By Thompson, Haggerty, Gallego, Sadler, H.B. No. 587
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 civil and criminal
1-4 remedies for and 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, is made in the [punishment
1-13 phase of the] trial of an offense other than a first degree felony
1-14 or a Class A misdemeanor, the punishment for the offense is
1-15 increased to the punishment prescribed for the next highest
1-16 category of offense. If the offense is a Class A misdemeanor, the
1-17 minimum term of confinement for the offense is increased to 180
1-18 days. This section does not apply to the trial of an offense of
1-19 injury to a disabled individual under Section 22.04, if the
1-20 affirmative finding in the case under Article 42.014, Code of
1-21 Criminal Procedure, shows that the defendant intentionally selected
1-22 the victim because the victim 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
2-9 an offense under Title 5, Penal Code, or Section 28.02, 28.03, or
2-10 28.08, [the] Penal Code, the judge [if the court determines that
2-11 the defendant intentionally selected the victim primarily because
2-12 of the defendant's bias or prejudice against a group, the court]
2-13 shall make an affirmative finding of [that] fact and enter the
2-14 affirmative finding in the judgment of the [that] case if at the
2-15 guilt or innocence phase of the trial, the judge or the jury,
2-16 whichever is the trier of fact, determines beyond a reasonable
2-17 doubt that the defendant intentionally selected the person against
2-18 whom the offense was committed or intentionally selected property
2-19 damaged or affected as a result of the offense because of the
2-20 defendant's bias or prejudice against a group identified by race,
2-21 color, disability, religion, national origin or ancestry, age,
2-22 gender, or sexual preference.
2-23 (b) In this article, "sexual preference" has the following
2-24 meaning only: a preference for heterosexuality, homosexuality, or
2-25 bisexuality.
2-26 SECTION 1.03. (a) The change in the law made by this
2-27 article applies only to an offense committed on or after the
3-1 effective date of this Act. For purposes of this section, an
3-2 offense is committed before the effective date of this Act if any
3-3 element of the offense occurs before the effective date.
3-4 (b) An offense committed before the effective date of this
3-5 Act is covered by the law in effect when the offense was committed,
3-6 and the former law is continued in effect for that purpose.
3-7 ARTICLE 2
3-8 SECTION 2.01. Chapter 104, Code of Criminal Procedure, is
3-9 amended by adding Article 104.005 to read as follows:
3-10 Art. 104.005. EXTRAORDINARY PROSECUTION COSTS. (a) The
3-11 criminal justice division of the governor's office shall distribute
3-12 grants as provided by this article.
3-13 (b) A county with a population of less than 125,000 is
3-14 eligible to apply to the division for a grant under this article
3-15 if, during the preceding fiscal year:
3-16 (1) the total amount of expenditures of the county
3-17 exceeded the total amount of funds received by the county from all
3-18 sources and the county incurred expenses for the investigation or
3-19 prosecution of an offense alleged by the attorney representing the
3-20 state to have been committed because of bias or prejudice as
3-21 described by Article 42.014; or
3-22 (2) the total amount of funds received by the county
3-23 from all sources exceeded the total amount of expenditures of the
3-24 county and the county incurred expenses for the investigation or
3-25 prosecution of an offense described by Subdivision (1) that exceed
3-26 five percent of the amount of that excess.
3-27 (c) The commissioners court must submit with an application
4-1 under Subsection (b) a financial statement of the county that shows
4-2 for the fiscal year for which application is made:
4-3 (1) the total amount of funds received by the county
4-4 from all sources;
4-5 (2) the total amount of expenditures of the county;
4-6 and
4-7 (3) the total amount of expenses incurred by the
4-8 county for the investigation or prosecution of an offense described
4-9 by Subsection (b)(1).
4-10 (d) The division may make a grant under this article only to
4-11 an eligible county for the reimbursement of expenses incurred by
4-12 the county during the fiscal year for which application is made for
4-13 the investigation or prosecution of an offense described by
4-14 Subsection (b)(1). The amount of the grant to a county eligible
4-15 under Subsection (b)(2) may not exceed an amount equal to five
4-16 percent of the difference between the total amount of funds
4-17 received by the county and the total amount of expenditures of the
4-18 county during the fiscal year for which application is made.
4-19 (e) The division may adopt a budget and rules for the making
4-20 of grants under this article. All grants made to a county under
4-21 this article and its expenditure by the county are subject to audit
4-22 by the state auditor.
4-23 SECTION 2.02. The commissioners court of a county may apply
4-24 to the criminal justice division of the governor's office for a
4-25 grant, as provided by Article 104.005, Code of Criminal Procedure,
4-26 as added by this article, on or after September 1, 2001.
4-27 ARTICLE 3
5-1 SECTION 3.01. Title 6, Civil Practice and Remedies Code, is
5-2 amended by adding Chapter 140 to read as follows:
5-3 CHAPTER 140. REMEDIES FOR AND PROTECTIONS
5-4 AGAINST HATEFUL ACTS
5-5 Sec. 140.001. DEFINITIONS. In this chapter:
5-6 (1) "Claimant" means a party seeking the relief
5-7 provided by this chapter, including a plaintiff, counterclaimant,
5-8 cross-claimant, or third-party plaintiff.
5-9 (2) "Defendant" includes any party from whom a
5-10 claimant seeks relief under this chapter.
5-11 (3) "Sexual preference" has the meaning assigned by
5-12 Article 42.014(b), Code of Criminal Procedure.
5-13 Sec. 140.002. RIGHT TO BE FREE FROM HATEFUL ACTS. A person
5-14 in this state has the right to be free from an act of violence
5-15 committed against the person or the person's property because of
5-16 the person's race, color, disability, religion, national origin or
5-17 ancestry, age, gender, or sexual preference.
5-18 Sec. 140.003. ACTION BY PERSON. (a) A person whose
5-19 exercise or enjoyment of the right secured by Section 140.002 is
5-20 intentionally violated by another person may commence in the
5-21 person's own name an action for:
5-22 (1) damages to the person arising from the intentional
5-23 actions of the defendant in violating the exercise or enjoyment by
5-24 the person of the right secured by Section 140.002;
5-25 (2) exemplary damages as provided by Chapter 41; and
5-26 (3) injunctive relief or any other appropriate relief
5-27 to protect the exercise or enjoyment of the right secured by
6-1 Section 140.002.
6-2 (b) A court shall award a party who prevails in an action
6-3 under this section reasonable attorney's fees in bringing or
6-4 defending the action.
6-5 Sec. 140.004. INDEPENDENT REMEDY. An action under this
6-6 chapter is independent of any other remedy or procedure that may be
6-7 available to the claimant.
6-8 SECTION 3.02. Chapter 140, Civil Practice and Remedies Code,
6-9 as added by this article, applies only to a cause of action that
6-10 accrues on or after the effective date of this Act. An action that
6-11 accrued before the effective date of this Act is governed by the
6-12 law applicable to the action immediately before the effective date
6-13 of this Act, and that law is continued in effect for that purpose.
6-14 ARTICLE 4
6-15 SECTION 4.01. Chapter 6, Code of Criminal Procedure, is
6-16 amended by adding Article 6.08 to read as follows:
6-17 Art. 6.08. PROTECTIVE ORDER PROHIBITING OFFENSE CAUSED BY
6-18 BIAS OR PREJUDICE. (a) At any proceeding in which the defendant
6-19 appears in constitutional county court, statutory county court, or
6-20 district court that is related to an offense under Title 5, Penal
6-21 Code, or Section 28.02, 28.03, or 28.08, Penal Code, in which it is
6-22 alleged that the defendant committed the offense because of bias or
6-23 prejudice as described by Article 42.014, a person may request the
6-24 court to render a protective order under Title 4, Family Code, for
6-25 the protection of the person.
6-26 (b) The court shall render a protective order in the manner
6-27 provided by Title 4, Family Code, if, in lieu of the finding that
7-1 family violence occurred and is likely to occur in the future as
7-2 required by Section 85.001, Family Code, the court finds that
7-3 probable cause exists to believe that an offense under Title 5,
7-4 Penal Code, or Section 28.02, 28.03, or 28.08, Penal Code,
7-5 occurred, that the defendant committed the offense because of bias
7-6 or prejudice, and that the nature of the scheme or course of
7-7 conduct engaged in by the defendant in the commission of the
7-8 offense indicates that the defendant is likely to engage in the
7-9 future in conduct prohibited by Title 5, Penal Code, or Section
7-10 28.02, 28.03, or 28.08, Penal Code, and committed because of bias
7-11 or prejudice.
7-12 (c) The procedure for the enforcement of a protective order
7-13 under Title 4, Family Code, applies to the fullest extent
7-14 practicable to the enforcement of a protective order under this
7-15 article, including provisions relating to findings, contents,
7-16 duration, warning, delivery, law enforcement duties, and
7-17 modification, except that:
7-18 (1) the printed statement on the warning must refer to
7-19 the prosecution of subsequent offenses committed because of bias or
7-20 prejudice;
7-21 (2) the court shall require a constable to serve a
7-22 protective order issued under this article; and
7-23 (3) the clerk of the court shall forward a copy of a
7-24 protective order issued under this article to the Department of
7-25 Public Safety with a designation indicating that the order was
7-26 issued to prevent offenses committed because of bias or prejudice.
7-27 (d) For an original or modified protective order rendered
8-1 under this article, on receipt of the order from the clerk of the
8-2 court, a law enforcement agency shall immediately, but not later
8-3 than the 10th day after the date the order is received, enter the
8-4 information required by Section 411.042(b)(6), Government Code,
8-5 into the statewide law enforcement information system maintained by
8-6 the Department of Public Safety.
8-7 SECTION 4.02. Chapter 25, Penal Code, is amended by adding
8-8 Section 25.071 to read as follows:
8-9 Sec. 25.071. VIOLATION OF PROTECTIVE ORDER PREVENTING
8-10 OFFENSE CAUSED BY BIAS OR PREJUDICE. (a) A person commits an
8-11 offense if, in violation of an order issued under Article 6.08,
8-12 Code of Criminal Procedure, the person knowingly or intentionally:
8-13 (1) commits an offense under Title 5 or Section 28.02,
8-14 28.03, or 28.08 and commits the offense because of bias or
8-15 prejudice as described by Article 42.014, Code of Criminal
8-16 Procedure;
8-17 (2) communicates:
8-18 (A) directly with a protected individual in a
8-19 threatening or harassing manner;
8-20 (B) a threat through any person to a protected
8-21 individual; or
8-22 (C) in any manner with the protected individual,
8-23 if the order prohibits any communication with a protected
8-24 individual; or
8-25 (3) goes to or near the residence or place of
8-26 employment or business of a protected individual.
8-27 (b) If conduct constituting an offense under this section
9-1 also constitutes an offense under another section of this code, the
9-2 actor may be prosecuted under either section or under both
9-3 sections.
9-4 (c) A peace officer investigating conduct that may
9-5 constitute an offense under this section for a violation of an
9-6 order may not arrest a person protected by that order for a
9-7 violation of that order.
9-8 (d) An offense under this section is a Class A misdemeanor
9-9 unless it is shown on the trial of the offense that the defendant
9-10 has previously been convicted under this section two or more times
9-11 or has violated the protective order by committing an assault, in
9-12 which event the offense is a third degree felony.
9-13 ARTICLE 5
9-14 SECTION 5.01. Chapter 2, Code of Criminal Procedure, is
9-15 amended by adding Article 2.211 to read as follows:
9-16 Art. 2.211. HATE CRIME REPORTING. In addition to performing
9-17 duties required by Article 2.21, a clerk of a district or county
9-18 court in which an affirmative finding under Article 42.014 is
9-19 requested shall report that request to the Texas Judicial Council,
9-20 along with a statement as to whether the request was granted by the
9-21 court and, if so, whether the affirmative finding was entered in
9-22 the judgment in the case. The clerk shall make the report required
9-23 by this article not later than the 30th day after the date the
9-24 judgment is entered in the case.
9-25 SECTION 5.02. Section 71.034, Government Code, is amended by
9-26 adding Subsection (e) to read as follows:
9-27 (e) In addition to the information described by Subsection
10-1 (a), the council shall include in the report a summary of
10-2 information provided to the council during the preceding year under
10-3 Article 2.211, Code of Criminal Procedure.
10-4 ARTICLE 6
10-5 SECTION 6.01. (a) This Act does not create any legal status
10-6 or right not already existent in statute or common law for a group
10-7 or a member of a group described by Article 42.014(a), Code of
10-8 Criminal Procedure, as amended by this Act, and Section 140.002,
10-9 Civil Practice and Remedies Code, as added by this Act.
10-10 (b) This Act shall be used only to protect individuals from
10-11 being targets of hateful acts of violence simply because those
10-12 individuals are members of a group described by Article 42.014(a),
10-13 Code of Criminal Procedure, as amended by this Act, and Section
10-14 140.002, Civil Practice and Remedies Code, as added by this Act.
10-15 ARTICLE 7
10-16 SECTION 7.01. This Act takes effect September 1, 2001.