1-1 By: West S.B. No. 68
1-2 (In the Senate - Filed November 17, 1994; January 11, 1995,
1-3 read first time and referred to Committee on Criminal Justice;
1-4 March 15, 1995, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 6, Nays 0; March 15, 1995,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 68 By: West
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the reckless discharge of a firearm and other common or
1-11 public nuisances; creating an offense and providing criminal
1-12 penalties and civil remedies.
1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14 SECTION 1. Chapter 42, Penal Code, is amended by adding
1-15 Section 42.12 to read as follows:
1-16 Sec. 42.12. DISCHARGE OF FIREARM IN MUNICIPALITIES. (a) A
1-17 person commits an offense if the person recklessly discharges a
1-18 firearm inside the corporate limits of a municipality.
1-19 (b) An offense under this section is a Class A misdemeanor.
1-20 (c) If conduct constituting an offense under this section
1-21 also constitutes an offense under another section of this code, the
1-22 person may be prosecuted under either section.
1-23 (d) Subsection (a) does not affect the authority of a
1-24 municipality to enact an ordinance which prohibits the discharge of
1-25 a firearm.
1-26 SECTION 2. Section 125.001, Civil Practice and Remedies
1-27 Code, as amended by Section 1, Chapter 968, and Section 2, Chapter
1-28 857, Acts of the 73rd Legislature, 1993, is amended to read as
1-29 follows:
1-30 Sec. 125.001. COMMON NUISANCE. A person who knowingly
1-31 maintains a place to which persons habitually go for the purpose of
1-32 prostitution or gambling in violation of the Penal Code, for the
1-33 purpose of reckless discharge of a firearm as described by Section
1-34 42.12 <42.015>, Penal Code, for the purpose of engaging in
1-35 organized criminal activity as a member of a combination <or as a
1-36 member of a criminal street gang> as described by Section 71.02,
1-37 Penal Code, <or> for the delivery or use of a controlled substance
1-38 in violation of Chapter 481, Health and Safety Code, or any felony
1-39 maintains a common nuisance.
1-40 SECTION 3. Subsection (a), Section 125.004, Civil Practice
1-41 and Remedies Code, is amended to read as follows:
1-42 (a) Proof that prostitution or gambling in violation of the
1-43 Penal Code, that reckless discharge of a firearm as described by
1-44 Section 42.12 <42.015>, Penal Code, or that the delivery or use of
1-45 a controlled substance in violation of Chapter 481, Health and
1-46 Safety Code, is frequently committed at the place involved or that
1-47 the place is frequently used for reckless discharge of a firearm as
1-48 described by Section 42.12 <42.015>, Penal Code, or the frequent
1-49 commission of any felony or felonies is prima facie evidence that
1-50 the proprietor knowingly permitted the act.
1-51 SECTION 4. Subsection (b), Section 125.004, Civil Practice
1-52 and Remedies Code, as amended by Section 3, Chapter 857, and
1-53 Section 2, Chapter 968, Acts of the 73rd Legislature, 1993, is
1-54 amended to read as follows:
1-55 (b) Evidence that persons have been convicted of gambling,
1-56 committing prostitution, reckless discharge of a firearm as
1-57 described by Section 42.12 <42.015>, Penal Code, engaging in
1-58 organized criminal activity as a member of a combination <or a
1-59 criminal street gang> as described by Section 71.02, Penal Code,
1-60 <or> delivering or using a controlled substance in violation of
1-61 Chapter 481, Health and Safety Code, or any felony in the place
1-62 involved is admissible to show knowledge on the part of the
1-63 defendant that the act occurred. The originals or certified copies
1-64 of the papers and judgments of those convictions are admissible in
1-65 the suit for injunction, and oral evidence is admissible to show
1-66 that the offense for which a person was convicted was committed at
1-67 the place involved.
1-68 SECTION 5. Section 125.021, Civil Practice and Remedies
2-1 Code, as amended by Section 1, Chapter 968, and Section 2, Chapter
2-2 857, Acts of the 73rd Legislature, 1993, is amended to read as
2-3 follows:
2-4 Sec. 125.021. PUBLIC NUISANCE. The habitual use or the
2-5 threatened or contemplated habitual use of any place for any of the
2-6 following purposes is a public nuisance:
2-7 (1) gambling, gambling promotion, or communicating
2-8 gambling information prohibited by law;
2-9 (2) promotion or aggravated promotion of prostitution;
2-10 (3) compelling prostitution;
2-11 (4) commercial manufacture, commercial distribution,
2-12 or commercial exhibition of obscene material;
2-13 (5) commercial exhibition of live dances or other acts
2-14 depicting real or simulated sexual intercourse or deviate sexual
2-15 intercourse;
2-16 (6) engaging in a voluntary fight between a man and a
2-17 bull if the fight is for a thing of value or a championship, if a
2-18 thing of value is wagered on the fight, or if an admission fee for
2-19 the fight is directly or indirectly charged, as prohibited by law;
2-20 (7) reckless discharge of a firearm as described by
2-21 Section 42.12 <42.015>, Penal Code; <or>
2-22 (8) <(7)> engaging in organized criminal activity as a
2-23 member of a combination <or as a member of a criminal street gang>
2-24 as described by Section 71.02, Penal Code; <or>
2-25 (9) <(8)> delivering or using a controlled substance
2-26 in violation of Chapter 481, Health and Safety Code; or
2-27 (10) committing any felony or felonies.
2-28 SECTION 6. Section 125.041, Civil Practice and Remedies
2-29 Code, as amended by Section 1, Chapter 968, and Section 2, Chapter
2-30 857, Acts of the 73rd Legislature, 1993, is amended to read as
2-31 follows:
2-32 Sec. 125.041. PUBLIC NUISANCE. For the purposes of this
2-33 subchapter, a public nuisance is considered to exist at a place if
2-34 one or more of the following acts occurs at that place on a regular
2-35 basis:
2-36 (1) gambling, gambling promotion, or communication of
2-37 gambling information, as prohibited by Chapter 47, Penal Code;
2-38 (2) promotion or aggravated promotion of prostitution,
2-39 as prohibited by Chapter 43, Penal Code;
2-40 (3) compelling prostitution, as prohibited by Chapter
2-41 43, Penal Code;
2-42 (4) commercial manufacture, commercial distribution,
2-43 or commercial exhibition of material that is obscene, as defined by
2-44 Section 43.21, Penal Code;
2-45 (5) commercial exhibition of a live dance or other act
2-46 in which a person engages in real or simulated sexual intercourse
2-47 or deviate sexual intercourse, as defined by Section 43.01, Penal
2-48 Code;
2-49 (6) reckless discharge of a firearm as described by
2-50 Section 42.12 <42.015>, Penal Code; <or>
2-51 (7) <(6)> engaging in organized criminal activity as a
2-52 member of a combination <or as a member of a criminal street gang>
2-53 as described by Section 71.02, Penal Code; <or>
2-54 (8) <(7)> manufacture, delivery, or use of a
2-55 controlled substance in violation of Chapter 481, Health and Safety
2-56 Code; or
2-57 (9) committing any felony or felonies.
2-58 SECTION 7. The change in law made by Sections 2 through 6 of
2-59 this Act applies only to a cause of action that accrues on or after
2-60 the effective date of this Act. A cause of action that accrues
2-61 before the effective date of this Act is governed by the law in
2-62 effect at the time the cause of action accrued, and that law is
2-63 continued in effect for that purpose.
2-64 SECTION 8. This Act takes effect September 1, 1995.
2-65 SECTION 9. The importance of this legislation and the
2-66 crowded condition of the calendars in both houses create an
2-67 emergency and an imperative public necessity that the
2-68 constitutional rule requiring bills to be read on three several
2-69 days in each house be suspended, and this rule is hereby suspended.
2-70 * * * * *