SRC-JBJ C.S.S.B. 87 77(R)BILL ANALYSIS
Senate Research CenterC.S.S.B. 87
77R6219 GWK-DBy: Ellis
Criminal Justice
2/9/2001
Committee Report (Substituted)
DIGEST AND PURPOSE
Hate crimes are acts committed primarily because of the actor's bias or
prejudice against the victim. Even though hate crimes are not always
reported and some counties do not keep such statistics, not fewer than
2,300 hate crimes were reported in Texas between 1992 and 1997. As
proposed, C.S.S.B. 87 enhances penalties for crimes motivated by hate,
prejudice, or bias; provides the means for obtaining resources and
assistance for the investigation and prosecution of hate crimes; and adds
reporting requirements.
RULEMAKING AUTHORITY
Rulemaking authority is expressly granted to the criminal justice division
of the governor's office in ARTICLE 2, SECTION 2.01 (Article 104.005, Code
of Criminal Procedure) of this bill.
SECTION BY SECTION ANALYSIS
ARTICLE 1
SECTION 1.01. Amends Section 12.47, Penal Code, as follows:
(a) Provides that if an affirmative finding under Article 42.014 (Finding
that Offense was Committed Because of Bias or Prejudice), Code of Criminal
Procedure, is made in the trial of an offense other than certain offenses,
the punishment for the offense is increased to the punishment prescribed
for the next highest category of offense. Deletes existing text pertaining
to assessment in the punishment phase of trial. Provides 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.
(b) Authorizes the attorney general, if requested to do so 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 the prosecution of criminal cases
to coordinate responses to requests made under this subsection.
SECTION 1.02. Amends Article 42.014, Code of Criminal Procedure, to require
the judge, in the trial of an offense under Title 5 (Offenses Against the
Person), Penal Code, or Sections 28.02, 28.03, or 28.08 (Arson, Criminal
Mischief, and Graffiti), Penal Code, to make an affirmative finding of
fact, rather than finding of that fact, and enter the affirmative finding
in the judgement of the case, rather than judgement of that case, if at the
guilt or innocence phase of the trial, the judge or the jury, whichever is
the trier of fact, determines beyond a reasonable doubt 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
identified by race, color, disability, religion, national origin or
ancestry, or sexual orientation. Deletes existing text pertaining to the
court's determination of the defendant's intention.
SECTION 1.03. Makes application of this article of this Act prospective.
ARTICLE 2
SECTION 2.01. Amends Chapter 104, Code of Criminal Procedure, by adding
Article 104.005, as follows:
Art. 104.005. EXTRAORDINARY PROSECUTION COSTS. (a) Requires the criminal
justice division of the governor's office (division) to distribute grants
as provided by this article.
(b) 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 expenditures of the county exceeds the total
amount of funds received by the county from all sources and the county
incurred expenses for the investigation or prosecution of certain offenses;
or
_the total amount of funds received by the county from all sources
exceeded the total amount of expenditures of the county and the county
incurred expenses for the investigation or prosecution of an offense
described by Subdivision (1) that exceed five percent of the amount of that
excess.
(c) Requires the commissioners court to submit with an application under
Subsection (b) a financial statement of the county that shows for the
fiscal year for which application is made:
_the total amount of funds received by the county from all sources;
_the total amount of expenditure of the county; and
_the total amount of expenses incurred by the county for the
investigation or prosecution of an offense described by Subsection (b)(1).
(d) Authorizes the division to make a grant under this article only to an
eligible county for the reimbursement of expenses incurred by the county
during the fiscal year for which application is made for the investigation
or prosecution of an offense described by Subsection (b)(1). Prohibits the
amount of the grant to a county eligible under Subsection (b)(2) from
exceeding an amount equal to five percent of the difference between the
total amount of funds received by the county and the total amount of
expenditures of the county during the fiscal year for which application is
made.
(e) 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, as provided by Article 104.005, Code of Criminal
Procedure, as added by this Act, on or after September 1, 2001.
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 an
individual in this state has the right to be free from an act of violence,
or intimidation by threat of violence, committed against the person or
property of the individual because:
_of the individual's race, color, disability, religion, national origin
or ancestry, or sexual orientation; or
_another person perceives the individual to have one or more of the
characteristics listed under Subsection (1).
Sec. 140.003. ACTION BY INDIVIDUAL. (a) Authorizes an individual whose
exercise or enjoyment of the right secured by Section 140.002 is interfered
with by a person, whether or not acting under color of law, by threat,
intimidation, or coercion, or by an attempt to interfere by threat,
intimidation, or coercion, to commence, in the individual's own name, an
action for:
_damages to the individual arising from the actions of the defendant
in violating the peaceable exercise or enjoyment by the individual of the
right secured by Section 140.002;
_exemplary damages as provided under Chapter 41; and
_injunctive relief or any other appropriate relief to protect the
peaceable exercise or enjoyment of the right secured by Section 140.002.
(b) Requires a court to award a claimant who prevails in an action under
this chapter reasonable attorney's fees incurred in bringing the action.
Sec. 140.004. CONTENT OF SPEECH. (a) Prohibits an action under this chapter
from being based solely on the content of the speech of the defendant
unless it is shown that:
_the speech itself threatens violence against a specific individual or
group of individuals;
_the individual or group against whom the threat is directed
reasonably fears that, because of the content of the speech, violence will
be committed against the individual or the group, or the property of the
individual or group; and
_the defendant threatening violence had the apparent ability to carry
out the threat.
(b) Prohibits a court from issuing an order under this chapter that
restricts the content of any defendant's speech.
(c) Authorizes the court to issue an order that restricts the time, place,
or manner or the defendant's speech only to the extent:
_reasonably necessary to protect the peaceable exercise or enjoyment
by an individual of the right secured by Section 140.002; and
_consistent with the constitutional rights of the defendant.
Sec. 140.005. FORUM. Authorizes an action under this chapter to be brought
in a district or county court.
Sec. 140.006. ENFORCEMENT. Provides that an order issued under this chapter
is enforceable by contempt, prosecution under Section 22.12, Penal Code, or
both.
Sec. 140.007. WARNING. Requires an order for temporary or permanent relief
under this chapter to include a certain statement.
Sec. 140.008. NOTIFICATION OF LAW ENFORCEMENT AGENCIES. (a) Requires a
court that issues an order for temporary or permanent relief under this
chapter to order the claimant or the attorney for the claimant to deliver,
or the clerk of the court to mail, two copies of the order before the end
of the day on which the order was granted to:
_each local law enforcement agency designated by the claimant or the
attorney for the claimant as having jurisdiction over the residence of the
claimant; and
_any other location in which the court determines that hateful acts
against the claimant are likely to occur.
(b) Requires a law enforcement agency that receives an order under this
section to serve a copy on the defendant, and provide to any law
enforcement officer responding to the scene of a reported hateful act
against the claimant information relating to the existence of, terms of,
and current status of the order.
(c) Provides that, in this section, "order" includes any extension,
modification, or termination of the order.
Sec. 140.009. INDEPENDENT REMEDY. Provides that an action under this
chapter is independent of any other remedy or procedure that may be
available to the claimant.
SECTION 3.02. Amends Chapter 22, Penal Code, by adding Section 22.12, as
follows:
Sec. 22.12. VIOLATION OF ORDER ENJOINING HATEFUL ACTS. (a) Provides that a
person commits an offense if, in violation of an order for temporary or
permanent injunctive relief issued under Chapter 140, Civil Practice and
Remedies Code, the person knowingly violates the order.
(b) Provides that an offense under this section is a Class B 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, in which
event the offense is a Class A misdemeanor.
SECTION 3.03. Makes application of Chapter 140, Civil Practice and Remedies
Code, as added by 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. (a) Authorizes a person, at any proceeding in which the
defendant appears in certain courts that is related to an offense under
Title 5, Penal Code, or Sections 28.02, 28.03, or 28.08, Penal Code, in
which it is alleged that the defendant committed the offense because of
bias or prejudice as described by Article 42.014, to request the court to
render a protective order under Title 4 (Protective Orders and Family
Violence), Family Code, for the protection of the person.
(b) Requires the court to render a protective order in the manner provided
by Title 4, Family Code, if, in lieu of the finding that family violence
occurred and is likely to occur in the future as required by Section 85.001
(Required Findings and Orders), Family Code, the court finds that probable
cause exists to believe that an offense under Title 5, Penal Code, or
Sections 28.02, 28.03, or 28.08, Penal Code, occurred, that the defendant
committed the offense because of bias or prejudice, and that the nature of
the scheme or course of conduct engaged in by the defendant in the
commission of the offense indicates that the defendant in the commission of
the offense indicates that the defendant is likely to engage in the future
in conduct prohibited by Title 5, Penal Code, or Sections 28.02, 28.03, or
28.08, Penal Code, and committed because of bias or prejudice.
(c) Provides that the procedure for the enforcement of a protective order
under Title 4, Family Code, applies to the fullest extent practicable to
the enforcement of a protective order under this article, including certain
specific provisions, with certain specific exceptions.
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. (a) Provides that a person commits an offense if, in
violation of an order issued under Article 6.08, Code of Criminal
Procedure, the person knowingly or intentionally commits certain specific
acts.
(b) Authorizes the actor, if conduct constituting an offense under this
section also constitutes an offense under another section of this code, to
by prosecuted under either section or under both sections.
(c) Prohibits a peace officer investigating conduct that may constitute an
offense under this section for a violation of an order from arresting a
person protected by that order for a violation of that order.
(d) 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 an assault, in which event the
offense is a third degree felony.
ARTICLE 5
SECTION 5.01. Amends Chapter 2, Code of Criminal Procedure, by adding
Article 2.211, as follows:
Art. 2.211. HATE CRIME REPORTING. Requires a clerk of a district or
county court in which an affirmative finding under Article 42.014 is
requested, in addition to performing duties required by Article 2.21, to
report that request to the Texas Judicial Council (council), along with a
statement as to whether the request was granted by the court and, if so,
whether the affirmative finding was entered in the judgement in the case.
Requires the clerk to make the report required by this article not later
than the 30th day after the date the judgement is entered in the case.
SECTION 5.02. Amends Section 71.034, Government Code, by adding Subsection
(e), as follows:
(e) Requires the council to also include in the report a summary of
information provided to the council during the preceding year under Article
2.211, Code of Criminal Procedure.
ARTICLE 6
SECTION 6.01. Effective date: September 1, 2001.
SUMMARY OF COMMITTEE CHANGES
ARTICLE 1
SECTION 1.01. Differs from the original to conform to new language added
to Article 42.014, Code of Criminal Procedure, in the Substitute. Deletes
text pertaining to assessment in the punishment phase of the trial.
SECTION 1.02. Differs from the original by amending and clarifying the
requirement, in certain situations, that the judge make an affirmative
finding of fact. Removes specific references to the punishment phase of
trial.
SECTION 1.03. No change.
ARTICLE 2
SECTION 2.01. Differs from the original by increasing the limit of a
county's eligibility for a grant under this article from those with
populations of less than 50,000 to those with populations of less than
125,000. Amends certain criteria relating to expenditures of a county to
include expenses for certain offences or (rather than and) certain other
offenses. Amends to clarify certain cited offenses. Deletes proposed
Article 104.005(f), Code of Criminal Procedure, relating to a county's
application for reimbursement.
SECTION 2.02. No change.
ARTICLE 3
SECTION 3.01. Differs from the original by deleting proposed Section
140.004, Civil Practices and Remedies Code, relating to actions for
injunctive or other relief by a state or local attorney. Redesignates
proposed Sections 140.005 - 140.010 to Sections 140.004 - 140.009.
SECTION 3.02. No change.
SECTION 3.03. No change.
ARTICLE 4
Differs from the original by redesignating former ARTICLE 4 (effective
date) to ARTICLE 6.
SECTION 4.01. Differs from the original by adding provisions relating to
protective orders.
SECTION 4.02. Differs from the original by adding provisions relating to
the violation of protective orders.
ARTICLE 5
Adds provisions relating to hate crime reporting and reporting to the Texas
Judicial Council.
ARTICLE 6
Added by redesignation with no change.