By Bailey                                       H.B. No. 3287

      75R6230 CAG-D                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the statewide regulation of sexually oriented

 1-3     businesses; providing a criminal penalty.

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

 1-5           SECTION 1.  Title 132, Revised Statutes, is amended by adding

 1-6     Article 9031 to read as follows:

 1-7           Art. 9031.  SEXUALLY ORIENTED BUSINESSES

 1-8           Sec. 1.  DEFINITIONS.  In this article:

 1-9                 (1)  "Applicant" means an owner of or an agent of an

1-10     owner of a sexually oriented business or an individual who operates

1-11     a sexually oriented business who requests a certificate of

1-12     registration.

1-13                 (2)  "Department" means the Department of Public

1-14     Safety.

1-15                 (3)  "Operator" means a person who has control over the

1-16     premises of a sexually oriented business, has managerial authority

1-17     over any employees or contractors of a sexually oriented business,

1-18     or is otherwise responsible for the daily operation of a sexually

1-19     oriented business.

1-20                 (4)  "Owner" means a person who participates in the

1-21     profits or residual assets of a sexually oriented business.

1-22                 (5)  "Sexually oriented business" has the meaning

1-23     assigned by Section 243.002, Local Government Code, and also

1-24     includes an individual, including an independent contractor, who

 2-1     provides sexually oriented entertainment, services, or products at

 2-2     one or more locations.  The term does not include an individual

 2-3     employed by a sexually oriented business, if the sexually oriented

 2-4     business is the only location at which the individual provides

 2-5     sexually oriented entertainment, services, or products.

 2-6           Sec. 2.  DATABASE; REGISTRATION.  (a)  The department shall

 2-7     establish a database containing information on sexually oriented

 2-8     businesses.  Information received by the department under this

 2-9     article shall be included in the database.

2-10           (b)  A county or municipal agency or department that issues

2-11     permits or licenses under Chapter 243, Local Government Code, shall

2-12     provide to the department the following information for each permit

2-13     or license the agency or department issues:

2-14                 (1)  the applicant's name, address, and telephone

2-15     number;

2-16                 (2)  the business street address of the applicant, or

2-17     if the business is not located at one specific location, the

2-18     business mailing address of the applicant;

2-19                 (3)  a general description of the type of sexually

2-20     oriented business and the service or products being provided; and

2-21                 (4)  the approximate number of individuals employed by

2-22     the applicant, including any independent contractors.

2-23           (c)  A county or municipal agency or department that issues

2-24     permits or licenses under Chapter 243, Local Government Code, shall

2-25     report to the department the final disposition of any enforcement

2-26     action taken against a license or permit holder.

2-27           (d)  A sexually oriented business located in a municipality

 3-1     that has not adopted regulations under Chapter 243, Local

 3-2     Government Code, or located in the unincorporated area of a county

 3-3     that has not adopted regulations under Chapter 243, Local

 3-4     Government Code, shall register with the department before the

 3-5     sexually oriented business may offer any service or sell, rent, or

 3-6     exhibit any device or item intended to provide sexual stimulation

 3-7     or gratification to a customer.

 3-8           (e)  The department shall provide information collected under

 3-9     this section to any law enforcement agency or any county or

3-10     municipal agency or department that issues permits or licenses

3-11     under Chapter 243, Local Government Code.

3-12           (f)  An applicant for registration under this article must

3-13     submit an application to the department on a form prescribed by the

3-14     department.

3-15           (g)  The department shall return to an applicant any

3-16     application or form that does not provide the requested information

3-17     or is determined to contain insufficient information.  The

3-18     department shall indicate the information needed for a complete

3-19     application and the applicant may resubmit the completed

3-20     application.

3-21           Sec. 3.  MINIMUM REQUIREMENTS FOR REGISTRATION.  (a) A person

3-22     applying for registration under this article must:

3-23                 (1)  provide the applicant's name, address, and

3-24     telephone number and the name, address, and telephone number of

3-25     each shareholder, partner, or other person who has more than a 10

3-26     percent ownership interest in the business;

3-27                 (2)  provide authorization and any information for a

 4-1     criminal history record information search under Section 411.132,

 4-2     Government Code, for each owner and operator; and

 4-3                 (3)  pay any registration fee required by the

 4-4     department.

 4-5           Sec. 4.  ISSUANCE OF CERTIFICATE; TERMS OF REGISTRATION.  (a)

 4-6     The department shall issue a certificate of registration to each

 4-7     sexually oriented business that complies with the registration and

 4-8     distance requirements imposed under this article and pays the

 4-9     required fees.  The permit shall be issued or denied not later than

4-10     the 30th day after the date a completed application is submitted to

4-11     the department.

4-12           (b)  A certificate of registration issued under this article

4-13     is valid for one year from the date of issuance. The department by

4-14     rule may adopt a system under which certificates of registration

4-15     expire on various dates during the year.

4-16           (c)  The department by rule may adopt a system to renew a

4-17     certificate of registration or may require an applicant to reapply

4-18     for registration.

4-19           Sec. 5.  FEES.  The department by rule shall set registration

4-20     fees.  The department shall set the fees in amounts that are

4-21     reasonable and necessary to cover the costs of administering and

4-22     enforcing this article.

4-23           Sec. 6.  GROUNDS FOR DENIAL.  (a)  The department shall deny

4-24     an application and may not issue or renew a certificate of

4-25     registration if the department finds that:

4-26                 (1)  the applicant has been finally convicted of the

4-27     following:

 5-1                       (A)  a violation of Section 21.07, 21.08, 21.11,

 5-2     22.011, 22.02, 25.02, 25.04, 25.06, or Chapter 43, Penal Code;

 5-3                       (B)  a violation of Subchapter D, Chapter 481,

 5-4     Health and Safety Code;

 5-5                       (C)  a criminal attempt, solicitation, or

 5-6     conspiracy to commit an offense described by Subdivision (A) or

 5-7     (B);

 5-8                       (D)  an offense in another state, that if

 5-9     committed in this state would have been an offense described by

5-10     Subdivision (A) or (B); or

5-11                       (E)  a violation of a regulation adopted under

5-12     Chapter 243, Local Government Code; and

5-13                 (2)  the application is filed less than:

5-14                       (A)  two years after the date of conviction or

5-15     the release from confinement imposed for the conviction, whichever

5-16     is later, if the offense was a misdemeanor; or

5-17                       (B)  five years after the date of conviction or

5-18     the release from confinement imposed for the conviction, whichever

5-19     is later, if the offense was a felony or if the person was

5-20     convicted of two or more misdemeanors within the last two years.

5-21           (b)  The department shall deny an application and may not

5-22     issue or renew a certificate of registration if the department

5-23     finds that:

5-24                 (1)  the applicant has falsely or incorrectly answered

5-25     a question on the registration application; or

5-26                 (2)  during the 12 months preceding the date on which

5-27     the application is filed the premises for which the registration is

 6-1     sought have been found to be a nuisance under this article.

 6-2           Sec. 7.  DISTANCE REQUIREMENTS.  (a)  A sexually oriented

 6-3     business may not be located or offer any service or sell, rent, or

 6-4     exhibit any device or item intended to provide sexual gratification

 6-5     or stimulation within 1,000 feet of:

 6-6                 (1)  a public or private school;

 6-7                 (2)  a church or other place of worship;

 6-8                 (3)  a hospital;

 6-9                 (4)  a child-care or day-care facility;

6-10                 (5)  an adult-care facility; or

6-11                 (6)  a park, playground, playing field, or other

6-12     recreational facility used by children.

6-13           (b)  An applicant must submit with an application a sworn

6-14     statement that the location of the sexually oriented business

6-15     satisfies the distance requirements of this section.

6-16           (c)  For the purpose of this section, distance is measured in

6-17     a straight line from the nearest portion of the building used for

6-18     the sexually oriented business to the nearest portion of the

6-19     building or area used for a purpose under Subsection (a) of this

6-20     section.

6-21           Sec. 8.  EFFECT OF MUNICIPAL OR COUNTY REGULATION;

6-22     INFORMATION.   If a  municipality or county in which a sexually

6-23     oriented business is located adopts any ordinance or order

6-24     regulating sexually oriented businesses or the owners, operators,

6-25     or employees of sexually oriented businesses under Chapter 243,

6-26     Local Government Code, the municipal or county ordinance or order

6-27     supersedes any requirement of this article relating to the

 7-1     registration and location of a sexually oriented business, except

 7-2     that the reporting requirements of Section 2 of this article apply

 7-3     to any sexually oriented business.

 7-4           Sec. 9.  PROHIBITED CONDUCT; CRIMINAL PENALTY.  (a) A

 7-5     sexually oriented business may not offer any service or sell, rent,

 7-6     or exhibit any device or item intended to provide sexual

 7-7     stimulation or gratification to any customer unless registered

 7-8     under this article.  The registration must be posted in plain view

 7-9     near the entrance to the sexually oriented business, or, in the

7-10     case of an individual, must be immediately available for inspection

7-11     by a law enforcement officer.

7-12           (b)  The department may adopt rules for the operation of a

7-13     sexually oriented business under this article if the department

7-14     determines that the rule is necessary to prevent the violation of

7-15     the laws of this state relating to obscenity, public lewdness, or

7-16     prostitution or of any other law relating to sexual misconduct or

7-17     the use, sale, or possession of controlled substances on the

7-18     premises of a sexually oriented  business.

7-19           (c)  A violation of this article or a rule adopted under this

7-20     section is an offense. An offense under this section is a Class A

7-21     misdemeanor.

7-22           Sec. 10.  INJUNCTION.  (a)  If a court finds that a sexually

7-23     oriented business has engaged in repeated illegal activity or has

7-24     been the location of repeated criminal activity, the court may

7-25     declare the sexually oriented business or the location of the

7-26     sexually oriented business to be a public nuisance. If the court

7-27     makes a determination of a public nuisance, the court may revoke a

 8-1     certificate of registration issued under this article.

 8-2           (b)  The attorney general or the attorney for a municipality

 8-3     or county may sue in district court to have a sexually oriented

 8-4     business declared a public nuisance and may also file suit to

 8-5     enjoin the operation of a sexually oriented business in violation

 8-6     of this article.

 8-7           (c)  In a suit to enjoin a violation of this article, the

 8-8     court may grant the injunction without requiring the state,

 8-9     municipality, or county to post a bond or other undertaking.

8-10           (d)  The state, a municipality, or county shall recover

8-11     attorney's fees from the defendants in a suit filed under this

8-12     article if the state, municipality, or county is the prevailing

8-13     party.

8-14           SECTION 2.  Subchapter F, Chapter 411, Government Code, is

8-15     amended by adding Section 411.132 to read as follows:

8-16           Sec. 411.132.  ACCESS TO CRIMINAL HISTORY RECORD INFORMATION:

8-17     APPLICANTS FOR SEXUALLY ORIENTED BUSINESS LICENSE OR PERMIT.  The

8-18     department or a municipality or county that registers, licenses, or

8-19     otherwise regulates owners, operators, or employees of sexually

8-20     oriented businesses, on written request, is entitled to obtain from

8-21     the department all information, including criminal history record

8-22     information, maintained by the department.

8-23           SECTION 3.  (a)  Except as provided by Subsection (c) of this

8-24     section, this Act takes effect September 1, 1997.

8-25           (b)  The Department of Public Safety shall adopt rules

8-26     relating to the regulation of sexually oriented businesses under

8-27     Article 9031, Revised Statutes, as added by this Act,  not later

 9-1     than October 1, 1997.

 9-2           (c)  Sections 2 and 9, Article 9031, Revised Statutes, as

 9-3     added by this Act, take effect January 1, 1998.

 9-4           (d)  The distance requirements of Section 7, Article 9031,

 9-5     Revised Statutes, as added by this Act, do not apply to a sexually

 9-6     oriented business operating in a location before the effective date

 9-7     of this Act.

 9-8           SECTION 4.  The importance of this legislation and the

 9-9     crowded condition of the calendars in both houses create an

9-10     emergency and an imperative public necessity that the

9-11     constitutional rule requiring bills to be read on three several

9-12     days in each house be suspended, and this rule is hereby suspended.