76R8970 GWK-D
By Thompson, Haggerty, Danburg, Puente, H.B. No. 938
Hochberg, et al.
Substitute the following for H.B. No. 938:
By Uresti C.S.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
2-1 investigation or prosecution of an offense committed because of
2-2 bias or prejudice. The attorney general shall designate one
2-3 individual in the division of the attorney general's office that
2-4 assists in the prosecution of criminal cases to coordinate
2-5 responses to requests made under this subsection.
2-6 SECTION 1.02. Article 42.014, Code of Criminal Procedure, is
2-7 amended to read as follows:
2-8 Art. 42.014. Finding that offense was committed because of
2-9 bias or prejudice. In the punishment phase of the trial of an
2-10 offense under Title 5 (offenses against the person) or Section
2-11 28.02 or 28.03, [the] Penal Code, if the court determines by a
2-12 preponderance of the evidence that the defendant intentionally
2-13 selected the person against whom the offense was committed or
2-14 intentionally selected property damaged or affected as a result of
2-15 the offense [victim primarily] because of the defendant's bias or
2-16 prejudice against a group, including a group identified by race,
2-17 color, disability, religion, national origin or ancestry, or sexual
2-18 orientation, 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 SECTION 1.03. (a) The change in the law made by this
2-24 article applies only to an offense committed on or after the
2-25 effective date of this Act. For purposes of this section, an
2-26 offense is committed before the effective date of this Act if any
2-27 element of the offense occurs before the effective date.
3-1 (b) An offense committed before the effective date of this
3-2 Act is covered by the law in effect when the offense was committed,
3-3 and the former law is continued in effect for that purpose.
3-4 ARTICLE 2
3-5 SECTION 2.01. Chapter 104, Code of Criminal Procedure, is
3-6 amended by adding Article 104.004 to read as follows:
3-7 Art. 104.004. EXTRAORDINARY PROSECUTION COSTS. (a) The
3-8 criminal justice division of the governor's office shall distribute
3-9 grants as provided by this article.
3-10 (b) A county with a population of less than 50,000 is
3-11 eligible to apply to the division for a grant under this article
3-12 if, during the preceding fiscal year:
3-13 (1) the total amount of expenditures of the county
3-14 exceeded the total amount of funds received by the county from all
3-15 sources and the county incurred expenses for the investigation or
3-16 prosecution of an offense:
3-17 (A) defined by Section 19.03, Penal Code; and
3-18 (B) alleged by the attorney representing the
3-19 state to have been committed because of bias or prejudice as
3-20 described by Article 42.014; or
3-21 (2) the total amount of funds received by the county
3-22 from all sources exceeded the total amount of expenditures of the
3-23 county and the county incurred expenses for the investigation or
3-24 prosecution of an offense described by Subsection (b)(1) that
3-25 exceed five percent of the amount of that excess.
3-26 (c) The commissioners court must submit with an application
3-27 under Subsection (b) a financial statement of the county that shows
4-1 for the fiscal year for which application is made:
4-2 (1) the total amount of funds received by the county
4-3 from all sources;
4-4 (2) the total amount of expenditures of the county;
4-5 and
4-6 (3) the total amount of expenses incurred by the
4-7 county for the investigation or prosecution of an offense described
4-8 by Subsection (b)(1).
4-9 (d) The division may make a grant under this article only to
4-10 an eligible county for the reimbursement of expenses incurred by
4-11 the county during the fiscal year for which application is made for
4-12 the investigation or prosecution of an offense described by
4-13 Subsection (b)(1). The amount of the grant to a county eligible
4-14 under Subsection (b)(2) may not exceed an amount equal to five
4-15 percent of the difference between the total amount of funds
4-16 received by the county and the total amount of expenditures of the
4-17 county during the fiscal year for which application is made.
4-18 (e) The division may adopt a budget and rules for the making
4-19 of grants under this article. All grants made to a county under
4-20 this article and its expenditure by the county are subject to audit
4-21 by the state auditor.
4-22 SECTION 2.02. The commissioners court of a county may apply
4-23 to the criminal justice division of the governor's office for a
4-24 grant, as provided by Article 104.004, Code of Criminal Procedure,
4-25 as added by this Act, on or after September 1, 1999.
4-26 ARTICLE 3
4-27 SECTION 3.01. Title 6, Civil Practice and Remedies Code, is
5-1 amended by adding Chapter 140 to read as follows:
5-2 CHAPTER 140. REMEDIES FOR AND PROTECTIONS
5-3 AGAINST HATEFUL ACTS
5-4 Sec. 140.001. DEFINITIONS. In this chapter:
5-5 (1) "Claimant" means a party seeking the relief
5-6 provided by this chapter, including a plaintiff, counterclaimant,
5-7 cross-claimant, or third-party plaintiff.
5-8 (2) "Defendant" includes any party from whom a
5-9 claimant seeks relief under this chapter.
5-10 Sec. 140.002. RIGHT TO BE FREE FROM HATEFUL ACTS. An
5-11 individual in this state has the right to be free from an act of
5-12 violence, or intimidation by threat of violence, committed against
5-13 the person or property of the individual because:
5-14 (1) of the individual's race, color, disability,
5-15 religion, national origin or ancestry, or sexual orientation; or
5-16 (2) another person perceives the individual to have
5-17 one or more of the characteristics listed under Subdivision (1).
5-18 Sec. 140.003. ACTION BY INDIVIDUAL. (a) An individual
5-19 whose exercise or enjoyment of the right secured by Section 140.002
5-20 is interfered with by a person, whether or not acting under color
5-21 of law, by threat, intimidation, or coercion, or by an attempt to
5-22 interfere by threat, intimidation, or coercion may commence, in the
5-23 individual's own name, an action for:
5-24 (1) damages to the individual arising from the actions
5-25 of the defendant in violating the peaceable exercise or enjoyment
5-26 by the individual of the right secured by Section 140.002; and
5-27 (2) exemplary damages as provided under Chapter 41.
6-1 (b) A court shall award a claimant who prevails in an action
6-2 under this chapter reasonable attorney's fees incurred in bringing
6-3 the action.
6-4 Sec. 140.004. INDEPENDENT REMEDY. An action under this
6-5 chapter is independent of any other remedy or procedure that may be
6-6 available to the claimant.
6-7 SECTION 3.02. Chapter 140, Civil Practice and Remedies Code,
6-8 as added by this article, applies only to a cause of action that
6-9 accrues on or after the effective date of this Act. An action that
6-10 accrued before the effective date of this Act is governed by the
6-11 law applicable to the action immediately before the effective date
6-12 of this Act, and that law is continued in effect for that purpose.
6-13 ARTICLE 4
6-14 SECTION 4.01. Chapter 6, Code of Criminal Procedure, is
6-15 amended by adding Article 6.08 to read as follows:
6-16 Art. 6.08. PROTECTIVE ORDER PROHIBITING OFFENSE CAUSED BY
6-17 BIAS OR PREJUDICE. (a) At any proceeding in which the defendant
6-18 appears in constitutional county court, statutory county court, or
6-19 district court that is related to an offense under Title 5 or
6-20 Section 28.02 or 28.03, Penal Code, in which it is alleged that the
6-21 defendant committed the offense because of bias or prejudice as
6-22 described by Article 42.014, a person may request the court to
6-23 render a protective order under Title 4, Family Code, for the
6-24 protection of the person.
6-25 (b) The court shall render a protective order in the manner
6-26 provided by Title 4, Family Code, if, in lieu of the finding that
6-27 family violence occurred and is likely to occur in the future as
7-1 required by Section 85.001, Family Code, the court finds that
7-2 probable cause exists to believe that an offense under Title 5 or
7-3 Section 28.02 or 28.03, Penal Code, occurred, that the defendant
7-4 committed the offense because of bias or prejudice, and that the
7-5 nature of the scheme or course of conduct engaged in by the
7-6 defendant in the commission of the offense indicates that the
7-7 defendant is likely to engage in the future in conduct prohibited
7-8 by Title 5 or Section 28.02 or 28.03, Penal Code, and committed
7-9 because of bias or prejudice.
7-10 (c) The procedure for the enforcement of a protective order
7-11 under Title 4, Family Code, applies to the fullest extent
7-12 practicable to the enforcement of a protective order under this
7-13 article, including provisions relating to findings, contents,
7-14 duration, warning, delivery, law enforcement duties, and
7-15 modification, except that:
7-16 (1) the printed statement on the warning must refer to
7-17 the prosecution of subsequent offenses committed because of bias or
7-18 prejudice;
7-19 (2) the court shall require a peace officer to serve a
7-20 protective order issued under this article; and
7-21 (3) the clerk of the court shall forward a copy of a
7-22 protective order issued under this article to the Texas Department
7-23 of Public Safety with a designation indicating that the order was
7-24 issued to prevent offenses committed because of bias or prejudice.
7-25 SECTION 4.02. Chapter 25, Penal Code, is amended by adding
7-26 Section 25.071 to read as follows:
7-27 Sec. 25.071. VIOLATION OF PROTECTIVE ORDER PREVENTING
8-1 OFFENSE CAUSED BY BIAS OR PREJUDICE. (a) A person commits an
8-2 offense if, in violation of an order issued under Article 6.08,
8-3 Code of Criminal Procedure, the person knowingly or intentionally:
8-4 (1) commits an offense under Title 5 or Section 28.02
8-5 or 28.03, and commits the offense because of bias or prejudice, as
8-6 described by Article 42.014, Code of Criminal Procedure;
8-7 (2) communicates:
8-8 (A) directly with a protected individual in a
8-9 threatening or harassing manner;
8-10 (B) a threat through any person to a protected
8-11 individual; or
8-12 (C) in any manner with the protected individual,
8-13 if the order prohibits any communication with a protected
8-14 individual; or
8-15 (3) goes to or near the residence or place of
8-16 employment or business of a protected individual.
8-17 (b) If conduct constituting an offense under this section
8-18 also constitutes an offense under another section of this code, the
8-19 actor may be prosecuted under either section or under both
8-20 sections.
8-21 (c) A peace officer investigating conduct that may
8-22 constitute an offense under this section for a violation of an
8-23 order may not arrest a person protected by that order for a
8-24 violation of that order.
8-25 (d) An offense under this section is a Class A misdemeanor
8-26 unless it is shown on the trial of the offense that the defendant
8-27 has previously been convicted under this section two or more times
9-1 or has violated the protective order by committing an assault, in
9-2 which event the offense is a third degree felony.
9-3 ARTICLE 5
9-4 SECTION 5.01. Section 415.032(b), Government Code, is
9-5 amended to read as follows:
9-6 (b) In establishing requirements under this section, the
9-7 commission shall require courses and programs to provide training
9-8 in:
9-9 (1) the investigation and documentation of cases that
9-10 involve the following:
9-11 (A) child abuse;
9-12 (B) child neglect;
9-13 (C) family violence; [and]
9-14 (D) sexual assault; and
9-15 (E) offenses committed because of bias or
9-16 prejudice; and
9-17 (2) issues concerning sex offender characteristics.
9-18 SECTION 5.02. Section 415.034, Government Code, is amended
9-19 by adding Subsection (j) to read as follows:
9-20 (j) The course provided to a peace officer under Subsection
9-21 (b) must include education and training in, in addition to the
9-22 types of cases described by Subsection (b), the recognition of
9-23 offenses that are committed because of bias or prejudice, unless
9-24 the agency head determines that the education and training is
9-25 inconsistent with the officer's assigned duties. The agency shall
9-26 provide an officer the education and training described by this
9-27 subsection every 48 months, rather than the frequency required for
10-1 topics described by Subsection (b).
10-2 ARTICLE 6
10-3 SECTION 6.01. This Act takes effect September 1, 1999.
10-4 SECTION 6.02. The importance of this legislation and the
10-5 crowded condition of the calendars in both houses create an
10-6 emergency and an imperative public necessity that the
10-7 constitutional rule requiring bills to be read on three several
10-8 days in each house be suspended, and this rule is hereby suspended.