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.