By Duncan S.B. No. 1629
75R6170 GWK-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to offenses under the Penal Code commonly associated with
1-3 criminal street gang activity, to law enforcement provisions for
1-4 investigating those offenses, and to other substantive changes and
1-5 technical corrections in the Penal Code.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. Section 7.02(a), Penal Code, is amended to read
1-8 as follows:
1-9 (a) A person is criminally responsible for an offense
1-10 committed by the conduct of another if:
1-11 (1) acting with the kind of culpability required for
1-12 the offense, he causes or aids an innocent or nonresponsible person
1-13 to engage in conduct prohibited by the definition of the offense;
1-14 (2) acting with intent to promote or assist the
1-15 commission of the offense, he coerces, solicits, encourages,
1-16 directs, aids, or attempts to aid the other person to commit the
1-17 offense; or
1-18 (3) having a legal duty to prevent commission of the
1-19 offense and acting with intent to promote or assist its commission,
1-20 he fails to make a reasonable effort to prevent commission of the
1-21 offense.
1-22 SECTION 2. Section 8.07(a), Penal Code, is amended to read
1-23 as follows:
1-24 (a) A person may not be prosecuted for or convicted of any
2-1 offense that he committed when younger than 15 years of age except:
2-2 (1) perjury and aggravated perjury when it appears by
2-3 proof that he had sufficient discretion to understand the nature
2-4 and obligation of an oath;
2-5 (2) [a violation of a penal statute cognizable under
2-6 Chapter 302, Acts of the 55th Legislature, Regular Session, 1957
2-7 (Article 6701l-4, Vernon's Texas Civil Statutes);]
2-8 [(3) a violation of a motor vehicle traffic ordinance
2-9 of an incorporated city or town in this state;]
2-10 [(4)] a misdemeanor punishable by fine only other than
2-11 public intoxication;
2-12 [(5) a violation of a penal ordinance of a political
2-13 subdivision;] or
2-14 (3) a violation punishable as a felony under Section
2-15 71.02 or [(6)] a violation of a penal statute that is, or is a
2-16 lesser included offense of, a capital felony, an aggravated
2-17 controlled substance felony, or a felony of the first degree for
2-18 which the person is transferred to the court under Section 54.02,
2-19 Family Code, for prosecution if the person committed the offense
2-20 when 14 years of age or older.
2-21 SECTION 3. Section 12.03, Penal Code, is amended by adding
2-22 Subsection (d) to read as follows:
2-23 (d) An offense that is punishable one category lower than a
2-24 state jail felony is a Class A misdemeanor.
2-25 SECTION 4. Section 12.04, Penal Code, is amended by adding
2-26 Subsection (c) to read as follows:
2-27 (c) An offense punishable one category higher than a Class A
3-1 misdemeanor is a state jail felony.
3-2 SECTION 5. Section 15.01(d), Penal Code, is amended to read
3-3 as follows:
3-4 (d) An offense under this section is one category lower than
3-5 the offense attempted[, and if the offense attempted is a state
3-6 jail felony, the offense is a Class A misdemeanor].
3-7 SECTION 6. Section 15.02(d), Penal Code, is amended to read
3-8 as follows:
3-9 (d) An offense under this section is one category lower than
3-10 the most serious felony that is the object of the conspiracy[, and
3-11 if the most serious felony that is the object of the conspiracy is
3-12 a state jail felony, the offense is a Class A misdemeanor].
3-13 SECTION 7. Section 15.03(d), Penal Code, is amended to read
3-14 as follows:
3-15 (d) An offense under this section is one category lower than
3-16 the offense solicited[:]
3-17 [(1) a felony of the first degree if the offense
3-18 solicited is a capital offense; or]
3-19 [(2) a felony of the second degree if the offense
3-20 solicited is a felony of the first degree].
3-21 SECTION 8. Section 15.031, Penal Code, is amended to read as
3-22 follows:
3-23 Sec. 15.031. CRIMINAL SOLICITATION OF A CHILD [MINOR].
3-24 (a) A person commits an offense if, with intent that a felony [an
3-25 offense listed by Section 3g(a)(1), Article 42.12, Code of
3-26 Criminal Procedure,] be committed, the person requests, commands,
3-27 or attempts to induce a child [minor] to engage in specific conduct
4-1 that, under the circumstances surrounding the actor's conduct as
4-2 the actor believes them to be, would constitute the felony [an
4-3 offense listed by Section 3g(a)(1), Article 42.12], or make the
4-4 minor a party to the commission of the felony [an offense listed by
4-5 Section 3g(a)(1), Article 42.12].
4-6 (b) A person may not be convicted under this section on the
4-7 uncorroborated testimony of the child [minor] allegedly solicited
4-8 unless the solicitation is made under circumstances strongly
4-9 corroborative of both the solicitation itself and the actor's
4-10 intent that the child [minor] act on the solicitation.
4-11 (c) It is no defense to prosecution under this section that:
4-12 (1) the child [minor] solicited is not criminally
4-13 responsible for the offense solicited;
4-14 (2) the child [minor] solicited has been acquitted,
4-15 has not been prosecuted or convicted, has been convicted of a
4-16 different offense or of a different type or class of offense, or is
4-17 immune from prosecution;
4-18 (3) the actor belongs to a class of persons that by
4-19 definition of the offense solicited is legally incapable of
4-20 committing the offense in an individual capacity; or
4-21 (4) the offense solicited was actually committed.
4-22 (d) An offense under this section is one category lower than
4-23 the solicited offense.
4-24 (e) In this section, "child" ["minor"] means an individual
4-25 younger than 17 years of age.
4-26 SECTION 9. Sections 15.04(b) and (d), Penal Code, are
4-27 amended to read as follows:
5-1 (b) It is an affirmative defense to prosecution under
5-2 Section 15.02, [or] 15.03, or 15.031 that under circumstances
5-3 manifesting a voluntary and complete renunciation of his criminal
5-4 objective the actor countermanded his solicitation or withdrew from
5-5 the conspiracy before commission of the object offense and took
5-6 further affirmative action that prevented the commission of the
5-7 object offense.
5-8 (d) At the punishment stage of a trial resulting in a
5-9 conviction for an offense that was an object of a preparatory
5-10 offense under this chapter, the defendant may raise the issue of
5-11 whether in voluntary and complete renunciation of the preparatory
5-12 and object offenses the defendant abandoned the defendant's
5-13 [Evidence that the defendant renounced his criminal objective by
5-14 abandoning his] criminal conduct, withdrew from the conspiracy, or
5-15 countermanded the defendant's [countermanding his] solicitation[,
5-16 or withdrawing from the conspiracy] before the object [criminal]
5-17 offense was committed and made substantial effort to prevent the
5-18 commission of the object offense. If the defendant proves the
5-19 issue in the affirmative by a preponderance of the evidence [shall
5-20 be admissible as mitigation at the hearing on punishment if he has
5-21 been found guilty of criminal attempt, criminal solicitation, or
5-22 criminal conspiracy; and in the event of a finding of renunciation
5-23 under this subsection], the punishment shall be one category
5-24 [grade] lower than that provided for the offense committed.
5-25 SECTION 10. Section 15.05, Penal Code, is amended to read as
5-26 follows:
5-27 Sec. 15.05. NO OFFENSE. (a) Attempt or conspiracy to
6-1 commit, or solicitation of, a preparatory offense defined in this
6-2 chapter is not an offense.
6-3 (b) Criminal attempt of a misdemeanor punishable by fine
6-4 only is not an offense.
6-5 SECTION 11. Chapter 16, Penal Code, is amended to read as
6-6 follows:
6-7 CHAPTER 16. CRIMINAL INSTRUMENTS AND
6-8 ELECTRONIC SURVEILLANCE [INTERCEPTION OF
6-9 WIRE OR ORAL COMMUNICATION]
6-10 SUBCHAPTER A. CRIMINAL INSTRUMENTS
6-11 Sec. 16.01. DEFINITIONS. In this subchapter, "criminal
6-12 instrument" means anything, the possession, manufacture, or sale of
6-13 which is not otherwise an offense, that:
6-14 (1) is specially designed, made, or adapted for use in
6-15 the commission of an offense; or
6-16 (2) in the manner of its use or intended use is
6-17 reasonably capable of effecting the commission of an offense.
6-18 Sec. 16.011. POSSESSION [UNLAWFUL USE] OF CRIMINAL
6-19 INSTRUMENT. (a) A person commits an offense if[:]
6-20 [(1)] he possesses a criminal instrument with intent
6-21 to use it in the commission of an offense[; or]
6-22 [(2) with knowledge of its character and with intent
6-23 to use or aid or permit another to use in the commission of an
6-24 offense, he manufactures, adapts, sells, installs, or sets up a
6-25 criminal instrument].
6-26 (b) [For the purpose of this section, "criminal instrument"
6-27 means anything, the possession, manufacture, or sale of which is
7-1 not otherwise an offense, that is specially designed, made, or
7-2 adapted for use in the commission of an offense.]
7-3 [(c)] An offense under this section [Subsection (a)(1)] is
7-4 one category lower than the most serious offense intended.
7-5 Sec. 16.012. MAKING OR USING CRIMINAL INSTRUMENT. (a) A
7-6 person commits an offense if the person makes, manufactures,
7-7 adapts, sells, installs, or uses a criminal instrument with
7-8 knowledge of its character and with intent to use or aid or permit
7-9 another to use it in the commission of an offense.
7-10 (b) An offense under this section [Subsection (a)(2)] is a
7-11 state jail felony.
7-12 Sec. 16.013. PROSECUTION UNDER OTHER STATUTES. A person
7-13 whose conduct violates this subchapter and another offense
7-14 described by a penal statute may be prosecuted under either statute
7-15 or both statutes.
7-16 SUBCHAPTER B. ELECTRONIC SURVEILLANCE
7-17 Sec. 16.02. UNLAWFUL INTERCEPTION, USE, OR DISCLOSURE OF
7-18 WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS. (a) In this section,
7-19 "covert entry," "communication common carrier," "contents,"
7-20 "electronic, mechanical, or other device," "intercept,"
7-21 "investigative or law enforcement officer," "oral communication,"
7-22 "electronic communication," "readily accessible to the general
7-23 public," and "wire communication" have the meanings given those
7-24 terms in Article 18.20, Code of Criminal Procedure.
7-25 (b) A person commits an offense if he:
7-26 (1) intentionally intercepts, endeavors to intercept,
7-27 or procures another person to intercept or endeavor to intercept a
8-1 wire, oral, or electronic communication;
8-2 (2) intentionally discloses or endeavors to disclose
8-3 to another person the contents of a wire, oral, or electronic
8-4 communication if he knows or has reason to know the information was
8-5 obtained through the interception of a wire, oral, or electronic
8-6 communication in violation of this subsection;
8-7 (3) intentionally uses or endeavors to use the
8-8 contents of a wire, oral, or electronic communication if he knows
8-9 or is reckless about whether the information was obtained through
8-10 the interception of a wire, oral, or electronic communication in
8-11 violation of this subsection;
8-12 (4) knowingly or intentionally effects a covert entry
8-13 for the purpose of intercepting wire, oral, or electronic
8-14 communications without court order or authorization; or
8-15 (5) intentionally uses, endeavors to use, or procures
8-16 any other person to use or endeavor to use any electronic,
8-17 mechanical, or other device to intercept any oral communication
8-18 when the device:
8-19 (A) is affixed to, or otherwise transmits a
8-20 signal through a wire, cable, or other connection used in wire
8-21 communications; or
8-22 (B) transmits communications by radio or
8-23 interferes with the transmission of communications by radio.
8-24 (c) It is an affirmative defense to prosecution under
8-25 Subsection (b) that:
8-26 (1) an operator of a switchboard or an officer,
8-27 employee, or agent of a communication common carrier whose
9-1 facilities are used in the transmission of a wire or electronic
9-2 communication intercepts a communication or discloses or uses an
9-3 intercepted communication in the normal course of employment while
9-4 engaged in an activity that is a necessary incident to the
9-5 rendition of service or to the protection of the rights or property
9-6 of the carrier of the communication, unless the interception
9-7 results from the communication common carrier's use of service
9-8 observing or random monitoring for purposes other than mechanical
9-9 or service quality control checks;
9-10 (2) an officer, employee, or agent of a communication
9-11 common carrier provides information, facilities, or technical
9-12 assistance to an investigative or law enforcement officer who is
9-13 authorized as provided by this article to intercept a wire, oral,
9-14 or electronic communication;
9-15 (3) a person acting under color of law intercepts a
9-16 wire, oral, or electronic communication if the person is a party to
9-17 the communication or if one of the parties to the communication has
9-18 given prior consent to the interception;
9-19 (4) a person not acting under color of law intercepts
9-20 a wire, oral, or electronic communication if the person is a party
9-21 to the communication or if one of the parties to the communication
9-22 has given prior consent to the interception unless the
9-23 communication is intercepted for the purpose of committing any
9-24 criminal or tortious act in violation of the constitution or laws
9-25 of the United States or of this state or for the purpose of
9-26 committing any other injurious act;
9-27 (5) a person acting under color of law intercepts a
10-1 wire, oral, or electronic communication if:
10-2 (A) prior consent for the interception has been
10-3 given by a magistrate;
10-4 (B) an immediate life-threatening situation
10-5 exists;
10-6 (C) the person is a member of a law enforcement
10-7 unit specially trained to:
10-8 (i) respond to and deal with
10-9 life-threatening situations; or
10-10 (ii) install electronic, mechanical, or
10-11 other devices; and
10-12 (D) the interception ceases immediately on
10-13 termination of the life-threatening situation;
10-14 (6) an officer, employee, or agent of the Federal
10-15 Communications Commission intercepts a communication transmitted by
10-16 radio or discloses or uses an intercepted communication in the
10-17 normal course of employment and in the discharge of the monitoring
10-18 responsibilities exercised by the Federal Communications Commission
10-19 in the enforcement of Chapter 5, Title 47, United States Code;
10-20 (7) a person intercepts or obtains access to an
10-21 electronic communication that was made through an electronic
10-22 communication system that is configured to permit the communication
10-23 to be readily accessible to the general public;
10-24 (8) a person intercepts radio communication that is
10-25 transmitted:
10-26 (A) by a station for the use of the general
10-27 public;
11-1 (B) to ships, aircraft, vehicles, or persons in
11-2 distress;
11-3 (C) by a governmental, law enforcement, civil
11-4 defense, private land mobile, or public safety communications
11-5 system that is readily accessible to the general public;
11-6 (D) by a station operating on an authorized
11-7 frequency within the bands allocated to the amateur, citizens band,
11-8 or general mobile radio services; or
11-9 (E) by a marine or aeronautical communications
11-10 system;
11-11 (9) a person intercepts a wire or electronic
11-12 communication the transmission of which causes harmful interference
11-13 to a lawfully operating station or consumer electronic equipment,
11-14 to the extent necessary to identify the source of the interference;
11-15 (10) a user of the same frequency intercepts a radio
11-16 communication made through a system that uses frequencies monitored
11-17 by individuals engaged in the provision or the use of the system,
11-18 if the communication is not scrambled or encrypted; or
11-19 (11) a provider of electronic communications service
11-20 records the fact that a wire or electronic communication was
11-21 initiated or completed in order to protect the provider, another
11-22 provider furnishing service towards the completion of the
11-23 communication, or a user of that service from fraudulent, unlawful,
11-24 or abusive use of the service.
11-25 (d)(1) A person commits an offense if he:
11-26 (A) intentionally manufactures, assembles,
11-27 possesses, or sells an electronic, mechanical, or other device
12-1 knowing or having reason to know that the device is designed
12-2 primarily for nonconsensual interception of wire, electronic, or
12-3 oral communications and that the device or a component of the
12-4 device has been or will be used for an unlawful purpose; or
12-5 (B) places in a newspaper, magazine, handbill,
12-6 or other publication an advertisement of an electronic, mechanical,
12-7 or other device:
12-8 (i) knowing or having reason to know that
12-9 the device is designed primarily for nonconsensual interception of
12-10 wire, electronic, or oral communications;
12-11 (ii) promoting the use of the device for
12-12 the purpose of nonconsensual interception of wire, electronic, or
12-13 oral communications; or
12-14 (iii) knowing or having reason to know
12-15 that the advertisement will promote the use of the device for the
12-16 purpose of nonconsensual interception of wire, electronic, or oral
12-17 communications.
12-18 (2) An offense under Subdivision (1) is a state jail
12-19 felony.
12-20 (e) It is an affirmative defense to prosecution under
12-21 Subsection (d) that the manufacture, assembly, possession, or sale
12-22 of an electronic, mechanical, or other device that is designed
12-23 primarily for the purpose of nonconsensual interception of wire,
12-24 electronic, or oral communication is by:
12-25 (1) a communication common carrier or a provider of
12-26 wire or electronic communications service or an officer, agent, or
12-27 employee of or a person under contract with a communication common
13-1 carrier or provider acting in the normal course of the provider's
13-2 or communication carrier's business;
13-3 (2) an officer, agent, or employee of a person under
13-4 contract with, bidding on contracts with, or doing business with
13-5 the United States or this state acting in the normal course of the
13-6 activities of the United States or this state; or
13-7 (3) a law enforcement agency that has an established
13-8 unit specifically designated to respond to and deal with
13-9 life-threatening situations or specifically trained to install
13-10 wire, oral, or electronic communications intercept equipment.
13-11 (f) Except as provided by Subsections (d) and (h), an
13-12 offense under this section is a felony of the second degree.
13-13 (g) For purposes of this section:
13-14 (1) An immediate life-threatening situation exists
13-15 when human life is directly threatened in either a hostage or
13-16 barricade situation.
13-17 (2) "Member of a law enforcement unit specially
13-18 trained to respond to and deal with life-threatening situations"
13-19 means a peace officer who has received a minimum of 40 hours a year
13-20 of training in hostage and barricade suspect situations. This
13-21 training must be evidenced by the submission of appropriate
13-22 documentation to the Commission on Law Enforcement Officer
13-23 Standards and Education.
13-24 (h)(1) A person commits an offense if, knowing that a
13-25 government attorney or an investigative or law enforcement officer
13-26 has been authorized or has applied for authorization to intercept
13-27 wire, electronic, or oral communications, the person obstructs,
14-1 impedes, prevents, gives notice to another of, or attempts to give
14-2 notice to another of the interception.
14-3 (2) An offense under this subsection is a state jail
14-4 felony.
14-5 (i) This section expires September 1, 2005, and shall not be
14-6 in force on and after that date.
14-7 Sec. 16.03. UNLAWFUL USE OF PEN REGISTER OR TRAP AND TRACE
14-8 DEVICE. (a) Except as authorized by a court order obtained under
14-9 Article 18.21, Code of Criminal Procedure, or in an emergency under
14-10 the circumstances described and permitted under that article, a
14-11 person commits an offense if he knowingly installs or utilizes a
14-12 pen register or trap and trace device to record telephone numbers
14-13 dialed from or to a telephone instrument.
14-14 (b) In this section, "authorized peace officer,"
14-15 "communications common carrier," "pen register," and "trap and
14-16 trace device" have the meanings assigned by Article 18.21, Code of
14-17 Criminal Procedure.
14-18 (c) It is an exception to the application of Subsection (a)
14-19 that an officer, employee, or agent of a communications common
14-20 carrier installs or utilizes a device or equipment to record the
14-21 numbers dialed from or to a telephone instrument in the normal
14-22 course of business of the carrier, for the protection of property
14-23 or services provided by the carrier, or assists an authorized peace
14-24 officer in executing an order issued under Article 18.21, Code of
14-25 Criminal Procedure.
14-26 (d) It is an exception to the application of Subsection (a)
14-27 that the installation or utilization of a pen register or trap and
15-1 trace device was made by an officer, agent, or employee of a lawful
15-2 enterprise while engaged in an activity that is a necessary
15-3 incident to the rendition of service or to the protection of
15-4 property of or services provided by the enterprise, and was not
15-5 made for the purpose of gathering information for a law enforcement
15-6 agency or private investigative agency, other than information
15-7 related to the theft of communication or information services
15-8 provided by the enterprise.
15-9 (e) An offense under this section is a state jail felony.
15-10 Sec. 16.04. UNLAWFUL ACCESS TO STORED COMMUNICATIONS.
15-11 (a) In this section, "electronic communication," "electronic
15-12 storage," "user," and "wire communication" have the meanings
15-13 assigned to those terms in Article 18.21, Code of Criminal
15-14 Procedure.
15-15 (b) A person commits an offense if the person obtains,
15-16 alters, or prevents authorized access to a wire or electronic
15-17 communication while the communication is in electronic storage by:
15-18 (1) intentionally obtaining access without
15-19 authorization to a facility through which a wire or electronic
15-20 communications service is provided; or
15-21 (2) intentionally exceeding an authorization for
15-22 access to a facility through which a wire or electronic
15-23 communications service is provided.
15-24 (c) Except as provided by Subsection (d), an offense under
15-25 Subsection (b) is a Class A misdemeanor.
15-26 (d) If committed to obtain a benefit or to harm another, an
15-27 offense is a state jail felony.
16-1 (e) It is an exception to the application of Subsection (b)
16-2 that the conduct was authorized by:
16-3 (1) the provider of the wire or electronic
16-4 communications service;
16-5 (2) the user of the wire or electronic communications
16-6 service; or
16-7 (3) Article 18.21, Code of Criminal Procedure.
16-8 Sec. 16.05. ILLEGAL DIVULGENCE OF PUBLIC COMMUNICATIONS.
16-9 (a) In this section, "electronic communication," "electronic
16-10 communications service," and "electronic communications system"
16-11 have the meanings given those terms in Article 18.20, Code of
16-12 Criminal Procedure.
16-13 (b) Except as provided by Subsection (c), a person who
16-14 provides electronic communications service to the public commits an
16-15 offense if he intentionally divulges the contents of a
16-16 communication, other than a communication to that person or that
16-17 person's agent, while the communication is in transmission on that
16-18 service, to any person other than the addressee or the intended
16-19 recipient of the communication or the addressee's or intended
16-20 recipient's agent.
16-21 (c) A person who provides electronic communications service
16-22 to the public may divulge the contents of a communication:
16-23 (1) as authorized by federal or state law;
16-24 (2) to a person employed, authorized, or whose
16-25 facilities are used to forward the communication to the
16-26 communication's destination; or
16-27 (3) to a law enforcement agency if the contents were
17-1 obtained by the service provider and the contents appear to pertain
17-2 to the commission of a crime.
17-3 (d) Except as provided by Subsections (e) and (f), an
17-4 offense under Subsection (b) is a state jail felony.
17-5 (e) If committed for a tortious or illegal purpose or to
17-6 gain a benefit, an offense under Subsection (b) that involves a
17-7 radio communication that is not scrambled or encrypted:
17-8 (1) is a Class A misdemeanor if the communication is
17-9 not the radio portion of a cellular telephone communication, a
17-10 public land mobile radio service communication, or a paging service
17-11 communication; or
17-12 (2) is a Class C misdemeanor if the communication is
17-13 the radio portion of a cellular telephone communication, a public
17-14 and mobile radio service or communication or a paging service
17-15 communication.
17-16 (f)(1) A person who engages in conduct constituting an
17-17 offense under Subsection (b) that is not for a tortious or illegal
17-18 purpose or for the purpose of direct or indirect commercial
17-19 advantage or private commercial gain and involves a radio
17-20 communication that is transmitted on frequencies allocated under
17-21 Subpart D or Part 74 of the rules of the Federal Communications
17-22 Commission and that is not scrambled or encrypted shall be subject
17-23 to suit by the federal or state government in a court of competent
17-24 jurisdiction for appropriate injunctive relief. If it is shown on
17-25 the trial of the civil suit that the defendant has been convicted
17-26 of an offense under Subsection (b) or that the defendant has been
17-27 found liable in a civil action under Article 18.20, Code of
18-1 Criminal Procedure, in addition to granting injunctive relief the
18-2 court shall impose a civil penalty of $500 on the defendant.
18-3 (2) A court may use any means within the court's
18-4 authority to enforce an injunction issued under Subdivision (1) and
18-5 shall impose a fine as for contempt of court of not less than $500
18-6 for each violation of the injunction.
18-7 SECTION 12. Section 19.03(a), Penal Code, is amended to read
18-8 as follows:
18-9 (a) A person commits an offense if he commits murder as
18-10 defined under Section 19.02(b)(1) and:
18-11 (1) the person murders a peace officer or fireman who
18-12 is acting in the lawful discharge of an official duty and who the
18-13 person knows is a peace officer or fireman;
18-14 (2) the person intentionally commits the murder in the
18-15 course of committing or attempting to commit kidnapping, burglary,
18-16 robbery, aggravated sexual assault, arson, or obstruction or
18-17 retaliation;
18-18 (3) the person commits the murder for remuneration or
18-19 the promise of remuneration or employs another to commit the murder
18-20 for remuneration or the promise of remuneration;
18-21 (4) the person commits the murder while escaping or
18-22 attempting to escape from a penal institution;
18-23 (5) the person, while incarcerated in a penal
18-24 institution, murders another[:]
18-25 [(A)] who is employed in the operation of the
18-26 penal institution; [or]
18-27 [(B) with the intent to establish, maintain, or
19-1 participate in a combination or in the profits of a combination;]
19-2 (6) the person:
19-3 (A) while incarcerated for an offense under this
19-4 section or Section 19.02, murders another; or
19-5 (B) while serving a sentence of life
19-6 imprisonment or a term of 99 years for an offense under Section
19-7 20.04, 22.021, or 29.03, murders another;
19-8 (7) the person murders more than one person:
19-9 (A) during the same criminal transaction; or
19-10 (B) during different criminal transactions but
19-11 the murders are committed pursuant to the same scheme or course of
19-12 conduct; [or]
19-13 (8) the person murders an individual younger than
19-14 [under] six years of age; or
19-15 (9) the person murders another with the intent to
19-16 establish, maintain, or participate in a:
19-17 (A) combination or in the profits of a
19-18 combination; or
19-19 (B) criminal street gang or in the profits of a
19-20 criminal street gang.
19-21 SECTION 13. Section 71.01, Penal Code, is amended to read as
19-22 follows:
19-23 Sec. 71.01. DEFINITIONS. In this chapter,
19-24 (a) "Combination" means three or more persons who
19-25 collaborate in carrying on criminal activities, although:
19-26 (1) participants may not know each other's identity;
19-27 (2) membership in the combination may change from time
20-1 to time; and
20-2 (3) participants may stand in a wholesaler-retailer or
20-3 other arm's-length relationship in illicit distribution operations.
20-4 (b) "Conspires to commit" means that a person agrees with
20-5 one or more persons that they or one or more of them engage in
20-6 conduct that would constitute the offense and that person and one
20-7 or more of them perform an overt act in pursuance of the agreement.
20-8 An agreement constituting conspiring to commit may be inferred from
20-9 the acts of the parties.
20-10 (c) "Profits" means property constituting or derived from
20-11 any proceeds obtained, directly or indirectly, from an offense
20-12 listed in Section 71.02.
20-13 (d) "Criminal street gang" means a formal or informal
20-14 ongoing organization, association, or group that:
20-15 (1) has as one of its primary activities the
20-16 commission of criminal acts or delinquent conduct;
20-17 (2) consists of three or more persons having a common
20-18 name or common identifying sign, color, or symbol or an
20-19 identifiable leadership; and
20-20 (3) has two or more members or associates:
20-21 (A) who individually or collectively engage in
20-22 or have engaged in a pattern of criminal street gang activity; or
20-23 (B) who continuously or regularly associate in
20-24 the commission of criminal activities.
20-25 (e) "Criminal street gang member" means an individual who is
20-26 a member of a criminal street gang or who meets two or more of the
20-27 following criteria:
21-1 (1) admits to criminal street gang membership;
21-2 (2) is identified as a criminal street gang member by:
21-3 (A) a parent or guardian;
21-4 (B) an informant:
21-5 (i) who on the basis of identity and
21-6 reliability is shown to be creditable; or
21-7 (ii) who is of previously untested
21-8 reliability but whose identification is reasonably corroborated by
21-9 independent information; or
21-10 (C) physical evidence, such as photographs or
21-11 other documentation;
21-12 (3) resides in or frequents a criminal street gang's
21-13 area, adopts the criminal street gang's style of dress or use of
21-14 hand signs or tattoos, and regularly associates with criminal
21-15 street gang members; or
21-16 (4) has been arrested or taken into custody by a peace
21-17 officer on two or more occasions in the company of one identified
21-18 for an offense that is consistent with a pattern of criminal street
21-19 gang activity.
21-20 (f) "Pattern of criminal street gang activity" means, on
21-21 separate occasions within a three-year period, the commission,
21-22 attempted commission, conspiracy to commit, or solicitation of:
21-23 (A) two or more felony offenses or three or more
21-24 serious misdemeanor offenses;
21-25 (B) one felony and two serious misdemeanor
21-26 offenses; or
21-27 (C) the comparable number of delinquent acts or
22-1 other violations of law that would be felonies or serious
22-2 misdemeanors if committed by an adult.
22-3 (g) "Criminal street gang associate" means a person who:
22-4 (1) admits to engaging in criminal street gang
22-5 activities; or
22-6 (2) meets any single defining criterion for criminal
22-7 street gang membership described by Subsection (e).
22-8 (h) "Serious misdemeanor" means a misdemeanor punishable by
22-9 confinement in a county jail.
22-10 SECTION 14. Section 71.02(a), Penal Code, is amended to read
22-11 as follows:
22-12 (a) A person commits an offense if, with the intent to
22-13 establish, maintain, or participate in a combination or in the
22-14 profits of a combination or as a member of a criminal street gang,
22-15 he commits or conspires to commit one or more of the following:
22-16 (1) murder, capital murder, arson, aggravated robbery,
22-17 robbery, burglary, theft, aggravated kidnapping, kidnapping,
22-18 aggravated assault, aggravated sexual assault, sexual assault,
22-19 indecency with a child, injury to a child, elderly individual, or
22-20 disabled individual, tampering with a consumer product, sale or
22-21 purchase of a child, escape, obstruction or retaliation, criminal
22-22 mischief punishable as a felony or as a serious misdemeanor,
22-23 tampering with an identification number, credit card or debit card
22-24 abuse, forgery, deadly conduct, assault punishable as a Class A
22-25 misdemeanor or a felony, burglary of a [motor] vehicle, or
22-26 unauthorized use of a [motor] vehicle;
22-27 (2) any gambling offense punishable as a Class A
23-1 misdemeanor;
23-2 (3) promotion of prostitution, aggravated promotion of
23-3 prostitution, or compelling prostitution;
23-4 (4) unlawful possession of a firearm punishable as a
23-5 felony, unlawful possession of a prohibited weapon, or unlawful
23-6 manufacture, transportation, repair, or sale of a firearm
23-7 [firearms] or prohibited weapon [weapons];
23-8 (5) unlawful manufacture, delivery, dispensation, or
23-9 distribution of a controlled substance or dangerous drug, or
23-10 unlawful possession of a controlled substance or dangerous drug
23-11 through forgery, fraud, misrepresentation, or deception;
23-12 (6) [any] unlawful wholesale promotion or possession
23-13 with intent to wholesale promote [of any] obscene material, an [or]
23-14 obscene device, or child pornography [with the intent to wholesale
23-15 promote the same];
23-16 (7) any unlawful employment, authorization, or
23-17 inducing of a child younger than 17 years of age to engage in
23-18 sexual conduct or a [an obscene] sexual performance;
23-19 (8) any felony offense under Chapter 32, Penal Code;
23-20 or
23-21 (9) any offense under Chapter 33, 34, 35, or 36, Penal
23-22 Code[; or]
23-23 [(10) any offense under Chapter 34, Penal Code].
23-24 SECTION 15. Section 71.02(b), Penal Code, as amended by
23-25 Chapters 761 and 900, Acts of the 73rd Legislature, Regular
23-26 Session, 1993, is reenacted and amended to read as follows:
23-27 (b) Except as provided in Subsections (c) and (d), an
24-1 offense under this section is one category higher than the most
24-2 serious offense listed in Subsection (a) that was committed, [and
24-3 if the most serious offense is a Class A misdemeanor, the offense
24-4 is a state jail felony,] except that if the most serious offense is
24-5 a felony of the first degree, the offense is a felony of the first
24-6 degree. [Except as provided in Subsections (c) and (d) an offense
24-7 under this section is one category higher than the most serious
24-8 offense listed in Subsection (a) that was committed, and if the
24-9 most serious offense is a Class A misdemeanor, the offense is a
24-10 state jail felony, except that if the most serious offense is a
24-11 felony of the first degree, the offense is a felony of the first
24-12 degree.]
24-13 SECTION 16. Section 71.02(c), Penal Code, as amended by
24-14 Chapters 761 and 900, Acts of the 73rd Legislature, Regular
24-15 Session, 1993, is reenacted and amended to read as follows:
24-16 (c) Conspiring to commit an offense under this section is of
24-17 the same degree as the most serious offense listed in [Subdivisions
24-18 (1) through (10) of] Subsection (a) [of this section] that the
24-19 person conspired to commit.
24-20 SECTION 17. Section 71.05(a), Penal Code, as amended by
24-21 Chapters 761 and 900, Acts of the 73rd Legislature, Regular
24-22 Session, 1993, is reenacted and amended to read as follows:
24-23 (a) It is an affirmative defense to prosecution under
24-24 Section 71.02 that under circumstances manifesting a voluntary and
24-25 complete renunciation of his criminal objective the actor withdrew
24-26 from the combination before commission of an offense listed in
24-27 Subsection (a) of Section 71.02 and took further affirmative action
25-1 that prevented the commission of the offense. [It is an affirmative
25-2 defense to prosecution under Section 71.02 of this code that under
25-3 circumstances manifesting a voluntary and complete renunciation of
25-4 his criminal objective the actor withdrew from the combination
25-5 before commission of an offense listed in Subdivisions (1) through
25-6 (7) or Subdivision (10) of Subsection (a) of Section 71.02 of this
25-7 code and took further affirmative action that prevented the
25-8 commission of the offense.]
25-9 SECTION 18. Article 61.06, Code of Criminal Procedure, is
25-10 amended to read as follows:
25-11 Art. 61.06. DESTRUCTION OF RECORDS. (a) Information
25-12 collected under this chapter on an individual must be destroyed
25-13 after two years or on the individual's 21st birthday, whichever
25-14 date is later, if the individual has not been charged with criminal
25-15 activity.
25-16 (b) The requirement that information collected be destroyed
25-17 does not apply if the individual is charged with criminal activity.
25-18 SECTION 19. Section 503.029(a), Transportation Code, is
25-19 amended to read as follows:
25-20 (a) An applicant for an original or renewal dealer general
25-21 distinguishing number must submit to the department a written
25-22 application on a form that:
25-23 (1) is provided by the department;
25-24 (2) contains the information required by the
25-25 department;
25-26 (3) contains information that demonstrates the person
25-27 meets the requirements prescribed by Section 503.032;
26-1 (4) contains information that demonstrates the
26-2 applicant has complied with all applicable state laws and municipal
26-3 ordinances;
26-4 (5) states that the applicant agrees to allow the
26-5 department or a peace officer to examine during working hours the
26-6 ownership papers for each registered or unregistered vehicle in the
26-7 applicant's possession or control; and
26-8 (6) specifies whether the applicant proposes to be a
26-9 dealer in motor vehicles, motorcycles, house trailers, or trailers
26-10 or semitrailers.
26-11 SECTION 20. Article 61.03(c), Code of Criminal Procedure, is
26-12 repealed.
26-13 SECTION 21. (a) Except for the nonsubstantive changes made
26-14 by Sections 15-17 of this Act, the change in law made by this Act
26-15 applies only to an offense committed on or after the effective date
26-16 of this Act. For purposes of this section, an offense is committed
26-17 before the effective date of this Act if any element of the offense
26-18 occurs before the effective date.
26-19 (b) An offense committed before the effective date of this
26-20 Act is covered by the law in effect when the offense was committed,
26-21 and the former law is continued in effect for that purpose.
26-22 SECTION 22. This Act takes effect September 1, 1997.
26-23 SECTION 23. The importance of this legislation and the
26-24 crowded condition of the calendars in both houses create an
26-25 emergency and an imperative public necessity that the
26-26 constitutional rule requiring bills to be read on three several
26-27 days in each house be suspended, and this rule is hereby suspended.