By Wentworth S.B. No. 1802
75R4549 DAK-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the disposition of a juvenile who damages property with
1-3 graffiti, to law enforcement records relating to a child who uses a
1-4 graffiti tag, and to the criminal responsibility of a parent for a
1-5 child's criminal mischief involving graffiti; providing a penalty.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. Chapter 25, Penal Code, is amended by adding
1-8 Section 25.09 to read as follows:
1-9 Sec. 25.09. CRIMINAL RESPONSIBILITY OF PARENT FOR CHILD'S
1-10 CRIMINAL MISCHIEF. (a) In this section:
1-11 (1) "Child" means a person who is younger than 17
1-12 years of age.
1-13 (2) "Conduct indicating a need for supervision" has
1-14 the meaning assigned by Section 51.03(b), Family Code.
1-15 (3) "Delinquent conduct" has the meaning assigned by
1-16 Section 51.03(a), Family Code.
1-17 (4) "Parent" means a natural or adoptive parent,
1-18 stepparent, person in loco parentis, or legal guardian of the
1-19 person of the child.
1-20 (5) "Parental duty" means the continuous duty of a
1-21 parent to exercise reasonable control to prevent the parent's child
1-22 from engaging in delinquent conduct or conduct indicating a need
1-23 for supervision.
1-24 (b) A parent commits an offense if the parent with criminal
2-1 negligence fails to perform a parental duty to prevent the parent's
2-2 child from engaging in delinquent conduct or conduct indicating a
2-3 need for supervision that violates Section 28.03(a)(3), if the
2-4 child has previously been adjudicated under Section 54.03, Family
2-5 Code, as having engaged in conduct in violation of Section
2-6 28.03(a)(3).
2-7 (c) An offense under this section is a Class C misdemeanor.
2-8 (d) In addition to imposing a fine under this section, a
2-9 court may require a parent who commits an offense under this
2-10 section to attend a parenting class or parental responsibility
2-11 program. The court may require the parent to submit proof to the
2-12 court that the parent attended the program. An order under this
2-13 subsection is enforceable by contempt.
2-14 SECTION 2. Section 28.03, Penal Code, is amended by amending
2-15 Subsections (a) and (b) and adding Subsection (g) to read as
2-16 follows:
2-17 (a) A person commits an offense if, without the effective
2-18 consent of the owner:
2-19 (1) he intentionally or knowingly damages or destroys
2-20 the tangible property of the owner;
2-21 (2) he intentionally or knowingly tampers with the
2-22 tangible property of the owner and causes pecuniary loss or
2-23 substantial inconvenience to the owner or a third person; or
2-24 (3) he intentionally or knowingly makes markings,
2-25 including inscriptions, slogans, drawings, [or] paintings, or a
2-26 graffiti tag, on the tangible property of the owner.
2-27 (b) Except as provided by Subsection (f), an offense under
3-1 this section is:
3-2 (1) a Class C misdemeanor if:
3-3 (A) the amount of pecuniary loss is less than
3-4 $1,000 [$20]; or
3-5 (B) except as provided in Subdivision (3)(B), it
3-6 causes substantial inconvenience to others;
3-7 (2) a Class B misdemeanor if the amount of pecuniary
3-8 loss is $1,000 [$20] or more but less than $2,000 [$500];
3-9 (3) a Class A misdemeanor if the amount of pecuniary
3-10 loss is:
3-11 (A) $2,000 [$500] or more but less than $5,000
3-12 [$1,500]; or
3-13 (B) less than $5,000 [$1,500] and the actor
3-14 causes in whole or in part impairment or interruption of public
3-15 communications, public transportation, public water, gas, or power
3-16 supply, or other public service, or causes to be diverted in whole,
3-17 in part, or in any manner, including installation or removal of any
3-18 device for any such purpose, any public communications, public
3-19 water, gas, or power supply;
3-20 (4) a state jail felony if the amount of pecuniary
3-21 loss is $5,000 [$1,500] or more but less than $20,000;
3-22 (5) a felony of the third degree if the amount of the
3-23 pecuniary loss is $20,000 or more but less than $100,000;
3-24 (6) a felony of the second degree if the amount of
3-25 pecuniary loss is $100,000 or more but less than $200,000; or
3-26 (7) a felony of the first degree if the amount of
3-27 pecuniary loss is $200,000 or more.
4-1 (g) In this section, "graffiti tag" means a personalized
4-2 graffiti signature.
4-3 SECTION 3. Section 53.03, Family Code, is amended by adding
4-4 Subsections (g) and (h) to read as follows:
4-5 (g) If the child is alleged to have engaged in delinquent
4-6 conduct or conduct indicating a need for supervision that violates
4-7 Section 28.03(a)(3), Penal Code, deferred prosecution under this
4-8 section must involve:
4-9 (1) voluntary attendance in a class with instruction
4-10 in self-responsibility and empathy for a victim of an offense
4-11 conducted by a local juvenile probation department, if the class is
4-12 available;
4-13 (2) voluntary restoration of the property damaged by
4-14 the child by removing or painting over any markings made by the
4-15 child, if the owner of the property consents to the restoration;
4-16 and
4-17 (3) voluntary performance of at least 10 and not more
4-18 than 20 hours of community service rendered by cleaning up graffiti
4-19 or, if that service is not available, voluntary performance of
4-20 another service as directed by the court.
4-21 (h) A probation officer or other designated officer of the
4-22 court shall monitor the child's restoration of property under
4-23 Subsection (g)(2).
4-24 SECTION 4. Section 54.022, Family Code, is amended by adding
4-25 Subsections (h) and (i) to read as follows:
4-26 (h) A program of restitution that is ordered by a justice or
4-27 municipal court under this section is subject to the requirements
5-1 of Section 54.041(b), Family Code. Restitution under this section
5-2 is cumulative of any other remedy allowed by law and may be used in
5-3 addition to other remedies, except that a victim of an offense is
5-4 not entitled to receive an amount that exceeds the amount of actual
5-5 damages under a justice or municipal court order.
5-6 (i) On a finding by a justice or municipal court that a
5-7 child committed an offense that constitutes a Class C misdemeanor
5-8 under Section 28.03(a)(3), Penal Code, the court may enter an order
5-9 that, in addition to the provisions of this section, involves the
5-10 voluntary restoration of the property damaged by the child by
5-11 removing or painting over any markings made by the child, if the
5-12 owner consents to the restoration.
5-13 SECTION 5. Section 54.044(d), Family Code, is amended to
5-14 read as follows:
5-15 (d) A municipality or county that establishes a program to
5-16 assist children and their parents in rendering community service
5-17 under this title [section] may purchase insurance policies
5-18 protecting the municipality or county against claims brought by a
5-19 person other than the child or the child's parent for a cause of
5-20 action that arises from an act of the child or parent while
5-21 rendering community service. The municipality or county is not
5-22 liable under this title [section] to the extent that damages are
5-23 recoverable under a contract of insurance or under a plan of
5-24 self-insurance authorized by statute. The liability of the
5-25 municipality or county for a cause of action that arises from an
5-26 action of the child or the child's parent while rendering community
5-27 service may not exceed $100,000 to a single person and $300,000 for
6-1 a single occurrence in the case of personal injury or death, and
6-2 $10,000 for a single occurrence of property damage. Liability may
6-3 not extend to punitive or exemplary damages. This subsection does
6-4 not waive a defense, immunity, or jurisdictional bar available to
6-5 the municipality or county or its officers or employees, nor shall
6-6 this section be construed to waive, repeal, or modify any provision
6-7 of Chapter 101, Civil Practice and Remedies Code.
6-8 SECTION 6. Chapter 54, Family Code, is amended by adding
6-9 Section 54.046 to read as follows:
6-10 Sec. 54.046. CONDITIONS OF PROBATION FOR CRIMINAL MISCHIEF.
6-11 (a) If a juvenile court places on probation under Section 54.04(d)
6-12 a child adjudicated as having engaged in conduct in violation of
6-13 Section 28.03(a)(3), Penal Code, in addition to other conditions of
6-14 probation, the court shall, on request of the owner of the
6-15 property, order the child to restore the property by removing or
6-16 painting over any markings made by the child on the property.
6-17 (b) The probation officer charged with supervising the child
6-18 shall monitor the child's restoration of the property.
6-19 (c) In addition to a condition imposed under Subsection (a),
6-20 the court shall order the child to perform at least 10 and not more
6-21 than 20 hours of community service rendered by cleaning up graffiti
6-22 or, if that service is not available, performing another service.
6-23 (d) In addition to a condition imposed under Subsection (a),
6-24 the court may require the child to attend a class with instruction
6-25 in self-responsibility and empathy for a victim of an offense
6-26 conducted by a local juvenile probation department.
6-27 (e) The juvenile court may require the child to reimburse
7-1 the county in which the prosecution was instituted for compensation
7-2 paid to any appointed counsel who defended the child in the case
7-3 or, if the child was represented by a county-paid public defender,
7-4 the amount that would have been paid to an appointed attorney had
7-5 the county not had a public defender.
7-6 SECTION 7. Section 58.104, Family Code, is amended by adding
7-7 Subsection (g) to read as follows:
7-8 (g) The department may designate a code or other identifier
7-9 to promote the exchange of information relating to a child who has
7-10 been identified as using a personalized graffiti signature or
7-11 graffiti tag.
7-12 SECTION 8. (a) The change in law made by this Act applies
7-13 only to conduct violating a penal law of this state that occurs on
7-14 or after the effective date of this Act. For purposes of this
7-15 section, conduct occurs before the effective date of this Act if
7-16 any element of the conduct occurs before the effective date.
7-17 (b) Conduct that occurs before the effective date of this
7-18 Act is covered by the law in effect when the conduct occurred, and
7-19 the former law is continued in effect for that purpose.
7-20 (c) The change in law made by this Act applies only to an
7-21 offense committed on or after the effective date of this Act. For
7-22 the purposes of this section, an offense is committed before the
7-23 effective date of this Act if any element of the offense occurs
7-24 before the effective date.
7-25 (d) An offense committed before the effective date of this
7-26 Act is covered by the law in effect when the offense was committed,
7-27 and the former law is continued in effect for that purpose.
8-1 SECTION 9. This Act takes effect September 1, 1997.
8-2 SECTION 10. The importance of this legislation and the
8-3 crowded condition of the calendars in both houses create an
8-4 emergency and an imperative public necessity that the
8-5 constitutional rule requiring bills to be read on three several
8-6 days in each house be suspended, and this rule is hereby suspended.