AN ACT

 1-1     relating to the creation of a graffiti offense, to the criminal,

 1-2     civil, and family law consequences of engaging in conduct described

 1-3     by the offense, and to the regulation of customer access to aerosol

 1-4     paint.

 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-6           SECTION 1.  Chapter 28, Penal Code, is amended by adding

 1-7     Section 28.08 to read as follows:

 1-8           Sec. 28.08.  GRAFFITI.  (a)  A person commits an offense if

 1-9     with aerosol paint or an indelible marker and without the effective

1-10     consent of the owner the person intentionally or knowingly makes

1-11     markings, including inscriptions, slogans, drawings, or paintings,

1-12     on the tangible property of the owner.

1-13           (b)  Except as provided by Subsection (d), an offense under

1-14     this section is:

1-15                 (1)  a Class B misdemeanor if the amount of pecuniary

1-16     loss is less than $500;

1-17                 (2)  a Class A misdemeanor if the amount of pecuniary

1-18     loss is $500 or more but less than $1,500;

1-19                 (3)  a state jail felony if the amount of pecuniary

1-20     loss is $1,500 or more but less than $20,000;

1-21                 (4)  a felony of the third degree if the amount of

1-22     pecuniary loss is $20,000 or more but less than $100,000;

1-23                 (5)  a felony of the second degree if the amount of

 2-1     pecuniary loss is $100,000 or more but less than $200,000; or

 2-2                 (6)  a felony of the first degree if the amount of

 2-3     pecuniary loss is $200,000 or more.

 2-4           (c)  When more than one item of tangible property, belonging

 2-5     to one or more owners, is marked in violation of this section

 2-6     pursuant to one scheme or continuing course of conduct, the conduct

 2-7     may be considered as one offense, and the amounts of pecuniary loss

 2-8     to property resulting from the marking of the property may be

 2-9     aggregated in determining the grade of the offense.

2-10           (d)  An offense under this section is a state jail felony if

2-11     the marking is made on a place of worship or human burial, a public

2-12     monument, or a community center that provides medical, social, or

2-13     educational programs and the amount of the pecuniary loss to real

2-14     property or to tangible personal property is less than $20,000.

2-15           (e)  In this section:

2-16                 (1)  "Aerosol paint" means an aerosolized paint

2-17     product.

2-18                 (2)  "Indelible marker" means a device that  makes a

2-19     mark with a paint or ink product that is specifically formulated to

2-20     be more difficult to erase, wash out, or remove than ordinary paint

2-21     or ink products.

2-22           SECTION 2.  Subchapter A, Chapter 102, Code of Criminal

2-23     Procedure, is amended by adding Article 102.0171 to read as

2-24     follows:

2-25           Art. 102.0171.  COURT COSTS:  GRAFFITI ERADICATION FUNDS.

 3-1     (a)  A defendant convicted of an offense under Section 28.08, Penal

 3-2     Code, in a county court, county court at law, or district court

 3-3     shall pay a $5 graffiti eradication fee as a cost of court.

 3-4           (b)  In this article, a person is considered convicted if:

 3-5                 (1)  a sentence is imposed on the person;

 3-6                 (2)  the person receives community supervision,

 3-7     including deferred adjudication; or

 3-8                 (3)  the court defers final disposition of the person's

 3-9     case.

3-10           (c)  The clerks of the respective courts shall collect the

3-11     costs and pay them to the county treasurer or to any other official

3-12     who discharges the duties commonly delegated to the county

3-13     treasurer for deposit in a fund to be known as the county graffiti

3-14     eradication fund.  A fund designated by this subsection may be used

3-15     only to:

3-16                 (1)  repair damage caused by the commission of offenses

3-17     under Section 28.08, Penal Code;

3-18                 (2)  provide educational and intervention programs

3-19     designed to prevent individuals from committing offenses under

3-20     Section 28.08, Penal Code; and

3-21                 (3)  provide to the public rewards for identifying and

3-22     aiding in the apprehension and prosecution of offenders who commit

3-23     offenses under Section 28.08, Penal Code.

3-24           (d)  The county graffiti eradication fund shall be

3-25     administered by or under the direction of the commissioners court.

 4-1           SECTION 3.  Section 54.042, Family Code, is amended to read

 4-2     as follows:

 4-3           Sec. 54.042.  LICENSE SUSPENSION.  (a)  A juvenile court, in

 4-4     a disposition hearing under Section 54.04 [of this code], shall:

 4-5                 (1)  order the Department of Public Safety to suspend a

 4-6     child's driver's license or permit, or if the child does not have a

 4-7     license or permit, to deny the issuance of a license or permit to

 4-8     the child if the court finds that the child has engaged in conduct

 4-9     that violates a law of this state enumerated in Section 521.342(a),

4-10     Transportation Code [24(a-1), Chapter 173, Acts of the 47th

4-11     Legislature, Regular Session, 1941 (Article 6687b, Vernon's Texas

4-12     Civil Statutes)]; or

4-13                 (2)  notify the Department of Public Safety of the

4-14     adjudication, if the court finds that the child has engaged in

4-15     conduct that violates a law of this state enumerated in Section

4-16     521.372(a), Transportation Code [24B(b), Chapter 173, Acts of the

4-17     47th Legislature, Regular Session, 1941 (Article 6687b, Vernon's

4-18     Texas Civil Statutes)].

4-19           (b)  A juvenile court, in a disposition hearing under Section

4-20     54.04, may order the Department of Public Safety to suspend a

4-21     child's driver's license or permit or, if the child does not have a

4-22     license or permit, to deny the issuance of a license or permit to

4-23     the child, if the court finds that the child has engaged in conduct

4-24     that violates Section 28.08, Penal Code.

4-25           (c)  The order under Subsection (a)(1) [of this section]

 5-1     shall specify a period of suspension or denial that is until the

 5-2     child reaches the age of 19 or for a period of 365 days, whichever

 5-3     is longer.

 5-4           (d)  The order under Subsection (b) shall specify a period of

 5-5     suspension or denial that is:

 5-6                 (1)  for a period not to exceed 365 days; or

 5-7                 (2)  if the court finds the child has been previously

 5-8     adjudicated as having engaged in conduct violating Section 28.08,

 5-9     Penal Code, until the child reaches the age of 19 or for a period

5-10     not to exceed 365 days, whichever is longer.

5-11           (e) [(c)]  A child whose driver's license or permit has been

5-12     suspended or denied pursuant to this section may, if the child is

5-13     otherwise eligible for, and fulfils the requirements for issuance

5-14     of, a provisional driver's license or permit under Chapter 521,

5-15     Transportation Code [173, Acts of the 47th Legislature, Regular

5-16     Session, 1941, as amended (Article 6687b, Vernon's Texas Civil

5-17     Statutes)], apply for and receive an occupational license in

5-18     accordance with the provisions of Subchapter L of that chapter

5-19     [Section 23A, Chapter 173, Acts of the 47th Legislature, Regular

5-20     Session, 1941, as amended (Article 6687b, Vernon's Texas Civil

5-21     Statutes)].

5-22           (f) [(d)]  A juvenile court, in a disposition hearing under

5-23     Section 54.04 [of this code], may order the Department of Public

5-24     Safety to suspend a child's driver's license or permit or, if the

5-25     child does not have a license or permit, to deny the issuance of a

 6-1     license or permit to the child for a period not to exceed 12 months

 6-2     if the court finds that the child has engaged in conduct in need of

 6-3     supervision or delinquent conduct other than the conduct described

 6-4     by Subsection (a) [of this section].

 6-5           (g) [(e)]  A juvenile court that places a child on probation

 6-6     under Section 54.04 [of this code] may require as a reasonable

 6-7     condition of the probation that if the child violates the

 6-8     probation, the court may order the Department of Public Safety to

 6-9     suspend the child's driver's license or permit or, if the child

6-10     does not have a license or permit, to deny the issuance of a

6-11     license or permit to the child for a period not to exceed 12

6-12     months.  The court may make this order if a child that is on

6-13     probation under this condition violates the probation.  A

6-14     suspension under this subsection is cumulative of any other

6-15     suspension under this section.

6-16           SECTION 4.  Subchapter B, Chapter 485, Health and Safety

6-17     Code, is amended by adding Section 485.019 to read as follows:

6-18           Sec. 485.019.  RESTRICTION OF ACCESS TO AEROSOL PAINT.

6-19     (a)  A business establishment that holds a permit under Section

6-20     485.012 and that displays aerosol paint shall display the paint:

6-21                 (1)  in a place that is in the line of sight of a

6-22     cashier or in the line of sight from a workstation normally

6-23     continuously occupied during business hours;

6-24                 (2)  in a manner that makes the paint accessible to a

6-25     patron of the business establishment only with the assistance of an

 7-1     employee of the establishment; or

 7-2                 (3)  in an area electronically protected, or viewed by

 7-3     surveillance equipment that is monitored, during business hours.

 7-4           (b)  This section does not apply to a business establishment

 7-5     that has in place a computerized checkout system at the point of

 7-6     sale for merchandise that alerts the cashier that a person

 7-7     purchasing aerosol paint must be over 18 years of age.

 7-8           (c)  A court may issue a warning to a business establishment

 7-9     or impose a civil penalty of $50 on the business establishment for

7-10     a first violation of this section.  After receiving a warning or

7-11     penalty for the first violation, the business establishment is

7-12     liable to the state for a civil penalty of $100 for each subsequent

7-13     violation.

7-14           (d)  For the third violation of this section in a calendar

7-15     year, a court may issue an injunction prohibiting the business

7-16     establishment from selling aerosol paint for a period of not more

7-17     than two years.  A business establishment that violates the

7-18     injunction is liable to the state for a civil penalty of $100, in

7-19     addition to any other penalty authorized by law, for each day the

7-20     violation continues.

7-21           (e)  If a business establishment fails to pay a civil penalty

7-22     under this section, the court may issue an injunction prohibiting

7-23     the establishment from selling aerosol paint until the

7-24     establishment pays the penalty, attorney's fees, and court costs.

7-25           (f)  The district or county attorney for the county in which

 8-1     a violation of this section is alleged to have occurred, or the

 8-2     attorney general, if requested by the district or county attorney

 8-3     for that county, may file suit for the issuance of a warning, the

 8-4     collection of a penalty, or the issuance of an injunction.

 8-5           (g)  A penalty collected under this section shall be sent to

 8-6     the comptroller for deposit in the state treasury to the credit of

 8-7     the general revenue fund.

 8-8           (h)  This section applies only to a business establishment

 8-9     that is located in a county with a population of 75,000 or more.

8-10           SECTION 5.  Subchapter N, Chapter 521, Transportation Code,

8-11     is amended by adding Section 521.314 to read as follows:

8-12           Sec. 521.314.  SUSPENSION FOR CERTAIN CRIMINAL MISCHIEF;

8-13     LICENSE DENIAL.  (a)  A court may order the department to suspend a

8-14     person's driver's license on conviction of an offense under Section

8-15     28.08, Penal Code.

8-16           (b)  A court may order the department to deny an application

8-17     for reinstatement or issuance of a driver's license to a person

8-18     convicted of an offense under Section 28.08, Penal Code, who, on

8-19     the date of the conviction, did not hold a driver's license.

8-20           (c)  The period of suspension under this section is one year

8-21     after the date of a final conviction.  The period of license denial

8-22     is one year after the date the person applies to the department for

8-23     reinstatement or issuance of a driver's license.

8-24           (d)  The department may not reinstate a driver's license

8-25     suspended under Subsection (a) unless the person whose license was

 9-1     suspended applies to the department for reinstatement.

 9-2           (e)  A person whose license is suspended under Subsection (a)

 9-3     remains eligible to receive an occupational license under

 9-4     Subchapter L.

 9-5           (f)  For the purposes of this section, a person is convicted

 9-6     of an offense regardless of whether sentence is imposed or the

 9-7     person is placed on community supervision for the offense under

 9-8     Article 42.12, Code of Criminal Procedure.

 9-9           SECTION 6.  Section 53.03, Family Code, is amended by adding

9-10     Subsection (g) to read as follows:

9-11           (g)  If the child is alleged to have engaged in delinquent

9-12     conduct or conduct indicating a need for supervision that violates

9-13     Section 28.08, Penal Code, deferred prosecution under this section

9-14     may include:

9-15                 (1)  voluntary attendance in a class with instruction

9-16     in self-responsibility and empathy for a victim of an offense

9-17     conducted by a local juvenile probation department, if the class is

9-18     available; and

9-19                 (2)  voluntary restoration of the property damaged by

9-20     the child by removing or painting over any markings made by the

9-21     child, if the owner of the property consents to the restoration.

9-22           SECTION 7.  Chapter 54, Family Code, is amended by adding

9-23     Section 54.046 to read as follows:

9-24           Sec. 54.046.  CONDITIONS OF PROBATION FOR DAMAGING PROPERTY

9-25     WITH GRAFFITI.  (a)  If a juvenile court places on probation under

 10-1    Section 54.04(d) a child adjudicated as having engaged in conduct

 10-2    in violation of Section 28.08, Penal Code, in addition to other

 10-3    conditions of probation, the court may, with consent of the owner

 10-4    of the property, order the child as a condition of probation to

 10-5    restore the property by removing or painting over any markings made

 10-6    by the child on the property.

 10-7          (b)  In addition to a condition imposed under Subsection (a),

 10-8    the court may require the child as a condition of probation to

 10-9    attend a class with instruction in self-responsibility and empathy

10-10    for a victim of an offense conducted by a local juvenile probation

10-11    department.

10-12          SECTION 8.  (a)  The change in law made by this Act applies

10-13    only to an offense committed or, for the purposes of Title 3,

10-14    Family Code, to conduct that occurs on or after the effective date

10-15    of this Act.  For purposes of this section, an offense is committed

10-16    on or after the effective date of this Act if every element of the

10-17    offense occurs on or after the effective date and conduct violating

10-18    a penal law of this state occurs on or after the effective date of

10-19    this Act if every element of the violation occurs on or after that

10-20    date.

10-21          (b)  An offense committed before the effective date of this

10-22    Act is covered by the law in effect when the offense was committed,

10-23    and the former law is continued in effect for that purpose.

10-24    Conduct that occurs before the effective date of this Act is

10-25    covered by the law in effect at the time the conduct occurred, and

                                                                S.B. No. 758

 11-1    the former law is continued in effect for that purpose.

 11-2          SECTION 9.  This Act takes effect September 1, 1997.

 11-3          SECTION 10.  The importance of this legislation and the

 11-4    crowded condition of the calendars in both houses create an

 11-5    emergency and an imperative public necessity that the

 11-6    constitutional rule requiring bills to be read on three several

 11-7    days in each house be suspended, and this rule is hereby suspended.

         ________________________________   ________________________________

             President of the Senate              Speaker of the House

               I hereby certify that S.B. No. 758 passed the Senate on

         April 8, 1997, by a viva-voce vote; May 10, 1997, Senate refused to

         concur in House amendments and requested appointment of Conference

         Committee; May 13, 1997, House granted request of the Senate;

         May 22, 1997, Senate adopted Conference Committee Report by a

         viva-voce vote.

                                             _______________________________

                                                 Secretary of the Senate

               I hereby certify that S.B. No. 758 passed the House, with

         amendments, on May 6, 1997, by a non-record vote; May 13, 1997,

         House granted request of the Senate for appointment of Conference

         Committee; May 21, 1997, House adopted Conference Committee Report

         by a non-record vote.

                                             _______________________________

                                                 Chief Clerk of the House

         Approved:

         ________________________________

                      Date

         ________________________________

                    Governor