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.