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