By: Ellis S.B. No. 1210
A BILL TO BE ENTITLED
AN ACT
1-1 relating to provisions governing common nuisances and the authority
1-2 conferred on the attorney general, amending provisions of the Civil
1-3 Practice and Remedies Code, the Code of Criminal Procedure, and the
1-4 Government Code; and making an appropriation.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 125.001, Civil Practice and Remedies
1-7 Code, is amended to read as follows:
1-8 A person who knowingly maintains a place to which persons
1-9 habitually go for the following purposes maintains a common
1-10 nuisance:
1-11 (a) <purpose of> prostitution or gambling in violation of the
1-12 Penal Code; <,>
1-13 (b) <for the purpose of> reckless discharge of a firearm as
1-14 described by Section 42.015, Penal Code;
1-15 (c) <for the purpose of engaging in> organized criminal
1-16 activity as a member of a combination <or as a member of a criminal
1-17 street gang> as described by Section 71.02, Penal Code;<,>
1-18 (d) public lewdness in violation of Section 21.07, Penal
1-19 Code;
1-20 (e) obscene activity in violation of Subchapter B, Chapter
1-21 43, Penal Code;
1-22 (f) indecent exposure in violation of Section 21.08, Penal
1-23 Code; or
2-1 (g) <for> the delivery, possession, manufacture, or use of a
2-2 controlled substance in violation of Chapter 481, Health and Safety
2-3 Code <, maintains a common nuisance>.
2-4 SECTION 2. Subsection (c), Section 125.002, Civil Practice
2-5 and Remedies Code, is amended to read as follows:
2-6 (c) The bond must:
2-7 (1) be payable to the state at the county seat of the
2-8 county in which the nuisance exists;
2-9 (2) be in the penal sum of $10,000;
2-10 <(3) have sufficient sureties approved by the court;>
2-11 and
2-12 (3) <(4)> be conditioned that the property will not be
2-13 used or permitted to be used for the following purposes:
2-14 (A) prostitution or gambling in violation of the
2-15 Penal Code;
2-16 (B) reckless discharge of a firearm as described
2-17 by Section 42.015, Penal Code;
2-18 (C) organized criminal activity as a member of a
2-19 combination as described by Section 71.02, Penal Code;
2-20 (D) public lewdness as defined by Section 21.07,
2-21 Penal Code;
2-22 (E) obscene activity in violation of Subchapter
2-23 B, Chapter 43, Penal Code; or
2-24 (F) <for> the delivery, possession, manufacture,
2-25 or use of a controlled substance in violation of the Chapter 481,
3-1 Health and Safety Code.
3-2 SECTION 3. Subsection (d), Section 125.003, Civil Practice
3-3 and Remedies Code, is amended to read as follows:
3-4 (d) In an action brought under this chapter, the court may
3-5 award a prevailing party reasonable attorney's fees and
3-6 investigative costs, in addition to costs. In determining the
3-7 amount of attorney's fees and investigative costs, the court shall
3-8 consider:
3-9 (1) the time and labor involved, including the time
3-10 and expense of travel to investigate;
3-11 (2) the novelty and difficulty of the questions;
3-12 (3) the expertise, reputation, and ability of the
3-13 attorney;
3-14 (4) any other factor considered relevant by the court.
3-15 SECTION 4. Section 125.004, Civil Practice and Remedies
3-16 Code, is amended by amending Subsections (a) and (b) to read as
3-17 follows:
3-18 (a) Proof that any of the following is frequently committed
3-19 at the place involved is prima facie evidence that the proprietor
3-20 knowingly permitted the act:
3-21 (1) prostitution or gambling in violation of the Penal
3-22 Code;<,>
3-23 (2) <that> reckless discharge of a firearm as described
3-24 by Section 42.015, Penal Code;
3-25 (3) organized criminal activity as a member of a
4-1 combination in violation of Section 71.02, Penal Code;<,>
4-2 (4) public lewdness in violation of Section 21.07,
4-3 Penal Code;
4-4 (5) obscene activity in violation of Subchapter B,
4-5 Chapter 43, Penal Code;
4-6 (6) indecent exposure in violation of Section 21.08,
4-7 Penal Code; or
4-8 (7) <that> the delivery, possession, manufacture, or
4-9 use of a controlled substance in violation of Chapter 481, Health
4-10 and Safety Code.
4-11 (b) Evidence that persons have been convicted of offenses
4-12 proscribing the activities listed in subsection (a) of this section
4-13 <gambling, committing prostitution, reckless discharge of a firearm
4-14 as described by Section 42.015, Penal Code, engaging in organized
4-15 criminal activity as a member of a combination or a criminal street
4-16 gang as described by Section 71.02, Penal Code, or delivering or
4-17 using a controlled substance in violation of Chapter 481, Health
4-18 and Safety Code> in the place involved is admissible to show
4-19 knowledge on the part of the defendant that the act occurred. The
4-20 originals or certified copies of the papers and judgments of those
4-21 convictions are admissible in the suit for injunction, and oral
4-22 evidence is admissible to show that the offense for which a person
4-23 was convicted was committed at the place involved.
4-24 SECTION 5. Section 101.70, Alcoholic Beverage Code, is
4-25 amended by amending Subsection (c) and adding Subsections (e) and
5-1 (f) to read as follows:
5-2 (c) The plaintiff is not required to give a bond. The final
5-3 judgment is a judgment in rem against the property and a judgment
5-4 against the defendant. If the court finds against the defendant,
5-5 on final judgment it shall order that the place where the nuisance
5-6 exists be closed for one year <or less> and until that owner,
5-7 lessee, tenant, or occupant gives bond in cash <with sufficient
5-8 surety as approved by the court> in the penal sum of at least
5-9 $5,000 <$1,000>. The bond must be payable to the state and
5-10 conditioned:
5-11 (1) that this code not be violated;
5-12 (2) that no person will be permitted to resort to the
5-13 place to drink alcoholic beverages in violation of this code; and
5-14 (3) that the defendant will pay all fines, costs, and
5-15 damages assessed against him for any violation of this code.
5-16 (e) If a condition of a bond filed or an injunctive order
5-17 entered under this subchapter is violated, the attorney general,
5-18 district, county, or city attorney of the county in which the
5-19 property is located shall sue on the bond in the name of the state.
5-20 In that suit, the whole sum shall be forfeited as a penalty. On
5-21 violation of any condition of the bond or of the injunctive order
5-22 and subsequent to forfeiture of the bond, the place where the
5-23 nuisance exists shall be ordered closed for one year from the date
5-24 of the order of bond forfeiture, and said premises shall be ordered
5-25 sealed shut. If suit on bond is initiated by the attorney
6-1 general's office, bond is forfeited to the state.
6-2 (f) The following rules shall govern proceedings under this
6-3 chapter:
6-4 (1) Proof that violations of the Texas Alcoholic
6-5 Beverage Code or of the Texas Penal Code are frequently committed
6-6 at the place involved is prima facie evidence that the proprietor
6-7 knowingly permitted the act.
6-8 (2) Evidence that persons have been convicted or cited
6-9 violating the Texas Alcoholic Beverage Code or Texas Penal Code at
6-10 the premises involved is admissible to show knowledge on the part
6-11 of the defendant that the act occurred. The originals or certified
6-12 copies of the papers and judgments of those convictions or
6-13 citations are admissible in the suit for injunction, and oral
6-14 evidence is admissible to show that the offense for which a person
6-15 was convicted or cited was committed at the place involved.
6-16 (3) Evidence of the general reputation of the place
6-17 involved is admissible to show the existence of the nuisance.
6-18 SECTION 6. Section 402.009, Government Code, is amended to
6-19 read as follows:
6-20 The attorney general may employ and commission <as> peace
6-21 officers <not more than five persons at any one time as
6-22 investigators> for law enforcement <the limited> purposes <purpose
6-23 of> and for assisting the attorney general in carrying out the
6-24 duties of that office <relating to prosecution assistance and crime
6-25 prevention>.
7-1 SECTION 7. APPROPRIATION OF FEES AND CIVIL PENALTIES. In
7-2 addition to moneys appropriated elsewhere, the attorney general is
7-3 hereby appropriated all fees assessed pursuant to and all recovered
7-4 expenses incurred in obtaining administrative and/or civil
7-5 penalties authorized by Chapter 125, Civil Practice and Remedies
7-6 Code and Chapter 101, Alcoholic Beverages Code. Recovered expenses
7-7 include, but are not limited to, investigative costs, witness fees,
7-8 attorneys' fees, and deposition expenses. Moneys hereby
7-9 appropriated may be expended only for purposes of enforcing the
7-10 provisions of Chapter 125, Civil Practice and Remedies Code and
7-11 Chapter 101, Alcoholic Beverages Code, and may not be appropriated
7-12 for any other purpose.
7-13 SECTION 8. CRIMINAL OFFENSES OR VIOLATIONS. (a) The
7-14 changes in law made by this Act apply only to a criminal offense
7-15 committed or a violation that occurs on or after the effective date
7-16 of this Act. For the purposes of this Act, a criminal offense is
7-17 committed or a violation occurs before the effective date of this
7-18 Act if any element of the offense or violation occurs before that
7-19 date.
7-20 (b) A criminal offense committed or violation that occurs
7-21 before the effective date of this Act is covered by the law in
7-22 effect when the criminal offense was committed or the violation
7-23 occurred, and the former law is continued in effect for this
7-24 purpose.
7-25 SECTION 9. SEVERABILITY. If any section, sentence, clause,
8-1 or part of this Act shall, for any reason, be held invalid, such
8-2 invalidity shall not affect the remaining portions of the Act, and
8-3 it is hereby declared to be the intention of this legislature to
8-4 have passed each section, sentence, clause, or part irrespective of
8-5 the fact that any other section, sentence, clause, or part may be
8-6 declared invalid.
8-7 SECTION 10. EFFECTIVE DATE. This Act takes effect on
8-8 September 1, 1995.
8-9 SECTION 11. EMERGENCY. The importance of this legislation
8-10 and the crowded condition of the calendars in both houses create an
8-11 emergency and an imperative public necessity that the
8-12 constitutional rule requiring bills to be read on three several
8-13 days in each house be suspended, and this rule is hereby suspended,
8-14 and it is so enacted.