By Cuellar of Webb H.B. No. 1512
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to provisions governing common nuisances and the authority
1-3 conferred on the attorney general, amending provisions of the Civil
1-4 Practice and Remedies Code, the Code of Criminal Procedure, and the
1-5 Government Code; and making an appropriation.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS
1-7 SECTION 1. Section 125.001, Civil Practice and Remedies
1-8 Code, is amended to read as follows:
1-9 A person who knowingly maintains a place to which persons
1-10 habitually go for the following purposes maintains a common
1-11 nuisance:
1-12 (a) <purpose of> prostitution or gambling in violation of
1-13 the Penal Code;<,>
1-14 (b) <for the purpose of> reckless discharge of a firearm as
1-15 described by Section 42.015, Penal Code;
1-16 (c) <for the purpose of engaging in> organized criminal
1-17 activity as a member of a combination <or as a member of a criminal
1-18 street gang> as described by Section 71.02, Penal Code;<,>
1-19 (d) public lewdness in violation of Section 21.07, Penal
1-20 Code;
1-21 (e) obscene activity in violation of Subchapter B, Chapter
1-22 43, Penal Code;
1-23 (f) indecent exposure inviolation of Section 21.08, Penal
2-1 Code; or
2-2 (g) <for> the delivery, possession, manufacture, or use of a
2-3 controlled substance in violation of Chapter 481, Health and Safety
2-4 Code<, maintains a common nuisance>.
2-5 SECTION 2. Subsection (c), Section 125.002, Civil Practice
2-6 and Remedies Code, is amended to read as follows:
2-7 (c) The bond must:
2-8 (1) be payable to the state at the county seat of the
2-9 county in which the nuisance exists;
2-10 (2) be in the penal sum of $10,000;
2-11 <(3) have sufficient sureties approved by the court;>
2-12 and
2-13 (3) <(4)> be conditioned that the property will not be
2-14 used or permitted to be used for the following purposes:
2-15 (A) prostitution or gambling in violation of the
2-16 Penal Code;
2-17 (B) reckless discharge of a firearm as described
2-18 by Section 42.015, Penal Code;
2-19 (C) organized criminal activity as a member of a
2-20 combination as described by Section 71.02, Penal Code;
2-21 (D) public lewdness as defined by Section 21.07,
2-22 Penal Code;
2-23 (E) obscene activity in violation of Subchapter
2-24 B, Chapter 43, Penal Code; or
2-25 (F) <for> the delivery, possession, manufacture,
3-1 or use of a controlled substance in violation of the Chapter 481,
3-2 Health and Safety Code.
3-3 SECTION 3. Subsection (d), Section 125.003, Civil Practice
3-4 and Remedies Code, is amended to read as follows:
3-5 (d) In an action brought under this chapter, the court may
3-6 award a prevailing party reasonable attorney's fees and
3-7 investigative costs, in addition to costs. In determining the
3-8 amount of attorney's fees and investigative costs, the court shall
3-9 consider:
3-10 (1) the time and labor involved, including the time
3-11 and expense of travel to investigate;
3-12 (2) the novelty and difficulty of the questions;
3-13 (3) the expertise, reputation, and ability of the
3-14 attorney;
3-15 (4) any other factor considered relevant by the court.
3-16 SECTION 4. Section 125.004, Civil Practice and Remedies
3-17 Code, is amended by amending Subsections (a) and (b) to read as
3-18 follows:
3-19 (a) Proof that any of the following is frequently committed
3-20 at the place involved is prima facie evidence that the proprietor
3-21 knowingly permitted the act:
3-22 (1) prostitution or gambling in violation of the Penal
3-23 Code;<,>
3-24 (2) <that> reckless discharge of a firearm as
3-25 described by Section 42.015, Penal Code;
4-1 (3) organized criminal activity as a member of a
4-2 combination in violation of Section 71.02, Penal Code;<,>
4-3 (4) public lewdness in violation of Section 21.07,
4-4 Penal Code;
4-5 (5) obscene activity in violation of Subchapter B,
4-6 Chapter 43, Penal Code;
4-7 (6) indecent exposure in violation of Section 21.08,
4-8 Penal Code; or
4-9 (7) <that> the delivery, possession, manufacture, or
4-10 use of a controlled substance in violation of the Chapter 481,
4-11 Health and Safety Code.
4-12 (b) Evidence that persons have been convicted of offenses
4-13 proscribing the activities listed in subsection (a) of this section
4-14 <gambling, committing prostitution, reckless discharge of a firearm
4-15 as described by Section 42.015, Penal Code, engaging in organized
4-16 criminal activity as a member of a combination or a criminal street
4-17 gang as described by Section 71.02, Penal Code, or delivering or
4-18 using a controlled substance in violation of Chapter 481, Health
4-19 and Safety Code> in the place involved is admissible to show
4-20 knowledge on the part of the defendant that the act occurred. The
4-21 originals or certified copies of the papers and judgments of those
4-22 convictions are admissible in the suit for injunction, and oral
4-23 evidence is admissible to show that the offense for which a person
4-24 was convicted was committed at the place involved.
4-25 SECTION 5. Section 101.70, Alcoholic Beverage Code, is
5-1 amended by amending Subsection (c) and adding Subsections (e) and
5-2 (f) to read as follows:
5-3 (c) The plaintiff is not required to give a bond. The final
5-4 judgment is a judgment in rem against the property and a judgment
5-5 against the defendant. If the court finds against the defendant,
5-6 on final judgment it shall, order that the place where the nuisance
5-7 exists be closed for one year <or less> and until that owner,
5-8 lessee, tenant, or occupant gives bond in cash <with sufficient
5-9 surety as approved by the court> in the penal sum of at least
5-10 $5,000 <$1,000>. The bond must be payable to the state and
5-11 conditioned:
5-12 (1) that this code not be violated;
5-13 (2) that no person will be permitted to resort to the
5-14 place to drink alcoholic beverages in violation of this code; and
5-15 (3) that the defendant will pay all fines, costs, and
5-16 damages assessed against him for any violation of this code.
5-17 (e) If a condition of a bond filed or an injunctive order
5-18 entered under this subchapter is violated, the attorney general,
5-19 district, county, or city attorney of the county in which the
5-20 property is located shall sue on the bond in the name of the state.
5-21 In that suit, the whole sum shall be forfeited as a penalty. On
5-22 violation of any condition of the bond or of the injunctive order
5-23 and subsequent to forfeiture of the bond, the place where the
5-24 nuisance exists shall be ordered closed for one year from the date
5-25 of the order of bond forfeiture, and said premises shall be ordered
6-1 sealed shut. If suit on bond is initiated by the attorney
6-2 general's office, bond is forfeited to the state.
6-3 (f) The following rules shall govern proceedings under this
6-4 chapter:
6-5 (1) Proof that violations of the Texas Alcoholic
6-6 Beverage Code or of the Texas Penal Code are frequently committed
6-7 at the place involved is prima facie evidence that the proprietor
6-8 knowingly permitted the act.
6-9 (2) Evidence that persons have been convicted or cited
6-10 violating the Texas Alcoholic Beverage Code or Texas Penal Code at
6-11 the premises involved is admissible to show knowledge on the part
6-12 of the defendant that the act occurred. The originals or certified
6-13 copies of the papers and judgments of those convictions or
6-14 citations are admissible in the suit for injunction, and oral
6-15 evidence is admissible to show that the offense for which a person
6-16 was convicted or cited was committed at the place involved.
6-17 (3) Evidence of the general reputation of the place
6-18 involved is admissible to show the existence of the nuisance.
6-19 SECTION 6. Section 402.009, Government Code, is amended to
6-20 read as follows:
6-21 The attorney general may employ and commission <as> peace
6-22 officers <not more than five persons at any one time as
6-23 investigators> for law enforcement <the limited> purposes <purpose
6-24 of> and for assisting the attorney general in carrying out the
6-25 duties of that office <relating to prosecution assistance and
7-1 crime prevention>.
7-2 SECTION 7. APPROPRIATION OF FEES AND CIVIL PENALTIES. In
7-3 addition to moneys appropriated elsewhere, the attorney general is
7-4 hereby appropriated all fees assessed pursuant to and all recovered
7-5 expenses incurred in obtaining administrative and/or civil
7-6 penalties authorized by Chapter 125, Civil Practice and Remedies
7-7 Code and Chapter 101, Alcoholic Beverages Code. Recovered expenses
7-8 include, but are not limited to, investigative costs, witness fees,
7-9 attorneys' fees, and deposition expenses. Moneys hereby
7-10 appropriated may be expended only for purposes of enforcing the
7-11 provisions of Chapter 125, Civil Practice and Remedies Code and
7-12 Chapter 101, Alcoholic Beverages Code, and may not be appropriated
7-13 for any other purpose.
7-14 SECTION 8. CRIMINAL OFFENSES OR VIOLATIONS. (a) The
7-15 changes in law made by this Act apply only to a criminal offense
7-16 committed or a violation that occurs on or after the effective date
7-17 of this Act. For the purposes of this Act, a criminal offense is
7-18 committed or a violation occurs before the effective date of this
7-19 Act if any element of the offense or violation occurs before that
7-20 date.
7-21 (b) A criminal offense committed or violation that occurs
7-22 before the effective date of this Act is covered by the law in
7-23 effect when the criminal offense was committed or the violation
7-24 occurred, and the former law is continued in effect for this
7-25 purpose.
8-1 SECTION 9. SEVERABILITY. If any section, sentence, clause,
8-2 or part of this Act shall, for any reason, by held invalid, such
8-3 invalidity shall not affect the remaining portions of the Act, and
8-4 it is hereby declared to be the intention of this legislature to
8-5 have passed each section, sentence, clause, or part irrespective of
8-6 the fact that any other section, sentence, clause, or part may be
8-7 declared invalid.
8-8 SECTION 10. EFFECTIVE DATE. This Act takes effect on
8-9 September 1, 1995.
8-10 SECTION 11. EMERGENCY. The importance of this legislation
8-11 and the crowded condition of the calendars in both houses create an
8-12 emergency and an imperative public necessity that the
8-13 constitutional rule requiring bills to be read on three several
8-14 days in each house be suspended, and this rule is hereby suspended,
8-15 and it is so enacted.