By Shapiro S.B. No. 308
Substitute the following for S.B. No. 308:
By Hunter of Nueces C.S.S.B. No. 308
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to civil actions for public nuisances, and making an
1-3 appropriation.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 125.001, Civil Practice and Remedies
1-6 Code, is amended to read as follows:
1-7 Sec. 125.001. Common Nuisance. A person maintains a common
1-8 nuisance if the person <who> knowingly maintains a place to which
1-9 individuals <persons> habitually go for the purpose of:
1-10 (1) prostitution or gambling in violation of the Penal
1-11 Code; <, for the purpose of reckless discharge of a firearm as
1-12 described by Section 42.015, Penal Code, for the purpose of>
1-13 (2) engaging in organized criminal activity as a
1-14 member of a combination <or as a member of a criminal street gang>
1-15 as described by Section 71.02, Penal Code; <, or for>
1-16 (3) the delivery, manufacture, possession, or use of a
1-17 controlled substance in violation of Chapter 481, Health and Safety
1-18 Code;
1-19 (4) public lewdness or indecent exposure in violation
1-20 of the Penal Code; or
1-21 (5) obscene activity in violation of Sections 43.24,
1-22 43.25, 43.251, or 43.26 of the Penal Code.
1-23 SECTION 2. Subsection (c), Section 125.002, Civil Practice
1-24 and Remedies Code, is amended to read as follows:
2-1 (c) The bond must:
2-2 (1) be payable to the state at the county seat of the
2-3 county in which the nuisance exists;
2-4 (2) be in the penal sum of $10,000;
2-5 <(3) have sufficient sureties approved by the court;>
2-6 and
2-7 (3) <(4)> be conditioned that the property will not be
2-8 used or permitted to be used for the following purposes:
2-9 (A) prostitution or gambling in violation of the
2-10 Penal Code; <or>
2-11 (B) organized criminal activity as a member of a
2-12 combination as described by Section 71.02, Penal Code;
2-13 (C) <for> the delivery, possession, manufacture,
2-14 or use of a controlled substance in violation of Chapter 481,
2-15 Health and Safety Code;
2-16 (D) public lewdness or indecent exposure in
2-17 violation of the Penal Code; or
2-18 (E) obscene activity in violation of Sections
2-19 43.24, 43.25, 43.251, or 43.26 of the Penal Code.
2-20 SECTION 3. Subsection (d), Section 125.003, Civil Practice
2-21 and Remedies Code, is amended to read as follows:
2-22 (d) In an action brought under this chapter, the court may
2-23 award a prevailing party reasonable attorney's fees and
2-24 investigative costs, in addition to costs. In determining the
2-25 amount of attorney's fees and investigative costs, the court shall
2-26 consider:
2-27 (1) the time and labor involved, including the time
3-1 and expense of travel to investigate;
3-2 (2) the novelty and difficulty of the questions;
3-3 (3) the expertise, reputation, and ability of the
3-4 attorney; and
3-5 (4) any other factor considered relevant by the court.
3-6 SECTION 4. Subsection (a), Section 125.004, Civil Practice
3-7 and Remedies Code, is amended to read as follows:
3-8 (a) Proof that prostitution or gambling in violation of the
3-9 Penal Code, that public lewdness or indecent exposure in violation
3-10 of the Penal Code, that obscene activity in violation of Sections
3-11 43.24, 43.25, 43.251, or 43.26 of the Penal Code <that reckless
3-12 discharge of a firearm as described by Section 42.015, Penal Code>,
3-13 or that the delivery, manufacture, possession, or use of a
3-14 controlled substance in violation of Chapter 481, Health and Safety
3-15 Code, is frequently committed at the place involved <or that the
3-16 place is frequently used for reckless discharge of a firearm as
3-17 described by Section 42.015, Penal Code,> is prima facie evidence
3-18 that the proprietor knowingly permitted the act.
3-19 SECTION 5. Subsection (b), Section 124.004, Civil Practice
3-20 and Remedies Code, is amended to read as follows:
3-21 (b) Evidence that persons have been convicted of gambling,
3-22 committing prostitution, public lewdness, indecent exposure,
3-23 obscene activity in violation of Sections 43.24, 43.25, 43.251, or
3-24 43.26 of the Penal Code, <reckless discharge of a firearm as
3-25 described by Section 42.015, Penal Code,> organized criminal
3-26 activity as a member of a combination <or a criminal street gang>
3-27 as described by Section 71.02, Penal Code, or delivering,
4-1 manufacturing, possessing, or using a controlled substance in
4-2 violation of Chapter 481, Health and Safety Code, in the place
4-3 involved is admissible to show knowledge on the part of the
4-4 defendant that the act occurred. The originals or certified copies
4-5 of the papers and judgments of those convictions are admissible in
4-6 the suit for injunction, and oral evidence is admissible to show
4-7 that the offense for which a person was convicted was committed at
4-8 the place involved.
4-9 SECTION 6. Section 125.021, Civil Practice and Remedies
4-10 Code, is amended to read as follows:
4-11 Sec. 125.021. Public Nuisance. The habitual use or the
4-12 threatened or contemplated habitual use of any place for any of the
4-13 following purposes is a public nuisance:
4-14 (1) gambling, gambling promotion, or communicating
4-15 gambling information prohibited by law;
4-16 (2) promotion or aggravated promotion of prostitution;
4-17 (3) compelling prostitution;
4-18 (4) commercial manufacture, commercial distribution,
4-19 or commercial exhibition of obscene material;
4-20 (5) commercial exhibition of live dances or other acts
4-21 depicting real or simulated sexual intercourse or deviate sexual
4-22 intercourse;
4-23 (6) public lewdness or indecent exposure in violation
4-24 of the Penal Code;
4-25 (7) engaging in a voluntary fight between a man and a
4-26 bull if the fight is for a thing of value or a championship, if a
4-27 thing of value is wagered on the fight, or if an admission fee for
5-1 the fight is directly or indirectly charged, as prohibited by law;
5-2 (8) <(7) reckless discharge of a firearm as described
5-3 by Section 42.015, Penal Code; or>
5-4 <(7)> engaging in organized criminal activity as a
5-5 member of a combination <or as a member of a criminal street gang>
5-6 as described by Section 71.02, Penal Code; <or>
5-7 (9) <(8)> delivering, manufacturing, possessing, or
5-8 using a controlled substance in violation of Chapter 481, Health
5-9 and Safety Code; or
5-10 (10) obscene activity in violation of Sections 43.24,
5-11 Section 43.25, Section 43.251, or 43.26 of the Penal Code.
5-12 SECTION 7. Section 125.041, Civil Practice and Remedies
5-13 Code, is amended to read as follows:
5-14 Sec. 125.041. Public Nuisance. For the purposes of this
5-15 subchapter, a public nuisance is considered to exist at a place if
5-16 one or more of the following acts occurs at that place on a regular
5-17 basis:
5-18 (1) gambling, gambling promotion, or communication of
5-19 gambling information, as prohibited by Chapter 47, Penal Code;
5-20 (2) promotion or aggravated promotion of prostitution,
5-21 as prohibited by Chapter 43, Penal Code;
5-22 (4) commercial manufacture, commercial distribution,
5-23 or commercial exhibition of material that is obscene, as defined by
5-24 Section 43.21, Penal Code;
5-25 (5) commercial exhibition of a live dance or other act
5-26 in which a person engages in real or simulated sexual intercourse
5-27 or deviate sexual intercourse, as defined by Section 43.01, Penal
6-1 Code;
6-2 <(6) reckless discharge of a firearm as described by
6-3 Section 42.015, Penal Code; or>
6-4 (6) engaging in organized criminal activity as a
6-5 member of a combination <or as a member of a criminal street gang>
6-6 as described by Section 71.02, Penal Code;
6-7 (7) public lewdness or indecent exposure in violation
6-8 of the Penal Code;
6-9 (8) obscene activity in violation of Sections 43.24,
6-10 43.25, 43.251, or 43.26 of the Penal Code; or
6-11 (9) manufacture, delivery, possession, or use of a
6-12 controlled substance in violation of Chapter 481, Health and Safety
6-13 Code.
6-14 SECTION 8. APPROPRIATION OF FEES AND CIVIL PENALTIES. In
6-15 addition to moneys appropriated elsewhere, the attorney general is
6-16 hereby appropriated all fees assessed pursuant to and all recovered
6-17 expenses incurred in obtaining administrative and/or civil
6-18 penalties authorized by Chapter 125, Civil Practice and Remedies
6-19 Code. Recovered expenses include, but are not limited to,
6-20 investigative costs, witness fees, attorneys' fees, and deposition
6-21 expenses. Moneys hereby appropriated may be expended only for
6-22 purposes of enforcing the provisions of Chapter 125, Civil Practice
6-23 and Remedies Code, and may not be appropriated for any other
6-24 purpose.
6-25 SECTION 9. This Act takes effect September 1, 1995, and
6-26 applies only to a cause of action that accrues on or after that
6-27 date. An action that accrued before the effective date of this Act
7-1 is governed by the law applicable to the action immediately before
7-2 the effective date of this Act, and that law is continued in effect
7-3 for that purpose.
7-4 SECTION 10. EMERGENCY. The importance of this legislation
7-5 and the crowded condition of the calendars in both houses create an
7-6 emergency and an imperative public necessity that the
7-7 constitutional rule requiring bills to be read on three several
7-8 days in each house be suspended, and this rule is hereby suspended.