Honorable Pete Gallego, Chair, House Committee on Criminal Jurisprudence
FROM:
John S O'Brien, Director, Legislative Budget Board
IN RE:
HB38 by Menendez (Relating to the criminal penalty for and certain civil consequences of damaging property with graffiti. ), Committee Report 1st House, Substituted
The bill would amend the Penal Code, the Civil Practice and Remedies Code, and the Transportation Code as it relates to the criminal penalty for and certain civil consequences of damaging property with graffiti. The provisions of the bill that create new punishment or enhance existing punishment for criminal offenses are the subject of this analysis. Under the provisions of the bill, a graffiti offense would have a minimum term of confinement (72 hours) and a first time offense would be punishable as a Class A Misdemeanor unless the offense involved specified places (a school, an institution of higher education, a place of worship or human burial, a public monument, a city hall, a courthouse, or a community center that provides medical, social, or educational programs), in which case the offense would be punishable as a state jail felony. The bill would also increase the punishment for graffiti to a state jail felony if the defendant has been previously convicted or placed on deferred adjudication for graffiti; out-of-State convictions for offenses with substantially similar elements would be considered a previous conviction. The bill would add coercing, soliciting, or inducing gang membership and graffiti offenses involving a city hall or courthouse to the list of gang activities specified as membership in a criminal street gang subchapter of the Civil Practice and Remedies Code. Under current statute graffiti is punishable at both misdemeanor and felony levels, and is contingent upon the total dollar amount of pecuniary loss to property.
A Class A Misdemeanor is punishable by confinement in county jail for a term not to exceed one year and/or a fine not to exceed $4,000. A state jail felony is punishable by confinement in a state jail for a term from 180 days to 2 years and, in addition to confinement, an optional fine not to exceed $10,000 or Class A Misdemeanor punishment (mandatory post conviction community supervision).
Modifying the penalty for any criminal offense is expected to result in increased demands upon the correctional resources of counties or of the State due to longer terms of probation, or longer terms of confinement in county jail, state jail or prison. When an offense is changed from a misdemeanor to a felony, or from a felony to a misdemeanor, there is a transfer of the burden of confinement. In fiscal year 2010, 212 offenders were placed on misdemeanor community supervision, 56 offenders were placed on felony community supervision, and 21 offenders were admitted to prison or state jail, who would be subject to the provisions of the bill. Based on arrest data, criminal history data, and sentencing trends, it is assumed approximately 45 offenders who were placed on misdemeanor community supervision would have a previous conviction and be subject to the state jail felony punishment, with approximately 4 of those offenders admitted to state jail and approximately 20 offenders placed on felony community supervision. Based on arrest data, criminal history data, and sentencing trends, it is assumed approximately 57 offenders who were placed on felony community supervision or admitted to state jail or prison would not have a previous conviction and be subject to the punishment reduction, with approximately 23 of those offenders placed on misdemeanor community supervision. For this analysis, it is assumed the number of offenders convicted under this statute would not result in a significant impact on the programs and workload of State corrections agencies or on the demand for resources and services of those agencies.