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.