By: Shapleigh S.B. No. 758
97S0499/1
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the offense of criminal mischief involving graffiti and
1-2 the regulation of customer access to aerosol paint.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 28.03, Penal Code, is amended by amending
1-5 Subsection (a) and adding Subsections (g) and (h) to read as
1-6 follows:
1-7 (a) A person commits an offense if, without the effective
1-8 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 (g) The punishment prescribed for an offense under
1-18 Subsection (a)(3) is increased to the punishment for the next
1-19 highest category of offense if the graffiti is placed on public
1-20 property. This subsection does not apply if the punishment for the
1-21 offense, without application of this subsection, is a first degree
1-22 felony.
1-23 (h) In this section:
2-1 (1) "Graffiti" means a word, figure, mark, painting,
2-2 covering, drawing, slogan, design, or other inscription.
2-3 (2) "Public property" means property owned or leased
2-4 by the state or a political subdivision of the state.
2-5 SECTION 2. Subchapter A, Chapter 102, Code of Criminal
2-6 Procedure, is amended by adding Article 102.0171 to read as
2-7 follows:
2-8 Art. 102.0171. COURT COSTS: GRAFFITI ERADICATION FUNDS.
2-9 (a) A defendant convicted of an offense under Section 28.03(a)(3),
2-10 Penal Code, in a justice court, county court, county court at law,
2-11 or district court shall pay a $5 graffiti eradication fee as a cost
2-12 of court. The governing body of a municipality by ordinance may
2-13 create a municipal graffiti eradication fund and may require a
2-14 defendant convicted of an offense under Section 28.03(a)(3), Penal
2-15 Code, in a municipal court to pay a $5 graffiti eradication fee as
2-16 a cost of court.
2-17 (b) In this article, a person is considered convicted if:
2-18 (1) a sentence is imposed on the person;
2-19 (2) the person receives community supervision,
2-20 including deferred adjudication; or
2-21 (3) the court defers final disposition of the person's
2-22 case.
2-23 (c) The clerks of the respective courts shall collect the
2-24 costs and pay them to the county or municipal treasurer, as
2-25 appropriate, or to any other official who discharges the duties
3-1 commonly delegated to the county or municipal treasurer, as
3-2 appropriate, for deposit in a fund to be known as the county
3-3 graffiti eradication fund or a fund to be known as the municipal
3-4 graffiti eradication fund, as appropriate. A fund designated by
3-5 this subsection may be used only to:
3-6 (1) repair damage caused by the commission of offenses
3-7 under Section 28.03(a)(3), Penal Code;
3-8 (2) provide educational and intervention programs
3-9 designed to prevent individuals from committing offenses under
3-10 Section 28.03(a)(3), Penal Code; and
3-11 (3) provide to the public rewards for identifying and
3-12 aiding in the apprehension and prosecution of offenders who commit
3-13 offenses under Section 28.03(a)(3), Penal Code.
3-14 (d) The county graffiti eradication fund shall be
3-15 administered by or under the direction of the commissioners court.
3-16 The municipal graffiti eradication fund shall be administered by or
3-17 under the direction of the governing body of the municipality.
3-18 SECTION 3. Section 54.042, Family Code, is amended to read
3-19 as follows:
3-20 Sec. 54.042. License Suspension. (a) A juvenile court, in
3-21 a disposition hearing under Section 54.04 [of this code], shall:
3-22 (1) order the Department of Public Safety to suspend a
3-23 child's driver's license or permit, or if the child does not have a
3-24 license or permit, to deny the issuance of a license or permit to
3-25 the child if the court finds that the child has engaged in conduct
4-1 that violates:
4-2 (A) a law of this state enumerated in Section
4-3 521.342(a), Transportation Code [24(a-1), Chapter 173, Acts of the
4-4 47th Legislature, Regular Session, 1941 (Article 6687b, Vernon's
4-5 Texas Civil Statutes)]; or
4-6 (B) Section 28.03(a)(3), Penal Code; or
4-7 (2) notify the Department of Public Safety of the
4-8 adjudication, if the court finds that the child has engaged in
4-9 conduct that violates a law of this state enumerated in Section
4-10 521.372(a), Transportation Code [24B(b), Chapter 173, Acts of the
4-11 47th Legislature, Regular Session, 1941 (Article 6687b, Vernon's
4-12 Texas Civil Statutes)].
4-13 (b) The order under Subsection (a)(1)(A) [of this section]
4-14 shall specify a period of suspension or denial that is until the
4-15 child reaches the age of 19 or for a period of 365 days, whichever
4-16 is longer.
4-17 (c) The order under Subsection (a)(1)(B) shall specify a
4-18 period of suspension or denial that is:
4-19 (1) for a period of 365 days; or
4-20 (2) if the court finds the child has been previously
4-21 adjudicated as having engaged in conduct violating Section
4-22 28.03(a)(3), Penal Code, until the child reaches age 19 or for a
4-23 period of 365 days, whichever is longer.
4-24 (d) A child whose driver's license or permit has been
4-25 suspended or denied pursuant to this section may, if the child is
5-1 otherwise eligible for, and fulfils the requirements for issuance
5-2 of, a provisional driver's license or permit under Chapter 521,
5-3 Transportation Code [Chapter 173, Acts of the 47th Legislature,
5-4 Regular Session, 1941, as amended (Article 6687b, Vernon's Texas
5-5 Civil Statutes)], apply for and receive an occupational license in
5-6 accordance with the provisions of Subchapter L of that chapter
5-7 [Section 23A, Chapter 173, Acts of the 47th Legislature, Regular
5-8 Session, 1941, as amended (Article 6687b, Vernon's Texas Civil
5-9 Statutes)].
5-10 (e) [(d)] A juvenile court, in a disposition hearing under
5-11 Section 54.04 [of this code], may order the Department of Public
5-12 Safety to suspend a child's driver's license or permit or, if the
5-13 child does not have a license or permit, to deny the issuance of a
5-14 license or permit to the child for a period not to exceed 12 months
5-15 if the court finds that the child has engaged in conduct in need of
5-16 supervision or delinquent conduct other than the conduct described
5-17 by Subsection (a) [of this section].
5-18 (f) [(e)] A juvenile court that places a child on probation
5-19 under Section 54.04 [of this code] may require as a reasonable
5-20 condition of the probation that if the child violates the
5-21 probation, the court may order the Department of Public Safety to
5-22 suspend the child's driver's license or permit or, if the child
5-23 does not have a license or permit, to deny the issuance of a
5-24 license or permit to the child for a period not to exceed 12
5-25 months. The court may make this order if a child that is on
6-1 probation under this condition violates the probation. A
6-2 suspension under this subsection is cumulative of any other
6-3 suspension under this section.
6-4 SECTION 4. Subchapter B, Chapter 485, Health and Safety
6-5 Code, is amended by adding Section 485.019 to read as follows:
6-6 Sec. 485.019. RESTRICTION OF ACCESS TO AEROSOL PAINT.
6-7 (a) A business establishment that holds a permit under Section
6-8 485.012 and that displays aerosol paint shall display the paint:
6-9 (1) in a place that is in the line of sight of a
6-10 cashier or in the line of sight from a workstation normally
6-11 continuously occupied during business hours;
6-12 (2) in a manner that makes the paint accessible to a
6-13 patron of the business establishment only with the assistance of an
6-14 employee of the establishment; or
6-15 (3) in an area electronically protected, or viewed by
6-16 surveillance equipment that is monitored, during business hours.
6-17 (b) This section does not apply to a business establishment
6-18 that has in place a computerized checkout system at the point of
6-19 sale for merchandise that alerts the cashier that a person
6-20 purchasing aerosol paint must be over 18 years of age.
6-21 (c) A court may issue a warning to a business establishment
6-22 or impose a civil penalty of $50 on the business establishment for
6-23 a first violation of this section. After receiving a warning or
6-24 penalty for the first violation, the business establishment is
6-25 liable to the state for a civil penalty of $100 for each subsequent
7-1 violation.
7-2 (d) For the third violation of this section in a calendar
7-3 year, a court may issue an injunction prohibiting the business
7-4 establishment from selling aerosol paint for a period of not more
7-5 than two years. A business establishment that violates the
7-6 injunction is liable to the state for a civil penalty of $100, in
7-7 addition to any other penalty authorized by law, for each day the
7-8 violation continues.
7-9 (e) If a business establishment fails to pay a civil penalty
7-10 under this section, the court may issue an injunction prohibiting
7-11 the establishment from selling aerosol paint until the
7-12 establishment pays the penalty, attorney's fees, and court costs.
7-13 (f) The attorney general or the district or county attorney
7-14 for the county in which a violation of this section is alleged to
7-15 have occurred may file suit for the issuance of a warning, the
7-16 collection of a penalty, or the issuance of an injunction.
7-17 (g) A penalty collected under this section shall be sent to
7-18 the comptroller for deposit in the state treasury to the credit of
7-19 the general revenue fund.
7-20 SECTION 5. Subchapter O, Chapter 521, Transportation Code,
7-21 is amended by adding Section 521.348 to read as follows:
7-22 Sec. 521.348. SUSPENSION FOR CERTAIN CRIMINAL MISCHIEF;
7-23 LICENSE DENIAL. (a) A person's driver's license is automatically
7-24 suspended on conviction of an offense under Section 28.03(a)(3),
7-25 Penal Code.
8-1 (b) The department may not reinstate or issue a driver's
8-2 license to a person convicted of an offense under Section
8-3 28.03(a)(3), Penal Code, who, on the date of the conviction, did
8-4 not hold a driver's license.
8-5 (c) The period of suspension under this section is one year
8-6 after the date of a final conviction. The period of license denial
8-7 is one year after the date the person applies to the department for
8-8 reinstatement or issuance of a driver's license.
8-9 (d) The department may not reinstate a driver's license
8-10 suspended under Subsection (a) unless the person whose license was
8-11 suspended applies to the department for reinstatement.
8-12 (e) A person whose license is suspended under Subsection (a)
8-13 remains eligible to receive an occupational license under
8-14 Subchapter L, Chapter 521.
8-15 (f) For the purposes of this section, a person is convicted
8-16 of an offense regardless of whether sentence is imposed or the
8-17 person is placed on community supervision for the offense under
8-18 Article 42.12, Code of Criminal Procedure.
8-19 SECTION 6. (a) The change in law made by this Act applies
8-20 only to an offense committed or, for the purposes of Title 3,
8-21 Family Code, to conduct that occurs on or after the effective date
8-22 of this Act. For purposes of this section, an offense is committed
8-23 on or after the effective date of this Act if every element of the
8-24 offense occurs on or after the effective date and conduct violating
8-25 a penal law of this state occurs on or after the effective date of
9-1 this Act if every element of the violation occurs on or after that
9-2 date.
9-3 (b) An offense committed before the effective date of this
9-4 Act is covered by the law in effect when the offense was committed,
9-5 and the former law is continued in effect for that purpose.
9-6 Conduct that occurs before the effective date of this Act is
9-7 covered by the law in effect at the time the conduct occurred, and
9-8 the former law is continued in effect for that purpose.
9-9 SECTION 7. This Act takes effect September 1, 1997.
9-10 SECTION 8. The importance of this legislation and the
9-11 crowded condition of the calendars in both houses create an
9-12 emergency and an imperative public necessity that the
9-13 constitutional rule requiring bills to be read on three several
9-14 days in each house be suspended, and this rule is hereby suspended.