1-1 By: Shapleigh S.B. No. 758
1-2 (In the Senate - Filed February 25, 1997; February 27, 1997,
1-3 read first time and referred to Committee on Criminal Justice;
1-4 April 1, 1997, reported favorably by the following vote: Yeas 7,
1-5 Nays 0; April 1, 1997, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the offense of criminal mischief involving graffiti and
1-9 the regulation of customer access to aerosol paint.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Section 28.03, Penal Code, is amended by amending
1-12 Subsection (a) and adding Subsections (g) and (h) to read as
1-13 follows:
1-14 (a) A person commits an offense if, without the effective
1-15 consent of the owner:
1-16 (1) he intentionally or knowingly damages or destroys
1-17 the tangible property of the owner;
1-18 (2) he intentionally or knowingly tampers with the
1-19 tangible property of the owner and causes pecuniary loss or
1-20 substantial inconvenience to the owner or a third person; or
1-21 (3) he intentionally or knowingly places graffiti
1-22 [makes markings, including inscriptions, slogans, drawings, or
1-23 paintings,] on the tangible property of the owner.
1-24 (g) The punishment prescribed for an offense under
1-25 Subsection (a)(3) is increased to the punishment for the next
1-26 highest category of offense if the graffiti is placed on public
1-27 property. This subsection does not apply if the punishment for the
1-28 offense, without application of this subsection, is a first degree
1-29 felony.
1-30 (h) In this section:
1-31 (1) "Graffiti" means a word, figure, mark, painting,
1-32 covering, drawing, slogan, design, or other inscription.
1-33 (2) "Public property" means property owned or leased
1-34 by the state or a political subdivision of the state.
1-35 SECTION 2. Subchapter A, Chapter 102, Code of Criminal
1-36 Procedure, is amended by adding Article 102.0171 to read as
1-37 follows:
1-38 Art. 102.0171. COURT COSTS: GRAFFITI ERADICATION FUNDS.
1-39 (a) A defendant convicted of an offense under Section 28.03(a)(3),
1-40 Penal Code, in a justice court, county court, county court at law,
1-41 or district court shall pay a $5 graffiti eradication fee as a cost
1-42 of court. The governing body of a municipality by ordinance may
1-43 create a municipal graffiti eradication fund and may require a
1-44 defendant convicted of an offense under Section 28.03(a)(3), Penal
1-45 Code, in a municipal court to pay a $5 graffiti eradication fee as
1-46 a cost of court.
1-47 (b) In this article, a person is considered convicted if:
1-48 (1) a sentence is imposed on the person;
1-49 (2) the person receives community supervision,
1-50 including deferred adjudication; or
1-51 (3) the court defers final disposition of the person's
1-52 case.
1-53 (c) The clerks of the respective courts shall collect the
1-54 costs and pay them to the county or municipal treasurer, as
1-55 appropriate, or to any other official who discharges the duties
1-56 commonly delegated to the county or municipal treasurer, as
1-57 appropriate, for deposit in a fund to be known as the county
1-58 graffiti eradication fund or a fund to be known as the municipal
1-59 graffiti eradication fund, as appropriate. A fund designated by
1-60 this subsection may be used only to:
1-61 (1) repair damage caused by the commission of offenses
1-62 under Section 28.03(a)(3), Penal Code;
1-63 (2) provide educational and intervention programs
1-64 designed to prevent individuals from committing offenses under
2-1 Section 28.03(a)(3), Penal Code; and
2-2 (3) provide to the public rewards for identifying and
2-3 aiding in the apprehension and prosecution of offenders who commit
2-4 offenses under Section 28.03(a)(3), Penal Code.
2-5 (d) The county graffiti eradication fund shall be
2-6 administered by or under the direction of the commissioners court.
2-7 The municipal graffiti eradication fund shall be administered by or
2-8 under the direction of the governing body of the municipality.
2-9 SECTION 3. Section 54.042, Family Code, is amended to read
2-10 as follows:
2-11 Sec. 54.042. License Suspension. (a) A juvenile court, in
2-12 a disposition hearing under Section 54.04 [of this code], shall:
2-13 (1) order the Department of Public Safety to suspend a
2-14 child's driver's license or permit, or if the child does not have a
2-15 license or permit, to deny the issuance of a license or permit to
2-16 the child if the court finds that the child has engaged in conduct
2-17 that violates:
2-18 (A) a law of this state enumerated in Section
2-19 521.342(a), Transportation Code [24(a-1), Chapter 173, Acts of the
2-20 47th Legislature, Regular Session, 1941 (Article 6687b, Vernon's
2-21 Texas Civil Statutes)]; or
2-22 (B) Section 28.03(a)(3), Penal Code; or
2-23 (2) notify the Department of Public Safety of the
2-24 adjudication, if the court finds that the child has engaged in
2-25 conduct that violates a law of this state enumerated in Section
2-26 521.372(a), Transportation Code [24B(b), Chapter 173, Acts of the
2-27 47th Legislature, Regular Session, 1941 (Article 6687b, Vernon's
2-28 Texas Civil Statutes)].
2-29 (b) The order under Subsection (a)(1)(A) [of this section]
2-30 shall specify a period of suspension or denial that is until the
2-31 child reaches the age of 19 or for a period of 365 days, whichever
2-32 is longer.
2-33 (c) The order under Subsection (a)(1)(B) shall specify a
2-34 period of suspension or denial that is:
2-35 (1) for a period of 365 days; or
2-36 (2) if the court finds the child has been previously
2-37 adjudicated as having engaged in conduct violating Section
2-38 28.03(a)(3), Penal Code, until the child reaches age 19 or for a
2-39 period of 365 days, whichever is longer.
2-40 (d) A child whose driver's license or permit has been
2-41 suspended or denied pursuant to this section may, if the child is
2-42 otherwise eligible for, and fulfils the requirements for issuance
2-43 of, a provisional driver's license or permit under Chapter 521,
2-44 Transportation Code [Chapter 173, Acts of the 47th Legislature,
2-45 Regular Session, 1941, as amended (Article 6687b, Vernon's Texas
2-46 Civil Statutes)], apply for and receive an occupational license in
2-47 accordance with the provisions of Subchapter L of that chapter
2-48 [Section 23A, Chapter 173, Acts of the 47th Legislature, Regular
2-49 Session, 1941, as amended (Article 6687b, Vernon's Texas Civil
2-50 Statutes)].
2-51 (e) [(d)] A juvenile court, in a disposition hearing under
2-52 Section 54.04 [of this code], may order the Department of Public
2-53 Safety to suspend a child's driver's license or permit or, if the
2-54 child does not have a license or permit, to deny the issuance of a
2-55 license or permit to the child for a period not to exceed 12 months
2-56 if the court finds that the child has engaged in conduct in need of
2-57 supervision or delinquent conduct other than the conduct described
2-58 by Subsection (a) [of this section].
2-59 (f) [(e)] A juvenile court that places a child on probation
2-60 under Section 54.04 [of this code] may require as a reasonable
2-61 condition of the probation that if the child violates the
2-62 probation, the court may order the Department of Public Safety to
2-63 suspend the child's driver's license or permit or, if the child
2-64 does not have a license or permit, to deny the issuance of a
2-65 license or permit to the child for a period not to exceed 12
2-66 months. The court may make this order if a child that is on
2-67 probation under this condition violates the probation. A
2-68 suspension under this subsection is cumulative of any other
2-69 suspension under this section.
3-1 SECTION 4. Subchapter B, Chapter 485, Health and Safety
3-2 Code, is amended by adding Section 485.019 to read as follows:
3-3 Sec. 485.019. RESTRICTION OF ACCESS TO AEROSOL PAINT.
3-4 (a) A business establishment that holds a permit under Section
3-5 485.012 and that displays aerosol paint shall display the paint:
3-6 (1) in a place that is in the line of sight of a
3-7 cashier or in the line of sight from a workstation normally
3-8 continuously occupied during business hours;
3-9 (2) in a manner that makes the paint accessible to a
3-10 patron of the business establishment only with the assistance of an
3-11 employee of the establishment; or
3-12 (3) in an area electronically protected, or viewed by
3-13 surveillance equipment that is monitored, during business hours.
3-14 (b) This section does not apply to a business establishment
3-15 that has in place a computerized checkout system at the point of
3-16 sale for merchandise that alerts the cashier that a person
3-17 purchasing aerosol paint must be over 18 years of age.
3-18 (c) A court may issue a warning to a business establishment
3-19 or impose a civil penalty of $50 on the business establishment for
3-20 a first violation of this section. After receiving a warning or
3-21 penalty for the first violation, the business establishment is
3-22 liable to the state for a civil penalty of $100 for each subsequent
3-23 violation.
3-24 (d) For the third violation of this section in a calendar
3-25 year, a court may issue an injunction prohibiting the business
3-26 establishment from selling aerosol paint for a period of not more
3-27 than two years. A business establishment that violates the
3-28 injunction is liable to the state for a civil penalty of $100, in
3-29 addition to any other penalty authorized by law, for each day the
3-30 violation continues.
3-31 (e) If a business establishment fails to pay a civil penalty
3-32 under this section, the court may issue an injunction prohibiting
3-33 the establishment from selling aerosol paint until the
3-34 establishment pays the penalty, attorney's fees, and court costs.
3-35 (f) The attorney general or the district or county attorney
3-36 for the county in which a violation of this section is alleged to
3-37 have occurred may file suit for the issuance of a warning, the
3-38 collection of a penalty, or the issuance of an injunction.
3-39 (g) A penalty collected under this section shall be sent to
3-40 the comptroller for deposit in the state treasury to the credit of
3-41 the general revenue fund.
3-42 SECTION 5. Subchapter O, Chapter 521, Transportation Code,
3-43 is amended by adding Section 521.348 to read as follows:
3-44 Sec. 521.348. SUSPENSION FOR CERTAIN CRIMINAL MISCHIEF;
3-45 LICENSE DENIAL. (a) A person's driver's license is automatically
3-46 suspended on conviction of an offense under Section 28.03(a)(3),
3-47 Penal Code.
3-48 (b) The department may not reinstate or issue a driver's
3-49 license to a person convicted of an offense under Section
3-50 28.03(a)(3), Penal Code, who, on the date of the conviction, did
3-51 not hold a driver's license.
3-52 (c) The period of suspension under this section is one year
3-53 after the date of a final conviction. The period of license denial
3-54 is one year after the date the person applies to the department for
3-55 reinstatement or issuance of a driver's license.
3-56 (d) The department may not reinstate a driver's license
3-57 suspended under Subsection (a) unless the person whose license was
3-58 suspended applies to the department for reinstatement.
3-59 (e) A person whose license is suspended under Subsection (a)
3-60 remains eligible to receive an occupational license under
3-61 Subchapter L, Chapter 521.
3-62 (f) For the purposes of this section, a person is convicted
3-63 of an offense regardless of whether sentence is imposed or the
3-64 person is placed on community supervision for the offense under
3-65 Article 42.12, Code of Criminal Procedure.
3-66 SECTION 6. (a) The change in law made by this Act applies
3-67 only to an offense committed or, for the purposes of Title 3,
3-68 Family Code, to conduct that occurs on or after the effective date
3-69 of this Act. For purposes of this section, an offense is committed
4-1 on or after the effective date of this Act if every element of the
4-2 offense occurs on or after the effective date and conduct violating
4-3 a penal law of this state occurs on or after the effective date of
4-4 this Act if every element of the violation occurs on or after that
4-5 date.
4-6 (b) An offense committed before the effective date of this
4-7 Act is covered by the law in effect when the offense was committed,
4-8 and the former law is continued in effect for that purpose.
4-9 Conduct that occurs before the effective date of this Act is
4-10 covered by the law in effect at the time the conduct occurred, and
4-11 the former law is continued in effect for that purpose.
4-12 SECTION 7. This Act takes effect September 1, 1997.
4-13 SECTION 8. The importance of this legislation and the
4-14 crowded condition of the calendars in both houses create an
4-15 emergency and an imperative public necessity that the
4-16 constitutional rule requiring bills to be read on three several
4-17 days in each house be suspended, and this rule is hereby suspended.
4-18 * * * * *