By: Gallego H.B. No. 4310

A BILL TO BE ENTITLED

AN ACT

relating to the investigation, prosecution, and punishment for certain gang-related and other offenses and to the civil consequences of engaging in certain activities of a criminal street gang; providing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Title 4, Civil Practice and Remedies Code, is amended by adding Chapter 100B to read as follows:

CHAPTER 100B. CRIMINAL STREET GANG LIABILITY

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 100B.001. DEFINITIONS. In this chapter:

(1) "Child" means a person younger than 18 years of age.

(2) "Criminal street gang" means three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities.

(3) "Continuously or regularly" means at least five times in a period of not more than 12 months.

(4) "Gang activity" has the meaning assigned by Section 125.061.

(5) "Governmental entity" means:

(A) this state and any agency of the state; and

(B) a political subdivision of this state, including any city, county, school district, junior college district, levee improvement district, drainage district, irrigation district, water improvement district, water control and improvement district, water control and preservation district, freshwater supply district, navigation district, conservation and reclamation district, soil conservation district, communication district, public health district, and river authority.

(6) "Parent" means a natural or adoptive parent, managing or possessory conservator, or legal guardian of a person.

[Sections 100B.002-100B.050 reserved for expansion]

SUBCHAPTER B. LIABILITY TO PARENT

Sec. 100B.051. LIABILITY. A criminal street gang or a member of a criminal street gang is liable to the parent of a child for damages arising from the criminal street gang's or a member of the criminal street gang's recruitment or inducement of the child to become a member of the criminal street gang.

Sec. 100B.052. DAMAGES. (a) A plaintiff who prevails in a suit under this chapter may recover economic and noneconomic damages.

(b) In addition to an award under Subsection (a), a plaintiff who prevails in a suit under this chapter may recover exemplary damages and court costs and reasonable attorney's fees.

[Sections 100B.053-100B.100 reserved for expansion]

SUBCHAPTER C. LIABILITY TO GOVERNMENTAL ENTITY

Sec. 100B.101. LIABILITY. A criminal street gang or a member of a criminal street gang is liable to a governmental entity for damages arising from activities of a criminal street gang, including:

(1) the cost of:

(A) policing property owned by the governmental entity; and

(B) governmental services provided as a result of the criminal street gang activity; and

(2) the amount by which the value of property owned by the governmental entity or the entity's revenue from ad valorem taxes on property in the entity's jurisdiction or any other taxes collected in the entity's jurisdiction is reduced.

Sec. 100B.102. DAMAGES. (a) A governmental entity that prevails in a suit under this chapter may recover economic damages.

(b) In addition to an award under Subsection (a), a governmental entity that prevails in a suit under this chapter may recover exemplary damages and court costs and reasonable attorney's fees.

[Sections 100B.103-100B.150 reserved for expansion]

SUBCHAPTER D. LIABILITY TO NEIGHBORHOOD OR COMMUNITY

Sec. 100B.151. LIABILITY. A criminal street gang or a member of a criminal street gang is liable to a neighborhood or community injured by a public nuisance described by Subchapter D, Chapter 125, arising out of gang activity engaged in by the gang.

Sec. 100B.152. DAMAGES. (a) A district, county, or city attorney, the attorney general, or a resident of the state may sue for money damages on behalf of a neighborhood or community injured by a public nuisance described by Subchapter D, Chapter 125.

(b) In addition to an award under Subsection (a), a neighborhood or community that prevails in a suit under this subchapter may recover exemplary damages and court costs and reasonable attorney's fees.

[Sections 100B.153-100B.200 reserved for expansion]

SUBCHAPTER E. EXECUTION ON JUDGMENT

Sec. 100B.201. LEVY ON PROPERTY OF GANG OR MEMBER. The property of the criminal street gang or a member of the street gang may be seized in execution on a judgment under this chapter.

SECTION 2. Article 42.01, Code of Criminal Procedure, is amended by adding Section 9 to read as follows:

Sec. 9. In addition to the information described by Section 1, the judgment should reflect affirmative findings entered pursuant to Article 42.0197.

SECTION 3. Chapter 42, Code of Criminal Procedure, is amended by adding Article 42.0197 to read as follows:

Art. 42.0197. FINDING REGARDING GANG-RELATED CONDUCT. In the trial of an offense, on the motion of the attorney representing the state the judge shall make an affirmative finding of fact and enter the affirmative finding in the judgment in the case if the judge determines that the applicable conduct was engaged in as part of the activities of a criminal street gang as defined by Section 71.01, Penal Code.

SECTION 4. Section 11(a), Article 42.12, Code of Criminal Procedure, is amended to read as follows:

(a) The judge of the court having jurisdiction of the case shall determine the conditions of community supervision and may, at any time[,] during the period of community supervision, alter or modify the conditions. The judge may impose any reasonable condition that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant. Conditions of community supervision may include, but shall not be limited to, the conditions that the defendant shall:

(1) Commit no offense against the laws of this State or of any other State or of the United States;

(2) Avoid injurious or vicious habits;

(3) Avoid persons or places of disreputable or harmful character, including any person convicted of an offense involving or furthering criminal street gang activity;

(4) Report to the supervision officer as directed by the judge or supervision officer and obey all rules and regulations of the community supervision and corrections department;

(5) Permit the supervision officer to visit the defendant at the defendant's home or elsewhere;

(6) Work faithfully at suitable employment as far as possible;

(7) Remain within a specified place;

(8) Pay the defendant's fine, if one is [be] assessed, and all court costs whether a fine is [be] assessed or not, in one or several sums;

(9) Support the defendant's dependents;

(10) Participate, for a time specified by the judge, in any community-based program, including a community-service work program under Section 16 of this article;

(11) Reimburse the county in which the prosecution was instituted for compensation paid to appointed counsel for defending the defendant in the case, if counsel was appointed, or if the defendant was represented by a county-paid public defender, in an amount that would have been paid to an appointed attorney had the county not had a public defender;

(12) Remain under custodial supervision in a community corrections facility, obey all rules and regulations of the [such] facility, and pay a percentage of the defendant's income to the facility for room and board;

(13) Pay a percentage of the defendant's income to the defendant's dependents for their support while under custodial supervision in a community corrections facility;

(14) Submit to testing for alcohol or controlled substances;

(15) Attend counseling sessions for substance abusers or participate in substance abuse treatment services in a program or facility approved or licensed by the Texas Commission on Alcohol and Drug Abuse;

(16) With the consent of the victim of a misdemeanor offense or of any offense under Title 7, Penal Code, participate in victim-defendant mediation;

(17) Submit to electronic monitoring;

(18) Reimburse the compensation to victims of crime fund for any amounts paid from that fund to or on behalf of a victim, as defined by Article 56.32, of the defendant's offense or if no reimbursement is required, make one payment to the compensation to victims of crime fund in an amount not to exceed $50 if the offense is a misdemeanor or not to exceed $100 if the offense is a felony;

(19) Reimburse a law enforcement agency for the analysis, storage, or disposal of raw materials, controlled substances, chemical precursors, drug paraphernalia, or other materials seized in connection with the offense;

(20) Pay all or part of the reasonable and necessary costs incurred by the victim for psychological counseling made necessary by the offense or for counseling and education relating to acquired immune deficiency syndrome or human immunodeficiency virus made necessary by the offense;

(21) Make one payment in an amount not to exceed $50 to a crime stoppers organization as defined by Section 414.001, Government Code, and as certified by the Crime Stoppers Advisory Council;

(22) Submit a DNA sample to the Department of Public Safety under Subchapter G, Chapter 411, Government Code, for the purpose of creating a DNA record of the defendant;

(23) In any manner required by the judge, provide public notice of the offense for which the defendant was placed on community supervision in the county in which the offense was committed; and

(24) Reimburse the county in which the prosecution was instituted for compensation paid to any interpreter in the case.

SECTION 5. Article 59.01(2), Code of Criminal Procedure, as amended by Chapters 127 (S.B. 1694), 822 (H.B. 73), and 885 (H.B. 2278), Acts of the 80th Legislature, Regular Session, 2007, is amended to read as follows:

(2) "Contraband" means property of any nature, including real, personal, tangible, or intangible, that is:

(A) used in the commission of:

(i) any first or second degree felony under the Penal Code;

(ii) any felony under Section 15.031(b), 20.05, 21.11, 38.04, Subchapter B of Chapter 43, or Chapter 29, 30, 31, 32, 33, 33A, or 35, Penal Code;

(iii) any felony under The Securities Act (Article 581-1 et seq., Vernon's Texas Civil Statutes); or

(iv) any offense under Chapter 49, Penal Code, that is punishable as a felony of the third degree or state jail felony, if the defendant has been previously convicted three times of an offense under that chapter;

(B) used or intended to be used in the commission of:

(i) any felony under Chapter 481, Health and Safety Code (Texas Controlled Substances Act);

(ii) any felony under Chapter 483, Health and Safety Code;

(iii) a felony under Chapter 153, Finance Code;

(iv) any felony under Chapter 34, Penal Code;

(v) a Class A misdemeanor under Subchapter B, Chapter 365, Health and Safety Code, if the defendant has been previously convicted twice of an offense under that subchapter;

(vi) any felony under Chapter 152, Finance Code;

(vii) any felony under Chapter 32, Human Resources Code, or Chapter 31, 32, 35A, or 37, Penal Code, that involves the state Medicaid program;

(viii) a Class B misdemeanor under Chapter 522, Business & Commerce Code; [or]

(ix) a Class A misdemeanor under Section 35.153, Business & Commerce Code; or

(x) any offense under Chapter 71, Penal Code;

(C) the proceeds gained from the commission of a felony listed in Paragraph (A) or (B) of this subdivision, a misdemeanor listed in Paragraph (B)(viii) or (x) of this subdivision, or a crime of violence;

(D) acquired with proceeds gained from the commission of a felony listed in Paragraph (A) or (B) of this subdivision, a misdemeanor listed in Paragraph (B)(viii) or (x) of this subdivision, or a crime of violence; or

(E) used to facilitate or intended to be used to facilitate the commission of a felony under Section 15.031 or 43.25, Penal Code.

SECTION 6. Chapter 59, Code of Criminal Procedure, is amended by adding Article 59.011 to read as follows:

Art. 59.011. ELECTION OF FORFEITURE PROCEEDING. If property described by Article 59.01(2)(B)(x) is subject to forfeiture under this chapter and Article 18.18, the attorney representing the state may proceed under either provision.

SECTION 7. Chapter 54, Family Code, is amended by adding Section 54.0491 to read as follows:

Sec. 54.0491. GANG-RELATED CONDUCT. (a) In this section:

(1) "Criminal street gang" has the meaning assigned by Section 71.01, Penal Code.

(2) "Gang-related conduct" means conduct that violates a penal law of the grade of Class B misdemeanor or higher and in which a child engages with the intent to:

(A) further the criminal activities of a criminal street gang of which the child is a member;

(B) gain membership in a criminal street gang; or

(C) avoid detection as a member of a criminal street gang.

(b) A juvenile court, in a disposition hearing under Section 54.04 regarding a child who has been adjudicated to have engaged in delinquent conduct that is also gang-related conduct, shall order the child to participate in a criminal street gang intervention program that is appropriate for the child based on the child's level of involvement in the criminal activities of a criminal street gang. The intervention program:

(1) must include at least 12 hours of instruction; and

(2) may include voluntary tattoo removal.

(c) If a child required to attend a criminal street gang intervention program is committed to the Texas Youth Commission as a result of the gang-related conduct, the child must complete the intervention program before being discharged from the custody of or released under supervision by the commission.

SECTION 8. Subchapter A, Chapter 411, Government Code, is amended by adding Section 411.0207 to read as follows:

Sec. 411.0207. LAW ENFORCEMENT INTERNAL AFFAIRS UNIT. (a) In this section, "organized criminal activity" means conduct that constitutes an offense under Section 71.02, Penal Code.

(b) A law enforcement internal affairs unit is created within the department to assist in the management of allegations of participation in organized criminal activity by:

(1) an individual elected, appointed, or employed to serve as a peace officer for a governmental entity of this state under Article 2.12, Code of Criminal Procedure; or

(2) a federal law enforcement officer while performing duties in this state.

(c) The unit shall:

(1) assist district attorneys and county attorneys in the investigation and prosecution of allegations described by Subsection (b);

(2) if requested by the agency, assist a state or local law enforcement agency with the investigation of complaints against law enforcement officers in the agency;

(3) assist the United States Department of Justice or any other appropriate federal department or agency in the investigation and prosecution of allegations described by Subsection (b);

(4) if requested by the agency, assist a federal law enforcement agency with the investigation of complaints against law enforcement officers in the agency;

(5) serve as a clearinghouse for information relating to the investigation and prosecution of allegations described by Subsection (b); and

(6) report to the highest-ranking officer of the Texas Rangers division of the department.

(d) The commission may direct an investigation by the unit if the commission determines that providing direction is in the best interest of this state.

(e) To the extent allowed by law, a state or local law enforcement agency shall cooperate with the law enforcement internal affairs unit by providing information requested by the unit as necessary to carry out the purposes of this section. Information described by this subsection is excepted from required disclosure under Chapter 552 in the manner provided by Section 552.108.

SECTION 9. Section 3.03(a), Penal Code, is amended to read as follows:

(a) When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, a sentence for each offense for which he has been found guilty shall be pronounced. Except as provided by Subsection (b) and Section 3.05, the sentences shall run concurrently.

SECTION 10. Section 3.04(b), Penal Code, is amended to read as follows:

(b) In the event of severance under this section, the provisions of Section 3.03 do not apply, and, except as provided by Section 3.05, the court in its discretion may order the sentences to run either concurrently or consecutively.

SECTION 11. Section 15.031(e), Penal Code, is amended to read as follows:

(e) An offense under this section is one category lower than the solicited offense, except that an offense under this section is the same category as the solicited offense if it is shown on the trial of the offense that the actor:

(1) was at the time of the offense a member of a criminal street gang, as defined by Section 71.01; and

(2) committed the offense with the intent to:

(A) further the criminal activities of the criminal street gang; or

(B) avoid detection as a member of a criminal street gang.

SECTION 12. Section 22.015(a), Penal Code, is amended by adding Subdivision (3) to read as follows:

(3) "Family" has the meaning assigned by Section 71.003, Family Code.

SECTION 13. Section 22.015(b), Penal Code, is amended to read as follows:

(b) A person commits an offense if, with intent to coerce, induce, or solicit a child to actively participate in the activities of a criminal street gang, the person:

(1) threatens the child or a member of the child's family with imminent bodily injury; or

(2) causes bodily injury to the child or a member of the child's family.

SECTION 14. Chapter 33, Penal Code, is amended by adding Section 33.06 to read as follows:

Sec. 33.06. ONLINE PROMOTION OF A CRIMINAL STREET GANG. (a) In this section, "criminal street gang" has the meaning assigned by Section 71.01.

(b) A person commits an offense if, with the intent to benefit, to promote, or to further the interests of a criminal street gang or to increase the person's standing, position, or status in the criminal street gang, the person uses the Internet, including distributing, selling, transmitting, or posting on the Internet an audio, video, or still representation of a person engaged in criminal activity, to:

(1) intimidate or harass another person; or

(2) advertise the presence of the criminal street gang in a specific geographic location.

(c) An offense under this section is a state jail felony.

SECTION 15. Section 37.10, Penal Code, is amended by adding Subsection (j) to read as follows:

(j) It is not a defense to prosecution under Subsection (a)(2) that the record, document, or thing made, presented, or used displays or contains the statement "NOT A GOVERNMENT DOCUMENT" or another substantially similar statement intended to alert a person to the falsity of the record, document, or thing, unless the record, document, or thing displays the statement diagonally printed clearly and indelibly on both the front and back of the record, document, or thing in solid red capital letters at least one-fourth inch in height.

SECTION 16. Section 38.02, Penal Code, is amended by amending Subsection (c) and adding Subsection (d-1) to read as follows:

(c) Except as provided by Subsections (d) and (d-1) [(e)], an offense under this section is:

(1) a Class C misdemeanor if the offense is committed under Subsection (a); or

(2) a Class B misdemeanor if the offense is committed under Subsection (b).

(d-1) An offense under Subsection (b) is a state jail felony if it is shown on the trial of the offense that the actor:

(1) was at the time of the offense a member of a criminal street gang, as defined by Section 71.01; and

(2) committed the offense with the intent to:

(A) further the criminal activities of the criminal street gang; or

(B) avoid detection as a member of a criminal street gang.

SECTION 17. Chapter 71, Penal Code, is amended by adding Section 71.024 to read as follows:

Sec. 71.024. CAUSING OR ENCOURAGING CHILD TO PARTICIPATE IN GANG-RELATED CRIMINAL ACTIVITY. (a) In this section, "child" means an individual younger than 17 years of age.

(b) A person commits an offense if the person intentionally, knowingly, or recklessly, by act or omission, causes or encourages a child to participate in any criminal activity that is:

(1) committed by a criminal street gang; and

(2) punishable as a Class A misdemeanor or a felony.

(c) An offense under this section is a felony of the third degree if the offense is committed intentionally or knowingly. An offense under this section is a Class A misdemeanor if the offense is committed recklessly.

(d) If conduct, including an omission, constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or under both sections.

SECTION 18. Section 521.343(a), Transportation Code, is amended to read as follows:

(a) Except as provided by Sections 521.342(b), 521.344(a), (b), (d), (e), (f), (g), (h), and (i), 521.345, 521.346, 521.3465, [and] 521.351, and 521.352, a suspension under this subchapter is for one year.

SECTION 19. Subchapter O, Chapter 521, Transportation Code, is amended by adding Section 521.352 to read as follows:

Sec. 521.352. SUSPENSION FOR CERTAIN ORGANIZED CRIME OFFENSES. (a) A person's license is automatically suspended on conviction of the person for an offense under Chapter 71, Penal Code.

(b) The department may not issue a driver's license to a person convicted of an offense specified in Subsection (a) who, on the date of the conviction, did not hold a license.

(c) The period of license suspension or prohibition under this section begins on a date set by the court that is not earlier than the date of conviction or later than the 30th day after the date of conviction. Except as provided by Subsection (d), the period of license suspension or prohibition under this section expires on the first anniversary of the date the suspension or prohibition began.

(d) If on the date of conviction the defendant is younger than 21 years of age, the period of license suspension or prohibition continues until the later of:

(1) the first anniversary of the date the suspension or prohibition began; or

(2) the date on which the defendant attains the age of 21.

SECTION 20. Section 521.457, Transportation Code, is amended by amending Subsection (e) and adding Subsection (f-2) to read as follows:

(e) Except as provided by Subsections (f), [and] (f-1), and (f-2), an offense under this section is a Class C misdemeanor.

(f-2) If it is shown on the trial of an offense under this section that the person operated a motor vehicle on a highway during a period that the person's driver's license was suspended under Section 521.352 or the person was prohibited from obtaining a driver's license under that section, the offense is a Class A misdemeanor.

SECTION 21. To the extent of any conflict, this Act prevails over another Act of the 81st Legislature, Regular Session, 2009, relating to nonsubstantive additions to and corrections in enacted codes.

SECTION 22. Chapter 100B, Civil Practice and Remedies Code, as added by this Act, applies only to a cause of action that accrues on or after the effective date of this Act. A cause of action that accrued before the effective date of this Act is governed by the law in effect immediately before the effective date of this Act, and that law is continued in effect for that purpose.

SECTION 23. Section 9, Article 42.01, Code of Criminal Procedure, and Article 42.0197, Code of Criminal Procedure, as added by this Act, apply only to a judgment of conviction entered on or after the effective date of this Act.

SECTION 24. Section 11(a), Article 42.12, Code of Criminal Procedure, as amended by this Act, applies only to a person who is placed on community supervision for an offense committed on or after the effective date of this Act. A person who is placed on community supervision for an offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.

SECTION 25. Article 59.01(2), Code of Criminal Procedure, as amended by this Act, and Article 59.011, Code of Criminal Procedure, as added by this Act, apply only to the forfeiture of property used in the commission of an offense committed on or after the effective date of this Act. Forfeiture of property used in the commission of an offense committed before the effective date of this Act is governed by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.

SECTION 26. Section 54.0491, Family Code, as added by this Act, applies only to conduct that violates a penal law of this state and occurs on or after the effective date of this Act. Conduct that violates a penal law of this state and occurs before the effective date of this Act is covered by the law in effect at the time the conduct occurred, and the former law is continued in effect for that purpose. For purposes of this section, conduct occurs before the effective date of this Act if each element of the violation occurred before that date.

SECTION 27. Not later than December 1, 2010, the Department of Public Safety shall establish the law enforcement internal affairs unit under Section 411.0207, Government Code, as added by this Act.

SECTION 28. Sections 15.031(e) and 22.015(b), Penal Code, as amended by this Act, and Sections 3.05, 37.10(j), 38.02(d-1), and 71.028, Penal Code, and Sections 521.352 and 521.457(f-2), Transportation Code, as added by this Act, apply only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.

SECTION 29. This Act takes effect September 1, 2009.