1-1 By: Thompson, et al. (Senate Sponsor - Ellis) H.B. No. 587
1-2 (In the Senate - Received from the House April 25, 2001;
1-3 April 26, 2001, read first time and referred to Committee on
1-4 Criminal Justice; May 4, 2001, reported favorably by the following
1-5 vote: Yeas 5, Nays 1; May 4, 2001, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the investigation and prosecution of an offense
1-9 motivated by bias or prejudice and to other civil and criminal
1-10 remedies for and protections against certain hateful acts.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 ARTICLE 1
1-13 SECTION 1.01. Section 12.47, Penal Code, is amended to read
1-14 as follows:
1-15 Sec. 12.47. PENALTY IF OFFENSE COMMITTED BECAUSE OF BIAS OR
1-16 PREJUDICE. (a) If [the judge or jury, whichever assesses
1-17 punishment in the case, makes] an affirmative finding under Article
1-18 42.014, Code of Criminal Procedure, is made in the [punishment
1-19 phase of the] trial of an offense other than a first degree felony
1-20 or a Class A misdemeanor, the punishment for the offense is
1-21 increased to the punishment prescribed for the next highest
1-22 category of offense. If the offense is a Class A misdemeanor, the
1-23 minimum term of confinement for the offense is increased to 180
1-24 days. This section does not apply to the trial of an offense of
1-25 injury to a disabled individual under Section 22.04, if the
1-26 affirmative finding in the case under Article 42.014, Code of
1-27 Criminal Procedure, shows that the defendant intentionally selected
1-28 the victim because the victim was disabled.
1-29 (b) The attorney general, if requested to do so by a
1-30 prosecuting attorney, may assist the prosecuting attorney in the
1-31 investigation or prosecution of an offense committed because of
1-32 bias or prejudice. The attorney general shall designate one
1-33 individual in the division of the attorney general's office that
1-34 assists in the prosecution of criminal cases to coordinate
1-35 responses to requests made under this subsection.
1-36 SECTION 1.02. Article 42.014, Code of Criminal Procedure, is
1-37 amended to read as follows:
1-38 Art. 42.014. FINDING THAT OFFENSE WAS COMMITTED BECAUSE OF
1-39 BIAS OR PREJUDICE. (a) In the [punishment phase of the] trial of
1-40 an offense under Title 5, Penal Code, or Section 28.02, 28.03, or
1-41 28.08, [the] Penal Code, the judge [if the court determines that
1-42 the defendant intentionally selected the victim primarily because
1-43 of the defendant's bias or prejudice against a group, the court]
1-44 shall make an affirmative finding of [that] fact and enter the
1-45 affirmative finding in the judgment of the [that] case if at the
1-46 guilt or innocence phase of the trial, the judge or the jury,
1-47 whichever is the trier of fact, determines beyond a reasonable
1-48 doubt that the defendant intentionally selected the person against
1-49 whom the offense was committed or intentionally selected property
1-50 damaged or affected as a result of the offense because of the
1-51 defendant's bias or prejudice against a group identified by race,
1-52 color, disability, religion, national origin or ancestry, age,
1-53 gender, or sexual preference.
1-54 (b) In this article, "sexual preference" has the following
1-55 meaning only: a preference for heterosexuality, homosexuality, or
1-56 bisexuality.
1-57 SECTION 1.03. (a) The change in the law made by this
1-58 article applies only to an offense committed on or after the
1-59 effective date of this Act. For purposes of this section, an
1-60 offense is committed before the effective date of this Act if any
1-61 element of the offense occurs before the effective date.
1-62 (b) An offense committed before the effective date of this
1-63 Act is covered by the law in effect when the offense was committed,
1-64 and the former law is continued in effect for that purpose.
2-1 ARTICLE 2
2-2 SECTION 2.01. Chapter 104, Code of Criminal Procedure, is
2-3 amended by adding Article 104.005 to read as follows:
2-4 Art. 104.005. EXTRAORDINARY PROSECUTION COSTS. (a) The
2-5 criminal justice division of the governor's office shall distribute
2-6 grants as provided by this article.
2-7 (b) A county with a population of less than 125,000 is
2-8 eligible to apply to the division for a grant under this article
2-9 if, during the preceding fiscal year:
2-10 (1) the total amount of expenditures of the county
2-11 exceeded the total amount of funds received by the county from all
2-12 sources and the county incurred expenses for the investigation or
2-13 prosecution of an offense alleged by the attorney representing the
2-14 state to have been committed because of bias or prejudice as
2-15 described by Article 42.014; or
2-16 (2) the total amount of funds received by the county
2-17 from all sources exceeded the total amount of expenditures of the
2-18 county and the county incurred expenses for the investigation or
2-19 prosecution of an offense described by Subdivision (1) that exceed
2-20 five percent of the amount of that excess.
2-21 (c) The commissioners court must submit with an application
2-22 under Subsection (b) a financial statement of the county that shows
2-23 for the fiscal year for which application is made:
2-24 (1) the total amount of funds received by the county
2-25 from all sources;
2-26 (2) the total amount of expenditures of the county;
2-27 and
2-28 (3) the total amount of expenses incurred by the
2-29 county for the investigation or prosecution of an offense described
2-30 by Subsection (b)(1).
2-31 (d) The division may make a grant under this article only to
2-32 an eligible county for the reimbursement of expenses incurred by
2-33 the county during the fiscal year for which application is made for
2-34 the investigation or prosecution of an offense described by
2-35 Subsection (b)(1). The amount of the grant to a county eligible
2-36 under Subsection (b)(2) may not exceed an amount equal to five
2-37 percent of the difference between the total amount of funds
2-38 received by the county and the total amount of expenditures of the
2-39 county during the fiscal year for which application is made.
2-40 (e) The division may adopt a budget and rules for the making
2-41 of grants under this article. All grants made to a county under
2-42 this article and its expenditure by the county are subject to audit
2-43 by the state auditor.
2-44 SECTION 2.02. The commissioners court of a county may apply
2-45 to the criminal justice division of the governor's office for a
2-46 grant, as provided by Article 104.005, Code of Criminal Procedure,
2-47 as added by this article, on or after September 1, 2001.
2-48 ARTICLE 3
2-49 SECTION 3.01. Title 6, Civil Practice and Remedies Code, is
2-50 amended by adding Chapter 140 to read as follows:
2-51 CHAPTER 140. REMEDIES FOR AND PROTECTIONS
2-52 AGAINST HATEFUL ACTS
2-53 Sec. 140.001. DEFINITIONS. In this chapter:
2-54 (1) "Claimant" means a party seeking the relief
2-55 provided by this chapter, including a plaintiff, counterclaimant,
2-56 cross-claimant, or third-party plaintiff.
2-57 (2) "Defendant" includes any party from whom a
2-58 claimant seeks relief under this chapter.
2-59 (3) "Sexual preference" has the meaning assigned by
2-60 Article 42.014(b), Code of Criminal Procedure.
2-61 Sec. 140.002. RIGHT TO BE FREE FROM HATEFUL ACTS. A person
2-62 in this state has the right to be free from an act of violence
2-63 committed against the person or the person's property because of
2-64 the person's race, color, disability, religion, national origin or
2-65 ancestry, age, gender, or sexual preference.
2-66 Sec. 140.003. ACTION BY PERSON. (a) A person whose
2-67 exercise or enjoyment of the right secured by Section 140.002 is
2-68 intentionally violated by another person may commence in the
2-69 person's own name an action for:
3-1 (1) damages to the person arising from the intentional
3-2 actions of the defendant in violating the exercise or enjoyment by
3-3 the person of the right secured by Section 140.002;
3-4 (2) exemplary damages as provided by Chapter 41; and
3-5 (3) injunctive relief or any other appropriate relief
3-6 to protect the exercise or enjoyment of the right secured by
3-7 Section 140.002.
3-8 (b) A court shall award a party who prevails in an action
3-9 under this section reasonable attorney's fees in bringing or
3-10 defending the action.
3-11 Sec. 140.004. INDEPENDENT REMEDY. An action under this
3-12 chapter is independent of any other remedy or procedure that may be
3-13 available to the claimant.
3-14 SECTION 3.02. Chapter 140, Civil Practice and Remedies Code,
3-15 as added by this article, applies only to a cause of action that
3-16 accrues on or after the effective date of this Act. An action that
3-17 accrued before the effective date of this Act is governed by the
3-18 law applicable to the action immediately before the effective date
3-19 of this Act, and that law is continued in effect for that purpose.
3-20 ARTICLE 4
3-21 SECTION 4.01. Chapter 6, Code of Criminal Procedure, is
3-22 amended by adding Article 6.08 to read as follows:
3-23 Art. 6.08. PROTECTIVE ORDER PROHIBITING OFFENSE CAUSED BY
3-24 BIAS OR PREJUDICE. (a) At any proceeding in which the defendant
3-25 appears in constitutional county court, statutory county court, or
3-26 district court that is related to an offense under Title 5, Penal
3-27 Code, or Section 28.02, 28.03, or 28.08, Penal Code, in which it is
3-28 alleged that the defendant committed the offense because of bias or
3-29 prejudice as described by Article 42.014, a person may request the
3-30 court to render a protective order under Title 4, Family Code, for
3-31 the protection of the person.
3-32 (b) The court shall render a protective order in the manner
3-33 provided by Title 4, Family Code, if, in lieu of the finding that
3-34 family violence occurred and is likely to occur in the future as
3-35 required by Section 85.001, Family Code, the court finds that
3-36 probable cause exists to believe that an offense under Title 5,
3-37 Penal Code, or Section 28.02, 28.03, or 28.08, Penal Code,
3-38 occurred, that the defendant committed the offense because of bias
3-39 or prejudice, and that the nature of the scheme or course of
3-40 conduct engaged in by the defendant in the commission of the
3-41 offense indicates that the defendant is likely to engage in the
3-42 future in conduct prohibited by Title 5, Penal Code, or Section
3-43 28.02, 28.03, or 28.08, Penal Code, and committed because of bias
3-44 or prejudice.
3-45 (c) The procedure for the enforcement of a protective order
3-46 under Title 4, Family Code, applies to the fullest extent
3-47 practicable to the enforcement of a protective order under this
3-48 article, including provisions relating to findings, contents,
3-49 duration, warning, delivery, law enforcement duties, and
3-50 modification, except that:
3-51 (1) the printed statement on the warning must refer to
3-52 the prosecution of subsequent offenses committed because of bias or
3-53 prejudice;
3-54 (2) the court shall require a constable to serve a
3-55 protective order issued under this article; and
3-56 (3) the clerk of the court shall forward a copy of a
3-57 protective order issued under this article to the Department of
3-58 Public Safety with a designation indicating that the order was
3-59 issued to prevent offenses committed because of bias or prejudice.
3-60 (d) For an original or modified protective order rendered
3-61 under this article, on receipt of the order from the clerk of the
3-62 court, a law enforcement agency shall immediately, but not later
3-63 than the 10th day after the date the order is received, enter the
3-64 information required by Section 411.042(b)(6), Government Code,
3-65 into the statewide law enforcement information system maintained by
3-66 the Department of Public Safety.
3-67 SECTION 4.02. Chapter 25, Penal Code, is amended by adding
3-68 Section 25.071 to read as follows:
3-69 Sec. 25.071. VIOLATION OF PROTECTIVE ORDER PREVENTING
4-1 OFFENSE CAUSED BY BIAS OR PREJUDICE. (a) A person commits an
4-2 offense if, in violation of an order issued under Article 6.08,
4-3 Code of Criminal Procedure, the person knowingly or intentionally:
4-4 (1) commits an offense under Title 5 or Section 28.02,
4-5 28.03, or 28.08 and commits the offense because of bias or
4-6 prejudice as described by Article 42.014, Code of Criminal
4-7 Procedure;
4-8 (2) communicates:
4-9 (A) directly with a protected individual in a
4-10 threatening or harassing manner;
4-11 (B) a threat through any person to a protected
4-12 individual; or
4-13 (C) in any manner with the protected individual,
4-14 if the order prohibits any communication with a protected
4-15 individual; or
4-16 (3) goes to or near the residence or place of
4-17 employment or business of a protected individual.
4-18 (b) If conduct constituting an offense under this section
4-19 also constitutes an offense under another section of this code, the
4-20 actor may be prosecuted under either section or under both
4-21 sections.
4-22 (c) A peace officer investigating conduct that may
4-23 constitute an offense under this section for a violation of an
4-24 order may not arrest a person protected by that order for a
4-25 violation of that order.
4-26 (d) An offense under this section is a Class A misdemeanor
4-27 unless it is shown on the trial of the offense that the defendant
4-28 has previously been convicted under this section two or more times
4-29 or has violated the protective order by committing an assault, in
4-30 which event the offense is a third degree felony.
4-31 ARTICLE 5
4-32 SECTION 5.01. Chapter 2, Code of Criminal Procedure, is
4-33 amended by adding Article 2.211 to read as follows:
4-34 Art. 2.211. HATE CRIME REPORTING. In addition to performing
4-35 duties required by Article 2.21, a clerk of a district or county
4-36 court in which an affirmative finding under Article 42.014 is
4-37 requested shall report that request to the Texas Judicial Council,
4-38 along with a statement as to whether the request was granted by the
4-39 court and, if so, whether the affirmative finding was entered in
4-40 the judgment in the case. The clerk shall make the report required
4-41 by this article not later than the 30th day after the date the
4-42 judgment is entered in the case.
4-43 SECTION 5.02. Section 71.034, Government Code, is amended by
4-44 adding Subsection (e) to read as follows:
4-45 (e) In addition to the information described by Subsection
4-46 (a), the council shall include in the report a summary of
4-47 information provided to the council during the preceding year under
4-48 Article 2.211, Code of Criminal Procedure.
4-49 ARTICLE 6
4-50 SECTION 6.01. (a) This Act does not create any legal status
4-51 or right not already existent in statute or common law for a group
4-52 or a member of a group described by Article 42.014(a), Code of
4-53 Criminal Procedure, as amended by this Act, and Section 140.002,
4-54 Civil Practice and Remedies Code, as added by this Act.
4-55 (b) This Act shall be used only to protect individuals from
4-56 being targets of hateful acts of violence simply because those
4-57 individuals are members of a group described by Article 42.014(a),
4-58 Code of Criminal Procedure, as amended by this Act, and Section
4-59 140.002, Civil Practice and Remedies Code, as added by this Act.
4-60 ARTICLE 7
4-61 SECTION 7.01. This Act takes effect September 1, 2001.
4-62 * * * * *