BILL ANALYSIS
By: Hilderbran
Committee Report (Substituted)
BACKGROUND AND PURPOSE
The purpose of C.S.H.B. 1012 is to provide a criminal penalty relating to the offenses of abuse of a corpse and desecration of a cemetery. C.S.H.B. 1012 criminalizes essentially any conduct which destroys, defaces, or injures any structure, located within or surrounding any cemetery or park or place dedicated to commemorating a deceased person or group of persons.
C.S.H.B. 1012 also provides criminal penalties for any person who knowingly disturbs or destroys any part of a human corpse or any remains, including cremated remains of a human corpse. Finally, C.S.H.B. 1012 outlines criminal sanctions provided for minor offenders under the statute.
Currently there are provisions in both the Health & Safety Code and Penal Code relating to the desecration of a corpse and cemetery. C.S.H.B. 1012 would eliminate discrepancies and duplicity in the law by placing these provisions only in the Penal Code and creating more uniformity in the classification of these crimes.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.
ANALYSIS
SECTION 1:
Chapter 42 of the Penal Code is amended by amending Section 42.08 relating to the Abuse of Corpse.
Subsection (a) adds the offense of damaging a human corpse and vandalizing, damaging or treating in an offensive manner the space in which a human corpse has been interred or otherwise permanently laid to rest.
Subsection (b) changes the classification of the crimes from a Class A misdemeanor to a state jail felony.
Subsection (c) is new language that defines a human corpse to include any portion of, or the cremated remains or portion thereof, of a human corpse.
Subsection (d) states that conduct constituting an offense that is also an offense under another section of the Penal Code may be prosecuted under either or both sections.
SECTION 2.
Article 42.037 of the Code of Criminal Procedure is amended by adding subsection (p) which provides that a court shall order a defendant convicted of an offense under Section 28.03(f) or 42.08 of the Penal Code, to make restitution in the amount described by Subsection (b)(1)(B) to a cemetery organization operating a cemetery affected by the commission of the offense.
Subdivision (2) provides that in the case a court orders an unemancipated minor to make restitution and the minor is unable to make restitution, the court may order the minor to perform community service or order the parents of the minor to make the restitution.
Subdivision (3) defines cemetery and cemetery organization as the terms are defined by the Health and Safety Code.
SECTION 3.
Chapter 54 of the Family Code is amended by adding Section 54.049, relating to conditions of probation for desecrating a cemetery or abusing a corpse. Subsection (a) provides that in the case where a juvenile court places a child on probation for violating this statute, the court shall also order the child to make restitution to a cemetery organization operating a cemetery affected by the conduct in an amount equal to the cost to the cemetery of repairing any damage caused by the conduct.
Subsection (b) provides that in the case a juvenile court orders a child to make restitution and the minor is unable to make restitution, the court may order the minor to perform community service or order the parents of the minor to make the restitution.
Subsection (c) defines cemetery and cemetery organization as the terms are defined by the Health and Safety Code.
SECTION 4.
Repeals Section 711.0311, Health and Safety Code. These provisions address abuse of a corpse and are proposed in SECTION 1 of the bill to become part of the Penal Code.
SECTION 5.
States that any offense committed or conduct engaged in before the effective date of the Act is governed by the law in effect at that time and the law is continued in effect for that purpose.
SECTION 6.
Effective date: June 1, 2005 if the Act receives the two-thirds vote necessary under Section 39, Article III, Texas Constitution. Otherwise, the Act takes effect September 1, 2005.
EFFECTIVE DATE
June 1, 2005 on a two-thirds vote by both chambers, or September 1, 2005.
COMPARISON OF ORIGINAL TO SUBSTITUTE
The bill deletes SECTION 1 of the original because the offenses contained therein are covered under other sections of the Penal Code as criminal mischief and criminal trespass.
Changes were made to Section 42.08, Penal Code to remove redundant terms and to delete the word “seriously” from the offensiveness requirement in order to take out the subjective factor involved in declaring an act “seriously offensive”. The defense for authorized cemetery personnel is removed because the language only applies to a person acting without legal authority. The substitute adds a definition of a human corpse and specifies that a prosecutor may prosecute under this section, another applicable section, or both.