By Ellis S.B. No. 87
77R1397 GWK-D
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 punishment
1-11 in the case, makes an affirmative finding under Article 42.014,
1-12 Code of Criminal Procedure, in the punishment phase of the trial of
1-13 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 beyond a
2-12 reasonable doubt that the defendant intentionally selected the
2-13 person against whom the offense was committed or intentionally
2-14 selected property damaged or affected as a result of the offense
2-15 because of the race, color, disability, religion, national origin
2-16 or ancestry, or sexual orientation of the person against whom the
2-17 offense was committed or the owner or the occupant of the property
2-18 [victim primarily because of the defendant's bias or prejudice
2-19 against a group], the court shall make an affirmative finding of
2-20 that fact and enter the affirmative finding in the judgment of that
2-21 case.
2-22 SECTION 1.03. (a) The change in the law made by this
2-23 article applies only to an offense committed on or after the
2-24 effective date of this Act. For purposes of this section, an
2-25 offense is committed before the effective date of this Act if any
2-26 element of the offense occurs before the effective date.
2-27 (b) An offense committed before the effective date of this
3-1 Act is covered by the law in effect when the offense was committed,
3-2 and the former law is continued in effect for that purpose.
3-3 ARTICLE 2
3-4 SECTION 2.01. Chapter 104, Code of Criminal Procedure, is
3-5 amended by adding Article 104.005 to read as follows:
3-6 Art. 104.005. EXTRAORDINARY PROSECUTION COSTS. (a) The
3-7 criminal justice division of the governor's office shall distribute
3-8 grants as provided by this article.
3-9 (b) A county with a population of less than 50,000 is
3-10 eligible to apply to the division for a grant under this article
3-11 if, during the preceding fiscal year:
3-12 (1) the total amount of expenditures of the county
3-13 exceeded the total amount of funds received by the county from all
3-14 sources and the county incurred expenses for the investigation or
3-15 prosecution of an offense:
3-16 (A) defined by Section 19.03, Penal Code; and
3-17 (B) 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 Subsection (b)(1) that
3-24 exceed 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 (f) A county may not make an application under this article
4-22 and Article 104.004 for reimbursement for expenses incurred in the
4-23 same fiscal year.
4-24 SECTION 2.02. The commissioners court of a county may apply
4-25 to the criminal justice division of the governor's office for a
4-26 grant, as provided by Article 104.005, Code of Criminal Procedure,
4-27 as added by this Act, on or after September 1, 2001.
5-1 ARTICLE 3
5-2 SECTION 3.01. Title 6, Civil Practice and Remedies Code, is
5-3 amended by adding Chapter 140 to read as follows:
5-4 CHAPTER 140. REMEDIES FOR AND PROTECTIONS
5-5 AGAINST HATEFUL ACTS
5-6 Sec. 140.001. DEFINITIONS. In this chapter:
5-7 (1) "Claimant" means a party seeking the relief
5-8 provided by this chapter, including a plaintiff, counterclaimant,
5-9 cross-claimant, or third-party plaintiff.
5-10 (2) "Defendant" includes any party from whom a
5-11 claimant seeks relief under this chapter.
5-12 Sec. 140.002. RIGHT TO BE FREE FROM HATEFUL ACTS. An
5-13 individual in this state has the right to be free from an act of
5-14 violence, or intimidation by threat of violence, committed against
5-15 the person or property of the individual because:
5-16 (1) of the individual's race, color, disability,
5-17 religion, national origin or ancestry, or sexual orientation; or
5-18 (2) another person perceives the individual to have
5-19 one or more of the characteristics listed under Subdivision (1).
5-20 Sec. 140.003. ACTION BY INDIVIDUAL. (a) An individual
5-21 whose exercise or enjoyment of the right secured by Section 140.002
5-22 is interfered with by a person, whether or not acting under color
5-23 of law, by threat, intimidation, or coercion, or by an attempt to
5-24 interfere by threat, intimidation, or coercion, may commence, in
5-25 the individual's own name, an action for:
5-26 (1) damages to the individual arising from the actions
5-27 of the defendant in violating the peaceable exercise or enjoyment
6-1 by the individual of the right secured by Section 140.002;
6-2 (2) exemplary damages as provided under Chapter 41;
6-3 and
6-4 (3) injunctive relief or any other appropriate relief
6-5 to protect the peaceable exercise or enjoyment of the right secured
6-6 by Section 140.002.
6-7 (b) A court shall award a claimant who prevails in an action
6-8 under this chapter reasonable attorney's fees incurred in bringing
6-9 the action.
6-10 Sec. 140.004. ACTION BY STATE OR LOCAL ATTORNEY. The
6-11 attorney general, a district attorney, a criminal district
6-12 attorney, a county attorney, or a municipal attorney may bring an
6-13 action for injunctive relief or other appropriate relief, including
6-14 attorney's fees, to protect the peaceable exercise or enjoyment by
6-15 an individual of the right secured by Section 140.002.
6-16 Sec. 140.005. CONTENT OF SPEECH. (a) An action under this
6-17 chapter may not be based solely on the content of the speech of the
6-18 defendant unless it is shown that:
6-19 (1) the speech itself threatens violence against a
6-20 specific individual or group of individuals;
6-21 (2) the individual or group against whom the threat is
6-22 directed reasonably fears that, because of the content of the
6-23 speech, violence will be committed against the individual or the
6-24 group or the property of the individual or group; and
6-25 (3) the defendant threatening violence had the
6-26 apparent ability to carry out the threat.
6-27 (b) A court may not issue an order under this chapter that
7-1 restricts the content of any defendant's speech.
7-2 (c) The court may issue an order that restricts the time,
7-3 place, or manner of the defendant's speech only to the extent:
7-4 (1) reasonably necessary to protect the peaceable
7-5 exercise or enjoyment by an individual of the right secured by
7-6 Section 140.002; and
7-7 (2) consistent with the constitutional rights of the
7-8 defendant.
7-9 Sec. 140.006. FORUM. An action under this chapter may be
7-10 brought in a district or county court.
7-11 Sec. 140.007. ENFORCEMENT. An order issued under this
7-12 chapter is enforceable by contempt, prosecution under Section
7-13 22.12, Penal Code, or both.
7-14 Sec. 140.008. WARNING. An order for temporary or permanent
7-15 relief under this chapter must include the following statement:
7-16 "A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED BY
7-17 THIS ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY
7-18 CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR, OR BOTH."
7-19 Sec. 140.009. NOTIFICATION OF LAW ENFORCEMENT AGENCIES. (a)
7-20 A court that issues an order for temporary or permanent relief
7-21 under this chapter shall order the claimant or the attorney for the
7-22 claimant to deliver, or the clerk of the court to mail, two copies
7-23 of the order before the end of the day on which the order was
7-24 granted to:
7-25 (1) each local law enforcement agency designated by
7-26 the claimant or the attorney for the claimant as having
7-27 jurisdiction over the residence of the claimant; and
8-1 (2) any other location in which the court determines
8-2 that hateful acts against the claimant are likely to occur.
8-3 (b) A law enforcement agency that receives an order under
8-4 this section shall:
8-5 (1) serve a copy on the defendant; and
8-6 (2) provide to any law enforcement officer responding
8-7 to the scene of a reported hateful act against the claimant
8-8 information relating to the existence of, terms of, and current
8-9 status of the order.
8-10 (c) In this section, "order" includes any extension,
8-11 modification, or termination of the order.
8-12 Sec. 140.010. INDEPENDENT REMEDY. An action under this
8-13 chapter is independent of any other remedy or procedure that may be
8-14 available to the claimant.
8-15 SECTION 3.02. Chapter 22, Penal Code, is amended by adding
8-16 Section 22.12 to read as follows:
8-17 Sec. 22.12. VIOLATION OF ORDER ENJOINING HATEFUL ACTS. (a)
8-18 A person commits an offense if, in violation of an order for
8-19 temporary or permanent injunctive relief issued under Chapter 140,
8-20 Civil Practice and Remedies Code, the person knowingly violates the
8-21 order.
8-22 (b) An offense under this section is a Class B misdemeanor
8-23 unless it is shown on the trial of the offense that the defendant
8-24 has previously been convicted under this section two or more times,
8-25 in which event the offense is a Class A misdemeanor.
8-26 SECTION 3.03. Chapter 140, Civil Practice and Remedies Code,
8-27 as added by this article, applies only to a cause of action that
9-1 accrues on or after the effective date of this Act. An action that
9-2 accrued before the effective date of this Act is governed by the
9-3 law applicable to the action immediately before the effective date
9-4 of this Act, and that law is continued in effect for that purpose.
9-5 ARTICLE 4
9-6 SECTION 4.01. This Act takes effect September 1, 2001.