ACM C.S.H.B. 3225 75(R)BILL ANALYSIS CRIMINAL JURISPRUDENCE C.S.H.B. 3225 By: Jones, Delwin 5-7-97 Committee Report (Substituted) BACKGROUND Across the state, virtually no community has been untouched by the increasing number of incidents involving youth and gang violence and other criminal activity. Most, if not all, gangs are supported by certain profitable offenses, including auto theft, robbery, sale of crack cocaine, methamphetamine, heroin, and other illegal drugs. Gangs have easy access to more firepower than the average patrol officer. Gangs commonly use murder, violence, and threats to instill fear in the public, increase their membership, and pursue their criminal activities. Since gang members commonly use tools in both auto thefts and burglaries, expansion of the definition of a "criminal instrument" to include something that in the manner of its use or intended use is capable of committing a crime will enable prosecutors better to combat auto theft and burglary of a vehicle. In addition, there are certain offenses that, because of their method of execution, should be added to those offenses that may be prosecuted under organized crime (e.g., computer crime, insurance fraud, etc.). These types of crimes are most often committed by a combination or criminal organization. PURPOSE CSHB 3225 would strengthen the abilities of law enforcement and prosecution to protect the community from criminal street gangs. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 8.07(a), Penal Code, by deleting Subsections (2), (3) and (5) and renumbering accordingly. The offenses included in these deleted Subsections are included in the new Subsection (2). The new Subsection (3) adds a violation punishable as a felony under Section 71.02, Penal Code (Engaging in Organized Criminal Activity) to the list of offenses for which a person may be convicted if he/she committed the offense when younger than 15 years of age. SECTION 2. Amends Section 12.03, Penal Code, by adding Subsection (d) which provides that an offense that is punishable one category lower than a state jail felony is a Class A misdemeanor. SECTION 3. Amends Section 12.04, Penal Code, by adding Subsection (c) which provides that an offense punishable one category higher than a Class A misdemeanor is a state jail felony. SECTION 4. Amends Section 15.01(d), Penal Code, by deleting language which Section 2 of the substitute places in Section 12.03, Penal Code. SECTION 5. Amends Section 15.02(d), Penal Code, by deleting language which Section 2 of the substitute places in Section 12.03, Penal Code. SECTION 6. Amends Section 15.03(d), Penal Code, to provide that the punishment for criminal solicitation is one category lower than the offense solicited. SECTION 7. Amends Section 15.031, Penal Code, to provide that a person commits the offense of Criminal Solicitation of a Child if he/she commits the offense with the intent that a felony be committed. Replaces the word "minor" with the word "child" throughout Section 15.031, Penal Code. SECTION 8. Amends Section 15.04(b), Penal Code, to provide that the affirmative defense of voluntary renunciation is applicable to the offense of Criminal Solicitation of a Child. Amends Section 15.04(d) to provide that the defendant may raise the issue of whether involuntary and complete renunciation of the preparatory and object offenses the defendant abandoned the defendant's criminal conduct, withdrew from the conspiracy, or countermanded the defendant's solicitation before the object offense was committed and made substantial effort to prevent the commission of the object offense. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the punishment shall be one category lower than that provided for the offense committed. SECTION 9. Amends Section 15.05, Penal Code, to clarify that criminal attempt of a misdemeanor punishable by fine only is not an offense. SECTION 10. Amends Chapter 16, Penal Code, by changing the title of the Chapter to "Criminal Instruments and Electronic Surveillance" and creating Subchapter A (Criminal Instruments) and Subchapter B (Electronic Surveillance). Adds Section 16.01, Definitions to define "criminal instrument". Adds Section 16.011, Possession of Criminal Instrument, which was previously Section 16.01, Unlawful Use of Criminal Instrument. Section 16.011 provides that a person commits an offense if he/she possesses a criminal instrument with intent to use it in the commission of an offense and an offense under this Section is one category lower than the most serious offense intended. Adds Section 16.012, Making or Using Criminal Instrument. Adds Section 16.013, Prosecution Under Other Statutes. SECTION 11. Amends Section 71.02(a), Penal Code, to add the following offenses to the list of offenses for which a person can be accused of organized crime: indecency with a child; injury to a child, elderly individual, or disabled individual; tampering with a consumer product; sale or purchase of a child; escape; criminal mischief punishable as a felony or a serious misdemeanor; tampering with an identification number; credit card or debit card abuse; felony assault; burglary or unauthorized use of a vehicle (no longer to be limited to a motor vehicle); any felony firearm violation; possession with intent to wholesale promote obscene material or child pornography; inducing of a child younger than 17 years of age to engage in sexual conduct or a sexual performance; and any offense under Chapter 33 (computer crimes) or Chapter 35 (insurance fraud). SECTION 12. Amends Section 71.02(b), Penal Code, to delete redundant language. SECTION 13. Amends Section 71.02(c), Penal Code, to make conforming changes. SECTION 14. Amends Section 71.05(a), Penal Code, to delete redundant language. SECTION 15. Amends Article 61.06, Code of Criminal Procedure, to provide that information collected relating to a child must be destroyed after three years if the individual has not been arrested for criminal activity under Chapter 60, Code of Criminal Procedure or Chapter 58, Family Code or an offense under Section 42.01(a)(6), Penal Code (Disorderly Conduct). Provides that time incarcerated in the institutional division or state jail division of TDCJ for service of a felony sentence or in TYC for service of a felony sentence or commitment is not counted in the three year period. SECTION 16. Amends Section 503.029(a), Transportation Code, to allow a peace officer as well as member of the Texas Department of Transportation, to examine during working hours the title and ownership papers for registered and unregistered vehicles in the possession or control of an automobile dealership. SECTION 17. Except for the nonsubstantive changes made by Sections 12-14 of this Act, the change in law made by this Act applies only to an offense committed on or after the effective date of this Act. SECTION 18. Effective date: September 1, 1997. SECTION 19. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The substitute does not contain Section 1 of the original bill which amended Section 7.02(a), Penal Code. Section 12 of the original bill, which amended Section 19.03, Penal Code and Section 13 of the original bill, which amended Section 71.01, Penal Code are not included in CSHB 3225. Section 18 of the original bill provided that information collected on an individual under Chapter 61, Code of Criminal Procedure, must be destroyed after two years or on the individual's 21st birthday, whichever date is later, if the individual has not been charged with criminal activity. Section 15 of the substitute provides that information collected under Chapter 61, Code of Criminal Procedure, relating to a child, must be destroyed after three years if the individual has not been arrested for criminal activity under Chapter 60, Code of Criminal Procedure, or Chapter 58, Family Code or an offense under Section 42.01(a)(6), Penal Code (Disorderly Conduct). This section of CSHB 3225 also provides that time incarcerated in the institutional division or state jail division of the TDCJ for service of a felony sentence or in the TYC for service of a felony sentence or commitment is not included in the three year period.