81R5471 GCB-D

By: Ellis S.B. No. 2218

A BILL TO BE ENTITLED

AN ACT

relating to certain criminal penalties and civil consequences for defendants convicted of an offense of graffiti and for juveniles adjudicated as having engaged in conduct involving graffiti.

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

SECTION 1. Article 42.037(s), Code of Criminal Procedure, is amended to read as follows:

(s)(1) A court shall order [If a court orders] a defendant convicted of an offense under Section 28.08, Penal Code, to make restitution by:

(A) reimbursing the owner of the property for the cost of restoring the property; or

(B) with the consent of the owner of the property, [to the victim of the offense, the court may order the defendant to make restitution as provided by Subsection (b)(1)(B) or by] personally restoring the property by removing or painting over any markings the defendant made.

(2) A court shall order a defendant convicted of an offense under Section 28.08, Penal Code, to make restitution to a political subdivision that owns public property or erects a street sign or official traffic-control device on which the defendant makes markings in violation of Section 28.08, Penal Code, by:

(A) paying an [. The] amount [of the restitution ordered must be] equal to the lesser of [the amount of restitution authorized by Subsection (b)(1)(B) or] the cost to the political subdivision of replacing or restoring the public property, street sign, or official traffic-control device; or

(B) with the consent of the political subdivision, restoring the public property, street sign, or official traffic-control device by removing or painting over any markings made by the defendant on the property, sign, or device.

(3) If the court orders a defendant to make restitution under this subsection [subdivision] and the defendant is financially unable to make the restitution, the court may order the defendant to perform a specific number of hours of community service[, including service restoring the property by removing or painting over any markings the defendant made,] to satisfy the restitution.

(4) For purposes of this subsection [subdivision], "official traffic-control device" has the meaning assigned by Section 541.304, Transportation Code.

SECTION 2. Section 11, Article 42.12, Code of Criminal Procedure, is amended by adding Subsection (k) to read as follows:

(k) A court granting community supervision to a defendant convicted of an offense under Section 28.08, Penal Code, shall require as a condition of community supervision that the defendant perform not less than 50 hours of community service.

SECTION 3. Section 54.046(a), Family Code, is amended to read as follows:

(a) If a juvenile court places on probation under Section 54.04(d) a child adjudicated as having engaged in conduct in violation of Section 28.08, Penal Code, in addition to other conditions of probation, the court:

(1) shall [may] order the child to:

(A) reimburse the owner of the property for the cost of restoring the property; or

(B) with consent of the owner of the property, restore the property by removing or painting over any markings made by the child on the property; and

(2) if the child made markings on public property, a street sign, or an official traffic-control device in violation of Section 28.08, Penal Code, shall [may] order the child to:

(A) make to the political subdivision that owns the public property or erected the street sign or official traffic-control device restitution in an amount equal to the lesser of the cost to the political subdivision of replacing or restoring the public property, street sign, or official traffic-control device; or

(B) with the consent of the political subdivision, restore the public property, street sign, or official traffic-control device by removing or painting over any markings made by the child on the property, sign, or device.

SECTION 4. Section 54.0481(a), Family Code, as added by Chapter 1053 (H.B. 2151), Acts of the 80th Legislature, Regular Session, 2007, is amended to read as follows:

(a) 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 violates Section 28.08, Penal Code:

(1) shall [may] order the child, and may order [or] a parent or other person responsible for the child's support, to make restitution by:

(A) reimbursing the owner of the property for the cost of restoring the property; or

(B) with the consent of the owner of the property, personally restoring the property by removing or painting over any markings the child made; and

(2) if the child made markings on public property, a street sign, or an official traffic-control device in violation of Section 28.08, Penal Code, shall [may] order the child, and may order [or] a parent or other person responsible for the child's support, to:

(A) make to the political subdivision that owns the public property or erected the street sign or official traffic-control device restitution in an amount equal to the lesser of the cost to the political subdivision of replacing or restoring the public property, street sign, or official traffic-control device; or

(B) with the consent of the political subdivision, restore the public property, street sign, or official traffic-control device by removing or painting over any markings made by the child on the property, sign, or device.

SECTION 5. Section 28.08(d), Penal Code, is amended to read as follows:

(d) An offense under this section is a state jail felony if:

(1) either:

(A) 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; or

(B) the person has been previously convicted two or more times of an offense under this section; and

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

SECTION 6. 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 7. Section 521.320, Transportation Code, is amended to read as follows:

Sec. 521.320. SUSPENSION FOR CONVICTION OR ADJUDICATION INVOLVING GRAFFITI [CERTAIN CRIMINAL MISCHIEF]; LICENSE DENIAL. (a) A court shall [may] order the department to suspend a person's driver's license on conviction of an offense under Section 28.08, Penal Code. A juvenile court shall order the department to suspend a person's provisional license or driver's license if the person has been adjudicated to have engaged in delinquent conduct that violates Section 28.08, Penal Code.

(b) A court shall [may] order the department to deny an application for reinstatement or issuance of a driver's license to a person convicted of an offense under Section 28.08, Penal Code, who, on the date of the conviction, did not hold a driver's license. A juvenile court shall order the department to deny an application for reinstatement or issuance of a provisional license or driver's license to a person who has been adjudicated to have engaged in delinquent conduct that violates Section 28.08, Penal Code, and who, on the date of the adjudication, did not hold a provisional license or driver's license.

(c) The period of suspension under this section is one year after the date of a final conviction or the date on which the disposition is made, as applicable. The period of license denial is one year after the date the person applies to the department for reinstatement or issuance of a provisional license or driver's license.

(d) The department may not reinstate a provisional license or driver's license suspended under Subsection (a) unless the person whose license was suspended applies to the department for reinstatement.

(e) A person whose license is suspended under Subsection (a) remains eligible to receive an occupational license under Subchapter L or a hardship license under Section 521.223.

(f) For the purposes of this section, a person is convicted of an offense regardless of whether the sentence is imposed or the person is placed on community supervision for the offense under Article 42.12, Code of Criminal Procedure.

SECTION 8. The change in law made by this Act applies 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 9. This Act takes effect September 1, 2009.