27 finding under this subdivision, the trial court shall enter the
6-1 finding in the judgment of the court. On an affirmative finding
6-2 that the deadly weapon was a firearm, the court shall enter that
6-3 finding in its judgment.
6-4 SECTION 3. Section 4(d), Article 42.12, Code of Criminal
6-5 Procedure, is amended to read as follows:
6-6 (d) A defendant is not eligible for community supervision
6-7 under this section if the defendant:
6-8 (1) is sentenced to a term of imprisonment that
6-9 exceeds 10 years;
6-10 (2) is sentenced to serve a term of confinement under
6-11 Section 12.35, Penal Code; <or>
6-12 (3) does not file a sworn motion under Subsection (e)
6-13 of this section or for whom the jury does not enter in the verdict
6-14 a finding that the information contained in the motion is true; or
6-15 (4) is adjudged guilty of an offense for which
6-16 punishment is increased under Section 481.134, Health and Safety
6-17 Code, if it is shown that the defendant has been previously
6-18 convicted of an offense for which punishment was increased under
6-19 that section.
6-20 SECTION 4. Section 5(d), Article 42.12, Code of Criminal
6-21 Procedure, is amended to read as follows:
6-22 (d) In all other cases the judge may grant deferred
6-23 adjudication unless the defendant is charged with an offense:
6-24 (1) under Section 49.04, 49.05, 49.06, 49.07, or
6-25 49.08, Penal Code; or
6-26 (2) for which punishment may be increased under
6-27 Section 481.134, Health and Safety Code, if it is shown that the
7-1 defendant has been previously convicted of an offense for which
7-2 punishment was increased under that section.
7-3 SECTION 5. Section 8(b)(3), Article 42.18, Code of Criminal
7-4 Procedure, is amended to read as follows:
7-5 (3) If a prisoner<, other than a prisoner described by
7-6 Subdivision (4) of this subsection,> is serving a sentence for the
7-7 offenses described by <listed in> Subdivision (1)(A), (C), (D),
7-8 (E), <or> (F), or (G) of Section 3g(a), Article 42.12 of this code,
7-9 or if the judgment contains an affirmative finding under
7-10 Subdivision (2) of Subsection (a) of Section 3g of that article, he
7-11 is not eligible for release on parole until his actual calendar
7-12 time served, without consideration of good conduct time, equals
7-13 one-half of the maximum sentence or 30 calendar years, whichever is
7-14 less, but in no event shall he be eligible for release on parole in
7-15 less than two calendar years.
7-16 SECTION 6. Chapter 46, Penal Code, is amended by adding
7-17 Section 46.11 to read as follows:
7-18 Sec. 46.11. PENALTY IF OFFENSE COMMITTED WITHIN WEAPON-FREE
7-19 ZONE. (a) Except as provided by Subsection (b), the punishment
7-20 prescribed for an offense under this chapter is increased to the
7-21 punishment prescribed for the next highest category of offense if
7-22 it is shown on the trial of the offense that the offense was
7-23 committed:
7-24 (1) within 1,000 feet of the premises of a school;
7-25 (2) on a school bus;
7-26 (3) in, on, or within 1,000 feet of the premises of an
7-27 institution of higher education; or
8-1 (4) in, on, or within 300 feet of the premises of a
8-2 playground, public or private youth center, public swimming pool,
8-3 or video arcade facility.
8-4 (b) This section does not apply to an offense under Section
8-5 46.03(a)(1).
8-6 (c) In this section, "institution of higher education,"
8-7 "playground," "premises," "school," "video arcade facility," and
8-8 "youth center" have the meanings assigned by Section 481.134,
8-9 Health and Safety Code.
8-10 SECTION 7. Chapter 46, Penal Code, is amended by adding
8-11 Section 46.12 to read as follows:
8-12 Sec. 46.12. MAPS AS EVIDENCE OF LOCATION OR AREA. (a) In a
8-13 prosecution under Section 46.11, a map produced or reproduced by a
8-14 municipal or county engineer for the purpose of showing the
8-15 location and boundaries of weapon-free zones is admissible in
8-16 evidence and is prima facie evidence of the location or boundaries
8-17 of those areas if the governing body of the municipality or county
8-18 adopts a resolution or ordinance approving the map as an official
8-19 finding and record of the location or boundaries of those areas.
8-20 (b) A municipal or county engineer may, on request of the
8-21 governing body of the municipality or county, revise a map that has
8-22 been approved by the governing body of the municipality or county
8-23 as provided by Subsection (a).
8-24 (c) A municipal or county engineer shall file the original
8-25 or a copy of every approved or revised map approved as provided by
8-26 Subsection (a) with the county clerk of each county in which the
8-27 area is located.
9-1 (d) This section does not prevent the prosecution from:
9-2 (1) introducing or relying on any other evidence or
9-3 testimony to establish any element of an offense for which
9-4 punishment is increased under Section 46.11; or
9-5 (2) using or introducing any other map or diagram
9-6 otherwise admissible under the Texas Rules of Criminal Evidence.
9-7 SECTION 8. Section 8(b)(4), Article 42.18, Code of Criminal
9-8 Procedure, is repealed.
9-9 SECTION 9. (a) The change in law made by this Act applies
9-10 only to the punishment for an offense committed on or after the
9-11 effective date of this Act. For purposes of this section, an
9-12 offense is committed before the effective date of this Act if any
9-13 element of the offense occurs before the effective date.
9-14 (b) An offense committed before the effective date of this
9-15 Act is covered by the law in effect when the offense was committed,
9-16 and the former law is continued in effect for this purpose.
9-17 SECTION 10. This Act takes effect September 1, 1995.
9-18 SECTION 11. The importance of this legislation and the
9-19 crowded condition of the calendars in both houses create an
9-20 emergency and an imperative public necessity that the
9-21 constitutional rule requiring bills to be read on three several
9-22 days in each house be suspended, and this rule is hereby suspended.
9-23 COMMITTEE AMENDMENT NO. 1
9-24 Amend H.B. 439 by striking Section 6 of the bill and
9-25 substituting the following:
9-26 SECTION 6. Chapter 46, Penal Code, is amended by adding
9-27 Section 46.11 to read as follows:
10-1 Sec. 46.11. PENALTY IF OFFENSE COMMITTED WITHIN WEAPON-FREE
10-2 ZONE. (a) Except as provided by Subsection (b), the punishment
10-3 prescribed for an offense under this chapter is increased to the
10-4 punishment prescribed for the next highest category of offense if
10-5 it is shown on the trial of the offense that the offense was
10-6 committed:
10-7 (1) within 1,000 feet of the premises of a school;
10-8 (2) on a school bus;
10-9 (3) in, on, or within 1,000 feet of the premises of an
10-10 institution of higher education;
10-11 (4) in, on, or within 300 feet of the premises of a
10-12 playground, public or private youth center, public swimming pool,
10-13 or video arcade facility; or
10-14 (5) on a premises where:
10-15 (A) an official school function is taking place;
10-16 (B) an event sponsored or sanctioned by the
10-17 university interscholastic league is taking place; or
10-18 (C) a school-sponsored extracurricular activity
10-19 in which the actor is a participant is taking place.
10-20 (b) This section does not apply to:
10-21 (1) an offense under Section 46.03(a)(1); or
10-22 (2) an offense in which:
10-23 (A) the actor possessed the firearm or club:
10-24 (i) on private property not part of the
10-25 premises of a school;
10-26 (ii) for use in a program approved by a
10-27 school;
11-1 (iii) in accordance with a contract
11-2 entered into between a school and the actor or an employer of the
11-3 actor;
11-4 (iv) in the actor's official capacity as a
11-5 peace officer; or
11-6 (v) while traveling to or from the actor's
11-7 place of assignment or in the actual discharge of duties as a
11-8 member of the armed forces or national guard; or
11-9 (B) the firearm was:
11-10 (i) not loaded; and
11-11 (ii) in a locked container or on a locked
11-12 firearms rack in a motor vehicle.
11-13 (c) In this section, "institution of higher education,"
11-14 "playground," "premises," "school," "video arcade facility," and
11-15 "youth center" have the meanings assigned by Section 481.134,
11-16 Health and Safety Code.
11-17 Greenberg