77R7869 GWK-D
By Thompson, Haggerty, Gallego, Sadler, H.B. No. 587
Danburg, et al.
Substitute the following for H.B. No. 587:
By Thompson C.S.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
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, Penal Code, or Section 28.02, 28.03, or
2-11 28.08, [the] Penal Code, the judge [if the court determines that
2-12 the defendant intentionally selected the victim primarily because
2-13 of the defendant's bias or prejudice against a group, the court]
2-14 shall make an affirmative finding of [that] fact and enter the
2-15 affirmative finding in the judgment of the [that] case if at the
2-16 guilt or innocence phase of the trial, the judge or the jury,
2-17 whichever is the trier of fact, determines beyond a reasonable
2-18 doubt that the defendant intentionally selected the person against
2-19 whom the offense was committed or intentionally selected property
2-20 damaged or affected as a result of the offense because of the
2-21 defendant's bias or prejudice against a group identified by race,
2-22 color, disability, religion, national origin or ancestry, age,
2-23 gender, or sexual orientation.
2-24 SECTION 1.03. (a) The change in the law made by this
2-25 article applies only to an offense committed on or after the
2-26 effective date of this Act. For purposes of this section, an
2-27 offense is committed before the effective date of this Act if any
3-1 element of the offense occurs before the effective date.
3-2 (b) An offense committed before the effective date of this
3-3 Act is covered by the law in effect when the offense was committed,
3-4 and the former law is continued in effect for that purpose.
3-5 ARTICLE 2
3-6 SECTION 2.01. Chapter 104, Code of Criminal Procedure, is
3-7 amended by adding Article 104.005 to read as follows:
3-8 Art. 104.005. EXTRAORDINARY PROSECUTION COSTS. (a) The
3-9 criminal justice division of the governor's office shall distribute
3-10 grants as provided by this article.
3-11 (b) A county with a population of less than 125,000 is
3-12 eligible to apply to the division for a grant under this article
3-13 if, during the preceding fiscal year:
3-14 (1) the total amount of expenditures of the county
3-15 exceeded the total amount of funds received by the county from all
3-16 sources and the county incurred expenses for the investigation or
3-17 prosecution of an offense alleged by the attorney representing the
3-18 state to have been committed because of bias or prejudice as
3-19 described by Article 42.014; or
3-20 (2) the total amount of funds received by the county
3-21 from all sources exceeded the total amount of expenditures of the
3-22 county and the county incurred expenses for the investigation or
3-23 prosecution of an offense described by Subdivision (1) that exceed
3-24 five percent of the amount of that excess.
3-25 (c) The commissioners court must submit with an application
3-26 under Subsection (b) a financial statement of the county that shows
3-27 for the fiscal year for which application is made:
4-1 (1) the total amount of funds received by the county
4-2 from all sources;
4-3 (2) the total amount of expenditures of the county;
4-4 and
4-5 (3) the total amount of expenses incurred by the
4-6 county for the investigation or prosecution of an offense described
4-7 by Subsection (b)(1).
4-8 (d) The division may make a grant under this article only to
4-9 an eligible county for the reimbursement of expenses incurred by
4-10 the county during the fiscal year for which application is made for
4-11 the investigation or prosecution of an offense described by
4-12 Subsection (b)(1). The amount of the grant to a county eligible
4-13 under Subsection (b)(2) may not exceed an amount equal to five
4-14 percent of the difference between the total amount of funds
4-15 received by the county and the total amount of expenditures of the
4-16 county during the fiscal year for which application is made.
4-17 (e) The division may adopt a budget and rules for the making
4-18 of grants under this article. All grants made to a county under
4-19 this article and its expenditure by the county are subject to audit
4-20 by the state auditor.
4-21 SECTION 2.02. The commissioners court of a county may apply
4-22 to the criminal justice division of the governor's office for a
4-23 grant, as provided by Article 104.005, Code of Criminal Procedure,
4-24 as added by this article, on or after September 1, 2001.
4-25 ARTICLE 3
4-26 SECTION 3.01. Title 6, Civil Practice and Remedies Code, is
4-27 amended by adding Chapter 140 to read as follows:
5-1 CHAPTER 140. REMEDIES FOR AND PROTECTIONS
5-2 AGAINST HATEFUL ACTS
5-3 Sec. 140.001. DEFINITIONS. In this chapter:
5-4 (1) "Claimant" means a party seeking the relief
5-5 provided by this chapter, including a plaintiff, counterclaimant,
5-6 cross-claimant, or third-party plaintiff.
5-7 (2) "Defendant" includes any party from whom a
5-8 claimant seeks relief under this chapter.
5-9 Sec. 140.002. RIGHT TO BE FREE FROM HATEFUL ACTS. An
5-10 individual in this state has the right to be free from an act of
5-11 violence, or intimidation by threat of violence, committed against
5-12 the person or property of the individual because:
5-13 (1) of the individual's race, color, disability,
5-14 religion, national origin or ancestry, age, gender, or sexual
5-15 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, by threat, intimidation, or
5-21 coercion, or by an attempt to interfere by threat, intimidation, or
5-22 coercion, may commence, in the individual's own name, an action
5-23 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;
5-27 (2) exemplary damages as provided under Chapter 41;
6-1 and
6-2 (3) injunctive relief or any other appropriate relief
6-3 to protect the peaceable exercise or enjoyment of the right secured
6-4 by Section 140.002.
6-5 (b) A court shall award a claimant who prevails in an action
6-6 under this chapter reasonable attorney's fees incurred in bringing
6-7 the action.
6-8 Sec. 140.004. CONTENT OF SPEECH. (a) An action under this
6-9 chapter may not be based solely on the content of the speech of the
6-10 defendant unless it is shown that:
6-11 (1) the speech itself threatens violence against a
6-12 specific individual or group of individuals;
6-13 (2) the individual or group against whom the threat is
6-14 directed reasonably fears that, because of the content of the
6-15 speech, violence will be committed against the individual or the
6-16 group or the property of the individual or group; and
6-17 (3) the defendant threatening violence had the
6-18 apparent ability to carry out the threat.
6-19 (b) A court may not issue an order under this chapter that
6-20 restricts the content of any defendant's speech.
6-21 (c) The court may issue an order that restricts the time,
6-22 place, or manner of the defendant's speech only to the extent:
6-23 (1) reasonably necessary to protect the peaceable
6-24 exercise or enjoyment by an individual of the right secured by
6-25 Section 140.002; and
6-26 (2) consistent with the constitutional rights of the
6-27 defendant.
7-1 Sec. 140.005. FORUM. An action under this chapter may be
7-2 brought in a district or county court.
7-3 Sec. 140.006. ENFORCEMENT. An order issued under this
7-4 chapter is enforceable by contempt, prosecution under Section
7-5 22.12, Penal Code, or both.
7-6 Sec. 140.007. WARNING. An order for temporary or permanent
7-7 relief under this chapter must include the following statement:
7-8 "A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED BY
7-9 THIS ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY
7-10 CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR, OR BOTH."
7-11 Sec. 140.008. NOTIFICATION OF LAW ENFORCEMENT AGENCIES. (a)
7-12 A court that issues an order for temporary or permanent relief
7-13 under this chapter shall order the claimant or the attorney for the
7-14 claimant to deliver, or the clerk of the court to mail, two copies
7-15 of the order before the end of the day on which the order was
7-16 granted to:
7-17 (1) each local law enforcement agency designated by
7-18 the claimant or the attorney for the claimant as having
7-19 jurisdiction over the residence of the claimant; and
7-20 (2) any other location in which the court determines
7-21 that hateful acts against the claimant are likely to occur.
7-22 (b) A law enforcement agency that receives an order under
7-23 this section shall:
7-24 (1) serve a copy on the defendant; and
7-25 (2) provide to any law enforcement officer responding
7-26 to the scene of a reported hateful act against the claimant
7-27 information relating to the existence of, terms of, and current
8-1 status of the order.
8-2 (c) In this section, "order" includes any extension,
8-3 modification, or termination of the order.
8-4 (d) The court shall require a constable to serve an order
8-5 issued under this section.
8-6 Sec. 140.009. INDEPENDENT REMEDY. An action under this
8-7 chapter is independent of any other remedy or procedure that may be
8-8 available to the claimant.
8-9 SECTION 3.02. Chapter 22, Penal Code, is amended by adding
8-10 Section 22.12 to read as follows:
8-11 Sec. 22.12. VIOLATION OF ORDER ENJOINING HATEFUL ACTS. (a)
8-12 A person commits an offense if, in violation of an order for
8-13 temporary or permanent injunctive relief issued under Chapter 140,
8-14 Civil Practice and Remedies Code, the person knowingly violates the
8-15 order.
8-16 (b) An offense under this section is a Class B misdemeanor
8-17 unless it is shown on the trial of the offense that the defendant
8-18 has previously been convicted under this section two or more times,
8-19 in which event the offense is a Class A misdemeanor.
8-20 SECTION 3.03. Chapter 140, Civil Practice and Remedies Code,
8-21 as added by this article, applies only to a cause of action that
8-22 accrues on or after the effective date of this Act. An action that
8-23 accrued before the effective date of this Act is governed by the
8-24 law applicable to the action immediately before the effective date
8-25 of this Act, and that law is continued in effect for that purpose.
8-26 ARTICLE 4
8-27 SECTION 4.01. Chapter 6, Code of Criminal Procedure, is
9-1 amended by adding Article 6.08 to read as follows:
9-2 Art. 6.08. PROTECTIVE ORDER PROHIBITING OFFENSE CAUSED BY
9-3 BIAS OR PREJUDICE. (a) At any proceeding in which the defendant
9-4 appears in constitutional county court, statutory county court, or
9-5 district court that is related to an offense under Title 5, Penal
9-6 Code, or Section 28.02, 28.03, or 28.08, Penal Code, in which it is
9-7 alleged that the defendant committed the offense because of bias or
9-8 prejudice as described by Article 42.014, a person may request the
9-9 court to render a protective order under Title 4, Family Code, for
9-10 the protection of the person.
9-11 (b) The court shall render a protective order in the manner
9-12 provided by Title 4, Family Code, if, in lieu of the finding that
9-13 family violence occurred and is likely to occur in the future as
9-14 required by Section 85.001, Family Code, the court finds that
9-15 probable cause exists to believe that an offense under Title 5,
9-16 Penal Code, or Section 28.02, 28.03, or 28.08, Penal Code,
9-17 occurred, that the defendant committed the offense because of bias
9-18 or prejudice, and that the nature of the scheme or course of
9-19 conduct engaged in by the defendant in the commission of the
9-20 offense indicates that the defendant is likely to engage in the
9-21 future in conduct prohibited by Title 5, Penal Code, or Section
9-22 28.02, 28.03, or 28.08, Penal Code, and committed because of bias
9-23 or prejudice.
9-24 (c) The procedure for the enforcement of a protective order
9-25 under Title 4, Family Code, applies to the fullest extent
9-26 practicable to the enforcement of a protective order under this
9-27 article, including provisions relating to findings, contents,
10-1 duration, warning, delivery, law enforcement duties, and
10-2 modification, except that:
10-3 (1) the printed statement on the warning must refer to
10-4 the prosecution of subsequent offenses committed because of bias or
10-5 prejudice;
10-6 (2) the court shall require a constable to serve a
10-7 protective order issued under this article; and
10-8 (3) the clerk of the court shall forward a copy of a
10-9 protective order issued under this article to the Department of
10-10 Public Safety with a designation indicating that the order was
10-11 issued to prevent offenses committed because of bias or prejudice.
10-12 (d) For an original or modified protective order rendered
10-13 under this article, on receipt of the order from the clerk of the
10-14 court, a law enforcement agency shall immediately, but not later
10-15 than the 10th day after the date the order is received, enter the
10-16 information required by Section 411.042(b)(6), Government Code,
10-17 into the statewide law enforcement information system maintained by
10-18 the Department of Public Safety.
10-19 SECTION 4.02. Chapter 25, Penal Code, is amended by adding
10-20 Section 25.071 to read as follows:
10-21 Sec. 25.071. VIOLATION OF PROTECTIVE ORDER PREVENTING
10-22 OFFENSE CAUSED BY BIAS OR PREJUDICE. (a) A person commits an
10-23 offense if, in violation of an order issued under Article 6.08,
10-24 Code of Criminal Procedure, the person knowingly or intentionally:
10-25 (1) commits an offense under Title 5 or Section 28.02,
10-26 28.03, or 28.08 and commits the offense because of bias or
10-27 prejudice as described by Article 42.014, Code of Criminal
11-1 Procedure;
11-2 (2) communicates:
11-3 (A) directly with a protected individual in a
11-4 threatening or harassing manner;
11-5 (B) a threat through any person to a protected
11-6 individual; or
11-7 (C) in any manner with the protected individual,
11-8 if the order prohibits any communication with a protected
11-9 individual; or
11-10 (3) goes to or near the residence or place of
11-11 employment or business of a protected individual.
11-12 (b) If conduct constituting an offense under this section
11-13 also constitutes an offense under another section of this code, the
11-14 actor may be prosecuted under either section or under both
11-15 sections.
11-16 (c) A peace officer investigating conduct that may
11-17 constitute an offense under this section for a violation of an
11-18 order may not arrest a person protected by that order for a
11-19 violation of that order.
11-20 (d) An offense under this section is a Class A misdemeanor
11-21 unless it is shown on the trial of the offense that the defendant
11-22 has previously been convicted under this section two or more times
11-23 or has violated the protective order by committing an assault, in
11-24 which event the offense is a third degree felony.
11-25 ARTICLE 5
11-26 SECTION 5.01. Chapter 2, Code of Criminal Procedure, is
11-27 amended by adding Article 2.211 to read as follows:
12-1 Art. 2.211. HATE CRIME REPORTING. In addition to performing
12-2 duties required by Article 2.21, a clerk of a district or county
12-3 court in which an affirmative finding under Article 42.014 is
12-4 requested shall report that request to the Texas Judicial Council,
12-5 along with a statement as to whether the request was granted by the
12-6 court and, if so, whether the affirmative finding was entered in
12-7 the judgment in the case. The clerk shall make the report required
12-8 by this article not later than the 30th day after the date the
12-9 judgment is entered in the case.
12-10 SECTION 5.02. Section 71.034, Government Code, is amended by
12-11 adding Subsection (e) to read as follows:
12-12 (e) In addition to the information described by Subsection
12-13 (a), the council shall include in the report a summary of
12-14 information provided to the council during the preceding year under
12-15 Article 2.211, Code of Criminal Procedure.
12-16 ARTICLE 6
12-17 SECTION 6.01. This Act takes effect September 1, 2001.