1-1 By: Ellis, et al. S.B. No. 87
1-2 (In the Senate - Filed November 13, 2000; January 10, 2001,
1-3 read first time and referred to Committee on Criminal Justice;
1-4 February 12, 2001, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 5, Nays 1, 1 present not
1-6 voting; February 12, 2001, sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 87 By: West
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the investigation and prosecution of an offense
1-11 motivated by bias or prejudice and to other civil and criminal
1-12 remedies for and protections against certain hateful acts.
1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14 ARTICLE 1
1-15 SECTION 1.01. Section 12.47, Penal Code, is amended to read
1-16 as follows:
1-17 Sec. 12.47. PENALTY IF OFFENSE COMMITTED BECAUSE OF BIAS OR
1-18 PREJUDICE. (a) If [the judge or jury, whichever assesses
1-19 punishment in the case, makes] an affirmative finding under Article
1-20 42.014, Code of Criminal Procedure, is made in the [punishment
1-21 phase of the] trial of an offense other than a first degree felony
1-22 or a Class A misdemeanor, the punishment for the offense is
1-23 increased to the punishment prescribed for the next highest
1-24 category of offense. If the offense is a Class A misdemeanor, the
1-25 minimum term of confinement for the offense is increased to 180
1-26 days. This section does not apply to the trial of an offense of
1-27 injury to a disabled individual under Section 22.04, if the
1-28 affirmative finding in the case under Article 42.014, Code of
1-29 Criminal Procedure, shows that the defendant intentionally selected
1-30 the victim because the victim was disabled.
1-31 (b) The attorney general, if requested to do so by a
1-32 prosecuting attorney, may assist the prosecuting attorney in the
1-33 investigation or prosecution of an offense committed because of
1-34 bias or prejudice. The attorney general shall designate one
1-35 individual in the division of the attorney general's office that
1-36 assists in the prosecution of criminal cases to coordinate
1-37 responses to requests made under this subsection.
1-38 SECTION 1.02. Article 42.014, Code of Criminal Procedure, is
1-39 amended to read as follows:
1-40 Art. 42.014. FINDING THAT OFFENSE WAS COMMITTED BECAUSE OF
1-41 BIAS OR PREJUDICE. In the [punishment phase of the] trial of an
1-42 offense under Title 5, Penal Code, or Section 28.02, 28.03, or
1-43 28.08, [the] Penal Code, the judge [if the court determines that
1-44 the defendant intentionally selected the victim primarily because
1-45 of the defendant's bias or prejudice against a group, the court]
1-46 shall make an affirmative finding of [that] fact and enter the
1-47 affirmative finding in the judgment of the [that] case if, at the
1-48 guilt or innocence phase of the trial, the judge or the jury,
1-49 whichever is the trier of fact, determines beyond a reasonable
1-50 doubt that the defendant intentionally selected the person against
1-51 whom the offense was committed or intentionally selected property
1-52 damaged or affected as a result of the offense because of the
1-53 defendant's bias or prejudice against a group identified by race,
1-54 color, disability, religion, national origin or ancestry, or sexual
1-55 orientation.
1-56 SECTION 1.03. (a) The change in the law made by this
1-57 article applies only to an offense committed on or after the
1-58 effective date of this Act. For purposes of this section, an
1-59 offense is committed before the effective date of this Act if any
1-60 element of the offense occurs before the effective date.
1-61 (b) An offense committed before the effective date of this
1-62 Act is covered by the law in effect when the offense was committed,
1-63 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:
2-14 (A) defined by Section 19.03, Penal Code; or
2-15 (B) alleged by the attorney representing the
2-16 state to have been committed because of bias or prejudice as
2-17 described by Article 42.014; or
2-18 (2) the total amount of funds received by the county
2-19 from all sources exceeded the total amount of expenditures of the
2-20 county and the county incurred expenses for the investigation or
2-21 prosecution of an offense described by Subdivision (1) that exceed
2-22 five percent of the amount of that excess.
2-23 (c) The commissioners court must submit with an application
2-24 under Subsection (b) a financial statement of the county that shows
2-25 for the fiscal year for which application is made:
2-26 (1) the total amount of funds received by the county
2-27 from all sources;
2-28 (2) the total amount of expenditures of the county;
2-29 and
2-30 (3) the total amount of expenses incurred by the
2-31 county for the investigation or prosecution of an offense described
2-32 by Subsection (b)(1).
2-33 (d) The division may make a grant under this article only to
2-34 an eligible county for the reimbursement of expenses incurred by
2-35 the county during the fiscal year for which application is made for
2-36 the investigation or prosecution of an offense described by
2-37 Subsection (b)(1). The amount of the grant to a county eligible
2-38 under Subsection (b)(2) may not exceed an amount equal to five
2-39 percent of the difference between the total amount of funds
2-40 received by the county and the total amount of expenditures of the
2-41 county during the fiscal year for which application is made.
2-42 (e) The division may adopt a budget and rules for the making
2-43 of grants under this article. All grants made to a county under
2-44 this article and their expenditure by the county are subject to
2-45 audit by the state auditor.
2-46 SECTION 2.02. The commissioners court of a county may apply
2-47 to the criminal justice division of the governor's office for a
2-48 grant, as provided by Article 104.005, Code of Criminal Procedure,
2-49 as added by this Act, on or after September 1, 2001.
2-50 ARTICLE 3
2-51 SECTION 3.01. Title 6, Civil Practice and Remedies Code, is
2-52 amended by adding Chapter 140 to read as follows:
2-53 CHAPTER 140. REMEDIES FOR AND PROTECTIONS
2-54 AGAINST HATEFUL ACTS
2-55 Sec. 140.001. DEFINITIONS. In this chapter:
2-56 (1) "Claimant" means a party seeking the relief
2-57 provided by this chapter, including a plaintiff, counterclaimant,
2-58 cross-claimant, or third-party plaintiff.
2-59 (2) "Defendant" includes any party from whom a
2-60 claimant seeks relief under this chapter.
2-61 Sec. 140.002. RIGHT TO BE FREE FROM HATEFUL ACTS. An
2-62 individual in this state has the right to be free from an act of
2-63 violence, or intimidation by threat of violence, committed against
2-64 the person or property of the individual because:
2-65 (1) of the individual's race, color, disability,
2-66 religion, national origin or ancestry, or sexual orientation; or
2-67 (2) another person perceives the individual to have
2-68 one or more of the characteristics listed under Subdivision (1).
2-69 Sec. 140.003. ACTION BY INDIVIDUAL. (a) An individual
3-1 whose exercise or enjoyment of the right secured by Section 140.002
3-2 is interfered with by a person, whether or not acting under color
3-3 of law, by threat, intimidation, or coercion, or by an attempt to
3-4 interfere by threat, intimidation, or coercion, may commence, in
3-5 the individual's own name, an action for:
3-6 (1) damages to the individual arising from the actions
3-7 of the defendant in violating the peaceable exercise or enjoyment
3-8 by the individual of the right secured by Section 140.002;
3-9 (2) exemplary damages as provided under Chapter 41;
3-10 and
3-11 (3) injunctive relief or any other appropriate relief
3-12 to protect the peaceable exercise or enjoyment of the right secured
3-13 by Section 140.002.
3-14 (b) A court shall award a claimant who prevails in an action
3-15 under this chapter reasonable attorney's fees incurred in bringing
3-16 the action.
3-17 Sec. 140.004. CONTENT OF SPEECH. (a) An action under this
3-18 chapter may not be based solely on the content of the speech of the
3-19 defendant unless it is shown that:
3-20 (1) the speech itself threatens violence against a
3-21 specific individual or group of individuals;
3-22 (2) the individual or group against whom the threat is
3-23 directed reasonably fears that, because of the content of the
3-24 speech, violence will be committed against the individual or the
3-25 group or the property of the individual or group; and
3-26 (3) the defendant threatening violence had the
3-27 apparent ability to carry out the threat.
3-28 (b) A court may not issue an order under this chapter that
3-29 restricts the content of any defendant's speech.
3-30 (c) The court may issue an order that restricts the time,
3-31 place, or manner of the defendant's speech only to the extent:
3-32 (1) reasonably necessary to protect the peaceable
3-33 exercise or enjoyment by an individual of the right secured by
3-34 Section 140.002; and
3-35 (2) consistent with the constitutional rights of the
3-36 defendant.
3-37 Sec. 140.005. FORUM. An action under this chapter may be
3-38 brought in a district or county court.
3-39 Sec. 140.006. ENFORCEMENT. An order issued under this
3-40 chapter is enforceable by contempt, prosecution under Section
3-41 22.12, Penal Code, or both.
3-42 Sec. 140.007. WARNING. An order for temporary or permanent
3-43 relief under this chapter must include the following statement:
3-44 "A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED BY
3-45 THIS ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY
3-46 CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR, OR BOTH."
3-47 Sec. 140.008. NOTIFICATION OF LAW ENFORCEMENT AGENCIES.
3-48 (a) A court that issues an order for temporary or permanent relief
3-49 under this chapter shall order the claimant or the attorney for the
3-50 claimant to deliver, or the clerk of the court to mail, two copies
3-51 of the order, before the end of the day on which the order was
3-52 granted, to:
3-53 (1) each local law enforcement agency designated by
3-54 the claimant or the attorney for the claimant as having
3-55 jurisdiction over the residence of the claimant; and
3-56 (2) any other location in which the court determines
3-57 that hateful acts against the claimant are likely to occur.
3-58 (b) A law enforcement agency that receives an order under
3-59 this section shall:
3-60 (1) serve a copy on the defendant; and
3-61 (2) provide to any law enforcement officer responding
3-62 to the scene of a reported hateful act against the claimant
3-63 information relating to the existence of, terms of, and current
3-64 status of the order.
3-65 (c) In this section, "order" includes any extension,
3-66 modification, or termination of the order.
3-67 Sec. 140.009. INDEPENDENT REMEDY. An action under this
3-68 chapter is independent of any other remedy or procedure that may be
3-69 available to the claimant.
4-1 SECTION 3.02. Chapter 22, Penal Code, is amended by adding
4-2 Section 22.12 to read as follows:
4-3 Sec. 22.12. VIOLATION OF ORDER ENJOINING HATEFUL ACTS.
4-4 (a) A person commits an offense if, in violation of an order for
4-5 temporary or permanent injunctive relief issued under Chapter 140,
4-6 Civil Practice and Remedies Code, the person knowingly violates the
4-7 order.
4-8 (b) An offense under this section is a Class B misdemeanor
4-9 unless it is shown on the trial of the offense that the defendant
4-10 has previously been convicted under this section two or more times,
4-11 in which event the offense is a Class A misdemeanor.
4-12 SECTION 3.03. Chapter 140, Civil Practice and Remedies Code,
4-13 as added by this article, applies only to a cause of action that
4-14 accrues on or after the effective date of this Act. An action that
4-15 accrued before the effective date of this Act is governed by the
4-16 law applicable to the action immediately before the effective date
4-17 of this Act, and that law is continued in effect for that purpose.
4-18 ARTICLE 4
4-19 SECTION 4.01. Chapter 6, Code of Criminal Procedure, is
4-20 amended by adding Article 6.08 to read as follows:
4-21 Art. 6.08. PROTECTIVE ORDER PROHIBITING OFFENSE CAUSED BY
4-22 BIAS OR PREJUDICE. (a) At any proceeding in which the defendant
4-23 appears in constitutional county court, statutory county court, or
4-24 district court that is related to an offense under Title 5, Penal
4-25 Code, or Section 28.02, 28.03, or 28.08, Penal Code, in which it is
4-26 alleged that the defendant committed the offense because of bias or
4-27 prejudice as described by Article 42.014, a person may request the
4-28 court to render a protective order under Title 4, Family Code, for
4-29 the protection of the person.
4-30 (b) The court shall render a protective order in the manner
4-31 provided by Title 4, Family Code, if, in lieu of the finding that
4-32 family violence occurred and is likely to occur in the future as
4-33 required by Section 85.001, Family Code, the court finds that
4-34 probable cause exists to believe that an offense under Title 5,
4-35 Penal Code, or Section 28.02, 28.03, or 28.08, Penal Code,
4-36 occurred, that the defendant committed the offense because of bias
4-37 or prejudice, and that the nature of the scheme or course of
4-38 conduct engaged in by the defendant in the commission of the
4-39 offense indicates that the defendant is likely to engage in the
4-40 future in conduct prohibited by Title 5, Penal Code, or Section
4-41 28.02, 28.03, or 28.08, Penal Code, and committed because of bias
4-42 or prejudice.
4-43 (c) The procedure for the enforcement of a protective order
4-44 under Title 4, Family Code, applies to the fullest extent
4-45 practicable to the enforcement of a protective order under this
4-46 article, including provisions relating to findings, contents,
4-47 duration, warning, delivery, law enforcement duties, and
4-48 modification, except that:
4-49 (1) the printed statement on the warning must refer to
4-50 the prosecution of subsequent offenses committed because of bias or
4-51 prejudice;
4-52 (2) the court shall require a constable to serve a
4-53 protective order issued under this article; and
4-54 (3) the clerk of the court shall forward a copy of a
4-55 protective order issued under this article to the Department of
4-56 Public Safety with a designation indicating that the order was
4-57 issued to prevent offenses committed because of bias or prejudice.
4-58 SECTION 4.02. Chapter 25, Penal Code, is amended by adding
4-59 Section 25.071 to read as follows:
4-60 Sec. 25.071. VIOLATION OF PROTECTIVE ORDER PREVENTING
4-61 OFFENSE CAUSED BY BIAS OR PREJUDICE. (a) A person commits an
4-62 offense if, in violation of an order issued under Article 6.08,
4-63 Code of Criminal Procedure, the person knowingly or intentionally:
4-64 (1) commits an offense under Title 5 or Section 28.02,
4-65 28.03, or 28.08 and commits the offense because of bias or
4-66 prejudice as described by Article 42.014, Code of Criminal
4-67 Procedure;
4-68 (2) communicates:
4-69 (A) directly with a protected individual in a
5-1 threatening or harassing manner;
5-2 (B) a threat through any person to a protected
5-3 individual; or
5-4 (C) in any manner with the protected individual,
5-5 if the order prohibits any communication with a protected
5-6 individual; or
5-7 (3) goes to or near the residence or place of
5-8 employment or business of a protected individual.
5-9 (b) If conduct constituting an offense under this section
5-10 also constitutes an offense under another section of this code, the
5-11 actor may be prosecuted under either section or under both
5-12 sections.
5-13 (c) A peace officer investigating conduct that may
5-14 constitute an offense under this section for a violation of an
5-15 order may not arrest a person protected by that order for a
5-16 violation of that order.
5-17 (d) An offense under this section is a Class A misdemeanor
5-18 unless it is shown on the trial of the offense that the defendant
5-19 has previously been convicted under this section two or more times
5-20 or has violated the protective order by committing an assault, in
5-21 which event the offense is a third degree felony.
5-22 ARTICLE 5
5-23 SECTION 5.01. Chapter 2, Code of Criminal Procedure, is
5-24 amended by adding Article 2.211 to read as follows:
5-25 Art. 2.211. HATE CRIME REPORTING. In addition to performing
5-26 duties required by Article 2.21, a clerk of a district or county
5-27 court in which an affirmative finding under Article 42.014 is
5-28 requested shall report that request to the Texas Judicial Council,
5-29 along with a statement as to whether the request was granted by the
5-30 court and, if so, whether the affirmative finding was entered in
5-31 the judgment in the case. The clerk shall make the report required
5-32 by this article not later than the 30th day after the date the
5-33 judgment is entered in the case.
5-34 SECTION 5.02. Section 71.034, Government Code, is amended by
5-35 adding Subsection (e) to read as follows:
5-36 (e) In addition to the information described by Subsection
5-37 (a), the council shall include in the report a summary of
5-38 information provided to the council during the preceding year under
5-39 Article 2.211, Code of Criminal Procedure.
5-40 ARTICLE 6
5-41 SECTION 6.01. This Act takes effect September 1, 2001.
5-42 * * * * *