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A BILL TO BE ENTITLED
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AN ACT
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relating to the conduct constituting the offense of graffiti, the |
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consequences of engaging in that conduct, and the authority of |
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certain governmental entities to take certain actions designed to |
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eradicate graffiti. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 28.08, Penal Code, is amended to read as |
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follows: |
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Sec. 28.08. GRAFFITI. (a) A person commits an offense if, |
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without the effective consent of the owner, the person |
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intentionally or knowingly defaces, makes markings[, including
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inscriptions, slogans, drawings, or paintings,] on, or otherwise |
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alters the appearance of the tangible property of the owner with: |
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(1) [aerosol] paint; |
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(2) an indelible marker; [or] |
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(3) an etching or engraving device; or |
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(4) a chemical. |
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(b) Except as provided by Subsections (d) and (d-1) |
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[Subsection (d)], an offense under this section is: |
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(1) a Class B misdemeanor if the amount of pecuniary |
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loss is less than $500; |
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(2) a Class A misdemeanor if the amount of pecuniary |
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loss is $500 or more but less than $1,500; |
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(3) a state jail felony if the amount of pecuniary loss |
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is $1,500 or more but less than $20,000; |
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(4) a felony of the third degree if the amount of |
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pecuniary loss is $20,000 or more but less than $100,000; |
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(5) a felony of the second degree if the amount of |
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pecuniary loss is $100,000 or more but less than $200,000; or |
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(6) a felony of the first degree if the amount of |
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pecuniary loss is $200,000 or more. |
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(c) When more than one item of tangible property, belonging |
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to one or more owners, is altered [marked] in violation of this |
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section pursuant to one scheme or continuing course of conduct, the |
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conduct may be considered as one offense, and the amounts of |
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pecuniary loss to property resulting from the alterations to |
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[marking of] the property may be aggregated in determining the |
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grade of the offense. |
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(d) An offense under this section is a state jail felony if: |
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(1) the alteration [marking] is made on a school, an |
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institution of higher education, a place of worship or human |
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burial, a public monument, [or] a community center that provides |
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medical, social, or educational programs, railroad property, |
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property of the United States Postal Service, a street sign, or an |
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official traffic-control device; and |
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(2) the amount of the pecuniary loss to real property |
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or to tangible personal property is less than $20,000. |
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(d-1) If it is shown on the trial of an offense under this |
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section other than a felony of the first degree or a Class A |
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misdemeanor that the defendant has been previously convicted of an |
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offense under this section, the punishment for the offense is |
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increased to the punishment prescribed for the next highest |
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category of offense. If the offense is a Class A misdemeanor, the |
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minimum term of confinement for the offense is increased to 180 |
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days. |
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(e) In this section: |
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(1) ["Aerosol paint" means an aerosolized paint
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product.
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[(2)] "Etching or engraving device" means a device |
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that makes a delineation or impression on tangible property, |
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regardless of the manufacturer's intended use for that device. |
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(2) [(3)] "Indelible marker" means a device that makes |
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a mark with a paint or ink product that is specifically formulated |
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to be more difficult to erase, wash out, or remove than ordinary |
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paint or ink products. |
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(3) [(4)] "Institution of higher education" has the |
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meaning assigned by Section 481.134, Health and Safety Code. |
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(4) "Marking" includes an inscription, a slogan, a |
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drawing, and a painting. |
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(5) "Official traffic-control device" has the meaning |
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assigned by Section 541.304, Transportation Code. |
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(6) "School" means a private or public elementary or |
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secondary school. |
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SECTION 2. Article 42.037(s), Code of Criminal Procedure, |
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is amended to read as follows: |
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(s)(1) If a court orders a defendant convicted of an offense |
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under Section 28.08, Penal Code, to make restitution to the victim |
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of the offense, the court may order the defendant to make |
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restitution as provided by Subsection (b)(1)(B) or by personally |
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restoring the property by removing or painting over any alterations |
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[markings] the defendant made to the property. |
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(2) A court shall order a defendant convicted of an |
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offense under Section 28.08, Penal Code, to make restitution to a |
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political subdivision that owns public property or erected [erects] |
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a street sign or official traffic-control device that was altered |
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by [on which] the defendant [makes markings] in violation of |
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Section 28.08, Penal Code. The amount of the restitution ordered |
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must be equal to the lesser of the amount of restitution authorized |
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by Subsection (b)(1)(B) or the cost to the political subdivision of |
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restoring the public property, street sign, or official |
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traffic-control device. If the court orders a defendant to make |
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restitution under this subdivision and the defendant is financially |
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unable to make the restitution, the court may order the defendant to |
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perform a specific number of hours of community service, including |
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service restoring the property by removing or painting over any |
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alterations [markings] the defendant made to the property, to |
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satisfy the restitution. For purposes of this subdivision, |
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"official traffic-control device" has the meaning assigned by |
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Section 541.304, Transportation Code. |
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SECTION 3. Subchapter C, Chapter 101, Civil Practice and |
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Remedies Code, is amended by adding Section 101.067 to read as |
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follows: |
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Sec. 101.067. GRAFFITI REMOVAL. This chapter does not |
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apply to a claim for property damage caused by the removal of |
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graffiti under Section 250.007, Local Government Code. |
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SECTION 4. Section 53.03(h), Family Code, is amended to |
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read as follows: |
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(h) If the child is alleged to have engaged in delinquent |
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conduct or conduct indicating a need for supervision that violates |
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Section 28.08, Penal Code, deferred prosecution under this section |
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may include: |
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(1) voluntary attendance in a class with instruction |
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in self-responsibility and empathy for a victim of an offense |
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conducted by a local juvenile probation department, if the class is |
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available; and |
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(2) voluntary restoration of the property damaged by |
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the child by removing or painting over any alterations [markings] |
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made by the child to the property, if the owner of the property |
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consents to the restoration. |
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SECTION 5. Section 54.046(a), Family Code, is amended to |
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read as follows: |
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(a) If a juvenile court places on probation under Section |
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54.04(d) a child adjudicated as having engaged in conduct in |
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violation of Section 28.08, Penal Code, in addition to other |
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conditions of probation, the court: |
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(1) may order the child to: |
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(A) reimburse the owner of the property for the |
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cost of restoring the property; or |
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(B) with consent of the owner of the property, |
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restore the property by removing or painting over any alterations |
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[markings] made by the child to [on] the property; and |
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(2) if the child altered [made markings on] public |
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property, a street sign, or an official traffic-control device in |
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violation of Section 28.08, Penal Code, may order the child to: |
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(A) make to the political subdivision that owns |
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the public property or erected the street sign or official |
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traffic-control device restitution in an amount equal to the lesser |
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of the cost to the political subdivision of replacing or restoring |
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the public property, street sign, or official traffic-control |
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device; or |
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(B) with the consent of the political |
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subdivision, restore the public property, street sign, or official |
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traffic-control device by removing or painting over any alterations |
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[markings] made by the child to [on] the property, sign, or device. |
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SECTION 6. Section 54.0481(a), Family Code, as added by |
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Chapter 1053 (H.B. 2151), Acts of the 80th Legislature, Regular |
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Session, 2007, is amended to read as follows: |
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(a) A juvenile court, in a disposition hearing under Section |
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54.04 regarding a child who has been adjudicated to have engaged in |
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delinquent conduct that violates Section 28.08, Penal Code: |
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(1) may order the child or a parent or other person |
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responsible for the child's support to make restitution by: |
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(A) reimbursing the owner of the property for the |
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cost of restoring the property; or |
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(B) with the consent of the owner of the |
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property, personally restoring the property by removing or painting |
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over any alterations [markings] the child made to the property; and |
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(2) if the child altered [made markings on] public |
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property, a street sign, or an official traffic-control device in |
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violation of Section 28.08, Penal Code, may order the child or a |
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parent or other person responsible for the child's support to: |
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(A) make to the political subdivision that owns |
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the public property or erected the street sign or official |
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traffic-control device restitution in an amount equal to the lesser |
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of the cost to the political subdivision of replacing or restoring |
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the public property, street sign, or official traffic-control |
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device; or |
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(B) with the consent of the political |
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subdivision, restore the public property, street sign, or official |
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traffic-control device by removing or painting over any alterations |
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[markings] made by the child to [on] the property, sign, or device. |
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SECTION 7. Chapter 250, Local Government Code, is amended |
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by adding Section 250.007 to read as follows: |
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Sec. 250.007. GRAFFITI REMOVAL. (a) A county by order or a |
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municipality by ordinance may require the owner of property within |
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the jurisdiction of the county or municipality to remove graffiti |
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from the owner's property on receipt of notice from the county or |
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municipality. |
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(b) The order or ordinance must require a property owner to |
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remove the graffiti on or before the 30th day after the date the |
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property owner receives notice under Subsection (a), except that if |
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the property owner requests the county or municipality, as |
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applicable, to remove the graffiti or if the property owner fails to |
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remove the graffiti on or before the 30th day after the date of |
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receipt of the notice, the county or municipality may remove the |
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graffiti and charge the expenses of removal to the property owner in |
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accordance with a fee schedule adopted by the county or |
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municipality. |
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(c) The notice required by Subsection (a) must be given: |
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(1) personally to the owner in writing; |
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(2) by letter sent by certified mail, addressed to the |
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property owner at the property owner's address as contained in the |
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records of the appraisal district in which the property is located; |
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or |
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(3) if service cannot be obtained under Subdivision |
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(1) or (2): |
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(A) by publication at least once in a newspaper |
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of general circulation in the county or municipality; |
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(B) by posting the notice on or near the front |
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door of each building on the property to which the notice relates; |
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or |
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(C) by posting the notice on a placard attached |
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to a stake driven into the ground on the property to which the |
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notice relates. |
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(d) The county or municipality may assess expenses incurred |
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under Subsection (b) against the property on which the work is |
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performed to remove the graffiti. |
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(e) To obtain a lien against the property for expenses |
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incurred under Subsection (b), the governing body of the county or |
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municipality must file a statement of expenses with the county |
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clerk. The statement must state the name of the property owner, if |
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known, and the legal description of the property. The lien attaches |
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on the filing of the statement with the county clerk. |
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SECTION 8. The changes in law made by this Act apply only to |
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an offense committed or conduct engaged in on or after the effective |
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date of this Act. An offense committed or conduct engaged in before |
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the effective date of this Act is governed by the law in effect when |
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the offense was committed or the conduct was engaged in, and the |
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former law is continued in effect for that purpose. For purposes of |
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this section, an offense was committed or conduct was engaged in |
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before the effective date of this Act if any element of the offense |
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or conduct occurred before that date. |
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SECTION 9. This Act takes effect September 1, 2009. |