By Shapleigh, et al. S.B. No. 758
Substitute the following for S.B. No. 758:
By Staples C.S.S.B. No. 758
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 to read as
1-6 follows:
1-7 Sec. 28.03. Criminal Mischief. (a) A person commits an
1-8 offense if, without the effective consent of the owner:
1-9 (1) he intentionally or knowingly damages or destroys
1-10 the tangible property of the owner;
1-11 (2) he intentionally or knowingly tampers with the
1-12 tangible property of the owner and causes pecuniary loss or
1-13 substantial inconvenience to the owner or a third person; or
1-14 (3) he intentionally or knowingly places graffiti
1-15 [makes markings, including inscriptions, slogans, drawings, or
1-16 paintings,] on the tangible property of the owner.
1-17 (b) Except as provided by Subsection (g) [(f)], an offense
1-18 under Subsection (a)(1) or (a)(2) [this section] is:
1-19 (1) a Class C misdemeanor if:
1-20 (A) the amount of pecuniary loss is less than
1-21 $20; or
1-22 (B) except as provided in Subdivision (3)(B), it
1-23 causes substantial inconvenience to others;
1-24 (2) a Class B misdemeanor if the amount of pecuniary
2-1 loss is $20 or more but less than $500;
2-2 (3) a Class A misdemeanor if the amount of pecuniary
2-3 loss is:
2-4 (A) $500 or more but less than $1,500; or
2-5 (B) less than $1,500 and the actor causes in
2-6 whole or in part impairment or interruption of public
2-7 communications, public transportation, public water, gas, or power
2-8 supply, or other public service, or causes to be diverted in whole,
2-9 in part, or in any manner, including installation or removal of any
2-10 device for any such purpose, any public communications, public
2-11 water, gas, or power supply;
2-12 (4) a state jail felony if the amount of pecuniary
2-13 loss is $1,500 or more but less than $20,000;
2-14 (5) a felony of the third degree if the amount of the
2-15 pecuniary loss is $20,000 or more but less than $100,000;
2-16 (6) a felony of the second degree if the amount of
2-17 pecuniary loss is $100,000 or more but less than $200,000; or
2-18 (7) a felony of the first degree if the amount of
2-19 pecuniary loss is $200,000 or more.
2-20 (c) Except as provided by Subsection (g), an offense under
2-21 Subsection (a)(3) is:
2-22 (1) a Class B misdemeanor if:
2-23 (A) the amount of pecuniary loss is less than
2-24 $20; or
2-25 (B) except as provided in Subdivision (3)(B), it
2-26 causes substantial inconvenience to others;
2-27 (2) a Class A misdemeanor if the amount of pecuniary
3-1 loss is $20 or more but less than $500;
3-2 (3) a state jail felony if the amount of pecuniary
3-3 loss is $500 or more but less than $1,500;
3-4 (4) a felony of the third degree if the amount of
3-5 pecuniary loss is $1,500 or more but less than $20,000;
3-6 (5) a felony of the second degree if the amount of the
3-7 pecuniary loss is $20,000 or more but less than $100,000; or
3-8 (6) a felony of the first degree if the amount of
3-9 pecuniary loss is $100,000 or more.
3-10 (d) For the purposes of this section, it shall be presumed
3-11 that a person who is receiving the economic benefit of public
3-12 communications, public water, gas, or power supply, has knowingly
3-13 tampered with the tangible property of the owner if the
3-14 communication or supply has been:
3-15 (1) diverted from passing through a metering device;
3-16 or
3-17 (2) prevented from being correctly registered by a
3-18 metering device; or
3-19 (3) activated by any device installed to obtain public
3-20 communications, public water, gas, or power supply without a
3-21 metering device.
3-22 (e) [(d)] The term "public communication, public
3-23 transportation, public water, gas, or power supply, or other public
3-24 service" shall mean, refer to, and include any such services
3-25 subject to regulation by the Public Utility Commission of Texas,
3-26 the Railroad Commission of Texas, or the Texas Natural Resource
3-27 Conservation Commission or any such services enfranchised by the
4-1 State of Texas or any political subdivision thereof.
4-2 (f) [(e)] When more than one item of tangible property,
4-3 belonging to one or more owners, is damaged, destroyed, or tampered
4-4 with in violation of this section pursuant to one scheme or
4-5 continuing course of conduct, the conduct may be considered as one
4-6 offense, and the amounts of pecuniary loss to property resulting
4-7 from the damage to, destruction of, or tampering with the property
4-8 may be aggregated in determining the grade of the offense.
4-9 (g) Except as provided by Subsection (h), an [(f) An]
4-10 offense under this section is a state jail felony if the damage or
4-11 destruction is inflicted on a place of worship or human burial, a
4-12 public monument, or a community center that provides medical,
4-13 social, or educational programs and the amount of the pecuniary
4-14 loss to real property or to tangible personal property is less than
4-15 $20,000.
4-16 (h) Subsection (g) does not apply to the punishment for an
4-17 offense under Subsection (a)(3) if the amount of pecuniary loss is
4-18 $1,500 or more but less than $20,000.
4-19 (i) In this section, "graffiti" means a word, figure, mark,
4-20 painting, covering, drawing, slogan, design, or other inscription.
4-21 SECTION 2. Subchapter A, Chapter 102, Code of Criminal
4-22 Procedure, is amended by adding Article 102.0171 to read as
4-23 follows:
4-24 Art. 102.0171. COURT COSTS: GRAFFITI ERADICATION FUNDS.
4-25 (a) A defendant convicted of an offense under Section 28.03(a)(3),
4-26 Penal Code, in a justice court, county court, county court at law,
4-27 or a district court shall pay a $5 graffiti eradication fee as a
5-1 cost of court. The governing body of a municipality by ordinance
5-2 may create a municipal graffiti eradication fund and may require a
5-3 defendant convicted of an offense under Section 28.03(a)(3), Penal
5-4 Code, in a municipal court to pay a $5 graffiti eradication fee as
5-5 a cost of court.
5-6 (b) In this article, a person is considered convicted if:
5-7 (1) a sentence is imposed on the person;
5-8 (2) the person receives community supervision,
5-9 including deferred adjudication; or
5-10 (3) the court defers final disposition of the person's
5-11 case.
5-12 (c) The clerks of the respective courts shall collect the
5-13 costs and pay them to the county or municipal treasurer, as
5-14 appropriate, or to any other official who discharges the duties
5-15 commonly delegated to the county or municipal treasurer, as
5-16 appropriate, for deposit in a fund to be known as the county
5-17 graffiti eradication fund or a fund to be known as the municipal
5-18 graffiti eradication fund, as appropriate. A fund designated by
5-19 this subsection may be used only to:
5-20 (1) repair damage caused by the commission of offenses
5-21 under Section 28.03(a)(3), Penal Code;
5-22 (2) provide educational and intervention programs
5-23 designed to prevent individuals from committing offenses under
5-24 Section 28.03(a)(3), Penal Code; and
5-25 (3) provide to the public rewards for identifying and
5-26 aiding in the apprehension and prosecution of offenders who commit
5-27 offenses under Section 28.03(a)(3), Penal Code.
6-1 (d) The county graffiti eradication fund shall be
6-2 administered by or under the direction of the commissioners court.
6-3 The municipal graffiti eradication fund shall be administered by or
6-4 under the direction of the governing body of the municipality.
6-5 SECTION 3. Section 54.042, Family Code, is amended to read
6-6 as follows:
6-7 Sec. 54.042. License Suspension. (a) A juvenile court, in
6-8 a disposition hearing under Section 54.04 [of this code], shall:
6-9 (1) order the Department of Public Safety to suspend a
6-10 child's driver's license or permit, or if the child does not have a
6-11 license or permit, to deny the issuance of a license or permit to
6-12 the child if the court finds that the child has engaged in conduct
6-13 that violates a law of this state enumerated in Section 521.342(a),
6-14 Transportation Code [24(a-1), Chapter 173, Acts of the 47th
6-15 Legislature, Regular Session, 1941 (Article 6687b, Vernon's Texas
6-16 Civil Statutes)]; or
6-17 (2) notify the Department of Public Safety of the
6-18 adjudication, if the court finds that the child has engaged in
6-19 conduct that violates a law of this state enumerated in Section
6-20 521.372(a), Transportation Code [24B(b), Chapter 173, Acts of the
6-21 47th Legislature, Regular Session, 1941 (Article 6687b, Vernon's
6-22 Texas Civil Statutes)].
6-23 (b) A juvenile court, in a disposition hearing under
6-24 Section 54.04, may order the Department of Public Safety to suspend
6-25 a child's driver's license or permit, or if the child does not have
6-26 a license or permit to deny the issuance of a license or permit to
6-27 the child, if the court finds that the child has engaged in conduct
7-1 that violates Section 28.03(a)(3), Penal Code.
7-2 (c) The order under Subsection (a)(1) [of this section]
7-3 shall specify a period of suspension or denial that is until the
7-4 child reaches the age of 19 or for a period of 365 days, whichever
7-5 is longer.
7-6 (d) [(c)] The order under Subsection (b) shall specify a
7-7 period of suspension or denial that is:
7-8 (1) for a period not to exceed 365 days; or
7-9 (2) if the court finds the child has been previously
7-10 adjudicated as having engaged in conduct violating Section
7-11 28.03(a)(3), Penal Code, until the child reaches the age of 19 or
7-12 for a period not to exceed 365 days, whichever is longer.
7-13 (e) A child whose driver's license or permit has been
7-14 suspended or denied pursuant to this section may, if the child is
7-15 otherwise eligible for, and fulfills the requirements for issuance
7-16 of, a provisional driver's license or permit under Chapter 521,
7-17 Transportation Code [Chapter 173, Acts of the 47th Legislature,
7-18 Regular Session, 1941, as amended (Article 6687b, Vernon's Texas
7-19 Civil Statutes)], apply for and receive an occupational license in
7-20 accordance with the provisions of Subchapter L of that chapter
7-21 [Section 23A, Chapter 173, Acts of the 47th Legislature, Regular
7-22 Session, 1941, as amended (Article 6687b, Vernon's Texas Civil
7-23 Statutes)].
7-24 (f) [(d)] A juvenile court, in a disposition hearing under
7-25 Section 54.04 [of this code], may order the Department of Public
7-26 Safety to suspend a child's driver's license or permit or, if the
7-27 child does not have a license or permit, to deny the issuance of a
8-1 license or permit to the child for a period not to exceed 12 months
8-2 if the court finds that the child has engaged in conduct in need of
8-3 supervision or delinquent conduct other than the conduct described
8-4 by Subsection (a) [of this section].
8-5 (g) [(e)] A juvenile court that places a child on probation
8-6 under Section 54.04 [of this code] may require as a reasonable
8-7 condition of the probation that if the child violates the
8-8 probation, the court may order the Department of Public Safety to
8-9 suspend the child's driver's license or permit or, if the child
8-10 does not have a license or permit, to deny the issuance of a
8-11 license or permit to the child for a period not to exceed 12
8-12 months. The court may make this order if a child that is on
8-13 probation under this condition violates the probation. A
8-14 suspension under this subsection is cumulative of any other
8-15 suspension under this section.
8-16 SECTION 4. Subchapter B, Chapter 485, Health and Safety
8-17 Code, is amended by adding Section 485.019 to read as follows:
8-18 Sec. 485.019. RESTRICTION OF ACCESS TO AEROSOL PAINT.
8-19 (a) A business establishment that holds a permit under Section
8-20 485.012 and that displays aerosol paint shall display the paint:
8-21 (1) in a place that is in the line of sight of a
8-22 cashier or in the line of sight from a workstation normally
8-23 continuously occupied during business hours;
8-24 (2) in a manner that makes the paint accessible to a
8-25 patron of the business establishment only with the assistance of an
8-26 employee of the establishment; or
8-27 (3) in an area electronically protected, or viewed by
9-1 surveillance equipment that is monitored, during business hours.
9-2 (b) This section does not apply to a business establishment
9-3 that has in place a computerized checkout system at the point of
9-4 sale for merchandise that alerts the cashier that a person
9-5 purchasing aerosol paint must be over 18 years of age.
9-6 (c) A court may issue a warning to a business establishment
9-7 or impose a civil penalty of $50 on the business establishment for
9-8 a first violation of this section. After receiving a warning or
9-9 penalty for the first violation, the business establishment is
9-10 liable to the state for a civil penalty of $100 for each subsequent
9-11 violation.
9-12 (d) For the third violation of this section in a calendar
9-13 year, a court may issue an injunction prohibiting the business
9-14 establishment from selling aerosol paint for a period of not more
9-15 than two years. A business establishment that violates the
9-16 injunction is liable to the state for a civil penalty of $100, in
9-17 addition to any other penalty authorized by law, for each day the
9-18 violation continues.
9-19 (e) If a business establishment fails to pay a civil penalty
9-20 under this section, the court may issue an injunction prohibiting
9-21 the establishment from selling aerosol paint until the
9-22 establishment pays the penalty, attorney's fees, and court costs.
9-23 (f) The attorney general or the district or county attorney
9-24 for the county in which a violation of this section is alleged to
9-25 have occurred may file suit for the issuance of a warning, the
9-26 collection of a penalty, or the issuance of an injunction.
9-27 (g) A penalty collected under this section shall be sent to
10-1 the comptroller for deposit in the state treasury to the credit of
10-2 the general revenue fund.
10-3 SECTION 5. Subchapter N, Chapter 521, Transportation Code,
10-4 is amended by adding Section 521.314 to read as follows:
10-5 Sec. 521.314. SUSPENSION FOR CERTAIN CRIMINAL MISCHIEF;
10-6 LICENSE DENIAL. (a) A court may order the department to suspend a
10-7 person's driver's license on conviction of an offense under Section
10-8 28.03(a)(3), Penal Code.
10-9 (b) A court may order the department to deny an application
10-10 for reinstatement or issuance of a driver's license to a person
10-11 convicted of an offense under Section 28.03(a)(3), Penal Code, who,
10-12 on the date of the conviction, did not hold a driver's license.
10-13 (c) The period of suspension under this section is one year
10-14 after the date of a final conviction. The period of license denial
10-15 is one year after the date the person applies to the department for
10-16 reinstatement or issuance of a driver's license.
10-17 (d) The department may not reinstate a driver's license
10-18 suspended under Subsection (a) unless the person whose license was
10-19 suspended applies to the department for reinstatement.
10-20 (e) A person whose license is suspended under Subsection (a)
10-21 remains eligible to receive an occupational license under
10-22 Subchapter L, Chapter 521.
10-23 (f) For the purposes of this section, a person is convicted
10-24 of an offense regardless of whether sentence is imposed or the
10-25 person is placed on community supervision for the offense under
10-26 Article 42.12, Code of Criminal Procedure.
10-27 SECTION 6. (a) The change in law made by this Act applies
11-1 only to an offense committed or, for the purposes of Title 3,
11-2 Family Code, to conduct that occurs on or after the effective date
11-3 of this Act. For purposes of this section, an offense is committed
11-4 on or after the effective date of this Act if every element of the
11-5 offense occurs on or after the effective date and conduct violating
11-6 a penal law of this state occurs on or after the effective date of
11-7 this Act if every element of the violation occurs on or after that
11-8 date.
11-9 (b) An offense committed before the effective date of this
11-10 Act is covered by the law in effect when the offense was committed,
11-11 and the former law is continued in effect for that purpose.
11-12 Conduct that occurs before the effective date of this Act is
11-13 covered by the law in effect at the time the conduct occurred, and
11-14 the former law is continued in effect for that purpose.
11-15 SECTION 7. This Act takes effect September 1, 1997.
11-16 SECTION 8. The importance of this legislation and the
11-17 crowded condition of the calendars in both houses create an
11-18 emergency and an imperative public necessity that the
11-19 constitutional rule requiring bills to be read on three several
11-20 days in each house be suspended, and this rule is hereby suspended.