75R10980 GWK-D
By Serna, West, Swinford, Lewis of Tarrant H.B. No. 1714
Substitute the following for H.B. No. 1714:
By Staples C.S.H.B. No. 1714
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the offense of criminal mischief involving graffiti,
1-3 costs on conviction of that offense, and the regulation of customer
1-4 access to aerosol paint.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 28.03, Penal Code, is amended by
1-7 amending Subsection (a) and adding Subsections (g) and (h) to read
1-8 as follows:
1-9 (a) A person commits an offense if, without the effective
1-10 consent of the owner:
1-11 (1) he intentionally or knowingly damages or destroys
1-12 the tangible property of the owner;
1-13 (2) he intentionally or knowingly tampers with the
1-14 tangible property of the owner and causes pecuniary loss or
1-15 substantial inconvenience to the owner or a third person; or
1-16 (3) he intentionally or knowingly places graffiti
1-17 [makes markings, including inscriptions, slogans, drawings, or
1-18 paintings,] on the tangible property of the owner.
1-19 (g) The punishment prescribed for an offense under
1-20 Subsection (a)(3) is increased to the punishment for the next
1-21 highest category of offense if the graffiti is placed on public
1-22 property. This subsection does not apply if the punishment for the
1-23 offense, without application of this subsection, is a first degree
1-24 felony.
2-1 (h) In this section:
2-2 (1) "Graffiti" means a word, figure, mark, painting,
2-3 covering, drawing, slogan, design, or other inscription.
2-4 (2) "Public property" means property owned or leased
2-5 by the state or a political subdivision of the state.
2-6 SECTION 2. Subchapter A, Chapter 102, Code of Criminal
2-7 Procedure, is amended by adding Article 102.0171 to read as
2-8 follows:
2-9 Art. 102.0171. COURT COSTS: GRAFFITI ERADICATION FUNDS.
2-10 (a) A defendant convicted of an offense under Section 28.03(a)(3),
2-11 Penal Code, in a justice court, county court, county court at law,
2-12 or a district court shall pay a $5 graffiti eradication fee as a
2-13 cost of court. The governing body of a municipality by ordinance
2-14 may create a municipal graffiti eradication fund and may require a
2-15 defendant convicted of an offense under Section 28.03(a)(3), Penal
2-16 Code, in a municipal court to pay a $5 graffiti eradication fee as
2-17 a cost of court.
2-18 (b) In this article, a person is considered convicted if:
2-19 (1) a sentence is imposed on the person;
2-20 (2) the person receives community supervision,
2-21 including deferred adjudication; or
2-22 (3) the court defers final disposition of the person's
2-23 case.
2-24 (c) The clerks of the respective courts shall collect the
2-25 costs and pay them to the county or municipal treasurer, as
2-26 appropriate, or to any other official who discharges the duties
2-27 commonly delegated to the county or municipal treasurer, as
3-1 appropriate, for deposit in a fund to be known as the county
3-2 graffiti eradication fund or a fund to be known as the municipal
3-3 graffiti eradication fund, as appropriate. A fund designated by
3-4 this subsection may be used only to:
3-5 (1) repair damage caused by the commission of offenses
3-6 under Section 28.03(a)(3), Penal Code;
3-7 (2) provide educational and intervention programs
3-8 designed to prevent individuals from committing offenses under
3-9 Section 28.03(a)(3), Penal Code; and
3-10 (3) provide to the public rewards for identifying and
3-11 aiding in the apprehension and prosecution of offenders who commit
3-12 offenses under Section 28.03(a)(3), Penal Code.
3-13 (d) The county graffiti eradication fund shall be
3-14 administered by or under the direction of the commissioners court.
3-15 The municipal graffiti eradication fund shall be administered by or
3-16 under the direction of the governing body of the municipality.
3-17 SECTION 3. Subchapter B, Chapter 485, Health and Safety
3-18 Code, is amended by adding Section 485.019 to read as follows:
3-19 Sec. 485.019. RESTRICTION OF ACCESS TO AEROSOL PAINT.
3-20 (a) A business establishment that holds a permit under Section
3-21 485.012 and that displays aerosol paint shall display the paint:
3-22 (1) in a place that is in the line of sight of a
3-23 cashier or in the line of sight from a workstation normally
3-24 continuously occupied during business hours;
3-25 (2) in a manner that makes the paint accessible to a
3-26 patron of the business establishment only with the assistance of an
3-27 employee of the establishment; or
4-1 (3) in an area electronically protected, or viewed by
4-2 surveillance equipment that is monitored, during business hours.
4-3 (b) This section does not apply to a business establishment
4-4 that has in place a computerized checkout system at the point of
4-5 sale for merchandise that alerts the cashier that a person
4-6 purchasing aerosol paint must be over 18 years of age.
4-7 (c) A court may issue a warning to a business establishment
4-8 or impose a civil penalty of $50 on the business establishment for
4-9 a first violation of this section. After receiving a warning or
4-10 penalty for the first violation, the business establishment is
4-11 liable to the state for a civil penalty of $100 for each subsequent
4-12 violation.
4-13 (d) For the third violation of this section in a calendar
4-14 year, a court may issue an injunction prohibiting the business
4-15 establishment from selling aerosol paint for a period of not more
4-16 than two years. A business establishment that violates the
4-17 injunction is liable to the state for a civil penalty of $100, in
4-18 addition to any other penalty authorized by law, for each day the
4-19 violation continues.
4-20 (e) If a business establishment fails to pay a civil penalty
4-21 under this section, the court may issue an injunction prohibiting
4-22 the establishment from selling aerosol paint until the
4-23 establishment pays the penalty, attorney's fees, and court costs.
4-24 (f) The attorney general or the district or county attorney
4-25 for the county in which a violation of this section is alleged to
4-26 have occurred may file suit for the issuance of a warning, the
4-27 collection of a penalty, or the issuance of an injunction.
5-1 (g) A penalty collected under this section shall be sent to
5-2 the comptroller for deposit in the state treasury to the credit of
5-3 the general revenue fund.
5-4 SECTION 4. (a) The change in law made by this Act applies
5-5 only to an offense committed on or after the effective date of this
5-6 Act. For purposes of this section, an offense is committed on or
5-7 after the effective date of this Act if every element of the
5-8 offense occurs on or after the effective date.
5-9 (b) An offense committed before the effective date of this
5-10 Act is covered by the law in effect when the offense was committed,
5-11 and the former law is continued in effect for that purpose.
5-12 SECTION 5. This Act takes effect September 1, 1997.
5-13 SECTION 6. The importance of this legislation and the
5-14 crowded condition of the calendars in both houses create an
5-15 emergency and an imperative public necessity that the
5-16 constitutional rule requiring bills to be read on three several
5-17 days in each house be suspended, and this rule is hereby suspended.