By Thompson, Haggerty, Danburg, Puente,                H.B. No. 938
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the investigation and prosecution of an offense
 1-3     motivated by bias or prejudice and to other remedies for and
 1-4     protections against certain hateful acts.
 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-6                                  ARTICLE 1
 1-7           SECTION 1.01.  Section 12.47, Penal Code, is amended to read
 1-8     as follows:
 1-9           Sec. 12.47.  PENALTY IF OFFENSE COMMITTED BECAUSE OF BIAS OR
1-10     PREJUDICE.  (a)  If the judge or jury, whichever assesses
1-11     punishment in the case, makes an affirmative finding under Article
1-12     42.014, Code of Criminal Procedure, in the punishment phase of the
1-13     trial of an offense other than a first degree felony or a Class A
1-14     misdemeanor, the punishment for the offense is increased to the
1-15     punishment prescribed for the next highest category of offense.  If
1-16     the offense is a Class A misdemeanor, the minimum term of
1-17     confinement for the offense is increased to 180 days.  This section
1-18     does not apply to the trial of an offense of injury to a disabled
1-19     individual under Section 22.04, if the affirmative finding in the
1-20     case under Article 42.014, Code of Criminal Procedure, shows that
1-21     the defendant intentionally selected the victim because the victim
1-22     was disabled.
1-23           (b)  The attorney general, if requested to do so by a
1-24     prosecuting attorney, may assist the prosecuting attorney in the
1-25     investigation or prosecution of an offense committed because of
 2-1     bias or prejudice.  The attorney general shall designate one
 2-2     individual in the division of the attorney general's office that
 2-3     assists in the prosecution of criminal cases to coordinate
 2-4     responses to requests made under this subsection.
 2-5           SECTION 1.02.  Article 42.014, Code of Criminal Procedure, is
 2-6     amended to read as follows:
 2-7           Art. 42.014.  Finding that offense was committed because of
 2-8     bias or prejudice.  (a)  In the punishment phase of the trial of an
 2-9     offense under Title 5, Penal Code (offenses against the person), or
2-10     Section 28.02, 28.03, or 28.08, [the] Penal Code, if the court
2-11     determines by a preponderance of the evidence that the defendant
2-12     intentionally selected the person against whom the offense was
2-13     committed or intentionally selected property damaged or affected as
2-14     a result of the offense [victim primarily] because of the
2-15     defendant's bias or prejudice against a group, including a group
2-16     identified by race, color, disability, religion, national origin or
2-17     ancestry, age, status as a pregnant person, gender, or sexual
2-18     preference, the court shall make an affirmative finding of that
2-19     fact and enter the affirmative finding in the judgment of that
2-20     case.  The fact that a defendant incorrectly perceives a person to
2-21     be a member of a group described by this article is immaterial to
2-22     the determination under this article.
2-23           (b)  In this article, "sexual preference" means a preference
2-24     for heterosexuality, homosexuality, or bisexuality.
2-25           SECTION 1.03.  (a)  The change in the law made by this
2-26     article applies only to an offense committed on or after the
2-27     effective date of this Act.  For purposes of this section, an
 3-1     offense is committed before the effective date of this Act if any
 3-2     element of the offense occurs before the effective date.
 3-3           (b)  An offense committed before the effective date of this
 3-4     Act is covered by the law in effect when the offense was committed,
 3-5     and the former law is continued in effect for that purpose.
 3-6                                  ARTICLE 2
 3-7           SECTION 2.01.  Chapter 104, Code of Criminal Procedure, is
 3-8     amended by adding Article 104.004 to read as follows:
 3-9           Art. 104.004.  EXTRAORDINARY PROSECUTION COSTS.  (a)  The
3-10     criminal justice division of the governor's office shall distribute
3-11     grants as provided by this article.
3-12           (b)  A county with a population of less than 125,000 is
3-13     eligible to apply to the division for a grant under this article
3-14     if, during the preceding fiscal year:
3-15                 (1)  the total amount of expenditures of the county
3-16     exceeded the total amount of funds received by the county from all
3-17     sources and the county incurred expenses for the investigation or
3-18     prosecution of an offense:
3-19                       (A)  defined by Section 19.03, Penal Code; and
3-20                       (B)  alleged by the attorney representing the
3-21     state to have been committed because of bias or prejudice as
3-22     described by Article 42.014; or
3-23                 (2)  the total amount of funds received by the county
3-24     from all sources exceeded the total amount of expenditures of the
3-25     county and the county incurred expenses for the investigation or
3-26     prosecution of an offense described by Subsection (b)(1) that
3-27     exceed five percent of the amount of that excess.
 4-1           (c)  The commissioners court must submit with an application
 4-2     under Subsection (b) a financial statement of the county that shows
 4-3     for the fiscal year for which application is made:
 4-4                 (1)  the total amount of funds received by the county
 4-5     from all sources;
 4-6                 (2)  the total amount of expenditures of the county;
 4-7     and
 4-8                 (3)  the total amount of expenses incurred by the
 4-9     county for the investigation or prosecution of an offense described
4-10     by Subsection (b)(1).
4-11           (d)  The division may make a grant under this article only to
4-12     an eligible county for the reimbursement of expenses incurred by
4-13     the county during the fiscal year for which application is made for
4-14     the investigation or prosecution of an offense described by
4-15     Subsection (b)(1).  The amount of the grant to a county eligible
4-16     under Subsection (b)(2) may not exceed an amount equal to five
4-17     percent of the difference between the total amount of funds
4-18     received by the county and the total amount of expenditures of the
4-19     county during the fiscal year for which application is made.
4-20           (e)  The division may adopt a budget and rules for the making
4-21     of grants under this article.  All grants made to a county under
4-22     this article and its expenditure by the county are subject to audit
4-23     by the state auditor.
4-24           SECTION 2.02.  The commissioners court of a county may apply
4-25     to the criminal justice division of the governor's office for a
4-26     grant, as provided by Article 104.004, Code of Criminal Procedure,
4-27     as added by this Act, on or after September 1, 1999.
 5-1                                  ARTICLE 3
 5-2           SECTION 3.01.  Title 6, Civil Practice and Remedies Code, is
 5-3     amended by adding Chapter 140 to read as follows:
 5-4                 CHAPTER 140.  REMEDIES FOR AND PROTECTIONS
 5-5                            AGAINST HATEFUL ACTS
 5-6           Sec. 140.001.  DEFINITIONS.  In this chapter:
 5-7                 (1)  "Claimant" means a party seeking the relief
 5-8     provided by this chapter, including a plaintiff, counterclaimant,
 5-9     cross-claimant, or third-party plaintiff.
5-10                 (2)  "Defendant" includes any party from whom a
5-11     claimant seeks relief under this chapter.
5-12           Sec. 140.002.  RIGHT TO BE FREE FROM HATEFUL ACTS.  (a)  A
5-13     person in this state has the right to be free from an act of
5-14     violence committed against the person or the person's property
5-15     because of the person's race, color, disability, religion, national
5-16     origin or ancestry, age, status as a pregnant person, gender, or
5-17     sexual preference.
5-18           (b)  In this section, "sexual preference" means preference
5-19     for heterosexuality, homosexuality, or bisexuality.
5-20           Sec. 140.003.  ACTION BY PERSON.  (a)  A person whose
5-21     exercise or enjoyment of the right secured by Section 140.002 is
5-22     intentionally violated by another person may commence in the
5-23     person's own name an action for:
5-24                 (1)  damages to the person arising from the intentional
5-25     actions of the defendant in violating the exercise or enjoyment by
5-26     the person of the right secured by Section 140.002;
5-27                 (2)  exemplary damages as provided by Chapter 41; and
 6-1                 (3)  injunctive relief or any other appropriate relief
 6-2     to protect the exercise or enjoyment of the right secured by
 6-3     Section 140.002.
 6-4           (b)  A court shall award a party who prevails in an action
 6-5     under this section reasonable attorney's fees in bringing or
 6-6     defending the action.
 6-7           Sec. 140.004.  INDEPENDENT REMEDY.  An action under this
 6-8     chapter is independent of any other remedy or procedure that may be
 6-9     available to the claimant.
6-10           SECTION 3.02.  Chapter 140, Civil Practice and Remedies Code,
6-11     as added by this article, applies only to a cause of action that
6-12     accrues on or after the effective date of this Act.  An action that
6-13     accrued before the effective date of this Act is governed by the
6-14     law applicable to the action immediately before the effective date
6-15     of this Act, and that law is continued in effect for that purpose.
6-16                                  ARTICLE 4
6-17           SECTION 4.01.  Chapter 6, Code of Criminal Procedure, is
6-18     amended by adding Article 6.08 to read as follows:
6-19           Art. 6.08.  PROTECTIVE ORDER PROHIBITING OFFENSE CAUSED BY
6-20     BIAS OR PREJUDICE.  (a)  At any proceeding in which the defendant
6-21     appears in constitutional county court, statutory county court, or
6-22     district court that is related to an offense under Title 5, Penal
6-23     Code,  or Section 28.02 or 28.03, Penal Code, in which it is
6-24     alleged that the defendant committed the offense because of bias or
6-25     prejudice as described by Article 42.014, a person may request the
6-26     court to render a protective order under Title 4, Family Code, for
6-27     the protection of the person.
 7-1           (b)  The court shall render a protective order in the manner
 7-2     provided by Title 4, Family Code, if, in lieu of the finding that
 7-3     family violence occurred and is likely to occur in the future as
 7-4     required by Section 85.001, Family Code, the court finds that
 7-5     probable cause exists to believe that an offense under Title 5,
 7-6     Penal Code, or Section 28.02 or 28.03, Penal Code, occurred, that
 7-7     the defendant committed the offense because of bias or prejudice,
 7-8     and that the nature of the scheme or course of conduct engaged in
 7-9     by the defendant in the commission of the offense indicates that
7-10     the defendant is likely to engage in the future in conduct
7-11     prohibited by Title 5, Penal Code, or Section 28.02 or 28.03, Penal
7-12     Code, and committed because of bias or prejudice.
7-13           (c)  The procedure for the enforcement of a protective order
7-14     under Title 4, Family Code, applies to the fullest extent
7-15     practicable to the enforcement of a protective order under this
7-16     article, including provisions relating to findings, contents,
7-17     duration, warning, delivery, law enforcement duties, and
7-18     modification, except that:
7-19                 (1)  the printed statement on the warning must refer to
7-20     the prosecution of subsequent offenses committed because of bias or
7-21     prejudice;
7-22                 (2)  the court shall require a peace officer to serve a
7-23     protective order issued under this article; and
7-24                 (3)  the clerk of the court shall forward a copy of a
7-25     protective order issued under this article to the Texas Department
7-26     of Public Safety with a designation indicating that the order was
7-27     issued to prevent offenses committed because of bias or prejudice.
 8-1           SECTION 4.02.  Chapter 25, Penal Code, is amended by adding
 8-2     Section 25.071 to read as follows:
 8-3           Sec. 25.071.  VIOLATION OF PROTECTIVE ORDER PREVENTING
 8-4     OFFENSE CAUSED BY BIAS OR PREJUDICE.  (a)  A person commits an
 8-5     offense if, in violation of an order issued under Article 6.08,
 8-6     Code of Criminal Procedure, the person knowingly or intentionally:
 8-7                 (1)  commits an offense under Title 5, Penal Code, or
 8-8     Section 28.02 or 28.03, and commits the offense because of bias or
 8-9     prejudice, as described by Article 42.014, Code of Criminal
8-10     Procedure;
8-11                 (2)  communicates:
8-12                       (A)  directly with a protected individual in a
8-13     threatening or harassing manner;
8-14                       (B)  a threat through any person to a protected
8-15     individual; or
8-16                       (C)  in any manner with the protected individual,
8-17     if the order prohibits any communication with a protected
8-18     individual; or
8-19                 (3)  goes to or near the residence or place of
8-20     employment or business of a protected individual.
8-21           (b)  If conduct constituting an offense under this section
8-22     also constitutes an offense under another section of this code, the
8-23     actor may be prosecuted under either section or under both
8-24     sections.
8-25           (c)  A peace officer investigating conduct that may
8-26     constitute an offense under this section for a violation of an
8-27     order may not arrest a person protected by that order for a
 9-1     violation of that order.
 9-2           (d)  An offense under this section is a Class A misdemeanor
 9-3     unless it is shown on the trial of the offense that the defendant
 9-4     has previously been convicted under this section two or more times
 9-5     or has violated the protective order by committing an assault, in
 9-6     which event the offense is a third degree felony.
 9-7                                  ARTICLE 5
 9-8           SECTION 5.01.  Section 415.032(b), Government Code, is
 9-9     amended to read as follows:
9-10           (b)  In establishing requirements under this section, the
9-11     commission shall require courses and programs to provide training
9-12     in:
9-13                 (1)  the investigation and documentation of cases that
9-14     involve the following:
9-15                       (A)  child abuse;
9-16                       (B)  child neglect;
9-17                       (C)  family violence; [and]
9-18                       (D)  sexual assault; and
9-19                       (E)  offenses committed because of bias or
9-20     prejudice; and
9-21                 (2)  issues concerning sex offender characteristics.
9-22           SECTION 5.02.  Section 415.034, Government Code, is amended
9-23     by adding Subsection (j) to read as follows:
9-24           (j)  The course provided to a peace officer under Subsection
9-25     (b) must include education and training in, in addition to the
9-26     types of cases described by Subsection (b), the recognition of
9-27     offenses that are committed because of bias or prejudice, unless
 10-1    the agency head determines that the education and training is
 10-2    inconsistent with the officer's assigned duties.  The agency shall
 10-3    provide an officer the education and training described by this
 10-4    subsection every 48 months, rather than the frequency required for
 10-5    topics described by Subsection (b).
 10-6                                 ARTICLE 6
 10-7          SECTION 6.01.  This Act takes effect September 1, 1999.
 10-8          SECTION 6.02.  The importance of this legislation and the
 10-9    crowded condition of the calendars in both houses create an
10-10    emergency and an imperative public necessity that the
10-11    constitutional rule requiring bills to be read on three several
10-12    days in each house be suspended, and this rule is hereby suspended.