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ANALYSIS
C.S.H.B. 3326 amends the Penal
Code to increase the threshold amounts of pecuniary loss resulting from an
offense of criminal mischief. The bill decreases the penalty for a graffiti
offense resulting in less than $100 of pecuniary loss to the defaced tangible
property from a Class B misdemeanor to a Class C misdemeanor and increases
the threshold amounts of pecuniary loss that trigger different penalty grades
for graffiti offenses. The bill decreases from a state jail felony to a Class
A misdemeanor the penalty for a burglary offense committed in a building other
than a habitation. The bill increases the threshold amounts of the monetary
value of property or service stolen in the activity resulting from an offense
of theft or theft of service, respectively. The bill decreases from a state
jail felony to a Class A misdemeanor the penalty for credit card or debit
card abuse, with a certain exception. The bill decreases by one degree of
punishment the penalties for certain offenses of fraudulent use or possession
of identifying information. The bill repeals the state jail felony penalty
enhancement for a forgery offense for a writing that is or purports to be a
will, codicil, deed, deed of trust, mortgage, security instrument, security
agreement, credit card, check, authorization to debit an account at a
financial institution, or similar sight order for payment of money, contract,
release, or other commercial instrument.
C.S.H.B. 3326 makes the conduct
constituting a prostitution offense applicable if a person engages in the
conduct in return for receipt of a fee or if a person engages in the conduct
based on the payment of a fee by the actor or another person on the actor's
behalf. The bill specifies that a prostitution offense is established
regardless of whether the actor is offered or actually receives the fee or
regardless of whether the actor or another person on the actor's behalf
offers or actually pays the fee, as applicable. The bill removes provisions
relating to the establishment of the offense with respect to receiving or
paying a fee or the hiring of a person. The bill retains the Class A
misdemeanor enhancement for a prostitution offense but specifies that penalty
enhancements for prostitution conduct committed in return for receipt of a
fee result from subsequent convictions of that specific conduct and that
penalty enhancements for prostitution conduct committed based on the payment
of a fee by the actor or another result from subsequent convictions of that
specific conduct. The bill makes the state jail felony enhancement for
prostitution and the second degree felony enhancement for soliciting a person
younger than 18 years of age applicable only to prostitution conduct
committed based on the payment of a fee by the actor or another. The bill
limits applicability of the defense to prosecution for prostitution to
conduct committed in return for receipt of a fee and expands the
circumstances constituting that defense to include that the actor engaged in
that conduct because the actor was a victim of a compelling prostitution
offense.
C.S.H.B. 3326 amends the Health
and Safety Code to decrease the penalty for possession of one ounce or less
of marihuana from a Class B misdemeanor to a Class C misdemeanor and to
establish the minimum threshold amount of marihuana possessed under the Class
B misdemeanor at more than one ounce of marihuana. The bill decreases from a
state jail felony to a Class A misdemeanor the penalty for knowingly or
intentionally possessing a controlled substance listed in Penalty Group 1 of
the Texas Controlled Substances Act in an amount, by aggregate weight,
including adulterants or dilutants, of less than one gram and enhances the
penalty for such an offense to a state jail felony if the person has been
previously convicted of an offense of possession of marihuana or of a
substance in Penalty Group 1, 1-A, 2, 2-A, 3, or 4. The bill includes such an
enhanced offense and the Class C misdemeanor marihuana possession offense within
the scope of statutory provisions relating to increased punishments for
certain offenses committed in drug free zones.
C.S.H.B. 3326 changes the
prostitution conduct for which the commissioners court of a county or
governing body of a municipality may establish a first offender prostitution
prevention program for defendants from conduct involving the solicitation of
another in a public place to engage with the actor in sexual conduct for hire
to any prostitution conduct committed based on the payment of a fee by the
actor or another. The bill changes the prostitution conduct for which such a
commissioners court or governing body may establish a prostitution prevention
program for defendants from conduct involving offering to engage, agreeing to
engage, or engaging in sexual conduct for a fee to any prostitution conduct
committed in return for receipt of a fee.
C.S.H.B. 3326 amends the Family
Code to change the prostitution conduct that constitutes abuse, for purposes
of an investigation of a report of child abuse, from compelling or
encouraging a child through solicitation in a public place to engage in
sexual conduct for hire to compelling or encouraging a child to engage in
prostitution conduct based on the payment of a fee by the actor or another
person on the actor's behalf. The bill changes the prostitution conduct
constituting conduct indicating a need for supervision under the juvenile
justice code from knowingly offering to engage, agreeing to engage, or engaging
in sexual conduct for a fee, or soliciting another in a public place to
engage with the person in sexual conduct for hire to any prostitution conduct
committed in return for receipt of a fee or based on the payment of a fee by
the actor or another person on the actor's behalf, as applicable.
C.S.H.B. 3326 requires the
Texas Department of Criminal Justice (TDCJ), not later than December 1 of
each year, to report to the legislature on the financial impact to the state
during the preceding state fiscal year of reducing penalties under the bill's
provisions and requires the report to include an analysis of incarceration
costs incurred by the state and local governments, including the cost of
constructing prisons and jails. The bill requires the comptroller of public
accounts to verify the TDCJ findings in analyzing the cost savings realized
by the state under the bill's provisions and authorizes TDCJ to retain the
amount of the actual savings attributable to implementation of the bill's
provisions, to the extent that the savings come from funds appropriated to
TDCJ and to the extent TDCJ distributed that amount to programs or facilities
for the supervision and rehabilitation of offenders. The bill authorizes TDCJ
to transfer savings attributable to implementation of the bill's provisions
from the first year of the fiscal biennium to the second year of the fiscal
biennium, provided that TDCJ uses the full amount transferred for
distribution to programs or facilities for the supervision and rehabilitation
of offenders.
C.S.H.B. 3326 amends the
Business & Commerce Code and Code of Criminal Procedure to make
conforming changes.
C.S.H.B. 3326 repeals Section 32.21(d), Penal Code.
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INTRODUCED
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HOUSE COMMITTEE
SUBSTITUTE
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No
equivalent provision.
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SECTION 2. Article 14.06(d),
Code of Criminal Procedure, is amended to read as follows:
(d) Subsection (c) applies
only to a person charged with committing an offense under:
(1) Section 481.121, Health
and Safety Code, if the offense is punishable under Subsection (b)(2) or
(3) [(b)(1) or (2)] of that section;
(1-a) Section 481.1161, Health
and Safety Code, if the offense is punishable under Subsection (b)(1) or
(2) of that section;
(2) Section 28.03, Penal
Code, if the offense is punishable under Subsection (b)(2) of that section;
(3) Section 28.08, Penal
Code, if the offense is punishable under Subsection (b)(2) [(b)(1)]
of that section;
(4) Section 31.03, Penal
Code, if the offense is punishable under Subsection (e)(2)(A) of that
section;
(5) Section 31.04, Penal
Code, if the offense is punishable under Subsection (e)(2) of that section;
(6) Section 38.114, Penal
Code, if the offense is punishable as a Class B misdemeanor; or
(7) Section 521.457,
Transportation Code.
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No
equivalent provision.
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SECTION 4. Section 51.03(b),
Family Code, is amended to read as follows:
(b) Conduct indicating a
need for supervision is:
(1) subject to Subsection
(f), conduct, other than a traffic offense, that violates:
(A) the penal laws of this
state of the grade of misdemeanor that are punishable by fine only; or
(B) the penal ordinances of
any political subdivision of this state;
(2) the absence of a child
on 10 or more days or parts of days within a six-month period in the same
school year or on three or more days or parts of days within a four-week
period from school;
(3) the voluntary absence of
a child from the child's home without the consent of the child's parent or
guardian for a substantial length of time or without intent to return;
(4) conduct prohibited by
city ordinance or by state law involving the inhalation of the fumes or
vapors of paint and other protective coatings or glue and other adhesives
and the volatile chemicals itemized in Section 485.001, Health and Safety
Code;
(5) an act that violates a
school district's previously communicated written standards of student
conduct for which the child has been expelled under Section 37.007(c),
Education Code;
(6) conduct that violates a
reasonable and lawful order of a court entered under Section 264.305;
(7) notwithstanding
Subsection (a)(1), conduct described by Section 43.02(a) or (b) [43.02(a)(1)
or (2)], Penal Code; or
(8) notwithstanding
Subsection (a)(1), conduct that violates Section 43.261, Penal Code.
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No
equivalent provision.
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SECTION 5. Section
261.001(1), Family Code, is amended to read as follows:
(1) "Abuse"
includes the following acts or omissions by a person:
(A) mental or emotional
injury to a child that results in an observable and material impairment in
the child's growth, development, or psychological functioning;
(B) causing or permitting
the child to be in a situation in which the child sustains a mental or
emotional injury that results in an observable and material impairment in
the child's growth, development, or psychological functioning;
(C) physical injury that
results in substantial harm to the child, or the genuine threat of
substantial harm from physical injury to the child, including an injury
that is at variance with the history or explanation given and excluding an
accident or reasonable discipline by a parent, guardian, or managing or
possessory conservator that does not expose the child to a substantial risk
of harm;
(D) failure to make a
reasonable effort to prevent an action by another person that results in
physical injury that results in substantial harm to the child;
(E) sexual conduct harmful
to a child's mental, emotional, or physical welfare, including conduct that
constitutes the offense of continuous sexual abuse of young child or
children under Section 21.02, Penal Code, indecency with a child under
Section 21.11, Penal Code, sexual assault under Section 22.011, Penal Code,
or aggravated sexual assault under Section 22.021, Penal Code;
(F) failure to make a
reasonable effort to prevent sexual conduct harmful to a child;
(G) compelling or
encouraging the child to engage in sexual conduct as defined by Section
43.01, Penal Code, including compelling or encouraging the child in a
manner [conduct] that constitutes an offense of trafficking of
persons under Section 20A.02(a)(7) or (8), Penal Code, prostitution under
Section 43.02(b) [43.02(a)(2)], Penal Code, or compelling
prostitution under Section 43.05(a)(2), Penal Code;
(H) causing, permitting,
encouraging, engaging in, or allowing the photographing, filming, or
depicting of the child if the person knew or should have known that the resulting
photograph, film, or depiction of the child is obscene as defined by
Section 43.21, Penal Code, or pornographic;
(I) the current use by a
person of a controlled substance as defined by Chapter 481, Health and
Safety Code, in a manner or to the extent that the use results in physical,
mental, or emotional injury to a child;
(J) causing, expressly
permitting, or encouraging a child to use a controlled substance as defined
by Chapter 481, Health and Safety Code;
(K) causing, permitting,
encouraging, engaging in, or allowing a sexual performance by a child as
defined by Section 43.25, Penal Code; or
(L) knowingly causing,
permitting, encouraging, engaging in, or allowing a child to be trafficked
in a manner punishable as an offense under Section 20A.02(a)(5), (6), (7),
or (8), Penal Code, or the failure to make a reasonable effort to prevent a
child from being trafficked in a manner punishable as an offense under any
of those sections.
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No
equivalent provision.
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SECTION 6. Section
169.002(a), Health and Safety Code, is amended to read as follows:
(a) The commissioners court
of a county or governing body of a municipality may establish a first
offender prostitution prevention program for defendants charged with an
offense under Section 43.02(b) [43.02(a)(2)], Penal Code[,
in which the defendant offered or agreed to hire a person to engage in
sexual conduct].
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No
equivalent provision.
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SECTION 7. Section
169A.002(a), Health and Safety Code, is amended to read as follows:
(a) The commissioners court
of a county or governing body of a municipality may establish a
prostitution prevention program for defendants charged with an offense
under Section 43.02(a) [43.02(a)(1)], Penal Code[, in
which the defendant offered or agreed to engage in or engaged in sexual
conduct for a fee].
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SECTION 1. Section 481.121,
Health and Safety Code, is amended.
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SECTION 9. Same as introduced
version except for recitation.
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SECTION 2. Section 15(a)(1),
Article 42.12, Code of Criminal Procedure, is amended to read as follows:
(a)(1) On conviction of a
state jail felony under Section [481.115(b),] 481.1151(b)(1),
481.116(b), 481.1161(b)(3), 481.121(b)(3),
or 481.129(g)(1), Health and Safety Code, that is punished under Section
12.35(a), Penal Code, the judge shall suspend the imposition of the
sentence and place the defendant on community supervision, unless the
defendant has previously been convicted of a felony, other than a felony
punished under Section 12.44(a), Penal Code, or unless the conviction
resulted from an adjudication of the guilt of a defendant previously placed
on deferred adjudication community supervision for the offense, in which
event the judge may suspend the imposition of the sentence and place the
defendant on community supervision or may order the sentence to be
executed. The provisions of this subdivision requiring the judge to suspend
the imposition of the sentence and place the defendant on community
supervision do not apply to a defendant who:
(A) under Section
481.1151(b)(1), Health and Safety Code, possessed more than five abuse
units of the controlled substance;
(B) under Section
481.1161(b)(3), Health and Safety Code, possessed more than one pound, by
aggregate weight, including adulterants or dilutants, of the controlled
substance; or
(C) under Section 481.121(b)(3), Health and Safety Code,
possessed more than one pound of marihuana.
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SECTION 3. Section 15(a)(1),
Article 42.12, Code of Criminal Procedure, is amended to read as follows:
(1) On conviction of a state
jail felony under Section 481.115(b-1)
[481.115(b)], 481.1151(b)(1), 481.116(b), 481.1161(b)(3), 481.121(b)(4) [481.121(b)(3)], or 481.129(g)(1), Health and Safety
Code, that is punished under Section 12.35(a), Penal Code, the judge shall
suspend the imposition of the sentence and place the defendant on community
supervision, unless the defendant has previously been convicted of a
felony, other than a felony punished under Section 12.44(a), Penal Code, or
unless the conviction resulted from an adjudication of the guilt of a
defendant previously placed on deferred adjudication community supervision
for the offense, in which event the judge may suspend the imposition of the
sentence and place the defendant on community supervision or may order the
sentence to be executed. The provisions of this subdivision requiring the
judge to suspend the imposition of the sentence and place the defendant on
community supervision do not apply to a defendant who:
(A) under Section
481.1151(b)(1), Health and Safety Code, possessed more than five abuse units
of the controlled substance;
(B) under Section
481.1161(b)(3), Health and Safety Code, possessed more than one pound, by
aggregate weight, including adulterants or dilutants, of the controlled
substance; or
(C) under Section 481.121(b)(4) [481.121(b)(3)], Health and Safety Code, possessed
more than one pound of marihuana.
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SECTION 3. Section
481.115(b), Health and Safety Code, is amended to read as follows:
(b) An offense under
Subsection (a) is a Class A misdemeanor [state jail felony]
if the amount of the controlled substance possessed is, by aggregate
weight, including adulterants or dilutants, less than one gram.
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SECTION 8. Section 481.115,
Health and Safety Code, is amended by amending Subsection (b) and adding
Subsection (b-1) to read as follows:
(b) Except as provided by Subsection (b-1), an
[An] offense under Subsection (a) is a Class A misdemeanor [state
jail felony] if the amount of the controlled substance possessed is, by
aggregate weight, including adulterants or dilutants, less than one gram.
(b-1) An offense punishable under Subsection (b) is a state jail
felony if the person has been previously convicted of an offense under this
section or Section 481.1151, 481.116, 481.1161, 481.117, 481.118, or
481.121.
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No
equivalent provision.
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SECTION 10. Section
481.126(a), Health and Safety Code, is amended to read as follows:
(a) A person commits an
offense if the person:
(1) barters property or
expends funds the person knows are derived from the commission of an
offense under this chapter punishable by imprisonment in the Texas
Department of Criminal Justice for life;
(2) barters property or
expends funds the person knows are derived from the commission of an
offense under Section 481.121(a) that is punishable under Section 481.121(b)(6)
[481.121(b)(5)];
(3) barters property or
finances or invests funds the person knows or believes are intended to
further the commission of an offense for which the punishment is described
by Subdivision (1); or
(4) barters property or
finances or invests funds the person knows or believes are intended to
further the commission of an offense under Section 481.121(a) that is
punishable under Section 481.121(b)(6) [481.121(b)(5)].
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No
equivalent provision.
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SECTION 11. Sections
481.134(c), (d), (e), and (f), Health and Safety Code, are amended to read
as follows:
(c) The minimum term of
confinement or imprisonment for an offense otherwise punishable under
Section 481.112(c), (d), (e), or (f), 481.113(c), (d), or (e), 481.114(c),
(d), or (e), 481.115(c)-(f), 481.116(c), (d), or (e), 481.1161(b)(4), (5),
or (6), 481.117(c), (d), or (e), 481.118(c), (d), or (e), 481.120(b)(4),
(5), or (6), or 481.121(b)(5), (6), or (7) [481.121(b)(4), (5),
or (6)] is increased by five years and the maximum fine for the offense
is doubled if it is shown on the trial of the offense that the offense was
committed:
(1) in, on, or within 1,000
feet of the premises of a school, the premises of a public or private youth
center, or a playground; or
(2) on a school bus.
(d) An offense otherwise
punishable under Section 481.112(b), 481.113(b), 481.114(b), 481.115(b-1)
[481.115(b)], 481.116(b), 481.1161(b)(3), 481.120(b)(3), or 481.121(b)(4)
[481.121(b)(3)] is a felony of the third degree if it is shown on
the trial of the offense that the offense was committed:
(1) in, on, or within 1,000
feet of any real property that is owned, rented, or leased to a school or
school board, the premises of a public or private youth center, or a
playground; or
(2) on a school bus.
(e) An offense otherwise
punishable under Section 481.117(b), 481.119(a), 481.120(b)(2), or 481.121(b)(3)
[481.121(b)(2)] is a state jail felony if it is shown on the trial
of the offense that the offense was committed:
(1) in, on, or within 1,000
feet of any real property that is owned, rented, or leased to a school or
school board, the premises of a public or private youth center, or a
playground; or
(2) on a school bus.
(f) An offense otherwise
punishable under Section 481.118(b), 481.119(b), 481.120(b)(1), or
481.121(b)(1) or (2)is a Class A misdemeanor if it is shown on the
trial of the offense that the offense was committed:
(1) in, on, or within 1,000
feet of any real property that is owned, rented, or leased to a school or
school board, the premises of a public or private youth center, or a
playground; or
(2) on a school bus.
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SECTION 4. Section 28.03(b),
Penal Code, is amended.
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SECTION 12. Same as
introduced version.
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SECTION 5. Sections 28.08(b)
and (d), Penal Code, are amended.
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SECTION 13. Same as
introduced version.
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SECTION 6. Section 30.02(c),
Penal Code, is amended.
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SECTION 14. Same as
introduced version.
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SECTION 7. Section 31.03(e),
Penal Code, is amended.
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SECTION 15. Same as
introduced version.
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SECTION 8. Sections 31.04(b)
and (e), Penal Code, are amended.
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SECTION 16. Same as
introduced version.
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SECTION 9. Section 32.21(c),
Penal Code, is amended.
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SECTION 17. Same as
introduced version.
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SECTION 10. Section
32.31(d), Penal Code, is amended.
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SECTION 18. Same as
introduced version.
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SECTION 11. Section
32.51(c), Penal Code, is amended.
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SECTION 19. Same as
introduced version.
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SECTION 12. Section
43.02(c), Penal Code, is amended to read as follows:
(c) An offense under this section is a Class B misdemeanor,
except that the offense is:
(1) a Class A misdemeanor if
the actor has previously been convicted [one
or two times] of an offense
under this section; or
(2)
[a state jail felony if the actor has previously been convicted three or
more times of an offense under this section; or
[(3)] a felony of the
second degree if the person solicited is younger than 18 years of age,
regardless of whether the actor knows the age of the person solicited at
the time the actor commits the offense.
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SECTION 20. Section 43.02,
Penal Code, is amended by amending Subsections (a), (b), (c), and (d) and
adding Subsections (b-1) and (c-1) to read as follows:
(a)
A person commits an offense if, in return for receipt of a fee, the
person knowingly:
(1)
offers to engage, agrees to engage, or engages in sexual conduct [for a
fee]; or
(2)
solicits another in a public place to engage with the actor [person]
in sexual conduct for hire.
(b)
A person commits an offense if, based on the payment of a fee by the
actor or another person on behalf of the actor, the person knowingly:
(1) offers to engage, agrees to engage, or engages in sexual
conduct; or
(2) solicits another in a public place to engage with the actor in
sexual conduct for hire.
(b-1) An offense is
established under Subsection (a) regardless of [(a)(1)]
whether the actor is offered or actually receives the [is to
receive or pay a] fee. An offense is established under Subsection (b)
regardless of [(a)(2)] whether the actor or another person on
behalf of the actor offers or actually pays the fee [solicits a
person to hire the actor or offers to hire the person solicited].
(c) An offense under Subsection (a) [this section] is a Class B misdemeanor, except that
the offense is a Class A misdemeanor if the actor has previously been
convicted one or more times of an
offense under that subsection.
(c-1) An offense under Subsection (b) is a Class B misdemeanor,
except that the offense is:
(1)
a Class A misdemeanor if the actor has previously been convicted one or two
times of an offense under that subsection [this section];
(2)
a state jail felony if the actor has previously been convicted three or
more times of an offense under that subsection [this section];
or
(3) a felony of the second
degree if the person solicited is younger than 18 years of age, regardless
of whether the actor knows the age of the person solicited at the time the
actor commits the offense.
(d)
It is a defense to prosecution for an offense under Subsection (a) [under
this section] that the actor engaged in the conduct that constitutes
the offense because the actor was the victim of conduct that constitutes an
offense under Section 20A.02 or 43.05.
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SECTION 13. Section
502.001(c), Business & Commerce Code, is amended.
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SECTION 1. Same as introduced
version.
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SECTION 14. Section
32.21(d), Penal Code, is repealed.
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SECTION 21. Same as
introduced version.
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No
equivalent provision.
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SECTION 22. (a) Not later
than December 1 of each year, the Texas Department of Criminal Justice
shall report to the legislature on the financial impact to the state during
the preceding state fiscal year of reducing penalties under this Act.
(b) The report must include
an analysis of incarceration costs incurred by the state and local
governments, including the cost of constructing prisons and jails.
(c) The comptroller shall
verify the findings of the Texas Department of Criminal Justice in
analyzing the cost savings realized by the state under this Act. The Texas
Department of Criminal Justice may retain the amount of the actual savings
attributable to implementation of this Act, to the extent that the savings
come from funds appropriated to the department and to the extent the
department distributed that amount to programs or facilities for the
supervision and rehabilitation of offenders. The Texas Department of
Criminal Justice may transfer savings attributable to implementation of
this Act from the first year of the fiscal biennium to the second year of
the fiscal biennium, provided that the department uses the full amount
transferred for distribution to programs or facilities for the supervision
and rehabilitation of offenders.
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SECTION 15. The change in
law made by this Act applies to an offense committed before, on, or after the effective date of
this Act, except that a final conviction
that exists on the effective date of this Act is unaffected by this Act.
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SECTION 23. 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 governed by the law in
effect on the date 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.
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SECTION 16. This Act takes
effect September 1, 2015.
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SECTION 24. Same as
introduced version.
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