Bill not drafted by TLC or Senate E&E.

      Line and page numbers may not match official copy.

      By Serna                                        H.B. No. 1714

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the offense of criminal mischief involving graffiti and

 1-3     the regulation of customer access to aerosol paint.

 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5           SECTION 1.  Section 28.03, Penal Code, is amended by amending

 1-6     Subsection (a) and adding Subsections (g) and (h) to read as

 1-7     follows:

 1-8           (a)  A person commits an offense if, without the effective

 1-9     consent of the owner:

1-10                 (1)  he intentionally or knowingly damages or destroys

1-11     the tangible property of the owner;

1-12                 (2)  he intentionally or knowingly tampers with the

1-13     tangible property of the owner and causes pecuniary loss or

1-14     substantial inconvenience to the owner or a third person; or

1-15                 (3)  he intentionally or knowingly places graffiti

1-16     [makes markings, including inscriptions, slogans, drawings, or

1-17     paintings,] on the tangible property of the owner.

1-18           (g)  The punishment prescribed for an offense under

1-19     Subsection (a)(3) is increased to the punishment for the next

1-20     highest category of offense if the graffiti is placed on public

1-21     property.  This subsection does not apply if the punishment for the

1-22     offense, without application of this subsection, is a first degree

1-23     felony.

1-24           (h)  In this section:

 2-1                 (1)  "Graffiti" means a word, figure, mark, painting,

 2-2     covering, drawing, slogan, design, or other inscription.

 2-3                 (2)  "Public property" means property owned or leased

 2-4     by the state or a political subdivision of the state.

 2-5           SECTION 2.  Subchapter A, Chapter 102, Code of Criminal

 2-6     Procedure, is amended by adding Article 102.0171 to read as

 2-7     follows:

 2-8           Art. 102.0171.  COURT COSTS:  GRAFFITI ERADICATION FUNDS.

 2-9     (a)  A defendant convicted of an offense under Section 28.03(a)(3),

2-10     Penal Code, in a justice court, county court, county court at law,

2-11     or district court shall pay a $5 graffiti eradication fee as a cost

2-12     of court.  The governing body of a municipality by ordinance may

2-13     create a municipal graffiti eradication fund and may require a

2-14     defendant convicted of an offense under Section 28.03(a)(3), Penal

2-15     Code, in a municipal court to pay a $5 graffiti eradication fee as

2-16     a cost of court.

2-17           (b)  In this article, a person is considered convicted if:

2-18                 (1)  a sentence is imposed on the person;

2-19                 (2)  the person receives community supervision,

2-20     including deferred adjudication; or

2-21                 (3)  the court defers final disposition of the person's

2-22     case.

2-23           (c)  The clerks of the respective courts shall collect the

2-24     costs and pay them to the county or municipal treasurer, as

2-25     appropriate, or to any other official who discharges the duties

2-26     commonly delegated to the county or municipal treasurer, as

2-27     appropriate, for deposit in a fund to be known as the county

2-28     graffiti eradication fund or a fund to be known as the municipal

2-29     graffiti eradication fund, as appropriate.  A fund designated by

2-30     this subsection may be used only to:

 3-1                 (1)  repair damage caused by the commission of offenses

 3-2     under Section 28.03(a)(3), Penal Code;

 3-3                 (2)  provide educational and intervention programs

 3-4     designed to prevent individuals from committing offenses under

 3-5     Section 28.03(a)(3), Penal Code; and

 3-6                 (3)  provide to the public rewards for identifying and

 3-7     aiding in the apprehension and prosecution of offenders who commit

 3-8     offenses under Section 28.03(a)(3), Penal Code.

 3-9           (d)  The county graffiti eradication fund shall be

3-10     administered by or under the direction of the commissioners court.

3-11     The municipal graffiti eradication fund shall be administered by or

3-12     under the direction of the governing body of the municipality.

3-13           SECTION 3.  Section 54.042, Family Code, is amended to read

3-14     as follows:

3-15           Sec. 54.042.  License Suspension.  (a)  A juvenile court, in

3-16     a disposition hearing under Section 54.04 [of this code], shall:

3-17                 (1)  order the Department of Public Safety to suspend a

3-18     child's driver's license or permit, or if the child does not have a

3-19     license or permit, to deny the issuance of a license or permit to

3-20     the child if the court finds that the child has engaged in conduct

3-21     that violates:

3-22                       (A)  a law of this state enumerated in Section

3-23     521.342(a), Transportation Code [24(a-1), Chapter 173, Acts of the

3-24     47th Legislature, Regular Session, 1941 (Article 6687b, Vernon's

3-25     Texas Civil Statutes)]; or

3-26                       (B)  Section 28.03(a)(3), Penal Code; or

3-27                 (2)  notify the Department of Public Safety of the

3-28     adjudication, if the court finds that the child has engaged in

3-29     conduct that violates a law of this state enumerated in Section

3-30     521.372(a), Transportation Code [24B(b), Chapter 173, Acts of the

 4-1     47th Legislature, Regular Session, 1941 (Article 6687b, Vernon's

 4-2     Texas Civil Statutes)].

 4-3           (b)  The order under Subsection (a)(1)(A) [of this section]

 4-4     shall specify a period of suspension or denial that is until the

 4-5     child reaches the age of 19 or for a period of 365 days, whichever

 4-6     is longer.

 4-7           (c)  The order under Subsection (a)(1)(B) shall specify a

 4-8     period of suspension or denial that is:

 4-9                 (1)  for a period of 365 days; or

4-10                 (2)  if the court finds the child has been previously

4-11     adjudicated as having engaged in conduct violating Section

4-12     28.03(a)(3), Penal Code, until the child reaches age 19 or for a

4-13     period of 365 days, whichever is longer.

4-14           (d)  A child whose driver's license or permit has been

4-15     suspended or denied pursuant to this section may, if the child is

4-16     otherwise eligible for, and fulfils the requirements for issuance

4-17     of, a provisional driver's license or permit under Chapter 521,

4-18     Transportation Code [Chapter 173, Acts of the 47th Legislature,

4-19     Regular Session, 1941, as amended (Article 6687b, Vernon's Texas

4-20     Civil Statutes)], apply for and receive an occupational license in

4-21     accordance with the provisions of Subchapter L of that chapter

4-22     [Section 23A, Chapter 173, Acts of the 47th Legislature, Regular

4-23     Session, 1941, as amended (Article 6687b, Vernon's Texas Civil

4-24     Statutes)].

4-25           (e) [(d)]  A juvenile court, in a disposition hearing under

4-26     Section 54.04 [of this code], may order the Department of Public

4-27     Safety to suspend a child's driver's license or permit or, if the

4-28     child does not have a license or permit, to deny the issuance of a

4-29     license or permit to the child for a period not to exceed 12 months

4-30     if the court finds that the child has engaged in conduct in need of

 5-1     supervision or delinquent conduct other than the conduct described

 5-2     by Subsection (a) [of this section].

 5-3           (f) [(e)]  A juvenile court that places a child on probation

 5-4     under Section 54.04 [of this code] may require as a reasonable

 5-5     condition of the probation that if the child violates the

 5-6     probation, the court may order the Department of Public Safety to

 5-7     suspend the child's driver's license or permit or, if the child

 5-8     does not have a license or permit, to deny the issuance of a

 5-9     license or permit to the child for a period not to exceed 12

5-10     months.  The court may make this order if a child that is on

5-11     probation under this condition violates the probation.  A

5-12     suspension under this subsection is cumulative of any other

5-13     suspension under this section.

5-14           SECTION 4.  Subchapter B, Chapter 485, Health and Safety

5-15     Code, is amended by adding Section 485.019 to read as follows:

5-16           Sec. 485.019.  RESTRICTION OF ACCESS TO AEROSOL PAINT.

5-17     (a)  A business establishment that holds a permit under Section

5-18     485.012 and that displays aerosol paint shall display the paint:

5-19                 (1)  in a place that is in the line of sight of a

5-20     cashier or in the line of sight from a workstation normally

5-21     continuously occupied during business hours;

5-22                 (2)  in a manner that makes the paint accessible to a

5-23     patron of the business establishment only with the assistance of an

5-24     employee of the establishment; or

5-25                 (3)  in an area electronically protected, or viewed by

5-26     surveillance equipment that is monitored, during business hours.

5-27           (b)  This section does not apply to a business establishment

5-28     that has in place a computerized checkout system at the point of

5-29     sale for merchandise that alerts the cashier that a person

5-30     purchasing aerosol paint must be over 18 years of age.

 6-1           (c)  A court may issue a warning to a business establishment

 6-2     or impose a civil penalty of $50 on the business establishment for

 6-3     a first violation of this section.  After receiving a warning or

 6-4     penalty for the first violation, the business establishment is

 6-5     liable to the state for a civil penalty of $100 for each subsequent

 6-6     violation.

 6-7           (d)  For the third violation of this section in a calendar

 6-8     year, a court may issue an injunction prohibiting the business

 6-9     establishment from selling aerosol paint for a period of not more

6-10     than two years.  A business establishment that violates the

6-11     injunction is liable to the state for a civil penalty of $100, in

6-12     addition to any other penalty authorized by law, for each day the

6-13     violation continues.

6-14           (e)  If a business establishment fails to pay a civil penalty

6-15     under this section, the court may issue an injunction prohibiting

6-16     the establishment from selling aerosol paint until the

6-17     establishment pays the penalty, attorney's fees, and court costs.

6-18           (f)  The attorney general or the district or county attorney

6-19     for the county in which a violation of this section is alleged to

6-20     have occurred may file suit for the issuance of a warning, the

6-21     collection of a penalty, or the issuance of an injunction.

6-22           (g)  A penalty collected under this section shall be sent to

6-23     the comptroller for deposit in the state treasury to the credit of

6-24     the general revenue fund.

6-25           SECTION 5.  Subchapter O, Chapter 521, Transportation Code,

6-26     is amended by adding Section 521.348 to read as follows:

6-27           Sec. 521.348.  SUSPENSION FOR CERTAIN CRIMINAL MISCHIEF;

6-28     LICENSE DENIAL.   (a)  A person's driver's license is automatically

6-29     suspended on conviction of an offense under Section 28.03(a)(3),

6-30     Penal Code.

 7-1           (b)  The department may not reinstate or issue a driver's

 7-2     license to a person convicted of an offense under Section

 7-3     28.03(a)(3), Penal Code, who, on the date of the conviction, did

 7-4     not hold a driver's license.

 7-5           (c)  The period of suspension under this section is one year

 7-6     after the date of a final conviction.  The period of license denial

 7-7     is one year after the date the person applies to the department for

 7-8     reinstatement or issuance of a driver's license.

 7-9           (d)  The department may not reinstate a driver's license

7-10     suspended under Subsection (a) unless the person whose license was

7-11     suspended applies to the department for reinstatement.

7-12           (e)  A person whose license is suspended under Subsection (a)

7-13     remains eligible to receive an occupational license under

7-14     Subchapter L, Chapter 521.

7-15           (f)  For the purposes of this section, a person is convicted

7-16     of an offense regardless of whether sentence is imposed or the

7-17     person is placed on community supervision for the offense under

7-18     Article 42.12, Code of Criminal Procedure.

7-19           SECTION 6.  (a)  The change in law made by this Act applies

7-20     only to an offense committed or, for the purposes of Title 3,

7-21     Family Code, to conduct that occurs on or after the effective date

7-22     of this Act.  For purposes of this section, an offense is committed

7-23     on or after the effective date of this Act if every element of the

7-24     offense occurs on or after the effective date and conduct violating

7-25     a penal law of this state occurs on or after the effective date of

7-26     this Act if every element of the violation occurs on or after that

7-27     date.

7-28           (b)  An offense committed before the effective date of this

7-29     Act is covered by the law in effect when the offense was committed,

7-30     and the former law is continued in effect for that purpose.

 8-1     Conduct that occurs before the effective date of this Act is

 8-2     covered by the law in effect at the time the conduct occurred, and

 8-3     the former law is continued in effect for that purpose.

 8-4           SECTION 7.  This Act takes effect September 1, 1997.

 8-5           SECTION 8.  The importance of this legislation and the

 8-6     crowded condition of the calendars in both houses create an

 8-7     emergency and an imperative public necessity that the

 8-8     constitutional rule requiring bills to be read on three several

 8-9     days in each house be suspended, and this rule is hereby suspended.