2011S0643-1 03/09/11

By: Williams S.B. No. 1695

A BILL TO BE ENTITLED

AN ACT

relating to penalties for engaging in organized criminal activity.

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

SECTION 1. Subsection (a), Section 4, Article 37.07, Code of Criminal Procedure, is amended to read as follows:

(a) In the penalty phase of the trial of a felony case in which the punishment is to be assessed by the jury rather than the court, if the offense of which the jury has found the defendant guilty is an offense under Section 71.02 or 71.023, Penal Code, or an offense listed in Section 3g(a)(1), Article 42.12, [of this code] or if the judgment contains an affirmative finding under Section 3g(a)(2), Article 42.12, [of this code,] unless the defendant has been convicted of an offense under Section 21.02, Penal Code, an offense under Section 22.021, Penal Code, that is punishable under Subsection (f) of that section, or a capital felony, the court shall charge the jury in writing as follows:

"Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.

"It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.

"Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, the defendant [he] will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time the defendant [he] may earn. If the defendant is sentenced to a term of less than four years, the defendant [he] must serve at least two years before the defendant [he] is eligible for parole. Eligibility for parole does not guarantee that parole will be granted.

"It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if [he is] sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.

"You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant."

SECTION 2. Subsection (d), Section 508.145, Government Code, is amended to read as follows:

(d) An inmate serving a sentence for an offense described by Section 3g(a)(1)(A), (C), (D), (E), (F), (G), (H), (I), (J), or (K), Article 42.12, Code of Criminal Procedure, [or for] an offense for which the judgment contains an affirmative finding under Section 3g(a)(2) of that article, or an offense under Section 71.02 or 71.023, Penal Code, is not eligible for release on parole until the inmate's actual calendar time served, without consideration of good conduct time, equals one-half of the sentence or 30 calendar years, whichever is less, but in no event is the inmate eligible for release on parole in less than two calendar years.

SECTION 3. Subsection (a), Section 508.149, Government Code, is amended to read as follows:

(a) An inmate may not be released to mandatory supervision if the inmate is serving a sentence for or has been previously convicted of:

(1) an offense for which the judgment contains an affirmative finding under Section 3g(a)(2), Article 42.12, Code of Criminal Procedure;

(2) a first degree felony or a second degree felony under Section 19.02, Penal Code;

(3) a capital felony under Section 19.03, Penal Code;

(4) a first degree felony or a second degree felony under Section 20.04, Penal Code;

(5) an offense under Section 21.11, Penal Code;

(6) a felony under Section 22.011, Penal Code;

(7) a first degree felony or a second degree felony under Section 22.02, Penal Code;

(8) a first degree felony under Section 22.021, Penal Code;

(9) a first degree felony under Section 22.04, Penal Code;

(10) a first degree felony under Section 28.02, Penal Code;

(11) a second degree felony under Section 29.02, Penal Code;

(12) a first degree felony under Section 29.03, Penal Code;

(13) a first degree felony under Section 30.02, Penal Code;

(14) a felony for which the punishment is increased under Section 481.134 or Section 481.140, Health and Safety Code;

(15) an offense under Section 43.25, Penal Code;

(16) an offense under Section 21.02, Penal Code; [or]

(17) a first degree felony under Section 15.03, Penal Code; or

(18) a first degree felony under Section 71.02 or 71.023, Penal Code.

SECTION 4. Section 481.108, Health and Safety Code, is amended to read as follows:

Sec. 481.108. PREPARATORY OFFENSES. (a) Except as provided by Subsection (b), Title 4, Penal Code, applies to an offense under this chapter.

(b) The performance of an overt act described by Section 15.02(a)(2), Penal Code, that is otherwise required to establish criminal conspiracy under that section is not required for purposes of establishing criminal conspiracy with respect to an offense under this chapter.

SECTION 5. Subsection (b), Section 71.02, Penal Code, as amended by Chapters 761 (H.B. 354) and 900 (S.B. 1067), Acts of the 73rd Legislature, Regular Session, 1993, is reenacted and amended to read as follows:

(b) Except as provided in Subsections (c) and (d), an offense under this section is one category higher than the most serious offense listed in Subsection (a) that was committed, and if the most serious offense is a Class A misdemeanor, the offense is a state jail felony, except that if the most serious offense is a felony of the first degree, the offense is a felony of the first degree punishable by imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 15 years.

SECTION 6. Subsection (c), Section 71.02, Penal Code, as amended by Chapters 761 (H.B. 354) and 900 (S.B. 1067), Acts of the 73rd Legislature, Regular Session, 1993, is reenacted to read as follows:

(c) Conspiring to commit an offense under this section is of the same degree as the most serious offense listed in Subsection (a) that the person conspired to commit.

SECTION 7. Section 71.023, Penal Code, is amended to read as follows:

Sec. 71.023. DIRECTING ACTIVITIES OF [CERTAIN] CRIMINAL STREET GANGS. (a) A person commits an offense if the person knowingly [initiates, organizes, plans,] finances, directs, [manages,] or supervises [a criminal street gang or] members of a criminal street gang that commit or conspire to commit a felony:

(1) that is listed in Section 3g(a)(1), Article 42.12, Code of Criminal Procedure;

(2) for which it is shown that a deadly weapon, as defined by Section 1.07, Penal Code, was used or exhibited during the commission of the offense or during immediate flight from the commission of the offense; or

(3) that is punishable as a felony of the first or second degree under Chapter 481, Health and Safety Code [with the intent to benefit, promote, or further the interests of the criminal street gang or to increase the person's standing, position, or status in the criminal street gang].

(b) An offense under this section is a felony of the first degree punishable by imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 25 years.

[(c) Notwithstanding Section 71.01, in this section, "criminal street gang" means:

[(1) an organization that:

[(A) has more than 10 members whose names are included in an intelligence database under Chapter 61, Code of Criminal Procedure;

[(B) has a hierarchical structure that has been documented in an intelligence database under Chapter 61, Code of Criminal Procedure;

[(C) engages in profit-sharing among two or more members of the organization; and

[(D) in one or more regions of this state served by different regional councils of government, continuously or regularly engages in conduct:

[(i) that constitutes an offense listed in Section 3g(a)(1), Article 42.12, Code of Criminal Procedure;

[(ii) in which it is alleged that a deadly weapon is used or exhibited during the commission of or immediate flight from the commission of any felony offense; or

[(iii) that is punishable as a felony of the first or second degree under Chapter 481, Health and Safety Code; or

[(2) an organization that, in collaboration with an organization described by Subdivision (1), engages in conduct or commits an offense or conspires to engage in conduct or commit an offense described by Subdivision (1)(D).]

SECTION 8. Subsection (a), Section 4, Article 37.07, Code of Criminal Procedure, Sections 508.145 and 508.149, Government Code, Section 481.108, Health and Safety Code, and Sections 71.02 and 71.023, Penal Code, as amended 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 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 9. This Act takes effect September 1, 2011.