By Brown S.B. No. 840
Substitute the following for S.B. No. 840:
By Nixon C.S.S.B. No. 840
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 the 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 in a drug-free zone described by Subsection (b)(1), (2),
3-14 (3), or (4).
3-15 (d) An offense otherwise punishable under Section
3-16 481.117(b), 481.119(a), 481.120(b)(2), or 481.121(b)(2) is a state
3-17 jail felony if it is shown on the trial of the offense that the
3-18 offense was committed in a drug-free zone described by Subsection
3-19 (b)(1), (2), (3), or (4).
3-20 (e) An offense otherwise punishable under Section
3-21 481.118(b), 481.119(b), 481.120(b)(1), or 481.121(b)(1) is a Class
3-22 A misdemeanor if it is shown on the trial of the offense that the
3-23 offense was committed in a drug-free zone described by Subsection
3-24 (b)(1), (2), (3), or (4).
3-25 (f) Subsection (e) does not apply to an offense if:
3-26 (1) the offense was committed inside a private
3-27 residence; and
4-1 (2) no minor was present in the private residence at
4-2 the time the offense was committed.
4-3 (g) This section does not apply to a defendant unless it is
4-4 shown beyond a reasonable doubt that the defendant committed the
4-5 offense in a place that the defendant knew was:
4-6 (1) in, on, or within 1,000 feet of the premises of a
4-7 school;
4-8 (2) on a school bus;
4-9 (3) in, on, or within 1,000 feet of the premises of an
4-10 institution of higher education; or
4-11 (4) in, on, or within 300 feet of the premises of a
4-12 playground, public or private youth center, public swimming pool,
4-13 or video arcade facility.
4-14 SECTION 2. Section 3g(a), Article 42.12, Code of Criminal
4-15 Procedure, is amended to read as follows:
4-16 (a) The provisions of Section 3 of this article do not
4-17 apply:
4-18 (1) to a defendant adjudged guilty of an offense under
4-19 <defined by the following sections of the Penal Code>:
4-20 (A) Section 19.02, Penal Code (Murder);
4-21 (B) Section 19.03, Penal Code (Capital murder);
4-22 (C) Section 21.11(a)(1), Penal Code (Indecency
4-23 with a child);
4-24 (D) Section 20.04, Penal Code (Aggravated
4-25 kidnapping);
4-26 (E) Section 22.021, Penal Code (Aggravated
4-27 sexual assault);
5-1 (F) Section 29.03, Penal Code (Aggravated
5-2 robbery); or
5-3 (G) Chapter 481, Health and Safety Code, for
5-4 which punishment is increased under Section 481.134, Health and
5-5 Safety Code, if it is shown that the defendant has been previously
5-6 convicted of an offense for which punishment was increased under
5-7 that section; or
5-8 (2) to a defendant when it is shown that a deadly
5-9 weapon as defined in Section 1.07, Penal Code, was used or
5-10 exhibited during the commission of a felony offense or during
5-11 immediate flight therefrom, and that the defendant used or
5-12 exhibited the deadly weapon or was a party to the offense and knew
5-13 that a deadly weapon would be used or exhibited. On an affirmative
5-14 finding under this subdivision, the trial court shall enter the
5-15 finding in the judgment of the court. On an affirmative finding
5-16 that the deadly weapon was a firearm, the court shall enter that
5-17 finding in its judgment.
5-18 SECTION 3. Section 4(d), Article 42.12, Code of Criminal
5-19 Procedure, is amended to read as follows:
5-20 (d) A defendant is not eligible for community supervision
5-21 under this section if the defendant:
5-22 (1) is sentenced to a term of imprisonment that
5-23 exceeds 10 years;
5-24 (2) is sentenced to serve a term of confinement under
5-25 Section 12.35, Penal Code; <or>
5-26 (3) does not file a sworn motion under Subsection (e)
5-27 of this section or for whom the jury does not enter in the verdict
6-1 a finding that the information contained in the motion is true; or
6-2 (4) is adjudged guilty of an offense for which
6-3 punishment is increased under Section 481.134, Health and Safety
6-4 Code, if it is shown that the defendant has been previously
6-5 convicted of an offense for which punishment was increased under
6-6 that section.
6-7 SECTION 4. Section 5(d), Article 42.12, Code of Criminal
6-8 Procedure, is amended to read as follows:
6-9 (d) In all other cases the judge may grant deferred
6-10 adjudication unless the defendant is charged with an offense:
6-11 (1) under Section 49.04, 49.05, 49.06, 49.07, or
6-12 49.08, Penal Code; or
6-13 (2) for which punishment may be increased under
6-14 Section 481.134, Health and Safety Code, if it is shown that the
6-15 defendant has been previously convicted of an offense for which
6-16 punishment was increased under that section.
6-17 SECTION 5. Section 8(b)(3), Article 42.18, Code of Criminal
6-18 Procedure, is amended to read as follows:
6-19 (3) If a prisoner<, other than a prisoner described by
6-20 Subdivision (4) of this subsection,> is serving a sentence for the
6-21 offenses described by <listed in> Subdivision (1)(A), (C), (D),
6-22 (E), <or> (F), or (G) of Section 3g(a), Article 42.12 of this code,
6-23 or if the judgment contains an affirmative finding under
6-24 Subdivision (2) of Subsection (a) of Section 3g of that article, he
6-25 is not eligible for release on parole until his actual calendar
6-26 time served, without consideration of good conduct time, equals
6-27 one-half of the maximum sentence or 30 calendar years, whichever is
7-1 less, but in no event shall he be eligible for release on parole in
7-2 less than two calendar years.
7-3 SECTION 6. Amends Sections 46.03 (a), (d), and (f) and adds
7-4 Section 46.03(g) Penal Code to read as follows:
7-5 (a) A person commits an offense if, with a firearm, illegal
7-6 knife, club, or prohibited weapon listed in Section 46.05(a), he
7-7 intentionally, knowingly, or recklessly goes:
7-8 (1) within 1,000 feet of or on the <physical>
7-9 premises of a school or<,> an <educational> institution of higher
7-10 education<, or a passenger transportation vehicle of a school or an
7-11 educational institution, whether the school or educational
7-12 institution is public or private>, unless pursuant to written
7-13 regulations or written authorization of the school or institution;
7-14 (2) within 1,000 feet of or on the premises of a
7-15 polling place on the day of an election or while early voting is in
7-16 progress;
7-17 (3) within 1,000 feet of or in any government court or
7-18 offices utilized by the court, unless pursuant to written
7-19 regulations or written authorization of the court;
7-20 (4) within 1,000 feet of or on the premises of a
7-21 racetrack; <or>
7-22 (5) within 1,000 feet of or in <into> a secured area
7-23 of an airport; or
7-24 (6) on a passenger transportation vehicle of a school
7-25 or an institution of higher education, unless pursuant to written
7-26 regulations or written authorization of the school or institution.
7-27 (d) It is a defense to prosecution under this section
8-1 <Subsection (a)(5)> that the actor possessed a firearm or club
8-2 while traveling to or from the actor's place of assignment or in
8-3 the actual discharge of duties as:
8-4 (1) a peace officer;
8-5 (2) a member of the armed forces or national guard;
8-6 (3) a guard employed by a penal institution; or
8-7 (4) a security officer commissioned by the Texas Board
8-8 of Private Investigators and Private Security Agencies if:
8-9 (A) the actor is wearing a distinctive uniform;
8-10 and
8-11 (B) the firearm or club is in plain view.
8-12 (f) It is a defense to prosecution under this section that:
8-13 (1) the actor possessed the firearm or club on private
8-14 premises owned or under the control of the actor;
8-15 (2) the actor possessed the firearm while directly in
8-16 route between the premises where lawful hunting or other sporting
8-17 activity is conducted and the actor's residence, if the firearm is
8-18 a type commonly used in the activity; or
8-19 (3) the actor possessed the firearm in a motor
8-20 vehicle, other than a passenger transportation vehicle of a school
8-21 or an institution of higher education, while traveling.
8-22 (g) In this section, "institution of higher education,"
8-23 "premises," and "school" have the meanings assigned by Section
8-24 481.134, Health and Safety Code.
8-25 (h) An offense under this section is a third degree felony.
8-26 SECTION 7. Chapter 46, Penal Code, is amended by adding
8-27 Section 46.11 to read as follows:
9-1 Sec. 46.11. PENALTY IF OFFENSE COMMITTED WITHIN WEAPON-FREE
9-2 ZONE. (a) Except as provided by Subsection (b), the punishment
9-3 prescribed for an offense under this chapter is increased to the
9-4 punishment prescribed for the next highest category of offense if
9-5 it is shown beyond a reasonable doubt on the trial of the offense
9-6 that the actor committed the offense in a place that the actor knew
9-7 was:
9-8 (1) within 1,000 feet of the premises of a school;
9-9 (2) on a school bus;
9-10 (3) in, on, or within 1,000 feet of the premises of an
9-11 institution of higher education;
9-12 (4) in, on, or within 300 feet of the premises of a
9-13 playground, public or private youth center, public swimming pool,
9-14 or video arcade facility; or
9-15 (5) on a premises where:
9-16 (A) an official school function is taking place;
9-17 (B) an event sponsored or sanctioned by the
9-18 university interscholastic league is taking place; or
9-19 (C) a school-sponspored extracurricular activity
9-20 in which the actor is a participant is taking place.
9-21 (b) This section does not apply to:
9-22 (1) an offense under Section 46.03; or
9-23 (2) an offense in which:
9-24 (A) the actor possessed the firearm or club:
9-25 (i) on private property not part of the
9-26 premises of a school;
9-27 (ii) for use in a program approved by a
10-1 school;
10-2 (iii) in accordance with a contract
10-3 entered into between a school and the actor or an employer of the
10-4 actor;
10-5 (iv) in the actor's official capacity as a
10-6 peace officer; or
10-7 (v) while traveling to or from the actor's
10-8 place of assignment or in the actual discharge of duties as a
10-9 member of the armed forces or national guard; or
10-10 (B) the firearm was:
10-11 (i) not loaded; and
10-12 (ii) in a locked container or on a locked
10-13 firearms rack in a motor vehicle.
10-14 (c) In this section, "institution of higher education,"
10-15 "playground," "premises," "school," "video arcade facility," and
10-16 "youth center" have the meanings assigned by Section 481.134,
10-17 Health and Safety Code.
10-18 SECTION 8. Chapter 46, Penal Code, is amended by adding
10-19 Section 46.12 to read as follows:
10-20 Sec. 46.12. MAPS AS EVIDENCE OF LOCATION OR AREA. (a) In a
10-21 prosecution under Section 46.03 or 46.11, a map produced or
10-22 reproduced by a municipal or county engineer for the purpose of
10-23 showing the location and boundaries of weapon-free zones is
10-24 admissible in evidence and is prima facie evidence of the location
10-25 or boundaries of those areas if the governing body of the
10-26 municipality or county adopts a resolution or ordinance approving
10-27 the map as an official finding and record of the location or
11-1 boundaries of those areas.
11-2 (b) A municipal or county engineer may, on request of the
11-3 governing body of the municipality or county, revise a map that has
11-4 been approved by the governing body of the municipality or county
11-5 as provided by Subsection (a).
11-6 (c) A municipal or county engineer shall file the original
11-7 or a copy of every approved or revised map approved as provided by
11-8 Subsection (a) with the county clerk of each county in which the
11-9 area is located.
11-10 (d) This section does not prevent the prosecution from:
11-11 (1) introducing or relying on any other evidence or
11-12 testimony to establish any element of an offense committed under
11-13 Section 46.03 or for which punishment is increased under Section
11-14 46.11; or
11-15 (2) using or introducing any other map or diagram
11-16 otherwise admissible under the Texas Rules of Criminal Evidence.
11-17 SECTION 9. Section 8(b)(4), Article 42.18, Code of Criminal
11-18 Procedure, is repealed.
11-19 SECTION 10. (a) The change in law made by this Act applies
11-20 only to the punishment for an offense committed on or after the
11-21 effective date of this Act. For purposes of this section, an
11-22 offense is committed before the effective date of this Act if any
11-23 element of the offense occurs before the effective date.
11-24 (b) An offense committed before the effective date of this
11-25 Act is covered by the law in effect when the offense was committed,
11-26 and the former law is continued in effect for this purpose.
11-27 SECTION 11. This Act takes effect September 1, 1995.
12-1 SECTION 12. The importance of this legislation and the
12-2 crowded condition of the calendars in both houses create an
12-3 emergency and an imperative public necessity that the
12-4 constitutional rule requiring bills to be read on three several
12-5 days in each house be suspended, and this rule is hereby suspended.