79R399 JD-D
By: McClendon H.B. No. 65
A BILL TO BE ENTITLED
AN ACT
relating to the authority of certain municipalities to designate
and enforce drug-free zones.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter D, Chapter 481, Health and Safety
Code, is amended by adding Section 481.142 to read as follows:
Sec. 481.142. MUNICIPAL DRUG-FREE ZONES. (a) This section
applies only to a municipality that has a population of more than
1.1 million and is wholly or partially located in a county with a
population of less than 1.4 million.
(b) The governing body of a municipality by ordinance may
designate one or more geographic areas within the municipality as a
drug-free zone and authorize the issuance of an order that
temporarily excludes a person from the drug-free zone for:
(1) 90 days if the person has been arrested by a peace
officer of the municipality for an offense under this subchapter
committed in the drug-free zone; and
(2) one year if the person has been subsequently
convicted of that offense.
(c) An ordinance designating a drug-free zone must clearly
define the boundaries of the zone and include a map, plat, or
diagram of the zone.
(d) A geographic area within a municipality may be
designated as a drug-free zone only if the governing body
determines that the number of arrests for an offense under this
subchapter during at least 12 of the 18 months preceding the date
the ordinance is adopted is significantly higher in that area than
in other similarly sized geographic areas within the municipality
that are not designated as drug-free zones under this section.
(e) An ordinance designating an area as a drug-free zone
expires on the third anniversary of the effective date of the
ordinance, unless before that date, the governing body:
(1) repeals or rescinds the ordinance; or
(2) continues the ordinance for a subsequent
three-year period.
(f) The governing body of the municipality may continue an
ordinance under Subsection (e) only after the governing body:
(1) reviews the designation and its effects on the
designated area and on problems the designation was intended to
remedy; and
(2) conducts at least one public hearing on the need to
continue the ordinance or to modify the boundaries of the drug-free
zone.
(g) An ordinance adopted under this section must:
(1) provide that a person who is arrested by a peace
officer of the municipality for an offense under this subchapter
committed within a designated drug-free zone, other than an offense
committed entirely within a private residence, shall be excluded
from that zone for 90 days and for one year on conviction for the
offense;
(2) contain exceptions to the exclusion of a person
from the drug-free zone that allow the person to travel directly to
or from a location within the zone for the purpose of:
(A) attending a meeting with an attorney;
(B) attending a scheduled interview with a social
service provider;
(C) complying with a court-ordered or
correction-ordered obligation;
(D) contacting criminal justice personnel at a
criminal justice facility; or
(E) attending an administrative or judicial
hearing relating to the appeal of:
(i) the person's notice of exclusion; or
(ii) the denial, revocation, or amendment
of a variance granted to the person;
(3) designate the municipality's chief of police or
another municipal officer or employee as the person authorized to
issue an order of exclusion from the drug-free zone; and
(4) designate one or more other municipal officers or
employees as hearing officers to hear appeals authorized by this
section and provide that each hearing officer is authorized to
administer oaths and issue orders compelling the attendance of
witnesses and the production of documents.
(h) Following an arrest or conviction described by
Subsection (b), the designated municipal officer or employee shall
issue an order of exclusion from the applicable drug-free zone to
the person who was arrested for or convicted of the offense. The
order may be personally delivered to the person or may be mailed by
certified mail with return receipt requested to the last known
address of the person according to the records of the municipality.
(i) An order of exclusion must:
(1) state the name of the excluded person and the
drug-free zone from which the person is excluded;
(2) be signed and dated by the issuing officer or
employee;
(3) state that the order takes effect on the 10th day
after the date of issuance and, as applicable, will continue in
effect until the 91st day after that date or until the first
anniversary of that date;
(4) inform the person that before the effective date
of the order, the person may request the issuing officer or employee
to grant one or more variances to the order to allow the person to
travel to or from a location in the drug-free zone; and
(5) include the address to which a request for a
variance must be sent.
(j) A timely request for a variance shall be granted or
denied before the 10th day after the date the request is received by
the applicable officer or employee. A variance must be in writing,
be for a specific period of time and only for the purpose stated on
the variance, be in the person's actual possession while the person
is in the drug-free zone for that purpose, and be displayed on the
request or demand of any peace officer. The purposes for which a
variance may be granted are as follows:
(1) A general variance may be granted at any time
during an exclusion period to an excluded person who presents a
plausible need to engage in any non-criminal activity that is not
associated with the behavior supporting the person's exclusion. A
general variance permits travel within the drug-free zone only in
accordance with any terms specified in the variance.
(2) A residential variance shall be granted to permit
an excluded person to travel within the drug-free zone directly to
and from the person's residence in accordance with any terms of the
variance.
(3) An essential needs variance shall be granted to
permit an excluded person to travel within the drug-free zone in
accordance with any terms of the variance to access a public or
private place in the zone that provides an essential need,
including food, physical care, or medical attention, when the
essential need sought by the excluded person cannot reasonably be
accessed by the excluded person without entering the drug-free
zone.
(4) An employment or occupational variance shall be
granted to permit an excluded person to travel to, from, and for
work within the drug-free zone in accordance with any terms of the
variance, if the excluded person:
(A) is an owner, principal, agent, or employee of
a place of lawful employment located in the drug-free zone; or
(B) is required to perform lawful services
related to the person's employment or occupation in the drug-free
zone.
(5) A social services variance shall be granted to
permit an excluded person to travel within the drug-free zone in
accordance with any terms of the variance, if the excluded person:
(A) is in need of social services in the
drug-free zone;
(B) the social services are sought for reasons
relating to the health or well-being of the excluded person; and
(C) the social services agency has written rules
that prohibit the unlawful possession, use, or delivery of a
controlled substance by a client of the agency.
(6) An educational variance shall be granted to permit
an excluded person to travel within the drug-free zone in
accordance with any terms of the variance to:
(A) enroll as a student at a bona fide
educational institution or facility located within the drug-free
zone; or
(B) attend as a student a bona fide educational
institution or facility located within the drug-free zone.
(k) The ordinance must provide for the revocation or
amendment of a variance for one or more of the following reasons:
(1) it is determined that the excluded person provided
false information to obtain the variance;
(2) there is probable cause to believe the person has
committed or been convicted of an offense described by Subsection
(b) in the drug-free zone subsequent to the issuance of the
variance;
(3) the circumstances giving rise to the issuance of
the variance no longer support a continuation of the variance or a
term of the variance; or
(4) the excluded person presents new circumstances
that support an amendment of the variance.
(l) The ordinance must:
(1) provide procedures for an appeal by an excluded
person from the issuance of an order of exclusion or from the
denial, amendment, or revocation of a variance;
(2) establish deadlines for the filing of an appeal
and for the determination of the appeal;
(3) specify whether the filing of an appeal stays the
order of exclusion or the variance that is the subject of the
appeal; and
(4) require the officer or employee who issued the
order of exclusion or who denied, amended, or revoked the variance
to establish by a preponderance of the evidence that the order was
issued or that the variance was denied, amended, or revoked in
accordance with this section and the ordinance.
SECTION 2. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2005.