83R25054 MEW-F

By: Menendez H.B. No. 36

Substitute the following for H.B. No. 36:

By: Herrero C.S.H.B. No. 36

A BILL TO BE ENTITLED

AN ACT

relating to the criminal penalty for and certain civil consequences of damaging property with graffiti.

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

SECTION 1. Section 28.08, Penal Code, is amended by amending Subsections (b) and (d) and adding Subsections (c-1) and (c-2) to read as follows:

(b) Except as provided by Subsections (c-1) and [Subsection] (d), an offense under this section is:

(1) a Class B misdemeanor if the amount of pecuniary loss is less than $500;

(2) a Class A misdemeanor if the amount of pecuniary loss is $500 or more but less than $1,500;

(3) a state jail felony if the amount of pecuniary loss is $1,500 or more but less than $20,000;

(4) a felony of the third degree if the amount of pecuniary loss is $20,000 or more but less than $100,000;

(5) a felony of the second degree if the amount of pecuniary loss is $100,000 or more but less than $200,000; or

(6) a felony of the first degree if the amount of pecuniary loss is $200,000 or more.

(c-1) An offense under this section is increased to the next higher category of offense if it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this section.

(c-2) For the purposes of Subsection (c-1):

(1) a defendant has been previously convicted of an offense under this section if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the defendant was subsequently discharged from community supervision; and

(2) a conviction under the laws of another state for an offense containing elements that are substantially similar to the elements of an offense under this section is a conviction of an offense under this section.

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

(1) the marking is made on:

(A) a school, an institution of higher education, a place of worship or human burial, a public monument, a city hall, a courthouse, or a historic structure;

(B) a cultural resource site or area, such as a site or area containing petroglyphs or pictographs; or

(C) 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. Section 28.08(e), Penal Code, is amended by adding Subdivisions (1-a) and (2-a) to read as follows:

(1-a) "Cultural resource site or area" means a publicly or privately owned site or area having valuable and vulnerable cultural or historic resources.

(2-a) "Historic structure" means a structure that:

(A) is publicly owned and included on the National Register of Historic Places;

(B) is designated as a Recorded Texas Historic Landmark; or

(C) is designated as a State Archeological Landmark.

SECTION 3. Section 125.061(3), Civil Practice and Remedies Code, is amended to read as follows:

(3) "Gang activity" means the following types of conduct:

(A) organized criminal activity as described by Section 71.02, Penal Code;

(B) terroristic threat as described by Section 22.07, Penal Code;

(C) coercing, soliciting, or inducing gang membership as described by Section 71.022 [71.022(a) or (a-1)], Penal Code;

(D) criminal trespass as described by Section 30.05, Penal Code;

(E) disorderly conduct as described by Section 42.01, Penal Code;

(F) criminal mischief as described by Section 28.03, Penal Code, that causes a pecuniary loss of $500 or more;

(G) a graffiti offense in violation of Section 28.08, Penal Code;

(H) a weapons offense in violation of Chapter 46, Penal Code; or

(I) unlawful possession of a substance or other item in violation of Chapter 481, Health and Safety Code.

SECTION 4. Section 11(k), Article 42.12, Code of Criminal Procedure, is amended 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 submit to not less than 12 and not more than 48 hours of confinement in county jail and that the defendant, after release from jail, perform:

(1) at least 15 hours of community service if the amount of pecuniary loss resulting from the commission of the offense is $50 or more but less than $500; or

(2) at least 30 hours of community service if the amount of pecuniary loss resulting from the commission of the offense is $500 or more.

SECTION 5. Section 54.0481, Family Code, is amended by amending Subsection (a) and adding Subsections (a-1) and (a-2) to read as follows:

(a) Except as provided by Subsection (a-1), 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) may order the child 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, may order the child 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.

(a-1) A juvenile court, in a disposition hearing described by Subsection (a) involving a child who has previously been adjudicated for having engaged in delinquent conduct that violates Section 28.08, Penal Code, in addition to any other disposition ordered, if the child made markings on a historic structure or other property described in Section 28.08(d), Penal Code, or private property, shall order the child and the parent or other person responsible for the child's support to make restitution by personally restoring the property by removing or painting over any markings the child made, with the consent of the owner of the property.

(a-2) A juvenile court may not require that a child or a child's parent or other person responsible for the child's support personally restore the property under this section if:

(1) the child, parent, or other person is physically or mentally incapable of participating in the restoration; or

(2) the restoration is inherently dangerous or would otherwise endanger the health or safety of the child, parent, or other person.

SECTION 6. 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 two years [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 two years [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 7. The changes in law made by this Act in amending Section 11(k), Article 42.12, Code of Criminal Procedure, Section 54.0481, Family Code, Section 28.08, Penal Code, and Section 521.320, Transportation Code, apply only to an offense committed, or conduct violating a penal law that occurs, on or after the effective date of this Act. An offense committed, or conduct violating a penal law that occurs, before the effective date of this Act is governed by the law in effect when the offense was committed or the conduct occurred, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed, or conduct violating a penal law occurred, before the effective date of this Act if any element of the offense or violation occurred before that date.

SECTION 8. The change in law made by this Act in amending Section 125.061, Civil Practice and Remedies Code, applies only to a cause of action that accrues on or after the effective date of this Act. A cause of action that accrued before the effective date of this Act is governed by the law in effect immediately before the effective date of this Act, and that law is continued in effect for that purpose.

SECTION 9. This Act takes effect September 1, 2013.