81R2958 GCB-D

By: Shapleigh S.B. No. 1087

A BILL TO BE ENTITLED

AN ACT

relating to the conduct constituting the offense of graffiti, the creation and criminal prosecution of, and penalties for offenses involving graffiti, and the authority of certain governmental entities to take certain actions designed to prevent or eradicate graffiti.

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

SECTION 1. Section 28.08(a), (c), and (d), Penal Code, are amended to read as follows:

(a) A person commits an offense if, without the effective consent of the owner, the person intentionally or knowingly:

(1) makes markings, including inscriptions, slogans, drawings, or paintings, on the tangible property of the owner with:

(A) [(1)] aerosol paint;

(B) [(2)] an indelible marker; or

(C) [(3)] an etching or engraving device; or

(2) affixes a sticker to the tangible property of the owner in a manner that causes damage to the property.

(c) When more than one item of tangible property, belonging to one or more owners, is marked in violation of Subsection (a)(1) [this section] pursuant to one scheme or continuing course of conduct, the conduct may be considered as one offense, and the amounts of pecuniary loss to property resulting from the marking of the property may be aggregated in determining the grade of the offense.

(d) An offense under Subsection (a)(1) [this section] is a state jail felony if:

(1) the marking is made on a school, an institution of higher education, a place of worship or human burial, a public monument, or a community center that provides medical, social, or educational programs; and

(2) the amount of the pecuniary loss to real property or to tangible personal property is less than $20,000.

SECTION 2. Chapter 30, Penal Code, is amended by adding Section 30.021 to read as follows:

Sec. 30.021. BURGLARY OF BUILDING TO CREATE GRAFFITI. (a) A person commits an offense if, without the effective consent of the owner, the person:

(1) enters a building (or any portion of a building) not then open to the public, with the intent to commit an offense under Section 28.08;

(2) remains concealed, with the intent to commit an offense under Section 28.08, in a building; or

(3) enters a building and commits or attempts to commit an offense under Section 28.08.

(b) For purposes of this section, "enter" has the meaning assigned by Section 30.02.

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

SECTION 3. Section 71.02(a), Penal Code, is amended to read as follows:

(a) A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, he commits or conspires to commit one or more of the following:

(1) murder, capital murder, arson, aggravated robbery, robbery, burglary, theft, aggravated kidnapping, kidnapping, aggravated assault, aggravated sexual assault, sexual assault, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle;

(2) any gambling offense punishable as a Class A misdemeanor;

(3) promotion of prostitution, aggravated promotion of prostitution, or compelling prostitution;

(4) unlawful manufacture, transportation, repair, or sale of firearms or prohibited weapons;

(5) unlawful manufacture, delivery, dispensation, or distribution of a controlled substance or dangerous drug, or unlawful possession of a controlled substance or dangerous drug through forgery, fraud, misrepresentation, or deception;

(6) any unlawful wholesale promotion or possession of any obscene material or obscene device with the intent to wholesale promote the same;

(7) any offense under Subchapter B, Chapter 43, depicting or involving conduct by or directed toward a child younger than 18 years of age;

(8) any felony offense under Chapter 32;

(9) any offense under Chapter 36;

(10) any offense under Chapter 34 or 35;

(11) any offense under Section 37.11(a);

(12) any offense under Chapter 20A; [or]

(13) any offense under Section 37.10; or

(14) any offense under Section 28.08.

SECTION 4. Articles 102.0171(a) and (c), Code of Criminal Procedure, are amended to read as follows:

(a) A defendant convicted of an offense under Section 28.08, Penal Code, in a county court, county court at law, or district court shall pay a [$50] juvenile delinquency prevention and graffiti eradication fee as a cost of court. The amount of the fee under this section must be not less than $50 or more than $500. In setting the amount of the fee, the court shall increase the fee based on the amount of pecuniary loss in the case and the number of times the defendant has been previously convicted under Section 28.08, Penal Code.

(c) The clerks of the respective courts shall collect the costs and pay them to the county treasurer or to any other official who discharges the duties commonly delegated to the county treasurer for deposit in a fund to be known as the county juvenile delinquency prevention fund. A fund designated by this subsection may be used only to:

(1) repair damage caused by the commission of offenses under Section 28.08, Penal Code;

(2) provide educational and intervention programs and materials, including printed educational materials for distribution to primary and secondary school students, designed to prevent individuals from committing offenses under Section 28.08, Penal Code;

(3) provide to the public rewards for identifying and aiding in the apprehension and prosecution of offenders who commit offenses under Section 28.08, Penal Code;

(4) provide funding for teen recognition and teen recreation programs;

(5) provide funding for local teen court programs;

(6) provide funding for the local juvenile probation department; [and]

(7) provide educational and intervention programs designed to prevent juveniles from engaging in delinquent conduct; and

(8) provide funding for community art programs.

SECTION 5. Subchapter C, Chapter 101, Civil Practice and Remedies Code, is amended by adding Section 101.067 to read as follows:

Sec. 101.067. GRAFFITI REMOVAL. This chapter does not apply to a claim for property damage caused by the removal of graffiti under Section 250.007, Local Government Code.

SECTION 6. Section 54.0461(a), Family Code, is amended to read as follows:

(a) If a child is adjudicated as having engaged in delinquent conduct that violates Section 28.08, Penal Code, the juvenile court shall order the child, parent, or other person responsible for the child's support to pay to the court a [$50] juvenile delinquency prevention fee as a cost of court. The amount of the fee under this section must be not less than $50 or more than $500. In setting the amount of the fee, the court shall increase the fee based on the amount of pecuniary loss resulting from the conduct and the number of times the child has been previously adjudicated as having engaged in delinquent conduct violating Section 28.08, Penal Code.

SECTION 7. Section 102.041, Government Code, as amended by Chapter 921 (H.B. 3167), Acts of the 80th Legislature, Regular Session, 2007, is amended to read as follows:

Sec. 102.041. ADDITIONAL COURT COSTS ON CONVICTION IN DISTRICT COURT: CODE OF CRIMINAL PROCEDURE. The clerk of a district court shall collect fees and costs under the Code of Criminal Procedure on conviction of a defendant as follows:

(1) a jury fee (Art. 102.004, Code of Criminal Procedure) . . . $20;

(2) a fee for clerk of the court services (Art. 102.005, Code of Criminal Procedure) . . . $40;

(3) a records management and preservation services fee (Art. 102.005, Code of Criminal Procedure) . . . $25;

(4) a security fee on a felony offense (Art. 102.017, Code of Criminal Procedure) . . . $5;

(5) a security fee on a misdemeanor offense (Art. 102.017, Code of Criminal Procedure) . . . $3; and

(6) a juvenile delinquency prevention and graffiti eradication fee (Art. 102.0171, Code of Criminal Procedure) . . . not less than $50 or more than $500 [$5].

SECTION 8. Section 102.061, Government Code, as amended by Chapter 921 (H.B. 3167), Acts of the 80th Legislature, Regular Session, 2007, is amended to read as follows:

Sec. 102.061. ADDITIONAL COURT COSTS ON CONVICTION IN STATUTORY COUNTY COURT: CODE OF CRIMINAL PROCEDURE. The clerk of a statutory county court shall collect fees and costs under the Code of Criminal Procedure on conviction of a defendant as follows:

(1) a jury fee (Art. 102.004, Code of Criminal Procedure) . . . $20;

(2) a fee for services of the clerk of the court (Art. 102.005, Code of Criminal Procedure) . . . $40;

(3) a records management and preservation services fee (Art. 102.005, Code of Criminal Procedure) . . . $25;

(4) a security fee on a misdemeanor offense (Art. 102.017, Code of Criminal Procedure) . . . $3;

(5) a juvenile delinquency prevention and graffiti eradication fee (Art. 102.0171, Code of Criminal Procedure) . . . not less than $50 or more than $500 [$5]; and

(6) a juvenile case manager fee (Art. 102.0174, Code of Criminal Procedure) . . . not to exceed $5.

SECTION 9. Section 102.081, Government Code, as amended by Chapter 921 (H.B. 3167), Acts of the 80th Legislature, Regular Session, 2007, is amended to read as follows:

Sec. 102.081. ADDITIONAL COURT COSTS ON CONVICTION IN COUNTY COURT: CODE OF CRIMINAL PROCEDURE. The clerk of a county court shall collect fees and costs under the Code of Criminal Procedure on conviction of a defendant as follows:

(1) a jury fee (Art. 102.004, Code of Criminal Procedure) . . . $20;

(2) a fee for clerk of the court services (Art. 102.005, Code of Criminal Procedure) . . . $40;

(3) a records management and preservation services fee (Art. 102.005, Code of Criminal Procedure) . . . $25;

(4) a security fee on a misdemeanor offense (Art. 102.017, Code of Criminal Procedure) . . . $3;

(5) a juvenile delinquency prevention and graffiti eradication fee (Art. 102.0171, Code of Criminal Procedure) . . . not less than $50 or more than $500 [$5]; and

(6) a juvenile case manager fee (Art. 102.0174, Code of Criminal Procedure) . . . not to exceed $5.

SECTION 10. Section 103.0212, Government Code, is amended to read as follows:

Sec. 103.0212. ADDITIONAL FEES AND COSTS IN CRIMINAL OR CIVIL CASES: FAMILY CODE. An accused or defendant, or a party to a civil suit, as applicable, shall pay the following fees and costs under the Family Code if ordered by the court or otherwise required:

(1) in family matters:

(A) issuing writ of withholding (Sec. 8.262, Family Code) . . . $15;

(B) filing copy of writ of withholding to subsequent employer (Sec. 8.267, Family Code) . . . $15;

(C) issuing and delivering modified writ of withholding or notice of termination (Sec. 8.302, Family Code) . . . $15;

(D) issuing and delivering notice of termination of withholding (Sec. 8.303, Family Code) . . . $15;

(E) issuance of change of name certificate (Sec. 45.106, Family Code) . . . $10;

(F) protective order fee (Sec. 81.003, Family Code) . . . $16;

(G) filing suit requesting adoption of child (Sec. 108.006, Family Code) . . . $15;

(H) filing fees for suits affecting parent-child relationship (Sec. 110.002, Family Code):

(i) suit or motion for modification (Sec. 110.002, Family Code) . . . $15;

(ii) motion for enforcement (Sec. 110.002, Family Code) . . . $15;

(iii) notice of application for judicial writ of withholding (Sec. 110.002, Family Code) . . . $15;

(iv) motion to transfer (Sec. 110.002, Family Code) . . . $15;

(v) petition for license suspension (Sec. 110.002, Family Code) . . . $15;

(vi) motion to revoke a stay of license suspension (Sec. 110.002, Family Code) . . . $15; and

(vii) motion for contempt (Sec. 110.002, Family Code) . . . $15;

(I) order or writ of income withholding to be delivered to employer (Sec. 110.004, Family Code) . . . not to exceed $15;

(J) filing fee for transferred case (Sec. 110.005, Family Code) . . . $45;

(K) filing a writ of withholding (Sec. 158.319, Family Code) . . . $15;

(L) filing a request for modified writ of withholding or notice of termination (Sec. 158.403, Family Code) . . . not to exceed $15;

(M) filing an administrative writ to employer (Sec. 158.503, Family Code) . . . not to exceed $15; and

(N) genetic testing fees in relation to a child born to a gestational mother (Sec. 160.762, Family Code) . . . as assessed by the court; and

(2) in juvenile court:

(A) fee schedule for deferred prosecution services (Sec. 53.03, Family Code) . . . maximum fee of $15 a month;

(B) a teen court administration fee (Sec. 54.032, Family Code) . . . not to exceed $10;

(C) court costs for juvenile probation diversion fund (Sec. 54.0411, Family Code) . . . $20;

(D) a juvenile delinquency prevention fee (Sec. 54.0461, Family Code) . . . not less than $50 or more than $500 [$5]; and

(E) a court fee for child's probationary period (Sec. 54.061, Family Code) . . . not to exceed $15 a month.

SECTION 11. Section 485.018(a), Health and Safety Code, is amended to read as follows:

(a) A political subdivision or an agency of this state may not enact an ordinance or rule that requires a business establishment to display an abusable volatile chemical, other than aerosol paint, in a manner that makes the chemical accessible to patrons of the business only with the assistance of personnel of the business.

SECTION 12. Chapter 250, Local Government Code, is amended by adding Sections 250.006 and 250.007 to read as follows:

Sec. 250.006. REGULATION OF SALE OF AEROSOL PAINT; SURCHARGE. (a) A county by order or a municipality by ordinance may require a person who sells aerosol paint to:

(1) require proof of identification from the buyer before making a sale to that buyer; and

(2) record the sale in a log and maintain the log for at least two years after the date of the sale.

(b) An order adopted by a county under this section applies only in the unincorporated area of the county.

(c) An order or ordinance adopted under this section may require a surcharge not to exceed one dollar on each sale. Money collected under this section may be used only for purposes related to graffiti abatement.

Sec. 250.007. GRAFFITI REMOVAL. (a) A county or municipality may require an owner of property within the jurisdiction of the county or municipality to remove graffiti from the owner's property.

(b) A requirement adopted under this section shall provide that if an owner of property fails to remove graffiti not later than the seventh day after the date of notice, the county or municipality may:

(1) perform the work necessary to remove the graffiti; or

(2) pay for the removal of the graffiti and charge the expense to the owner of the property.

(c) The notice required by Subsection (b) must be given:

(1) personally to the owner in writing;

(2) by letter sent by certified mail, addressed to the owner at the owner's address as contained in the records of the appraisal district in which the property is located; or

(3) if service cannot be obtained under Subdivision (1) or (2):

(A) by publication at least once;

(B) by posting the notice on or near the front door of each building on the property to which the notice relates; or

(C) by posting the notice on a placard attached to a stake driven into the ground on the property to which the notice relates.

(d) The county or municipality may assess expenses incurred under Subsection (b) against the property on which the work is done to remove the graffiti.

(e) To obtain a lien against the property for expenses incurred under Subsection (b), the governing body of the county or municipality must file a statement of expenses with the county clerk. The statement must state the name of the owner, if known, and the legal description of the property. The lien attaches on the filing of the statement with the county clerk.

SECTION 13. The changes in law made 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 was committed before that date.

SECTION 14. This Act takes effect September 1, 2009.