By Lucio                                         S.B. No. 891

      75R6355 DAK-F                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to common nuisances and the investigation and abatement of

 1-3     those nuisances by the attorney general; making an appropriation.

 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5           SECTION 1.  Section 125.001, Civil Practice and Remedies

 1-6     Code,  as amended by Section 14.03 of Chapter 76, Section 25 of

 1-7     Chapter 318, and Section 2 of Chapter 663, Acts of the 74th

 1-8     Legislature, Regular Session, 1995, is amended to read as follows:

 1-9           Sec. 125.001.  COMMON NUISANCE.  A person who knowingly

1-10     maintains a place to which persons habitually go for the following

1-11     purposes maintains a common nuisance:

1-12                 (1)  [purpose of] prostitution or gambling in violation

1-13     of the Penal Code;

1-14                 (2)  [, for the purpose of] discharge of a firearm in a

1-15     public place in violation of Section 42.01(a)(9), Penal Code;

1-16                 (3)  [, for the purpose of] reckless discharge of a

1-17     firearm as described by Section 42.12, Penal Code;

1-18                 (4)  [, for the purpose of] engaging in organized

1-19     criminal activity as a member of a combination as described by

1-20     Section 71.02, Penal Code;

1-21                 (5)  violations of the following sections of the Penal

1-22     Code:

1-23                       (A)  murder (Section 19.02);

1-24                       (B)  capital murder (Section 19.03);

 2-1                       (C)  attempted murder or capital murder;

 2-2                       (D)  sexual assault (Section 22.011);

 2-3                       (E)  aggravated assault (Section 22.02);

 2-4                       (F)  aggravated sexual assault (Section 22.021);

 2-5                       (G)  robbery (Section 29.02);

 2-6                       (H)  aggravated robbery (Section 29.03); or

 2-7                       (I)  unlawfully carrying a weapon (Section

 2-8     46.02); or

 2-9                 (6)  [, or for the] delivery, possession, manufacture,

2-10     or use of a controlled substance in violation of Chapter 481,

2-11     Health and Safety Code[, maintains a common nuisance].

2-12           SECTION 2.  Section 125.002(c), Civil Practice and Remedies

2-13     Code, is amended to read as follows:

2-14           (c)  The bond must:

2-15                 (1)  be payable to the state at the county seat of the

2-16     county in which the nuisance exists;

2-17                 (2)  be in the penal sum of $15,000 [$10,000]; and

2-18                 (3)  [have sufficient sureties approved by the court;

2-19     and]

2-20                 [(4)]  be conditioned that the property will not be

2-21     used or permitted to be used for a place to which persons

2-22     habitually go for the purpose of an activity listed under Section

2-23     125.001 that the suit was brought to abate  [prostitution or

2-24     gambling in violation of the Penal Code or for delivery or use of a

2-25     controlled substance in violation of Chapter 481, Health and Safety

2-26     Code].

2-27           SECTION 3.  Section 125.003, Civil Practice and Remedies

 3-1     Code, is amended by adding Subsection (f) to read as follows:

 3-2           (f)  In an action brought under this chapter, the court may

 3-3     award a prevailing party investigative costs in addition to costs.

 3-4     In determining the amount of the investigative costs, the court

 3-5     shall consider:

 3-6                 (1)  the time  and labor involved, including the time

 3-7     and expense of travel to investigate;

 3-8                 (2)  the novelty and difficulty of the matter being

 3-9     investigated;

3-10                 (3)  the expertise, reputation, and ability of the

3-11     investigator; and

3-12                 (4)  any other factor considered relevant by the court.

3-13           SECTION 4.  Section 125.004, Civil Practice and Remedies

3-14     Code,  as amended by Sections 14.04-14.06 of Chapter 76, Sections

3-15     26 and 27 of Chapter 318, and Sections 3 and 4 of Chapter 663, Acts

3-16     of the 74th Legislature, Regular Session, 1995, is amended to read

3-17     as follows:

3-18           Sec. 125.004.  EVIDENCE.  (a) Proof that an activity

3-19     described by Section 125.001 [prostitution or gambling in violation

3-20     of the Penal  Code, that discharge of a firearm in a public place

3-21     in violation of Section 42.01(a)(9), Penal Code, that reckless

3-22     discharge of a firearm as described by Section 42.12, Penal Code,

3-23     or that the delivery or use of a controlled substance in violation

3-24     of Chapter 481, Health and Safety Code,] is frequently committed at

3-25     the place involved or that the place is frequently used for an

3-26     activity  described by Section 125.001 [reckless discharge of a

3-27     firearm as described by Section 42.12, Penal Code,] is prima facie

 4-1     evidence  that the proprietor knowingly permitted the activity

 4-2     [act].

 4-3           (b)  Evidence that persons have been convicted of offenses

 4-4     for an activity described by Section 125.001 [gambling, committing

 4-5     prostitution, discharge of a firearm in a public place in violation

 4-6     of Section 42.01(a)(9), Penal Code, reckless discharge of a firearm

 4-7     as described by Section 42.12, Penal Code, engaging in organized

 4-8     criminal activity as a member of a combination as described by

 4-9     Section 71.02, Penal Code, or delivering or using a controlled

4-10     substance in violation of Chapter 481, Health and Safety Code,] in

4-11     the place involved is admissible to show knowledge on the part of

4-12     the defendant that the act occurred.  The originals or certified

4-13     copies of the papers and judgments of those convictions are

4-14     admissible in the suit for injunction, and oral evidence is

4-15     admissible to show that the offense for which a person was

4-16     convicted was committed at the place involved.

4-17           (c)  Evidence of the general reputation of the place involved

4-18     is admissible to show the existence of the nuisance.

4-19           [(g)  Proof that organized criminal activity by a member of a

4-20     combination or a criminal street gang as described by Section

4-21     71.02, Penal Code, is frequently committed at a place or proof that

4-22     a place is frequently used for engaging in organized criminal

4-23     activity by a member of a combination or a criminal street gang as

4-24     described by Section 71.02, Penal Code, is prima facie evidence

4-25     that the proprietor knowingly permitted the act, unless the act

4-26     constitutes conspiring to commit an offense as described by Section

4-27     71.02, Penal Code.]

 5-1           SECTION 5.  Subchapter C, Chapter 125, Civil Practice and

 5-2     Remedies Code, is amended by adding Sections 125.047-125.049 to

 5-3     read as follows:

 5-4           Sec. 125.047.  SUIT ON BOND OR TO ENFORCE INJUNCTION.

 5-5     (a)  If a condition of a bond filed or an injunctive order entered

 5-6     under this subchapter is violated, the attorney general or a

 5-7     district, county, or city attorney of the county in which the

 5-8     property is located shall sue on the bond in the name of the state.

 5-9     In that suit, the whole sum shall be forfeited as a penalty.  On

5-10     violation of any condition of the bond or of the injunctive order

5-11     and subsequent to forfeiture of the bond, the place where the

5-12     nuisance exists shall be ordered closed for one year  from the date

5-13     of the order of bond  forfeiture.  If suit on bond is initiated by

5-14     the attorney general's office, bond is forfeited to the state.  If

5-15     suit on bond is initiated by a district or county attorney, bond is

5-16     forfeited to the county.  If suit on bond is initiated by a city

5-17     attorney, bond is forfeited to the city.

5-18           (b)  The party bringing a suit under Subsection (a) may

5-19     recover reasonable expenses incurred in prosecuting the suit,

5-20     including investigative costs, court costs, reasonable attorney's

5-21     fees, witness fees, and deposition fees.

5-22           Sec. 125.048.  APPEAL.  (a) A person may not continue an

5-23     enjoined activity pending appeal or trial on the merits of an

5-24     injunctive order entered in a suit brought under this subchapter.

5-25           (b)  Not later than the 90th day after the date of the

5-26     injunctive order, the appropriate court of appeals shall hear and

5-27     decide an appeal taken by a party enjoined under this subchapter.

 6-1     If an appeal is not taken by a party temporarily enjoined under

 6-2     this subchapter, the party is entitled to a full trial on the

 6-3     merits not later than the 90th day after the date of the temporary

 6-4     injunctive order.

 6-5           Sec. 125.049.  BOOKSTORE OR MOVIE THEATER.  This subchapter

 6-6     does not allow a suit to enjoin and abate a common nuisance against

 6-7     an enterprise whose sole business is that of a bookstore or movie

 6-8     theater.

 6-9           SECTION 6.  Subchapter A, Chapter 101, Alcoholic Beverage

6-10     Code, is amended by adding Section 101.015 to read as follows:

6-11           Sec. 101.015.  REASONABLE ATTORNEY'S FEES AND INVESTIGATIVE

6-12     COSTS.  In an action brought under this chapter, the court may

6-13     award the prevailing party reasonable attorney's fees and

6-14     investigative costs, in addition to costs.  In determining the

6-15     amount of attorney's fees and investigative costs, the court shall

6-16     consider:

6-17                 (1)  the time and labor involved, including the time

6-18     and expense of travel to investigate;

6-19                 (2)  the novelty and difficulty of the questions;

6-20                 (3)  the expertise, reputation, and ability of the

6-21     attorney; and

6-22                 (4)  any other factor considered relevant by the court.

6-23           SECTION 7.  Section 101.70, Alcoholic Beverage Code, is

6-24     amended by amending Subsection (c) and adding Subsections (e), (f),

6-25     (g), and (h) to read as follows:

6-26           (c)  The plaintiff is not required to give a bond.  The final

6-27     judgment is a judgment in  rem against the property and a judgment

 7-1     against the defendant.  If the court finds against the defendant,

 7-2     on final judgment it shall order that the place where the nuisance

 7-3     exists be closed for one year [or less] and until the owner,

 7-4     lessee, tenant, or occupant gives bond in cash [with sufficient

 7-5     surety as approved by the court] in the penal sum of at least

 7-6     $5,000 [$1,000].  The bond must be payable to the state and

 7-7     conditioned:

 7-8                 (1)  that this code will not be violated;

 7-9                 (2)  that no person will be permitted to resort to the

7-10     place to drink  alcoholic beverages in violation of this code; and

7-11                 (3)  that the defendant will pay all fines, costs, and

7-12     damages assessed against him for any violation of this code.

7-13           (e)  If a condition of a bond filed or an injunctive order

7-14     entered under this section is violated, the attorney general or a

7-15     district, county, or city attorney of the county in which the

7-16     property is located shall sue on the bond in the name of the state.

7-17     In that suit, the whole sum shall be forfeited as a penalty.  On

7-18     violation of any condition of the bond or of the injunctive order

7-19     and subsequent to forfeiture of the bond, the place where the

7-20     nuisance exists shall be ordered closed for one year  from the date

7-21     of the order of bond  forfeiture, and the premises shall be ordered

7-22     sealed shut.  If suit on bond is initiated by the attorney

7-23     general's office, bond is forfeited to the state.  If suit on bond

7-24     is initiated by a district or county attorney, bond is forfeited to

7-25     the county.  If suit on bond is initiated by a city attorney, bond

7-26     is forfeited to the city.

7-27           (f)  Proof that violations of this code are frequently

 8-1     committed at the place involved is prima facie evidence that the

 8-2     proprietor knowingly permitted the act.

 8-3           (g)  Evidence that persons have been convicted of or cited

 8-4     for violating this code at the premises involved is admissible to

 8-5     show knowledge on  the part of the defendant that the act occurred.

 8-6     The originals or certified copies of the papers and judgments of

 8-7     those convictions or citations  are admissible in the suit for

 8-8     injunction, and oral evidence is admissible to show that the

 8-9     offense for which a person was convicted or cited was committed at

8-10     the place involved.

8-11           (h)  Evidence of the general reputation of the place involved

8-12     is admissible to show the existence of the nuisance.

8-13           SECTION 8.  (a)  The attorney general is appropriated all

8-14     fees assessed and all recovered expenses obtained in actions

8-15     brought by the attorney general under Chapter 125, Civil Practice

8-16     and Remedies Code, and Chapter 101, Alcoholic Beverage Code.

8-17           (b)  Recovered expenses appropriated under Subsection (a) of

8-18     this section include investigative costs, witness fees, attorney's

8-19     fees, and deposition expenses.

8-20           (c)  Money appropriated under this section may be spent by

8-21     the attorney general only for the purpose of bringing actions under

8-22     Chapter 125, Civil Practice and Remedies Code, and Chapter 101,

8-23     Alcoholic Beverage Code.

8-24           SECTION 9.  (a)  This Act takes effect September 1, 1997.

8-25           (b)  This Act applies only to conduct that occurs on or after

8-26     the effective date of this Act.  Conduct violating  the penal law

8-27     of this state occurs on or after the effective date of this Act if

 9-1     any element of the violation occurs on or after that date.

 9-2           (c)  Conduct that occurs before the effective date of this

 9-3     Act is governed by the law in effect at the time the conduct

 9-4     occurred, and that law is continued in effect for that purpose.

 9-5           SECTION 10.  The importance of this legislation and the

 9-6     crowded condition of the calendars in both houses create an

 9-7     emergency and an imperative public necessity that the

 9-8     constitutional rule requiring bills to be read on three several

 9-9     days in each house be suspended, and this rule is hereby suspended.