SRC-JJJ H.B. 938 76(R) BILL ANALYSIS
Senate Research Center H.B. 938
By: Thompson (Ellis)
Criminal Justice
5/3/1999
Engrossed
DIGEST
Currently, the Texas hate crimes statute, which increases penalties by one
level of offense if a crime is proven to be "motivated by bias or
prejudice," has not been widely used because prosecutors and legal experts
have warned that the statute is too vague to be enforced properly and may
not hold up to a constitutional challenge. H.B. 938 would establish
conditions relating to the investigation and prosecution of an offense
motivated by bias or prejudice and to other remedies for and prosecutions
against certain hateful acts.
PURPOSE
As proposed, H.B. 938 establishes conditions and ramifications regarding
the investigation and prosecution of an offense motivated by bias or
prejudice and includes other remedies for and protections against certain
hateful acts.
RULEMAKING AUTHORITY
This bill does not grant any additional rulemaking authority to a state
officer, institution, or agency.
SECTION BY SECTION ANALYSIS
ARTICLE 1
SECTION 1.01. Amends Section 12.47, Penal Code, to establish that this
section does not apply to the trial of an offense of injury to a disabled
individual under Section 22.04, if the affirmative finding in the case
under Article 42.014, Code of Criminal Procedure, shows that the defendant
intentionally selected the victim because the victim was disabled.
Authorizes the attorney general, upon request by a prosecuting attorney, to
assist the prosecuting attorney in the investigation or prosecution of an
offense committed because of bias or prejudice. Requires the attorney
general to designate one individual in the division of the attorney
general's office that assists in prosecuting criminal cases to coordinate
responses to requests made under this subsection. Makes a conforming
change.
SECTION 1.02. Amends Article 42.014, Code of Criminal Procedure, to
require the court to make an affirmative finding of the fact and enter the
finding in the judgment of the case, in the punishment phase of a trial of
an offense under Title 5 (offenses against the person) or Section 28.02 or
28.03, Penal Code, if the court determines by a preponderance of the
evidence that the defendant intentionally selected the person against whom
the offense was committed or intentionally selected property damaged or
affected as a result of the offense because of the defendant's bias or
prejudice against a group, including race, color, disability, religion,
national origin or ancestry, age, pregnancy status, or sexual orientation
of the person against whom the offense was committed the court shall make
and enter an affirmative finding in the judgment of the case. Defines
"sexual preference."
SECTION 1.03. Makes application of this article prospective.
ARTICLE 2
SECTION 2.01. Amends Chapter 104, Code of Criminal Procedure, by adding
Article 104.004, as follows:
Art. 104.004. EXTRAORDINARY PROSECUTION COSTS. Requires the criminal
justice division of the governor's office (division) to distribute grants
as provided by this article. Provides that a county with a population of
less than 125,000 is eligible to apply to the division for a grant under
this article if, during the preceding fiscal year, the total amount of
county expenditures or funds exceeded certain amounts. Requires the
commissioners court to submit with an application a financial statement of
the county that shows the total amount of funds, expenditures, and expenses
of the county for the fiscal year for which the application is made.
Authorizes the division to make a grant only to an eligible county for the
reimbursement of expenses incurred by the county during the fiscal year for
which the application is made for the investigation or prosecution of an
offense described by Subsection(b)(1). Prohibits the amount of the grant
to an eligible county from exceeding an amount equal to five percent of the
difference between the total amount of funds received by the county and the
total expenditures during the fiscal year for which the application is
made. Authorizes the division to adopt a budget and rules for the making of
grants under this article. Provides that all grants made to a county under
this article and its expenditure by the county are subject to audit by the
state auditor.
SECTION 2.02. Authorizes the commissioners court of a county to apply to
the division for a grant, on or after September 1, 1999.
ARTICLE 3
SECTION 3.01. Amends Title 6, Civil Practice and Remedies Code, by adding
Chapter 140, as follows:
CHAPTER 140. REMEDIES FOR AND PROTECTIONS AGAINST HATEFUL ACTS
Sec. 140.001. DEFINITIONS. Defines "claimant" and "defendant."
Sec. 140.002. RIGHT TO BE FREE FROM HATEFUL ACTS. Provides that a person
in this state has the right to be free from an act of violence, committed
against the person or person's property, because of certain personal
characteristics. Defines "sexual preference."
Sec. 140.003. ACTION BY PERSON. Authorizes an individual to commence
certain legal actions, if the individual's exercise or enjoyment of the
rights secured by Section 140.002 is intentionally violated by another
person. Requires a court to award a party who prevails in an action under
this chapter reasonable attorney's fees incurred in bringing the action.
Sec. 140.004. INDEPENDENT REMEDY. Establishes that an action under this
chapter is independent of any other remedy or procedure that may be
available to the claimant.
SECTION 3.02. Makes application of Article 3 of this Act prospective.
ARTICLE 4
SECTION 4.01. Amends Chapter 6, Code of Criminal Procedure, by adding
Article 6.08, as follows:
Art. 6.08. PROTECTIVE ORDER PROHIBITING OFFENSE CAUSED BY BIAS OR
PREJUDICE. Authorizes a person to request the court to render a protective
order for the protection of the person, at any proceeding in which the
defendant appears in certain courts regarding an offense under Title 5,
Penal Code, or Section 28.02 or 28.03, Penal Code, in which it is alleged
that the defendant committed the offense because bias or prejudice. Sets
forth conditions by which the court is required to render a protective
order. Establishes that the procedures for the enforcement of a protective
order apply to the fullest extent practicable to the enforcement of a
protective order, except that certain conditions must be fulfilled
regarding the order and service of the order.
SECTION 4.02. Amends Chapter 25, Penal Code, by adding Section 25.071, as
follows:
Sec. 25.071. VIOLATION OF PROTECTIVE ORDER PREVENTING OFFENSE CAUSED BY
BIAS OR PREJUDICE. Provides that a person commits an offense if, in
violation of a protective order, the person knowingly or intentionally
commits certain offenses, communicates with certain individuals in a
threatening way, or goes to or near the residence or place of employment or
business of the protected individual. Authorizes the actor to be
prosecuted, if the conduct constituting an offense also constitutes an
offense under another section. Prohibits a peace officer investigating
conduct that may constitute an offense from arresting a person protected by
that order for a violation of that order. Provides that an offense under
this section is a Class A misdemeanor unless it is shown on the trial of
the offense that the defendant has previously been convicted under this
section two or more times or has violated the protective order by
committing assault, in which event the offense is a third degree felony.
ARTICLE 5
SECTION 5.01. Amends Section 415.032(b), Government Code, to require the
Commission on Law Enforcement Officer Standards and Education to require
courses and programs to provide training in the investigation and
documentation of cases that involve offenses committed because of bias or
prejudice. Makes conforming changes.
SECTION 5.02. Amends Section 415.034, Government Code, by adding
Subsection (j), to require the course provided to a peace officer to
include education and training in the recognition of offenses that are
committed because of bias or prejudice, unless the agency head determines
that the education and training is inconsistent with the officer's assigned
duties. Requires the agency to provide an officer the described education
and training every 48 months.
ARTICLE 6
SECTION 6.01. Effective date: September 1, 1999.
SECTION 6.02. Emergency clause.