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LI8030C LEGISLATIVE INFORMATION SYSTEM 73(R) DATE: 09/01/94
BILL TEXT REPORT TIME: 11:11:35
SB 1067 ENROLLED VERSION PAGE: 1
S.B. No. 1067
AN ACT
relating to the sentencing policy of the state and to offenses and
punishments under the Penal Code, to offenses and punishments
involving certain prohibited or dangerous substances, to the effect
of certain convictions and acquittals, and to the civil
consequences of certain offenses involving intoxication; providing
conforming amendments.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1
SECTION 1.01. The Penal Code is amended to read as follows:
TITLE 1. INTRODUCTORY PROVISIONS
CHAPTER 1. GENERAL PROVISIONS
Sec. 1.01. SHORT TITLE. This code shall be known and may be
cited as the Penal Code.
Sec. 1.02. Objectives of Code. The general purposes of this
code are to establish a system of prohibitions, penalties, and
correctional measures to deal with conduct that unjustifiably and
inexcusably causes or threatens harm to those individual or public
interests for which state protection is appropriate. To this end,
the provisions of this code are intended, and shall be construed,
to achieve the following objectives:
(1) to insure the public safety through:
(A) the deterrent influence of the penalties
hereinafter provided;
(B) the rehabilitation of those convicted of
violations of this code; and
(C) such punishment as may be necessary to
prevent likely recurrence of criminal behavior;
(2) by definition and grading of offenses to give fair
warning of what is prohibited and of the consequences of violation;
(3) to prescribe penalties that are proportionate to
the seriousness of offenses and that permit recognition of
differences in rehabilitation possibilities among individual
offenders;
(4) to safeguard conduct that is without guilt from
condemnation as criminal;
(5) to guide and limit the exercise of official
discretion in law enforcement to prevent arbitrary or oppressive
treatment of persons ^ususpected,^w accused^u,^w or convicted of offenses;
and
(6) to define the scope of state interest in law
enforcement against specific offenses and to systematize the
exercise of state criminal jurisdiction.
Sec. 1.03. Effect of Code. (a) Conduct does not constitute
an offense unless it is defined as an offense by statute, municipal
ordinance, order of a county commissioners court, or rule
authorized by and lawfully adopted under a statute.
(b) The provisions of Titles 1, 2, and 3 ^sof this code^t
apply to offenses defined by other laws, unless the statute
defining the offense provides otherwise; however, the punishment
affixed to an offense defined outside this code shall be applicable
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SB 1067 ENROLLED VERSION PAGE: 2
unless the punishment is classified in accordance with this code.
(c) This code does not bar, suspend, or otherwise affect a
right or liability to damages, penalty, forfeiture, or other remedy
authorized by law to be recovered or enforced in a civil suit for
conduct this code defines as an offense, and the civil injury is
not merged in the offense.
Sec. 1.04. Territorial Jurisdiction. (a) This state has
jurisdiction over an offense that a person commits by his own
conduct or the conduct of another for which he is criminally
responsible if:
(1) either the conduct or a result that is an element
of the offense occurs inside this state;
(2) the conduct outside this state constitutes an
attempt to commit an offense inside this state;
(3) the conduct outside this state constitutes a
conspiracy to commit an offense inside this state, and an act in
furtherance of the conspiracy occurs inside this state; or
(4) the conduct inside this state constitutes an
attempt, solicitation, or conspiracy to commit, or establishes
criminal responsibility for the commission of, an offense in
another jurisdiction that is also an offense under the laws of this
state.
(b) If the offense is criminal homicide, a "result" is
either the physical impact causing death or the death itself. If
the body of a criminal homicide victim is found in this state, it
is presumed that the death occurred in this state. If death alone
is the basis for jurisdiction, it is a defense to the exercise of
jurisdiction by this state that the conduct that constitutes the
offense is not made criminal in the jurisdiction where the conduct
occurred.
(c) An offense based on an omission to perform a duty
imposed on an actor by a statute of this state is committed inside
this state regardless of the location of the actor at the time of
the offense.
(d) This state includes the land and water ^s(^tand the air
space above the land and water^s)^t over which this state has power
to define offenses.
Sec. 1.05. Construction of Code. (a) The rule that a penal
statute is to be strictly construed does not apply to this code.
The provisions of this code shall be construed according to the
fair import of their terms, to promote justice and effect the
objectives of the code.
(b) Unless a different construction is required by the
context, Sections 311.011, 311.012, 311.014, 311.015, and 311.021
through 311.032 of ^sthe Code Construction Act (^tChapter 311,
Government Code ^u(Code Construction Act^w)^u,^w apply to the construction
of this code.
^u(c) In this code:^w
^u(1) a reference to a title, chapter, or section^w
^uwithout further identification is a reference to a title, chapter,^w
^uor section of this code; and^w
^u(2) a reference to a subchapter, subsection,^w
^usubdivision, paragraph, or other numbered or lettered unit without^w
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BILL TEXT REPORT TIME: 11:11:35
SB 1067 ENROLLED VERSION PAGE: 3
^ufurther identification is a reference to a unit of the next-larger^w
^uunit of this code in which the reference appears.^w
Sec. 1.06. Computation of Age. A person attains a specified
age on the day of the anniversary of his birthdate.
Sec. 1.07. Definitions. (a) In this code:
(1) "Act" means a bodily movement, whether voluntary
or involuntary, and includes speech.
(2) ^u"Actor"^w ^s"Suspect"^t means a person whose criminal
responsibility is in issue in a criminal action. Whenever the term
^u"suspect"^w ^s"actor"^t is used in this code, it means ^u"actor."^w
^s"suspect."^t
(3) "Agency" includes authority, board, bureau,
commission, committee, council, department, district, division, and
office.
^u(4) "Alcoholic beverage" has the meaning assigned by^w
^uSection 1.04, Alcoholic Beverage Code.^w
^u(5)^w ^s(4)^t "Another" means a person other than the
actor.
^u(6)^w ^s(5)^t "Association" means a government or
governmental subdivision or agency, trust, partnership, or two or
more persons having a joint or common economic interest.
^u(7)^w ^s(6)^t "Benefit" means anything reasonably regarded
as economic gain or advantage, including benefit to any other
person in whose welfare the beneficiary is interested.
^u(8)^w ^s(7)^t "Bodily injury" means physical pain,
illness, or any impairment of physical condition.
^u(9) "Coercion" means a threat, however communicated:^w
^u(A) to commit an offense;^w
^u(B) to inflict bodily injury in the future on^w
^uthe person threatened or another;^w
^u(C) to accuse a person of any offense;^w
^u(D) to expose a person to hatred, contempt, or^w
^uridicule;^w
^u(E) to harm the credit or business repute of any^w
^uperson; or^w
^u(F) to take or withhold action as a public^w
^uservant, or to cause a public servant to take or withhold action.^w
^u(10)^w ^s(8)^t "Conduct" means an act or omission and its
accompanying mental state.
^u(11)^w ^s(9)^t "Consent" means assent in fact, whether
express or apparent.
^u(12) "Controlled substance" has the meaning assigned^w
^uby Section 481.002, Health and Safety Code.^w
^u(13)^w ^s(9.1)^t "Corporation" includes nonprofit
corporations, professional associations created pursuant to
statute, and joint stock companies.
^u(14) "Correctional facility" means a place designated^w
^uby law for the confinement of a person arrested for, charged with,^w
^uor convicted of a criminal offense. The term includes:^w
^u(A) a municipal or county jail;^w
^u(B) a confinement facility operated by the Texas^w
^uDepartment of Criminal Justice;^w
^u(C) a confinement facility operated under^w
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SB 1067 ENROLLED VERSION PAGE: 4
^ucontract with any division of the Texas Department of Criminal^w
^uJustice; and^w
^u(D) a community corrections facility operated by^w
^ua community supervision and corrections department.^w
^u(15)^w ^s(10)^t "Criminal negligence" is defined in
Section 6.03 ^sof this code^t (Culpable Mental States).
^u(16) "Dangerous drug" has the meaning assigned by^w
^uSection 483.001, Health and Safety Code.^w
^u(17)^w ^s(11)^t "Deadly weapon" means:
(A) a firearm or anything manifestly designed,
made, or adapted for the purpose of inflicting death or serious
bodily injury; or
(B) anything that in the manner of its use or
intended use is capable of causing death or serious bodily injury.
^u(18) "Drug" has the meaning assigned by Section^w
^u481.002, Health and Safety Code.^w
^u(19)^w ^s(12)^t "Effective consent" includes consent by a
person legally authorized to act for the owner. Consent is not
effective if:
(A) induced by force, threat, or fraud;
(B) given by a person the actor knows is not
legally authorized to act for the owner;
(C) given by a person who by reason of youth,
mental disease or defect, or intoxication is known by the actor to
be unable to make reasonable decisions; or
(D) given solely to detect the commission of an
offense.
^u(20) "Electric generating plant" means a facility that^w
^ugenerates electric energy for distribution to the public.^w
^u(21) "Electric utility substation" means a facility^w
^uused to switch or change voltage in connection with the^w
^utransmission of electric energy for distribution to the public.^w
^u(22)^w ^s(13)^t "Element of offense" means:
(A) the forbidden conduct;
(B) the required culpability;
(C) any required result; and
(D) the negation of any exception to the
offense.
^u(23)^w ^s(14)^t "Felony" means an offense so designated by
law or punishable by death or confinement in a penitentiary.
^u(24)^w ^s(15)^t "Government" means^u:^w
^u(A)^w the state;
^u(B)^w a county, municipality, or political
subdivision of the state; or
^u(C)^w any branch or agency of the state, a county,
municipality, or political subdivision.
^u(25)^w ^s(16)^t "Harm" means anything reasonably regarded
as loss, disadvantage, or injury, including harm to another person
in whose welfare the person affected is interested.
^u(26)^w ^s(17)^t "Individual" means a human being who has
been born and is alive.
^u(27) "Institutional division" means the institutional^w
^udivision of the Texas Department of Criminal Justice.^w
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^u(28)^w ^s(18)^t "Intentional" is defined in Section 6.03
^sof this code^t (Culpable Mental States).
^u(29)^w ^s(19)^t "Knowing" is defined in Section 6.03 ^sof^t
^sthis code^t (Culpable Mental States).
^u(30)^w ^s(20)^t "Law" means the constitution or a statute
of this state or of the United States, a written opinion of a court
of record, a municipal ordinance, an order of a county
commissioners court, or a rule authorized by and lawfully adopted
under a statute.
^u(31)^w ^s(21)^t "Misdemeanor" means an offense so
designated by law or punishable by fine, by confinement in jail, or
by both fine and confinement in jail.
^u(32)^w ^s(22)^t "Oath" includes affirmation.
^u(33) "Official proceeding" means any type of^w
^uadministrative, executive, legislative, or judicial proceeding that^w
^umay be conducted before a public servant.^w
^u(34)^w ^s(23)^t "Omission" means failure to act.
^u(35)^w ^s(24)^t "Owner" means a person who:
(A) has title to the property, possession of the
property, whether lawful or not, or a greater right to possession
of the property than the actor; or
(B) is a holder in due course of a negotiable
instrument.
^u(36)^w ^s(25)^t "Peace officer" means a person elected,
employed, or appointed as a peace officer under Article 2.12, Code
of Criminal Procedure, Section 51.212 or 51.214, Education Code, or
other law.
^u(37)^w ^s(26)^t "Penal institution" means a place
designated by law for confinement of persons arrested for, charged
with, or convicted of an offense.
^u(38)^w ^s(27)^t "Person" means an individual, corporation,
or association.
^u(39)^w ^s(28)^t "Possession" means actual care, custody,
control, or management.
^u(40)^w ^s(29)^t "Public place" means any place to which
the public or a substantial group of the public has access and
includes, but is not limited to, streets, highways, and the common
areas of schools, hospitals, apartment houses, office buildings,
transport facilities, and shops.
^u(41)^w ^s(30)^t "Public servant" means a person elected,
selected, appointed, employed, or otherwise designated as one of
the following, even if he has not yet qualified for office or
assumed his duties:
(A) an officer, employee, or agent of
government;
(B) a juror or grand juror; or
(C) an arbitrator, referee, or other person who
is authorized by law or private written agreement to hear or
determine a cause or controversy; or
(D) an attorney at law or notary public when
participating in the performance of a governmental function; or
(E) a candidate for nomination or election to
public office; or
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(F) a person who is performing a governmental
function under a claim of right although he is not legally
qualified to do so.
^u(42)^w ^s(31)^t "Reasonable belief" means a belief that
would be held by an ordinary and prudent man in the same
circumstances as the actor.
^u(43)^w ^s(32)^t "Reckless" is defined in Section 6.03 ^sof^t
^sthis code^t (Culpable Mental States).
^u(44)^w ^s(33)^t "Rule" includes regulation.
^u(45) "Secure correctional facility" means:^w
^u(A) a municipal or county jail; or^w
^u(B) a confinement facility operated by or under^w
^ua contract with any division of the Texas Department of Criminal^w
^uJustice.^w
^u(46)^w ^s(34)^t "Serious bodily injury" means bodily
injury that creates a substantial risk of death or that causes
death, serious permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.
^u(47)^w ^s(35)^t "Swear" includes affirm.
^u(48)^w ^s(36)^t "Unlawful" means criminal or tortious or
both and includes what would be criminal or tortious but for a
defense not amounting to justification or privilege.
^s(37) "Electric generating plant" means a facility^t
^sthat generates electric energy for distribution to the public.^t
^s(38) "Electric utility substation" means a facility^t
^sused to switch or change voltage in connection with the^t
^stransmission of electric energy for distribution to the public.^t
^s(40) "Participant in a court proceeding" means a^t
^sjudge, a prosecuting attorney or an assistant prosecuting attorney^t
^swho represents the state, a grand juror, a party in a court^t
^sproceeding, an attorney representing a party, a witness, or a^t
^sjuror.^t
(b) The definition of a term in this code applies to each
grammatical variation of the term.
Sec. 1.08. PREEMPTION. No governmental subdivision or
agency may enact or enforce a law that makes any conduct covered by
this code an offense subject to a criminal penalty. This section
shall apply only as long as the law governing the conduct
proscribed by this code is legally enforceable.
CHAPTER 2. BURDEN OF PROOF
Sec. 2.01. PROOF BEYOND A REASONABLE DOUBT. All persons are
presumed to be innocent and no person may be convicted of an
offense unless each element of the offense is proved beyond a
reasonable doubt. The fact that he has been arrested, confined, or
indicted for, or otherwise charged with, the offense gives rise to
no inference of guilt at his trial.
Sec. 2.02. EXCEPTION. (a) An exception to an offense in
this code is so labeled by the phrase: "It is an exception to the
application of . . . ."
(b) The prosecuting attorney must negate the existence of an
exception in the accusation charging commission of the offense and
prove beyond a reasonable doubt that the defendant or defendant's
conduct does not fall within the exception.
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(c) This section does not affect exceptions applicable to
offenses enacted prior to the effective date of this code.
Sec. 2.03. DEFENSE. (a) A defense to prosecution for an
offense in this code is so labeled by the phrase: "It is a defense
to prosecution . . . ."
(b) The prosecuting attorney is not required to negate the
existence of a defense in the accusation charging commission of the
offense.
(c) The issue of the existence of a defense is not submitted
to the jury unless evidence is admitted supporting the defense.
(d) If the issue of the existence of a defense is submitted
to the jury, the court shall charge that a reasonable doubt on the
issue requires that the defendant be acquitted.
(e) A ground of defense in a penal law that is not plainly
labeled in accordance with this chapter has the procedural and
evidentiary consequences of a defense.
Sec. 2.04. AFFIRMATIVE DEFENSE. (a) An affirmative defense
in this code is so labeled by the phrase: "It is an affirmative
defense to prosecution . . . ."
(b) The prosecuting attorney is not required to negate the
existence of an affirmative defense in the accusation charging
commission of the offense.
(c) The issue of the existence of an affirmative defense is
not submitted to the jury unless evidence is admitted supporting
the defense.
(d) If the issue of the existence of an affirmative defense
is submitted to the jury, the court shall charge that the defendant
must prove the affirmative defense by a preponderance of evidence.
Sec. 2.05. PRESUMPTION. When this code or another penal law
establishes a presumption with respect to any fact, it has the
following consequences:
(1) if there is sufficient evidence of the facts that
give rise to the presumption, the issue of the existence of the
presumed fact must be submitted to the jury, unless the court is
satisfied that the evidence as a whole clearly precludes a finding
beyond a reasonable doubt of the presumed fact; and
(2) if the existence of the presumed fact is submitted
to the jury, the court shall charge the jury, in terms of the
presumption and the specific element to which it applies, as
follows:
(A) that the facts giving rise to the
presumption must be proven beyond a reasonable doubt;
(B) that if such facts are proven beyond a
reasonable doubt the jury may find that the element of the offense
sought to be presumed exists, but it is not bound to so find;
(C) that even though the jury may find the
existence of such element, the state must prove beyond a reasonable
doubt each of the other elements of the offense charged; and
(D) if the jury has a reasonable doubt as to the
existence of a fact or facts giving rise to the presumption, the
presumption fails and the jury shall not consider the presumption
for any purpose.
CHAPTER 3. MULTIPLE PROSECUTIONS
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Sec. 3.01. DEFINITION. In this chapter, "criminal episode"
means the commission of two or more offenses, regardless of whether
the harm is directed toward or inflicted upon more than one person
or item of property, under the following circumstances:
(1) the offenses are committed pursuant to the same
transaction or pursuant to two or more transactions that are
connected or constitute a common scheme or plan; or
(2) the offenses are the repeated commission of the
same or similar offenses.
Sec. 3.02. CONSOLIDATION AND JOINDER OF PROSECUTIONS.
(a) A defendant may be prosecuted in a single criminal action for
all offenses arising out of the same criminal episode.
(b) When a single criminal action is based on more than one
charging instrument within the jurisdiction of the trial court, the
state shall file written notice of the action not less than 30 days
prior to the trial.
(c) If a judgment of guilt is reversed, set aside, or
vacated, and a new trial ordered, the state may not prosecute in a
single criminal action in the new trial any offense not joined in
the former prosecution unless evidence to establish probable guilt
for that offense was not known to the appropriate prosecuting
official at the time the first prosecution commenced.
Sec. 3.03. Sentences for Offenses Arising Out of Same
Criminal Episode. When the accused is found guilty of more than
one offense arising out of the same criminal episode prosecuted in
a single criminal action, sentence for each offense for which he
has been found guilty shall be pronounced. Such sentences shall
run concurrently.
Sec. 3.04. Severance. (a) Whenever two or more offenses
have been consolidated or joined for trial under Section 3.02 ^sof^t
^sthis code^t, the defendant shall have a right to a severance of the
offenses.
(b) In the event of severance under this section, the
provisions of Section 3.03 ^sof this code^t do not apply, and the
court in its discretion may order the sentences to run either
concurrently or consecutively.
TITLE 2. GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY
CHAPTER 6. CULPABILITY GENERALLY
Sec. 6.01. Requirement of Voluntary Act or Omission. (a) A
person commits an offense only if he voluntarily engages in
conduct, including an act, an omission, or possession.
(b) Possession is a voluntary act if the possessor knowingly
obtains or receives the thing possessed or is aware of his control
of the thing for a sufficient time to permit him to terminate his
control.
(c) A person who omits to perform an act does not commit an
offense unless a law as defined by Section 1.07 ^sof this code^t
provides that the omission is an offense or otherwise provides that
he has a duty to perform the act.
Sec. 6.02. Requirement of Culpability. (a) Except as
provided in Subsection (b) ^sof this section^t, a person does not
commit an offense unless he intentionally, knowingly, recklessly,
or with criminal negligence engages in conduct as the definition of
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the offense requires.
(b) If the definition of an offense does not prescribe a
culpable mental state, a culpable mental state is nevertheless
required unless the definition plainly dispenses with any mental
element.
(c) If the definition of an offense does not prescribe a
culpable mental state, but one is nevertheless required under
Subsection (b) ^sof this section^t, intent, knowledge, or
recklessness suffices to establish criminal responsibility.
(d) Culpable mental states are classified according to
relative degrees, from highest to lowest, as follows:
(1) intentional;
(2) knowing;
(3) reckless;
(4) criminal negligence.
(e) Proof of a higher degree of culpability than that
charged constitutes proof of the culpability charged.
Sec. 6.03. Definitions of Culpable Mental States. (a) A
person acts intentionally, or with intent, with respect to the
nature of his conduct or to a result of his conduct when it is his
conscious objective or desire to engage in the conduct or cause the
result.
(b) A person acts knowingly, or with knowledge, with respect
to the nature of his conduct or to circumstances surrounding his
conduct when he is aware of the nature of his conduct or that the
circumstances exist. A person acts knowingly, or with knowledge,
with respect to a result of his conduct when he is aware that his
conduct is reasonably certain to cause the result.
(c) A person acts recklessly, or is reckless, with respect
to circumstances surrounding his conduct or the result of his
conduct when he is aware of but consciously disregards a
substantial and unjustifiable risk that the circumstances exist or
the result will occur. The risk must be of such a nature and
degree that its disregard constitutes a gross deviation from the
standard of care that an ordinary person would exercise under all
the circumstances as viewed from the actor's standpoint.
(d) A person acts with criminal negligence, or is criminally
negligent, with respect to circumstances surrounding his conduct or
the result of his conduct when he ought to be aware of a
substantial and unjustifiable risk that the circumstances exist or
the result will occur. The risk must be of such a nature and
degree that the failure to perceive it constitutes a gross
deviation from the standard of care that an ordinary person would
exercise under all the circumstances as viewed from the actor's
standpoint.
Sec. 6.04. Causation: Conduct and Results. (a) A person
is criminally responsible if the result would not have occurred but
for his conduct, operating either alone or concurrently with
another cause, unless the concurrent cause was clearly sufficient
to produce the result and the conduct of the actor clearly
insufficient.
(b) A person is nevertheless criminally responsible for
causing a result if the only difference between what actually
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occurred and what he desired, contemplated, or risked is that:
(1) a different offense was committed; or
(2) a different person or property was injured,
harmed, or otherwise affected.
CHAPTER 7. CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER
SUBCHAPTER A. COMPLICITY
Sec. 7.01. Parties to Offenses. (a) A person is criminally
responsible as a party to an offense if the offense is committed by
his own conduct, by the conduct of another for which he is
criminally responsible, or by both.
(b) Each party to an offense may be charged with commission
of the offense.
(c) All traditional distinctions between accomplices and
principals are abolished by this section, and each party to an
offense may be charged and convicted without alleging that he acted
as a principal or accomplice.
Sec. 7.02. Criminal Responsibility for Conduct of Another.
(a) A person is criminally responsible for an offense committed by
the conduct of another if:
(1) acting with the kind of culpability required for
the offense, he causes or aids an innocent or nonresponsible person
to engage in conduct prohibited by the definition of the offense;
(2) acting with intent to promote or assist the
commission of the offense, he solicits, encourages, directs, aids,
or attempts to aid the other person to commit the offense; or
(3) having a legal duty to prevent commission of the
offense and acting with intent to promote or assist its commission,
he fails to make a reasonable effort to prevent commission of the
offense.
(b) If, in the attempt to carry out a conspiracy to commit
one felony, another felony is committed by one of the conspirators,
all conspirators are guilty of the felony actually committed,
though having no intent to commit it, if the offense was committed
in furtherance of the unlawful purpose and was one that should have
been anticipated as a result of the carrying out of the conspiracy.
Sec. 7.03. Defenses Excluded. In a prosecution in which an
actor's criminal responsibility is based on the conduct of another,
the actor may be convicted on proof of commission of the offense
and that he was a party to its commission, and it is no defense:
(1) that the actor belongs to a class of persons that
by definition of the offense is legally incapable of committing the
offense in an individual capacity; or
(2) that the person for whose conduct the actor is
criminally responsible has been acquitted, has not been prosecuted
or convicted, has been convicted of a different offense or of a
different type or class of offense, or is immune from prosecution.
(Sections 7.04 to 7.20 reserved for expansion)
SUBCHAPTER B. CORPORATIONS AND ASSOCIATIONS
Sec. 7.21. Definitions. In this subchapter:
(1) "Agent" means a director, officer, employee, or
other person authorized to act in behalf of a corporation or
association.
(2) "High managerial agent" means:
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(A) a partner in a partnership;
(B) an officer of a corporation or association;
(C) an agent of a corporation or association who
has duties of such responsibility that his conduct reasonably may
be assumed to represent the policy of the corporation or
association.
Sec. 7.22. Criminal Responsibility of Corporation or
Association. (a) If conduct constituting an offense is performed
by an agent acting in behalf of a corporation or association and
within the scope of his office or employment, the corporation or
association is criminally responsible for an offense defined:
(1) in this code where corporations and associations
are made subject thereto;
(2) by law other than this code in which a legislative
purpose to impose criminal responsibility on corporations or
associations plainly appears; or
(3) by law other than this code for which strict
liability is imposed, unless a legislative purpose not to impose
criminal responsibility on corporations or associations plainly
appears.
(b) A corporation or association is criminally responsible
for a felony offense only if its commission was authorized,
requested, commanded, performed, or recklessly tolerated by:
(1) a majority of the governing board acting in behalf
of the corporation or association; or
(2) a high managerial agent acting in behalf of the
corporation or association and within the scope of his office or
employment.
Sec. 7.23. Criminal Responsibility of Person for Conduct in
Behalf of Corporation or Association. (a) An individual is
criminally responsible for conduct that he performs in the name of
or in behalf of a corporation or association to the same extent as
if the conduct were performed in his own name or behalf.
(b) An agent having primary responsibility for the discharge
of a duty to act imposed by law on a corporation or association is
criminally responsible for omission to discharge the duty to the
same extent as if the duty were imposed by law directly on him.
(c) If an individual is convicted of conduct constituting an
offense performed in the name of or on behalf of a corporation or
association, he is subject to the sentence authorized by law for an
individual convicted of the offense.
Sec. 7.24. Defense to Criminal Responsibility of Corporation
or Association. It is an affirmative defense to prosecution of a
corporation or association under Section 7.22(a)(1) or (a)(2) ^sof^t
^sthis code^t that the high managerial agent having supervisory
responsibility over the subject matter of the offense employed due
diligence to prevent its commission.
CHAPTER 8. GENERAL DEFENSES TO CRIMINAL RESPONSIBILITY
Sec. 8.01. INSANITY. (a) It is an affirmative defense to
prosecution that, at the time of the conduct charged, the actor, as
a result of severe mental disease or defect, did not know that his
conduct was wrong.
(b) The term "mental disease or defect" does not include an
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abnormality manifested only by repeated criminal or otherwise
antisocial conduct.
Sec. 8.02. MISTAKE OF FACT. (a) It is a defense to
prosecution that the actor through mistake formed a reasonable
belief about a matter of fact if his mistaken belief negated the
kind of culpability required for commission of the offense.
(b) Although an actor's mistake of fact may constitute a
defense to the offense charged, he may nevertheless be convicted of
any lesser included offense of which he would be guilty if the fact
were as he believed.
Sec. 8.03. MISTAKE OF LAW. (a) It is no defense to
prosecution that the actor was ignorant of the provisions of any
law after the law has taken effect.
(b) It is an affirmative defense to prosecution that the
actor reasonably believed the conduct charged did not constitute a
crime and that he acted in reasonable reliance upon:
(1) an official statement of the law contained in a
written order or grant of permission by an administrative agency
charged by law with responsibility for interpreting the law in
question; or
(2) a written interpretation of the law contained in
an opinion of a court of record or made by a public official
charged by law with responsibility for interpreting the law in
question.
(c) Although an actor's mistake of law may constitute a
defense to the offense charged, he may nevertheless be convicted of
a lesser included offense of which he would be guilty if the law
were as he believed.
Sec. 8.04. INTOXICATION. (a) Voluntary intoxication does
not constitute a defense to the commission of crime.
(b) Evidence of temporary insanity caused by intoxication
may be introduced by the actor in mitigation of the penalty
attached to the offense for which he is being tried.
(c) When temporary insanity is relied upon as a defense and
the evidence tends to show that such insanity was caused by
intoxication, the court shall charge the jury in accordance with
the provisions of this section.
(d) For purposes of this section "intoxication" means
disturbance of mental or physical capacity resulting from the
introduction of any substance into the body.
Sec. 8.05. DURESS. (a) It is an affirmative defense to
prosecution that the actor engaged in the proscribed conduct
because he was compelled to do so by threat of imminent death or
serious bodily injury to himself or another.
(b) In a prosecution for an offense that does not constitute
a felony, it is an affirmative defense to prosecution that the
actor engaged in the proscribed conduct because he was compelled to
do so by force or threat of force.
(c) Compulsion within the meaning of this section exists
only if the force or threat of force would render a person of
reasonable firmness incapable of resisting the pressure.
(d) The defense provided by this section is unavailable if
the actor intentionally, knowingly, or recklessly placed himself in
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a situation in which it was probable that he would be subjected to
compulsion.
(e) It is no defense that a person acted at the command or
persuasion of his spouse, unless he acted under compulsion that
would establish a defense under this section.
Sec. 8.06. ENTRAPMENT. (a) It is a defense to prosecution
that the actor engaged in the conduct charged because he was
induced to do so by a law enforcement agent using persuasion or
other means likely to cause persons to commit the offense. Conduct
merely affording a person an opportunity to commit an offense does
not constitute entrapment.
(b) In this section "law enforcement agent" includes
personnel of the state and local law enforcement agencies as well
as of the United States and any person acting in accordance with
instructions from such agents.
Sec. 8.07. AGE AFFECTING CRIMINAL RESPONSIBILITY. (a) A
person may not be prosecuted for or convicted of any offense that
he committed when younger than 15 years of age except:
(1) perjury and aggravated perjury when it appears by
proof that he had sufficient discretion to understand the nature
and obligation of an oath;
(2) a violation of a penal statute cognizable under
Chapter 302, Acts of the 55th Legislature, Regular Session, 1957^s,^t
^sas amended^t (Article 6701l-4, Vernon's Texas Civil Statutes),
except conduct which violates the laws of this state prohibiting
driving while intoxicated or under the influence of intoxicating
liquor (first or subsequent offense) or driving while under the
influence of any narcotic drug or of any other drug to a degree
which renders him incapable of safely driving a vehicle (first or
subsequent offense);
(3) a violation of a motor vehicle traffic ordinance
of an incorporated city or town in this state;
(4) a misdemeanor punishable by fine only other than
public intoxication; or
(5) a violation of a penal ordinance of a political
subdivision.
(b) Unless the juvenile court waives jurisdiction and
certifies the individual for criminal prosecution, a person may not
be prosecuted for or convicted of any offense committed before
reaching 17 years of age except:
(1) perjury and aggravated perjury when it appears by
proof that he had sufficient discretion to understand the nature
and obligation of an oath;
(2) a violation of a penal statute cognizable under
Chapter 302, Acts of the 55th Legislature, Regular Session, 1957^s,^t
^sas amended^t (Article 6701l-4, Vernon's Texas Civil Statutes),
except conduct which violates the laws of this state prohibiting
driving while intoxicated or under the influence of intoxicating
liquor (first or subsequent offense) or driving while under the
influence of any narcotic drug or of any other drug to a degree
which renders him incapable of safely driving a vehicle (first or
subsequent offense);
(3) a violation of a motor vehicle traffic ordinance
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of an incorporated city or town in this state;
(4) a misdemeanor punishable by fine only other than
public intoxication; or
(5) a violation of a penal ordinance of a political
subdivision.
(c) Unless the juvenile court waives jurisdiction and
certifies the individual for criminal prosecution, a person who has
been alleged in a petition for an adjudication hearing to have
engaged in delinquent conduct or conduct indicating a need for
supervision may not be prosecuted for or convicted of any offense
alleged in the juvenile court petition or any offense within the
knowledge of the juvenile court judge as evidenced by anything in
the record of the juvenile court proceedings.
(d) No person may, in any case, be punished by death for an
offense committed while he was younger than 17 years.
CHAPTER 9. JUSTIFICATION EXCLUDING CRIMINAL RESPONSIBILITY
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 9.01. DEFINITIONS. In this chapter:
(1) "Custody" means:
(A) under arrest by a peace officer; or
(B) under restraint by a public servant pursuant
to an order of a court.
(2) "Escape" means unauthorized departure from custody
or failure to return to custody following temporary leave for a
specific purpose or limited period, but does not include a
violation of conditions of ^ucommunity supervision^w ^sprobation^t or
parole^u, or following leave that is part of an intermittent^w
^usentence^w.
(3) "Deadly force" means force that is intended or
known by the actor to cause, or in the manner of its use or
intended use is capable of causing, death or serious bodily injury.
Sec. 9.02. JUSTIFICATION AS A DEFENSE. It is a defense to
prosecution that the conduct in question is justified under this
chapter.
Sec. 9.03. CONFINEMENT AS JUSTIFIABLE FORCE. Confinement is
justified when force is justified by this chapter if the actor
takes reasonable measures to terminate the confinement as soon as
he knows he safely can unless the person confined has been arrested
for an offense.
Sec. 9.04. THREATS AS JUSTIFIABLE FORCE. The threat of
force is justified when the use of force is justified by this
chapter. For purposes of this section, a threat to cause death or
serious bodily injury by the production of a weapon or otherwise,
as long as the actor's purpose is limited to creating an
apprehension that he will use deadly force if necessary, does not
constitute the use of deadly force.
Sec. 9.05. RECKLESS INJURY OF INNOCENT THIRD PERSON. Even
though an actor is justified under this chapter in threatening or
using force or deadly force against another, if in doing so he also
recklessly injures or kills an innocent third person, the
justification afforded by this chapter is unavailable in a
prosecution for the reckless injury or killing of the innocent
third person.
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Sec. 9.06. CIVIL REMEDIES UNAFFECTED. The fact that conduct
is justified under this chapter does not abolish or impair any
remedy for the conduct that is available in a civil suit.
(Sections 9.07 to 9.20 reserved for expansion)
SUBCHAPTER B. JUSTIFICATION GENERALLY
Sec. 9.21. PUBLIC DUTY. (a) Except as qualified by
Subsections (b) and (c) ^sof this section^t, conduct is justified if
the actor reasonably believes the conduct is required or authorized
by law, by the judgment or order of a competent court or other
governmental tribunal, or in the execution of legal process.
(b) The other sections of this chapter control when force is
used against a person to protect persons (Subchapter C), to protect
property (Subchapter D), for law enforcement (Subchapter E), or by
virtue of a special relationship (Subchapter F).
(c) The use of deadly force is not justified under this
section unless the actor reasonably believes the deadly force is
specifically required by statute or unless it occurs in the lawful
conduct of war. If deadly force is so justified, there is no duty
to retreat before using it.
(d) The justification afforded by this section is available
if the actor reasonably believes:
(1) the court or governmental tribunal has
jurisdiction or the process is lawful, even though the court or
governmental tribunal lacks jurisdiction or the process is
unlawful; or
(2) his conduct is required or authorized to assist a
public servant in the performance of his official duty, even though
the servant exceeds his lawful authority.
Sec. 9.22. NECESSITY. Conduct is justified if:
(1) the actor reasonably believes the conduct is
immediately necessary to avoid imminent harm;
(2) the desirability and urgency of avoiding the harm
clearly outweigh, according to ordinary standards of
reasonableness, the harm sought to be prevented by the law
^uproscribing^w ^sprescribing^t the conduct; and
(3) a legislative purpose to exclude the justification
claimed for the conduct does not otherwise plainly appear.
(Sections 9.23 to 9.30 reserved for expansion)
SUBCHAPTER C. PROTECTION OF PERSONS
Sec. 9.31. SELF-DEFENSE. (a) Except as provided in
Subsection (b) ^sof this section^t, a person is justified in using
force against another when and to the degree he reasonably believes
the force is immediately necessary to protect himself against the
other's use or attempted use of unlawful force.
(b) The use of force against another is not justified:
(1) in response to verbal provocation alone;
(2) to resist an arrest or search that the actor knows
is being made by a peace officer, or by a person acting in a peace
officer's presence and at his direction, even though the arrest or
search is unlawful, unless the resistance is justified under
Subsection (c) ^sof this section^t;
(3) if the actor consented to the exact force used or
attempted by the other; ^sor^t
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(4) if the actor provoked the other's use or attempted
use of unlawful force, unless:
(A) the actor abandons the encounter, or clearly
communicates to the other his intent to do so reasonably believing
he cannot safely abandon the encounter; and
(B) the other nevertheless continues or attempts
to use unlawful force against the actor^u; or^w
^u(5) if the actor sought an explanation from or^w
^udiscussion with the other person concerning the actor's differences^w
^uwith the other person while the actor was carrying a weapon in^w
^uviolation of Section 46.02^w.
(c) The use of force to resist an arrest or search is
justified:
(1) if, before the actor offers any resistance, the
peace officer (or person acting at his direction) uses or attempts
to use greater force than necessary to make the arrest or search;
and
(2) when and to the degree the actor reasonably
believes the force is immediately necessary to protect himself
against the peace officer's (or other person's) use or attempted
use of greater force than necessary.
(d) The use of deadly force is not justified under this
subchapter except as provided in Sections 9.32, 9.33, and 9.34 ^sof^t
^sthis code^t.
Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. A person is
justified in using deadly force against another:
(1) if he would be justified in using force against
the other under Section 9.31 ^sof this code^t;
(2) if a reasonable person in the actor's situation
would not have retreated; and
(3) when and to the degree he reasonably believes the
deadly force is immediately necessary:
(A) to protect himself against the other's use
or attempted use of unlawful deadly force; or
(B) to prevent the other's imminent commission
of aggravated kidnapping, murder, sexual assault, aggravated sexual
assault, robbery, or aggravated robbery.
Sec. 9.33. DEFENSE OF THIRD PERSON. A person is justified
in using force or deadly force against another to protect a third
person if:
(1) under the circumstances as the actor reasonably
believes them to be, the actor would be justified under Section
9.31 or 9.32 ^sof this code^t in using force or deadly force to
protect himself against the unlawful force or unlawful deadly force
he reasonably believes to be threatening the third person he seeks
to protect; and
(2) the actor reasonably believes that his
intervention is immediately necessary to protect the third person.
Sec. 9.34. PROTECTION OF LIFE OR HEALTH. (a) A person is
justified in using force, but not deadly force, against another
when and to the degree he reasonably believes the force is
immediately necessary to prevent the other from committing suicide
or inflicting serious bodily injury to himself.
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(b) A person is justified in using both force and deadly
force against another when and to the degree he reasonably believes
the force or deadly force is immediately necessary to preserve the
other's life in an emergency.
(Sections 9.35 to 9.40 reserved for expansion)
SUBCHAPTER D. PROTECTION OF PROPERTY
Sec. 9.41. PROTECTION OF ONE'S OWN PROPERTY. (a) A person
in lawful possession of land or tangible, movable property is
justified in using force against another when and to the degree the
actor reasonably believes the force is immediately necessary to
prevent or terminate the other's trespass on the land or unlawful
interference with the property.
(b) A person unlawfully dispossessed of land or tangible,
movable property by another is justified in using force against the
other when and to the degree the actor reasonably believes the
force is immediately necessary to reenter the land or recover the
property if the actor uses the force immediately or in fresh
pursuit after the dispossession and:
(1) the actor reasonably believes the other had no
claim of right when he dispossessed the actor; or
(2) the other accomplished the dispossession by using
force, threat, or fraud against the actor.
Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is
justified in using deadly force against another to protect land or
tangible, movable property:
(1) if he would be justified in using force against
the other under Section 9.41 ^sof this code^t; and
(2) when and to the degree he reasonably believes the
deadly force is immediately necessary:
(A) to prevent the other's imminent commission
of arson, burglary, robbery, aggravated robbery, theft during the
nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing
immediately after committing burglary, robbery, aggravated robbery,
or theft during the nighttime from escaping with the property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or
recovered by any other means; or
(B) the use of force other than deadly force to
protect or recover the land or property would expose the actor or
another to a substantial risk of death or serious bodily injury.
Sec. 9.43. PROTECTION OF THIRD PERSON'S PROPERTY. A person
is justified in using force or deadly force against another to
protect land or tangible, movable property of a third person if,
under the circumstances as he reasonably believes them to be, the
actor would be justified under Section 9.41 or 9.42 ^sof this code^t
in using force or deadly force to protect his own land or property
and:
(1) the actor reasonably believes the unlawful
interference constitutes attempted or consummated theft of or
criminal mischief to the tangible, movable property; or
(2) the actor reasonably believes that:
(A) the third person has requested his
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protection of the land or property;
(B) he has a legal duty to protect the third
person's land or property; or
(C) the third person whose land or property he
uses force or deadly force to protect is the actor's spouse,
parent, or child, resides with the actor, or is under the actor's
care.
Sec. 9.44. USE OF DEVICE TO PROTECT PROPERTY. The
justification afforded by Sections 9.41 and 9.43 ^sof this code^t
applies to the use of a device to protect land or tangible, movable
property if:
(1) the device is not designed to cause, or known by
the actor to create a substantial risk of causing, death or serious
bodily injury; and
(2) use of the device is reasonable under all the
circumstances as the actor reasonably believes them to be when he
installs the device.
(Sections 9.45 to 9.50 reserved for expansion)
SUBCHAPTER E. LAW ENFORCEMENT
Sec. 9.51. ARREST AND SEARCH. (a) A peace officer, or a
person acting in a peace officer's presence and at his direction,
is justified in using force against another when and to the degree
the actor reasonably believes the force is immediately necessary to
make or assist in making an arrest or search, or to prevent or
assist in preventing escape after arrest, if:
(1) the actor reasonably believes the arrest or search
is lawful or, if the arrest or search is made under a warrant, he
reasonably believes the warrant is valid; and
(2) before using force, the actor manifests his
purpose to arrest or search and identifies himself as a peace
officer or as one acting at a peace officer's direction, unless he
reasonably believes his purpose and identity are already known by
or cannot reasonably be made known to the person to be arrested.
(b) A person other than a peace officer (or one acting at
his direction) is justified in using force against another when and
to the degree the actor reasonably believes the force is
immediately necessary to make or assist in making a lawful arrest,
or to prevent or assist in preventing escape after lawful arrest
if, before using force, the actor manifests his purpose to and the
reason for the arrest or reasonably believes his purpose and the
reason are already known by or cannot reasonably be made known to
the person to be arrested.
(c) A peace officer is justified in using deadly force
against another when and to the degree the peace officer reasonably
believes the deadly force is immediately necessary to make an
arrest, or to prevent escape after arrest, if the use of force
would have been justified under Subsection (a) ^sof this section^t
and:
(1) the actor reasonably believes the conduct for
which arrest is authorized included the use or attempted use of
deadly force; or
(2) the actor reasonably believes there is a
substantial risk that the person to be arrested will cause death or
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serious bodily injury to the actor or another if the arrest is
delayed.
(d) A person other than a peace officer acting in a peace
officer's presence and at his direction is justified in using
deadly force against another when and to the degree the person
reasonably believes the deadly force is immediately necessary to
make a lawful arrest, or to prevent escape after a lawful arrest,
if the use of force would have been justified under Subsection (b)
^sof this section^t and:
(1) the actor reasonably believes the felony or
offense against the public peace for which arrest is authorized
included the use or attempted use of deadly force; or
(2) the actor reasonably believes there is a
substantial risk that the person to be arrested will cause death or
serious bodily injury to another if the arrest is delayed.
(e) There is no duty to retreat before using deadly force
justified by Subsection (c) or (d) ^sof this section^t.
(f) Nothing in this section relating to the actor's
manifestation of purpose or identity shall be construed as
conflicting with any other law relating to the issuance, service,
and execution of an arrest or search warrant either under the laws
of this state or the United States.
(g) Deadly force may only be used under the circumstances
enumerated in Subsections (c) and (d) ^sof this section^t.
Sec. 9.52. PREVENTION OF ESCAPE FROM CUSTODY. The use of
force to prevent the escape of an arrested person from custody is
justifiable when the force could have been employed to effect the
arrest under which the person is in custody, except that a guard
employed by a ^ucorrectional facility^w ^spenal institution^t or a peace
officer is justified in using any force, including deadly force,
that he ^ureasonably^w believes to be immediately necessary to prevent
the escape of a person from ^uthe correctional facility^w ^sa jail,^t
^sprison, or other institution for the detention of persons charged^t
^swith or convicted of a crime^t.
Sec. 9.53. MAINTAINING SECURITY IN ^uCORRECTIONAL FACILITY^w
^sPENAL INSTITUTION^t. ^uAn officer or employee of a correctional^w
^ufacility^w ^sA peace officer, jailer, or guard employed at a municipal^t
^sor county jail, or a guard or correctional officer employed by the^t
^sTexas Department of Corrections^t is justified in using force
against a person in custody when and to the degree the ^speace^t
officer^s, jailer, guard,^t or ^uemployee^w ^scorrectional officer^t
reasonably believes the force is necessary to maintain the security
of the ^ucorrectional facility^w ^spenal institution^t, the safety or
security of other persons in custody or employed by the
^ucorrectional facility^w ^spenal institution^t, or his own safety or
security.
(Sections 9.54 to 9.60 reserved for expansion)
SUBCHAPTER F. SPECIAL RELATIONSHIPS
Sec. 9.61. PARENT--CHILD. (a) The use of force, but not
deadly force, against a child younger than 18 years is justified:
(1) if the actor is the child's parent or stepparent
or is acting in loco parentis to the child; and
(2) when and to the degree the actor reasonably
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believes the force is necessary to discipline the child or to
safeguard or promote his welfare.
(b) For purposes of this section, "in loco parentis"
includes grandparent and guardian, any person acting by, through,
or under the direction of a court with jurisdiction over the child,
and anyone who has express or implied consent of the parent or
parents.
Sec. 9.62. EDUCATOR--STUDENT. The use of force, but not
deadly force, against a person is justified:
(1) if the actor is entrusted with the care,
supervision, or administration of the person for a special purpose;
and
(2) when and to the degree the actor reasonably
believes the force is necessary to further the special purpose or
to maintain discipline in a group.
Sec. 9.63. GUARDIAN--INCOMPETENT. The use of force, but not
deadly force, against a mental incompetent is justified:
(1) if the actor is the incompetent's guardian or
someone similarly responsible for the general care and supervision
of the incompetent; and
(2) when and to the degree the actor reasonably
believes the force is necessary:
(A) to safeguard and promote the incompetent's
welfare; or
(B) if the incompetent is in an institution for
his care and custody, to maintain discipline in the institution.
TITLE 3. PUNISHMENTS
CHAPTER 12. PUNISHMENTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 12.01. PUNISHMENT IN ACCORDANCE WITH CODE. (a) A
person adjudged guilty of an offense under this code shall be
punished in accordance with this chapter and the Code of Criminal
Procedure^s, 1965^t.
(b) Penal laws enacted after the effective date of this code
shall be classified for punishment purposes in accordance with this
chapter.
(c) This chapter does not deprive a court of authority
conferred by law to forfeit property, dissolve a corporation,
suspend or cancel a license or permit, remove a person from office,
cite for contempt, or impose any other civil penalty. The civil
penalty may be included in the sentence.
Sec. 12.02. CLASSIFICATION OF OFFENSES. Offenses are
designated as felonies or misdemeanors.
Sec. 12.03. CLASSIFICATION OF MISDEMEANORS.
(a) Misdemeanors are classified according to the relative
seriousness of the offense into three categories:
(1) Class A misdemeanors;
(2) Class B misdemeanors;
(3) Class C misdemeanors.
(b) An offense designated a misdemeanor in this code without
specification as to punishment or category is a Class C
misdemeanor.
(c) Conviction of a Class C misdemeanor does not impose any
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legal disability or disadvantage.
Sec. 12.04. CLASSIFICATION OF FELONIES. (a) Felonies are
classified according to the relative seriousness of the offense
into ^ufive^w ^sfour^t categories:
(1) capital felonies;
(2) felonies of the first degree;
(3) felonies of the second degree;
(4) felonies of the third degree^u; and^w
^u(5) state jail felonies^w.
(b) An offense designated a felony in this code without
specification as to category is a ^ustate jail^w felony ^sof the third^t
^sdegree^t.
(Sections 12.05 to 12.20 reserved for expansion)
SUBCHAPTER B. ORDINARY MISDEMEANOR PUNISHMENTS
Sec. 12.21. CLASS A MISDEMEANOR. An individual adjudged
guilty of a Class A misdemeanor shall be punished by:
(1) a fine not to exceed ^u$4,000^w ^s$3,000^t;
(2) confinement in jail for a term not to exceed one
year; or
(3) both such fine and ^uconfinement^w ^simprisonment^t.
Sec. 12.22. CLASS B MISDEMEANOR. An individual adjudged
guilty of a Class B misdemeanor shall be punished by:
(1) a fine not to exceed ^u$2,000^w ^s$1,500^t;
(2) confinement in jail for a term not to exceed 180
days; or
(3) both such fine and ^uconfinement^w ^simprisonment^t.
Sec. 12.23. CLASS C MISDEMEANOR. An individual adjudged
guilty of a Class C misdemeanor shall be punished by a fine not to
exceed $500.
(Sections 12.24 to 12.30 reserved for expansion)
SUBCHAPTER C. ORDINARY FELONY PUNISHMENTS
Sec. 12.31. CAPITAL FELONY. (a) An individual adjudged
guilty of a capital felony in a case in which the state seeks the
death penalty shall be punished by ^uimprisonment^w ^sconfinement^t in
the institutional division ^sof the Texas Department of Criminal^t
^sJustice^t for life or by death. An individual adjudged guilty of a
capital felony in a case in which the state does not seek the death
penalty shall be punished by ^uimprisonment^w ^sconfinement^t in the
institutional division for life.
(b) In a capital felony trial in which the state seeks the
death penalty, prospective jurors shall be informed that a sentence
of life imprisonment or death is mandatory on conviction of a
capital felony. In a capital felony trial in which the state does
not seek the death penalty, prospective jurors shall be informed
that the state is not seeking the death penalty and that a sentence
of life imprisonment is mandatory on conviction of the capital
felony.
Sec. 12.32. ^uFIRST DEGREE^w ^sFIRST-DEGREE^t FELONY PUNISHMENT.
(a) An individual adjudged guilty of a felony of the first degree
shall be punished by ^uimprisonment^w ^sconfinement^t in the
^uinstitutional division^w ^sTexas Department of Corrections^t for life
or for any term of not more than 99 years or less than 5 years.
(b) In addition to imprisonment, an individual adjudged
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guilty of a felony of the first degree may be punished by a fine
not to exceed $10,000.
Sec. 12.33. ^uSECOND DEGREE^w ^sSECOND-DEGREE^t FELONY PUNISHMENT.
(a) An individual adjudged guilty of a felony of the second degree
shall be punished by ^uimprisonment^w ^sconfinement^t in the
^uinstitutional division^w ^sTexas Department of Corrections^t for any
term of not more than 20 years or less than 2 years.
(b) In addition to imprisonment, an individual adjudged
guilty of a felony of the second degree may be punished by a fine
not to exceed $10,000.
Sec. 12.34. ^uTHIRD DEGREE^w ^sTHIRD-DEGREE^t FELONY PUNISHMENT.
(a) An individual adjudged guilty of a felony of the third degree
shall be punished by ^uimprisonment^w^s:^t
^s(1) confinement^t in the institutional division ^sof^t
^sthe Texas Department of Criminal Justice^t for any term of not more
than 10 years or less than 2 years^s; or^t
^s(2) confinement in a community correctional facility^t
^sfor any term of not more than 1 year^t.
(b) In addition to imprisonment, an individual adjudged
guilty of a felony of the third degree may be punished by a fine
not to exceed $10,000.
^uSec. 12.35. STATE JAIL FELONY PUNISHMENT. (a) Except as^w
^uprovided by Subsection (c), an individual adjudged guilty of a^w
^ustate jail felony shall be punished by confinement in a state jail^w
^ufor any term of not more than two years or less than 180 days.^w
^u(b) In addition to confinement, an individual adjudged^w
^uguilty of a state jail felony may be punished by a fine not to^w
^uexceed $10,000.^w
^u(c) An individual adjudged guilty of a state jail felony^w
^ushall be punished for a third degree felony if it is shown on the^w
^utrial of the offense that:^w
^u(1) a deadly weapon as defined by Section 1.07 was^w
^uused or exhibited during the commission of the offense or during^w
^uimmediate flight following the commission of the offense, and that^w
^uthe individual used or exhibited the deadly weapon or was a party^w
^uto the offense and knew that a deadly weapon would be used or^w
^uexhibited; or^w
^u(2) the individual has previously been finally^w
^uconvicted of any felony:^w
^u(A) listed in Section 3g(a)(1), Article 42.12,^w
^uCode of Criminal Procedure; or^w
^u(B) for which the judgment contains an^w
^uaffirmative finding under Section 3g(a)(2), Article 42.12, Code of^w
^uCriminal Procedure.^w
(Sections ^u12.36^w ^s12.35^t to 12.40 reserved for expansion)
SUBCHAPTER D. EXCEPTIONAL SENTENCES
Sec. 12.41. CLASSIFICATION OF OFFENSES OUTSIDE THIS CODE.
For purposes of this subchapter, any conviction not obtained from a
prosecution under this code shall be classified as follows:
(1) "felony of the third degree" if ^uimprisonment^w
^sconfinement^t in a penitentiary is affixed to the offense as a
possible punishment;
(2) "Class B misdemeanor" if the offense is not a
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felony and confinement in a jail is affixed to the offense as a
possible punishment;
(3) "Class C misdemeanor" if the offense is punishable
by fine only.
Sec. 12.42. PENALTIES FOR REPEAT AND HABITUAL FELONY
OFFENDERS. (a) If it ^uis^w ^sbe^t shown on the trial ^uof a state jail^w
^ufelony punishable under Section 12.35(c) or on the trial^w of a
third-degree felony that the defendant has been once before
convicted of ^ua^w ^sany^t felony, on conviction he shall be punished for
a second-degree felony.
(b) If it ^uis^w ^sbe^t shown on the trial of a second-degree
felony that the defendant has been once before convicted of ^ua^w ^sany^t
felony, on conviction he shall be punished for a first-degree
felony.
(c) If it ^uis^w ^sbe^t shown on the trial of a first-degree
felony that the defendant has been once before convicted of ^ua^w ^sany^t
felony, on conviction he shall be punished by ^uimprisonment^w
^sconfinement^t in the ^uinstitutional division of the^w Texas
Department of ^uCriminal Justice^w ^sCorrections^t for life, or for any
term of not more than 99 years or less than 15 years. In addition
to imprisonment, an individual may be punished by a fine not to
exceed $10,000.
(d) If it ^uis^w ^sbe^t shown on the trial of ^ua^w ^sany^t felony
offense that the defendant has previously been finally convicted of
two felony offenses, and the second previous felony conviction is
for an offense that occurred subsequent to the first previous
conviction having become final, on conviction he shall be punished
by ^uimprisonment^w ^sconfinement^t in the ^uinstitutional division of the^w
Texas Department of ^uCriminal Justice^w ^sCorrections^t for life, or for
any term of not more than 99 years or less than 25 years.
^u(e) A previous conviction for a state jail felony may be^w
^uused for enhancement purposes under this section only if the^w
^udefendant was punished for the offense under Section 12.35(c).^w
^sSec. 12.422. IMPOSITION OF SUBSTANCE ABUSE FELONY^t
^sPUNISHMENT. (a) A court may punish an eligible defendant^t
^sconvicted of an offense listed in Subsection (d) of this section^t
^sthat is otherwise punishable as a felony of the first, second, or^t
^sthird degree by imposing on the defendant:^t
^s(1) a term of confinement and treatment in a^t
^ssubstance abuse treatment facility operated by the community^t
^sjustice assistance division of the Texas Department of Criminal^t
^sJustice for an indeterminate term of not more than one year or less^t
^sthan six months, except that the minimum term for a defendant whose^t
^sunderlying offense is an offense under Article 6701l-1, Revised^t
^sStatutes, is 30 days;^t
^s(2) a term of not less than two years or more than 10^t
^syears in the institutional division of the Texas Department of^t
^sCriminal Justice, to begin not later than the 30th day after the^t
^sday on which the defendant is released from a substance abuse^t
^sfacility; and^t
^s(3) a fine not to exceed $10,000.^t
^s(b) A defendant is an eligible defendant for the purposes^t
^sof this section if:^t
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^s(1) a pre-sentence investigation conducted under^t
^sSection 9, Article 42.12, Code of Criminal Procedure, or any other^t
^sindication suggests that drug or alcohol abuse significantly^t
^scontributed to the commission of the offense;^t
^s(2) the court determines that there are no other^t
^scommunity-based programs or facilities that are suitable for the^t
^streatment of the defendant; and^t
^s(3) after considering the gravity and circumstances^t
^sof the offense committed, the court finds that the punishment would^t
^sbest serve the ends of justice.^t
^s(c) A conviction of an offense for which punishment is^t
^simposed under this section is a final conviction for the purposes^t
^sof Section 12.42 of this code.^t
^s(d) This section applies to all felony offenses other than^t
^smurder under Section 19.02, Penal Code, or an offense listed under^t
^sSection 3g(a)(1), Article 42.12, Code of Criminal Procedure, or a^t
^ssentence the judgment for which contains an affirmative finding^t
^sunder Section 3g(a)(2) of that article.^t
Sec. 12.43. PENALTIES FOR REPEAT AND HABITUAL MISDEMEANOR
OFFENDERS. (a) If it ^uis^w ^sbe^t shown on the trial of a Class A
misdemeanor that the defendant has been before convicted of a Class
A misdemeanor or any degree of felony, on conviction he shall be
punished by confinement in jail for any term of not more than one
year or less than 90 days.
(b) If it ^uis^w ^sbe^t shown on the trial of a Class B
misdemeanor that the defendant has been before convicted of a Class
A or Class B misdemeanor or any degree of felony, on conviction he
shall be punished by confinement in jail for any term of not more
than 180 days or less than 30 days.
^u(c) If the punishment scheme for an offense contains a^w
^uspecific enhancement provision increasing punishment for a^w
^udefendant who has previously been convicted of the offense, the^w
^uspecific enhancement provision controls over this section.^w
Sec. 12.44. REDUCTION OF ^uTHIRD DEGREE OR STATE JAIL^w
^sTHIRD-DEGREE^t FELONY PUNISHMENT TO MISDEMEANOR PUNISHMENT.
(a) A court may punish a defendant ^uwho is^w convicted of a third
degree felony by imposing the ^uconfinement permissible as^w punishment
for a Class A misdemeanor^u, a fine not to exceed $10,000, or both^w
^usuch fine and confinement, or may punish a defendant who is^w
^uconvicted of a state jail felony by imposing the confinement^w
^upermissible as punishment for a Class B misdemeanor, a fine not to^w
^uexceed $10,000, or both such fine and confinement^w if, after
considering the gravity and circumstances of the felony committed
and the history, character, and rehabilitative needs of the
defendant, the court finds that such punishment would best serve
the ends of justice.
(b) When a court is authorized to impose punishment for a
lesser category of offense as provided in Subsection (a) ^sof this^t
^ssection^t, the court may authorize the prosecuting attorney to
prosecute initially for the lesser category of offense.
Sec. 12.45. ADMISSION OF UNADJUDICATED OFFENSE. (a) A
person may, with the consent of the attorney for the state, admit
during the sentencing hearing his guilt of one or more
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unadjudicated offenses and request the court to take each into
account in determining sentence for the offense or offenses of
which he stands adjudged guilty.
(b) Before a court may take into account an admitted offense
over which exclusive venue lies in another county or district, the
court must obtain permission from the prosecuting attorney with
jurisdiction over the offense.
(c) If a court lawfully takes into account an admitted
offense, prosecution is barred for that offense.
Sec. 12.46. USE OF PRIOR CONVICTIONS. The use of a
conviction for enhancement purposes shall not preclude the
subsequent use of such conviction for enhancement purposes.
^sSec. 12.47. PENALTY IF CRIME COMMITTED AGAINST CHILD DURING^t
^sRITUAL OR CEREMONY. (a) The punishment prescribed for an offense^t
^slisted in Subsection (b) of this section is increased to the^t
^spunishment prescribed for the next highest category of offense if^t
^sit is shown on the trial of the offense that:^t
^s(1) the victim of the offense was younger than 17^t
^syears of age at the time of the offense; and^t
^s(2) the offense was committed as part of a ritual or^t
^sceremony.^t
^s(b) This section applies to an offense under the following^t
^ssections of the Penal Code:^t
^s(1) Section 21.11 (Indecency with a Child);^t
^s(2) Section 22.01 (Assault);^t
^s(3) Section 22.011 (Sexual Assault);^t
^s(4) Section 22.02 (Aggravated Assault);^t
^s(5) Section 22.021 (Aggravated Sexual Assault);^t
^s(6) Section 22.04 (Injury to a Child or an Elderly^t
^sIndividual);^t
^s(7) Section 22.041 (Abandoning or Endangering Child);^t
^s(8) Section 25.02 (Incest);^t
^s(9) Section 25.06 (Solicitation of a Child);^t
^s(10) Section 25.11 (Sale or Purchase of Child);^t
^s(11) Section 43.24 (Sale, Distribution, or Display of^t
^sHarmful Material to Minor); and^t
^s(12) Section 43.25 (Sexual Performance by a Child).^t
^s(c) This section does not apply to an offense for which the^t
^spunishment otherwise prescribed is the punishment for a^t
^sfirst-degree felony or a capital felony.^t
(Sections ^u12.47^w ^s12.48^t to 12.50 reserved for expansion)
SUBCHAPTER E. CORPORATIONS AND ASSOCIATIONS
Sec. 12.51. AUTHORIZED PUNISHMENTS FOR CORPORATIONS AND
ASSOCIATIONS. (a) If a corporation or association is adjudged
guilty of an offense that provides a penalty consisting of a fine
only, a court may sentence the corporation or association to pay a
fine in an amount fixed by the court, not to exceed the fine
provided by the offense.
(b) If a corporation or association is adjudged guilty of an
offense that provides a penalty including imprisonment, or that
provides no specific penalty, a court may sentence the corporation
or association to pay a fine in an amount fixed by the court, not
to exceed:
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(1) $20,000 if the offense is a felony of any
category;
(2) $10,000 if the offense is a Class A or Class B
misdemeanor;
(3) $2,000 if the offense is a Class C misdemeanor; or
(4) $50,000 if, as a result of an offense classified
as a felony or Class A misdemeanor, an individual suffers serious
bodily injury or death.
(c) In lieu of the fines authorized by Subsections (a),
(b)(1), (b)(2), and (b)(4) ^sof this section^t, if a court finds that
the corporation or association gained money or property or caused
personal injury or death, property damage, or other loss through
the commission of a felony or Class A or Class B misdemeanor, the
court may sentence the corporation or association to pay a fine in
an amount fixed by the court, not to exceed double the amount
gained or caused by the corporation or association to be lost or
damaged, whichever is greater.
(d) In addition to any sentence that may be imposed by this
section, a corporation or association that has been adjudged guilty
of an offense may be ordered by the court to give notice of the
conviction to any person the court deems appropriate.
^u(e) On conviction of a corporation or association, the court^w
^ushall notify the attorney general of that fact.^w
TITLE 4. INCHOATE OFFENSES
CHAPTER 15. PREPARATORY OFFENSES
Sec. 15.01. CRIMINAL ATTEMPT. (a) A person commits an
offense if, with specific intent to commit an offense, he does an
act amounting to more than mere preparation that tends but fails to
effect the commission of the offense intended.
(b) If a person attempts an offense that may be aggravated,
his conduct constitutes an attempt to commit the aggravated offense
if an element that aggravates the offense accompanies the attempt.
(c) It is no defense to prosecution for criminal attempt
that the offense attempted was actually committed.
(d) An offense under this section is one category lower than
the offense attempted, and if the offense attempted is a ^ustate jail^w
felony ^sof the third degree^t, the offense is a Class A misdemeanor.
Sec. 15.02. CRIMINAL CONSPIRACY. (a) A person commits
criminal conspiracy if, with intent that a felony be committed:
(1) he agrees with one or more persons that they or
one or more of them engage in conduct that would constitute the
offense; and
(2) he or one or more of them performs an overt act in
pursuance of the agreement.
(b) An agreement constituting a conspiracy may be inferred
from acts of the parties.
(c) It is no defense to prosecution for criminal conspiracy
that:
(1) one or more of the coconspirators is not
criminally responsible for the object offense;
(2) one or more of the coconspirators has been
acquitted, so long as two or more coconspirators have not been
acquitted;
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(3) one or more of the coconspirators has not been
prosecuted or convicted, has been convicted of a different offense,
or is immune from prosecution;
(4) the actor belongs to a class of persons that by
definition of the object offense is legally incapable of committing
the object offense in an individual capacity; or
(5) the object offense was actually committed.
(d) An offense under this section is one category lower than
the most serious felony that is the object of the conspiracy, and
if the most serious felony that is the object of the conspiracy is
a ^ustate jail^w felony ^sof the third degree^t, the offense is a Class A
misdemeanor.
Sec. 15.03. CRIMINAL SOLICITATION. (a) A person commits an
offense if, with intent that a capital felony or felony of the
first degree be committed, he requests, commands, or attempts to
induce another to engage in specific conduct that, under the
circumstances surrounding his conduct as the actor believes them to
be, would constitute the felony or make the other a party to its
commission.
(b) A person may not be convicted under this section on the
uncorroborated testimony of the person allegedly solicited and
unless the solicitation is made under circumstances strongly
corroborative of both the solicitation itself and the actor's
intent that the other person act on the solicitation.
(c) It is no defense to prosecution under this section that:
(1) the person solicited is not criminally responsible
for the felony solicited;
(2) the person solicited has been acquitted, has not
been prosecuted or convicted, has been convicted of a different
offense or of a different type or class of offense, or is immune
from prosecution;
(3) the actor belongs to a class of persons that by
definition of the felony solicited is legally incapable of
committing the offense in an individual capacity; or
(4) the felony solicited was actually committed.
(d) An offense under this section is:
(1) a felony of the first degree if the offense
solicited is a capital offense; or
(2) a felony of the second degree if the offense
solicited is a felony of the first degree.
Sec. 15.04. RENUNCIATION DEFENSE. (a) It is an affirmative
defense to prosecution under Section 15.01 ^sof this code^t that
under circumstances manifesting a voluntary and complete
renunciation of his criminal objective the actor avoided commission
of the offense attempted by abandoning his criminal conduct or, if
abandonment was insufficient to avoid commission of the offense, by
taking further affirmative action that prevented the commission.
(b) It is an affirmative defense to prosecution under
Section 15.02 or 15.03 ^sof this code^t that under circumstances
manifesting a voluntary and complete renunciation of his criminal
objective the actor countermanded his solicitation or withdrew from
the conspiracy before commission of the object offense and took
further affirmative action that prevented the commission of the
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object offense.
(c) Renunciation is not voluntary if it is motivated in
whole or in part:
(1) by circumstances not present or apparent at the
inception of the actor's course of conduct that increase the
probability of detection or apprehension or that make more
difficult the accomplishment of the objective; or
(2) by a decision to postpone the criminal conduct
until another time or to transfer the criminal act to another but
similar objective or victim.
(d) Evidence that the defendant renounced his criminal
objective by abandoning his criminal conduct, countermanding his
solicitation, or withdrawing from the conspiracy before the
criminal offense was committed and made substantial effort to
prevent the commission of the object offense shall be admissible as
mitigation at the hearing on punishment if he has been found guilty
of criminal attempt, criminal solicitation, or criminal conspiracy;
and in the event of a finding of renunciation under this
subsection, the punishment shall be one grade lower than that
provided for the offense committed.
Sec. 15.05. NO OFFENSE. Attempt or conspiracy to commit, or
solicitation of, a preparatory offense defined in this chapter is
not an offense.
CHAPTER 16. CRIMINAL INSTRUMENTS AND INTERCEPTION OF WIRE
OR ORAL COMMUNICATION
Sec. 16.01. Unlawful Use of Criminal Instrument. (a) A
person commits an offense if:
(1) he possesses a criminal instrument with intent to
use it in the commission of an offense; or
(2) with knowledge of its character and with intent to
use or aid or permit another to use in the commission of an
offense, he manufactures, adapts, sells, installs, or sets up a
criminal instrument.
(b) For the purpose of this section, "criminal instrument"
means anything, the possession, manufacture, or sale of which is
not otherwise an offense, that is specially designed, made, or
adapted for use in the commission of an offense.
(c) An offense under Subsection (a)(1) ^sof this section^t is
one category lower than the offense intended. An offense under
Subsection (a)(2) ^sof this section^t is a ^ustate jail^w felony ^sof the^t
^sthird degree^t.
Sec. 16.02. Unlawful Interception, Use, or Disclosure of
Wire, Oral, or Electronic Communications. (a) In this section,
"covert entry," "communication common carrier," "contents,"
"electronic, mechanical, or other device," "intercept,"
"investigative or law enforcement officer," "oral communication,"
"electronic communication," "readily accessible to the general
public," and "wire communication" have the meanings given those
terms in Article 18.20, Code of Criminal Procedure.
(b) ^uA^w ^sExcept as specifically provided by Subsection (c) of^t
^sthis section, a^t person commits an offense if he:
(1) intentionally intercepts, endeavors to intercept,
or procures another person to intercept or endeavor to intercept a
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wire, oral, or electronic communication;
(2) intentionally discloses or endeavors to disclose
to another person the contents of a wire, oral, or electronic
communication if he knows or has reason to know the information was
obtained through the interception of a wire, oral, or electronic
communication in violation of this subsection;
(3) intentionally uses or endeavors to use the
contents of a wire, oral, or electronic communication if he knows
or is reckless about whether the information was obtained through
the interception of a wire, oral, or electronic communication in
violation of this subsection;
(4) knowingly or intentionally effects a covert entry
for the purpose of intercepting wire, oral, or electronic
communications without court order or authorization; or
(5) intentionally uses, endeavors to use, or procures
any other person to use or endeavor to use any electronic,
mechanical, or other device to intercept any oral communication
when the device:
(A) is affixed to, or otherwise transmits a
signal through a wire, cable, or other connection used in wire
communications; or
(B) transmits communications by radio or
interferes with the transmission of communications by radio.
(c) It is an ^uaffirmative defense to prosecution under^w
^sexception to the application of^t Subsection (b) ^sof this^t
^ssection^t that:
(1) an operator of a switchboard or an officer,
employee, or agent of a communication common carrier whose
facilities are used in the transmission of a wire or electronic
communication intercepts a communication or discloses or uses an
intercepted communication in the normal course of employment while
engaged in an activity that is a necessary incident to the
rendition of service or to the protection of the rights or property
of the carrier of the communication, unless the interception
results from the communication common carrier's use of service
observing or random monitoring for purposes other than mechanical
or service quality control checks;
(2) an officer, employee, or agent of a communication
common carrier provides information, facilities, or technical
assistance to an investigative or law enforcement officer who is
authorized as provided by this article to intercept a wire, oral,
or electronic communication;
(3) a person acting under color of law intercepts a
wire, oral, or electronic communication if the person is a party to
the communication or if one of the parties to the communication has
given prior consent to the interception;
(4) a person not acting under color of law intercepts
a wire, oral, or electronic communication if the person is a party
to the communication or if one of the parties to the communication
has given prior consent to the interception unless the
communication is intercepted for the purpose of committing any
criminal or tortious act in violation of the constitution or laws
of the United States or of this state or for the purpose of
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committing any other injurious act;
(5) a person acting under color of law intercepts a
wire, oral, or electronic communication if:
(A) prior consent for the interception has been
given by a magistrate;
(B) an immediate life-threatening situation
exists;
(C) the person is a member of a law enforcement
unit specially trained to:
(i) respond to and deal with
life-threatening situations; or
(ii) install electronic, mechanical, or
other devices; and
(D) the interception ceases immediately on
termination of the life-threatening situation;
(6) an officer, employee, or agent of the Federal
Communications Commission intercepts a communication transmitted by
radio or discloses or uses an intercepted communication in the
normal course of employment and in the discharge of the monitoring
responsibilities exercised by the Federal Communications Commission
in the enforcement of Chapter 5, Title 47, United States Code;
(7) a person intercepts or obtains access to an
electronic communication that was made through an electronic
communication system that is configured to permit the communication
to be readily accessible to the general public;
(8) a person intercepts radio communication that is
transmitted:
(A) by a station for the use of the general
public;
(B) to ships, aircraft, vehicles, or persons in
distress;
(C) by a governmental, law enforcement, civil
defense, private land mobile, or public safety communications
system that is readily accessible to the general public;
(D) by a station operating on an authorized
frequency within the bands allocated to the amateur, citizens band,
or general mobile radio services; or
(E) by a marine or aeronautical communications
system;
(9) a person intercepts a wire or electronic
communication the transmission of which causes harmful interference
to a lawfully operating station or consumer electronic equipment,
to the extent necessary to identify the source of the interference;
(10) a user of the same frequency intercepts a radio
communication made through a system that uses frequencies monitored
by individuals engaged in the provision or the use of the system,
if the communication is not scrambled or encrypted; or
(11) a provider of electronic communications service
records the fact that a wire or electronic communication was
initiated or completed in order to protect the provider, another
provider furnishing service towards the completion of the
communication, or a user of that service from fraudulent, unlawful,
or abusive use of the service.
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(d)(1) ^uA^w ^sExcept as provided by Subsection (e) of this^t
^ssection, a^t person commits an offense if he:
(A) intentionally manufactures, assembles,
possesses, or sells an electronic, mechanical, or other device
knowing or having reason to know that the device is designed
primarily for nonconsensual interception of wire, electronic, or
oral communications and that the device or a component of the
device has been or will be used for an unlawful purpose; or
(B) places in a newspaper, magazine, handbill,
or other publication an advertisement of an electronic, mechanical,
or other device:
(i) knowing or having reason to know that
the device is designed primarily for nonconsensual interception of
wire, electronic, or oral communications;
(ii) promoting the use of the device for
the purpose of nonconsensual interception of wire, electronic, or
oral communications; or
(iii) knowing or having reason to know
that the advertisement will promote the use of the device for the
purpose of nonconsensual interception of wire, electronic, or oral
communications.
(2) An offense under Subdivision (1) ^sof this^t
^ssubsection^t is ^ua state jail felony^w ^spunishable by confinement in^t
^sthe Texas Department of Corrections for a term of not more than^t
^sfive years or a fine of not more than $10,000, or both^t.
(e) It is an ^uaffirmative defense to prosecution under^w
^sexception to the application of^t Subsection (d) ^sof this^t
^ssection^t that the manufacture, assembly, possession, or sale of
an electronic, mechanical, or other device that is designed
primarily for the purpose of nonconsensual interception of wire,
electronic, or oral communication is by:
(1) a communication common carrier or a provider of
wire or electronic communications service or an officer, agent, or
employee of or a person under contract with a communication common
carrier or provider acting in the normal course of the provider's
or communication carrier's business;
(2) an officer, agent, or employee of a person under
contract with, bidding on contracts with, or doing business with
the United States or this state acting in the normal course of the
activities of the United States or this state; or
(3) a law enforcement agency that has an established
unit specifically designated to respond to and deal with
life-threatening situations or specifically trained to install
wire, oral, or electronic communications intercept equipment.
(f) Except as provided by Subsections (d) and ^u(h)^w ^s(i) of^t
^sthis section^t, an offense under this section is a felony of the
second degree.
(g) ^sProperty seized pursuant to this section may be^t
^sforfeited to the Department of Public Safety in the manner provided^t
^sby Article 18.18, Code of Criminal Procedure, for disposition of^t
^sseized property. The department may destroy the property or^t
^smaintain, repair, use, and operate the property in a manner^t
^sconsistent with Article 18.20, Code of Criminal Procedure.^t
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^s(h)^t For purposes of this section:
(1) An immediate life-threatening situation exists
when human life is directly threatened in either a hostage or
barricade situation.
(2) "Member of a law enforcement unit specially
trained to respond to and deal with life-threatening situations"
means a peace officer who has received a minimum of 40 hours a year
of training in hostage and barricade suspect situations. This
training must be evidenced by the submission of appropriate
documentation to the Commission on Law Enforcement Officer
Standards and Education.
^u(h)^w ^s(i)^t(1) A person commits an offense if, knowing that a
government attorney or an investigative or law enforcement officer
has been authorized or has applied for authorization to intercept
wire, electronic, or oral communications, the person obstructs,
impedes, prevents, gives notice to another of, or attempts to give
notice to another of the interception.
(2) An offense under this subsection is ^ua state jail^w
^ufelony^w ^spunishable by confinement in the Texas Department of^t
^sCorrections for a term of not more than five years or by a fine of^t
^snot more than $10,000, or both^t.
^u(i) This section expires September 1, 2005, and shall not be^w
^uin force on and after that date.^w
^sSec. 16.021. ^t^sIllegal Interception^t^s. (a) In this section,^t
^s"communication" and "interception" have the same meanings as are^t
^sgiven those terms in Section 123.001, Civil Practice and Remedies^t
^sCode.^t
^s(b) A person, including a landlord, building operator, or^t
^semployee of a communication common carrier, commits an offense if^t
^sthe person knowingly aids in or permits an interception or^t
^sattempted interception.^t
^s(c) It is a defense to prosecution under this section that^t
^sthe interception is authorized by state or federal law.^t
^s(d) An offense under this section is a Class A misdemeanor,^t
^sunless the actor has been previously convicted under this section,^t
^sin which event the offense is a felony of the third degree.^t
Sec. 16.03. Unlawful Use of Pen Register or Trap and Trace
Device. (a) Except as authorized by a court order obtained under
Article 18.21, Code of Criminal Procedure, or in an emergency under
the circumstances described and permitted under that article, a
person commits an offense if he knowingly installs or utilizes a
pen register or trap and trace device to record telephone numbers
dialed from or to a telephone instrument.
(b) In this section, "authorized peace officer,"
^u"communications common carrier,"^w "pen register," and "trap and
trace device" have the meanings assigned by Article 18.21, Code of
Criminal Procedure.
(c) It is an exception to the application of Subsection (a)
^sof this section^t that an officer, employee, or agent of a
communications common carrier^s, as defined by Article 18.21, Code^t
^sof Criminal Procedure^t installs or utilizes a device or equipment
to record the numbers dialed from or to a telephone instrument in
the normal course of business of the carrier, for the protection of
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property or services provided by the carrier, or assists an
authorized peace officer in executing an order issued under Article
18.21, Code of Criminal Procedure.
(d) It is an exception to the application of Subsection (a)
^sof this section^t that the installation or utilization of a pen
register or trap and trace device was made by an officer, agent, or
employee of a lawful enterprise while engaged in an activity that
is a necessary incident to the rendition of service or to the
protection of property of or services provided by the enterprise,
and was not made for the purpose of gathering information for a law
enforcement agency or private investigative agency, other than
information related to the theft of communication or information
services provided by the enterprise.
(e) An offense under this section is a ^ustate jail^w felony ^sof^t
^sthe third degree^t.
^s(f) A pen register or trap and trace device used in^t
^sviolation of this section is subject to seizure and may be^t
^sforfeited to the Department of Public Safety in the manner provided^t
^sfor disposition of seized property by Article 18.18, Code of^t
^sCriminal Procedure.^t
Sec. 16.04. Unlawful Access to Stored Communications.
(a) In this section, "electronic communication," "electronic
storage," "user," and "wire communication" have the meanings
assigned to those terms in Article 18.21, Code of Criminal
Procedure.
(b) A person commits an offense if the person obtains,
alters, or prevents authorized access to a wire or electronic
communication while the communication is in electronic storage by:
(1) intentionally obtaining access without
authorization to a facility through which a wire or electronic
communications service is provided; or
(2) intentionally exceeding an authorization for
access to a facility through which a wire or electronic
communications service is provided.
(c) Except as provided by Subsection (d) ^sof this section^t,
an offense under Subsection (b) ^sof this section^t is a Class A
misdemeanor.
(d) If committed ^uto obtain a benefit or to harm another^w ^sfor^t
^spurposes of commercial advantage, malicious destruction or damage,^t
^sor private commercial gain^t, an offense is a ^ustate jail^w felony ^sof^t
^sthe third degree^t. ^sThe amount of a fine that may be imposed for^t
^san offense punished under this subsection, including an offense^t
^spunishable under this subsection but subject to enhanced penalties,^t
^smay be in any amount not to exceed $250,000.^t
(e) It is an exception to the application of Subsection (b)
^sof this section^t that the conduct was authorized by:
(1) the provider of the wire or electronic
communications service;
(2) the user of the wire or electronic communications
service; or
(3) Article 18.21, Code of Criminal Procedure.
Sec. 16.05. Illegal Divulgence of Public Communications.
(a) In this section, "electronic communication," "electronic
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communications service," and "electronic communications system"
have the meanings given those terms in Article 18.20, Code of
Criminal Procedure.
(b) Except as provided by Subsection (c) ^sof this section^t,
a person who provides electronic communications service to the
public commits an offense if he intentionally divulges the contents
of a communication, other than a communication to that person or
that person's agent, while the communication is in transmission on
that service, to any person other than the addressee or the
intended recipient of the communication or the addressee's or
intended recipient's agent.
(c) A person who provides electronic communications service
to the public may divulge the contents of a communication:
(1) as authorized by federal or state law;
(2) to a person employed, authorized, or whose
facilities are used to forward the communication to the
communication's destination; or
(3) to a law enforcement agency if the contents were
obtained by the service provider and the contents appear to pertain
to the commission of a crime.
(d) Except as provided by Subsections (e) and (f) ^sof this^t
^ssection^t, an offense under Subsection (b) ^sof this section^t is ^ua^w
^ustate jail felony^w ^spunishable by confinement in the Texas^t
^sDepartment of Corrections for a term of not more than five years or^t
^sa fine not to exceed $10,000, or both^t.
(e) If committed for a tortious or illegal purpose ^uor to^w
^ugain a benefit^w^s, or for direct or indirect commercial advantage or^t
^sprivate commercial gain^t, an offense under Subsection (b) ^sof this^t
^ssection^t that involves a radio communication that is not scrambled
or encrypted:
(1) is a Class A misdemeanor if the communication is
not the radio portion of a cellular telephone communication, a
public land mobile radio service communication, or a paging service
communication; or
(2) is ^ua Class C misdemeanor^w ^spunishable by a fine of^t
^snot more than $500^t if the communication is the radio portion of a
cellular telephone communication, a public and mobile radio service
or communication or a paging service communication.
(f)(1) A person who engages in conduct constituting an
offense under Subsection (b) ^sof this section^t that is not for a
tortious or illegal purpose or for the purpose of direct or
indirect commercial advantage or private commercial gain and
involves a radio communication that is transmitted on frequencies
allocated under Subpart D or Part 74 of the rules of the Federal
Communications Commission and that is not scrambled or encrypted
shall be subject to suit by the federal or state government in a
court of competent jurisdiction for appropriate injunctive relief.
If it is shown on the trial of the civil suit that the defendant
has been convicted of an offense under Subsection (b) or that the
defendant has been found liable in a civil action under Article
18.20, Code of Criminal Procedure, in addition to granting
injunctive relief the court shall impose a civil penalty of $500 on
the defendant.
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(2) A court may use any means within the court's
authority to enforce an injunction issued under Subdivision ^u(1)^w
^s(2) of this subsection^t and shall impose a fine as for contempt
of court of not less than $500 for each violation of the
injunction.
TITLE 5. OFFENSES AGAINST THE PERSON
CHAPTER 19. CRIMINAL HOMICIDE
Sec. 19.01. Types of Criminal Homicide. (a) A person
commits criminal homicide if he intentionally, knowingly,
recklessly, or with criminal negligence causes the death of an
individual.
(b) Criminal homicide is murder, capital murder, ^svoluntary^t
^smanslaughter, involuntary^t manslaughter, or criminally negligent
homicide.
Sec. 19.02. Murder. (a) ^uIn this section:^w
^u(1) "Adequate cause" means cause that would commonly^w
^uproduce a degree of anger, rage, resentment, or terror in a person^w
^uof ordinary temper, sufficient to render the mind incapable of cool^w
^ureflection.^w
^u(2) "Sudden passion" means passion directly caused by^w
^uand arising out of provocation by the individual killed or another^w
^uacting with the person killed which passion arises at the time of^w
^uthe offense and is not solely the result of former provocation.^w
^u(b)^w A person commits an offense if he:
(1) intentionally or knowingly causes the death of an
individual;
(2) intends to cause serious bodily injury and commits
an act clearly dangerous to human life that causes the death of an
individual; or
(3) commits or attempts to commit a felony, other than
^svoluntary or involuntary^t manslaughter, and in the course of and
in furtherance of the commission or attempt, or in immediate flight
from the commission or attempt, he commits or attempts to commit an
act clearly dangerous to human life that causes the death of an
individual.
^u(c) Except as provided by Subsection (d), an^w ^s(b) An^t
offense under this section is a felony of the first degree.
^u(d) At the punishment stage of a trial, the defendant may^w
^uraise the issue as to whether he caused the death under the^w
^uimmediate influence of sudden passion arising from an adequate^w
^ucause. If the defendant proves the issue in the affirmative by a^w
^upreponderance of the evidence, the offense is a felony of the^w
^usecond degree.^w
Sec. 19.03. Capital Murder. (a) A person commits an
offense if he commits murder as defined under Section ^u19.02(b)(1)^w
^s19.02(a)(1) of this code^t and:
(1) the person murders a peace officer or fireman who
is acting in the lawful discharge of an official duty and who the
person knows is a peace officer or fireman;
(2) the person intentionally commits the murder in the
course of committing or attempting to commit kidnapping, burglary,
robbery, aggravated sexual assault, ^sor^t arson^u, or obstruction or^w
^uretaliation^w;
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(3) the person commits the murder for remuneration or
the promise of remuneration or employs another to commit the murder
for remuneration or the promise of remuneration;
(4) the person commits the murder while escaping or
attempting to escape from a penal institution;
(5) the person, while incarcerated in a penal
institution, murders another^u:^w
^u(A)^w who is employed in the operation of the
penal institution; or
^u(B) with the intent to establish, maintain, or^w
^uparticipate in a combination or in the profits of a combination;^w
(6) ^uthe person:^w
^u(A) while incarcerated for an offense under this^w
^usection or Section 19.02, murders another; or^w
^u(B) while serving a sentence of life^w
^uimprisonment or a term of 99 years for an offense under Section^w
^u20.04, 22.021, or 29.03, murders another;^w
^u(7)^w the person murders more than one person:
(A) during the same criminal transaction; or
(B) during different criminal transactions but
the murders are committed pursuant to the same scheme or course of
conduct^u; or^w
^u(8) the person murders an individual under six years^w
^uof age^w.
(b) An offense under this section is a capital felony.
(c) If the jury or, when authorized by law, the judge does
not find beyond a reasonable doubt that the defendant is guilty of
an offense under this section, he may be convicted of murder or of
any other lesser included offense.
Sec. 19.04. ^sVOLUNTARY MANSLAUGHTER. (a) A person commits^t
^san offense if he causes the death of an individual under^t
^scircumstances that would constitute murder under Section 19.02 of^t
^sthis code, except that he caused the death under the immediate^t
^sinfluence of sudden passion arising from an adequate cause.^t
^s(b) "Sudden passion" means passion directly caused by and^t
^sarising out of provocation by the individual killed or another^t
^sacting with the person killed which passion arises at the time of^t
^sthe offense and is not solely the result of former provocation.^t
^s(c) "Adequate cause" means cause that would commonly^t
^sproduce a degree of anger, rage, resentment, or terror in a person^t
^sof ordinary temper, sufficient to render the mind incapable of cool^t
^sreflection.^t
^s(d) An offense under this section is a felony of the second^t
^sdegree.^t
^sSec. 19.05. INVOLUNTARY^t MANSLAUGHTER. (a) A person
commits an offense if he^s:^t
^s(1)^t recklessly causes the death of an individual^s;^t
^sor^t
^s(2) by accident or mistake when operating a motor^t
^svehicle, airplane, helicopter, or boat while intoxicated and, by^t
^sreason of such intoxication, causes the death of an individual.^t
^s(b) For purposes of this section, "intoxicated" has the^t
^smeaning assigned that term by Subsection (a), Article 6701l-1,^t
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^sRevised Statutes^t.
^u(b)^w ^s(c)^t An offense under this section is a felony of the
^usecond^w ^sthird^t degree.
^sSec. 19.06. EVIDENCE. (a) In all prosecutions for murder^t
^sor voluntary manslaughter, the state or the defendant shall be^t
^spermitted to offer testimony as to all relevant facts and^t
^scircumstances surrounding the killing and the previous relationship^t
^sexisting between the accused and the deceased, together with all^t
^srelevant facts and circumstances going to show the condition of the^t
^smind of the accused at the time of the offense.^t
^s(b) In a prosecution for murder or manslaughter, if a^t
^sdefendant raises as a defense a justification provided by Section^t
^s9.31, 9.32, or 9.33 of this code, the defendant, in order to^t
^sestablish the defendant's reasonable belief that use of force or^t
^sdeadly force was immediately necessary, shall be permitted to^t
^soffer:^t
^s(1) relevant evidence that the defendant had been the^t
^svictim of acts of family violence committed by the deceased, as^t
^sfamily violence is defined by Section 71.01, Family Code; and^t
^s(2) relevant expert testimony regarding the condition^t
^sof the mind of the defendant at the time of the offense, including^t
^sthose relevant facts and circumstances relating to family violence^t
^sthat are the basis of the expert's opinion.^t
Sec. ^u19.05^w ^s19.07^t. CRIMINALLY NEGLIGENT HOMICIDE. (a) A
person commits an offense if he causes the death of an individual
by criminal negligence.
(b) An offense under this section is a ^ustate jail felony^w
^sClass A misdemeanor^t.
CHAPTER 20. KIDNAPPING AND FALSE IMPRISONMENT
Sec. 20.01. DEFINITIONS. In this chapter:
(1) "Restrain" means to restrict a person's movements
without consent, so as to interfere substantially with his liberty,
by moving him from one place to another or by confining him.
Restraint is "without consent" if it is accomplished by:
(A) force, intimidation, or deception; or
(B) any means, including acquiescence of the
victim, if he is a child less than 14 years of age or an
incompetent person and the parent, guardian, or person or
institution acting in loco parentis has not acquiesced in the
movement or confinement.
(2) "Abduct" means to restrain a person with intent to
prevent his liberation by:
(A) secreting or holding him in a place where he
is not likely to be found; or
(B) using or threatening to use deadly force.
(3) "Relative" means a parent or stepparent, ancestor,
sibling, or uncle or aunt, including an adoptive relative of the
same degree through marriage or adoption.
Sec. 20.02. FALSE IMPRISONMENT. (a) A person commits an
offense if he intentionally or knowingly restrains another person.
(b) It is an affirmative defense to prosecution under this
section that:
(1) the person restrained was a child ^uyounger^w ^sless^t
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than 14 years of age;
(2) the actor was a relative of the child; and
(3) the actor's sole intent was to assume lawful
control of the child.
(c) An offense under this section is a Class B misdemeanor
unless the actor recklessly exposes the victim to a substantial
risk of serious bodily injury, in which event it is a felony of the
third degree.
(d) It is no offense to detain or move another under this
section when it is for the purpose of effecting a lawful arrest or
detaining an individual lawfully arrested.
Sec. 20.03. KIDNAPPING. (a) A person commits an offense if
he intentionally or knowingly abducts another person.
(b) It is an affirmative defense to prosecution under this
section that:
(1) the abduction was not coupled with intent to use
or to threaten to use deadly force;
(2) the actor was a relative of the person abducted;
and
(3) the actor's sole intent was to assume lawful
control of the victim.
(c) An offense under this section is a felony of the third
degree.
Sec. 20.04. AGGRAVATED KIDNAPPING. (a) A person commits an
offense if he intentionally or knowingly abducts another person
with the intent to:
(1) hold him for ransom or reward;
(2) use him as a shield or hostage;
(3) facilitate the commission of a felony or the
flight after the attempt or commission of a felony;
(4) inflict bodily injury on him or violate or abuse
him sexually;
(5) terrorize him or a third person; or
(6) interfere with the performance of any governmental
or political function.
(b) ^uExcept as provided by Subsection (c), an^w ^sAn^t offense
under this section is a felony of the first degree ^sunless the^t
^sactor voluntarily releases the victim alive and in a safe place, in^t
^swhich event it is a felony of the second degree^t.
^u(c) At the punishment stage of a trial, the defendant may^w
^uraise the issue as to whether he voluntarily released the victim in^w
^ua safe place. If the defendant proves the issue in the affirmative^w
^uby a preponderance of the evidence, the offense is a felony of the^w
^usecond degree.^w
CHAPTER 21. SEXUAL OFFENSES
Sec. 21.01. DEFINITIONS. In this chapter:
(1) "Deviate sexual intercourse" means:
(A) any contact between any part of the genitals
of one person and the mouth or anus of another person; or
(B) the penetration of the genitals or the anus
of another person with an object.
(2) "Sexual contact" means any touching of the anus,
breast, or any part of the genitals of another person with intent
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to arouse or gratify the sexual desire of any person.
(3) "Sexual intercourse" means any penetration of the
female sex organ by the male sex organ.
Sec. 21.06. HOMOSEXUAL CONDUCT. (a) A person commits an
offense if he engages in deviate sexual intercourse with another
individual of the same sex.
(b) An offense under this section is a Class C misdemeanor.
Sec. 21.07. PUBLIC LEWDNESS. (a) A person commits an
offense if he knowingly engages in any of the following acts in a
public place or, if not in a public place, he is reckless about
whether another is present who will be offended or alarmed by his
^sact^t:
(1) ^san^t act of sexual intercourse;
(2) ^san^t act of deviate sexual intercourse;
(3) ^san^t act of sexual contact; ^uor^w
(4) ^san^t act involving contact between the person's
mouth or genitals and the anus or genitals of an animal or fowl.
(b) An offense under this section is a Class A misdemeanor.
Sec. 21.08. INDECENT EXPOSURE. (a) A person commits an
offense if he exposes his anus or any part of his genitals with
intent to arouse or gratify the sexual desire of any person, and he
is reckless about whether another is present who will be offended
or alarmed by his act.
(b) An offense under this section is a Class B misdemeanor.
Sec. 21.11. INDECENCY WITH A CHILD. (a) A person commits
an offense if, with a child younger than 17 years and not his
spouse, whether the child is of the same or opposite sex, he:
(1) engages in sexual contact with the child; or
(2) exposes his anus or any part of his genitals,
knowing the child is present, with intent to arouse or gratify the
sexual desire of any person.
(b) ^sIt is a defense to prosecution under this section that^t
^sthe child was at the time of the alleged offense 14 years or older^t
^sand had, prior to the time of the alleged offense, engaged^t
^spromiscuously in:^t
^s(1) sexual intercourse;^t
^s(2) deviate sexual intercourse;^t
^s(3) sexual contact; or^t
^s(4) indecent exposure as defined in Subsection (a)(2)^t
^sof this section.^t
^s(c)^t It is an affirmative defense to prosecution under this
section that the actor:
(1) was not more than ^uthree^w ^stwo^t years older than the
victim and of the opposite sex; and
(2) did not use duress, force, or a threat against the
victim at the time of the offense.
^u(c)^w ^s(d)^t An offense under Subsection (a)(1) ^sof this^t
^ssection^t is a felony of the second degree and an offense under
Subsection (a)(2) ^sof this section^t is a felony of the third
degree.
CHAPTER 22. ASSAULTIVE OFFENSES
Sec. 22.01. Assault. (a) A person commits an offense if
the person:
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(1) intentionally, knowingly, or recklessly causes
bodily injury to another, including the person's spouse; ^sor^t
(2) intentionally or knowingly threatens another with
imminent bodily injury, including the person's spouse; or
(3) intentionally or knowingly causes physical contact
with another when the person knows or should reasonably believe
that the other will regard the contact as offensive or provocative.
(b) An offense under Subsection (a)(1) ^sof this section^t is
a Class A misdemeanor ^sunless:^t
^s(1) the offense is committed by the owner or an^t
^semployee of an institution described in Section 242.002(6), Health^t
^sand Safety Code, or a person providing medical or psychiatric^t
^streatment at an institution described in that section, and the^t
^soffense is committed by causing bodily injury to a patient or^t
^sresident of an institution described in that section, in which^t
^sevent the offense is a felony of the third degree;^t
^s(2) the offense is committed by the owner or an^t
^semployee of a facility, except a facility operated by the Texas^t
^sYouth Commission or the Texas Department of Corrections, described^t
^sin Section 242.003(a)(6), Health and Safety Code, or a person^t
^sproviding medical or psychiatric treatment at a facility, except a^t
^sfacility operated by the Texas Youth Commission or the Texas^t
^sDepartment of Corrections, described in that section, and the^t
^soffense is committed by causing bodily injury to a patient or^t
^sresident of a facility, except a facility operated by the Texas^t
^sYouth Commission or the Texas Department of Corrections, described^t
^sin that section, in which event the offense is a felony of the^t
^sthird degree; or^t
^s(3) the offense is committed against a family member^t
^sand the actor has been previously convicted under this section for^t
^san offense against a family member two or more times, in which^t
^sevent the offense is a felony of the third degree^t.
(c) An offense under Subsection (a)(2) ^uor (3)^w ^sof this^t
^ssection^t is a Class C misdemeanor ^sunless:^t
^s(1) the offense is committed by the owner or an^t
^semployee of an institution described in Section 242.002(6), Health^t
^sand Safety Code, or a person providing medical or psychiatric^t
^streatment at an institution described in that section, and the^t
^soffense is committed by threatening a patient or resident of an^t
^sinstitution described in that section with bodily injury, in which^t
^sevent the offense is a Class B misdemeanor; or^t
^s(2) the offense is committed by the owner or an^t
^semployee of a facility, except a facility operated by the Texas^t
^sYouth Commission or the Texas Department of Corrections, described^t
^sin Section 242.003(a)(6), Health and Safety Code, or a person^t
^sproviding medical or psychiatric treatment at a facility, except a^t
^sfacility operated by the Texas Youth Commission or the Texas^t
^sDepartment of Corrections, described in that section, and the^t
^soffense is committed by threatening a patient or resident of a^t
^sfacility, except a facility operated by the Texas Youth Commission^t
^sor the Texas Department of Corrections, described in that section^t
^swith bodily injury, in which event the offense is a Class B^t
^smisdemeanor; or^t
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^s(2) the offense is committed by the owner or an^t
^semployee of a facility, except a facility operated by the Texas^t
^sYouth Commission or the institutional division of the Texas^t
^sDepartment of Criminal Justice, described in Section 242.002,^t
^sHealth and Safety Code, or a person providing medical or^t
^spsychiatric treatment at a facility, except a facility operated by^t
^sthe Texas Youth Commission or the institutional division, described^t
^sin that section, and the offense is committed by threatening a^t
^spatient or resident of a facility, except a facility operated by^t
^sthe Texas Youth Commission or the institutional division, described^t
^sin that section with bodily injury, in which event the offense is a^t
^sClass B misdemeanor;^t
^s(3) the offense is committed against a classroom^t
^steacher, counselor, principal, or other similar instructional or^t
^sadministrative employee of a primary or secondary school accredited^t
^sby the Texas Education Agency, other than the Windham Schools,^t
^swhile engaged in performing his educational duties, in which event^t
^sthe offense is a Class B misdemeanor; or^t
^s(4) the offense is committed against a family member^t
^sand the actor has been previously convicted under this section for^t
^san offense against a family member:^t
^s(A) one time, in which event the offense is a^t
^sClass B misdemeanor;^t
^s(B) two times, in which event the offense is a^t
^sClass A misdemeanor; or^t
^s(C) more than two times, in which event the^t
^soffense is a felony of the third degree.^t
^s(d) An offense under Subsection (a)(3) of this section is a^t
^sClass C misdemeanor unless:^t
^s(1) the offense is committed against a classroom^t
^steacher, counselor, principal, or other similar instructional or^t
^sadministrative employee of a primary or secondary school accredited^t
^sby the Texas Education Agency while engaged in performing his^t
^seducational duties, in which event the offense is a Class B^t
^smisdemeanor; or^t
^s(2) the offense is committed against a family member^t
^sand the actor has been previously convicted under this section for^t
^san offense against a family member:^t
^s(A) one time, in which event the offense is a^t
^sClass B misdemeanor;^t
^s(B) two times, in which event the offense is a^t
^sClass A misdemeanor; or^t
^s(C) more than two times, in which event the^t
^soffense is a felony of the third degree.^t
^s(e) In this section, "family" has the meaning assigned by^t
^sSection 71.01, Family Code^t.
Sec. 22.011. Sexual Assault. (a) A person commits an
offense if the person:
(1) intentionally or knowingly:
(A) causes the penetration of the anus or female
sexual organ of another person by any means, without that person's
consent;
(B) causes the penetration of the mouth of
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another person by the sexual organ of the actor, without that
person's consent; or
(C) causes the sexual organ of another person,
without that person's consent, to contact or penetrate the mouth,
anus, or sexual organ of another person, including the actor; or
(2) intentionally or knowingly:
(A) causes the penetration of the anus or female
sexual organ of a child by any means;
(B) causes the penetration of the mouth of a
child by the sexual organ of the actor;
(C) causes the sexual organ of a child to
contact or penetrate the mouth, anus, or sexual organ of another
person, including the actor; or
(D) causes the anus of a child to contact the
mouth, anus, or sexual organ of another person, including the
actor.
(b) A sexual assault under Subsection (a)(1) ^sof this^t
^ssection^t is without the consent of the other person if:
(1) the actor compels the other person to submit or
participate by the use of physical force or violence;
(2) the actor compels the other person to submit or
participate by threatening to use force or violence against the
other person, and the other person believes that the actor has the
present ability to execute the threat;
(3) the other person has not consented and the actor
knows the other person is unconscious or physically unable to
resist;
(4) the actor knows that as a result of mental disease
or defect the other person is at the time of the sexual assault
incapable either of appraising the nature of the act or of
resisting it;
(5) the other person has not consented and the actor
knows the other person is unaware that the sexual assault is
occurring;
(6) the actor has intentionally impaired the other
person's power to appraise or control the other person's conduct by
administering any substance without the other person's knowledge;
^sor^t
(7) the actor compels the other person to submit or
participate by threatening to use force or violence against any
person, and the other person believes that the actor has the
ability to execute the threat^u; or^w
^u(8) the actor is a public servant who coerces the^w
^uother person to submit or participate^w.
(c) In this section:
(1) "Child" means a person younger than 17 years of
age who is not the spouse of the actor.
(2) "Spouse" means a person who is legally married to
another, except that persons married to each other are not treated
as spouses if they do not reside together or if there is an action
pending between them for dissolution of the marriage or for
separate maintenance.
(d) It is a defense to prosecution under Subsection (a)(2)
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^sof this section^t that^s:^t
^s(1) the child was at the time of the offense 14 years^t
^sof age or older and had prior to the time of the offense engaged^t
^spromiscuously in conduct described in that subsection; or^t
^s(2)^t the conduct consisted of medical care for the
child ^uand did not include any contact between the anus or sexual^w
^uorgan of the child and the mouth, anus, or sexual organ of the^w
^uactor or a third party^w.
(e) It is an affirmative defense to prosecution under
Subsection (a)(2) ^sof this section^t that the actor was not more
than ^uthree^w ^stwo^t years older than the victim^u, and the victim was a^w
^uchild of 14 years of age or older^w.
(f) An offense under this section is a felony of the second
degree.
^s(g) A prosecution against a spouse under this section^t
^srequires a showing of bodily injury or the threat of bodily injury.^t
^sSec. 22.012. INTENTIONALLY EXPOSING ANOTHER TO AIDS OR HIV.^t
^s(a) A person commits an offense if the person, knowing that he or^t
^sshe has AIDS or is a carrier of HIV and with intent to cause^t
^sserious bodily injury or death, intentionally engages in conduct^t
^sreasonably likely to result in the transfer of the actor's own^t
^sblood, bodily fluids containing visible blood, semen, or vaginal^t
^ssecretions into the bloodstream of another, or through the other^t
^sperson's skin or other membrane, except during in utero^t
^stransmission of blood or bodily fluids, and:^t
^s(1) the other person did not consent to the transfer^t
^sof blood, bodily fluids containing blood, semen, or vaginal^t
^ssecretions; or^t
^s(2) the other person consented to the transfer but at^t
^sthe time of giving consent had not been informed by the actor that^t
^sthe actor had AIDS or was a carrier of HIV.^t
^s(b) In this section, "AIDS" and "HIV" have the meanings^t
^sassigned by Section 81.101, Health and Safety Code.^t
^s(c) An offense under this section is a felony of the third^t
^sdegree.^t
Sec. 22.02. Aggravated Assault. (a) A person commits an
offense if the person commits assault as defined in Section 22.01
^sof this code^t and the person:
(1) causes serious bodily injury to another, including
the person's spouse; ^uor^w
(2) ^sthreatens with a deadly weapon or threatens to^t
^scause bodily injury or causes bodily injury to a member of the^t
^sBoard of Pardons and Paroles or the Texas Board of Criminal^t
^sJustice, an employee of the pardons and paroles division of the^t
^sTexas Department of Criminal Justice, an employee of the Windham^t
^sSchools, a peace officer, or a jailer, guard, or other employee of^t
^sa municipal or county jail, the institutional division of the Texas^t
^sDepartment of Criminal Justice, or a correctional facility^t
^sauthorized by Subchapter F, Chapter 351, Local Government Code or^t
^sChapter 495, Government Code, when the person knows or has been^t
^sinformed the person assaulted is a member of the Board of Pardons^t
^sand Paroles or the Texas Board of Criminal Justice, an employee of^t
^sthe pardons and paroles division, an employee of the Windham^t
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^sSchools, a peace officer, or a jailer, guard, or other employee:^t
^s(A) while the member of the Board of Pardons^t
^sand Paroles or Texas Board of Criminal Justice, employee of the^t
^spardons and paroles division, employee of the Windham Schools,^t
^speace officer, jailer, guard, or other employee is lawfully^t
^sdischarging an official duty; or^t
^s(B) in retaliation for or on account of an^t
^sexercise of official power or performance of an official duty as a^t
^smember of the Board of Pardons and Paroles or Texas Board of^t
^sCriminal Justice, an employee of the pardons and paroles division,^t
^san employee of the Windham Schools, a peace officer, or a jailer,^t
^sguard, or other employee; or^t
^s(3) causes bodily injury to a participant in a court^t
^sproceeding when the person knows or has been informed the person^t
^sassaulted is a participant in a court proceeding:^t
^s(A) while the injured person is lawfully^t
^sdischarging an official duty; or^t
^s(B) in retaliation for or on account of the^t
^sinjured person's having exercised an official power or performed an^t
^sofficial duty as a participant in a court proceeding; or^t
^s(4)^t uses ^uor exhibits^w a deadly weapon ^uduring the^w
^ucommission of the assault^w.
(b) ^sThe actor is presumed to have known the person^t
^sassaulted was a peace officer if he was wearing a distinctive^t
^suniform indicating his employment as a peace officer.^t
^s(c)^t An offense under this section is a felony of the
^usecond^w ^sthird^t degree, ^uexcept that^w ^sunless the offense is^t
^scommitted under Subdivision (2) of Subsection (a) of this section^t
^sand the person uses a deadly weapon, in which event^t the offense is
a felony of the first degree ^uif the offense is committed:^w
^u(1) by a public servant acting under color of the^w
^uservant's office or employment;^w
^u(2) against a person the actor knows is a public^w
^uservant while the public servant is lawfully discharging an^w
^uofficial duty, or in retaliation or on account of an exercise of^w
^uofficial power or performance of an official duty as a public^w
^uservant; or^w
^u(3) in retaliation against or on account of the^w
^uservice of another as a witness, prospective witness, informant, or^w
^uperson who has reported the occurrence of a crime^w.
^u(c) The actor is presumed to have known the person assaulted^w
^uwas a public servant if the person was wearing a distinctive^w
^uuniform or badge indicating the person's employment as a public^w
^uservant.^w
^s(d) A person commits an offense if the person commits^t
^sassault as defined in Section 22.01 of this code and the person^t
^sthreatens with a deadly weapon or causes serious bodily injury to^t
^san officer employed by a community supervision and corrections^t
^sdepartment, an employee of a community corrections facility^t
^soperated by or for a community supervision and corrections^t
^sdepartment and listed in Section 6, Article 42.13, Code of Criminal^t
^sProcedure, a juvenile probation officer, or an employee of a^t
^sjuvenile probation department or a juvenile detention center:^t
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^s(1) while the officer or employee is acting in the^t
^slawful discharge of an official duty; or^t
^s(2) in retaliation for or on account of an exercise^t
^sof official power or performance of an official duty by the officer^t
^sor employee.^t
Sec. 22.021. Aggravated Sexual Assault. (a) A person
commits an offense:
(1) if the person:
(A) intentionally or knowingly:
(i) causes the penetration of the anus or
female sexual organ of another person by any means, without that
person's consent;
(ii) causes the penetration of the mouth
of another person by the sexual organ of the actor, without that
person's consent; or
(iii) causes the sexual organ of another
person, without that person's consent, to contact or penetrate the
mouth, anus, or sexual organ of another person, including the
actor; or
(B) intentionally or knowingly:
(i) causes the penetration of the anus or
female sexual organ of a child by any means;
(ii) causes the penetration of the mouth
of a child by the sexual organ of the actor;
(iii) causes the sexual organ of a child
to contact or penetrate the mouth, anus, or sexual organ of another
person, including the actor; or
(iv) causes the anus of a child to contact
the mouth, anus, or sexual organ of another person, including the
actor; and
(2) if:
(A) the person:
(i) causes serious bodily injury or
attempts to cause the death of the victim or another person in the
course of the same criminal episode;
(ii) by acts or words places the victim in
fear that death, serious bodily injury, or kidnapping will be
imminently inflicted on any person;
(iii) by acts or words occurring in the
presence of the victim threatens to cause the death, serious bodily
injury, or kidnapping of any person; ^sor^t
(iv) uses or exhibits a deadly weapon in
the course of the same criminal episode; or
^u(v) acts in concert with another who^w
^uengages in conduct described by Subdivision (1) directed toward the^w
^usame victim and occurring during the course of the same criminal^w
^uepisode; or^w
(B) the victim is younger than 14 years of age.
(b) In this section, "child" has the meaning assigned that
term by Section 22.011(c) ^sof this code^t.
(c) An aggravated sexual assault under this section is
without the consent of the other person if the aggravated sexual
assault occurs under the same circumstances listed in Section
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22.011(b) ^sof this code^t.
(d) ^sThe defense provided by Section 22.011(d)(1) of this^t
^scode and the affirmative defense provided by Section 22.011(e) of^t
^sthis code do not apply to this section.^t The defense provided by
Section 22.011^u(d) applies^w ^s(d)(2) of this section does apply^t to
this section.
(e) An offense under this section is a felony of the first
degree.
^sSec. 22.03. DEADLY ASSAULT ON LAW ENFORCEMENT OR^t
^sCORRECTIONS OFFICER, MEMBER OR EMPLOYEE OF BOARD OF PARDONS AND^t
^sPAROLES, COURT PARTICIPANT, PROBATION PERSONNEL, OR EMPLOYEE OF^t
^sTEXAS YOUTH COMMISSION. (a) A person commits an offense if, with^t
^sa deadly weapon, he intentionally or knowingly causes serious^t
^sbodily injury:^t
^s(1) to a peace officer, a jailer, a guard, or other^t
^semployee of a municipal or county jail, the institutional division^t
^sof the Texas Department of Criminal Justice, or a correctional^t
^sfacility authorized by Subchapter F, Chapter 351, Local Government^t
^sCode, or Chapter 495, Government Code, a member of the Board of^t
^sPardons and Paroles or the Texas Board of Criminal Justice, an^t
^semployee of the Windham Schools, or an employee of the pardons and^t
^sparoles division of the Texas Department of Criminal Justice, where^t
^she knows or has been informed the person assaulted is a peace^t
^sofficer, jailer, guard, other employee, member of the Board of^t
^sPardons and Paroles or the Texas Board of Criminal Justice,^t
^semployee of the Windham Schools, or employee of the pardons and^t
^sparoles division:^t
^s(A) while the peace officer, jailer, guard,^t
^sother employee, member of the Board of Pardons and Paroles or the^t
^sTexas Board of Criminal Justice, or employee of the pardons and^t
^sparoles division is acting in the lawful discharge of an official^t
^sduty; or^t
^s(B) in retaliation for or on account of an^t
^sexercise of official power or performance of an official duty as a^t
^speace officer, jailer, guard, other employee, member of the Board^t
^sof Pardons and Paroles or the Texas Board of Criminal Justice,^t
^semployee of the Windham Schools, or employee of the pardons and^t
^sparoles division; or^t
^s(2) to a participant in a court proceeding when he^t
^sknows or has been informed that the person assaulted is a^t
^sparticipant in a court proceeding:^t
^s(A) while the injured person is in the lawful^t
^sdischarge of official duty; or^t
^s(B) in retaliation for or on account of the^t
^sinjured person's having exercised an official power or performed an^t
^sofficial duty as a participant in a court proceeding.^t
^s(b) The actor is presumed to have known the person^t
^sassaulted was a peace officer if he was wearing a distinctive^t
^suniform indicating his employment as a peace officer.^t
^s(c) An offense under this section is a felony of the first^t
^sdegree.^t
^s(d) A person commits an offense if, with a deadly weapon,^t
^sthe person intentionally or knowingly causes serious bodily injury^t
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^sto an officer employed by a community supervision and corrections^t
^sdepartment, an employee of a community corrections facility^t
^soperated by or for a community supervision and corrections^t
^sdepartment and listed in Section 6, Article 42.13, Code of Criminal^t
^sProcedure, a juvenile probation officer, or an employee of a^t
^sjuvenile probation department or a juvenile detention center:^t
^s(1) while the officer or employee is acting in the^t
^slawful discharge of an official duty; or^t
^s(2) in retaliation for or on account of an exercise^t
^sof official power or performance of an official duty by the officer^t
^sor employee.^t
^s(e) A person commits an offense if, with a deadly weapon,^t
^sthe person intentionally or knowingly causes serious bodily injury^t
^sto an employee of the Texas Youth Commission:^t
^s(1) while the employee is acting in the lawful^t
^sdischarge of an official duty; or^t
^s(2) in retaliation for or on account of an exercise^t
^sof official power or performance of an official duty by the^t
^semployee.^t
Sec. 22.04. Injury to a Child, Elderly Individual, or
^uDISABLED INDIVIDUAL^w ^sInvalid^t. (a) A person commits an offense
if he intentionally, knowingly, recklessly, or with criminal
negligence, by act or intentionally, knowingly, or recklessly by
omission, causes to a child, elderly individual, or ^udisabled^w
^sinvalid^t individual:
(1) serious bodily injury;
(2) serious ^sphysical or^t mental deficiency^u,^w ^sor^t
impairment^u, or injury^w; ^uor^w
(3) ^sdisfigurement or deformity; or^t
^s(4)^t bodily injury.
(b) An omission that causes a condition described by
Subsections (a)(1) through ^u(a)(3)^w ^s(a)(4) of this section^t is
conduct constituting an offense under this section if:
(1) the actor has a legal or statutory duty to act; or
(2) the actor has assumed care, custody, or control of
a child, elderly individual, or ^udisabled^w ^sinvalid^t individual.
(c) In this section:
(1) "Child" means a person 14 years of age or younger.
(2) "Elderly individual" means a person 65 years of
age or older.
(3) "^uDisabled^w ^sInvalid^t individual" means a person
older than 14 years of age who by reason of age or physical or
mental disease, defect, or injury is substantially unable to
protect himself from harm or to provide food, shelter, or medical
care for himself.
(d) The actor has assumed care, custody, or control if he
has by act, words, or course of conduct acted so as to cause a
reasonable person to conclude that he has accepted responsibility
for protection, food, shelter, and medical care for a child,
elderly individual, or ^udisabled^w ^sinvalid^t individual.
(e) An offense under Subsection (a)(1) ^uor^w^s,^t (2)^s, or (3) of^t
^sthis section^t is a felony of the first degree when the conduct is
committed intentionally or knowingly. When the conduct is engaged
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in recklessly it shall be a felony of the ^usecond^w ^sthird^t degree.
(f) An offense under Subsection ^u(a)(3)^w ^s(a)(4) of this^t
^ssection^t is a felony of the third degree when the conduct is
committed intentionally or knowingly. When the conduct is engaged
in recklessly it shall be a ^ustate jail felony^w ^sClass A^t
^smisdemeanor^t.
(g) An offense under Subsection (a) ^sof this section^t when
the person acts with criminal negligence shall be a ^ustate jail^w
^ufelony^w ^sClass A misdemeanor^t.
(h) A person who is subject to prosecution under both this
section and another section of this code may be prosecuted under
either or both sections. Section 3.04 ^sof this code^t does not
apply to criminal episodes prosecuted under both this section and
another section of this code. If a criminal episode is prosecuted
under both this section and another section of this code and
sentences are assessed for convictions under both sections, the
sentences shall run concurrently.
(i) It is an affirmative defense to prosecution under
Subsection (b)(2) ^sof this section^t that before the offense the
actor:
(1) notified in person the child, elderly individual,
or ^udisabled^w ^sinvalid^t individual that he would no longer provide
any of the care described by Subsection (d) ^sof this section^t; and
(2) notified in writing the parents or person other
than himself acting in loco parentis to the child, elderly
individual, or ^udisabled^w ^sinvalid^t individual that he would no
longer provide any of the care described by Subsection (d) ^sof this^t
^ssection^t; or
(3) notified in writing the Texas Department of Human
Services that he would no longer provide any of the care set forth
in Subsection (d) ^sof this section^t.
(j) Written notification under Subsection (i)(2) or (i)(3)
^sof this section^t is not effective unless it contains the name
and address of the actor, the name and address of the child,
elderly individual, or ^udisabled^w ^sinvalid^t individual, the type of
care provided by the actor, and the date the care was discontinued.
(k)(1) It is a defense to prosecution under this section
that the act or omission consisted of:
(A) reasonable medical care occurring under the
direction of or by a licensed physician; or
(B) emergency medical care administered in good
faith and with reasonable care by a person not licensed in the
healing arts.
(2) It is an affirmative defense to prosecution under
this section that the act or omission was based on treatment in
accordance with the tenets and practices of a recognized religious
method of healing with a generally accepted record of efficacy. ^uIt^w
^uis an affirmative defense to prosecution for a person charged with^w
^uan act of omission under this section causing to a child, elderly^w
^uindividual, or disabled individual a condition described by^w
^uSubsection (a)(1), (2), or (3) that:^w
^u(A) there is no evidence that, on the date prior^w
^uto the offense charged, the defendant was aware of an incident of^w
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^uinjury to the child, elderly individual, or disabled individual and^w
^ufailed to report the incident; and^w
^u(B) the person:^w
^u(i) was a victim of family violence, as^w
^uthat term is defined by Section 71.01, Family Code, committed by a^w
^uperson who is also charged with an offense against the child,^w
^uelderly individual, or disabled individual under this section or^w
^uany other section of this title;^w
^u(ii) did not cause a condition described^w
^uby Subsection (a)(1), (2), or (3); and^w
^u(iii) did not reasonably believe at the^w
^utime of the omission that an effort to prevent the person also^w
^ucharged with an offense against the child, elderly individual, or^w
^udisabled individual from committing the offense would have an^w
^ueffect.^w
Sec. 22.041. Abandoning or Endangering Child. (a) In this
section, "abandon" means to leave a child in any place without
providing reasonable and necessary care for the child, under
circumstances under which no reasonable, similarly situated adult
would leave a child of that age and ability.
(b) A person commits an offense if, having custody, care, or
control of a child younger than 15 years, he intentionally abandons
the child in any place under circumstances that expose the child to
an unreasonable risk of harm.
(c) A person commits an offense if he intentionally,
knowingly, recklessly, or with criminal negligence, by act or
omission, engages in conduct that places a child younger than 15
years in imminent danger of death, bodily injury, or physical or
mental impairment.
(d) Except as provided by Subsection (e) ^sof this section^t,
an offense under Subsection (b) ^sof this section^t is:
(1) a ^ustate jail felony^w ^sClass A misdemeanor^t if the
actor abandoned the child with intent to return for the child; or
(2) a felony of the third degree if the actor
abandoned the child without intent to return for the child.
(e) An offense under Subsection (b) ^sof this section^t is a
felony of the second degree if the actor abandons the child under
circumstances that a reasonable person would believe would place
the child in imminent danger of death, bodily injury, or physical
or mental impairment.
(f) An offense under Subsection (c) ^sof this section^t is a
^ustate jail felony^w ^sClass A misdemeanor^t.
Sec. 22.05. ^uDEADLY^w ^sReckless^t Conduct. (a) A person
commits an offense if he recklessly engages in conduct that places
another in imminent danger of serious bodily injury.
(b) ^uA person commits an offense if he knowingly discharges a^w
^ufirearm at or in the direction of:^w
^u(1) one or more individuals; or^w
^u(2) a habitation, building, or vehicle and is reckless^w
^uas to whether the habitation, building, or vehicle is occupied.^w
^u(c)^w Recklessness and danger are presumed if the actor
knowingly pointed a firearm at or in the direction of another
whether or not the actor believed the firearm to be loaded.
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^u(d) For purposes of this section, "building," "habitation,"^w
^uand "vehicle" have the meanings assigned those terms by Section^w
^u30.01.^w
^u(e)^w ^s(c)^t An offense under ^uSubsection (a)^w ^sthis section^t is
a Class ^uA^w ^sB^t misdemeanor. ^uAn offense under Subsection (b) is a^w
^ufelony of the third degree.^w
Sec. 22.06. Consent as Defense to Assaultive Conduct. The
victim's effective consent or the actor's reasonable belief that
the victim consented to the actor's conduct is a defense to
prosecution under Section 22.01 (Assault), 22.02 (Aggravated
Assault), or 22.05 (^uDeadly^w ^sReckless^t Conduct) ^sof this code^t if:
(1) the conduct did not threaten or inflict serious
bodily injury; or
(2) the victim knew the conduct was a risk of:
(A) his occupation;
(B) recognized medical treatment; or
(C) a scientific experiment conducted by
recognized methods.
Sec. 22.07. Terroristic Threat. (a) A person commits an
offense if he threatens to commit any offense involving violence to
any person or property with intent to:
(1) cause a reaction of any type to his threat by an
official or volunteer agency organized to deal with emergencies;
(2) place any person in fear of imminent serious
bodily injury; or
(3) prevent or interrupt the occupation or use of a
building; room; place of assembly; place to which the public has
access; place of employment or occupation; aircraft, automobile, or
other form of conveyance; or other public place; or
(4) cause impairment or interruption of public
communications, public transportation, public water, gas, or power
supply or other public service.
(b) An offense under Subdivision (1) or (2) of Subsection
(a) ^sof this section^t is a Class B misdemeanor. An offense under
Subdivision (3) of Subsection (a) ^sof this section^t is a Class A
misdemeanor. An offense under Subdivision (4) of Subsection (a)
^sof this section^t is a felony of the third degree.
Sec. 22.08. Aiding Suicide. (a) A person commits an
offense if, with intent to promote or assist the commission of
suicide by another, he aids or attempts to aid the other to commit
or attempt to commit suicide.
(b) An offense under this section is a Class C misdemeanor
unless the actor's conduct causes suicide or attempted suicide that
results in serious bodily injury, in which event the offense is a
^ustate jail^w felony ^sof the third degree^t.
Sec. 22.09. Tampering With Consumer Product. (a) In this
section:
(1) "Consumer Product" means any product offered for
sale to or for consumption by the public and includes "food" and
"drugs" as those terms are defined in Section 431.002, Health and
Safety Code.
(2) "Tamper" means to alter or add a foreign substance
to a consumer product to make it probable that the consumer product
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will cause serious bodily injury.
(b) A person commits an offense if he knowingly or
intentionally tampers with a consumer product knowing that the
consumer product will be offered for sale to the public or as a
gift to another.
(c) A person commits an offense if he knowingly or
intentionally threatens to tamper with a consumer product with the
intent to cause fear, to affect the sale of the consumer product,
or to cause bodily injury to any person.
(d) An offense under Subsection (b) ^sof this section^t is a
felony of the second degree unless a person suffers serious bodily
injury, in which event it is a felony of the first degree. An
offense under Subsection (c) ^sof this section^t is a felony of the
third degree.
Sec. 22.10. LEAVING A CHILD IN A VEHICLE. (a) A person
commits an offense if he intentionally or knowingly leaves a child
in a motor vehicle for longer than five minutes, knowing that the
child is:
(1) younger than seven years of age; and
(2) not attended by an individual in the vehicle who
is 14 years of age or older.
(b) An offense under this section is a Class C misdemeanor.
TITLE 6. OFFENSES AGAINST THE FAMILY
CHAPTER 25. OFFENSES AGAINST THE FAMILY
Sec. 25.01. Bigamy. (a) An individual commits an offense
if:
(1) he is legally married and he:
(A) purports to marry or does marry a person
other than his spouse in this state, or any other state or foreign
country, under circumstances that would, but for the actor's prior
marriage, constitute a marriage; or
(B) lives with a person other than his spouse in
this state under the appearance of being married; or
(2) he knows that a married person other than his
spouse is married and he:
(A) purports to marry or does marry that person
in this state, or any other state or foreign country, under
circumstances that would, but for the person's prior marriage,
constitute a marriage; or
(B) lives with that person in this state under
the appearance of being married.
(b) For purposes of this section, "under the appearance of
being married" means holding out that the parties are married with
cohabitation and an intent to be married by either party.
(c) It is a defense to prosecution under Subsection (a)(1)
^sof this section^t that the actor reasonably believed that his
marriage was void or had been dissolved by death, divorce, or
annulment.
(d) For the purposes of this section, the lawful wife or
husband of the actor may testify both for or against the actor
concerning proof of the original marriage.
(e) An offense under this section is a ^uClass A misdemeanor^w
^sfelony of the third degree^t.
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Sec. 25.02. ^uProhibited Sexual Conduct^w ^sIncest^t. (a) An
individual commits an offense if he engages in sexual intercourse
or deviate sexual intercourse with a person he knows to be, without
regard to legitimacy:
(1) his ancestor or descendant by blood or adoption;
(2) his stepchild or stepparent, while the marriage
creating that relationship exists;
(3) his parent's brother or sister of the whole or
half blood;
(4) his brother or sister of the whole or half blood
or by adoption; or
(5) the children of his brother or sister of the whole
or half blood or by adoption.
(b) For purposes of this section:
(1) "Deviate sexual intercourse" means any contact
between the genitals of one person and the mouth or anus of another
person with intent to arouse or gratify the sexual desire of any
person.
(2) "Sexual intercourse" means any penetration of the
female sex organ by the male sex organ.
(c) An offense under this section is a felony of the third
degree.
Sec. 25.03. Interference With Child Custody. (a) A person
commits an offense if he takes or retains a child younger than 18
years when he:
(1) knows that his taking or retention violates the
express terms of a judgment or order of a court disposing of the
child's custody; or
(2) has not been awarded custody of the child by a
court of competent jurisdiction, knows that a suit for divorce or a
civil suit or application for habeas corpus to dispose of the
child's custody has been filed, and takes the child out of the
geographic area of the counties composing the judicial district if
the court is a district court or the county if the court is a
statutory county court, without the permission of the court and
with the intent to deprive the court of authority over the child.
(b) A noncustodial parent commits an offense if, with the
intent to interfere with the lawful custody of a child younger than
18 years, he knowingly entices or persuades the child to leave the
custody of the custodial parent, guardian, or person standing in
the stead of the custodial parent or guardian of the child.
(c) It is a defense to prosecution under Subsection (a)(2)
^sof this section^t that the actor returned the child to the
geographic area of the counties composing the judicial district if
the court is a district court or the county if the court is a
statutory county court, within three days after the date of the
commission of the offense.
(d) An offense under this section is a ^ustate jail^w felony ^sof^t
^sthe third degree^t.
Sec. 25.031. Agreement to Abduct from Custody. (a) A
person commits an offense if the person agrees, for remuneration or
the promise of remuneration, to abduct a child ^uyounger than 18^w
^uyears of age^w by force, threat of force, misrepresentation, stealth,
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or unlawful entry, knowing that the child is under the care and
control of a person having custody or physical possession of the
child under a court order or under the care and control of another
person who is exercising care and control with the consent of a
person having custody or physical possession under a court order.
(b) An offense under this section is a ^ustate jail^w felony ^sof^t
^sthe third degree^t.
Sec. 25.04. Enticing a Child. (a) A person commits an
offense if, with the intent to interfere with the lawful custody of
a child younger than 18 years, he knowingly entices, persuades, or
takes the child from the custody of the parent or guardian or
person standing in the stead of the parent or guardian of such
child.
(b) An offense under this section is a Class B misdemeanor.
Sec. 25.05. Criminal Nonsupport. (a) An individual commits
an offense if he intentionally or knowingly fails to provide
support for his child younger than 18 years of age, or for his
child who is the subject of a court order requiring the individual
to support the child.
(b) For purposes of this section, "child" includes a child
born out of wedlock whose paternity has either been acknowledged by
the actor or has been established in a civil suit under the Family
Code or the law of another state.
(c) Under this section, a conviction may be had on the
uncorroborated testimony of a party to the offense.
(d) It is an affirmative defense to prosecution under this
section that the actor could not provide support for his child.
(e) The pendency of a prosecution under this section does
not affect the power of a court to enter an order for child support
under the Family Code.
(f) ^sExcept as provided in Subsection (g) of this section,^t
^san offense under this section is a Class A misdemeanor.^t
^s(g)^t An offense under this section is a ^ustate jail^w felony
^sof the third degree if the actor:^t
^s(1) has been convicted one or more times under this^t
^ssection; or^t
^s(2) commits the offense while residing in another^t
^sstate^t.
Sec. 25.06. ^sSolicitation of a Child^t^s. (a) A person commits^t
^san offense if he entices, persuades, or invites a child younger^t
^sthan 14 years to enter a vehicle, building, structure, or enclosed^t
^sarea with intent to engage in or propose engaging in sexual^t
^sintercourse, deviate sexual intercourse, or sexual contact with the^t
^schild or with intent to expose his anus or any part of his genitals^t
^sto the child.^t
^s(b) The definitions of "sexual intercourse," "deviate^t
^ssexual intercourse," and "sexual contact" in Chapter 21 of this^t
^scode apply to this section.^t
^s(c) An offense under this section is a Class A misdemeanor^t
^sunless the actor takes the child out of the county of residence of^t
^sthe parent, guardian, or person standing in the stead of the parent^t
^sor guardian of the child, in which event the offense is a felony of^t
^sthe third degree.^t
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^sSec. 25.07.^t Harboring Runaway Child. (a) A person
commits an offense if he knowingly harbors a child and he is
criminally negligent about whether the child:
(1) is younger than 18 years; and
(2) has escaped from the custody of a peace officer, a
probation officer, the Texas Youth Council, or a detention facility
for children, or is voluntarily absent from the child's home
without the consent of the child's parent or guardian for a
substantial length of time or without the intent to return.
(b) It is a defense to prosecution under this section that
the actor was related to the child within the second degree by
consanguinity or affinity, as determined under Article 5996h,
Revised Statutes.
(c) It is a defense to prosecution under this section that
the actor notified:
(1) the person or agency from which the child escaped
or a law enforcement agency of the presence of the child within 24
hours after discovering that the child had escaped from custody; or
(2) a law enforcement agency or a person at the
child's home of the presence of the child within 24 hours after
discovering that the child was voluntarily absent from home without
the consent of the child's parent or guardian.
(d) An offense under this section is a Class A misdemeanor.
(e) On the receipt of a report from a peace officer,
probation officer, the Texas Youth Council, a foster home, or a
detention facility for children that a child has escaped its
custody or upon receipt of a report from a parent, guardian,
conservator, or legal custodian that a child is missing, a law
enforcement agency shall immediately enter a record of the child
into the National Crime Information Center.
Sec. ^u25.07^w ^s25.08^t. Violation of a Protective Order. (a) A
person commits an offense if, in violation of an order issued under
Section 3.581, Section 71.11, or Section 71.12, Family Code, the
person knowingly or intentionally:
(1) commits family violence;
(2) directly communicates with a member of the family
or household in a threatening or harassing manner, communicates a
threat through any person to a member of the family or household,
and, if the order prohibits any communication with a member of the
family or household, communicates in any manner with the member of
the family or household except through the person's attorney or a
person appointed by the court; or
(3) goes to or near any of the following places as
specifically described in the protective order:
(A) the residence or place of employment or
business of a member of the family or household; or
(B) any child care facility, residence, or
school where a child protected by the protective order normally
resides or attends.
(b) For the purposes of this section, "family violence,"
"family," "household," and "member of a household" have the
meanings assigned by Section 71.01, Family Code.
(c) If conduct constituting an offense under this section
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also constitutes an offense under another section of this code, the
actor may be prosecuted under either section or under both
sections.
(d) Reconciliatory actions or agreements made by persons
affected by a protective order do not affect the validity of the
order or the duty of a peace officer to enforce this section.
(e) A peace officer investigating conduct that may
constitute an offense under this section for a violation of a
protective order may not arrest a person protected by that order
for a violation of that order.
(f) It is not a defense to prosecution under this section
that certain information has been excluded, as provided by Section
71.111, Family Code, from an order to which this section applies.
(g) An offense under this section is a Class A misdemeanor.
^sHowever, if it is shown at the trial for the offense that the^t
^sactor has been previously convicted under this section two or more^t
^stimes, the offense is a felony of the third degree.^t
Sec. ^u25.08^w ^s25.11^t. Sale or Purchase of Child. (a) A
person commits an offense if he:
(1) possesses a child ^uyounger than 18 years of age^w or
has the custody, conservatorship, or guardianship of a child
^uyounger than 18 years of age^w, whether or not he has actual
possession of the child, and he offers to accept, agrees to accept,
or accepts a thing of value for the delivery of the child to
another or for the possession of the child by another for purposes
of adoption; or
(2) offers to give, agrees to give, or gives a thing
of value to another for acquiring or maintaining the possession of
a child for the purpose of adoption.
(b) It is an exception to the application of this section
that the thing of value is:
(1) a fee paid to a child-placing agency as authorized
by law;
(2) a fee paid to an attorney or physician for
services rendered in the usual course of legal or medical practice;
or
(3) a reimbursement of legal or medical expenses
incurred by a person for the benefit of the child.
(c) An offense under this section is a felony of the third
degree ^sunless the actor has been convicted previously under this^t
^ssection, in which event the offense is a felony of the second^t
^sdegree^t.
TITLE 7. OFFENSES AGAINST PROPERTY
CHAPTER 28. ARSON, CRIMINAL MISCHIEF, AND
OTHER PROPERTY DAMAGE OR DESTRUCTION
Sec. 28.01. Definitions. In this chapter:
(1) "Habitation" means a structure or vehicle that is
adapted for the overnight accommodation of persons and includes:
(A) each separately secured or occupied portion
of the structure or vehicle; and
(B) each structure appurtenant to or connected
with the structure or vehicle.
(2) "Building" means any structure or enclosure
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intended for use or occupation as a habitation or for some purpose
of trade, manufacture, ornament, or use.
(3) "Property" means:
(A) real property;
(B) tangible or intangible personal property,
including anything severed from land; or
(C) a document, including money, that represents
or embodies anything of value.
(4) "Vehicle" includes any device in, on, or by which
any person or property is or may be propelled, moved, or drawn in
the normal course of commerce or transportation.
(5) "Open-space land" means real property that is
undeveloped for the purpose of human habitation.
(6) "Controlled burning" means the burning of unwanted
vegetation with the consent of the owner of the property on which
the vegetation is located and in such a manner that the fire is
controlled and limited to a designated area.
Sec. 28.02. Arson. (a) A person commits an offense if he
starts a fire or causes an explosion with intent to destroy or
damage:
(1) any vegetation, fence, or structure on open-space
land; or
(2) any building, habitation, or vehicle:
(A) knowing that it is within the limits of an
incorporated city or town;
(B) knowing that it is insured against damage or
destruction;
(C) knowing that it is subject to a mortgage or
other security interest;
(D) knowing that it is located on property
belonging to another;
(E) knowing that it has located within it
property belonging to another; or
(F) when he is reckless about whether the
burning or explosion will endanger the life of some individual or
the safety of the property of another.
(b) It is an exception to the application of Subsection
(a)(1) ^sof this section^t that the fire or explosion was a part of
the controlled burning of open-space land.
(c) It is a defense to prosecution under Subsection
(a)(2)(A) ^sof this section^t that prior to starting the fire or
causing the explosion, the actor obtained a permit or other written
authorization granted in accordance with a city ordinance, if any,
regulating fires and explosions.
(d) An offense under this section is a felony of the second
degree, unless bodily injury or death is suffered by any person by
reason of the commission of the offense, in which event it is a
felony of the first degree.
Sec. 28.03. Criminal Mischief. (a) A person commits an
offense if, without the effective consent of the owner:
(1) he intentionally or knowingly damages or destroys
the tangible property of the owner;
(2) he intentionally or knowingly tampers with the
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tangible property of the owner and causes pecuniary loss or
substantial inconvenience to the owner or a third person; or
(3) he intentionally or knowingly makes markings,
including inscriptions, slogans, drawings, or paintings, on the
tangible property of the owner.
(b) Except as provided by Subsection (f), an offense under
this section is:
(1) a Class C misdemeanor if:
(A) the amount of pecuniary loss is less than
$20; or
(B) except as provided in Subdivision
^u(3)^w^s(4)^t(B) ^sof this subsection^t, it causes substantial
inconvenience to others;
(2) a Class B misdemeanor if the amount of pecuniary
loss is $20 or more but less than ^u$500^w ^s$200^t;
(3) a Class A misdemeanor if the amount of pecuniary
loss is^u:^w
^u(A) $500^w ^s$200^t or more but less than ^u$1,500^w
^s$750^t; ^uor^w
^u(B) less than $1,500 and the actor causes in^w
^uwhole or in part impairment or interruption of public^w
^ucommunications, public transportation, public water, gas, or power^w
^usupply, or other public service, or causes to be diverted in whole,^w
^uin part, or in any manner, including installation or removal of any^w
^udevice for any such purpose, any public communications, public^w
^uwater, gas, or power supply;^w
(4) a ^ustate jail^w felony ^sof the third degree^t if^s:^t
^s(A)^t the amount of pecuniary loss is ^u$1,500^w
^s$750^t or more but less than $20,000;
^s(B) regardless of the amount of pecuniary loss,^t
^sthe actor causes in whole or in part impairment or interruption of^t
^spublic communications, public transportation, public water, gas, or^t
^spower supply, or other public service, or diverts, or causes to be^t
^sdiverted in whole, in part, or in any manner, including^t
^sinstallation or removal of any device for such purpose, any public^t
^scommunications, public water, gas, or power supply;^t
^s(C) regardless of the amount of pecuniary loss,^t
^sthe property is one or more head of cattle, horses, sheep, swine,^t
^sor goats;^t
^s(D) regardless of the amount of pecuniary loss,^t
^sthe property was a fence used for the production of cattle, horses,^t
^ssheep, swine, or goats; or^t
^s(E) regardless of the amount of pecuniary loss,^t
^sthe damage or destruction was inflicted by branding one or more^t
^shead of cattle, horses, sheep, swine, or goats.^t
(5) a felony of the ^uthird^w ^ssecond^t degree if the
amount of the pecuniary loss is $20,000 or more ^ubut less than^w
^u$100,000;^w
^u(6) a felony of the second degree if the amount of^w
^upecuniary loss is $100,000 or more but less than $200,000; or^w
^u(7) a felony of the first degree if the amount of^w
^upecuniary loss is $200,000 or more^w.
(c) For the purposes of this section, it shall be presumed
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that a person ^sin whose name public communications, public water,^t
^sgas, or power supply is or was last billed and^t who is receiving
the economic benefit of ^upublic communications, public water, gas,^w
^uor power^w ^ssaid communication or^t supply, has knowingly tampered
with the tangible property of the owner if the communication or
supply has been:
(1) diverted from passing through a metering device;
or
(2) prevented from being correctly registered by a
metering device; or
(3) activated by any device installed to obtain public
communications, public water, gas, or power supply without a
metering device.
(d) The term ^u"^wpublic communication, public transportation,
public water, gas, or power supply, or other public service^u"^w shall
mean, refer to, and include any such services subject to regulation
by the Public Utility Commission of Texas, the Railroad Commission
of Texas, or the Texas Water Commission or any such services
enfranchised by the State of Texas or any political subdivision
thereof.
(e) When more than one item of tangible property, belonging
to one or more owners, is damaged, destroyed, or tampered with in
violation of this section pursuant to one scheme or continuing
course of conduct, the conduct may be considered as one offense,
and the amounts of pecuniary loss to property resulting from the
damage to, destruction of, or tampering with the property may be
aggregated in determining the grade of the offense.
(f) An offense under this section is^s:^t
^s(1)^t a ^ustate jail^w felony ^sof the third degree^t if the
damage or destruction is inflicted on a place of worship ^uor human^w
^uburial, a public monument,^w or a community center that provides
medical, social, or educational programs and the amount of the
pecuniary loss to real property or to tangible personal property is
^s$20 or more but^t less than $20,000^s; or^t
^s(2) a felony of the second degree if the damage or^t
^sdestruction is inflicted on a place of worship or a community^t
^scenter that provides medical, social, or educational programs and^t
^sthe amount of the pecuniary loss to real property or to tangible^t
^spersonal property is $20,000 or more^t.
Sec. 28.04. Reckless Damage or Destruction. (a) A person
commits an offense if, without the effective consent of the owner,
he recklessly damages or destroys property of the owner.
(b) An offense under this section is a Class C misdemeanor.
Sec. 28.05. Actor's Interest in Property. It is no defense
to prosecution under this chapter that the actor has an interest in
the property damaged or destroyed if another person also has an
interest that the actor is not entitled to infringe.
Sec. 28.06. Amount of Pecuniary Loss. (a) The amount of
pecuniary loss under this chapter, if the property is destroyed,
is:
(1) the fair market value of the property at the time
and place of the destruction; or
(2) if the fair market value of the property cannot be
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ascertained, the cost of replacing the property within a reasonable
time after the destruction.
(b) The amount of pecuniary loss under this chapter, if the
property is damaged, is the cost of repairing or restoring the
damaged property within a reasonable time after the damage
occurred.
(c) The amount of pecuniary loss under this chapter for
documents, other than those having a readily ascertainable market
value, is:
(1) the amount due and collectible at maturity less
any part that has been satisfied, if the document constitutes
evidence of a debt; or
(2) the greatest amount of economic loss that the
owner might reasonably suffer by virtue of the destruction or
damage if the document is other than evidence of a debt.
(d) If the amount of pecuniary loss cannot be ascertained by
the criteria set forth in Subsections (a) through (c) ^sof this^t
^ssection^t, the amount of loss is deemed to be greater than ^u$500^w
^s$200^t but less than ^u$1,500^w ^s$750^t.
(e) If the actor proves by a preponderance of the evidence
that he gave consideration for or had a legal interest in the
property involved, the value of the interest so proven shall be
deducted from:
(1) the amount of pecuniary loss if the property is
destroyed; or
(2) the amount of pecuniary loss to the extent of an
amount equal to the ratio the value of the interest bears to the
total value of the property, if the property is damaged.
Sec. 28.07. INTERFERENCE WITH RAILROAD PROPERTY. (a) In
this section:
(1) "Railroad property" means:
(A) a train, locomotive, railroad car, caboose,
work equipment, rolling stock, safety device, switch, or connection
that is owned, leased, operated, or possessed by a railroad; or
(B) a railroad track, rail, bridge, trestle, or
right-of-way owned or used by a railroad.
(2) "Tamper" means to move, alter, or interfere with
railroad property.
(b) A person commits an offense if the person:
(1) throws an object or discharges a firearm or weapon
at a train or rail-mounted work equipment; or
(2) without the effective consent of the owner:
(A) enters or remains on railroad property,
knowing that it is railroad property;
(B) tampers with railroad property;
(C) places an obstruction on a railroad track or
right-of-way; or
(D) causes in any manner the derailment of a
train, railroad car, or other railroad property that moves on
tracks.
(c) An offense under Subsection (b)(1) ^sof this section^t is
a Class B misdemeanor unless the person causes bodily injury to
another, in which event the offense is a felony of the third
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degree.
(d) An offense under Subsection (b)(2)(A) ^sof this section^t
is a Class C misdemeanor.
(e) An offense under Subsection (b)(2)(B), (b)(2)(C), or
(b)(2)(D) ^sof this section^t is a Class C misdemeanor unless the
person causes pecuniary loss, in which event the offense is:
(1) a Class B misdemeanor if the amount of pecuniary
loss is $20 or more but less than ^u$500^w ^s$200^t;
(2) a Class A misdemeanor if the amount of pecuniary
loss is ^u$500^w ^s$200^t or more but less than ^u$1,500^w ^s$750^t;
(3) a ^ustate jail^w felony ^sof the third degree^t if the
amount of pecuniary loss is ^u$1,500^w ^s$750^t or more but less than
$20,000; ^sor^t
(4) a felony of the ^uthird^w ^ssecond^t degree if the
amount of the pecuniary loss is $20,000 or more ^ubut less than^w
^u$100,000;^w
^u(5) a felony of the second degree if the amount of^w
^upecuniary loss is $100,000 or more but less than $200,000; or^w
^u(6) a felony of the first degree if the amount of the^w
^upecuniary loss is $200,000 or more^w.
(f) The conduct described in Subsection (b)(2)(A) ^sof this^t
^ssection^t is not an offense under this section if it is undertaken
by an employee of the railroad or by a representative of a labor
organization which represents or is seeking to represent the
employees of the railroad as long as the employee or representative
has a right to engage in such conduct under the Railway Labor Act
(45 U.S.C. Section 151 et seq.).
^sSec. 28.08. INTERFERENCE WITH ANIMALS OR ANIMAL FACILITIES.^t
^s(a) In this section:^t
^s(1) "Animal" means any nonhuman vertebrate animal^t
^sused in agriculture, research, testing and exhibition, education,^t
^sor food or fiber production, but does not include an animal held^t
^sprimarily as a pet.^t
^s(2) "Animal facility" means any vehicle, building,^t
^sstructure, or premises where an animal is bred or where animals or^t
^srecords relating to animals are kept, handled, transported, housed,^t
^sor exhibited.^t
^s(3) "Tamper" means to move, alter, or interfere.^t
^s(4) "Notice" means:^t
^s(A) oral or written communication by the owner^t
^sor someone with apparent authority to act for the owner;^t
^s(B) fencing or other enclosure obviously^t
^sdesigned to exclude intruders or to contain livestock; or^t
^s(C) a sign or signs posted on the property or^t
^sat the entrance to the building, reasonably likely to come to the^t
^sattention of intruders, indicating that entry is forbidden.^t
^s(b) A person commits an offense if the person, after notice^t
^sis given and without the effective consent of the owner,^t
^sintentionally or knowingly:^t
^s(1) enters or remains in or on an animal facility;^t
^s(2) makes markings, including inscriptions, slogans,^t
^sdrawings, or paintings, on an animal facility;^t
^s(3) tampers with an animal facility;^t
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^s(4) damages or destroys an animal facility; or^t
^s(5) removes, carries away, releases, or exercises^t
^scontrol of an animal or property located in an animal facility.^t
^s(c) An offense under Subsection (b)(1) or (2) of this^t
^ssection is a Class B misdemeanor unless the person causes bodily^t
^sinjury to another or carries a deadly weapon on or about his person^t
^sduring the commission of the offense, in which event the offense is^t
^sa Class A misdemeanor.^t
^s(d) An offense under Subsection (b)(3), (4), or (5) of this^t
^ssection is a Class C misdemeanor unless the person causes pecuniary^t
^sloss, in which event the offense is:^t
^s(1) a Class B misdemeanor if the amount of pecuniary^t
^sloss is $20 or more but less than $200;^t
^s(2) a Class A misdemeanor if the amount of pecuniary^t
^sloss is $200 or more but less than $750;^t
^s(3) a felony of the third degree if the amount of^t
^specuniary loss is $750 or more but less than $20,000; or^t
^s(4) a felony of the second degree if the amount of^t
^sthe pecuniary loss is $20,000 or more.^t
CHAPTER 29. ROBBERY
Sec. 29.01. DEFINITIONS. In this chapter:
(1) "In the course of committing theft" means conduct
that occurs in an attempt to commit, during the commission, or in
immediate flight after the attempt or commission of theft.
(2) "Property" means:
(A) tangible or intangible personal property
including anything severed from land; or
(B) a document, including money, that represents
or embodies anything of value.
Sec. 29.02. ROBBERY. (a) A person commits an offense if,
in the course of committing theft as defined in Chapter 31 ^sof this^t
^scode^t and with intent to obtain or maintain control of the
property, he:
(1) intentionally, knowingly, or recklessly causes
bodily injury to another; or
(2) intentionally or knowingly threatens or places
another in fear of imminent bodily injury or death.
(b) An offense under this section is a felony of the second
degree.
Sec. 29.03. AGGRAVATED ROBBERY. (a) A person commits an
offense if he commits robbery as defined in Section 29.02 ^sof this^t
^scode^t, and he:
(1) causes serious bodily injury to another;
(2) uses or exhibits a deadly weapon; or
(3) causes bodily injury to another person or
threatens or places another person in fear of imminent bodily
injury or death, if the other person is:
(A) 65 years of age or older; or
(B) a disabled person.
(b) An offense under this section is a felony of the first
degree.
(c) In this section, "disabled person" means an individual
with a mental, physical, or developmental disability who is
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substantially unable to protect himself from harm.
CHAPTER 30. BURGLARY AND CRIMINAL TRESPASS
Sec. 30.01. Definitions. In this chapter:
(1) "Habitation" means a structure or vehicle that is
adapted for the overnight accommodation of persons, and includes:
(A) each separately secured or occupied portion
of the structure or vehicle; and
(B) each structure appurtenant to or connected
with the structure or vehicle.
(2) "Building" means any enclosed structure intended
for use or occupation as a habitation or for some purpose of trade,
manufacture, ornament, or use.
(3) "Vehicle" includes any device in, on, or by which
any person or property is or may be propelled, moved, or drawn in
the normal course of commerce or transportation, except such
devices as are classified as "habitation."
Sec. 30.02. Burglary. (a) A person commits an offense if,
without the effective consent of the owner, he:
(1) enters a habitation, or a building (or any portion
of a building) not then open to the public, with intent to commit a
felony or theft; or
(2) remains concealed, with intent to commit a felony
or theft, in a building or habitation; or
(3) enters a building or habitation and commits or
attempts to commit a felony or theft.
(b) For purposes of this section, "enter" means to intrude:
(1) any part of the body; or
(2) any physical object connected with the body.
(c) Except as provided in Subsection (d) ^sof this section^t,
an offense under this section is a^u:^w
^u(1) state jail felony if committed in a building other^w
^uthan a habitation; or^w
^u(2)^w felony of the second degree ^uif committed in a^w
^uhabitation^w.
(d) An offense under this section is a felony of the first
degree if:
(1) the premises are a habitation; ^uand^w ^sor^t
(2) any party to the offense ^uentered the habitation^w
^uwith intent to commit a felony other than felony theft^w ^sis armed^t
^swith explosives or a deadly weapon; or^t
^s(3) any party to the offense injures or attempts to^t
^sinjure anyone in effecting entry or while in the building or in^t
^simmediate flight from the building^t.
Sec. 30.03. Burglary of Coin-Operated Or Coin Collection
Machines. (a) A person commits an offense if, without the
effective consent of the owner, he breaks or enters into any
coin-operated machine, coin collection machine, or other
coin-operated or coin collection receptacle, contrivance,
apparatus, or equipment used for the purpose of providing lawful
amusement, sales of goods, services, or other valuable things, or
telecommunications with intent to obtain property or services.
(b) For purposes of this section, "entry" includes every
kind of entry except one made with the effective consent of the
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owner.
(c) An offense under this section is a Class A misdemeanor.
Sec. 30.04. Burglary of Vehicles. (a) A person commits an
offense if, without the effective consent of the owner, he breaks
into or enters a vehicle or any part of a vehicle with intent to
commit any felony or theft.
(b) For purposes of this section, "enter" means to intrude:
(1) any part of the body; or
(2) any physical object connected with the body.
(c) An offense under this section is a ^uClass A misdemeanor^w
^sfelony of the third degree^t.
Sec. 30.05. Criminal Trespass. (a) A person commits an
offense if he enters or remains on property or in a building of
another without effective consent and he:
(1) had notice that the entry was forbidden; or
(2) received notice to depart but failed to do so.
(b) For purposes of this section:
(1) "Entry" means the intrusion of the entire body.
(2) "Notice" means:
(A) oral or written communication by the owner
or someone with apparent authority to act for the owner;
(B) fencing or other enclosure obviously
designed to exclude intruders or to contain livestock; ^sor^t
(C) a sign or signs posted on the property or at
the entrance to the building, reasonably likely to come to the
attention of intruders, indicating that entry is forbidden^u; or^w
^u(D) the visible presence on the property of a^w
^ucrop grown for human consumption that is under cultivation, in the^w
^uprocess of being harvested, or marketable if harvested at the time^w
^uof entry^w.
(3) "Shelter center" has the meaning assigned by
Section 51.002(1), Human Resources Code.
(c) It is a defense to prosecution under this section that
the actor at the time of the offense was a fire fighter or
emergency medical services personnel, as that term is defined by
Section 773.003, Health and Safety Code, acting in the lawful
discharge of an official duty under exigent circumstances.
(d) An offense under this section is a Class B misdemeanor
unless it is committed in a habitation or a shelter center or
unless the actor carries a deadly weapon on or about his person
during the commission of the offense, in which event it is a Class
A misdemeanor.
CHAPTER 31. THEFT
Sec. 31.01. Definitions. In this chapter:
(1) ^s"Coercion" means a threat, however communicated:^t
^s(A) to commit an offense;^t
^s(B) to inflict bodily injury in the future on^t
^sthe person threatened or another;^t
^s(C) to accuse a person of any offense; or^t
^s(D) to expose a person to hatred, contempt, or^t
^sridicule;^t
^s(E) to harm the credit or business repute of^t
^sany person; or^t
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^s(F) to take or withhold action as a public^t
^sservant, or to cause a public servant to take or withhold action.^t
^s(2)^t "Deception" means:
(A) creating or confirming by words or conduct a
false impression of law or fact that is likely to affect the
judgment of another in the transaction, and that the actor does not
believe to be true;
(B) failing to correct a false impression of law
or fact that is likely to affect the judgment of another in the
transaction, that the actor previously created or confirmed by
words or conduct, and that the actor does not now believe to be
true;
(C) preventing another from acquiring
information likely to affect his judgment in the transaction;
(D) selling or otherwise transferring or
encumbering property without disclosing a lien, security interest,
adverse claim, or other legal impediment to the enjoyment of the
property, whether the lien, security interest, claim, or impediment
is or is not valid, or is or is not a matter of official record; or
(E) promising performance that is likely to
affect the judgment of another in the transaction and that the
actor does not intend to perform or knows will not be performed,
except that failure to perform the promise in issue without other
evidence of intent or knowledge is not sufficient proof that the
actor did not intend to perform or knew the promise would not be
performed.
^u(2)^w ^s(3)^t "Deprive" means:
(A) to withhold property from the owner
permanently or for so extended a period of time that a major
portion of the value or enjoyment of the property is lost to the
owner;
(B) to restore property only upon payment of
reward or other compensation; or
(C) to dispose of property in a manner that
makes recovery of the property by the owner unlikely.
^u(3)^w ^s(4)^t "Effective consent" includes consent by a
person legally authorized to act for the owner. Consent is not
effective if:
(A) induced by deception or coercion;
(B) given by a person the actor knows is not
legally authorized to act for the owner;
(C) given by a person who by reason of youth,
mental disease or defect, or intoxication is known by the actor to
be unable to make reasonable property dispositions; ^sor^t
(D) given solely to detect the commission of an
offense^u; or^w
^u(E) given by a person who by reason of advanced^w
^uage is known by the actor to have a diminished capacity to make^w
^uinformed and rational decisions about the reasonable disposition of^w
^uproperty^w.
^u(4)^w ^s(5)^t "Appropriate" means:
(A) to bring about a transfer or purported
transfer of title to or other nonpossessory interest in property,
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whether to the actor or another; or
(B) to acquire or otherwise exercise control
over property other than real property.
^u(5)^w ^s(6)^t "Property" means:
(A) real property;
(B) tangible or intangible personal property
including anything severed from land; or
(C) a document, including money, that represents
or embodies anything of value.
^u(6)^w ^s(7)^t "Service" includes:
(A) labor and professional service;
(B) telecommunication, public utility, ^uor^w ^sand^t
transportation service;
(C) lodging, restaurant service, and
entertainment; and
(D) the supply of a motor vehicle or other
property for use.
^u(7)^w ^s(8)^t "Steal" means to acquire property or service
by theft.
^u(8)^w ^s(9)^t "Certificate of title" has the meaning
assigned by Section 24, Certificate of Title Act (Article 6687-1,
Vernon's Texas Civil Statutes).
^u(9)^w ^s(10)^t "Used or secondhand motor vehicle" means a
used car, as that term is defined by Section 10, Certificate of
Title Act (Article 6687-1, Vernon's Texas Civil Statutes).
Sec. 31.02. Consolidation of Theft Offenses. Theft as
defined in Section 31.03 ^sof this code^t constitutes a single
offense superseding the separate offenses previously known as
theft, theft by false pretext, conversion by a bailee, theft from
the person, shoplifting, acquisition of property by threat,
swindling, swindling by worthless check, embezzlement, extortion,
receiving or concealing embezzled property, and receiving or
concealing stolen property.
Sec. 31.03. Theft. (a) A person commits an offense if he
unlawfully appropriates property with intent to deprive the owner
of property.
(b) Appropriation of property is unlawful if:
(1) it is without the owner's effective consent;
(2) the property is stolen and the actor appropriates
the property knowing it was stolen by another; or
(3) property in the custody of any law enforcement
agency was explicitly represented by any law enforcement agent to
the actor as being stolen and the actor appropriates the property
believing it was stolen by another.
(c) For purposes of Subsection (b) ^sof this section^t:
(1) evidence that the actor has previously
participated in recent transactions other than, but similar to,
that which the prosecution is based is admissible for the purpose
of showing knowledge or intent and the issues of knowledge or
intent are raised by the actor's plea of not guilty;
(2) the testimony of an accomplice shall be
corroborated by proof that tends to connect the actor to the crime,
but the actor's knowledge or intent may be established by the
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uncorroborated testimony of the accomplice;
(3) an actor engaged in the business of buying and
selling used or secondhand personal property, or lending money on
the security of personal property deposited with him, is presumed
to know upon receipt by the actor of stolen property (other than a
motor vehicle subject to Article 6687-1, Vernon's Texas Civil
Statutes) that the property has been previously stolen from another
if the actor pays for or loans against the property $25 or more (or
consideration of equivalent value) and the actor knowingly or
recklessly:
(A) fails to record the name, address, and
physical description or identification number of the seller or
pledgor;
(B) fails to record a complete description of
the property, including the serial number, if reasonably available,
or other identifying characteristics; or
(C) fails to obtain a signed warranty from the
seller or pledgor that the seller or pledgor has the right to
possess the property. It is the express intent of this provision
that the presumption arises unless the actor complies with each of
the numbered requirements;
(4) for the purposes of Subdivision (3)(A) ^sof this^t
^ssubsection^t, "identification number" means driver's license number,
military identification number, identification certificate, or
other official number capable of identifying an individual;
(5) stolen property does not lose its character as
stolen when recovered by any law enforcement agency;
(6) an actor engaged in the business of obtaining
abandoned or wrecked motor vehicles or parts of an abandoned or
wrecked motor vehicle for resale, disposal, scrap, repair,
rebuilding, demolition, or other form of salvage is presumed to
know on receipt by the actor of stolen property that the property
has been previously stolen from another if the actor knowingly or
recklessly:
(A) fails to maintain an accurate and legible
inventory of each ^smajor^t motor vehicle component part purchased by
or delivered to the actor, including the date of purchase or
delivery, the name, age, address, sex, and driver's license number
of the seller or person making the delivery, the license plate
number of the motor vehicle in which the part was delivered, a
complete description of the part, and the vehicle identification
number of the motor vehicle from which the part was removed, or in
lieu of maintaining an inventory, fails to record the name and
certificate of inventory number of the person who dismantled the
motor vehicle from which the part was obtained;
(B) fails on receipt of a motor vehicle to
obtain a certificate of authority, sales receipt, or transfer
document as required by Article V, Section 1, Chapter 741, Acts of
the 67th Legislature, Regular Session, 1981 (Article 4477-9a,
Vernon's Texas Civil Statutes), or a certificate of title showing
that the motor vehicle is not subject to a lien or that all
recorded liens on the motor vehicle have been released; or
(C) fails on receipt of a motor vehicle to
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immediately remove an unexpired license plate from the motor
vehicle, to keep the plate in a secure and locked place, or to
maintain an inventory, on forms provided by the ^uTexas^w ^sState^t
Department of ^sHighways and Public^t Transportation, of license
plates kept under this paragraph, including for each plate or set
of plates the license plate number and the make, motor number, and
vehicle identification number of the motor vehicle from which the
plate was removed; ^uand^w
(7) an actor who purchases or receives a used or
secondhand motor vehicle is presumed to know on receipt by the
actor of the motor vehicle that the motor vehicle has been
previously stolen from another if the actor knowingly or
recklessly:
(A) fails to report to the ^uTexas^w ^sState^t
Department of ^sHighways and Public^t Transportation the failure of
the person who sold or delivered the motor vehicle to the actor to
deliver to the actor a properly executed certificate of title to
the motor vehicle at the time the motor vehicle was delivered; or
(B) fails to file with the county tax
assessor-collector of the county in which the actor received the
motor vehicle, not later than the 20th day after the date the actor
received the motor vehicle, the registration license receipt and
certificate of title or evidence of title delivered to the actor in
accordance with Section 2, Chapter 364, Acts of the 50th
Legislature, Regular Session, 1947 (Article 6687-6, Vernon's Texas
Civil Statutes), at the time the motor vehicle was delivered^s; and^t
^s(8) an actor who possesses a shopping cart, laundry^t
^scart, or container that has a name or mark and is not on the^t
^spremises of the owner or an adjacent parking area is presumed to^t
^shave appropriated property without the owner's effective consent^t.
(d) It is not a defense to prosecution under this section
that:
(1) the offense occurred as a result of a deception or
strategy on the part of a law enforcement agency, including the use
of an undercover operative or peace officer;
(2) the actor was provided by a law enforcement agency
with a facility in which to commit the offense or an opportunity to
engage in conduct constituting the offense; or
(3) the actor was solicited to commit the offense by a
peace officer, and the solicitation was of a type that would
encourage a person predisposed to commit the offense to actually
commit the offense, but would not encourage a person not
predisposed to commit the offense to actually commit the offense.
(e) Except as provided by Subsection (f) ^sof this section^t,
an offense under this section is:
(1) a Class C misdemeanor if the value of the property
stolen is less than $20;
(2) a Class B misdemeanor if:
(A) the value of the property stolen is $20 or
more but less than ^u$500^w ^s$200^t; or
(B) the value of the property stolen is less
than $20 and the defendant has previously been convicted of any
grade of theft;
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(3) a Class A misdemeanor if^s:^t
^s(A)^t the value of the property stolen is ^u$500^w
^s$200^t or more but less than ^u$1,500^w ^s$750; or^t
^s(B) the property stolen is one firearm, as^t
^sdefined by Section 46.01 of this code, and is valued at less than^t
^s$400^t;
(4) a ^ustate jail^w felony ^sof the third degree^t if:
(A) the value of the property stolen is ^u$1,500^w
^s$750^t or more but less than $20,000, or the property is one or
more head of cattle, horses, sheep, swine, or goats or any part
thereof under the value of $20,000;
(B) regardless of value, the property is stolen
from the person of another or from a human corpse or grave;
(C) the property stolen is ^ua^w ^sone^t firearm, as
defined by Section 46.01 ^sof this code, and is valued at more than^t
^s$400^t; ^uor^w
(D) ^sthe property stolen is two or more^t
^sfirearms, as defined by Section 46.01 of this code; or^t
^s(E)^t the value of the property stolen is less
than ^u$1,500^w ^s$750^t and the defendant has been previously convicted
two or more times of any grade of theft;
(5) a felony of the ^uthird^w ^ssecond^t degree if^s:^t
^s(A) the value of the property stolen is less^t
^sthan $100,000 and the property is:^t
^s(i) combustible hydrocarbon natural or^t
^ssynthetic natural gas, or crude petroleum oil;^t
^s(ii) equipment designed for use in^t
^sexploration for or production of natural gas or crude petroleum^t
^soil; or^t
^s(iii) equipment designed for use in^t
^sremedial or diagnostic operations on gas or crude petroleum oil^t
^swells;^t
^s(B)^t the value of the property stolen is
$20,000 or more but less than $100,000; ^sor^t
^s(C) the value of the property is less than^t
^s$100,000 and the property was unlawfully appropriated or attempted^t
^sto be unlawfully appropriated by threat to commit a felony offense^t
^sagainst the person or property of the person threatened or another^t
^sor to withhold information about the location or purported location^t
^sof a bomb, poison, or other harmful object that threatens to harm^t
^sthe person or property of the person threatened or another person;^t
^sor^t
(6) a felony of the ^usecond^w ^sfirst^t degree if^s:^t
^s(A)^t the value of the property stolen is
$100,000 or more ^ubut less than $200,000^w; or
^u(7) a felony of the first degree if the value of the^w
^uproperty stolen is $200,000 or more^w ^s(B) the value of the property^t
^sis $100,000 or more and the property was unlawfully appropriated or^t
^sattempted to be unlawfully appropriated in the manner described by^t
^sSubdivision (5)(C) of this subsection^t.
(f) An offense described for purposes of punishment by
^uSubsections^w ^sSubsection^t (e)^u(1)-(6)^w ^sof this section^t is
increased to the next higher category of offense if it is shown on
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the trial of the offense that:
(1) the actor was a public servant at the time of the
offense; and
(2) the property appropriated came into the actor's
custody, possession, or control by virtue of his status as a public
servant.
^s(g) For the purposes of Subsection (c)(8) of this section,^t
^s"shopping cart," "laundry cart," "container," and "name or mark"^t
^shave the respective meanings assigned by Section 17.31, Business &^t
^sCommerce Code.^t
Sec. 31.04. Theft of Service. (a) A person commits theft
of service if, with intent to avoid payment for service that he
knows is provided only for compensation:
(1) he intentionally or knowingly secures performance
of the service by deception, threat, or false token;
(2) having control over the disposition of services of
another to which he is not entitled, he intentionally or knowingly
diverts the other's services to his own benefit or to the benefit
of another not entitled to them; or
(3) having control of personal property under a
written rental agreement, he holds the property beyond the
expiration of the rental period without the effective consent of
the owner of the property, thereby depriving the owner of the
property of its use in further rentals.
(b) For purposes of this section, intent to avoid payment is
presumed if:
(1) the actor absconded without paying for the service
in circumstances where payment is ordinarily made immediately upon
rendering of the service, as in hotels, restaurants, and comparable
establishments;
(2) the actor failed to return the property held under
a rental agreement within 10 days after receiving notice demanding
return; or
(3) the actor returns property held under a rental
agreement after the expiration of the rental agreement and fails to
pay the applicable rental charge for the property within 10 days
after the date on which the actor received notice demanding
payment.
(c) For purposes of Subsection (b)(2) ^sof this section^t,
notice shall be notice in writing, sent by registered or certified
mail with return receipt requested or by telegram with report of
delivery requested, and addressed to the actor at his address shown
on the rental agreement.
(d) If written notice is given in accordance with Subsection
(c) ^sof this section^t, it is presumed that the notice was received
no later than five days after it was sent.
(e) An offense under this section is:
(1) a Class C misdemeanor if the value of the service
stolen is less than $20;
(2) a Class B misdemeanor if the value of the service
stolen is $20 or more but less than ^u$500^w ^s$200^t;
(3) a Class A misdemeanor if the value of the service
stolen is ^u$500^w ^s$200^t or more but less than ^u$1,500^w ^s$750^t;
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(4) a ^ustate jail^w felony ^sof the third degree^t if the
value of the service stolen is ^u$1,500^w ^s$750^t or more but less than
$20,000;
(5) a felony of the ^uthird^w ^ssecond^t degree if the value
of the service stolen is $20,000 or more ^ubut less than $100,000;^w
^u(6) a felony of the second degree if the value of the^w
^uservice stolen is $100,000 or more but less than $200,000; or^w
^u(7) a felony of the first degree if the value of the^w
^uservice stolen is $200,000 or more^w.
Sec. 31.05. Theft of Trade Secrets. (a) For purposes of
this section:
(1) "Article" means any object, material, device, or
substance or any copy thereof, including a writing, recording,
drawing, sample, specimen, prototype, model, photograph,
microorganism, blueprint, or map.
(2) "Copy" means a facsimile, replica, photograph, or
other reproduction of an article or a note, drawing, or sketch made
of or from an article.
(3) "Representing" means describing, depicting,
containing, constituting, reflecting, or recording.
(4) "Trade secret" means the whole or any part of any
scientific or technical information, design, process, procedure,
formula, or improvement that has value and that the owner has taken
measures to prevent from becoming available to persons other than
those selected by the owner to have access for limited purposes.
(b) A person commits an offense if, without the owner's
effective consent, he knowingly:
(1) steals a trade secret;
(2) makes a copy of an article representing a trade
secret; or
(3) communicates or transmits a trade secret.
(c) An offense under this section is a felony of the third
degree.
Sec. 31.06. Presumption for Theft by Check. (a) If the
actor obtained property or secured performance of service by
issuing or passing a check or similar sight order for the payment
of money, when the issuer did not have sufficient funds in or on
deposit with the bank or other drawee for the payment in full of
the check or order as well as all other checks or orders then
outstanding, his intent to deprive the owner of property under
Section 31.03 ^sof this code^t (Theft) or to avoid payment for
service under Section 31.04 ^sof this code^t (Theft of Service) is
presumed (except in the case of a postdated check or order) if:
(1) he had no account with the bank or other drawee at
the time he issued the check or order; or
(2) payment was refused by the bank or other drawee
for lack of funds or insufficient funds, on presentation within 30
days after issue, and the issuer failed to pay the holder in full
within 10 days after receiving notice of that refusal.
(b) For purposes of Subsection (a)(2) ^sof this section^t,
notice may be actual notice or notice in writing, sent by
registered or certified mail with return receipt requested or by
telegram with report of delivery requested, and addressed to the
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issuer at his address shown on:
(1) the check or order;
(2) the records of the bank or other drawee; or
(3) the records of the person to whom the check or
order has been issued or passed.
(c) If written notice is given in accordance with Subsection
(b) ^sof this section^t, it is presumed that the notice was received
no later than five days after it was sent.
(d) Nothing in this section prevents the prosecution from
establishing the requisite intent by direct evidence.
(e) Partial restitution does not preclude the presumption of
the requisite intent under this section.
Sec. 31.07. Unauthorized Use of a Vehicle. (a) A person
commits an offense if he intentionally or knowingly operates
another's boat, airplane, or motor-propelled vehicle without the
effective consent of the owner.
(b) An offense under this section is a ^ustate jail^w felony ^sof^t
^sthe third degree^t.
Sec. 31.08. Value. (a) Subject to the additional criteria
of Subsections (b) and (c) ^sof this section^t, value under this
chapter is:
(1) the fair market value of the property or service
at the time and place of the offense; or
(2) if the fair market value of the property cannot be
ascertained, the cost of replacing the property within a reasonable
time after the theft.
(b) The value of documents, other than those having a
readily ascertainable market value, is:
(1) the amount due and collectible at maturity less
that part which has been satisfied, if the document constitutes
evidence of a debt; or
(2) the greatest amount of economic loss that the
owner might reasonably suffer by virtue of loss of the document, if
the document is other than evidence of a debt.
(c) If property or service has value that cannot be
reasonably ascertained by the criteria set forth in Subsections (a)
and (b) ^sof this section^t, the property or service is deemed to
have a value of ^u$500 or^w more ^sthan $200^t but less than ^u$1,500^w
^s$750^t.
(d) If the actor proves by a preponderance of the evidence
that he gave consideration for or had a legal interest in the
property or service stolen, the amount of the consideration or the
value of the interest so proven shall be deducted from the value of
the property or service ascertained under Subsection (a), (b), or
(c) ^sof this section^t to determine value for purposes of this
chapter.
Sec. 31.09. Aggregation of Amounts Involved in Theft. When
amounts are obtained in violation of this chapter pursuant to one
scheme or continuing course of conduct, whether from the same or
several sources, the conduct may be considered as one offense and
the amounts aggregated in determining the grade of the offense.
Sec. 31.10. Actor's Interest in Property. It is no defense
to prosecution under this chapter that the actor has an interest in
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the property or service stolen if another person has the right of
exclusive possession of the property.
Sec. 31.11. Tampering With Identification Numbers. (a) A
person commits an offense if the person:
(1) knowingly or intentionally removes, alters, or
obliterates the serial number or other permanent identification
marking on tangible personal property; or
(2) possesses, sells, or offers for sale tangible
personal property and:
(A) the actor knows that the serial number or
other permanent identification marking has been removed, altered,
or obliterated; or
(B) a reasonable person in the position of the
actor would have known that the serial number or other permanent
identification marking has been removed, altered, or obliterated.
(b) It is an affirmative defense to prosecution under this
section that the person was:
(1) the owner or acting with the effective consent of
the owner of the property involved ^sand the item of property is not^t
^sproperty listed in Subsection (e) of this section^t;
(2) a peace officer acting in the actual discharge of
official duties; or
(3) acting with respect to a number assigned to a
vehicle by the ^uTexas^w ^sState^t Department of ^sHighways and Public^t
Transportation and the person was:
(A) in the actual discharge of official duties
as an employee or agent of the department; or
(B) in full compliance with the rules of the
department as an applicant for an assigned number approved by the
department.
(c) Property involved in a violation of this section may be
treated as stolen for purposes of custody and disposition of the
property.
(d) ^uAn^w ^sExcept as provided by Subsection (e) of this^t
^ssection, an^t offense under this section is a Class A misdemeanor.
(e) ^sAn offense under this section is a felony of the third^t
^sdegree if the property involved is:^t
^s(1) equipment designed for exploration or production^t
^sof natural gas or crude oil;^t
^s(2) equipment designed for remedial or diagnostic^t
^soperations on gas or crude oil wells;^t
^s(3) a vehicle or part of a vehicle;^t
^s(4) a tractor, farm implement, unit of special mobile^t
^sequipment, or a unit of off-road construction equipment not subject^t
^sto the Certificate of Title Act (Article 6687-1, Vernon's Texas^t
^sCivil Statutes);^t
^s(5) an aircraft, boat, or part of an aircraft or^t
^sboat; or^t
^s(6) a firearm or part of a firearm.^t
^s(f)^t In this section, "vehicle" has the meaning given by
Section 2, Uniform Act Regulating Traffic on Highways (Article
6701d, Vernon's Texas Civil Statutes).
^sSec. 31.12. UNAUTHORIZED USE OF TELEVISION DECODING AND^t
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^sINTERCEPTION DEVICE OR CABLE DESCRAMBLING, DECODING, OR^t
^sINTERCEPTION DEVICE. (a) A person commits an offense if, with the^t
^sintent to intercept and decode a transmission by a subscription^t
^stelevision service without the authorization of the provider of the^t
^sservice, the person intentionally or knowingly attaches to, causes^t
^sto be attached to, or incorporates in a television set, video tape^t
^srecorder, or other equipment designed to receive a television^t
^stransmission a device that intercepts and decodes the transmission.^t
^s(b) A person commits an offense if, with the intent to^t
^sintercept, descramble, or decode a cable television service and^t
^swithout the authorization of the provider of the service, the^t
^sperson intentionally or knowingly:^t
^s(1) physically, electrically, electronically,^t
^sacoustically, or inductively makes or maintains an unauthorized^t
^scable connection or otherwise intercepts cable television service;^t
^s(2) attaches to, causes to be attached to, maintains^t
^san attachment to, or incorporates in a television set, video tape^t
^srecorder, other equipment designed to receive a television^t
^stransmission, or equipment of a cable television company a device^t
^sthat intercepts, descrambles, or decodes the service; or^t
^s(3) tampers with, changes, or modifies the equipment^t
^sof a cable television company.^t
^s(c) In this section:^t
^s(1) "Cable television service" means a service^t
^sprovided by or through a facility of a cable television system,^t
^sclosed circuit coaxial cable communication system, or microwave or^t
^ssimilar transmission service used in connection with a cable^t
^stelevision system.^t
^s(2) "Device" means a device other than a nondecoding^t
^sor nondescrambling channel frequency converter or television^t
^sreceiver type-accepted by the Federal Communications Commission.^t
^s(3) "Subscription television service" means a service^t
^swhereby television broadcast programs intended to be received in an^t
^sintelligible form by members of the public only for a fee or charge^t
^sare transmitted pursuant to the grant of subscription television^t
^sauthority by the Federal Communications Commission. The term shall^t
^snot include cable television service or community antenna^t
^stelevision service.^t
^s(d) If an unauthorized device designed to intercept,^t
^sdescramble, or decode a subscription television transmission or if^t
^san unauthorized device designed to intercept, descramble, or decode^t
^sa cable television service is present on the premises or property^t
^soccupied and used by a person, it is presumed that the person^t
^sintentionally or knowingly used the device to intercept,^t
^sdescramble, or decode a transmission or a service. If an^t
^sunauthorized cable connection is present on the premises or^t
^sproperty occupied and used by a person, it is presumed that the^t
^sperson intentionally or knowingly used the connection to intercept^t
^scable television service. If equipment of a cable television^t
^scompany that has been tampered with, changed, or modified is^t
^spresent on the premises or property occupied and used by a person,^t
^sit is presumed that the person intentionally or knowingly used the^t
^sequipment to intercept, descramble, or decode a cable television^t
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^sservice.^t
^s(e) The presumptions created by Subsection (d) of this^t
^ssection do not apply if the person accused shows by a preponderance^t
^sof the evidence that the presence of the unauthorized device or^t
^sconnection, or the tampering, change, or modification of the^t
^sequipment of the cable television company, may be attributed to the^t
^sconduct of another.^t
^s(f) The presumptions created by Subsection (d) of this^t
^ssection do not apply to a telecommunications company that provides^t
^slocal or long distance communications services and uses equipment^t
^sdescribed by that subsection in the normal course of its business.^t
^s(g) This section does not prohibit the manufacture,^t
^sdistribution, sale, or use of satellite receiving antennas that are^t
^sotherwise permitted by state or federal law.^t
^s(h) An offense under this section is a Class B misdemeanor^t
^sunless the actor committed the offense for remuneration, in which^t
^sevent it is a Class A misdemeanor.^t
^sSec. 31.13. MANUFACTURE, SALE, OR DISTRIBUTION OF^t
^sTELEVISION DECODING AND INTERCEPTION DEVICE OR CABLE DESCRAMBLING,^t
^sDECODING, OR INTERCEPTION DEVICE. (a) A person commits an offense^t
^sif the person for remuneration intentionally or knowingly^t
^smanufactures, distributes, or sells, with an intent to aid an^t
^soffense under Section 31.12 of this code, a device or a plan or^t
^spart for a device that intercepts and decodes a transmission by a^t
^ssubscription television service or that intercepts, descrambles, or^t
^sdecodes a cable television service.^t
^s(b) In this section, "cable television service," "device,"^t
^sand "subscription television service" have the meanings assigned by^t
^sSection 31.12 of this code.^t
^s(c) This section does not prohibit the manufacture,^t
^sdistribution, sale, or use of satellite receiving antennas that are^t
^sotherwise permitted by state or federal law.^t
^s(d) An offense under this section is a Class A^t
^smisdemeanor.^t
CHAPTER 32. FRAUD
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 32.01. Definitions. In this chapter:
(1) "Financial institution" means a bank, trust
company, insurance company, credit union, building and loan
association, ^usavings and loan association,^w investment trust,
investment company, or any other organization held out to the
public as a place for deposit of funds or medium of savings or
collective investment.
(2) "Property" means:
(A) real property;
(B) tangible or intangible personal property
including anything severed from land; or
(C) a document, including money, that represents
or embodies anything of value.
(3) "Service" includes:
(A) labor and professional service;
(B) telecommunication, public utility, and
transportation service;
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(C) lodging, restaurant service, and
entertainment; and
(D) the supply of a motor vehicle or other
property for use.
(4) "Steal" means to acquire property or service by
theft.
Sec. 32.02. Value. (a) Subject to the additional criteria
of Subsections (b) and (c) ^sof this section^t, value under this
chapter is:
(1) the fair market value of the property or service
at the time and place of the offense; or
(2) if the fair market value of the property cannot be
ascertained, the cost of replacing the property within a reasonable
time after the offense.
(b) The value of documents, other than those having a
readily ascertainable market value, is:
(1) the amount due and collectible at maturity less
any part that has been satisfied, if the document constitutes
evidence of a debt; or
(2) the greatest amount of economic loss that the
owner might reasonably suffer by virtue of loss of the document, if
the document is other than evidence of a debt.
(c) If property or service has value that cannot be
reasonably ascertained by the criteria set forth in Subsections (a)
and (b) ^sof this section^t, the property or service is deemed to
have a value of ^u$500 or^w more ^sthan $20^t but less than ^u$1,500^w
^s$200^t.
(d) If the actor proves by a preponderance of the evidence
that he gave consideration for or had a legal interest in the
property or service stolen, the amount of the consideration or the
value of the interest so proven shall be deducted from the value of
the property or service ascertained under Subsection (a), (b), or
(c) ^sof this section^t to determine value for purposes of this
chapter.
Sec. 32.03. Aggregation of Amounts Involved in Fraud. When
amounts are obtained in violation of this chapter pursuant to one
scheme or continuing course of conduct, whether from the same or
several sources, the conduct may be considered as one offense and
the amounts aggregated in determining the grade of offense.
(Sections 32.04 to 32.20 ^sare^t reserved for expansion)
SUBCHAPTER B. FORGERY
Sec. 32.21. Forgery. (a) For purposes of this section:
(1) "Forge" means:
(A) to alter, make, complete, execute, or
authenticate any writing so that it purports:
(i) to be the act of another who did not
authorize that act;
(ii) to have been executed at a time or
place or in a numbered sequence other than was in fact the case; or
(iii) to be a copy of an original when no
such original existed;
(B) to issue, transfer, register the transfer
of, pass, publish, or otherwise utter a writing that is forged
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within the meaning of Paragraph (A) ^sof this subdivision^t; or
(C) to possess a writing that is forged within
the meaning of Paragraph (A) with intent to utter it in a manner
specified in Paragraph (B) ^sof this subdivision^t.
(2) "Writing" includes:
(A) printing or any other method of recording
information;
(B) money, coins, tokens, stamps, seals, credit
cards, badges, and trademarks; and
(C) symbols of value, right, privilege, or
identification.
(b) A person commits an offense if he forges a writing with
intent to defraud or harm another.
(c) Except as provided in Subsections (d) and (e) ^sof this^t
^ssection^t an offense under this section is a Class A misdemeanor.
(d) An offense under this section is a ^ustate jail^w felony ^sof^t
^sthe third degree^t if the writing is or purports to be a will,
codicil, deed, deed of trust, mortgage, security instrument,
security agreement, credit card, check or similar sight order for
payment of money, contract, release, or other commercial
instrument.
(e) An offense under this section is a felony of the ^uthird^w
^ssecond^t degree if the writing is or purports to be:
(1) part of an issue of money, securities, postage or
revenue stamps;
(2) a government record listed in Section 37.01(1)(C)
^sof this code^t; or
(3) other instruments issued by a state or national
government or by a subdivision of either, or part of an issue of
stock, bonds, or other instruments representing interests in or
claims against another person.
(f) A person is presumed to intend to defraud or harm
another if the person acts with respect to two or more writings of
the same type and if each writing is a government record listed in
Section 37.01(1)(C) ^sof this code^t.
Sec. 32.22. CRIMINAL SIMULATION. (a) A person commits an
offense if, with intent to defraud or harm another:
(1) he makes or alters an object, in whole or in part,
so that it appears to have value because of age, antiquity, rarity,
source, or authorship that it does not have;
(2) ^she sells, passes, or otherwise utters an object^t
^sso made or altered;^t
^s(3)^t he possesses an object so made or altered, with
intent to sell, pass, or otherwise utter it; or
^u(3)^w ^s(4)^t he authenticates or certifies an object so
made or altered as genuine or as different from what it is.
(b) An offense under this section is a Class A misdemeanor.
(Sections 32.23 to 32.30 ^sare^t reserved for expansion)
SUBCHAPTER C. CREDIT
Sec. 32.31. CREDIT CARD ^uOR DEBIT CARD^w ABUSE. (a) For
purposes of this section:
(1) "Cardholder" means the person named on the face of
a credit card ^uor debit card^w to whom or for whose benefit the
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^scredit^t card is issued.
(2) "Credit card" means an identification card, plate,
coupon, book, number, or any other device authorizing a designated
person or bearer to obtain property or services on credit. ^uThe^w
^uterm^w ^sIt^t includes the number or description of the device if the
device itself is not produced at the time of ordering or obtaining
the property or service.
(3) "Expired credit card" means a credit card bearing
an expiration date after that date has passed.
^u(4) "Debit card" means an identification card, plate,^w
^ucoupon, book, number, or any other device authorizing a designated^w
^uperson or bearer to communicate a request to an unmanned teller^w
^umachine or a customer convenience terminal. The term includes the^w
^unumber or description of the device if the device itself is not^w
^uproduced at the time of ordering or obtaining the benefit.^w
^u(5) "Expired debit card" means a debit card bearing as^w
^uits expiration date a date that has passed.^w
^u(6) "Unmanned teller machine" means a machine, other^w
^uthan a telephone, capable of being operated by a customer, by which^w
^ua customer may communicate to a financial institution a request to^w
^uwithdraw a benefit for himself or for another directly from the^w
^ucustomer's account or from the customer's account under a line of^w
^ucredit previously authorized by the institution for the customer.^w
^u(7) "Customer convenience terminal" means an unmanned^w
^uteller machine the use of which does not involve personnel of a^w
^ufinancial institution.^w
(b) A person commits an offense if:
(1) with intent to obtain ^ua benefit^w ^sproperty or^t
^sservice^t fraudulently, he presents or uses a credit card ^uor debit^w
^ucard^w with knowledge that:
(A) the card, whether or not expired, has not
been issued to him and is not used with the effective consent of
the cardholder; or
(B) the card has expired or has been revoked or
cancelled;
(2) with intent to obtain ^ua benefit^w ^sproperty or^t
^sservice^t, he uses a fictitious credit card ^uor debit card^w or the
pretended number or description of a fictitious ^scredit^t card;
(3) he receives ^ua benefit^w ^sproperty or service^t that
he knows has been obtained in violation of this section;
(4) he steals a credit card ^uor debit card^w or, with
knowledge that it has been stolen, receives a credit card ^uor debit^w
^ucard^w with intent to use it, to sell it, or to transfer it to a
person other than the issuer or the cardholder;
(5) he buys a credit card ^uor debit card^w from a person
who he knows is not the issuer;
(6) not being the issuer, he sells a credit card ^uor^w
^udebit card^w;
(7) he uses or induces the cardholder to use the
cardholder's credit card to obtain property or service for the
actor's benefit for which the cardholder is financially unable to
pay;
(8) not being the cardholder, and without the
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effective consent of the cardholder, he signs or writes his name or
the name of another on a credit card ^uor debit card^w with intent to
use it;
(9) he possesses two or more incomplete credit cards
^uor debit cards^w that have not been issued to him with intent to
complete them without the effective consent of the issuer. For
purposes of this subdivision, a ^scredit^t card is incomplete if part
of the matter that an issuer requires to appear on the ^scredit^t
card before it can be used^u,^w ^s(^tother than the signature of the
cardholder^u,^w^s)^t has not yet been stamped, embossed, imprinted, or
written on it;
(10) being authorized by an issuer to furnish goods or
services on presentation of a credit card, he, with intent to
defraud the issuer or the cardholder, furnishes goods or services
on presentation of a credit card obtained or retained in violation
of this section or a credit card that is forged, expired, or
revoked; or
(11) being authorized by an issuer to furnish goods or
services on presentation of a credit card, he, with intent to
defraud the issuer or a cardholder, fails to furnish goods or
services that he represents in writing to the issuer that he has
furnished.
(c) It is presumed that a person who used a revoked,
cancelled, or expired credit card ^uor debit card^w had knowledge that
the card had been revoked, cancelled, or expired if he had received
notice of revocation, cancellation, or expiration from the issuer.
For purposes of this section, notice may be either notice given
orally in person or by telephone, or in writing by mail or by
telegram. If written notice was sent by registered or certified
mail with return receipt requested, or by telegram with report of
delivery requested, addressed to the cardholder at the last address
shown by the records of the issuer, it is presumed that the notice
was received by the cardholder no later than five days after sent.
(d) An offense under this section is a ^ustate jail^w felony ^sof^t
^sthe third degree^t.
Sec. 32.32. FALSE STATEMENT TO OBTAIN PROPERTY OR CREDIT.
(a) For purposes of this section, "credit" includes:
(1) a loan of money;
(2) furnishing property or service on credit;
(3) extending the due date of an obligation;
(4) comaking, endorsing, or guaranteeing a note or
other instrument for obtaining credit;
(5) a line or letter of credit; and
(6) a credit card, as defined in Section 32.31 ^sof^t
^sthis code^t (Credit Card Abuse).
(b) A person commits an offense if he intentionally or
knowingly makes a materially false or misleading written statement
to obtain property or credit for himself or another.
(c) An offense under this section is a Class A misdemeanor.
Sec. 32.33. Hindering Secured Creditors. (a) For purposes
of this section:
(1) "Remove" means transport, without the effective
consent of the secured party, from the state in which the property
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was located when the security interest or lien attached.
(2) "Security interest" means an interest in personal
property or fixtures that secures payment or performance of an
obligation.
(b) A person who has signed a security agreement creating a
security interest in property or a mortgage or deed of trust
creating a lien on property commits an offense if, with intent to
hinder enforcement of that interest or lien, he destroys, removes,
conceals, encumbers, or otherwise harms or reduces the value of the
property.
(c) For purposes of this section, a person is presumed to
have intended to hinder enforcement of the security interest or
lien if, when any part of the debt secured by the security interest
or lien was due, he failed:
(1) to pay the part then due; and
(2) if the secured party had made demand, to deliver
possession of the secured property to the secured party.
(d) ^uAn^w ^sExcept as provided in Subsections (e) and (f) of^t
^sthis section, an^t offense under ^uSubsection (b)^w ^sthis section^t is a^u:^w
^u(1) Class C misdemeanor if the value of the property^w
^udestroyed, removed, concealed, encumbered, or otherwise harmed or^w
^ureduced in value is less than $20;^w
^u(2) Class B misdemeanor if the value of the property^w
^udestroyed, removed, concealed, encumbered, or otherwise harmed or^w
^ureduced in value is $20 or more but less than $500;^w
^u(3) Class A misdemeanor if the value of the property^w
^udestroyed, removed, concealed, encumbered, or otherwise harmed or^w
^ureduced in value is $500 or more but less than $1,500;^w
^u(4) state jail felony if the value of the property^w
^udestroyed, removed, concealed, encumbered, or otherwise harmed or^w
^ureduced in value is $1,500 or more but less than $20,000;^w
^u(5) felony of the third degree if the value of the^w
^uproperty destroyed, removed, concealed, encumbered, or otherwise^w
^uharmed or reduced in value is $20,000 or more but less than^w
^u$100,000;^w
^u(6) felony of the second degree if the value of the^w
^uproperty destroyed, removed, concealed, encumbered, or otherwise^w
^uharmed or reduced in value is $100,000 or more but less than^w
^u$200,000; or^w
^u(7) felony of the first degree if the value of the^w
^uproperty destroyed, removed, concealed, encumbered, or otherwise^w
^uharmed or reduced in value is $200,000 or more^w ^sClass A^t
^smisdemeanor^t.
(e) ^sIf the actor removes the property, the offense is a^t
^sfelony of the third degree.^t
^s(f)^t A person who is a debtor under a security agreement,
and who does not have a right to sell or dispose of the secured
property or is required to account to the secured party for the
proceeds of a permitted sale or disposition, commits an offense if
the person sells or otherwise disposes of the secured property, or
does not account to the secured party for the proceeds of a sale or
other disposition as required, with intent to appropriate (as
defined in Chapter 31 ^sof this code^t) the proceeds or value of the
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secured property. A person is presumed to have intended to
appropriate proceeds if the person does not deliver the proceeds to
the secured party or account to the secured party for the proceeds
before the 11th day after the day that the secured party makes a
lawful demand for the proceeds or account. An offense under this
subsection is:
(1) a Class ^uC^w ^sA^t misdemeanor if the proceeds obtained
from the sale or other disposition are money or goods having a
value of less than ^u$20^w ^s$10,000^t;
(2) ^ua Class B misdemeanor if the proceeds obtained^w
^ufrom the sale or other disposition are money or goods having a^w
^uvalue of $20 or more but less than $500;^w
^u(3) a Class A misdemeanor if the proceeds obtained^w
^ufrom the sale or other disposition are money or goods having a^w
^uvalue of $500 or more but less than $1,500;^w
^u(4) a state jail felony if the proceeds obtained from^w
^uthe sale or other disposition are money or goods having a value of^w
^u$1,500 or more but less than $20,000;^w
^u(5) a felony of the third degree if the proceeds^w
^uobtained from the sale or other disposition are money or goods^w
^uhaving a value of $20,000 or more but less than $100,000;^w
^u(6) a felony of the second degree if the proceeds^w
^uobtained from the sale or other disposition are money or goods^w
^uhaving a value of $100,000 or more but less than $200,000; or^w
^u(7) a felony of the first degree if the proceeds^w
^uobtained from the sale or other disposition are money or goods^w
^uhaving a value of $200,000 or more^w ^sa felony of the third degree if^t
^sthe proceeds obtained from the sale or other disposition are money^t
^sor goods having a value of $10,000 or more^t.
^sSec. 32.34. FRAUD IN INSOLVENCY. (a) A person commits an^t
^soffense if, when proceedings have been or are about to be^t
^sinstituted for the appointment of a trustee, receiver, or other^t
^sperson entitled to administer property for the benefit of^t
^screditors, or when any other assignment, composition, or^t
^sliquidation for the benefit of creditors has been or is about to be^t
^smade:^t
^s(1) he destroys, removes, conceals, encumbers,^t
^stransfers, or otherwise harms or reduces the value of the property^t
^swith intent to defeat or obstruct the operation of a law relating^t
^sto administration of property for the benefit of creditors;^t
^s(2) he intentionally falsifies any writing or record^t
^srelating to the property or any claim against the debtor; or^t
^s(3) he intentionally misrepresents or refuses to^t
^sdisclose to a trustee or receiver, or other person entitled to^t
^sadminister property for the benefit of creditors, the existence,^t
^samount, or location of the property, or any other information that^t
^sthe actor could legally be required to furnish in relation to the^t
^sadministration.^t
^s(b) An offense under this section is a Class A misdemeanor.^t
^sSec. 32.35. RECEIVING DEPOSIT, PREMIUM, OR INVESTMENT IN^t
^sFAILING FINANCIAL INSTITUTION. (a) A person directing or^t
^sparticipating in the direction of a financial institution commits^t
^san offense if he receives or permits the receipt of a deposit,^t
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^spremium payment, or investment in the institution knowing that, due^t
^sto the financial condition of the institution:^t
^s(1) it is unable to make payment of the deposit on^t
^sdemand, if it is a deposit ordinarily payable on demand; or^t
^s(2) it is about to suspend operations or go into^t
^sreceivership.^t
^s(b) It is a defense to prosecution under this section that:^t
^s(1) the person making the deposit, premium payment,^t
^sor investment was adequately informed of the financial condition of^t
^sthe institution; or^t
^s(2) the accounts of the institution are insured or^t
^sguaranteed by an agency or instrumentality of the United States^t
^sgovernment or in accordance with the Texas Credit Union Act^t
^s(Article 2461-1.01 et seq., Vernon's Texas Civil Statutes).^t
^s(c) An offense under this section is a Class A^t
^smisdemeanor.^t
Sec. ^u32.34^w ^s32.36^t. FRAUDULENT TRANSFER OF A MOTOR VEHICLE.
(a) In this section:
(1) "Lease" means the grant of use and possession of a
motor vehicle for consideration, whether or not the grant includes
an option to buy the vehicle.
(2) "Motor vehicle" means a device in, on, or by which
a person or property is or may be transported or drawn on a
highway, except a device used exclusively on stationary rails or
tracks.
(3) "Security interest" means an interest in personal
property or fixtures that secures payment or performance of an
obligation.
(4) "Third party" means a person other than the actor
or the owner of the vehicle.
(5) "Transfer" means to transfer possession, whether
or not another right is also transferred, by means of a sale,
lease, sublease, lease assignment, or other property transfer.
(b) A person commits an offense if the person acquires,
accepts possession of, or exercises control over the motor vehicle
of another under a written or oral agreement to arrange for the
transfer of the vehicle to a third party and:
(1) knowing the vehicle is subject to a security
interest, lease, or lien, the person transfers the vehicle to a
third party without first obtaining written authorization from the
vehicle's secured creditor, lessor, or lienholder;
(2) intending to defraud or harm the vehicle's owner,
the person transfers the vehicle to a third party;
(3) intending to defraud or harm the vehicle's owner,
the person disposes of the vehicle in a manner other than by
transfer to a third party; or
(4) the person does not disclose the location of the
vehicle on the request of the vehicle's owner, secured creditor,
lessor, or lienholder.
(c) For the purposes of Subsection (b)(2) ^sof this section^t,
the actor is presumed to have intended to defraud or harm the motor
vehicle's owner if the actor does not take reasonable steps to
determine whether or not the third party is financially able to pay
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for the vehicle.
(d) It is a defense to prosecution under Subsection (b)(1)
^sof this section^t that the entire indebtedness secured by or owed
under the security interest, lease, or lien is paid or satisfied in
full not later than the 30th day after the date that the transfer
was made.
(e) It is not a defense to prosecution under Subsection
(b)(1) ^sof this section^t that the motor vehicle's owner has
violated a contract creating a security interest, lease, or lien in
the motor vehicle.
(f) An offense under Subsection (b)(1), (b)(2), or (b)(3)
^sof this section^t is:
(1) a ^ustate jail^w felony ^sof the third degree^t if the
value of the motor vehicle is less than $20,000; or
(2) a felony of the ^uthird^w ^ssecond^t degree if the value
of the motor vehicle is $20,000 or more.
(g) An offense under Subsection (b)(4) ^sof this section^t is
a Class A misdemeanor.
Sec. ^u32.35^w ^s32.37^t. CREDIT CARD TRANSACTION RECORD
LAUNDERING. (a) In this section:
(1) "Agent" means a person authorized to act on behalf
of another and includes an employee.
(2) "Authorized vendor" means a person authorized by a
creditor to furnish property, service, or anything else of value
upon presentation of a credit card by a cardholder.
(3) "Cardholder" means the person named on the face of
a credit card to whom or for whose benefit the credit card is
issued, and includes the named person's agents.
(4) "Credit card" means an identification card, plate,
coupon, book, number, or any other device authorizing a designated
person or bearer to obtain property or services on credit. It
includes the number or description on the device if the device
itself is not produced at the time of ordering or obtaining the
property or service.
(5) "Creditor" means a person licensed under Chapter
3, Subtitle 2, Title 79, Revised Statutes (Article 5069-3.01 et
seq., Vernon's Texas Civil Statutes), a bank, savings and loan
association, credit union, or other regulated financial institution
that lends money or otherwise extends credit to a cardholder
through a credit card and that authorizes other persons to honor
the credit card.
(b) A person commits an offense if the person is an
authorized vendor who, with intent to defraud the creditor or
cardholder, presents to a creditor, for payment, a credit card
transaction record of a sale that was not made by the authorized
vendor or the vendor's agent.
(c) A person commits an offense if, without the creditor's
authorization, the person employs, solicits, or otherwise causes an
authorized vendor or the vendor's agent to present to a creditor,
for payment, a credit card transaction record of a sale that was
not made by the authorized vendor or the vendor's agent.
(d) It is presumed that a person is not the agent of an
authorized vendor if a fee is paid or offered to be paid by the
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person to the authorized vendor in connection with the vendor's
presentment to a creditor of a credit card transaction record.
(e) An offense under this section is a^u:^w
^u(1) Class C misdemeanor if the amount of the record of^w
^ua sale is less than $20;^w
^u(2) Class B misdemeanor if the amount of the record of^w
^ua sale is $20 or more but less than $500;^w
^u(3) Class A misdemeanor if the amount of the record of^w
^ua sale is $500 or more but less than $1,500;^w
^u(4) state jail felony if the amount of the record of a^w
^usale is $1,500 or more but less than $20,000;^w
^u(5) felony of the third degree if the amount of the^w
^urecord of a sale is $20,000 or more but less than $100,000;^w
^u(6) felony of the second degree if the amount of the^w
^urecord of a sale is $100,000 or more but less than $200,000; or^w
^u(7) felony of the first degree if the amount of the^w
^urecord of a sale is $200,000 or more^w ^sClass A misdemeanor^t.
(Sections ^u32.36^w ^s32.38^t to 32.40 reserved for expansion)
SUBCHAPTER D. OTHER DECEPTIVE PRACTICES
Sec. 32.41. Issuance of Bad Check. (a) A person commits an
offense if he issues or passes a check or similar sight order for
the payment of money knowing that the issuer does not have
sufficient funds in or on deposit with the bank or other drawee for
the payment in full of the check or order as well as all other
checks or orders outstanding at the time of issuance.
(b) This section does not prevent the prosecution from
establishing the required knowledge by direct evidence; however,
for purposes of this section, the issuer's knowledge of
insufficient funds is presumed (except in the case of a postdated
check or order) if:
(1) he had no account with the bank or other drawee at
the time he issued the check or order; or
(2) payment was refused by the bank or other drawee
for lack of funds or insufficient funds on presentation within 30
days after issue and the issuer failed to pay the holder in full
within 10 days after receiving notice of that refusal.
(c) Notice for purposes of Subsection (b)(2) ^sof this^t
^ssection^t may be notice in writing, sent by registered or certified
mail with return receipt requested or by telegram with report of
delivery requested, and addressed to the issuer at his address
shown on:
(1) the check or order;
(2) the records of the bank or other drawee; or
(3) the records of the person to whom the check or
order has been issued or passed.
(d) If notice is given in accordance with Subsection (c) ^sof^t
^sthis section^t, it is presumed that the notice was received no later
than five days after it was sent.
(e) A person charged with an offense under this section may
make restitution for the bad checks. Restitution shall be made
through the prosecutor's office if collection and processing were
initiated through that office. In other cases restitution may,
with the approval of the court in which the offense is filed, be
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made through the court.
(f) An offense under this section is a Class C misdemeanor.
(g) An offense under this section is not a lesser included
offense of an offense under Section 31.03 or 31.04 ^sof this code^t.
Sec. 32.42. Deceptive Business Practices. (a) For purposes
of this section:
(1) "Adulterated" means varying from the standard of
composition or quality prescribed by law or set by established
commercial usage.
(2) "Business" includes trade and commerce and
advertising, selling, and buying service or property.
(3) "Commodity" means any tangible or intangible
personal property.
(4) "Contest" includes sweepstake, puzzle, and game of
chance.
(5) "Deceptive sales contest" means a sales contest:
(A) that misrepresents the participant's chance
of winning a prize;
(B) that fails to disclose to participants on a
conspicuously displayed permanent poster (if the contest is
conducted by or through a retail outlet) or on each card game
piece, entry blank, or other paraphernalia required for
participation in the contest (if the contest is not conducted by or
through a retail outlet):
(i) the geographical area or number of
outlets in which the contest is to be conducted;
(ii) an accurate description of each type
of prize;
(iii) the minimum number and minimum
amount of cash prizes; and
(iv) the minimum number of each other type
of prize; or
(C) that is manipulated or rigged so that prizes
are given to predetermined persons or retail establishments. A
sales contest is not deceptive if the total value of prizes to each
retail outlet is in a uniform ratio to the number of game pieces
distributed to that outlet.
(6) "Mislabeled" means varying from the standard of
truth or disclosure in labeling prescribed by law or set by
established commercial usage.
(7) "Prize" includes gift, discount, coupon,
certificate, gratuity, and any other thing of value awarded in a
sales contest.
(8) "Sales contest" means a contest in connection with
the sale of a commodity or service by which a person may, as
determined by drawing, guessing, matching, or chance, receive a
prize and which is not regulated by the rules of a federal
regulatory agency.
(9) "Sell" and "sale" include offer for sale,
advertise for sale, expose for sale, keep for the purpose of sale,
deliver for or after sale, solicit and offer to buy, and every
disposition for value.
(b) A person commits an offense if in the course of business
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he intentionally, knowingly, recklessly, or with criminal
negligence commits one or more of the following deceptive business
practices:
(1) using, selling, or possessing for use or sale a
false weight or measure, or any other device for falsely
determining or recording any quality or quantity;
(2) selling less than the represented quantity of a
property or service;
(3) taking more than the represented quantity of
property or service when as a buyer the actor furnishes the weight
or measure;
(4) selling an adulterated or mislabeled commodity;
(5) passing off property or service as that of
another;
(6) representing that a commodity is original or new
if it is deteriorated, altered, rebuilt, reconditioned, reclaimed,
used, or secondhand;
(7) representing that a commodity or service is of a
particular style, grade, or model if it is of another;
(8) advertising property or service with intent:
(A) not to sell it as advertised, or
(B) not to supply reasonably expectable public
demand, unless the advertising adequately discloses a time or
quantity limit;
(9) representing the price of property or service
falsely or in a way tending to mislead;
(10) making a materially false or misleading statement
of fact concerning the reason for, existence of, or amount of a
price or price reduction;
(11) conducting a deceptive sales contest; or
(12) making a materially false or misleading
statement:
(A) in an advertisement for the purchase or sale
of property or service; or
(B) otherwise in connection with the purchase or
sale of property or service.
(c) An offense under Subsections (b)(1), (b)(2), (b)(3),
(b)(4), (b)(5), and (b)(6) ^sof this section^t is:
(1) a Class C misdemeanor if the actor commits an
offense with criminal negligence and if he has not previously been
convicted of a deceptive business practice; or
(2) a Class A misdemeanor if the actor commits an
offense intentionally, knowingly, recklessly or if he has been
previously convicted of a Class B or C misdemeanor under this
section.
(d) An offense under Subsections (b)(7), (b)(8), (b)(9),
(b)(10), (b)(11), and (b)(12) is a Class A misdemeanor.
Sec. 32.43. Commercial Bribery. (a) For purposes of this
section:
(1) "Beneficiary" means a person for whom a fiduciary
is acting.
(2) "Fiduciary" means:
(A) an agent or employee;
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(B) a trustee, guardian, custodian,
administrator, executor, conservator, receiver, or similar
fiduciary;
(C) a lawyer, physician, accountant, appraiser,
or other professional advisor; or
(D) an officer, director, partner, manager, or
other participant in the direction of the affairs of a corporation
or association.
(b) A person who is a fiduciary commits an offense if,
without the consent of his beneficiary, he intentionally or
knowingly solicits, accepts, or agrees to accept any benefit from
another person on agreement or understanding that the benefit will
influence the conduct of the fiduciary in relation to the affairs
of his beneficiary.
(c) A person commits an offense if he offers, confers, or
agrees to confer any benefit the acceptance of which is an offense
under Subsection (b) ^sof this section^t.
(d) An offense under this section is a ^ustate jail^w felony ^sof^t
^sthe third degree^t.
(e) In lieu of a fine that is authorized by Subsection (d)
^sof this section^t, and in addition to the imprisonment that is
authorized by that subsection, if the court finds that an
individual who is a fiduciary gained a benefit through the
commission of an offense under Subsection (b) ^sof this section^t,
the court may sentence the individual to pay a fine in an amount
fixed by the court, not to exceed double the value of the benefit
gained. This subsection does not affect the application of Section
12.51(c) ^sof this code^t to an offense under this section committed
by a corporation or association.
Sec. 32.44. Rigging Publicly Exhibited Contest. (a) A
person commits an offense if, with intent to affect the outcome
(including the score) of a publicly exhibited contest:
(1) he offers, confers, or agrees to confer any
benefit on, or threatens harm to:
(A) a participant in the contest to induce him
not to use his best efforts; or
(B) an official or other person associated with
the contest; or
(2) he tampers with a person, animal, or thing in a
manner contrary to the rules of the contest.
(b) A person commits an offense if he intentionally or
knowingly solicits, accepts, or agrees to accept any benefit the
conferring of which is an offense under Subsection (a) ^sof this^t
^ssection^t.
(c) ^uAn^w ^sExcept as provided in Subsection (d) of this^t
^ssection, an^t offense under this section is a Class A misdemeanor.
^s(d) An offense under this section is a felony of the third^t
^sdegree if the actor's conduct is in connection with betting or^t
^swagering on the contest.^t
Sec. 32.441. Illegal Recruitment of an Athlete. (a) A
person commits an offense if, without the consent of the governing
body or a designee of the governing body of an institution of
higher education, the person intentionally or knowingly solicits,
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accepts, or agrees to accept any benefit from another on an
agreement or understanding that the benefit will influence the
conduct of the person in enrolling in the institution and
participating in intercollegiate athletics.
(b) A person commits an offense if he offers, confers, or
agrees to confer any benefit the acceptance of which is an offense
under Subsection (a) ^sof this section^t.
(c) It is an exception to prosecution under this section
that the person offering, conferring, or agreeing to confer a
benefit and the person soliciting, accepting, or agreeing to accept
a benefit are related within the second degree of consanguinity or
affinity, as determined under Article 5996h, Revised Statutes.
(d) It is an exception to prosecution under Subsection (a)
^sof this section^t that, not later than the 60th day after the
date the person accepted or agreed to accept a benefit, the person
contacted a law enforcement agency and furnished testimony or
evidence about the offense.
(e) An offense under ^sSubsection (a) of^t this section is a^u:^w
^u(1) Class C misdemeanor if the value of the benefit is^w
^uless than $20;^w
^u(2) Class B misdemeanor if the value of the benefit is^w
^u$20 or more but less than $500;^w
^u(3) Class A misdemeanor if the value of the benefit is^w
^u$500 or more but less than $1,500;^w
^u(4) state jail felony if the value of the benefit is^w
^u$1,500 or more but less than $20,000;^w
^u(5) felony of the third degree if the value of the^w
^ubenefit is $20,000 or more but less than $100,000;^w
^u(6) felony of the second degree if the value of the^w
^ubenefit is $100,000 or more but less than $200,000; or^w
^u(7) felony of the first degree if the value of the^w
^ubenefit is $200,000 or more^w ^sClass A misdemeanor. An offense under^t
^sSubsection (b) of this section is a felony of the third degree^t.
Sec. 32.45. Misapplication of Fiduciary Property or Property
of Financial Institution. (a) For purposes of this section:
(1) "Fiduciary" includes:
(A) trustee, guardian, administrator, executor,
conservator, and receiver;
(B) any other person acting in a fiduciary
capacity, but not a commercial bailee; and
(C) an officer, manager, employee, or agent
carrying on fiduciary functions on behalf of a fiduciary.
(2) "Misapply" means deal with property contrary to:
(A) an agreement under which the fiduciary holds
the property; or
(B) a law prescribing the custody or disposition
of the property.
(b) A person commits an offense if he intentionally,
knowingly, or recklessly misapplies property he holds as a
fiduciary or property of a financial institution in a manner that
involves substantial risk of loss to the owner of the property or
to a person for whose benefit the property is held.
(c) An offense under this section is:
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(1) ^ua Class C misdemeanor if the value of the property^w
^umisapplied is less than $20;^w
^u(2) a Class B misdemeanor if the value of the property^w
^umisapplied is $20 or more but less than $500;^w
^u(3)^w a Class A misdemeanor if the value of the property
misapplied is ^u$500 or more but^w less than ^u$1,500^w ^s$200^t;
^u(4)^w ^s(2)^t a ^ustate jail^w felony ^sof the third degree^t if
the value of the property ^umisapplied^w is ^u$1,500^w ^s$200^t or more but
less than ^u$20,000^w ^s$10,000^t;
^u(5)^w ^s(3)^t a felony of the ^uthird^w ^ssecond^t degree if the
value of the property ^umisapplied^w is ^u$20,000^w ^s$10,000^t or more but
less than $100,000; ^sor^t
^u(6)^w ^s(4)^t a felony of the ^usecond^w ^sfirst^t degree if the
value of the property ^umisapplied^w is $100,000 or more ^ubut less than^w
^u$200,000; or^w
^u(7) a felony of the first degree if the value of the^w
^uproperty misapplied is $200,000 or more^w.
Sec. 32.46. Securing Execution of Document by Deception.
(a) A person commits an offense if, with intent to defraud or harm
any person, he, by deception, causes another to sign or execute any
document affecting property or service or the pecuniary interest of
any person.
(b) An offense under this section is a^u:^w
^u(1) Class C misdemeanor if the value of the property,^w
^uservice, or pecuniary interest is less than $20;^w
^u(2) Class B misdemeanor if the value of the property,^w
^uservice, or pecuniary interest is $20 or more but less than $500;^w
^u(3) Class A misdemeanor if the value of the property,^w
^uservice, or pecuniary interest is $500 or more but less than^w
^u$1,500;^w
^u(4) state jail felony if the value of the property,^w
^uservice, or pecuniary interest is $1,500 or more but less than^w
^u$20,000;^w
^u(5) felony of the third degree if the value of the^w
^uproperty, service, or pecuniary interest is $20,000 or more but^w
^uless than $100,000;^w
^u(6) felony of the second degree if the value of the^w
^uproperty, service, or pecuniary interest is $100,000 or more but^w
^uless than $200,000; or^w
^u(7) felony of the first degree if the value of the^w
^uproperty, service, or pecuniary interest is $200,000 or more^w
^sfelony of the third degree^t.
Sec. 32.47. Fraudulent Destruction, Removal, or Concealment
of Writing. (a) A person commits an offense if, with intent to
defraud or harm another, he destroys, removes, conceals, alters,
substitutes, or otherwise impairs the verity, legibility, or
availability of a writing, other than a governmental record.
(b) For purposes of this section, "writing" includes:
(1) printing or any other method of recording
information;
(2) money, coins, tokens, stamps, seals, credit cards,
badges, trademarks;
(3) symbols of value, right, privilege, or
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identification; and
(4) labels, price tags, or markings on goods.
(c) Except as provided in Subsection (d) ^sof this section^t,
an offense under this section is a Class A misdemeanor.
(d) An offense under this section is a ^ustate jail^w felony ^sof^t
^sthe third degree^t if the writing:
(1) is a will or codicil of another, whether or not
the maker is alive or dead and whether or not it has been admitted
to probate; or
(2) is a deed, mortgage, deed of trust, security
instrument, security agreement, or other writing for which the law
provides public recording or filing, whether or not the writing has
been acknowledged.
Sec. 32.48. Endless Chain Scheme. (a) For the purposes of
this section:
(1) "Endless chain" means any scheme for the disposal
or distribution of property whereby a participant pays a valuable
consideration for the chance to receive compensation for
introducing one or more additional persons into participation in
the scheme or for the chance to receive compensation when a person
introduced by the participant introduces a new participant.
(2) "Compensation" does not mean or include payment
based on sales made to persons who are not participants in the
scheme and who are not purchasing in order to participate in the
scheme.
(b) A person commits an offense if he contrives, prepares,
sets up, proposes, operates, promotes, or participates in an
endless chain.
(c) An offense under this section is a Class B misdemeanor.
^sSec. 32.49. ISSUANCE OF CHECKS PRINTED ON RED PAPER.^t
^s(a) A person commits an offense if he issues a check or similar^t
^ssight order for payment of money printed on dark red or other^t
^scolored paper that prevents reproduction of an image of the order^t
^sby microfilming or other similar reproduction equipment, knowing^t
^sthat the colored paper prevents reproduction.^t
^s(b) An offense under this section is a Class A misdemeanor.^t
^sSec. 32.50. ^t^sDebit Card Abuse^t^s. (a) For purposes of this^t
^ssection:^t
^s(1) "Cardholder" means the person named on the face^t
^sof a debit card to whom or for whose benefit the card is issued.^t
^s(2) "Debit card" means an identification card, plate,^t
^scoupon, book, number, or any other device authorizing a designated^t
^sperson or bearer to communicate a request to an unmanned teller^t
^smachine or a customer convenience terminal. It includes the number^t
^sor description of the device if the device itself is not produced^t
^sat the time of ordering or obtaining the benefit.^t
^s(3) "Expired debit card" means a card bearing as its^t
^sexpiration date a date that has passed.^t
^s(4) "Unmanned teller machine" means a machine, other^t
^sthan a telephone, capable of being operated solely by a customer,^t
^sby which a customer may communicate to a financial institution a^t
^srequest to withdraw a benefit for himself or for another directly^t
^sfrom the customer's account or from the customer's account pursuant^t
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^sto a line of credit previously authorized by the institution for^t
^sthe customer.^t
^s(5) "Customer convenience terminal" means a device^t
^swhich is a particular kind of unmanned teller machine (i.e., the^t
^suse of which does not involve personnel of a financial^t
^sinstitution).^t
^s(b) A person commits an offense if:^t
^s(1) with intent to obtain a benefit for himself or^t
^sfor another fraudulently, he intentionally or knowingly presents or^t
^suses a debit card with knowledge that:^t
^s(A) the card, whether or not expired, has not^t
^sbeen issued to him and is not used with the effective consent of^t
^sthe cardholder; or^t
^s(B) the card has expired or has been revoked or^t
^scanceled;^t
^s(2) with intent to obtain a benefit for himself or^t
^sfor another, he intentionally or knowingly uses a fictitious debit^t
^scard or the pretended number or description of a fictitious card;^t
^s(3) he intentionally or knowingly receives a benefit^t
^sfor himself or for another that he knows has been obtained in^t
^sviolation of this section;^t
^s(4) he steals a debit card or, with knowledge that it^t
^shas been stolen, receives a card with intent to use it, to sell it,^t
^sor to transfer it to a person other than the issuer or the^t
^scardholder;^t
^s(5) he buys a debit card from a person who he knows^t
^sis not the issuer;^t
^s(6) not being the issuer, he sells a debit card;^t
^s(7) not being the cardholder, and without the^t
^seffective consent of the cardholder, he signs or writes his name or^t
^sthe name of another on a debit card with intent to use it; or^t
^s(8) he possesses two or more incomplete debit cards^t
^sthat have not been issued to him with intent to complete them^t
^swithout the effective consent of the issuer. For purposes of this^t
^ssubdivision, a card is incomplete if part of the matter that an^t
^sissuer requires to appear on the card before it can be used (other^t
^sthan the signature of the cardholder) has not yet been stamped,^t
^sembossed, imprinted, or written on it.^t
^s(c) It is presumed that a person who used a revoked,^t
^scanceled, or expired debit card had knowledge that the card had^t
^sbeen revoked, canceled, or expired if he had received notice of^t
^srevocation, cancellation, or expiration from the issuer. For^t
^spurposes of this section, notice may be either notice given orally^t
^sin person or by telephone, or in writing by mail or by telegram.^t
^sIf written notice was sent by registered or certified mail with^t
^sreturn receipt requested, or by telegram with report of delivery^t
^srequested, addressed to the cardholder at the last address shown by^t
^sthe records of the issuer, it is presumed that the notice was^t
^sreceived by the cardholder no later than five days after sent.^t
^s(d) An offense under this section is a felony of the third^t
^sdegree.^t
^sSec. 32.51. ^t^sPenalty for Fraudulently Obtaining or Denying^t
^sWorkers' Compensation Benefits^t^s. (a) A person commits an offense^t
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^sif the person, with intent to obtain or deny payments of workers'^t
^scompensation benefits under the workers' compensation laws of this^t
^sstate for himself or another, knowingly or intentionally:^t
^s(1) makes a false or misleading statement;^t
^s(2) misrepresents or conceals a material fact; or^t
^s(3) fabricates, alters, conceals, or destroys a^t
^sdocument other than a governmental record.^t
^s(b) A person commits an offense if the person receives^t
^sworkers' compensation benefits that the person knows he is not^t
^slegally entitled to receive.^t
^s(c) An offense under Subsection (a) of this section is a^t
^sClass A misdemeanor. An offense under Subsection (b) of this^t
^ssection is:^t
^s(1) a Class A misdemeanor if the value of the^t
^sbenefits received is less than $750;^t
^s(2) a felony of the third degree if the value of the^t
^sbenefits received is $750 or more but less than $10,000; and^t
^s(3) a felony of the second degree if the value of the^t
^sbenefits received is $10,000 or more.^t
^sSec. 32.52. ^t^sFraudulent Statement to Financial Institution^t^s.^t
^s(a) A person commits an offense if, with intent to defraud or harm^t
^sa financial institution, he knowingly makes a materially false or^t
^smisleading written statement to obtain or in an attempt to obtain^t
^smoneys, accounts, funds, credits, assets, securities, or other^t
^sproperty owned by, or under the custody or control of, a financial^t
^sinstitution.^t
^s(b) An offense under this section is a Class A misdemeanor.^t
^sSec. 32.53. TAXICAB FARES. (a) A person who operates a^t
^staxicab commits an offense if the person intentionally extends the^t
^sdistance or time for a trip beyond the distance or time necessary^t
^sfor the trip for the purpose of increasing the fare for the trip.^t
^s(b) An offense under this section is a Class B misdemeanor.^t
^sSec. 32.54. PENALTY FOR FRAUDULENTLY OBTAINING WORKERS'^t
^sCOMPENSATION INSURANCE COVERAGE. (a) A person commits an offense^t
^sif the person, with intent to obtain workers' compensation^t
^sinsurance coverage for himself or another under the workers'^t
^scompensation insurance laws of this state, knowingly or^t
^sintentionally:^t
^s(1) makes a false statement;^t
^s(2) misrepresents or conceals a material fact; or^t
^s(3) makes a false entry in, fabricates, alters,^t
^sconceals, or destroys a document other than a governmental record.^t
^s(b) An offense under Subsection (a) of this section is a^t
^sfelony of the third degree.^t
^s(c) The court may order a person to pay restitution to an^t
^sinsurance company, the Texas workers' compensation insurance^t
^sfacility, or the Texas Workers' Compensation Insurance Fund if the^t
^sperson commits an offense under this section.^t
^sSUBCHAPTER E. SAVINGS AND LOAN ASSOCIATIONS^t
^sSec. 32.71. EMBEZZLEMENT; UNAUTHORIZED ISSUANCE; FALSE^t
^sENTRY. (a) An officer, director, member of any committee, clerk,^t
^sor agent of any savings and loan association in this state commits^t
^san offense if the person embezzles, abstracts, or misapplies money,^t
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^sfunds, or credits of the association, issues or puts into^t
^scirculation any warrant or other order without proper authority,^t
^sissues, assigns, transfers, cancels, or delivers up any note, bond,^t
^sdraft, mortgage, judgment, decree, or other written instrument^t
^sbelonging to the association, certifies to or makes a false entry^t
^sin any book, report, or statement of or to the association, with^t
^sintent to deceive, injure, or defraud the association or a member^t
^sof the association for the purpose of inducing any person to become^t
^sa member of the association or to deceive anyone appointed to^t
^sexamine the affairs of the association.^t
^s(b) A person commits an offense if the person, with intent^t
^sto deceive, injure, or defraud, aids or abets any officer, member^t
^sof any committee, or other person in committing any of the acts^t
^sprohibited under Subsection (a).^t
^s(c) An offense under this section is a felony punishable by^t
^simprisonment for not less than one year or more than 10 years.^t
^sSec. 32.72. FALSE INFORMATION; SUPPRESSING EVIDENCE.^t
^s(a) Any person commits an offense if the person for the purpose of^t
^sinfluencing the actions of an association or its employees, agents,^t
^sor representatives or for the purpose of influencing the actions of^t
^sThe Finance Commission of Texas, the savings and loan commissioner,^t
^sor employees, agents, or representatives of the Savings and Loan^t
^sDepartment of Texas, knowingly:^t
^s(1) removes, mutilates, destroys, or conceals a^t
^spaper, book, or record of a savings and loan association or of the^t
^ssavings and loan commissioner or the Savings and Loan Department of^t
^sTexas for the purpose of concealing a fact or suppressing evidence;^t
^s(2) makes, passes, alters, or publishes a false,^t
^scounterfeit, or forged instrument, paper, document, statement, or^t
^sreport to a savings and loan association or to the savings and loan^t
^scommissioner or the Savings and Loan Department of Texas; or^t
^s(3) substantially overvalues land, property,^t
^ssecurity, an asset, or income in connection with a transaction with^t
^sa savings and loan association without substantiation,^t
^sjustification, or supporting documentation generally accepted by^t
^sappraisal standards.^t
^s(b) An offense under this section is a felony punishable by^t
^sa fine of not more than $100,000, imprisonment for not more than 10^t
^syears, or both.^t
CHAPTER 33. COMPUTER CRIMES
Sec. 33.01. Definitions. In this chapter:
(1) ^u"Access" means to approach, instruct, communicate^w
^uwith, store data in, retrieve or intercept data from, alter data or^w
^ucomputer software in, or otherwise make use of any resource of a^w
^ucomputer, computer system, or computer network.^w
^u(2)^w "Communications common carrier" means a person who
owns or operates a telephone system in this state that includes
equipment or facilities for the conveyance, transmission, or
reception of communications and who receives compensation from
persons who use that system.
^u(3)^w ^s(2)^t "Computer" means an electronic, magnetic,
optical, electrochemical, or other high-speed data processing
device that performs logical, arithmetic, or memory functions by
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the manipulations of electronic or magnetic impulses and includes
all input, output, processing, storage, or communication facilities
that are connected or related to the device.
^u(4)^w ^s(3)^t "Computer network" means the interconnection
of two or more ^ucomputers or^w computer systems by satellite,
microwave, line, or other communication medium with the capability
to transmit information among the computers.
^u(5)^w ^s(4)^t "Computer program" means an ordered set of
data representing coded instructions or statements that when
executed by a computer cause the computer to process data or
perform specific functions.
^u(6)^w ^s(5)^t "Computer security system" means the design,
procedures, or other measures that the person responsible for the
operation and use of a computer employs to restrict the use of the
computer to particular persons or uses or that the owner or
licensee of data stored or maintained by a computer in which the
owner or licensee is entitled to store or maintain the data employs
to restrict access to the data.
^u(7)^w ^s(6)^t "Computer services" means the product of the
use of a computer, the information stored in the computer, or the
personnel supporting the computer, including computer time, data
processing, and storage functions.
^u(8)^w ^s(7)^t "Computer system" means any combination of a
computer or ^ucomputer network^w ^scomputers^t with the documentation,
computer software, or physical facilities supporting the computer
^uor computer network^w.
^u(9)^w ^s(8)^t "Computer software" means a set of computer
programs, procedures, and associated documentation related to the
operation of a computer, computer system, or computer network.
^u(10)^w ^s(9)^t "Computer virus" means an unwanted computer
program or other set of instructions inserted into a computer's
memory, operating system, or program that is specifically
constructed with the ability to replicate itself ^uor^w ^sand^t to affect
the other programs or files in the computer by attaching a copy of
the unwanted program or other set of instructions to one or more
computer programs or files.
^s(10) "Damage" includes partial or total alteration,^t
^sdamage, or erasure of stored data, or interruption of computer^t
^sservices.^t
(11) "Data" means a representation of information,
knowledge, facts, concepts, or instructions that is being prepared
or has been prepared in a formalized manner and is intended to be
stored or processed, is being stored or processed, or has been
stored or processed in a computer. Data may be embodied in any
form, including but not limited to computer printouts, magnetic
storage media, ^ulaser storage media,^w and punchcards, or may be
stored internally in the memory of the computer.
^u(12) "Effective consent" includes consent by a person^w
^ulegally authorized to act for the owner. Consent is not effective^w
^uif:^w
^u(A) induced by deception, as defined by Section^w
^u31.01, or induced by coercion;^w
^u(B) given by a person the actor knows is not^w
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^ulegally authorized to act for the owner;^w
^u(C) given by a person who by reason of youth,^w
^umental disease or defect, or intoxication is known by the actor to^w
^ube unable to make reasonable property dispositions;^w
^u(D) given solely to detect the commission of an^w
^uoffense; or^w
^u(E) used for a purpose other than that for which^w
^uthe consent was given.^w
^u(13)^w ^s(12)^t "Electric utility" has the meaning
assigned by Subsection (c), Section 3, Public Utility Regulatory
Act (Article 1446c, Vernon's Texas Civil Statutes).
^u(14) "Harm" includes partial or total alteration,^w
^udamage, or erasure of stored data, interruption of computer^w
^uservices, introduction of a computer virus, or any other loss,^w
^udisadvantage, or injury that might reasonably be suffered as a^w
^uresult of the actor's conduct.^w
^u(15) "Owner" means a person who:^w
^u(A) has title to the property, possession of the^w
^uproperty, whether lawful or not, or a greater right to possession^w
^uof the property than the actor;^w
^u(B) has the right to restrict access to the^w
^uproperty; or^w
^u(C) is the licensee of data or computer^w
^usoftware.^w
^u(16) "Property" means:^w
^u(A) tangible or intangible personal property^w
^uincluding a computer, computer system, computer network, computer^w
^usoftware, or data; or^w
^u(B) the use of a computer, computer system,^w
^ucomputer network, computer software, or data.^w
Sec. 33.02. Breach of Computer Security. (a) A person
commits an offense if the person ^uknowingly accesses a computer,^w
^ucomputer network, or computer system^w^s:^t
^s(1) uses a computer without the effective consent of^t
^sthe owner of the computer or a person authorized to license access^t
^sto the computer and the actor knows that there exists a computer^t
^ssecurity system intended to prevent him from making that use of the^t
^scomputer; or^t
^s(2) gains access to data stored or maintained by a^t
^scomputer^t without the effective consent of the owner ^sor licensee^t
^sof the data and the actor knows that there exists a computer^t
^ssecurity system intended to prevent him from gaining access to that^t
^sdata^t.
(b) A person commits an offense if the person intentionally
or knowingly gives a password, identifying code, personal
identification number, debit card number, bank account number, or
other confidential information about a computer security system to
another person without the effective consent of the person
employing the computer security system to restrict ^sthe use of a^t
^scomputer or to restrict^t access to ^ua computer, computer network,^w
^ucomputer system, or^w data ^sstored or maintained by a computer^t.
(c) An offense under this section is a Class A misdemeanor
^uunless the actor's intent is to obtain a benefit or defraud or^w
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^uharm another, in which event the offense is:^w
^u(1) a state jail felony if the value of the benefit or^w
^uthe amount of the loss or harm is less than $20,000; or^w
^u(2) a felony of the third degree if the value of the^w
^ubenefit or the amount of the loss or harm is $20,000 or more^w.
^u(d) A person who is subject to prosecution under this^w
^usection and any other section of this code may be prosecuted under^w
^ueither or both sections.^w
Sec. 33.03. ^sHARMFUL ACCESS. (a) A person commits an^t
^soffense if the person intentionally or knowingly and without^t
^sauthorization from the owner of the computer or a person authorized^t
^sto license access to the computer:^t
^s(1) damages, alters, or destroys a computer, computer^t
^sprogram or software, computer system, data, or computer network;^t
^s(2) causes a computer to interrupt or impair a^t
^sgovernment operation, public communication, public transportation,^t
^sor public service providing water or gas;^t
^s(3) uses a computer to:^t
^s(A) tamper with government, medical, or^t
^seducational records; or^t
^s(B) receive or use records that were not^t
^sintended for public dissemination to gain an advantage over^t
^sbusiness competitors;^t
^s(4) obtains information from or introduces false^t
^sinformation into a computer system to damage or enhance the data or^t
^scredit records of a person;^t
^s(5) causes a computer to remove, alter, erase, or^t
^scopy a negotiable instrument; or^t
^s(6) inserts or introduces a computer virus into a^t
^scomputer program, computer network, or computer system.^t
^s(b) An offense under this section is a:^t
^s(1) felony of the second degree if the value of the^t
^sloss or damage caused by the conduct is $20,000 or more;^t
^s(2) felony of the third degree if the value of the^t
^sloss or damage caused by the conduct is $750 or more but less than^t
^s$20,000; or^t
^s(3) Class A misdemeanor if the value of the loss or^t
^sdamage caused by the conduct is $200 or more but less than $750.^t
^sSec. 33.04.^t Defenses. It is an affirmative defense to
prosecution under ^uSection^w ^sSections^t 33.02 ^sand 33.03 of this code^t
that the actor was an officer, employee, or agent of a
communications common carrier or electric utility and committed the
proscribed act or acts in the course of employment while engaged in
an activity that is a necessary incident to the rendition of
service or to the protection of the rights or property of the
communications common carrier or electric utility.
Sec. ^u33.04^w ^s33.05^t. Assistance by Attorney General. The
attorney general, if requested to do so by a prosecuting attorney,
may assist the prosecuting attorney in the investigation or
prosecution of an offense under this chapter or of any other
offense involving the use of a computer.
TITLE 8. OFFENSES AGAINST PUBLIC ADMINISTRATION
CHAPTER 36. BRIBERY AND CORRUPT INFLUENCE
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Sec. 36.01. Definitions. In this chapter:
(1) ^s"Coercion" means a threat, however communicated:^t
^s(A) to commit any offense;^t
^s(B) to inflict bodily injury on the person^t
^sthreatened or another;^t
^s(C) to accuse any person of any offense;^t
^s(D) to expose any person to hatred, contempt,^t
^sor ridicule;^t
^s(E) to harm the credit, business repute, or^t
^specuniary interest of any person; or^t
^s(F) to unlawfully take or withhold action as a^t
^spublic servant, or to cause a public servant to unlawfully take or^t
^swithhold action.^t
^s(2)^t "Custody" means:
(A) detained or under arrest by a peace officer;
or
(B) under restraint by a public servant pursuant
to an order of a court.
^s(3) "Official proceeding" means any type of^t
^sadministrative, executive, legislative, or judicial proceeding that^t
^smay be conducted before a public servant authorized by law to take^t
^sstatements under oath.^t
^u(2)^w ^s(4)^t "Party official" means a person who holds
any position or office in a political party, whether by election,
appointment, or employment.
^u(3)^w ^s(5)^t "Benefit" means anything reasonably regarded
as pecuniary gain or pecuniary advantage, including benefit to any
other person in whose welfare the beneficiary has a direct and
substantial interest.
^u(4)^w ^s(6)^t "Vote" means to cast a ballot in an election
regulated by law.
Sec. 36.02. Bribery. (a) A person commits an offense if he
intentionally or knowingly offers, confers, or agrees to confer on
another, or solicits, accepts, or agrees to accept from another:
(1) any benefit as consideration for the recipient's
decision, opinion, recommendation, vote, or other exercise of
discretion as a public servant, party official, or voter;
(2) any benefit as consideration for the recipient's
decision, vote, recommendation, or other exercise of official
discretion in a judicial or administrative proceeding;
(3) any benefit as consideration for a violation of a
duty imposed by law on a public servant or party official; or
(4) any benefit that is a political contribution as
defined by Title 15, Election Code, ^uor that is an expenditure made^w
^uand reported in accordance with Chapter 305, Government Code,^w if
the benefit was offered, conferred, solicited, accepted, or agreed
to pursuant to an express agreement to take or withhold a specific
exercise of official discretion if such exercise of official
discretion would not have been taken or withheld but for the
benefit; notwithstanding any rule of evidence or jury instruction
allowing factual inferences in the absence of certain evidence,
direct evidence of the express agreement shall be required in any
prosecution under this subdivision.
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(b) It is no defense to prosecution under this section that
a person whom the actor sought to influence was not qualified to
act in the desired way whether because he had not yet assumed
office or he lacked jurisdiction or for any other reason.
(c) It is no defense to prosecution under this section that
the benefit is not offered or conferred or that the benefit is not
solicited or accepted until after:
(1) the decision, opinion, recommendation, vote, or
other exercise of discretion has occurred; or
(2) the public servant ceases to be a public servant.
(d) It is an exception to the application of Subdivisions
(1), (2), and (3) of Subsection (a) ^sof this section^t that the
benefit is a political contribution ^saccepted^t as defined by Title
15, Election Code^u, or an expenditure made and reported in^w
^uaccordance with Chapter 305, Government Code^w.
(e) An offense under this section is a felony of the second
degree.
Sec. 36.03. Coercion of Public Servant or Voter. (a) A
person commits an offense if by means of coercion he:
(1) influences or attempts to influence a public
servant in a specific exercise of his official power or a specific
performance of his official duty or influences or attempts to
influence a public servant to violate the public servant's known
legal duty; or
(2) influences or attempts to influence a voter not to
vote or to vote in a particular manner.
(b) An offense under this section is a Class A misdemeanor
unless the coercion is a threat to commit a felony, in which event
it is a felony of the third degree.
(c) It is an exception to the application of Subsection
(a)(1) of this section that the person who influences or attempts
to influence the public servant is a member of the governing body
of a governmental entity, and that the action that influences or
attempts to influence the public servant is an official action
taken by the member of the governing body. For the purposes of
this subsection, the term "official action" includes deliberations
by the governing body of a governmental entity.
Sec. 36.04. Improper Influence. (a) A person commits an
offense if he privately addresses a representation, entreaty,
argument, or other communication to any public servant who
exercises or will exercise official discretion in an adjudicatory
proceeding with an intent to influence the outcome of the
proceeding on the basis of considerations other than those
authorized by law.
(b) For purposes of this section, "adjudicatory proceeding"
means any proceeding before a court or any other agency of
government in which the legal rights, powers, duties, or privileges
of specified parties are determined.
(c) An offense under this section is a Class A misdemeanor.
Sec. 36.05. Tampering with Witness. (a) A person commits
an offense if, with intent to influence the witness, he offers,
confers, or agrees to confer any benefit on a witness or
prospective witness in an official proceeding or coerces a witness
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or prospective witness in an official proceeding:
(1) to testify falsely;
(2) to withhold any testimony, information, document,
or thing;
(3) to elude legal process summoning him to testify or
supply evidence; ^sor^t
(4) to absent himself from an official proceeding to
which he has been legally summoned^u; or^w
^u(5) to abstain from, discontinue, or delay the^w
^uprosecution of another witness^w.
(b) A witness or prospective witness in an official
proceeding commits an offense if he knowingly solicits, accepts, or
agrees to accept any benefit on the representation or understanding
that he will do any of the things specified in Subsection (a) ^sof^t
^sthis section^t.
(c) ^uIt is a defense to prosecution under Subsection (a)(5)^w
^uthat the benefit received was:^w
^u(1) reasonable restitution for damages suffered by the^w
^ucomplaining witness as a result of the offense; and^w
^u(2) a result of an agreement negotiated with the^w
^uassistance or acquiescence of an attorney for the state who^w
^urepresented the state in the case.^w
^u(d)^w An offense under this section is a ^ustate jail^w felony ^sof^t
^sthe third degree^t.
Sec. 36.06. ^uObstruction or^w Retaliation. (a) A person
commits an offense if he intentionally or knowingly harms or
threatens to harm another by an unlawful act^u:^w
^u(1)^w in retaliation for or on account of the service of
another as a public servant, witness, prospective witness,
informant, or a person who has reported ^uor who the actor knows^w
^uintends to report^w the occurrence of a crime^u; or^w
^u(2) to prevent or delay the service of another as a^w
^upublic servant, witness, prospective witness, informant, or a^w
^uperson who has reported or who the actor knows intends to report^w
^uthe occurrence of a crime^w.
(b) For purposes of this section, "informant" means a person
who has communicated information to the government in connection
with any governmental function.
(c) An offense under this section is a felony of the third
degree.
Sec. 36.07. ACCEPTANCE OF HONORARIUM. (a) A public servant
commits an offense if the public servant solicits, accepts, or
agrees to accept an honorarium in consideration for services that
the public servant would not have been requested to provide but for
the public servant's official position or duties.
(b) This section does not prohibit a public servant from
accepting transportation and lodging expenses ^spermitted under^t
^sSection 305.025(b)(2), Government Code,^t in connection with a
conference or similar event ^uin which the public servant renders^w
^uservices, such as addressing an audience or engaging in a seminar,^w
^uto the extent that those services are more than merely perfunctory,^w
or from accepting meals in connection with such an event.
(c) An offense under this section is a Class A misdemeanor.
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Sec. 36.08. Gift to Public Servant BY PERSON SUBJECT TO HIS
JURISDICTION. (a) A public servant in an agency performing
regulatory functions or conducting inspections or investigations
commits an offense if he solicits, accepts, or agrees to accept any
benefit from a person the public servant knows to be subject to
regulation, inspection, or investigation by the public servant or
his agency.
(b) A public servant in an agency having custody of
prisoners commits an offense if he solicits, accepts, or agrees to
accept any benefit from a person the public servant knows to be in
his custody or the custody of his agency.
(c) A public servant in an agency carrying on civil or
criminal litigation on behalf of government commits an offense if
he solicits, accepts, or agrees to accept any benefit from a person
against whom the public servant knows litigation is pending or
contemplated by the public servant or his agency.
(d) A public servant who exercises discretion in connection
with contracts, purchases, payments, claims, or other pecuniary
transactions of government commits an offense if he solicits,
accepts, or agrees to accept any benefit from a person the public
servant knows is interested in or likely to become interested in
any contract, purchase, payment, claim, or transaction involving
the exercise of his discretion.
(e) A public servant who has judicial or administrative
authority, who is employed by or in a tribunal having judicial or
administrative authority, or who participates in the enforcement of
the tribunal's decision, commits an offense if he solicits,
accepts, or agrees to accept any benefit from a person the public
servant knows is interested in or likely to become interested in
any matter before the public servant or tribunal.
(f) A member of the legislature, the governor, the
lieutenant governor, or a person employed by a member of the
legislature, the governor, the lieutenant governor, or an agency of
the legislature commits an offense if he solicits, accepts, or
agrees to accept any benefit from any person.
(g) A public servant who is a hearing examiner employed by
an agency performing regulatory functions and who conducts hearings
in contested cases commits an offense if the public servant
solicits, accepts, or agrees to accept any benefit from any person
who is appearing before the agency in a contested case, who is
doing business with the agency, or who the public servant knows is
interested in any matter before the public servant. The exception
provided by Section 36.10(b) ^sof this code^t does not apply to a
benefit under this subsection.
(h) An offense under this section is a Class A misdemeanor.
^u(i) A public servant who receives an unsolicited benefit^w
^uthat the public servant is prohibited from accepting under this^w
^usection may donate the benefit to a governmental entity that has^w
^uthe authority to accept the gift or may donate the benefit to a^w
^urecognized tax-exempt charitable organization formed for^w
^ueducational, religious, or scientific purposes.^w
Sec. 36.09. OFFERING GIFT TO PUBLIC SERVANT. (a) A person
commits an offense if he offers, confers, or agrees to confer any
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benefit on a public servant that he knows the public servant is
prohibited by law from accepting.
(b) An offense under this section is a Class A misdemeanor.
Sec. 36.10. NON-APPLICABLE. (a) Sections 36.08 (Gift to
Public Servant) and 36.09 (Offering Gift to Public Servant) ^sof^t
^sthis code^t do not apply to:
(1) a fee prescribed by law to be received by a public
servant or any other benefit to which the public servant is
lawfully entitled or for which he gives legitimate consideration in
a capacity other than as a public servant;
(2) a gift or other benefit conferred on account of
kinship or a personal, professional, or business relationship
independent of the official status of the recipient; or
(3) a benefit to a public servant required to file a
statement under Chapter 421, Acts of the 63rd Legislature, Regular
Session, 1973 (Article 6252-9b, Vernon's Texas Civil Statutes), or
a report under Title 15, Election Code, that is derived from a
function in honor or appreciation of the recipient if:
(A) the benefit and the source of any benefit in
excess of $50 is reported in the statement; and
(B) the benefit is used solely to defray the
expenses that accrue in the performance of duties or activities in
connection with the office which are nonreimbursable by the state
or political subdivision;
(4) a political contribution as defined by Title 15,
Election Code; ^sor^t
(5) a gift, award, or memento to a member of the
legislative or executive branch that is required to be reported
under Chapter 305, Government Code^u;^w
^u(6) an item with a value of less than $50, excluding^w
^ucash or a negotiable instrument as described by Section 3.104,^w
^uBusiness & Commerce Code; or^w
^u(7) an item issued by a governmental entity that^w
^uallows the use of property or facilities owned, leased, or operated^w
^uby the governmental entity^w.
(b) Section 36.08 (Gift to Public Servant) ^sof this code^t
does not apply to food, lodging, transportation, or entertainment
accepted as a guest and, if the donee is required by law to report
those items, reported by the donee in accordance with that law.
(c) Section 36.09 (Offering Gift to Public Servant) ^sof this^t
^scode^t does not apply to food, lodging, transportation, or
entertainment accepted as a guest and, if the donor is required by
law to report those items, reported by the donor in accordance with
that law.
CHAPTER 37. PERJURY AND OTHER FALSIFICATION
Sec. 37.01. DEFINITIONS. In this chapter:
(1) "Governmental record" means:
(A) anything belonging to, received by, or kept
by government for information;
(B) anything required by law to be kept by
others for information of government; or
(C) a license, certificate, permit, seal, title,
or similar document issued by government.
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(2) ^s"Official proceeding" means any type of^t
^sadministrative, executive, legislative, or judicial proceeding that^t
^smay be conducted before a public servant authorized by law to take^t
^sstatements under oath.^t
^s(3)^t "Statement" means any representation of fact.
Sec. 37.02. PERJURY. (a) A person commits an offense if,
with intent to deceive and with knowledge of the statement's
meaning:
(1) he makes a false statement under oath or swears to
the truth of a false statement previously made^s;^t and
^s(2)^t the statement is required or authorized by law
to be made under oath^u; or^w
^u(2) he makes a false unsworn declaration under Chapter^w
^u132, Civil Practice and Remedies Code^w.
(b) An offense under this section is a Class A misdemeanor.
Sec. 37.03. AGGRAVATED PERJURY. (a) A person commits an
offense if he commits perjury as defined in Section 37.02 ^sof this^t
^scode^t, and the false statement:
(1) is made during or in connection with an official
proceeding; and
(2) is material.
(b) An offense under this section is a felony of the third
degree.
Sec. 37.04. MATERIALITY. (a) A statement is material,
regardless of the admissibility of the statement under the rules of
evidence, if it could have affected the course or outcome of the
official proceeding.
(b) It is no defense to prosecution under Section 37.03 ^sof^t
^sthis code^t (Aggravated Perjury) that the declarant mistakenly
believed the statement to be immaterial.
(c) Whether a statement is material in a given factual
situation is a question of law.
Sec. 37.05. RETRACTION. It is a defense to prosecution
under Section 37.03 ^sof this code^t (Aggravated Perjury) that the
actor retracted his false statement:
(1) before completion of the testimony at the official
proceeding; and
(2) before it became manifest that the falsity of the
statement would be exposed.
Sec. 37.06. INCONSISTENT STATEMENTS. An information or
indictment for perjury under Section 37.02 ^sof this code^t or
aggravated perjury under Section 37.03 ^sof this code^t that alleges
that the declarant has made statements under oath, both of which
cannot be true, need not allege which statement is false. At the
trial the prosecution need not prove which statement is false.
Sec. 37.07. IRREGULARITIES NO DEFENSE. (a) It is no
defense to prosecution under Section 37.02 (Perjury) or 37.03
(Aggravated Perjury) ^sof this code^t that the oath was administered
or taken in an irregular manner, or that there was some
irregularity in the appointment or qualification of the person who
administered the oath.
(b) It is no defense to prosecution under Section 37.02
(Perjury) or 37.03 (Aggravated Perjury) ^sof this code^t that a
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document was not sworn to if the document contains a recital that
it was made under oath, the declarant was aware of the recital when
he signed the document, and the document contains the signed jurat
of a public servant authorized to administer oaths.
Sec. 37.08. FALSE REPORT TO PEACE OFFICER. (a) A person
commits an offense if^u, with intent to deceive, he knowingly makes a^w
^ufalse statement to a peace officer conducting a criminal^w
^uinvestigation and the statement is material to the investigation^w
^she:^t
^s(1) reports to a peace officer an offense or incident^t
^swithin the officer's concern, knowing that the offense or incident^t
^sdid not occur; or^t
^s(2) makes a report to a peace officer relating to an^t
^soffense or incident within the officer's concern knowing that he^t
^shas no information relating to the offense or incident^t.
(b) An offense under this section is a Class B misdemeanor.
Sec. 37.09. TAMPERING WITH OR FABRICATING PHYSICAL EVIDENCE.
(a) A person commits an offense if, knowing that an investigation
or official proceeding is pending or in progress, he:
(1) alters, destroys, or conceals any record,
document, or thing with intent to impair its verity, legibility, or
availability as evidence in the investigation or official
proceeding; or
(2) makes, presents, or uses any record, document, or
thing with knowledge of its falsity and with intent to affect the
course or outcome of the investigation or official proceeding.
(b) This section shall not apply if the record, document, or
thing concealed is privileged or is the work product of the parties
to the investigation or official proceeding.
(c) An offense under this section is a felony of the third
degree.
Sec. 37.10. TAMPERING WITH GOVERNMENTAL RECORD. (a) A
person commits an offense if he:
(1) knowingly makes a false entry in, or false
alteration of, a governmental record;
(2) makes, presents, or uses any record, document, or
thing with knowledge of its falsity and with intent that it be
taken as a genuine governmental record;
(3) intentionally destroys, conceals, removes, or
otherwise impairs the verity, legibility, or availability of a
governmental record; ^sor^t
(4) possesses, sells, or offers to sell a governmental
record or a blank governmental record form with intent that it be
used unlawfully; ^sor^t
^u(5)^w ^s(4)^t makes, presents, or uses a governmental
record with knowledge of its falsity^u; or^w^s.^t
^u(6)^w ^s(5)^t possesses, sells, or offers to sell a
governmental record or a blank governmental record form with
knowledge that it was obtained unlawfully.
(b) It is an exception to the application of Subsection
(a)(3) ^sof this section^t that the governmental record is destroyed
pursuant to legal authorization. With regard to the destruction of
a local government record, legal authorization includes compliance
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with the provisions of Subtitle C, Title 6, Local Government Code.
(c) Except as provided in Subsection (d) ^sof this section^t,
an offense under this section is a Class A misdemeanor unless the
actor's intent is to defraud or harm another, in which event the
offense is a ^ustate jail^w felony ^sof the third degree^t.
(d) An offense under this section is a felony of the third
degree if it is shown on the trial of the offense that the
governmental record was a license, certificate, permit, seal,
title, or similar document issued by government, unless the actor's
intent is to defraud or harm another, in which event the offense is
a felony of the second degree.
(e) It is an affirmative defense to prosecution for
possession under Subsection ^u(a)(6)^w ^s(a)(5) of this section^t that
the possession occurred in the actual discharge of official duties
as a public servant.
(f) ^uIt is a defense to prosecution under Subsection (a)(1),^w
^u(a)(2), or (a)(5) that the false entry or false information could^w
^uhave no effect on the government's purpose for requiring the^w
^ugovernmental record.^w
^u(g)^w A person is presumed to intend to defraud or harm
another if the person acts with respect to two or more of the same
type of governmental records or blank governmental record forms and
if each governmental record or blank governmental record form is a
license, certificate, permit, seal, title, or similar document
issued by government.
Sec. 37.11. IMPERSONATING PUBLIC SERVANT. (a) A person
commits an offense if he impersonates a public servant with intent
to induce another to submit to his pretended official authority or
to rely on his pretended official acts.
(b) An offense under this section is a Class A misdemeanor
unless the person impersonated a peace officer, in which event it
is a felony of the third degree.
Sec. 37.12. False Identification As Peace Officer;
Misrepresentation Of Property. (a) A person commits an offense
if:
(1) the person makes, provides to another person, or
possesses a card, document, badge, insignia, shoulder emblem, or
other item bearing an insignia of a law enforcement agency that
identifies a person as a peace officer or a reserve law enforcement
officer; and
(2) the person who makes, provides, or possesses the
item bearing the insignia knows that the person so identified by
the item is not ^ucommissioned as a^w ^scertified or licensed by the^t
^sCommission on Law Enforcement Officer Standards and Education in^t
^sthe capacity of^t peace officer or reserve law enforcement officer
^uas^w indicated on the item.
(b) It is a defense to prosecution under this section that:
(1) the card, document, badge, insignia, shoulder
emblem, or other item bearing an insignia of a law enforcement
agency clearly identifies the person as an honorary or junior peace
officer or reserve law enforcement officer, or as a member of a
junior posse;
(2) the person identified as a peace officer or
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reserve law enforcement officer by the item bearing the insignia
was ^ucommissioned^w ^scertified or licensed^t in that capacity when the
item was made; or
(3) the item was used or intended for use exclusively
for decorative purposes or in an artistic or dramatic presentation.
(c) In this section, "reserve law enforcement officer" has
the same meaning as is given that term in Section ^u415.001,^w
^uGovernment Code^w ^s6, Chapter 546, Acts of the 59th Legislature,^t
^sRegular Session, 1965 (Article 4413(29aa), Vernon's Texas Civil^t
^sStatutes)^t.
(d) A person commits an offense if the person intentionally
or knowingly misrepresents an object as property belonging to a law
enforcement agency.
(e) An offense under this section is a Class B misdemeanor.
CHAPTER 38. OBSTRUCTING GOVERNMENTAL OPERATION
Sec. 38.01. Definitions. In this chapter:
(1) ^s"Complaining witness" means the victim of a crime^t
^sor a person who signs a criminal complaint.^t
^s(2)^t "Custody" means ^sdetained or^t under arrest by a
peace officer or under restraint by a public servant pursuant to an
order of a court.
^u(2)^w ^s(3)^t "Escape" means unauthorized departure from
custody or failure to return to custody following temporary leave
for a specific purpose or limited period ^uor leave that is part of^w
^uan intermittent sentence^w, but does not include a violation of
conditions of ^ucommunity supervision^w ^sprobation^t or parole.
^u(3)^w ^s(4)^t "Economic benefit" means anything reasonably
regarded as an economic gain or advantage^u, including accepting or^w
^uoffering to accept employment for a fee, accepting or offering to^w
^uaccept a fee, entering into a fee contract, or accepting or^w
^uagreeing to accept money or anything of value^w.
^u(4) "Finance" means to provide funds or capital or to^w
^ufurnish with necessary funds^w ^s(5) "Funeral establishment" means an^t
^sestablishment licensed under Section 4, Chapter 251, Acts of the^t
^s53rd Legislature, Regular Session, 1953 (Article 4582b, Vernon's^t
^sTexas Civil Statutes)^t.
^u(5) "Fugitive from justice" means a person for whom a^w
^uvalid arrest warrant has been issued.^w
(6) "Governmental function" includes any activity that
a public servant is lawfully authorized to undertake on behalf of
government.
(7) ^u"Invest funds" means to commit money to earn a^w
^ufinancial return^w ^s"Hospital" means a general hospital or special^t
^shospital as defined by Chapter 241, Health and Safety Code^t.
(8) "Member of the family" means anyone related within
the third degree of consanguinity or affinity, as determined under
Article 5996h, Revised Statutes.
(9) ^s"Official proceeding" means:^t
^s(A) a proceeding before a magistrate, court, or^t
^sgrand jury of this state;^t
^s(B) a proceeding before the legislature or an^t
^sinquiry authorized by either house or any joint committee^t
^sestablished by a joint or concurrent resolution of the two houses^t
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^sof the legislature or any committee or subcommittee of either house^t
^sof the legislature;^t
^s(C) a proceeding in which pursuant to lawful^t
^sauthority a court orders attendance or the production of evidence;^t
^sor^t
^s(D) a proceeding that otherwise is made^t
^sexpressly subject to this chapter.^t
^s(10)^t "Qualified nonprofit organization" means a
nonprofit organization that meets the following conditions:
(A) the primary purposes of the organization do
not include the rendition of legal services or education regarding
legal services;
(B) the recommending, furnishing, paying for, or
educating persons regarding legal services is incidental and
reasonably related to the primary purposes of the organization;
(C) the organization does not derive a financial
benefit from the rendition of legal services by a lawyer; and
(D) the person for whom the legal services are
rendered, and not the organization, is recognized as the client of
a lawyer.
^u(10) "Public media" means a telephone directory or^w
^ulegal directory, newspaper or other periodical, billboard or other^w
^usign, radio or television broadcast, recorded message the public^w
^umay access by dialing a telephone number, or a written^w
^ucommunication not prohibited by Section 38.12(d).^w
(11) "Solicit ^uemployment^w" means to communicate in
person or by telephone ^uor written communication^w with a ^uprospective^w
^uclient^w ^sclaimant^t or ^sdefendant or with^t a member of the
^uprospective client's^w ^sclaimant's or defendant's^t family
^uconcerning legal representation arising out of a particular^w
^uoccurrence or event, or series of occurrences or events, or^w
^uconcerning an existing legal problem of the prospective client, for^w
^uthe purpose of providing legal representation to the prospective^w
^uclient,^w when neither the person receiving the communication nor
anyone acting on that person's behalf has requested the
communication. The term does not include ^ua communication initiated^w
^scommunicating^t by a family member of the person receiving a
communication, ^ua communication^w ^scommunicating^t by an attorney who
has a prior ^uor existing^w attorney-client relationship with the
person receiving the communication, or ^ucommunication by an attorney^w
^ufor^w ^scommunicating with^t a qualified nonprofit organization ^uwith^w
^uthe organization's members^w for the purpose of educating ^uthe^w
^uorganization's members to understand the law,^w ^slaymen^t to recognize
legal problems, to make intelligent selection of legal counsel, or
to use available legal services. ^uThe term does not include an^w
^uadvertisement by an attorney through public media.^w
Sec. 38.02. Failure to Identify. (a) A person commits an
offense if he intentionally refuses to ^sreport or^t give his name,
residence address, or date of birth to a peace officer who has
lawfully arrested the person and requested the information.
(b) A person commits an offense if he ^uintentionally^w ^sreports^t
^sor^t gives a false or fictitious name, residence address, or date of
birth to a peace officer who has:
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(1) lawfully arrested the person;
(2) lawfully detained the person; or
(3) requested the information from a person that the
peace officer has good cause to believe is a witness to a criminal
offense.
(c) ^sIn this section, "fugitive from justice" means a person^t
^sfor whom a valid arrest warrant has been issued by a magistrate of^t
^sthis state, if the warrant has not been executed.^t
^s(d)^t Except as provided by Subsection ^u(d)^w ^s(e) of this^t
^ssection^t, an offense under this section is a Class C misdemeanor.
^u(d)^w ^s(e)^t If it is shown on the trial of an offense under
this section that the defendant was a fugitive from justice at the
time of the offense ^sor that the defendant has been previously^t
^sconvicted of an offense under this section^t, the offense is a Class
B misdemeanor.
Sec. 38.03. Resisting Arrest, Search, or Transportation.
(a) A person commits an offense if he intentionally prevents or
obstructs a person he knows is a peace officer or a person acting
in a peace officer's presence and at his direction from effecting
an arrest, search, or transportation of the actor or another by
using force against the peace officer or another.
(b) It is no defense to prosecution under this section that
the arrest or search was unlawful.
(c) Except as provided in Subsection (d) ^sof this section^t,
an offense under this section is a Class A misdemeanor.
(d) An offense under this section is a felony of the third
degree if the actor uses a deadly weapon to resist the arrest or
search.
Sec. 38.04. Evading Arrest or Detention. (a) A person
commits an offense if he intentionally flees from a person he knows
is a peace officer attempting ^ulawfully^w to arrest ^shim^t or detain
him ^sfor the purpose of questioning or investigating possible^t
^scriminal activity^t.
(b) ^sIt is an exception to the application of this section^t
^sthat the attempted arrest is unlawful or the detention is without^t
^sreasonable suspicion to investigate^t.
^s(c) It is presumed that the actor recklessly engaged in^t
^sconduct placing another in imminent danger of serious bodily injury^t
^sunder Subsection (d) of this section if the actor operated a motor^t
^svehicle while intoxicated during the commission of the offense. In^t
^sthis subsection, "intoxicated" has the meaning assigned that term^t
^sby Article 6701l-1, Revised Statutes.^t
^s(d)^t An offense under this section is a Class B
misdemeanor, except that the offense is^s:^t
^s(1) a Class A misdemeanor if the actor, during the^t
^scommission of the offense, recklessly engaged in conduct that^t
^splaced another in imminent danger of serious bodily injury; or^t
^s(2)^t a felony of the third degree if a peace officer
suffers serious bodily injury or death from any cause other than an
assault or homicide by the actor as a direct result of an attempt
by the officer to apprehend the actor while the actor is in flight.
Sec. 38.05. Hindering Apprehension or Prosecution. (a) A
person commits an offense if, with intent to hinder the arrest,
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prosecution, conviction, or punishment of another for an offense,
he:
(1) harbors or conceals the other;
(2) provides or aids in providing the other with any
means of avoiding arrest or effecting escape; or
(3) warns the other of impending discovery or
apprehension.
(b) It is a defense to prosecution under Subsection (a)(3)
^sof this section^t that the warning was given in connection with
an effort to bring another into compliance with the law.
(c) An offense under this section is a Class A misdemeanor,
except that the offense is a felony of the third degree if the
person who is harbored, concealed, provided with a means of
avoiding arrest or effecting escape, or warned of discovery or
apprehension is under arrest for, charged with, or convicted of a
felony and the person charged under this section knew that the
person they harbored, concealed, provided with a means of avoiding
arrest or effecting escape, or warned of discovery or apprehension
is under arrest for, charged with, or convicted of a felony.
Sec. 38.06. ^sCOMPOUNDING. (a) A complaining witness^t
^scommits an offense if, after criminal proceedings have been^t
^sinstituted, he solicits, accepts, or agrees to accept any benefit^t
^sin consideration of abstaining from, discontinuing, or delaying the^t
^sprosecution of another for an offense.^t
^s(b) It is a defense to prosecution under this section that^t
^sthe benefit received was:^t
^s(1) reasonable restitution for damages suffered by^t
^sthe complaining witness as a result of the offense; and^t
^s(2) the result of an agreement negotiated with the^t
^sassistance or acquiescence of an attorney for the state who^t
^srepresented the state in the case.^t
^s(c) An offense under this section is a Class A misdemeanor.^t
^sSec. 38.07.^t Escape. (a) A person commits an offense if
he escapes from custody when he is:
(1) under arrest for, charged with, or convicted of an
offense; or
(2) in custody pursuant to a lawful order of a court.
(b) Except as provided in Subsections (c)^u,^w ^sand^t (d)^u, and^w
^u(e)^w ^sof this section^t, an offense under this section is a Class A
misdemeanor.
(c) An offense under this section is a felony of the third
degree if the actor:
(1) is under arrest for, charged with, or convicted of
a felony; or
(2) is confined in a ^usecure correctional facility^w
^spenal institution^t.
(d) An offense under this section is a felony of the second
degree if the actor ^sused or threatened to use a deadly weapon^t to
effect his escape ^ucauses bodily injury.^w
^u(e) An offense under this section is a felony of the first^w
^udegree if to effect his escape the actor:^w
^u(1) causes serious bodily injury; or^w
^u(2) uses or threatens to use a deadly weapon^w.
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Sec. ^u38.07^w ^s38.08^t. Permitting or Facilitating Escape.
(a) An official or employee of ^ua correctional facility^w ^san^t
^sinstitution that is responsible for maintaining persons in custody^t
commits an offense if he ^sintentionally,^t knowingly^s, or^t
^srecklessly^t permits or facilitates the escape of a person in
custody.
(b) A person commits an offense if he ^sintentionally or^t
knowingly causes or facilitates the escape of one who is in custody
pursuant to:
(1) an allegation or adjudication of delinquency; or
(2) ^sa statutory procedure authorizing^t involuntary
commitment for mental illness ^uunder Subtitle C, Title 7, Health and^w
^uSafety Code, or for chemical dependency under Chapter 462, Health^w
^uand Safety Code^w^s, alcoholism, or drug addiction^t.
(c) Except as provided in ^uSubsections^w ^sSubsection^t (d) ^uand^w
^u(e)^w ^sof this section^t, an offense under this section is a Class A
misdemeanor.
(d) An offense under this section is a felony of the third
degree if^s:^t
^s(1)^t the person in custody^u:^w
^u(1)^w was under arrest for, charged with^u,^w or convicted
of a felony; ^uor^w
(2) ^sthe person in custody^t was confined in a
^ucorrectional facility other than a secure correctional facility^w
^uafter conviction of a felony.^w
^u(e) An offense under this section is a felony of the second^w
^udegree if:^w
^u(1)^w ^spenal institution;^t
^s(3)^t the actor ^uor the person in custody^w used or
threatened to use a deadly weapon to effect the escape; or
^u(2)^w ^s(4)^t the ^uperson in custody was confined in a^w
^usecure correctional facility after conviction of a felony^w ^soffense^t
^sunder Subsection (a) of this section was committed intentionally^t.
Sec. ^u38.08^w ^s38.09^t. Effect of Unlawful Custody. It is no
defense to prosecution under Section ^u38.06^w ^s38.07 (Escape)^t or
^u38.07^w ^s38.08 (Facilitating Escape) of this code^t that the custody
was unlawful.
Sec. ^u38.09^w ^s38.10^t. Implements for Escape. (a) A person
commits an offense if, with intent to facilitate escape, he
introduces into a ^ucorrectional facility^w ^spenal institution^t, or
provides ^ua person in custody or^w an inmate with, a deadly weapon or
anything that may be useful for escape.
(b) An offense under this section is a felony of the third
degree unless the actor introduced or provided a deadly weapon, in
which event the offense is a felony of the second degree.
Sec. ^u38.10^w ^s38.11^t. Bail Jumping and Failure to Appear.
(a) A person lawfully released from custody, with or without bail,
on condition that he subsequently appear commits an offense if he
intentionally or knowingly fails to appear in accordance with the
terms of his release.
(b) ^uIt is a defense to prosecution under this section that^w
^uthe appearance was incident to community supervision, parole, or an^w
^uintermittent sentence^w ^sThis section does not apply to appearances^t
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^sincident to probation or parole^t.
(c) It is a defense to prosecution under this section that
the actor had a reasonable excuse for his failure to appear in
accordance with the terms of his release.
(d) Except as provided in Subsections (e) and (f) ^sof this^t
^ssection^t, an offense under this section is a Class A misdemeanor.
(e) An offense under this section is a Class C misdemeanor
if the offense for which the actor's appearance was required is
punishable by fine only.
(f) An offense under this section is a felony of the third
degree if the offense for which the actor's appearance was required
is classified as a felony.
Sec. ^u38.11^w ^s38.111. FAILURE TO RETURN TO CUSTODY FOLLOWING^t
^sWORK RELEASE. (a) A person serving a sentence under Section 5 or^t
^s6, Article 42.03, Code of Criminal Procedure, commits an offense^t
^sif, having been released from custody as provided by either of^t
^sthose sections, he fails to return to custody as required under the^t
^sterms of his sentence.^t
^s(b) An offense under this section is a Class A misdemeanor.^t
^sSec. 38.112^t. PROHIBITED SUBSTANCES IN CORRECTIONAL
^uFACILITY OR ON PROPERTY OF TEXAS DEPARTMENT OF CRIMINAL JUSTICE^w
^sFacilities^t. (a) A person commits an offense if the person
provides an alcoholic beverage, controlled substance, or dangerous
drug to an inmate of a ^ucorrectional facility^w ^smunicipal or county^t
^sjail^t, except on the prescription of a physician.
(b) A person commits an offense if the person takes ^uan^w
^ualcoholic beverage,^w ^sa^t controlled substance^u,^w or dangerous drug
into a ^ucorrectional facility,^w ^smunicipal or county jail or a^t
^scorrectional facility authorized by Subchapter F, Chapter 351,^t
^sLocal Government Code^t except for delivery to a ^ucorrectional^w
^ufacility^w ^sjail or correctional facility^t warehouse, pharmacy, or
physician.
(c) ^sA person commits an offense if the person provides an^t
^salcoholic beverage, controlled substance, or dangerous drug to an^t
^sinmate of the institutional division, except on the prescription of^t
^sa physician.^t
^s(d)^t A person commits an offense if the person takes a
controlled substance or dangerous drug ^uon property owned, used, or^w
^ucontrolled by the Texas Department of Criminal Justice^w ^sinto a^t
^scorrectional facility authorized by Chapter 495, Government Code,^t
^sor into the confines of property owned by the institutional^t
^sdivision and used or occupied by inmates^t, except for delivery to ^ua^w
^san institutional division or correctional facility^t warehouse,
pharmacy, or physician ^uon property owned, used, or controlled by^w
^uthe department^w.
^u(d)^w ^s(e)^t A person commits an offense if the person
possesses a controlled substance or dangerous drug while ^uon^w
^uproperty owned, used, or controlled by the Texas Department of^w
^uCriminal Justice^w ^sin the confines of property belonging to the^t
^sinstitutional division^t.
^u(e)^w ^s(f)^t It is an affirmative defense to prosecution under
Subsection ^u(d)^w ^s(e)^t of this section that the person possessed the
controlled substance or dangerous drug pursuant to a prescription
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issued by a practitioner or while delivering the substance or drug
to ^ua^w ^san institutional division^t warehouse, pharmacy, or physician
^uon property owned, used, or controlled by the department^w.
^u(f)^w ^s(g)^t In this section:
(1) ^s"Alcoholic beverage" has the meaning assigned by^t
^sSection 1.04(1), Alcoholic Beverage Code.^t
^s(2) "Controlled substance" has the meaning assigned^t
^sby Section 481.002, Health and Safety Code.^t
^s(3) "Dangerous drug" has the meaning assigned by^t
^sSection 483.001, Health and Safety Code.^t
^s(4) "Institutional division" means the institutional^t
^sdivision of the Texas Department of Criminal Justice.^t
^s(5)^t "Practitioner" has the meaning assigned by
Section 481.002, Health and Safety Code.
^u(2)^w ^s(6)^t "Prescription" has the meaning assigned by
Section 481.002, Health and Safety Code.
^u(g)^w ^s(h)^t An offense under this section is a felony of the
third degree.
^u(h) Notwithstanding Section 15.01(d), if a person commits^w
^uthe offense of criminal attempt to commit an offense under^w
^uSubsection (a) or (b), the offense committed under Section 15.01 is^w
^ua felony of the third degree.^w
^uSec. 38.113. UNAUTHORIZED ABSENCE FROM COMMUNITY CORRECTIONS^w
^uFACILITY. (a) A person commits an offense if the person is^w
^urequired as a condition of probation to submit to a period of^w
^udetention or treatment in a community corrections facility and the^w
^uperson fails to report to or leaves the facility without the^w
^uapproval of the court, the community supervision and corrections^w
^udepartment supervising the person, or the director of the facility.^w
^u(b) An offense under this section is a state jail felony.^w
Sec. 38.12. Barratry. (a) A person commits an offense if,
with intent to obtain an economic benefit ^uthe person^w ^sfor himself,^t
^she^t:
^u(1) knowingly institutes a suit or claim that the^w
^uperson has not been authorized to pursue;^w
^u(2) solicits employment, either in person or by^w
^utelephone, for himself or for another;^w
^u(3) pays, gives, or advances or offers to pay, give,^w
^uor advance to a prospective client money or anything of value to^w
^uobtain legal representation from the prospective client;^w
^u(4) pays or gives or offers to pay or give a person^w
^umoney or anything of value to solicit employment;^w
^u(5) pays or gives or offers to pay or give a family^w
^umember of a prospective client money or anything of value to^w
^usolicit employment; or^w
^u(6) accepts or agrees to accept money or anything of^w
^uvalue to solicit employment.^w
^u(b) A person commits an offense if the person:^w
^u(1) is an attorney, chiropractor, physician, surgeon,^w
^uor private investigator licensed to practice in this state or any^w
^uperson licensed, certified, or registered by a health care^w
^uregulatory agency of this state; and^w
^u(2) knowingly:^w
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^u(A) finances or invests funds the person knows^w
^uor believes are intended to further the commission of an offense^w
^uunder Subsection (a); or^w
^u(B) accepts employment within the scope of the^w
^uperson's license, registration, or certification that results from^w
^uthe solicitation of employment in violation of Subsection (a).^w
^u(c) It is an exception to prosecution under Subsection (a)^w
^uor (b) that the person's conduct is authorized by the Texas^w
^uDisciplinary Rules of Professional Conduct or any rule of court.^w
^u(d) A person commits an offense if the person:^w
^u(1) is an attorney, chiropractor, physician, surgeon,^w
^uor private investigator licensed to practice in this state or any^w
^uperson licensed, certified, or registered by a health care^w
^uregulatory agency of this state;^w
^u(2) with the intent to obtain professional employment^w
^ufor himself or for another, sends or knowingly permits to be sent^w
^uto an individual who has not sought the person's employment, legal^w
^urepresentation, advice, or care a written communication that:^w
^u(A) concerns an action for personal injury or^w
^uwrongful death or otherwise relates to an accident or disaster^w
^uinvolving the person to whom the communication is addressed or a^w
^urelative of that person and that was mailed before the 31st day^w
^uafter the date on which the accident or disaster occurred;^w
^u(B) concerns a specific matter and relates to^w
^ulegal representation and the person knows or reasonably should know^w
^uthat the person to whom the communication is directed is^w
^urepresented by a lawyer in the matter;^w
^u(C) concerns an arrest of or issuance of a^w
^usummons to the person to whom the communication is addressed or a^w
^urelative of that person and that was mailed before the 31st day^w
^uafter the date on which the arrest or issuance of the summons^w
^uoccurred;^w
^u(D) concerns a lawsuit of any kind, including an^w
^uaction for divorce, in which the person to whom the communication^w
^uis addressed is a defendant or a relative of that person, unless^w
^uthe lawsuit in which the person is named as a defendant has been on^w
^ufile for more than 31 days before the date on which the^w
^ucommunication was mailed;^w
^u(E) is sent or permitted to be sent by a person^w
^uwho knows or reasonably should know that the injured person or^w
^urelative of the injured person has indicated a desire not to be^w
^ucontacted by or receive communications concerning employment;^w
^u(F) involves coercion, duress, fraud,^w
^uoverreaching, harassment, intimidation, or undue influence; or^w
^u(G) contains a false, fraudulent, misleading,^w
^udeceptive, or unfair statement or claim.^w
^u(e) For purposes of Subsection (d)(2)(E), a desire not to be^w
^ucontacted is presumed if an accident report reflects that such an^w
^uindication has been made by an injured person or that person's^w
^urelative.^w
^u(f) An offense under Subsection (a) or (b) is a felony of^w
^uthe third degree.^w
^u(g) Except as provided by Subsection (h), an offense under^w
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^uSubsection (d) is a Class A misdemeanor.^w
^u(h) An offense under Subsection (d) is a felony of the third^w
^udegree if it is shown on the trial of the offense that the^w
^udefendant has previously been convicted under Subsection (d).^w
^s(1) institutes any suit or claim in which he knows he^t
^shas no interest;^t
^s(2) institutes any suit or claim that he knows is^t
^sfalse;^t
^s(3) solicits employment for himself or another to^t
^sprosecute or defend a suit or to collect a claim; or^t
^s(4) procures another to solicit for him or another^t
^semployment to prosecute or defend a suit or to collect a claim.^t
^s(b) Intent to obtain an economic benefit is presumed if the^t
^sperson accepts employment for a fee, accepts a fee, or accepts or^t
^sagrees to accept money or any economic benefit.^t
^s(c) Except as provided by Subsection (d) of this section,^t
^san offense under Subsection (a) of this section is a Class A^t
^smisdemeanor.^t
^s(d) An offense under Subsection (a)(3) or (a)(4) of this^t
^ssection is a felony of the third degree if it is shown on the trial^t
^sof the offense that:^t
^s(1) the defendant has previously been convicted under^t
^sSubsection (a)(3) or (a)(4) of this section; and^t
^s(2) the solicitation is performed in whole or in^t
^spart:^t
^s(A) in a hospital, funeral establishment, or^t
^spublic or private cemetery or at the scene of an accident;^t
^s(B) by using a person who is an employee of:^t
^s(i) this state;^t
^s(ii) a political subdivision of this^t
^sstate, including a county, municipality, or special purpose^t
^sdistrict or authority; or^t
^s(iii) a hospital or funeral^t
^sestablishment; or^t
^s(C) by impersonating a clergyman, public^t
^semployee, or emergency assistance worker or volunteer.^t
^u(i)^w ^s(e)^t Final conviction of felony barratry is a serious
crime for all purposes and acts, specifically including the State
Bar Rules ^uand the Texas Rules of Disciplinary Procedure^w.
Sec. 38.13. Hindering Proceedings by Disorderly Conduct.
(a) A person commits an offense if he intentionally hinders an
official proceeding by noise or violent or tumultuous behavior or
disturbance.
(b) A person commits an offense if he recklessly hinders an
official proceeding by noise or violent or tumultuous behavior or
disturbance and continues after explicit official request to
desist.
(c) An offense under this section is a Class A misdemeanor.
Sec. 38.14. ^sPREVENTING EXECUTION OF CIVIL PROCESS. (a) A^t
^sperson commits an offense if he intentionally or knowingly prevents^t
^sthe execution of any process in a civil cause.^t
^s(b) It is an exception to the application of this section^t
^sthat the actor evaded service of process by avoiding detection.^t
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^s(c) An offense under this section is a Class C misdemeanor.^t
^sSec. 38.15. ^t^sTampering with Devices Designed to Prevent^t
^sDriving While Intoxicated^t^s. (a) In this section, "device" means a^t
^sdevice approved by the Department of Public Safety under Section^t
^s23A(f), Chapter 173, Acts of the 47th Legislature, Regular Session,^t
^s1941 (Article 6687b, Vernon's Texas Civil Statutes), that makes^t
^simpractical the operation of a motor vehicle if ethyl alcohol is^t
^sdetected in the breath of the operator.^t
^s(b) A person commits an offense if the person intentionally^t
^sor knowingly, for the purpose of allowing a person who is subject^t
^sto a condition of probation under Section 6f(b), Article 42.12,^t
^sCode of Criminal Procedure, or who is subject to driver's license^t
^srestrictions under Section 23A(f) or 25(a), Chapter 173, Acts of^t
^sthe 47th Legislature, Regular Session, 1941 (Article 6687b,^t
^sVernon's Texas Civil Statutes), to operate a motor vehicle whether^t
^sor not the person is intoxicated:^t
^s(1) tampers with a device; or^t
^s(2) introduces or allows to be introduced into the^t
^sdevice any substance other than the deep-lung air of the^t
^sprobationer or restricted operator.^t
^s(c) An offense under this section is a Class B misdemeanor.^t
^sSec. 38.16. ^t^sInjury to or Interference With Animal Under^t
^sSupervision of Peace Officer or Department of Corrections Employee^t^s.^t
^s(a) A person commits an offense if, knowing that a dog, horse, or^t
^sother animal is under the supervision of a peace officer,^t
^scorrections officer, or jailer and is being used for law^t
^senforcement, corrections, prison or jail security, or investigative^t
^spurposes, the person knowingly, intentionally, or recklessly:^t
^s(1) interferes with the animal; or^t
^s(2) injures the animal.^t
^s(b) An offense under this section is a Class A misdemeanor.^t
^sSec. 38.17.^t TAKING OR ATTEMPTING TO TAKE WEAPON FROM PEACE
OFFICER. (a) In this section, "firearm" has the meanings assigned
by Section 46.01 ^sof this code^t.
(b) A person commits an offense if the person intentionally
or knowingly and with force takes or attempts to take from a peace
officer the officer's firearm^u, nightstick, or personal protection^w
^uchemical dispensing device^w with the intention of harming the
officer or a third person.
(c) The actor is presumed to have known that the peace
officer was a peace officer if the officer was wearing a
distinctive uniform or badge indicating his employment, or if the
officer identified himself as a peace officer.
(d) It is a defense to prosecution under this section that
the defendant took or attempted to take the weapon from a peace
officer who was using force against the defendant or another in
excess of the amount of force permitted by law.
(e) An offense under this section is a ^ustate jail^w felony ^sof^t
^sthe third degree^t.
Sec. ^u38.15^w ^s38.18^t. Interference With ^uPublic^w Duties ^sof^t
^sPublic Servants^t. (a) A person commits an offense if the person
^sintentionally, knowingly, recklessly, or^t with criminal
negligence interrupts, disrupts, impedes, or otherwise interferes
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with:
(1) a peace officer while the peace officer is
performing a duty or exercising authority imposed or granted by
law;
(2) a person who is employed to provide emergency
medical services including the transportation of ill or injured
persons while the person is performing that duty; ^sor^t
(3) a fire fighter, while the fire fighter is fighting
a fire or investigating the cause of a fire^u;^w
^u(4) an animal under the supervision of a peace^w
^uofficer, corrections officer, or jailer, if the person knows the^w
^uanimal is being used for law enforcement, corrections, prison or^w
^ujail security, or investigative purposes; or^w
^u(5) the transmission of a communication over a^w
^ucitizen's band radio channel, the purpose of which communication is^w
^uto inform or inquire about an emergency^w.
(b) An offense under this section is a Class B misdemeanor.
(c) It is a defense to prosecution under Subsection (a)(1)
^sof this section^t that the conduct engaged in by the defendant
was intended to warn a person operating a motor vehicle of the
presence of a peace officer who was enforcing the provisions of the
Uniform Act Regulating Traffic on Highways (Article 6701d, Vernon's
Texas Civil Statutes).
(d) It is a defense to prosecution under this section that
the interruption, disruption, impediment, or interference alleged
consisted of speech only.
^u(e) In this section, "emergency" means a condition or^w
^ucircumstance in which an individual is or is reasonably believed by^w
^uthe person transmitting the communication to be in imminent danger^w
^uof serious bodily injury or in which property is or is reasonably^w
^ubelieved by the person transmitting the communication to be in^w
^uimminent danger of damage or destruction.^w
CHAPTER 39. ABUSE OF OFFICE
Sec. 39.01. ^uDEFINITIONS. In this chapter:^w
^u(1) "Law relating to a public servant's office or^w
^uemployment" means a law that specifically applies to a person^w
^uacting in the capacity of a public servant and that directly or^w
^uindirectly:^w
^u(A) imposes a duty on the public servant; or^w
^u(B) governs the conduct of the public servant.^w
^u(2) "Misuse" means to deal with property contrary to:^w
^u(A) an agreement under which the public servant^w
^uholds the property;^w
^u(B) a contract of employment or oath of office^w
^uof a public servant;^w
^u(C) a law, including provisions of the General^w
^uAppropriations Act specifically relating to government property,^w
^uthat prescribes the manner of custody or disposition of the^w
^uproperty; or^w
^u(D) a limited purpose for which the property is^w
^udelivered or received.^w
^uSec. 39.02. ABUSE OF^w OFFICIAL ^uCAPACITY^w ^sMISCONDUCT^t. (a) A
public servant commits an offense if, with intent to obtain a
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benefit or with intent to harm ^uor defraud^w another, he intentionally
or knowingly:
(1) violates a law relating to ^uthe public servant's^w
^shis^t office or employment; or
(2) ^umisuses government property, services, personnel,^w
^uor^w ^smisapplies^t any ^uother^w thing of value belonging to the
government that has come into ^uthe public servant's^w ^shis^t custody or
possession by virtue of ^uthe public servant's^w ^shis^t office or
employment.
(b) An offense under Subsection (a)(1) ^sof this section^t is
a Class A misdemeanor.
(c) An offense under Subsection (a)(2) ^sof this section^t is:
(1) a Class C misdemeanor if the value of the use of
the thing ^umisused^w ^smisapplied^t is less than $20;
(2) a Class B misdemeanor if the value of the use of
the thing ^umisused^w ^smisapplied^t is $20 or more but less than ^u$500^w
^s$200^t;
(3) a Class A misdemeanor if the value of the use of
the thing ^umisused^w ^smisapplied^t is ^u$500^w ^s$200^t or more but less than
^u$1,500^w ^s$750^t;
(4) a ^ustate jail^w felony ^sof the third degree^t if the
value of the use of the thing ^umisused^w ^smisapplied^t is ^u$1,500^w ^s$750^t
or more but less than $20,000;
^u(5) a felony of the third degree if the value of the^w
^uuse of the thing misused is $20,000 or more but less than $100,000;^w
^sand^t
^u(6)^w ^s(5)^t a felony of the second degree if the value
of the use of the thing ^umisused^w ^smisapplied^t is ^u$100,000^w ^s$20,000^t
or more ^ubut less than $200,000; or^w
^u(7) a felony of the first degree if the value of the^w
^uuse of the thing misused is $200,000 or more^w.
^u(d) A discount or award given for travel, such as frequent^w
^uflyer miles, rental car or hotel discounts, or food coupons, are^w
^unot things of value belonging to the government for purposes of^w
^uthis section due to the administrative difficulty and cost involved^w
^uin recapturing the discount or award for a governmental entity.^w
Sec. ^u39.03^w ^s39.02^t. Official Oppression. (a) A public
servant acting under color of his office or employment commits an
offense if he:
(1) intentionally subjects another to mistreatment or
to arrest, detention, search, seizure, dispossession, assessment,
or lien that he knows is unlawful;
(2) intentionally denies or impedes another in the
exercise or enjoyment of any right, privilege, power, or immunity,
knowing his conduct is unlawful; or
(3) intentionally subjects another to sexual
harassment.
(b) For purposes of this section, a public servant acts
under color of his office or employment if he acts or purports to
act in an official capacity or takes advantage of such actual or
purported capacity.
(c) In this section, "sexual harassment" means unwelcome
sexual advances, requests for sexual favors, or other verbal or
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physical conduct of a sexual nature, submission to which is made a
term or condition of a person's exercise or enjoyment of any right,
privilege, power, or immunity, either explicitly or implicitly.
(d) An offense under this section is a Class A misdemeanor.
Sec. ^u39.04^w ^s39.021^t. VIOLATIONS OF THE CIVIL RIGHTS OF
^uPERSON IN CUSTODY^w ^sA PRISONER^t. (a) ^uAn official or employee of^w
^sA jailer or guard employed at a municipal or county jail, by the^t
^sTexas Department of Corrections, or by^t a correctional facility
^sauthorized by Article 5115d, Revised Statutes, or Article^t
^s6166g-2, Revised Statutes,^t or a peace officer commits an offense
if he^s:^t
^s(1)^t intentionally ^ssubjects a person in custody to^t
^sbodily injury knowing his conduct is unlawful;^t
^s(2) willfully^t denies or impedes a person in custody
in the exercise or enjoyment of any right, privilege, or immunity
knowing his conduct is unlawful.
(b) An offense under this section is a ^uClass A misdemeanor^w
^sfelony of the third degree. An offense under this section is a^t
^sfelony of the second degree if serious bodily injury occurs or a^t
^sfelony of the first degree if death occurs^t.
(c) This section shall not preclude prosecution for any
other offense set out in this code.
(d) The Attorney General of Texas shall have concurrent
jurisdiction with law enforcement agencies to investigate
violations of this statute involving serious bodily injury or
death.
(e) In this section, "custody" means the detention, arrest,
or confinement of a person.
Sec. ^u39.05^w ^s39.022^t. Failure to Report Death of Prisoner.
(a) A person commits an offense if the person is required to
conduct an investigation and file a report by Article ^u49.18^w
^s49.08(b)^t, Code of Criminal Procedure, ^s1965,^t and the person
fails to investigate the death, fails to file the report as
required, or fails to include in a filed report facts known or
discovered in the investigation.
(b) An offense under this section is a Class B misdemeanor.
Sec. ^u39.06^w ^s39.03^t. Misuse of Official Information. (a) A
public servant commits an offense if, in reliance on information to
which he has access ^uby virtue of his office or employment^w ^sin his^t
^sofficial capacity^t and ^uthat^w ^swhich^t has not been made public, he:
(1) acquires or aids another to acquire a pecuniary
interest in any property, transaction, or enterprise that may be
affected by the information; ^sor^t
(2) speculates or aids another to speculate on the
basis of the information^u; or^w
^u(3) as a public servant, including as a principal of a^w
^uschool, coerces another into suppressing or failing to report that^w
^uinformation to a law enforcement agency^w.
(b) A public servant ^swho is a judge, justice, intern,^t
^sparticipant in a court-approved history project, or employee of an^t
^sappellate court^t commits an offense if ^uwith intent to obtain a^w
^ubenefit or with intent to harm or defraud another, he discloses or^w
^uuses information for a nongovernmental purpose that:^w
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^u(1) he has access to by means of his office or^w
^uemployment; and^w
^u(2) has not been made public^w ^she intentionally or^t
^sknowingly reveals the result or content of a proposed or actual^t
^sappellate judicial decision or opinion to any person other than a^t
^sjudge, justice, or employee, intern, or participant in a^t
^scourt-approved history project under suitable supervision of the^t
^ssame appellate court prior to its release as a public record or^t
^sannouncement to all parties of interest on an equal basis^t.
(c) A person commits an offense if, with intent to obtain a
benefit or with intent to harm ^uor defraud^w another, he
^sintentionally or knowingly^t solicits or receives from a public
servant ^uinformation that:^w
^u(1) the public servant has access to by means of his^w
^uoffice or employment; and^w
^u(2) has not been made public^w ^sthe result or content of^t
^sa proposed or actual appellate judicial decision or opinion prior^t
^sto the rendition of judgment, when the person knows that the^t
^scontent or result of such order or opinion has not been disclosed^t
^sto the opposing party or parties^t.
(d) ^uIn this section, "information that has not been made^w
^upublic" means any information to which the public does not^w
^ugenerally have access, and that is prohibited from disclosure under^w
^uChapter 424, Acts of the 63rd Legislature, Regular Session, 1973^w
^u(Article 6252-17a, Vernon's Texas Civil Statutes).^w
^u(e) Except as provided by Subsection (f), an^w ^sAn^t offense
under this section is a felony of the third degree.
^u(f) An offense under Subsection (a)(3) is a Class C^w
^umisdemeanor.^w
TITLE 9. OFFENSES AGAINST PUBLIC ORDER AND DECENCY
CHAPTER 42. DISORDERLY CONDUCT AND RELATED OFFENSES
Sec. 42.01. Disorderly Conduct. (a) A person commits an
offense if he intentionally or knowingly:
(1) uses abusive, indecent, profane, or vulgar
language in a public place, and the language by its very utterance
tends to incite an immediate breach of the peace;
(2) makes an offensive gesture or display in a public
place, and the gesture or display tends to incite an immediate
breach of the peace;
(3) creates, by chemical means, a noxious and
unreasonable odor in a public place;
(4) abuses or threatens a person in a public place in
an obviously offensive manner;
(5) makes unreasonable noise in a public place other
than a sport shooting range, as defined by Section 250.001, Local
Government Code, or in or near a private residence that he has no
right to occupy;
(6) fights with another in a public place;
(7) enters on the property of another and for a lewd
or unlawful purpose looks into a dwelling on the property through
any window or other opening in the dwelling;
(8) while on the premises of a hotel or comparable
establishment, for a lewd or unlawful purpose looks into a guest
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room not his own through a window or other opening in the room;
(9) discharges a firearm in a public place other than
a public road or a sport shooting range, as defined by Section
250.001, Local Government Code;
(10) displays a firearm or other deadly weapon in a
public place in a manner calculated to alarm;
(11) discharges a firearm on or across a public road;
or
(12) exposes his anus or genitals in a public place
and is reckless about whether another may be present who will be
offended or alarmed by his act.
(b) It is a defense to prosecution under Subsection (a)(4)
^sof this section^t that the actor had significant provocation for
his abusive or threatening conduct.
(c) For purposes of this section, an act is deemed to occur
in a public place or near a private residence if it produces its
offensive or proscribed consequences in the public place or near a
private residence.
(d) An offense under this section is a Class C misdemeanor
unless committed under Subsection (a)(9) or (a)(10) ^sof this^t
^ssection^t, in which event it is a Class B misdemeanor^s; and further^t
^sprovide that a person who violates Subsection (a)(11) is guilty of^t
^sa misdemeanor and on a first conviction is punishable by a fine of^t
^snot less than $25 nor more than $200, on a second conviction is^t
^spunishable by a fine of not less than $200 nor more than $500, and^t
^son a third or subsequent conviction is punishable by a fine of^t
^s$500^t.
Sec. 42.02. Riot. (a) For the purpose of this section,
"riot" means the assemblage of seven or more persons resulting in
conduct which:
(1) creates an immediate danger of damage to property
or injury to persons;
(2) substantially obstructs law enforcement or other
governmental functions or services; or
(3) by force, threat of force, or physical action
deprives any person of a legal right or disturbs any person in the
enjoyment of a legal right.
(b) A person commits an offense if he knowingly participates
in a riot.
(c) It is a defense to prosecution under this section that
the assembly was at first lawful and when one of those assembled
manifested an intent to engage in conduct enumerated in Subsection
(a) ^sof this section^t, the actor retired from the assembly.
(d) It is no defense to prosecution under this section that
another who was a party to the riot has been acquitted, has not
been arrested, prosecuted, or convicted, has been convicted of a
different offense or of a different type or class of offense, or is
immune from prosecution.
(e) Except as provided in Subsection (f) ^sof this section^t,
an offense under this section is a Class B misdemeanor.
(f) An offense under this section is an offense of the same
classification as any offense of a higher grade committed by anyone
engaged in the riot if the offense was:
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(1) in the furtherance of the purpose of the assembly;
or
(2) an offense which should have been anticipated as a
result of the assembly.
Sec. 42.03. Obstructing Highway or Other Passageway. (a) A
person commits an offense if, without legal privilege or authority,
he intentionally, knowingly, or recklessly:
(1) obstructs a highway, street, sidewalk, railway,
waterway, elevator, aisle, hallway, entrance, or exit to which the
public or a substantial group of the public has access, or any
other place used for the passage of persons, vehicles, or
conveyances, regardless of the means of creating the obstruction
and whether the obstruction arises from his acts alone or from his
acts and the acts of others; or
(2) disobeys a reasonable request or order to move
issued by a person the actor knows to be or is informed is a peace
officer, a fireman, or a person with authority to control the use
of the premises:
(A) to prevent obstruction of a highway or any
of those areas mentioned in Subdivision (1) ^sof this subsection^t;
or
(B) to maintain public safety by dispersing
those gathered in dangerous proximity to a fire, riot, or other
hazard.
(b) For purposes of this section, "obstruct" means to render
impassable or to render passage unreasonably inconvenient or
hazardous.
(c) An offense under this section is a Class B misdemeanor.
Sec. 42.04. Defense When Conduct Consists of Speech or Other
Expression. (a) If conduct that would otherwise violate Section
42.01(a)(5) (Unreasonable Noise) or 42.03 (Obstructing Passageway)
^sof this code^t consists of speech or other communication, of
gathering with others to hear or observe such speech or
communication, or of gathering with others to picket or otherwise
express in a nonviolent manner a position on social, economic,
political, or religious questions, the actor must be ordered to
move, disperse, or otherwise remedy the violation prior to his
arrest if he has not yet intentionally harmed the interests of
others which those sections seek to protect.
(b) The order required by this section may be given by a
peace officer, a fireman, a person with authority to control the
use of the premises, or any person directly affected by the
violation.
(c) It is a defense to prosecution under Section 42.01(a)(5)
or 42.03 ^sof this code^t:
(1) that in circumstances in which this section
requires an order no order was given;
(2) that an order, if given, was manifestly
unreasonable in scope; or
(3) that an order, if given, was promptly obeyed.
Sec. 42.05. Disrupting Meeting or Procession. (a) A person
commits an offense if, with intent to prevent or disrupt a lawful
meeting, procession, or gathering, he obstructs or interferes with
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the meeting, procession, or gathering by physical action or verbal
utterance.
(b) An offense under this section is a Class B misdemeanor.
Sec. 42.06. False Alarm or Report. (a) A person commits an
offense if he knowingly initiates, communicates or circulates a
report of a present, past, or future bombing, fire, offense, or
other emergency that he knows is false or baseless and that would
ordinarily:
(1) cause action by an official or volunteer agency
organized to deal with emergencies;
(2) place a person in fear of imminent serious bodily
injury; or
(3) prevent or interrupt the occupation of a building,
room, place of assembly, place to which the public has access, or
aircraft, automobile, or other mode of conveyance.
(b) An offense under this section is a Class A misdemeanor
unless the false report is of an emergency involving ^ua public^w
^uprimary or secondary school,^w public communications, public
transportation, public water, gas, or power supply or other public
service, in which event the offense is a ^ustate jail^w felony ^sof the^t
^sthird degree^t.
Sec. 42.061. Silent or Abusive Calls to 9-1-1 Service.
(a) In this section "9-1-1 service" and "public safety answering
point" or "PSAP" have the meanings assigned by Section 772.001,
Health and Safety Code.
(b) A person commits an offense if the person makes a
telephone call to 9-1-1 when there is not an emergency and
knowingly or intentionally:
(1) remains silent; or
(2) makes abusive or harassing statements to a PSAP
employee.
(c) A person commits an offense if the person knowingly
permits a telephone under the person's control to be used by
another person in a manner described in Subsection (b) ^sof this^t
^ssection^t.
(d) An offense under this section is a Class B misdemeanor^s,^t
^sunless it is shown on the trial of a defendant that the defendant^t
^shas been previously convicted under this section, in which event^t
^sthe offense is a Class A misdemeanor^t.
Sec. 42.07. HARASSMENT. (a) A person commits an offense
if, with intent to harass, annoy, alarm, abuse, torment, or
embarrass another, he:
(1) initiates communication by telephone or in writing
and in the course of the communication makes a comment, request,
suggestion, or proposal that is obscene;
(2) threatens, by telephone or in writing, in a manner
reasonably likely to alarm the person receiving the threat, to
inflict bodily injury on the person or to commit a felony against
the person, a member of his family, or his property;
(3) conveys, in a manner reasonably likely to alarm
the person receiving the report, a false report, which is known by
the conveyor to be false, that another person has suffered death or
serious bodily injury;
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(4) causes the telephone of another to ring repeatedly
or makes repeated telephone communications anonymously or in a
manner reasonably likely to harass, annoy, alarm, abuse, torment,
embarrass, or offend another;
(5) makes a telephone call and intentionally fails to
hang up or disengage the connection;
(6) knowingly permits a telephone under his control to
be used by a person to commit an offense under this section; or
(7)(A) on more than one occasion engages in conduct
directed specifically toward the other person, including following
that person, that is reasonably likely to harass, annoy, alarm,
abuse, torment, or embarrass that person;
(B) on at least one of those occasions by acts
or words threatens to inflict bodily injury on that person or to
commit an offense against that person, a member of that person's
family, or that person's property; and
(C) on at least one of those occasions engages
in the conduct after the person toward whom the conduct is
specifically directed has reported to a law enforcement agency the
conduct described by this subdivision.
(b) For purposes of Subsection (a)(1) ^sof this section^t,
"obscene" means containing a patently offensive description of or a
solicitation to commit an ultimate sex act, including sexual
intercourse, masturbation, cunnilingus, fellatio, or anilingus, or
a description of an excretory function. In this section, "family"
has the meaning assigned by Section 71.01, Family Code.
(c) An offense under Subsections (a)(1)-(a)(6) ^sof this^t
^ssection^t is a Class B misdemeanor.
(d) An offense under Subsection (a)(7) ^sof this section^t is
a Class A misdemeanor, except that the offense is a felony of the
third degree if the actor has previously been convicted under
Subsection (a)(7) ^sof this section^t.
(e) It is an affirmative defense to prosecution under
Subsection (a)(7) ^sof this section^t that the actor was engaged in
conduct that consisted of activity in support of constitutionally
or statutorily protected rights.
Sec. 42.08. ^sPUBLIC INTOXICATION. (a) An individual^t
^scommits an offense if the individual appears in a public place^t
^sunder the influence of alcohol or any other substance, to the^t
^sdegree that the individual may endanger himself or another.^t
^s(b) In lieu of arresting an individual who commits an^t
^soffense under Subsection (a) of this section, a peace officer may^t
^srelease an individual if:^t
^s(1) the officer believes detention in a penal^t
^sfacility is unnecessary for the protection of the individual or^t
^sothers; and^t
^s(2) the individual:^t
^s(A) is released to the care of an adult who^t
^sagrees to assume responsibility for the individual; or^t
^s(B) verbally consents to voluntary treatment^t
^sfor chemical dependency in a program in a treatment facility^t
^slicensed and approved by the Texas Commission on Alcohol and Drug^t
^sAbuse, and the program admits the individual for treatment.^t
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^s(c) A magistrate may release from custody an individual^t
^sarrested under this section if the magistrate determines the^t
^sindividual meets the conditions required for release in lieu of^t
^sarrest under Subsection (b) of this section.^t
^s(d) The release of an individual under Subsection (b) or^t
^s(c) of this section to an alcohol or drug treatment program may not^t
^sbe considered by a peace officer or magistrate in determining^t
^swhether the individual should be released to such a program for a^t
^ssubsequent incident or arrest under this section.^t
^s(e) A peace officer and the agency or political subdivision^t
^sthat employs the peace officer may not be held liable for damage to^t
^spersons or property that results from the actions of an individual^t
^sreleased under Subsection (b) or (c) of this section.^t
^s(f) It is a defense to prosecution under this section that^t
^sthe alcohol or other substance was administered for therapeutic^t
^spurposes and as a part of the individual's professional medical^t
^streatment by a licensed physician.^t
^s(g) An offense under this section is not a lesser included^t
^soffense of an offense under Article 6701l-1, Revised Statutes.^t
^s(h) An offense under this section is a Class C misdemeanor.^t
^sSec. 42.09. DESECRATION OF VENERATED OBJECT. (a) A person^t
^scommits an offense if he intentionally or knowingly desecrates:^t
^s(1) a public monument; or^t
^s(2) a place of worship or burial.^t
^s(b) For purposes of this section, "desecrate" means deface,^t
^sdamage, or otherwise physically mistreat in a way that the actor^t
^sknows will seriously offend one or more persons likely to observe^t
^sor discover his action.^t
^s(c) Except as provided by Subsection (d) of this section,^t
^san offense under this section is a Class A misdemeanor.^t
^s(d) An offense under this section is a felony of the third^t
^sdegree if a place of worship or burial is desecrated.^t
^sSec. 42.10.^t Abuse of Corpse. (a) A person commits an
offense if, not authorized by law, he intentionally or knowingly:
(1) disinters, disturbs, removes, dissects, in whole
or in part, carries away, or treats in a seriously offensive manner
a human corpse;
(2) conceals a human corpse knowing it to be illegally
disinterred;
(3) sells or buys a human corpse or in any way
traffics in a human corpse; or
(4) transmits or conveys, or procures to be
transmitted or conveyed, a human corpse to a place outside the
state.
(b) An offense under this section is a Class A misdemeanor.
Sec. ^u42.09^w ^s42.11^t. Cruelty to Animals. (a) A person
commits an offense if he intentionally or knowingly:
(1) tortures or seriously overworks an animal;
(2) fails unreasonably to provide necessary food,
care, or shelter for an animal in his custody;
(3) abandons unreasonably an animal in his custody;
(4) transports or confines an animal in a cruel
manner;
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(5) kills, injures, or administers poison to an
animal, other than cattle, horses, sheep, swine, or goats,
belonging to another without legal authority or the owner's
effective consent;
(6) causes one animal to fight with another; or
(7) uses a live animal as a lure in dog race training
or in dog coursing on a racetrack.
(b) It is a defense to prosecution under this section that
the actor was engaged in bona fide experimentation for scientific
research.
(c) For purposes of this section, "animal" means a
domesticated living creature and wild living creature previously
captured. "Animal" does not include an uncaptured wild creature or
a wild creature whose capture was accomplished by conduct at issue
under this section.
(d) An offense under this section is a Class A misdemeanor.
(e) It is a defense to prosecution under Subsection (a)(5)
^sof this section^t that the animal was discovered on the person's
property in the act of or immediately after injuring or killing the
person's goats, sheep, cattle, horses, swine, or poultry and that
the person killed or injured the animal at the time of this
discovery.
Sec. ^u42.10^w ^s42.111^t. Dog Fighting. (a) A person commits an
offense if he intentionally or knowingly:
(1) causes a dog to fight with another dog;
(2) for a pecuniary benefit causes a dog to fight with
another dog;
(3) participates in the earnings of or operates a
facility used for dog fighting;
(4) uses or permits another to use any real estate,
building, room, tent, arena, or other property for dog fighting;
(5) owns or trains a dog with the intent that the dog
be used in an exhibition of dog fighting; or
(6) attends as a spectator an exhibition of dog
fighting.
(b) In this section, "dog fighting" means any situation in
which one dog attacks or fights with another dog.
(c) ^sA party to an offense under Subdivision (2), (3), or^t
^s(4) of Subsection (a) of this section may be required to furnish^t
^sevidence or testify about the offense but may not be prosecuted for^t
^sthe offense about which he is required to furnish evidence or^t
^stestify.^t
^s(d)^t A conviction under Subdivision (2), (3), or (4) of
Subsection (a) ^sof this section^t may be had upon the uncorroborated
testimony of a party to the offense.
^u(d)^w ^s(e)^t It is a defense to prosecution under Subdivision
(1) or (2) of Subsection (a) ^sof this section^t that the actor
caused a dog to fight with another dog to protect livestock, other
property, or a person from the other dog, and for no other purpose.
^u(e)^w ^s(f)^t An offense under Subdivision (1) or (5) of
Subsection (a) ^sof this section^t is a Class A misdemeanor. An
offense under Subdivision (2), (3), or (4) of Subsection (a) ^sof^t
^sthis section^t is a ^ustate jail^w felony ^sof the third degree^t. An
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offense under Subdivision (6) of Subsection (a) ^sof this section^t
is a Class C misdemeanor.
^sSec. 42.13. ^t^sInterference with Emergency Communication^t^s.^t
^s(a) A person commits an offense if the person intentionally,^t
^sknowingly, recklessly, or with criminal negligence interrupts,^t
^sdisrupts, impedes, or otherwise interferes with the transmission of^t
^sa communication over a citizen's band radio channel, the purpose of^t
^swhich communication is to inform or inquire about an emergency.^t
^s(b) In this section, "emergency" means a condition or^t
^scircumstance in which an individual is or is reasonably believed^t
^sby the person transmitting the communication to be in imminent^t
^sdanger of serious bodily injury or in which property is or is^t
^sreasonably believed by the person transmitting the communication to^t
^sbe in imminent danger of damage or destruction.^t
^s(c) An offense under this section is a Class B misdemeanor^t
^sunless, as a result of the commission of the offense, serious^t
^sbodily injury or property loss in excess of $1,000 occurs, in which^t
^sevent the offense is a felony of the third degree.^t
Sec. ^u42.11^w ^s42.14^t. Destruction of Flag. (a) A person
commits an offense if the person intentionally or knowingly
damages, defaces, mutilates, or burns the flag of the United States
or the State of Texas.
(b) In this section, "flag" means an emblem, banner, or
other standard or a copy of an emblem, standard, or banner that is
an official or commonly recognized depiction of the flag of the
United States or of this state and is capable of being flown from a
staff of any character or size. The term does not include a
representation of a flag on a written or printed document, a
periodical, stationery, a painting or photograph, or an article of
clothing or jewelry.
(c) It is an exception to the application of this section
that the act that would otherwise constitute an offense is done in
conformity with statutes of the United States or of this state
relating to the proper disposal of damaged flags.
(d) An offense under this section is a Class A misdemeanor.
CHAPTER 43. PUBLIC INDECENCY
SUBCHAPTER A. PROSTITUTION
Sec. 43.01. DEFINITIONS. In this subchapter:
(1) "Deviate sexual intercourse" means any contact
between the genitals of one person and the mouth or anus of another
person.
(2) "Prostitution" means the offense defined in
Section 43.02 ^sof this code^t.
(3) "Sexual contact" means any touching of the anus,
breast, or any part of the genitals of another person with intent
to arouse or gratify the sexual desire of any person.
(4) "Sexual conduct" includes deviate sexual
intercourse, sexual contact, and sexual intercourse.
(5) "Sexual intercourse" means any penetration of the
female sex organ by the male sex organ.
Sec. 43.02. PROSTITUTION. (a) A person commits an offense
if he knowingly:
(1) offers to engage, agrees to engage, or engages in
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sexual conduct for a fee; or
(2) solicits another in a public place to engage with
him in sexual conduct for hire.
(b) An offense is established under Subsection (a)(1) ^sof^t
^sthis section^t whether the actor is to receive or pay a fee. An
offense is established under Subsection (a)(2) ^sof this section^t
whether the actor solicits a person to hire him or offers to hire
the person solicited.
(c) An offense under this section is a Class B misdemeanor,
unless the actor has been convicted previously under this section,
in which event it is a Class A misdemeanor.
Sec. 43.03. PROMOTION OF PROSTITUTION. (a) A person
commits an offense if, acting other than as a prostitute receiving
compensation for personally rendered prostitution services, he or
she knowingly:
(1) receives money or other property pursuant to an
agreement to participate in the proceeds of prostitution; or
(2) solicits another to engage in sexual conduct with
another person for compensation.
(b) An offense under this section is a Class A misdemeanor.
Sec. 43.04. AGGRAVATED PROMOTION OF PROSTITUTION. (a) A
person commits an offense if he knowingly owns, invests in,
finances, controls, supervises, or manages a prostitution
enterprise that uses two or more prostitutes.
(b) An offense under this section is a felony of the third
degree.
Sec. 43.05. COMPELLING PROSTITUTION. (a) A person commits
an offense if he knowingly:
(1) causes another by force, threat, or fraud to
commit prostitution; or
(2) causes by any means a person younger than 17 years
to commit prostitution.
(b) An offense under this section is a felony of the second
degree.
Sec. 43.06. ACCOMPLICE WITNESS: TESTIMONY AND IMMUNITY.
(a) A party to an offense under this subchapter may be required to
furnish evidence or testify about the offense.
(b) A party to an offense under this subchapter may not be
prosecuted for any offense about which he is required to furnish
evidence or testify, and the evidence and testimony may not be used
against the party in any adjudicatory proceeding except a
prosecution for aggravated perjury.
(c) For purposes of this section, "adjudicatory proceeding"
means a proceeding before a court or any other agency of government
in which the legal rights, powers, duties, or privileges of
specified parties are determined.
(d) A conviction under this subchapter may be had upon the
uncorroborated testimony of a party to the offense.
(Sections 43.07 to 43.20 reserved for expansion)
SUBCHAPTER B. OBSCENITY
Sec. 43.21. DEFINITIONS. (a) In this subchapter:
(1) "Obscene" means material or a performance that:
(A) the average person, applying contemporary
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community standards, would find that taken as a whole appeals to
the prurient interest in sex;
(B) depicts or describes:
(i) patently offensive representations or
descriptions of ultimate sexual acts, normal or perverted, actual
or simulated, including sexual intercourse, sodomy, and sexual
bestiality; or
(ii) patently offensive representations or
descriptions of masturbation, excretory functions, sadism,
masochism, lewd exhibition of the genitals, the male or female
genitals in a state of sexual stimulation or arousal, covered male
genitals in a discernibly turgid state or a device designed and
marketed as useful primarily for stimulation of the human genital
organs; and
(C) taken as a whole, lacks serious literary,
artistic, political, and scientific value.
(2) "Material" means anything tangible that is capable
of being used or adapted to arouse interest, whether through the
medium of reading, observation, sound, or in any other manner, but
does not include an actual three dimensional obscene device.
(3) "Performance" means a play, motion picture, dance,
or other exhibition performed before an audience.
(4) "Patently offensive" means so offensive on its
face as to affront current community standards of decency.
(5) "Promote" means to manufacture, issue, sell, give,
provide, lend, mail, deliver, transfer, transmit, publish,
distribute, circulate, disseminate, present, exhibit, or advertise,
or to offer or agree to do the same.
(6) "Wholesale promote" means to manufacture, issue,
sell, provide, mail, deliver, transfer, transmit, publish,
distribute, circulate, disseminate, or to offer or agree to do the
same for purpose of resale.
(7) "Obscene device" means a device including a dildo
or artificial vagina, designed or marketed as useful primarily for
the stimulation of human genital organs.
(b) If any of the depictions or descriptions of sexual
conduct described in this section are declared by a court of
competent jurisdiction to be unlawfully included herein, this
declaration shall not invalidate this section as to other patently
offensive sexual conduct included herein.
Sec. 43.22. OBSCENE DISPLAY OR DISTRIBUTION. (a) A person
commits an offense if he intentionally or knowingly displays or
distributes an obscene photograph, drawing, or similar visual
representation or other obscene material and is reckless about
whether a person is present who will be offended or alarmed by the
display or distribution.
(b) An offense under this section is a Class C misdemeanor.
Sec. 43.23. OBSCENITY. (a) A person commits an offense if,
knowing its content and character, he wholesale promotes or
possesses with intent to wholesale promote any obscene material or
obscene device.
(b) An offense under Subsection (a) ^sof this section^t is a
^ustate jail^w felony ^sof the third degree^t.
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(c) A person commits an offense if, knowing its content and
character, he:
(1) promotes or possesses with intent to promote any
obscene material or obscene device; or
(2) produces, presents, or directs an obscene
performance or participates in a portion thereof that is obscene or
that contributes to its obscenity.
(d) An offense under Subsection (c) ^sof this section^t is a
Class A misdemeanor.
(e) A person who promotes or wholesale promotes obscene
material or an obscene device or possesses the same with intent to
promote or wholesale promote it in the course of his business is
presumed to do so with knowledge of its content and character.
(f) A person who possesses six or more obscene devices or
identical or similar obscene articles is presumed to possess them
with intent to promote the same.
(g) ^uIt is an affirmative defense to prosecution under this^w
^usection that the^w ^sThis section does not apply to a^t person who
possesses or ^upromotes^w ^sdistributes obscene^t material or ^ua device^w
^uproscribed^w ^sobscene devices or participates in conduct otherwise^t
^sprescribed^t by this section ^udoes so for a bona fide medical,^w
^upsychiatric, judicial, legislative,^w ^swhen the possession,^t
^sparticipation,^t or ^sconduct occurs in the course of^t law
enforcement ^upurpose^w ^sactivities^t.
Sec. 43.24. Sale, Distribution, or Display of Harmful
Material to Minor. (a) For purposes of this section:
(1) "Minor" means an individual younger than ^u18^w ^s17^t
years.
(2) "Harmful material" means material whose dominant
theme taken as a whole:
(A) appeals to the prurient interest of a minor,
in sex, nudity, or excretion;
(B) is patently offensive to prevailing
standards in the adult community as a whole with respect to what is
suitable for minors; and
(C) is utterly without redeeming social value
for minors.
(b) A person commits an offense if, knowing that the
material is harmful:
(1) and knowing the person is a minor, he sells,
distributes, exhibits, or possesses for sale, distribution, or
exhibition to a minor harmful material;
(2) he displays harmful material and is reckless about
whether a minor is present who will be offended or alarmed by the
display; or
(3) he hires, employs, or uses a minor to do or
accomplish or assist in doing or accomplishing any of the acts
prohibited in Subsection (b)(1) or (b)(2) ^sof this section^t.
(c) It is a defense to prosecution under this section that:
(1) the sale, distribution, or exhibition was by a
person having scientific, educational, governmental, or other
similar justification; or
(2) the sale, distribution, or exhibition was to a
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minor who was accompanied by a consenting parent, guardian, or
spouse.
(d) An offense under this section is a Class A misdemeanor
unless it is committed under Subsection (b)(3) ^sof this section^t in
which event it is a felony of the third degree.
Sec. 43.25. Sexual Performance by a Child. (a) In this
section:
(1) "Sexual performance" means any performance or part
thereof that includes sexual conduct by a child younger than ^u18^w
^s17^t years of age.
(2) "Sexual conduct" means actual or simulated sexual
intercourse, deviate sexual intercourse, sexual bestiality,
masturbation, sado-masochistic abuse, or lewd exhibition of the
genitals.
(3) "Performance" means any play, motion picture,
photograph, dance, or other visual representation that can be
exhibited before an audience of one or more persons.
(4) "Produce" with respect to a sexual performance
includes any conduct that directly contributes to the creation or
manufacture of the sexual performance.
(5) "Promote" means to procure, manufacture, issue,
sell, give, provide, lend, mail, deliver, transfer, transmit,
publish, distribute, circulate, disseminate, present, exhibit, or
advertise or to offer or agree to do any of the above.
(6) "Simulated" means the explicit depiction of sexual
conduct that creates the appearance of actual sexual conduct and
during which a person engaging in the conduct exhibits any
uncovered portion of the breasts, genitals, or buttocks.
(7) "Deviate sexual intercourse" has the meaning
defined by Section 43.01 ^sof this code^t.
^s(8) "Sado-masochistic abuse" has the meaning defined^t
^sby Section 43.24 of this code.^t
(b) A person commits an offense if, knowing the character
and content thereof, he employs, authorizes, or induces a child
younger than ^u18^w ^s17^t years of age to engage in sexual conduct or a
sexual performance. A parent or legal guardian or custodian of a
child younger than ^u18^w ^s17^t years of age commits an offense if he
consents to the participation by the child in a sexual performance.
(c) An offense under Subsection (b) ^sof this section^t is a
felony of the second degree.
(d) A person commits an offense if, knowing the character
and content of the material, he produces, directs, or promotes a
performance that includes sexual conduct by a child younger than ^u18^w
^s17^t years of age.
(e) An offense under Subsection (d) ^sof this section^t is a
felony of the third degree.
(f) It is an affirmative defense to a prosecution under this
section that:
(1) the defendant, in good faith, reasonably believed
that the child who engaged in the sexual conduct was ^u18^w ^s17^t years
of age or older;
(2) the defendant was the spouse of the child at the
time of the offense;
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(3) the conduct was for a bona fide educational,
medical, psychological, psychiatric, judicial, law enforcement, or
legislative purpose; or
(4) the defendant is not more than two years older
than the child.
(g) When it becomes necessary for the purposes of this
section or Section 43.26 ^sof this code^t to determine whether a
child who participated in sexual conduct was younger than ^u18^w ^s17^t
years of age, the court or jury may make this determination by any
of the following methods:
(1) personal inspection of the child;
(2) inspection of the photograph or motion picture
that shows the child engaging in the sexual performance;
(3) oral testimony by a witness to the sexual
performance as to the age of the child based on the child's
appearance at the time;
(4) expert medical testimony based on the appearance
of the child engaging in the sexual performance; or
(5) any other method authorized by law or by the rules
of evidence at common law.
Sec. 43.251. EMPLOYMENT HARMFUL TO ^uCHILDREN^w ^sMINORS^t.
(a) In this section:
(1) "Child" means a person younger than ^u18^w ^s17^t years
of age.
(2) "Massage" ^uhas the meaning assigned to the term^w
^u"massage therapy" by Section 1, Chapter 752, Acts of the 69th^w
^uLegislature, Regular Session, 1985 (Article 4512k, Vernon's Texas^w
^uCivil Statutes)^w ^smeans the rubbing, kneading, tapping, compression,^t
^svibration, application of friction, or percussion of the human body^t
^sor parts of it by hand or with an instrument or apparatus^t.
(3) "Massage establishment" ^uhas the meaning assigned^w
^uby Section 1, Chapter 752, Acts of the 69th Legislature, Regular^w
^uSession, 1985 (Article 4512k, Vernon's Texas Civil Statutes)^w ^smeans^t
^sa commercial activity the primary business of which is the^t
^srendering of massage. The term does not include the businesses of^t
^slicensed physical therapists, licensed athletic trainers, licensed^t
^scosmetologists, or licensed barbers engaged in performing functions^t
^sauthorized by the license held^t.
(4) "Nude" means a child who is:
(A) entirely unclothed; or
(B) clothed in a manner that leaves uncovered or
visible through less than fully opaque clothing any portion of the
breasts below the top of the areola of the breasts, if the child is
female, or any portion of the genitals or buttocks.
(5) "Sexually oriented commercial activity" means a
massage establishment, nude studio, modeling studio, love parlor,
or other similar commercial enterprise the primary business of
which is the offering of a service that is intended to provide
sexual stimulation or sexual gratification to the customer.
(6) "Topless" means a female child clothed in a manner
that leaves uncovered or visible through less than fully opaque
clothing any portion of her breasts below the top of the areola.
(b) A person commits an offense if the person employs,
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authorizes, or induces a child to work:
(1) in a sexually oriented commercial activity; or
(2) in any place of business permitting, requesting,
or requiring a child to work nude or topless.
(c) An offense under this section is a Class A misdemeanor.
Sec. 43.26. Possession or Promotion of Child Pornography.
(a) A person commits an offense if:
(1) the person knowingly or intentionally possesses
material containing a film image that visually depicts a child
younger than ^u18^w ^s17^t years of age at the time the film image of the
child was made who is engaging in sexual conduct; and
(2) the person knows that the material depicts the
child as described by Subdivision (1) ^sof this subsection^t.
(b) In this section:
(1) "Film image" includes a photograph, slide,
negative, film, or videotape, or a reproduction of any of these.
(2) "Sexual conduct" has the meaning assigned by
Section 43.25 ^sof this code^t.
(3) "Promote" has the meaning assigned by Section
43.25 ^sof this code^t.
(c) The affirmative defenses provided by Section 43.25(f)
^sof this code^t also apply to a prosecution under this section.
(d) An offense under this section is a felony of the third
degree.
(e) A person commits an offense if:
(1) the person knowingly or intentionally promotes or
possesses with intent to promote material described by Subsection
(a)(1) ^sof this section^t; and
(2) the person knows that the material depicts the
child as described by Subsection (a)(1) ^sof this section^t.
(f) A person who possesses six or more identical film images
depicting a child as described by Subsection (a)(1) ^sof this^t
^ssection^t is presumed to possess the film images with the intent to
promote the material.
(g) An offense under Subsection (e) ^sof this section^t is a
felony of the third degree.
TITLE 10. OFFENSES AGAINST PUBLIC HEALTH, SAFETY, AND MORALS
CHAPTER 46. WEAPONS
Sec. 46.01. ^sCHAPTER^t DEFINITIONS. In this chapter:
(1) "Club" means an instrument that is specially
designed, made, or adapted for the purpose of inflicting serious
bodily injury or death by striking a person with the instrument,
and includes but is not limited to the following:
(A) blackjack;
(B) nightstick;
(C) mace;
(D) tomahawk.
(2) "Explosive weapon" means any explosive or
incendiary bomb, grenade, rocket, or mine, that is designed, made,
or adapted for the purpose of inflicting serious bodily injury,
death, or substantial property damage, or for the principal purpose
of causing such a loud report as to cause undue public alarm or
terror, and includes a device designed, made, or adapted for
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delivery or shooting an explosive weapon.
(3) "Firearm" means any device designed, made, or
adapted to expel a projectile through a barrel by using the energy
generated by an explosion or burning substance or any device
readily convertible to that use. Firearm does not include antique
or curio firearms that were manufactured prior to 1899 and that may
have, as an integral part, a folding knife blade or other
characteristics of weapons made illegal by this chapter.
(4) "Firearm silencer" means any device designed,
made, or adapted to muffle the report of a firearm.
(5) "Handgun" means any firearm that is designed,
made, or adapted to be fired with one hand.
(6) "Illegal knife" means a:
(A) knife with a blade over five and one-half
inches;
(B) ^sa^t hand instrument designed to cut or stab
another by being thrown;
(C) dagger, including but not limited to a dirk,
stilletto, and poniard;
(D) bowie knife;
(E) sword; or
(F) spear.
(7) "Knife" means any bladed hand instrument that is
capable of inflicting serious bodily injury or death by cutting or
stabbing a person with the instrument.
(8) "Knuckles" means any instrument that consists of
finger rings or guards made of a hard substance and that is
designed, made, or adapted for the purpose of inflicting serious
bodily injury or death by striking a person with a fist enclosed in
the knuckles.
(9) "Machine gun" means any firearm that is capable of
shooting more than two shots automatically, without manual
reloading, by a single function of the trigger.
(10) "Short-barrel firearm" means a rifle with a
barrel length of less than 16 inches or a shotgun with a barrel
length of less than 18 inches, or any weapon made from a shotgun or
rifle if, as altered, it has an overall length of less than 26
inches.
(11) "Switchblade knife" means any knife that has a
blade that folds, closes, or retracts into the handle or sheath,
and that:
(A) opens automatically by pressure applied to a
button or other device located on the handle; or
(B) opens or releases a blade from the handle or
sheath by the force of gravity or by the application of centrifugal
force.
(12) "Armor-piercing ammunition" means handgun
ammunition that is designed primarily for the purpose of
penetrating metal or body armor and to be used principally in
pistols and revolvers.
(13) "Hoax bomb" means a device that:
(A) reasonably appears to be an explosive or
incendiary device; or
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(B) by its design causes alarm or reaction of
any type by an official of a public safety agency or a volunteer
agency organized to deal with emergencies.
(14) "Chemical dispensing device" means a device,
other than a small chemical dispenser sold commercially for
personal protection, that is designed, made, or adapted for the
purpose of ^udispensing a substance capable of^w causing an adverse
psychological or physiological effect on a human being.
(15) "Racetrack" has the meaning assigned that term by
the Texas Racing Act (Article 179e, Vernon's Texas Civil Statutes).
(16) "Zip gun" means a device or combination of
devices that was not originally a firearm and is adapted to expel a
projectile through a smooth-bore or rifled-bore barrel by using the
energy generated by an explosion or burning substance.
Sec. 46.02. Unlawful Carrying Weapons. (a) A person
commits an offense if he intentionally, knowingly, or recklessly
carries on or about his person a handgun, illegal knife, or club.
(b) ^uIt is a defense to prosecution under this section that^w
^uthe actor was, at the time of the commission of the offense^w ^sExcept^t
^sas provided in Subsection (c), an offense under this section is a^t
^sClass A misdemeanor.^t
^s(c) An offense under this section is a felony of the third^t
^sdegree if it occurs on any premises licensed or issued a permit by^t
^sthis state for the sale or service of alcoholic beverages.^t
^sSec. 46.03. NON-APPLICABLE. (a) The provisions of Section^t
^s46.02 of this code do not apply to a person^t:
(1) in the actual discharge of his official duties as
a member of the armed forces or state military forces as defined by
Section 431.001, Government Code, or as a guard employed by a penal
institution;
(2) on his own premises or premises under his control
unless he is an employee or agent of the owner of the premises and
his primary responsibility is to act in the capacity of a security
guard to protect persons or property, in which event he must comply
with Subdivision (5) ^sof this subsection^t;
(3) traveling;
(4) engaging in lawful hunting, fishing, or other
sporting activity ^uon the immediate premises where the activity is^w
^uconducted, or was directly en route between the premises and the^w
^uactor's residence,^w if the weapon is a type commonly used in the
activity;
(5) ^ua person^w who holds a security officer commission
issued by the Texas Board of Private Investigators and Private
Security Agencies, if:
(A) he is engaged in the performance of his
duties as a security officer or traveling to and from his place of
assignment;
(B) he is wearing a distinctive uniform; and
(C) the weapon is in plain view; or
(6) ^swho is^t a peace officer, other than a person
commissioned by the Texas State Board of Pharmacy.
^u(c) It is a defense to prosecution under this section for^w
^uthe offense of carrying a club that the actor was, at the time of^w
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^uthe commission of the offense,^w ^s(b) The provision of Section 46.02^t
^sof this code prohibiting the carrying of a club does not apply to^t
a noncommissioned security guard at an institution of higher
education who ^ucarried^w ^scarries^t a nightstick or similar club, and
who ^uhad^w ^shas^t undergone 15 hours of training in the proper use of
the club, including at least seven hours of training in the use of
the club for nonviolent restraint. For the purposes of this
section, "nonviolent restraint" means the use of reasonable force,
not intended and not likely to inflict bodily injury.
^u(d) It is a defense to prosecution under this section for^w
^uthe offense of carrying a firearm or carrying a club that the actor^w
^uwas, at the time of the commission of the offense,^w ^s(c) The^t
^sprohibition of carrying a handgun or club in Section 46.02 of this^t
^scode does not apply to^t a public security officer employed by the
adjutant general under Section 431.029, Government Code, ^uand was^w
^uperforming^w ^sin performance of^t official duties or ^swhile^t traveling
to or from a place of duty.
^u(e) Except as provided by Subsection (f), an offense under^w
^uthis section is a Class A misdemeanor.^w
^u(f) An offense under this section is a felony of the third^w
^udegree if the offense is committed on any premises licensed or^w
^uissued a permit by this state for the sale of alcoholic beverages.^w
Sec. ^u46.03^w ^s46.04^t. Places Weapons Prohibited. (a) A
person commits an offense if, with a firearm, illegal knife, ^uclub,^w
or prohibited weapon listed in Section ^u46.05(a)^w ^s46.06(a) of this^t
^scode^t, he intentionally, knowingly, or recklessly goes:
(1) on the ^uphysical^w premises of a school^u,^w ^sor^t an
educational institution^u, or a passenger transportation vehicle of a^w
^uschool or an educational institution^w, whether ^uthe school or^w
^ueducational institution is^w public or private, unless pursuant to
written regulations or written authorization of the institution;
(2) on the premises of a polling place on the day of
an election or while early voting is in progress;
(3) in any government court or offices utilized by the
court, unless pursuant to written regulations or written
authorization of the court; ^sor^t
(4) on the premises of a racetrack^u; or^w
^u(5) into a secured area of an airport^w.
(b) It is a defense to prosecution ^uunder Subsections^w
^u(a)(1)-(4)^w that the actor possessed a firearm ^sunder Subsection (a)^t
^sof this section^t while in the actual discharge of his official
duties as a peace officer or a member of the armed forces or
national guard or a guard employed by a penal institution, or an
officer of the court.
(c) ^uIn this section "secured area" means an area of an^w
^uairport terminal building to which access is controlled by the^w
^uinspection of persons and property under federal law.^w
^u(d) It is a defense to prosecution under Subsection (a)(5)^w
^uthat the actor possessed a firearm or club while traveling to or^w
^ufrom the actor's place of assignment or in the actual discharge of^w
^uduties as:^w
^u(1) a peace officer;^w
^u(2) a member of the armed forces or national guard;^w
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^u(3) a guard employed by a penal institution; or^w
^u(4) a security officer commissioned by the Texas Board^w
^uof Private Investigators and Private Security Agencies if:^w
^u(A) the actor is wearing a distinctive uniform;^w
^uand^w
^u(B) the firearm or club is in plain view.^w
^u(e) It is a defense to prosecution under Subsection (a)(5)^w
^uthat the actor checked all firearms as baggage in accordance with^w
^ufederal or state law or regulations before entering a secured area.^w
^u(f)^w An offense under this section is a third degree felony.
Sec. ^u46.04^w ^s46.05^t. Unlawful Possession of Firearm by Felon.
(a) A person who has been convicted of a felony ^sinvolving an act^t
^sof violence or threatened violence to a person or property^t commits
an offense if he possesses a firearm^u:^w
^u(1) after conviction and before the fifth anniversary^w
^uof the person's release from confinement following conviction of^w
^uthe felony or the person's release from supervision under community^w
^usupervision, parole, or mandatory supervision, whichever date is^w
^ulater; or^w
^u(2) after the period described by Subdivision (1), at^w
^uany location other than the premises at which the person lives^w
^saway from the premises where he lives^t.
(b) An offense under this section is a felony of the third
degree.
Sec. ^u46.05^w ^s46.06^t. Prohibited Weapons. (a) A person
commits an offense if he intentionally or knowingly possesses,
manufactures, transports, repairs, or sells:
(1) an explosive weapon;
(2) a machine gun;
(3) a short-barrel firearm;
(4) a firearm silencer;
(5) a switchblade knife;
(6) knuckles;
(7) armor-piercing ammunition;
(8) a chemical dispensing device; or
(9) a zip gun.
(b) It is a defense to prosecution under this section that
the actor's conduct was incidental to the performance of official
duty by the armed forces or national guard, a governmental law
enforcement agency, or a ^ucorrectional facility^w ^spenal institution^t.
(c) It is a defense to prosecution under this section that
the actor's possession was pursuant to registration pursuant to the
National Firearms Act, as amended.
(d) It is an affirmative defense to prosecution under this
section that the actor's conduct:
(1) was incidental to dealing with a switchblade
knife, springblade knife, or short-barrel firearm solely as an
antique or curio; or
(2) was incidental to dealing with armor-piercing
ammunition solely for the purpose of making the ammunition
available to an organization, agency, or institution listed in
Subsection (b) ^sof this section^t.
(e) An offense under this section is a felony of the ^uthird^w
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^ssecond^t degree unless it is committed under Subsection (a)(5) or
(a)(6) ^sof this section^t, in which event, it is a Class A
misdemeanor.
Sec. ^u46.06^w ^s46.07^t. Unlawful Transfer of Certain Weapons.
(a) A person commits an offense if he:
(1) sells, rents, leases, loans, or gives a handgun to
any person knowing that the person to whom the handgun is to be
delivered intends to use it unlawfully or in the commission of an
unlawful act;
(2) intentionally or knowingly sells, rents, leases,
or gives or offers to sell, rent, lease, or give to any child
younger than 18 years any firearm, club, or illegal knife ^sor any^t
^smartial arts throwing stars^t; ^sor^t
(3) intentionally, knowingly, or recklessly sells a
firearm or ammunition for a firearm to any person who is
intoxicated^u; or^w
^u(4) knowingly sells a firearm or ammunition for a^w
^ufirearm to any person who has been convicted of a felony before the^w
^ufifth anniversary of the later of the following dates:^w
^u(A) the person's release from confinement^w
^ufollowing conviction of the felony; or^w
^u(B) the person's release from supervision under^w
^ucommunity supervision, parole, or mandatory supervision following^w
^uconviction of the felony^w.
(b) For purposes of this section, "intoxicated" means
substantial impairment of mental or physical capacity resulting
from introduction of any substance into the body.
(c) It is an affirmative defense to prosecution under
Subsection (a)(2) ^sof this section^t that the transfer was to a
minor whose parent or the person having legal custody of the minor
had given written permission for the sale or, if the transfer was
other than a sale, the parent or person having legal custody had
given effective consent.
(d) An offense under this section is a Class A misdemeanor.
Sec. ^u46.07^w ^s46.08^t. Interstate Purchase. A resident of this
state may, if not otherwise precluded by law, purchase firearms,
ammunition, reloading components, or firearm accessories in
contiguous states. This authorization is enacted in conformance
with Section 922(b)(3)(A), Public Law 90-618, 90th Congress.
Sec. ^u46.08^w ^s46.09^t. Hoax Bombs. (a) A person commits an
offense if the person knowingly manufactures, sells, purchases,
transports, or possesses a hoax bomb with intent to use the hoax
bomb to:
(1) make another believe that the hoax bomb is an
explosive or incendiary device; or
(2) cause alarm or reaction of any type by an official
of a public safety agency or volunteer agency organized to deal
with emergencies.
(b) An offense under this section is a Class A misdemeanor.
Sec. ^u46.09^w ^s46.10^t. Components of Explosives. (a) A person
commits an offense if the person knowingly possesses components of
an explosive weapon with the intent to combine the components into
an explosive weapon for use in a criminal endeavor.
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(b) An offense under this section is a felony of the third
degree.
Sec. ^u46.10^w ^s46.11^t. Deadly Weapon in Penal Institution.
(a) A person commits an offense if, while confined in a penal
institution, he intentionally, knowingly, or recklessly:
(1) carries on or about his person a deadly weapon; or
(2) possesses or conceals a deadly weapon in the penal
institution.
(b) It is an affirmative defense to prosecution under this
section that at the time of the offense the actor was engaged in
conduct authorized by an employee of the penal institution.
(c) A person who is subject to prosecution under both this
section and another section under this chapter may be prosecuted
under either section.
(d) An offense under this section is a felony of the third
degree.
^sSec. 46.12. UNLAWFUL CARRYING OF WEAPONS AT AIRPORT.^t
^s(a) A person commits an offense if the person intentionally,^t
^sknowingly, or recklessly enters a secured area of an airport with a^t
^shandgun or other firearm capable of being concealed on the person,^t
^sillegal knife, or club.^t
^s(b) In this section "secured area" means an area of an^t
^sairport terminal building to which access is controlled by the^t
^sinspection of persons and property under federal law.^t
^s(c) It is a defense to prosecution that the actor possessed^t
^sa firearm or club while traveling to or from the actor's place of^t
^sassignment or in the actual discharge of duties as:^t
^s(1) a peace officer;^t
^s(2) a member of the armed forces or national guard;^t
^s(3) a guard employed by a penal institution; or^t
^s(4) a security officer commissioned by the Texas^t
^sBoard of Private Investigators and Private Security Agencies if:^t
^s(A) the actor is wearing a distinctive uniform;^t
^sand^t
^s(B) the firearm or club is in plain view.^t
^s(d) It is a defense to prosecution that the actor checked^t
^sall firearms as baggage in accordance with federal or state law or^t
^sregulations before entering a secured area.^t
^s(e) An offense under this section is a Class A^t
^smisdemeanor.^t
CHAPTER 47. GAMBLING
Sec. 47.01. Definitions. In this chapter:
(1) "Bet" means an agreement ^sthat, dependent on^t
^schance even though accompanied by some skill, one stands^t to win or
lose something of value ^usolely or partially by chance^w. A bet does
not include:
(A) contracts of indemnity or guaranty, or life,
health, property, or accident insurance;
(B) an offer of a prize, award, or compensation
to the actual contestants in a bona fide contest for the
determination of skill, speed, strength, or endurance or to the
owners of animals, vehicles, watercraft, or aircraft entered in a
contest; ^uor^w
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(C) an offer of merchandise, with a value not
greater than $25, made by the proprietor of a bona fide carnival
contest conducted at a carnival sponsored by a nonprofit religious,
fraternal, school, law enforcement, youth, agricultural, or civic
group, ^uincluding any nonprofit agricultural or civic group^w
^uincorporated by the state before 1955,^w if the person to receive the
merchandise from the proprietor is the person who performs the
carnival contest^s; or^t
^s(D) an offer of merchandise, with a value not^t
^sgreater than $25, made by the proprietor of a bona fide carnival^t
^scontest conducted at a carnival sponsored by a nonprofit^t
^sagricultural or civic group incorporated by the State of Texas^t
^sprior to 1955^t.
(2) ^u"Bookmaking" means:^w
^u(A) to receive and record or to forward more^w
^uthan five bets or offers to bet in a period of 24 hours;^w
^u(B) to receive and record or to forward bets or^w
^uoffers to bet totaling more than $1,000 in a period of 24 hours; or^w
^u(C) a scheme by three or more persons to^w
^ureceive, record, or forward a bet or an offer to bet.^w
^u(3)^w "Gambling place" means any real estate, building,
room, tent, vehicle, boat, or other property whatsoever, one of the
uses of which is the making or settling of bets, ^ubookmaking^w ^sthe^t
^sreceiving, holding, recording, or forwarding of bets or offers to^t
^sbet^t, or the conducting of a lottery or the playing of gambling
devices.
^u(4)^w ^s(3)^t "Gambling device" means any contrivance that
for a consideration affords the player an opportunity to obtain
anything of value, the award of which is determined ^usolely or^w
^upartially^w by chance, even though accompanied by some skill, whether
or not the prize is automatically paid by the contrivance.
^u(5)^w ^s(4)^t "Altered gambling equipment" means any
contrivance that has been altered in some manner, including, but
not limited to, shaved dice, loaded dice, magnetic dice, mirror
rings, electronic sensors, shaved cards, marked cards, and any
other equipment altered ^uor^w ^sand^t designed to enhance the actor's
chances of winning.
^u(6)^w ^s(5)^t "Gambling paraphernalia" means any book,
instrument, or apparatus by means of which bets have been or may be
recorded or registered; any record, ticket, certificate, bill,
slip, token, writing, scratch sheet, or other means of carrying on
bookmaking, wagering pools, lotteries, numbers, policy, or similar
games.
^u(7)^w ^s(6)^t "Lottery" means any scheme or procedure
whereby one or more prizes are distributed by chance among persons
who have paid or promised consideration for a chance to win
anything of value, whether such scheme or procedure is called a
pool, lottery, raffle, gift, gift enterprise, sale, policy game, or
some other name.
^u(8)^w ^s(7)^t "Private place" means a place to which the
public does not have access, and excludes, among other places,
streets, highways, restaurants, taverns, nightclubs, schools,
hospitals, and the common areas of apartment houses, hotels,
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motels, office buildings, transportation facilities, and shops.
^u(9)^w ^s(8)^t "Thing of value" means any benefit, but does
not include an unrecorded and immediate right of replay not
exchangeable for value.
Sec. 47.02. Gambling. (a) A person commits an offense if
he:
(1) makes a bet on the partial or final result of a
game or contest or on the performance of a participant in a game or
contest;
(2) makes a bet on the result of any political
nomination, appointment, or election or on the degree of success of
any nominee, appointee, or candidate; or
(3) plays and bets for money or other thing of value
at any game played with cards, dice, ^sor^t balls^u, or any other^w
^ugambling device^w.
(b) It is a defense to prosecution under this section that:
(1) the actor engaged in gambling in a private place;
(2) no person received any economic benefit other than
personal winnings; and
(3) except for the advantage of skill or luck, the
risks of losing and the chances of winning were the same for all
participants.
(c) It is a defense to prosecution under this section that
the actor reasonably believed that the conduct:
(1) was permitted under the Bingo Enabling Act
(Article 179d, Vernon's Texas Civil Statutes);
(2) was permitted under the Charitable Raffle Enabling
Act (Article 179f, Revised Statutes); ^sor^t
(3) consisted entirely of participation in the state
lottery authorized by the State Lottery Act ^u(Article 179g, Vernon's^w
^uTexas Civil Statutes); or^w
^u(4) was permitted under the Texas Racing Act (Article^w
^u179e, Vernon's Texas Civil Statutes)^w.
(d) An offense under this section is a Class C misdemeanor.
Sec. 47.03. Gambling Promotion. (a) A person commits an
offense if he intentionally or knowingly does any of the following
acts:
(1) operates or participates in the earnings of a
gambling place;
(2) engages in bookmaking;
(3) for gain, becomes a custodian of anything of value
bet or offered to be bet;
(4) sells chances on the partial or final result of or
on the margin of victory in any game or contest or on the
performance of any participant in any game or contest or on the
result of any political nomination, appointment, or election or on
the degree of success of any nominee, appointee, or candidate; or
(5) for gain, sets up or promotes any lottery or sells
or offers to sell or knowingly possesses for transfer, or transfers
any card, stub, ticket, check, or other device designed to serve as
evidence of participation in any lottery.
(b) ^sIn this section "bookmaking" means:^t
^s(1) the receiving and recording of or the forwarding^t
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^sof more than five bets or offers to bet in one 24-hour period;^t
^s(2) the receiving and recording of or the forwarding^t
^sof bets or offers to bet totalling more than $1,000 in one 24-hour^t
^speriod; or^t
^s(3) a scheme by three or more persons to receive,^t
^srecord, or forward bets or offers to bet.^t
^s(c)^t An offense under this section is a ^uClass A misdemeanor^w
^sfelony of the third degree^t.
Sec. 47.04. Keeping a Gambling Place. (a) A person commits
an offense if he knowingly uses or permits another to use as a
gambling place any real estate, building, room, tent, vehicle,
boat, or other property whatsoever owned by him or under his
control, or rents or lets any such property with a view or
expectation that it be so used.
(b) It is an affirmative defense to prosecution under this
section that:
(1) the ^sactor engaged in^t gambling ^uoccurred^w in a
private place;
(2) no person received any economic benefit other than
personal winnings; and
(3) except for the advantage of skill or luck, the
risks of losing and the chances of winning were the same for all
participants.
(c) ^sIt is an affirmative defense to prosecution under this^t
^ssection that the gambling place is aboard an ocean-going vessel^t
^sthat enters the territorial waters of this state to call at a port^t
^sin this state if:^t
^s(1) before the vessel enters the territorial waters^t
^sof this state, the district attorney or, if there is no district^t
^sattorney, the county attorney for the county in which the port is^t
^slocated receives notice of the existence of the gambling place on^t
^sboard the vessel and of the anticipated dates on which the vessel^t
^swill enter and leave the territorial waters of this state;^t
^s(2) the portion of the vessel that is used as a^t
^sgambling place is locked or otherwise physically secured in a^t
^smanner that makes the area inaccessible to anyone other than the^t
^smaster and crew of the vessel at all times while the vessel is in^t
^sthe territorial waters of this state;^t
^s(3) no person other than the master and crew of the^t
^svessel is permitted to enter or view the gambling place while the^t
^svessel is in the territorial waters of this state; and^t
^s(4) the gambling place is not used for gambling or^t
^sother gaming purposes while the vessel is in the territorial waters^t
^sof this state.^t
^s(d)^t An offense under this section is a ^uClass A misdemeanor^w
^sfelony of the third degree^t.
Sec. 47.05. Communicating Gambling Information. (a) A
person commits an offense if, with the intent to further gambling,
he knowingly communicates information as to bets, betting odds, or
changes in betting odds or he knowingly provides, installs, or
maintains equipment for the transmission or receipt of such
information.
(b) ^uIt is an exception to the application of Subsection (a)^w
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^uthat the information communicated is intended for use in placing a^w
^ulawful wager under Article 11, Texas Racing Act (Article 179e,^w
^uVernon's Texas Civil Statutes), and is not communicated in^w
^uviolation of Section 14.01 of that Act.^w
^u(c)^w An offense under this section is a ^uClass A misdemeanor^w
^sfelony of the third degree^t.
Sec. 47.06. POSSESSION OF GAMBLING DEVICE^u,^w ^sOR^t EQUIPMENT^u,^w
^uOR PARAPHERNALIA^w. (a) A person commits an offense if^u, with the^w
^uintent to further gambling,^w he knowingly owns, manufactures,
transfers, or possesses any gambling device that he knows is
designed for gambling purposes or any equipment that he knows is
designed as a subassembly or essential part of a gambling device.
(b) A person commits an offense if, with the intent to
further gambling, he knowingly owns, manufactures, transfers
commercially, or possesses any altered gambling equipment that he
knows is designed for gambling purposes or any equipment that he
knows is designed as a subassembly or essential part of such
device.
(c) ^uA person commits an offense if, with the intent to^w
^ufurther gambling, the person knowingly owns, manufactures,^w
^utransfers commercially, or possesses gambling paraphernalia.^w
^u(d) It is a defense to prosecution under Subsections (a) and^w
^u(c) that:^w
^u(1) the device, equipment, or paraphernalia is used^w
^ufor or is intended for use in gambling that is to occur entirely in^w
^ua private place;^w
^u(2) a person involved in the gambling does not receive^w
^uany economic benefit other than personal winnings; and^w
^u(3) except for the advantage of skill or luck, the^w
^uchance of winning is the same for all participants.^w ^sIt is an^t
^saffirmative defense to prosecution under this section that the^t
^sdevice or equipment is aboard an ocean-going vessel that enters the^t
^sterritorial waters of this state to call at a port in this state^t
^sif:^t
^s(1) before the vessel enters the territorial waters^t
^sof this state, the district attorney or, if there is no district^t
^sattorney, the county attorney for the county in which the port is^t
^slocated receives notice of the existence of the device or equipment^t
^son board the vessel and of the anticipated dates on which the^t
^svessel will enter and leave the territorial waters of this state;^t
^s(2) the portion of the vessel in which the device or^t
^sequipment is located is locked or otherwise physically secured in a^t
^smanner that makes the area inaccessible to anyone other than the^t
^smaster and crew of the vessel at all times while the vessel is in^t
^sthe territorial waters of this state;^t
^s(3) no person other than the master and crew of the^t
^svessel is permitted to enter or view the portion of the vessel in^t
^swhich the device or equipment is located while the vessel is in the^t
^sterritorial waters of this state; and^t
^s(4) the device or equipment is not used for gambling^t
^sor other gaming purposes while the vessel is in the territorial^t
^swaters of this state.^t
^s(d) It is a defense to prosecution under this section that^t
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^sthe gambling device is 15 years old or older and not used for^t
^sgambling, gambling promotion, or keeping a gambling place under^t
^sSections 47.02, 47.03, and 47.04, respectively, of this code, and^t
^sthat the party possessing same:^t
^s(1) within 30 days after coming into possession of^t
^ssame or the effective date of this amendment, whichever last^t
^soccurs, furnished the following information to the sheriff of the^t
^scounty wherein such device is to be maintained:^t
^s(A) the name and address of the party^t
^spossessing same;^t
^s(B) the name of the manufacturer, date of^t
^smanufacture, and serial number of the device, if available; and^t
^s(2) within 30 days of the transfer of such device^t
^sadvises the sheriff of the county to whom the information provided^t
^sfor in item (1) above was furnished of the name and address of the^t
^stransferee.^t
(e) An offense under this section is a ^uClass A misdemeanor^w
^sfelony of the third degree^t.
(f) It is a defense to prosecution under Subsection (a) ^uor^w
^u(c)^w ^sof this section^t that the person owned, manufactured,
transferred, or possessed the gambling device^u,^w ^sor^t equipment^u, or^w
^uparaphernalia^w for the sole purpose of shipping it to another
jurisdiction where the possession or use of the device^u,^w ^sor^t
equipment^u, or paraphernalia^w was legal.
(g) ^uA district or county attorney is not required to have a^w
^usearch warrant or subpoena to inspect a gambling device or gambling^w
^uequipment or paraphernalia on an ocean-going vessel that enters the^w
^uterritorial waters of this state to call at a port in this state^w
^sIt is a defense to prosecution for an offense under this chapter^t
^sthat the conduct was authorized, directly or indirectly, by the^t
^sState Lottery Act, the lottery division in the office of the^t
^scomptroller, the comptroller, or the director of the lottery^t
^sdivision^t.
Sec. 47.07. ^sPOSSESSION OF GAMBLING PARAPHERNALIA. (a) A^t
^sperson commits an offense if, with the intent to further gambling,^t
^she knowingly owns, manufactures, transfers commercially, or^t
^spossesses gambling paraphernalia.^t
^s(b) It is an affirmative defense to prosecution under this^t
^ssection that the gambling paraphernalia is aboard an ocean-going^t
^svessel that enters the territorial waters of this state to call at^t
^sa port in this state if:^t
^s(1) before the vessel enters the territorial waters^t
^sof this state, the district attorney or, if there is no district^t
^sattorney, the county attorney for the county in which the port is^t
^slocated receives notice of the existence of the gambling^t
^sparaphernalia on board the vessel and of the anticipated dates on^t
^swhich the vessel will enter and leave the territorial waters of^t
^sthis state;^t
^s(2) the portion of the vessel in which the gambling^t
^sparaphernalia is located is locked or otherwise physically secured^t
^sin a manner that makes the area inaccessible to anyone other than^t
^sthe master and crew of the vessel at all times while the vessel is^t
^sin the territorial waters of this state;^t
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^s(3) no person other than the master and crew of the^t
^svessel is permitted to enter or view the portion of the vessel in^t
^swhich the gambling paraphernalia is located while the vessel is in^t
^sthe territorial waters of this state; and^t
^s(4) the gambling paraphernalia is not used for^t
^sgambling or other gaming purposes while the vessel is in the^t
^sterritorial waters of this state.^t
^s(c) An offense under this section is a Class A misdemeanor.^t
^s(d) The district or county attorney shall not be required^t
^sto have a search warrant or subpoena to enter the vessel to inspect^t
^sthe gambling paraphernalia.^t
^s(e) It is a defense to prosecution under this section that^t
^sthe person owned, manufactured, transferred commercially, or^t
^spossessed the gambling paraphernalia for the sole purpose of^t
^sshipping it to another jurisdiction where the possession or use of^t
^sthe paraphernalia was legal.^t
^sSec. 47.08.^t Evidence. ^s(a) Proof that an actor^t
^scommunicated gambling information or possessed a gambling device,^t
^sequipment, or paraphernalia is prima facie evidence that the actor^t
^sdid so knowingly and with the intent to further gambling.^t
^s(b)^t In any prosecution under this chapter in which it is
relevant to prove the occurrence of a sporting event, a published
report of its occurrence in a daily newspaper, magazine, or other
periodically printed publication of general circulation shall be
admissible in evidence and is prima facie evidence that the event
occurred.
Sec. ^u47.08^w ^s47.09^t. Testimonial Immunity. (a) A party to
an offense under this chapter may be required to furnish evidence
or testify about the offense.
(b) A party to an offense under this chapter may not be
prosecuted for any offense about which he is required to furnish
evidence or testify, and the evidence and testimony may not be used
against the party in any adjudicatory proceeding except a
prosecution for aggravated perjury.
(c) For purposes of this section, "adjudicatory proceeding"
means a proceeding before a court or any other agency of government
in which the legal rights, powers, duties, or privileges of
specified parties are determined.
(d) A conviction under this chapter may be had upon the
uncorroborated testimony of a party to the offense.
^uSec. 47.09. OTHER DEFENSES. (a) It is a defense to^w
^uprosecution under this chapter that the conduct:^w
^u(1) was authorized under:^w
^u(A) the Bingo Enabling Act (Article 179d,^w
^uVernon's Texas Civil Statutes);^w
^u(B) the Texas Racing Act (Article 179e, Vernon's^w
^uTexas Civil Statutes); or^w
^u(C) the Charitable Raffle Enabling Act (Article^w
^u179f, Revised Statutes);^w
^u(2) consisted entirely of participation in the state^w
^ulottery authorized by the State Lottery Act (Article 179g, Vernon's^w
^uTexas Civil Statutes); or^w
^u(3) was a necessary incident to the operation of the^w
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^ustate lottery and was directly or indirectly authorized by the:^w
^u(A) State Lottery Act;^w
^u(B) lottery division of the comptroller's^w
^uoffice;^w
^u(C) comptroller; or^w
^u(D) director of the lottery division.^w
^u(b) It is an affirmative defense to prosecution under^w
^uSections 47.04, 47.06(a), and 47.06(c) that the gambling device,^w
^uequipment, or paraphernalia is aboard an ocean-going vessel that^w
^uenters the territorial waters of this state to call at a port in^w
^uthis state if:^w
^u(1) before the vessel enters the territorial waters of^w
^uthis state, the district attorney or, if there is no district^w
^uattorney, the county attorney for the county in which the port is^w
^ulocated receives notice of the existence of the device, equipment,^w
^uor paraphernalia on board the vessel and of the anticipated dates^w
^uon which the vessel will enter and leave the territorial waters of^w
^uthis state;^w
^u(2) the portion of the vessel in which the device,^w
^uequipment, or paraphernalia is located is locked or otherwise^w
^uphysically secured in a manner that makes the area inaccessible to^w
^uanyone other than the master and crew of the vessel at all times^w
^uwhile the vessel is in the territorial waters of this state;^w
^u(3) no person other than the master and crew of the^w
^uvessel is permitted to enter or view the portion of the vessel in^w
^uwhich the device, equipment, or paraphernalia is located while the^w
^uvessel is in the territorial waters of this state; and^w
^u(4) the device, equipment, or paraphernalia is not^w
^uused for gambling or other gaming purposes while the vessel is in^w
^uthe territorial waters of this state.^w
Sec. 47.10. ^sBINGO. It is a defense to prosecution for an^t
^soffense under this chapter that the conduct was authorized under^t
^sthe Bingo Enabling Act.^t
^sSec. 47.11. PARI-MUTUEL WAGERING ON CERTAIN RACES. It is a^t
^sdefense to prosecution for an offense under this chapter that the^t
^sconduct was authorized under the Texas Racing Act.^t
^sSec. 47.12. RAFFLE BY NONPROFIT ORGANIZATION. It is a^t
^sdefense to prosecution under this chapter that the conduct was^t
^sauthorized by the Charitable Raffle Enabling Act (Article 179f,^t
^sRevised Statutes).^t
^sSec. 47.13.^t American Documentation of Vessel Required. If
18 U.S.C. Section 1082 is repealed, the affirmative defenses
provided by ^uSection 47.09(b)^w ^sSections 47.04(c), 47.06(c), and^t
^s47.07(b) of this code^t apply only if the vessel is documented under
the laws of the United States.
^sSec. 47.14. STATE LOTTERY. It is a defense to prosecution^t
^sfor an offense under this chapter that the conduct:^t
^s(1) consisted entirely of participation in the state^t
^slottery authorized by the State Lottery Act; or^t
^s(2) was a necessary incident to the operation of the^t
^sstate lottery and was authorized, directly or indirectly, by the^t
^sState Lottery Act, the lottery division in the office of the^t
^scomptroller, the comptroller, or the director of the lottery^t
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^sdivision.^t
CHAPTER 48. CONDUCT AFFECTING PUBLIC HEALTH
Sec. 48.01. Smoking Tobacco. (a) A person commits an
offense if he is in possession of a burning tobacco product or
smokes tobacco in a facility of a public primary or secondary
school or an elevator, enclosed theater or movie house, library,
museum, hospital, transit system bus, or intrastate bus, as defined
by Section 4(b) of the Uniform Act Regulating Traffic on Highways
(Article 6701d, Vernon's Texas Civil Statutes), plane, or train
which is a public place.
(b) It is a defense to prosecution under this section that
the conveyance or public place in which the offense takes place
does not have prominently displayed a reasonably sized notice that
smoking is prohibited by state law in such conveyance or public
place and that an offense is punishable by a fine not to exceed
$500.
(c) All conveyances and public places set out in Subsection
(a) of Section 48.01 shall be equipped with facilities for
extinguishment of smoking materials and it shall be a defense to
prosecution under this section if the conveyance or public place
within which the offense takes place is not so equipped.
(d) It is an exception to the application of Subsection (a)
if the person is in possession of the burning tobacco product or
smokes tobacco exclusively within an area designated for smoking
tobacco or as a participant in an authorized theatrical
performance.
(e) An area designated for smoking tobacco on a transit
system bus or intrastate plane or train must also include the area
occupied by the operator of the transit system bus, plane, or
train.
(f) An offense under this section is punishable as a Class C
misdemeanor.
Sec. 48.02. Prohibition of the Purchase and Sale of Human
Organs. (a) "Human organ" means the human kidney, liver, heart,
lung, pancreas, eye, bone, skin, fetal tissue, or any other human
organ or tissue, but does not include hair or blood, blood
components (including plasma), blood derivatives, or blood
reagents.
(b) A person commits an offense if he or she knowingly or
intentionally offers to buy, offers to sell, acquires, receives,
sells, or otherwise transfers any human organ for valuable
consideration.
(c) It is an exception to the application of this section
that the valuable consideration is: (1) a fee paid to a physician
or to other medical personnel for services rendered in the usual
course of medical practice or a fee paid for hospital or other
clinical services; (2) reimbursement of legal or medical expenses
incurred for the benefit of the ultimate receiver of the organ; or
(3) reimbursement of expenses of travel, housing, and lost wages
incurred by the donor of a human organ in connection with the
donation of the organ.
(d) A violation of this section is a ^uClass A misdemeanor^w
^sfelony of the third degree^t.
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^uCHAPTER 49. INTOXICATION AND ALCOHOLIC BEVERAGE OFFENSES^w
^uSec. 49.01. DEFINITIONS. In this chapter:^w
^u(1) "Alcohol concentration" means the number of grams^w
^uof alcohol per:^w
^u(A) 210 liters of breath;^w
^u(B) 100 milliliters of blood; or^w
^u(C) 67 milliliters of urine.^w
^u(2) "Intoxicated" means:^w
^u(A) not having the normal use of mental or^w
^uphysical faculties by reason of the introduction of alcohol, a^w
^ucontrolled substance, a drug, a dangerous drug, a combination of^w
^utwo or more of those substances, or any other substance into the^w
^ubody; or^w
^u(B) having an alcohol concentration of 0.10 or^w
^umore.^w
^u(3) "Motor vehicle" has the meaning assigned by^w
^uSection 32.34(a).^w
^u(4) "Watercraft" means a vessel, one or more water^w
^uskis, an aquaplane, or another device used for transporting or^w
^ucarrying a person on water, other than a device propelled only by^w
^uthe current of water.^w
^uSec. 49.02. PUBLIC INTOXICATION. (a) A person commits an^w
^uoffense if the person appears in a public place while intoxicated^w
^uto the degree that the person may endanger the person or another.^w
^u(b) It is a defense to prosecution under this section that^w
^uthe alcohol or other substance was administered for therapeutic^w
^upurposes and as a part of the person's professional medical^w
^utreatment by a licensed physician.^w
^u(c) An offense under this section is a Class C misdemeanor.^w
^u(d) An offense under this section is not a lesser included^w
^uoffense under Section 49.04.^w
^uSec. 49.03. CONSUMPTION OR POSSESSION OF ALCOHOLIC BEVERAGE^w
^uIN MOTOR VEHICLE. (a) A person commits an offense if the person^w
^uconsumes an alcoholic beverage while operating a motor vehicle in a^w
^upublic place and is observed doing so by a peace officer.^w
^u(b) An offense under this section is a Class C misdemeanor.^w
^uSec. 49.04. DRIVING WHILE INTOXICATED. (a) A person^w
^ucommits an offense if the person is intoxicated while driving or^w
^uoperating a motor vehicle in a public place.^w
^u(b) Except as provided by Subsection (c) and Section 49.09,^w
^uan offense under this section is a Class B misdemeanor, with a^w
^uminimum term of confinement of 72 hours.^w
^u(c) If it is shown on the trial of an offense under this^w
^usection that at the time of the offense the person driving or^w
^uoperating the motor vehicle had an open container of alcohol in the^w
^uperson's immediate possession, the offense is a Class B^w
^umisdemeanor, with a minimum term of confinement of six days.^w
^uSec. 49.05. FLYING WHILE INTOXICATED. (a) A person commits^w
^uan offense if the person is intoxicated while operating an^w
^uaircraft.^w
^u(b) Except as provided by Section 49.09, an offense under^w
^uthis section is a Class B misdemeanor, with a minimum term of^w
^uconfinement of 72 hours.^w
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^uSec. 49.06. BOATING WHILE INTOXICATED. (a) A person^w
^ucommits an offense if the person is intoxicated while operating a^w
^uwatercraft.^w
^u(b) Except as provided by Section 49.09, an offense under^w
^uthis section is a Class B misdemeanor, with a minimum term of^w
^uconfinement of 72 hours.^w
^uSec. 49.07. INTOXICATION ASSAULT. (a) A person commits an^w
^uoffense if the person, by accident or mistake, while operating an^w
^uaircraft, watercraft, or motor vehicle in a public place while^w
^uintoxicated, by reason of that intoxication causes serious bodily^w
^uinjury to another.^w
^u(b) In this section, "serious bodily injury" means injury^w
^uthat creates a substantial risk of death or that causes serious^w
^upermanent disfigurement or protracted loss or impairment of the^w
^ufunction of any bodily member or organ.^w
^u(c) An offense under this section is a felony of the third^w
^udegree.^w
^uSec. 49.08. INTOXICATION MANSLAUGHTER. (a) A person^w
^ucommits an offense if the person:^w
^u(1) operates a motor vehicle in a public place, an^w
^uaircraft, or a watercraft; and^w
^u(2) is intoxicated and by reason of that intoxication^w
^ucauses the death of another by accident or mistake.^w
^u(b) An offense under this section is a felony of the second^w
^udegree.^w
^uSec. 49.09. ENHANCED OFFENSES AND PENALTIES. (a) If it is^w
^ushown on the trial of an offense under Section 49.04, 49.05, or^w
^u49.06 that the person has previously been convicted one time of an^w
^uoffense relating to the driving or operating of a motor vehicle^w
^uwhile intoxicated, an offense of operating an aircraft while^w
^uintoxicated, or an offense of operating a watercraft while^w
^uintoxicated, the offense is a Class A misdemeanor, with a minimum^w
^uterm of confinement of 15 days.^w
^u(b) If it is shown on the trial of an offense under Section^w
^u49.04, 49.05, or 49.06 that the person has previously been^w
^uconvicted two times of an offense relating to the driving or^w
^uoperating of a motor vehicle while intoxicated, an offense of^w
^uoperating an aircraft while intoxicated, or an offense of operating^w
^ua watercraft while intoxicated, the offense is a felony of the^w
^uthird degree.^w
^u(c) For the purposes of this section:^w
^u(1) "Offense relating to the driving or operating of a^w
^umotor vehicle while intoxicated" means:^w
^u(A) an offense under Section 49.04;^w
^u(B) an offense under Article 6701l-1, Revised^w
^uStatutes, as that law existed before September 1, 1994;^w
^u(C) an offense under Article 6701l-2, Revised^w
^uStatutes, as that law existed before January 1, 1984; or^w
^u(D) an offense under the laws of another state^w
^uthat prohibit the operation of a motor vehicle while intoxicated.^w
^u(2) "Offense of operating an aircraft while^w
^uintoxicated" means:^w
^u(A) an offense under Section 49.05;^w
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^u(B) an offense under Section 1, Chapter 46, Acts^w
^uof the 58th Legislature, Regular Session, 1963 (Article 46f-3,^w
^uVernon's Texas Civil Statutes), as that law existed before^w
^uSeptember 1, 1994; or^w
^u(C) an offense under the laws of another state^w
^uthat prohibit the operation of an aircraft while intoxicated.^w
^u(3) "Offense of operating a watercraft while^w
^uintoxicated" means:^w
^u(A) an offense under Section 49.06;^w
^u(B) an offense under Section 31.097, Parks and^w
^uWildlife Code, as that law existed before September 1, 1994; or^w
^u(C) an offense under the laws of another state^w
^uthat prohibit the operation of a watercraft while intoxicated.^w
^u(d) For the purposes of this section, a conviction for an^w
^uoffense under Section 49.04, 49.05, or 49.06 that occurs on or^w
^uafter September 1, 1994, is a final conviction, whether the^w
^usentence for the conviction is imposed or probated.^w
^u(e) A conviction may not be used for purposes of enhancement^w
^uunder this section if:^w
^u(1) the conviction was a final conviction under^w
^uSubsection (e) and was for an offense committed more than 10 years^w
^ubefore the offense for which the person is being tried was^w
^ucommitted; and^w
^u(2) the person has not been convicted of an offense^w
^uunder Section 49.04, 49.05, or 49.06 or any offense related to^w
^udriving or operating a motor vehicle while intoxicated committed^w
^uwithin 10 years before the date on which the offense for which the^w
^uperson is being tried was committed.^w
^uSec. 49.10. NO DEFENSE. In a prosecution under Section^w
^u49.03, 49.04, 49.05, 49.06, 49.07, or 49.08, the fact that the^w
^udefendant is or has been entitled to use the alcohol, controlled^w
^usubstance, drug, dangerous drug, or other substance is not a^w
^udefense.^w
TITLE 11. ORGANIZED CRIME
^sAND CRIMINAL STREET GANGS^t
CHAPTER 71. ORGANIZED CRIME ^sAND CRIMINAL STREET GANGS^t
Sec. 71.01. DEFINITIONS. In this chapter,
(a) "Combination" means three or more persons who
collaborate in carrying on criminal activities, although:
(1) participants may not know each other's identity;
(2) membership in the combination may change from time
to time; and
(3) participants may stand in a wholesaler-retailer or
other arm's-length relationship in illicit distribution operations.
(b) "Conspires to commit" means that a person agrees with
one or more persons that they or one or more of them engage in
conduct that would constitute the offense and that person and one
or more of them perform an overt act in pursuance of the agreement.
An agreement constituting conspiring to commit may be inferred from
the acts of the parties.
(c) "Profits" means property constituting or derived from
any proceeds obtained, directly or indirectly, from an offense
listed in Section 71.02 ^sof this code^t.
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^s(d) "Criminal street gang" means three or more persons^t
^shaving a common identifying sign or symbol or an identifiable^t
^sleadership who continuously or regularly associate in the^t
^scommission of criminal activities.^t
Sec. 71.02. ENGAGING IN ORGANIZED CRIMINAL ACTIVITY. (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 ^sor as a member of a criminal street gang^t, 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, ^sor^t
forgery^u, deadly conduct, assault punishable as a Class A^w
^umisdemeanor, burglary of a motor vehicle, or unauthorized use of a^w
^umotor vehicle^w;
(2) any ^sfelony^t gambling offense ^upunishable as a^w
^uClass A misdemeanor^w;
(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 unlawful employment, authorization, or
inducing of a child younger than 17 years of age in an obscene
sexual performance;
(8) any felony offense under Chapter 32, Penal Code;
or
(9) any offense under Chapter 36, Penal Code.
(b) Except as provided in ^uSubsections^w ^sSubsection^t (c) ^uand^w
^u(d)^w ^sof this section^t, an offense under this section is one
category higher than the most serious offense listed in
^sSubdivisions (1) through (9) of^t Subsection (a) ^sof this^t
^ssection^t that was committed, and if the most serious offense is a
Class A misdemeanor, the offense is a ^ustate jail^w felony ^sof the^t
^sthird degree^t, except that if the most serious offense is a felony
of the first degree, the offense is a felony of the first degree.
(c) Conspiring to commit an offense under this section is of
the same degree as the most serious offense listed in ^sSubdivisions^t
^s(1) through (9) of^t Subsection (a) ^sof this section^t that the
person conspired to commit.
^u(d) At the punishment stage of a trial, the defendant may^w
^uraise the issue as to whether in voluntary and complete^w
^urenunciation of the offense he withdrew from the combination before^w
^ucommission of an offense listed in Subsection (a) and made^w
^usubstantial effort to prevent the commission of the offense. If^w
^uthe defendant proves the issue in the affirmative by a^w
^upreponderance of the evidence the offense is the same category of^w
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^uoffense as the most serious offense listed in Subsection (a) that^w
^uis committed, unless the defendant is convicted of conspiring to^w
^ucommit the offense, in which event the offense is one category^w
^ulower than the most serious offense that the defendant conspired to^w
^ucommit.^w
Sec. 71.03. Defenses Excluded. It is no defense to
prosecution under Section 71.02 ^sof this code^t that:
(1) one or more members of the combination are not
criminally responsible for the object offense;
(2) one or more members of the combination have been
acquitted, have not been prosecuted or convicted, have been
convicted of a different offense, or are immune from prosecution;
(3) a person has been charged with, acquitted, or
convicted of any offense listed in Subsection (a) of Section 71.02
^sof this code^t; or
(4) once the initial combination of ^uthree^w ^sfive^t or
more persons is formed there is a change in the number or identity
of persons in the combination as long as two or more persons remain
in the combination and are involved in a continuing course of
conduct constituting an offense under this chapter.
Sec. 71.04. Testimonial Immunity. (a) A party to an
offense under this chapter may be required to furnish evidence or
testify about the offense.
(b) No evidence or testimony required to be furnished under
the provisions of this section nor any information directly or
indirectly derived from such evidence or testimony may be used
against the witness in any criminal case, except a prosecution for
aggravated perjury or contempt.
Sec. 71.05. Renunciation Defense. (a) It is an affirmative
defense to prosecution under Section 71.02 ^sof this code^t that
under circumstances manifesting a voluntary and complete
renunciation of his criminal objective the actor withdrew from the
combination before commission of an offense listed in ^sSubdivisions^t
^s(1) through (7) of^t Subsection (a) of Section 71.02 ^sof this code^t
and took further affirmative action that prevented the commission
of the offense.
(b) ^uFor the purposes of this section and Subsection (d) of^w
^uSection 71.02, renunciation^w ^sRenunciation^t is not voluntary if it
is motivated in whole or in part:
(1) by circumstances not present or apparent at the
inception of the actor's course of conduct that increase the
probability of detection or apprehension or that make more
difficult the accomplishment of the objective; or
(2) by a decision to postpone the criminal conduct
until another time or to transfer the criminal act to another but
similar objective or victim.
^s(c) Evidence that the defendant withdrew from the^t
^scombination before commission of an offense listed in Subdivisions^t
^s(1) through (7) of Subsection (a) of Section 71.02 of this code and^t
^smade substantial effort to prevent the commission of an offense^t
^slisted in Subdivisions (1) through (7) of Subsection (a) of Section^t
^s71.02 of this code shall be admissible as mitigation at the hearing^t
^son punishment if he has been found guilty under Section 71.02 of^t
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^sthis code, and in the event of a finding of renunciation under this^t
^ssubsection, the punishment shall be one grade lower than that^t
^sprovided under Section 71.02 of this code.^t
SECTION 1.02. Section 5, Chapter 275, Acts of the 67th
Legislature, Regular Session, 1981, and Section 1, Chapter 587,
Acts of the 69th Legislature, Regular Session, 1985, are repealed.
SECTION 1.03. Chapter 3, Code of Criminal Procedure, is
amended by adding Article 3.04 to read as follows:
^uArt. 3.04. OFFICIAL MISCONDUCT. In this code:^w
^u(1) "Official misconduct" means an offense that is an^w
^uintentional or knowing violation of a law committed by a public^w
^uservant while acting in an official capacity as a public servant.^w
^u(2) "Public servant" has the meaning assigned by^w
^uSection 1.07, Penal Code.^w
SECTION 1.04. Chapter 14, Code of Criminal Procedure, is
amended by adding Article 14.031 to read as follows:
^uArt. 14.031. PUBLIC INTOXICATION. (a) In lieu of arresting^w
^uan individual who commits an offense under Section 49.02, Penal^w
^uCode, a peace officer may release an individual if:^w
^u(1) the officer believes detention in a penal facility^w
^uis unnecessary for the protection of the individual or others; and^w
^u(2) the individual:^w
^u(A) is released to the care of an adult who^w
^uagrees to assume responsibility for the individual; or^w
^u(B) verbally consents to voluntary treatment for^w
^uchemical dependency in a program in a treatment facility licensed^w
^uand approved by the Texas Commission on Alcohol and Drug Abuse, and^w
^uthe program admits the individual for treatment.^w
^u(b) A magistrate may release from custody an individual^w
^uarrested under Section 49.02, Penal Code, if the magistrate^w
^udetermines the individual meets the conditions required for release^w
^uin lieu of arrest under Subsection (a) of this article.^w
^u(c) The release of an individual under Subsection (a) or (b)^w
^uof this article to an alcohol or drug treatment program may not be^w
^uconsidered by a peace officer or magistrate in determining whether^w
^uthe individual should be released to such a program for a^w
^usubsequent incident or arrest under Section 49.02, Penal Code.^w
^u(d) A peace officer and the agency or political subdivision^w
^uthat employs the peace officer may not be held liable for damage to^w
^upersons or property that results from the actions of an individual^w
^ureleased under Subsection (a) or (b) of this article.^w
SECTION 1.05. Article 14.06(b), Code of Criminal Procedure,
is amended to read as follows:
(b) A peace officer who is charging a person with committing
an offense that is a Class C misdemeanor, other than an offense
under Section ^u49.02^w ^s42.08^t, Penal Code, may, instead of taking the
person before a magistrate, issue a citation to the person that
contains written notice of the time and place the person must
appear before a magistrate, the name and address of the person
charged, and the offense charged.
SECTION 1.06. Article 18.20, Code of Criminal Procedure, is
amended by adding Section 18 to read as follows:
^uSec. 18. This article expires September 1, 2005, and shall^w
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^unot be in force on and after that date.^w
SECTION 1.07. Subchapter A, Chapter 102, Code of Criminal
Procedure, is amended by adding Article 102.017 to read as follows:
^uArt. 102.017. COSTS ATTENDANT TO INTOXICATION CONVICTIONS.^w
^u(a) Except as provided by Subsection (d) of this article, on^w
^uconviction of an offense relating to the driving or operating of a^w
^umotor vehicle under Section 49.04, Penal Code, the court shall^w
^uimpose a cost of $15 on a defendant if, subsequent to the arrest of^w
^uthe defendant, a law enforcement agency visually recorded the^w
^udefendant with an electronic device. Costs imposed under this^w
^usubsection are in addition to other court costs and are due whether^w
^uor not the defendant is granted probation in the case. The court^w
^ushall collect the costs in the same manner as other costs are^w
^ucollected in the case.^w
^u(b) Except as provided by Subsection (d) of this article, on^w
^uconviction of an offense relating to the driving or operating of a^w
^umotor vehicle punishable under Section 49.04(b), Penal Code, the^w
^ucourt shall impose as a cost of court on the defendant an amount^w
^uthat is equal to the cost of an evaluation of the defendant^w
^uperformed under Section 13(a), Article 42.12, of this code. Costs^w
^uimposed under this subsection are in addition to other court costs^w
^uand are due whether or not the defendant is granted probation in^w
^uthe case, except that if the court determines that the defendant is^w
^uindigent and unable to pay the cost, the court may waive the^w
^uimposition of the cost.^w
^u(c)(1) Except as provided by Subsection (d) of this article,^w
^uif a person commits an offense under Chapter 49, Penal Code, and as^w
^ua direct result of the offense the person causes an incident^w
^uresulting in an accident response by a public agency, the person is^w
^uliable on conviction for the offense for the reasonable expense to^w
^uthe agency of the accident response. In this article, a person is^w
^uconsidered to have been convicted in a case if:^w
^u(A) sentence is imposed;^w
^u(B) the defendant receives probation or deferred^w
^uadjudication; or^w
^u(C) the court defers final disposition of the^w
^ucase.^w
^u(2) The liability authorized by this subsection may be^w
^uestablished by civil suit; however, if a determination is made^w
^uduring a criminal trial that a person committed an offense under^w
^uChapter 49, Penal Code, and as a direct result of the offense the^w
^uperson caused an incident resulting in an accident response by a^w
^upublic agency, the court may include the obligation for the^w
^uliability as part of the judgment. A judgment that includes such^w
^uan obligation is enforceable as any other judgment.^w
^u(3) The liability is a debt of the person to the^w
^upublic agency, and the public agency may collect the debt in the^w
^usame manner as the public agency collects an express or implied^w
^ucontractual obligation to the agency.^w
^u(4) A person's liability under this subsection for the^w
^ureasonable expense of an accident response may not exceed $1,000^w
^ufor a particular incident. For the purposes of this subdivision, a^w
^ureasonable expense for an accident response includes only those^w
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^ucosts to the public agency arising directly from an accident^w
^uresponse to a particular incident, such as the cost of providing^w
^upolice, fire-fighting, rescue, ambulance, and emergency medical^w
^uservices at the scene of the incident and the salaries of the^w
^upersonnel of the public agency responding to the incident.^w
^u(5) A bill for the expense of an accident response^w
^usent to a person by a public agency under this subsection must^w
^ucontain an itemized accounting of the components of the total^w
^ucharge. A bill that complies with this subdivision is prima facie^w
^uevidence of the reasonableness of the costs incurred in the^w
^uaccident response to which the bill applies.^w
^u(6) A policy of motor vehicle insurance delivered,^w
^uissued for delivery, or renewed in this state may not cover payment^w
^uof expenses charged to a person under this subsection.^w
^u(7) In this subsection, "public agency" means the^w
^ustate, a county, a municipality district, or a public authority^w
^ulocated in whole or in part in this state that provides police,^w
^ufire-fighting, rescue, ambulance, or emergency medical services.^w
^u(d) Subsections (a), (b), and (c) of this article do not^w
^uapply to an offense under Section 49.02 or 49.03, Penal Code.^w
SECTION 1.08. Subsection (g), Section 24, Chapter 173, Acts
of the 47th Legislature, Regular Session, 1941 (Article 6687b,
Vernon's Texas Civil Statutes), is amended by amending Subdivision
(2) and adding Subdivision (5) to read as follows:
(2)^u(A)^w After the date has passed, according to records
of the Department, for successful completion of an educational
program designed to rehabilitate persons who have driven while
intoxicated, if the records do not indicate successful completion
of the program, the Director shall suspend the person's driver's
license, permit, or nonresident operating privilege or, if the
person is a resident without a license or permit to operate a motor
vehicle in this state, shall issue an order prohibiting the person
from obtaining a license or permit. A suspension or prohibition
order under this subsection is effective for a period of twelve
(12) months.
^u(B) After the date has passed, according to^w
^urecords of the Department, for successful completion of an^w
^ueducational program for repeat offenders as required by Section^w
^u13, Article 42.12, Code of Criminal Procedure, if the records do^w
^unot indicate successful completion of the program, the Director^w
^ushall suspend the person's driver's license, permit, or nonresident^w
^uoperating privilege or, if the person is a resident without a^w
^ulicense or permit to operate a motor vehicle in this state, shall^w
^uissue an order prohibiting the person from obtaining a license or^w
^upermit. A suspension or prohibition order under this subsection is^w
^ucontinued until the person successfully completes that program.^w
^u(5) On the date that a suspension under Subsection (c)^w
^uof this section is to expire, the period of suspension or the^w
^ucorresponding period in which the Department is prohibited from^w
^uissuing a license to a person is automatically increased for a^w
^uperiod of 24 months unless the Department has received notice that^w
^uthe person has successfully completed an educational program under^w
^uSection 13, Article 42.12, Code of Criminal Procedure. At the time^w
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^ua person is convicted of an offense under Section 49.04, Penal^w
^uCode, the court shall warn the person of the effect of this^w
^usubdivision. On successful completion of the program, a person^w
^ushall present proof of the completion to the clerk of the court in^w
^uwhich the person was convicted. The clerk shall report the date of^w
^ucompletion to the Department in the same manner as required by^w
^uSection 13, Article 42.12, Code of Criminal Procedure. If the^w
^uDepartment receives proof of completion after a period of^w
^ususpension or prohibition has been extended under this subdivision,^w
^uthe Department shall immediately end the suspension or prohibition.^w
^uThis subdivision does not apply to a person whose license the^w
^uDepartment is prohibited from suspending under Subdivision (1) of^w
^uthis subsection.^w
SECTION 1.09. Section 1, Chapter 434, Acts of the 61st
Legislature, Regular Session, 1969 (Article 6701l-5, Vernon's Texas
Civil Statutes), is amended to read as follows:
Sec. 1. Any person who operates a motor vehicle ^uin^w ^supon the^t
^spublic highways or upon^t a public ^uplace, or a watercraft,^w ^sbeach^t
in this state shall be deemed to have given consent, subject to the
provisions of this Act, to submit to the taking of one or more
specimens of his breath or blood for the purpose of analysis to
determine the alcohol concentration or the presence in his body of
a controlled substance^u,^w ^sor^t drug^u, dangerous drug, or other^w
^usubstance,^w if arrested for any offense arising out of acts alleged
to have been committed while a person was driving or in actual
physical control of a motor vehicle ^uor a watercraft^w while
intoxicated. Any person so arrested may consent to the giving of
any other type of specimen to determine his alcohol concentration,
but he shall not be deemed, solely on the basis of his operation of
a motor vehicle ^uin^w ^supon the public highways or upon^t a public
^uplace, or a watercraft,^w ^sbeach^t in this state, to have given
consent to give any type of specimen other than a specimen of his
breath or blood. The specimen, or specimens, shall be taken at the
request of a peace officer having reasonable grounds to believe the
person to have been driving or in actual physical control of a
motor vehicle ^uin^w ^supon the public highways or upon^t a public ^uplace,^w
^uor a watercraft,^w ^sbeach^t in this state while intoxicated.
SECTION 1.10. Section 2, Chapter 434, Acts of the 61st
Legislature, Regular Session, 1969 (Article 6701l-5, Vernon's Texas
Civil Statutes), is amended by amending Subsection (f) and adding
Subsections (j) and (k) to read as follows:
(f) When the director receives the report, the director
shall suspend the person's license, permit, or nonresident
operating privilege, or shall issue an order prohibiting the person
from obtaining a license or permit, for 90 days effective 28 days
after the date the person receives notice by certified mail or 31
days after the date the director sends notice by certified mail, if
the person has not accepted delivery of the notice. If, not later
than the 20th day after the date on which the person receives
notice by certified mail or the 23rd day after the date the
director sent notice by certified mail, if the person has not
accepted delivery of the notice, the department receives a written
demand that a hearing be held, the department shall, not later than
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the 10th day after the day of receipt of the demand, request a
court to set the hearing for the earliest possible date. The
hearing shall be set in the same manner as a hearing under Section
22(a), Chapter 173, Acts of the 47th Legislature, Regular Session,
1941, as amended (Article 6687b, Vernon's Texas Civil Statutes).
If, upon such hearing the court finds (1) that probable cause
existed that such person was driving or in actual physical control
of a motor vehicle ^uin^w ^son the highway or upon^t a public ^uplace^w
^sbeach^t while intoxicated, (2) that the person was placed under
arrest by the officer and was offered an opportunity to give a
specimen under the provisions of this Act, and (3) that such person
refused to give a specimen upon request of the officer, then the
Director of the ^sTexas^t Department of Public Safety shall suspend
the person's license or permit to drive, or any nonresident
operating privilege for a period of 90 days, as ordered by the
court. If the person is a resident without a license or permit to
operate a motor vehicle in this State, the ^sTexas^t Department of
Public Safety shall deny to the person the issuance of a license or
permit for 90 days.
^u(j) This section applies only to a person arrested for an^w
^uoffense involving the operation of a motor vehicle.^w
^u(k) A suspension under this Act may not be probated.^w
SECTION 1.11. Sections 3(a), (c), (h), (i), and (j), Chapter
434, Acts of the 61st Legislature, Regular Session, 1969 (Article
6701l-5, Vernon's Texas Civil Statutes), are amended to read as
follows:
(a) Upon the trial of any criminal action or proceeding
arising out of an offense ^uinvolving the operation of a motor^w
^uvehicle or a watercraft^w under ^uChapter 49^w ^sSubdivision (2),^t
^sSubsection (a), Section 19.05^t, Penal Code, ^sor an offense under^t
^sArticle 6701l-1, Revised Statutes,^t evidence of the alcohol
concentration or presence of a controlled substance^u,^w ^sor^t drug^u,^w
^udangerous drug, or other substance^w as shown by analysis of a
specimen of the person's blood, breath, urine, or any other bodily
substances taken at the request or order of a peace officer, shall
be admissible.
(c) When a person gives a specimen of blood at the request
or order of a peace officer under the provisions of this Act, only
a physician, qualified technician, chemist, registered professional
nurse, or licensed vocational nurse may withdraw a blood specimen
for the purpose of determining the alcohol concentration or
presence of a controlled substance^u,^w ^sor^t drug^u, dangerous drug, or^w
^uother substance^w therein. For purposes of this subsection,
"qualified technician" does not include emergency medical services
personnel. The sample must be taken in a sanitary place. The
person drawing the blood specimen at the request or order of a
peace officer under the provisions of this Act, or the hospital
where that person is taken for the purpose of securing the blood
specimen, shall not be held liable for damages arising from the
request or order of the peace officer to take the blood specimen as
provided herein, provided the blood specimen was withdrawn
according to recognized medical procedures, and provided further
that the foregoing shall not relieve any such person from liability
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for negligence in the withdrawing of any blood specimen. Breath
specimens taken at the request or order of a peace officer must be
taken and analysis made under such conditions as may be prescribed
by the ^sTexas^t Department of Public Safety, and by such persons as
the ^sTexas^t Department of Public Safety has certified to be
qualified.
(h) Any person who is dead, unconscious, or otherwise in a
condition rendering the person incapable of refusal, whether the
person was arrested or not, shall be deemed not to have withdrawn
the consent provided by Section 1 of this Act. If the person is
dead, a specimen may be withdrawn by the county medical examiner or
the examiner's designated agent or, if there is no county medical
examiner for the county, by a licensed mortician or a person
authorized as provided by Subsection (c) of this section. If the
person is not dead but is incapable of refusal, a specimen may be
withdrawn by a person authorized as provided by Subsection (c) of
this section. Evidence of alcohol concentration or the presence of
a controlled substance^u,^w ^sor^t drug^u, dangerous drug, or other^w
^usubstance^w obtained by an analysis authorized by this subsection is
admissible in a civil or criminal action.
(i) A peace officer shall require a person to give a
specimen under Section 2 of this Act if:
(1) the officer arrests the person for an offense
^uinvolving the operation of a motor vehicle or a watercraft^w under
^uChapter 49^w ^sSubdivision (2), Subsection (a), Section 19.05^t,
Penal Code^s, or an offense under Article 6701l-1, Revised Statutes,^t
^sas amended^t;
(2) the person was the operator of a motor vehicle ^uor^w
^ua watercraft^w involved in an accident that the officer reasonably
believes occurred as a result of the offense;
(3) at the time of the arrest the officer reasonably
believes that a person has died or will die as a direct result of
the accident; and
(4) the person refuses the officer's request to
voluntarily give a specimen.
(j) In this Act:
(1) "Alcohol concentration" ^uhas the meaning assigned^w
^uby Section 49.01, Penal Code^w ^smeans:^t
^s(A) the number of grams of alcohol per 100^t
^smilliliters of blood;^t
^s(B) the number of grams of alcohol per 210^t
^sliters of breath; or^t
^s(C) the number of grams of alcohol per 67^t
^smilliliters of urine^t.
(2) "Controlled substance" has the ^ssame^t meaning
^uassigned by^w ^sas is given that term in^t Section 481.002, Health
and Safety Code.
(3) ^u"Dangerous drug" has the meaning assigned by^w
^uSection 483.001, Health and Safety Code.^w
^u(4)^w "Drug" has the ^ssame^t meaning ^uassigned by^w ^sas is^t
^sgiven that term in^t Section 481.002, Health and Safety Code.
^u(5)^w ^s(4)^t "Intoxicated" ^uhas the meaning assigned by^w
^uSection 49.01, Penal Code^w ^smeans:^t
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^s(A) not having the normal use of mental or^t
^sphysical faculties by reason of the introduction of alcohol, a^t
^scontrolled substance, a drug, or a combination of two or more of^t
^sthose substances into the body; or^t
^s(B) having an alcohol concentration of 0.10 or^t
^smore^t.
^s(5) "Public beach" has the same meaning as is given^t
^sthat term in the Uniform Act Regulating Traffic on Highways^t
^s(Article 6701d, Vernon's Texas Civil Statutes).^t
(6) ^s"Public highway" has the same meaning as is given^t
^sthe term "highway" in the Uniform Act Regulating Traffic on^t
^sHighways (Article 6701d, Vernon's Texas Civil Statutes).^t
^s(7)^t "Public place" has the meaning assigned by
^sSubdivision (29), Subsection (a),^t Section 1.07, Penal Code.
SECTION 1.12. Section 31.097, Parks and Wildlife Code, is
repealed.
SECTION 1.13. Section 1, Chapter 46, Acts of the 58th
Legislature, Regular Session, 1963 (Article 46f-3, Vernon's Texas
Civil Statutes), is repealed.
SECTION 1.14. Section 107E, Uniform Act Regulating Traffic
on Highways (Article 6701d, Vernon's Texas Civil Statutes), is
repealed.
SECTION 1.15. Article 6701l-1, Revised Statutes, is
repealed.
SECTION 1.16. Section 11.17, Chapter 10, Acts of the 72nd
Legislature, 2nd Called Session, 1991, is repealed.
SECTION 1.17. Under the terms of Section 22.109(b),
Government Code, Rule 412(e), Texas Rules of Criminal Evidence, is
disapproved.
SECTION 1.18. (a) The change in law made by this article
applies only to an offense committed on or after the effective date
of this article. For purposes of this section, an offense is
committed before the effective date of this article if any element
of the offense occurs before the effective date.
(b) An offense committed before the effective date of this
article is covered by the law in effect when the offense was
committed, and the former law is continued in effect for that
purpose.
SECTION 1.19. (a) Except as provided by Subsection (b) of
this section, this article takes effect on September 1, 1994.
(b) The repeal of Section 12.422, Penal Code, as provided by
Section 1.01 of this article, Section 16.02(i), Penal Code, as
added by Section 1.01 of this article, and Sections 1.02, 1.06, and
1.16 of this article take effect September 1, 1993.
ARTICLE 2
SECTION 2.01. Section 481.002, Health and Safety Code, is
amended by adding Subdivision (49) to read as follows:
^u(49) "Adulterant or dilutant" means any material that^w
^uincreases the bulk or quantity of a controlled substance,^w
^uregardless of its effect on the chemical activity of the controlled^w
^usubstance.^w
SECTION 2.02. Sections 481.108, 481.112, 481.113, 481.114,
481.115, 481.116, 481.117, 481.118, 481.120, 481.121, 481.122,
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481.125, 481.126, 481.127, 481.128, 481.129, and 481.131, Health
and Safety Code, are amended to read as follows:
Sec. 481.108. Preparatory Offenses. Title 4, Penal Code,
applies to Section 481.126 ^sand offenses designated as aggravated^t
^soffenses under this subchapter^t, except that the punishment for a
preparatory offense ^uunder Section 481.126^w is ^uthe punishment for a^w
^ufirst degree felony^w ^sthe same as the punishment prescribed for the^t
^soffense that was the object of the preparatory offense^t.
Sec. 481.112. Offense: Manufacture or Delivery of Substance
in Penalty Group 1. (a) Except as authorized by this chapter, a
person commits an offense if the person knowingly or intentionally
manufactures, delivers, or possesses with intent to manufacture or
deliver a controlled substance listed in Penalty Group 1.
(b) An offense under Subsection (a) is a ^ustate jail^w felony
^sof the first degree^t if the amount of the controlled substance
to which the offense applies is, by aggregate weight, including
adulterants or dilutants, less than ^uone gram^w ^s28 grams^t.
(c) ^uAn^w ^sA person commits an aggravated offense if the person^t
^scommits an^t offense under Subsection (a) ^uis a felony of the second^w
^udegree if^w ^sand^t the amount of the controlled substance to which the
offense applies is, by aggregate weight, including adulterants or
dilutants, ^uone gram^w ^s28 grams^t or more ^ubut less than four grams^w.
(d) An offense under Subsection ^u(a)^w ^s(c)^t is ^ua felony of the^w
^ufirst degree^w^s:^t
^s(1) punishable by confinement in the Texas Department^t
^sof Corrections for life or for a term of not more than 99 years or^t
^sless than 5 years, and a fine not to exceed $50,000,^t if the amount
of the controlled substance to which the offense applies is, by
aggregate weight, including adulterants or dilutants, ^ufour^w ^s28^t
grams or more but less than 200 grams^u.^w
^u(e) An offense under Subsection (a) is^w^s;^t
^s(2)^t punishable by ^uimprisonment^w ^sconfinement^t in the
^uinstitutional division of the^w Texas Department of ^uCriminal^w
^uJustice^w ^sCorrections^t for life or for a term of not more than 99
years or less than 10 years, and a fine not to exceed $100,000, if
the amount of the controlled substance to which the offense applies
is, by aggregate weight, including adulterants or dilutants, 200
grams or more but less than 400 grams^u.^w^s; and^t
^u(f) An offense under Subsection (a) is^w ^s(3)^t punishable by
^uimprisonment^w ^sconfinement^t in the ^uinstitutional division of the^w
Texas Department of ^uCriminal Justice^w ^sCorrections^t for life or for
a term of not more than 99 years or less than 15 years, and a fine
not to exceed $250,000, if the amount of the controlled substance
to which the offense applies is, by aggregate weight, including
adulterants or dilutants, 400 grams or more.
Sec. 481.113. Offense: Manufacture or Delivery of Substance
in Penalty Group 2. (a) Except as authorized by this chapter, a
person commits an offense if the person knowingly or intentionally
manufactures, delivers, or possesses with intent to manufacture or
deliver a controlled substance listed in Penalty Group 2.
(b) An offense under Subsection (a) is a ^ustate jail^w felony
^sof the second degree^t if the amount of the controlled substance
to which the offense applies is, by aggregate weight, including
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adulterants or dilutants, less than ^uone gram^w ^s28 grams^t.
(c) ^uAn^w ^sA person commits an aggravated offense if the person^t
^scommits an^t offense under Subsection (a) ^uis a felony of the second^w
^udegree if^w ^sand^t the amount of the controlled substance to which the
offense applies is, by aggregate weight, including adulterants or
dilutants, ^uone gram^w ^s28 grams^t or more ^ubut less than four grams^w.
(d) An offense under Subsection ^u(a)^w ^s(c)^t is ^ua felony of the^w
^ufirst degree^w^s:^t
^s(1) punishable by confinement in the Texas Department^t
^sof Corrections for life or for a term of not more than 99 years or^t
^sless than 5 years, and a fine not to exceed $50,000,^t if the amount
of the controlled substance to which the offense applies is, by
aggregate weight, including adulterants or dilutants, ^ufour^w ^s28^t
grams or more but less than 400 grams^u.^w^s; and^t
^u(e) An offense under Subsection (a) is^w ^s(2)^t punishable by
^uimprisonment^w ^sconfinement^t in the ^uinstitutional division of the^w
Texas Department of ^uCriminal Justice^w ^sCorrections^t for life or for
a term of not more than 99 years or less than 10 years, and a fine
not to exceed $100,000, if the amount of the controlled substance
to which the offense applies is, by aggregate weight, including
adulterants or dilutants, 400 grams or more.
Sec. 481.114. Offense: Manufacture or Delivery of Substance
in Penalty Group 3 or 4. (a) Except as authorized by this
chapter, a person commits an offense if the person knowingly or
intentionally manufactures, delivers, or possesses with intent to
manufacture or deliver a controlled substance listed in Penalty
Group 3 or 4.
(b) An offense under Subsection (a) is a ^ustate jail^w felony
^sof the third degree^t if the amount of the controlled substance
to which the offense applies is, by aggregate weight, including
adulterants or dilutants, less than ^u28^w ^s200^t grams.
(c) ^uAn^w ^sA person commits an aggravated offense if the person^t
^scommits an^t offense under Subsection (a) ^uis a felony of the second^w
^udegree if^w ^sand^t the amount of the controlled substance to which the
offense applies is, by aggregate weight, including adulterants or
dilutants, ^u28^w ^s200^t grams or more ^ubut less than 200 grams^w.
(d) An offense under Subsection ^u(a)^w ^s(c)^t is ^ua felony of the^w
^ufirst degree^w^s:^t
^s(1) punishable by confinement in the Texas Department^t
^sof Corrections for life or for a term of not more than 99 years or^t
^sless than 5 years, and a fine not to exceed $50,000^t, if the amount
of the controlled substance to which the offense applies is, by
aggregate weight, including adulterants or dilutants, 200 grams or
more but less than 400 grams^u.^w^s; and^t
^u(e) An offense under Subsection (a) is^w ^s(2)^t punishable by
^uimprisonment^w ^sconfinement^t in the ^uinstitutional division of the^w
Texas Department of ^uCriminal Justice^w ^sCorrections^t for life or for
a term of not more than 99 years or less than 10 years, and a fine
not to exceed $100,000, if the amount of the controlled substance
to which the offense applies is, by aggregate weight, including any
adulterants or dilutants, 400 grams or more.
Sec. 481.115. Offense: Possession of Substance in Penalty
Group 1. (a) Except as authorized by this chapter, a person
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commits an offense if the person knowingly or intentionally
possesses a controlled substance listed in Penalty Group 1, unless
the person obtained the substance directly from or under a valid
prescription or order of a practitioner acting in the course of
professional practice.
(b) An offense under Subsection (a) is a ^ustate jail^w felony
^sof the second degree^t if the amount of the controlled substance
possessed is, by aggregate weight, including adulterants or
dilutants, less than ^uone gram^w ^s28 grams^t.
(c) ^uAn^w ^sA person commits an aggravated offense if the person^t
^scommits an^t offense under Subsection (a) ^uis a felony of the third^w
^udegree if^w ^sand^t the amount of the controlled substance possessed
is, by aggregate weight, including adulterants or dilutants, ^uone^w
^ugram^w ^s28 grams^t or more ^ubut less than four grams^w.
(d) An offense under Subsection ^u(a)^w ^s(c)^t is ^ua felony of the^w
^usecond degree^w^s:^t
^s(1) punishable by confinement in the Texas Department^t
^sof Corrections for life or for a term of not more than 99 years or^t
^sless than 5 years, and a fine not to exceed $50,000,^t if the amount
of the controlled substance possessed is, by aggregate weight,
including adulterants or dilutants, ^ufour^w ^s28^t grams or more but
less than ^u200^w ^s400^t grams^u.^w^s; and^t
^u(e) An offense under Subsection (a) is a felony of the first^w
^udegree if the amount of the controlled substance possessed is, by^w
^uaggregate weight, including adulterants or dilutants, 200 grams or^w
^umore but less than 400 grams.^w
^u(f) An offense under Subsection (a) is^w ^s(2)^t punishable by
^uimprisonment^w ^sconfinement^t in the ^uinstitutional division of the^w
Texas Department of ^uCriminal Justice^w ^sCorrections^t for life or for
a term of not more than 99 years or less than 10 years, and a fine
not to exceed $100,000, if the amount of the controlled substance
possessed is, by aggregate weight, including adulterants or
dilutants, 400 grams or more.
Sec. 481.116. Offense: Possession of Substance in Penalty
Group 2. (a) Except as authorized by this chapter, a person
commits an offense if the person knowingly or intentionally
possesses a controlled substance listed in Penalty Group 2, unless
the person obtained the substance directly from or under a valid
prescription or order of a practitioner acting in the course of
professional practice.
(b) An offense under Subsection (a) is a ^ustate jail^w felony
^sof the third degree^t if the amount of the controlled substance
possessed is, by aggregate weight, including adulterants or
dilutants, less than ^uone gram^w ^s28 grams^t.
(c) ^uAn^w ^sA person commits an aggravated offense if the person^t
^scommits an^t offense under Subsection (a) ^uis a felony of the third^w
^udegree if^w ^sand^t the amount of the controlled substance possessed
is, by aggregate weight, including adulterants or dilutants, ^uone^w
^ugram^w ^s28 grams^t or more ^ubut less than four grams^w.
(d) An offense under Subsection ^u(a)^w ^s(c)^t is ^ua felony of the^w
^usecond degree^w^s:^t
^s(1) punishable by confinement in the Texas Department^t
^sof Corrections for life or for a term of not more than 99 years or^t
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^sless than 5 years, and a fine not to exceed $50,000,^t if the amount
of the controlled substance possessed is, by aggregate weight,
including adulterants or dilutants, ^ufour^w ^s28^t grams or more but
less than 400 grams^u.^w^s; and^t
^u(e) An offense under Subsection (a) is^w ^s(2)^t punishable by
^uimprisonment^w ^sconfinement^t in the ^uinstitutional division of the^w
Texas Department of ^uCriminal Justice^w ^sCorrections^t for life or for
a term of not more than 99 years or less than ^ufive^w ^s10^t years, and
a fine not to exceed ^u$50,000^w ^s$100,000^t, if the amount of the
controlled substance possessed is, by aggregate weight, including
adulterants or dilutants, 400 grams or more.
Sec. 481.117. Offense: Possession of Substance in Penalty
Group 3. (a) Except as authorized by this chapter, a person
commits an offense if the person knowingly or intentionally
possesses a controlled substance listed in Penalty Group 3, unless
the person obtains the substance directly from or under a valid
prescription or order of a practitioner acting in the course of
professional practice.
(b) An offense under Subsection (a) is a Class A misdemeanor
if the amount of the controlled substance possessed is, by
aggregate weight, including adulterants or dilutants, less than ^u28^w
^s200^t grams.
(c) ^uAn^w ^sA person commits an aggravated offense if the person^t
^scommits an^t offense under Subsection (a) ^uis a felony of the third^w
^udegree if^w ^sand^t the amount of the controlled substance possessed
is, by aggregate weight, including adulterants or dilutants, ^u28^w
^s200^t grams or more ^ubut less than 200 grams^w.
(d) An offense under Subsection ^u(a)^w ^s(c)^t is ^ua felony of the^w
^usecond degree^w^s:^t
^s(1) punishable by confinement in the Texas Department^t
^sof Corrections for life or for a term of not more than 99 years or^t
^sless than 5 years, and a fine not to exceed $50,000^t, if the amount
of the controlled substance possessed is, by aggregate weight,
including adulterants or dilutants, 200 grams or more but less than
400 grams^u.^w^s; and^t
^u(e) An offense under Subsection (a) is^w ^s(2)^t punishable by
^uimprisonment^w ^sconfinement^t in the ^uinstitutional division of the^w
Texas Department of ^uCriminal Justice^w ^sCorrections^t for life or for
a term of not more than 99 years or less than ^ufive^w ^s10^t years, and
a fine not to exceed ^u$50,000^w ^s$100,000^t, if the amount of the
controlled substance possessed is, by aggregate weight, including
adulterants or dilutants, 400 grams or more.
Sec. 481.118. Offense: Possession Of Substance In Penalty
Group 4. (a) Except as authorized by this chapter, a person
commits an offense if the person knowingly or intentionally
possesses a controlled substance listed in Penalty Group 4, unless
the person obtained the substance directly from or under a valid
prescription or order of a practitioner acting in the course of
practice.
(b) An offense under Subsection (a) is a Class B misdemeanor
if the amount of the controlled substance possessed is, by
aggregate weight, including adulterants or dilutants, less than ^u28^w
^s200^t grams.
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(c) ^uAn^w ^sA person commits an aggravated offense if the person^t
^scommits an^t offense under Subsection (a) ^uis a felony of the third^w
^udegree if^w ^sand^t the amount of the controlled substance possessed
is, by aggregate weight, including adulterants or dilutants, ^u28^w
^s200^t grams or more ^ubut less than 200 grams^w.
(d) An offense under Subsection ^u(a)^w ^s(c)^t is ^ua felony of the^w
^usecond degree^w^s:^t
^s(1) punishable by confinement in the Texas Department^t
^sof Corrections for life or a term of not more than 99 years or less^t
^sthan 5 years, and a fine not to exceed $50,000^t, if the amount of
the controlled substance possessed is, by aggregate weight,
including adulterants or dilutants, 200 grams or more but less than
400 grams^u.^w^s; and^t
^u(e) An offense under Subsection (a) is^w ^s(2)^t punishable by
^uimprisonment^w ^sconfinement^t in the ^uinstitutional division of the^w
Texas Department of ^uCriminal Justice^w ^sCorrections^t for life or for
a term of not more than 99 years or less than ^ufive^w ^s10^t years, and
a fine not to exceed ^u$50,000^w ^s$100,000^t, if the amount of the
controlled substance possessed is, by aggregate weight, including
adulterants or dilutants, 400 grams or more.
Sec. 481.120. Offense: Delivery of Marihuana. (a) Except
as authorized by this chapter, a person commits an offense if the
person knowingly or intentionally delivers marihuana.
(b) An offense under Subsection (a) is:
(1) a Class B misdemeanor if the amount of marihuana
delivered is one-fourth ounce or less and the person committing the
offense does not receive remuneration for the marihuana;
(2) a Class A misdemeanor if the amount of marihuana
delivered is one-fourth ounce or less and the person committing the
offense receives remuneration for the marihuana;
(3) a ^ustate jail^w felony ^sof the third degree^t if the
amount of marihuana delivered is ^ufive pounds^w ^sfour ounces^t or less
but more than one-fourth ounce;
(4) a felony of the second degree if the amount of
marihuana delivered is ^u50^w ^sfive^t pounds or less but more than ^ufive^w
^upounds^w ^sfour ounces^t; ^sand^t
(5) a felony of the first degree if the amount of
marihuana delivered is ^u2,000^w ^s50^t pounds or less but more than ^u50^w
^s5^t pounds^u; and^w^s.^t
^s(c) A person commits an aggravated offense if the person^t
^scommits an offense under Subsection (a) and the amount of marihuana^t
^sdelivered is more than 50 pounds.^t
^s(d) An offense under Subsection (c) is:^t
^s(1) punishable by confinement in the Texas Department^t
^sof Corrections for life or for a term of not more than 99 years or^t
^sless than 5 years, and a fine not to exceed $50,000, if the amount^t
^sof marihuana delivered is 200 pounds or less but more than 50^t
^spounds;^t
^u(6)^w ^s(2)^t punishable by ^uimprisonment^w ^sconfinement^t in
the ^uinstitutional division of the^w Texas Department of ^uCriminal^w
^uJustice^w ^sCorrections^t for life or for a term of not more than 99
years or less than 10 years, and a fine not to exceed $100,000, ^sif^t
^sthe amount of marihuana delivered is 2,000 pounds or less but more^t
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^sthan 200 pounds; and^t
^s(3) punishable by confinement in the Texas Department^t
^sof Corrections for life or for a term of not more than 99 years or^t
^sless than 15 years, and a fine not to exceed $250,000,^t if the
amount of marihuana delivered is more than 2,000 pounds.
Sec. 481.121. Offense: Possession of Marihuana.
(a) Except as authorized by this chapter, a person commits an
offense if the person knowingly or intentionally possesses a usable
quantity of marihuana.
(b) An offense under Subsection (a) is:
(1) a Class B misdemeanor if the amount of marihuana
possessed is two ounces or less;
(2) a Class A misdemeanor if the amount of marihuana
possessed is four ounces or less but more than two ounces;
(3) a ^ustate jail^w felony ^sof the third degree^t if the
amount of marihuana possessed is five pounds or less but more than
four ounces; ^sand^t
(4) a felony of the ^uthird^w ^ssecond^t degree if the
amount of marihuana possessed is 50 pounds or less but more than 5
pounds^u;^w^s.^t
^u(5) a felony of the second degree if^w
^s(c) A person commits an aggravated offense if the person^t
^scommits an offense under Subsection (a) and^t the amount of
marihuana possessed is ^u2,000 pounds or less but^w more than 50
pounds^u; and^w^s.^t
^s(d) An offense under Subsection (c) is:^t
^u(6)^w ^s(1)^t punishable by ^uimprisonment^w ^sconfinement^t in
the ^uinstitutional division of the^w Texas Department of ^uCriminal^w
^uJustice^w ^sCorrections^t for life or for a term of not more than 99
years or less than 5 years, and a fine not to exceed $50,000, ^sif^t
^sthe amount of marihuana possessed is 200 pounds or less but more^t
^sthan 50 pounds;^t
^s(2) punishable by confinement in the Texas Department^t
^sof Corrections for life or for a term of not more than 99 years or^t
^sless than 10 years, and a fine not to exceed $100,000, if the^t
^samount of marihuana possessed is 2,000 pounds or less but more than^t
^s200 pounds; and^t
^s(3) punishable by confinement in the Texas Department^t
^sof Corrections for life or for a term of not more than 99 years or^t
^sless than 15 years, and a fine not to exceed $250,000,^t if the
amount of marihuana possessed is more than 2,000 pounds.
^s(e) An offense for which the punishment is prescribed by^t
^sSubsection (b) may not be considered a crime of moral turpitude.^t
Sec. 481.122. Offense: Delivery of Controlled Substance or
Marihuana to Minor. (a) Except as authorized by this chapter, a
person commits an ^saggravated^t offense if the person knowingly or
intentionally delivers a controlled substance listed in Penalty
Group 1, 2, or 3 or knowingly or intentionally delivers marihuana
and the person delivers the controlled substance or marihuana to a
person:
(1) who is 17 years of age or younger;
(2) who the actor knows or believes intends to deliver
the controlled substance or marihuana to a person 17 years of age
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or younger;
(3) who is enrolled in an elementary or secondary
school; or
(4) who the actor knows or believes intends to deliver
the controlled substance or marihuana to a person who is enrolled
in an elementary or secondary school.
(b) It is an affirmative defense to prosecution under this
section that:
(1) the actor was younger than 18 years of age when
the offense was committed; or
(2) the actor was younger than 21 years of age when
the offense was committed and delivered only marihuana in an amount
less than one-fourth ounce for which the actor did not receive
remuneration.
(c) An offense under this section is a felony of the ^usecond^w
^sfirst^t degree.
Sec. 481.125. OFFENSE: POSSESSION OR DELIVERY OF DRUG
PARAPHERNALIA. (a) A person commits an offense if the person
knowingly or intentionally uses or possesses with intent to use
drug paraphernalia to plant, propagate, cultivate, grow, harvest,
manufacture, compound, convert, produce, process, prepare, test,
analyze, pack, repack, store, contain, or conceal a controlled
substance in violation of this chapter or to inject, ingest,
inhale, or otherwise introduce into the human body a controlled
substance in violation of this chapter.
(b) A person commits an offense if the person knowingly or
intentionally delivers, possesses with intent to deliver, or
manufactures with intent to deliver drug paraphernalia knowing that
the person who receives or who is intended to receive the drug
paraphernalia intends that it be used to plant, propagate,
cultivate, grow, harvest, manufacture, compound, convert, produce,
process, prepare, test, analyze, pack, repack, store, contain, or
conceal a controlled substance in violation of this chapter or to
inject, ingest, inhale, or otherwise introduce into the human body
a controlled substance in violation of this chapter.
(c) A person commits an offense if the person commits an
offense under Subsection (b), is 18 years of age or older, and the
person who receives or who is intended to receive the drug
paraphernalia is younger than 18 years of age and at least three
years younger than the actor.
(d) An offense under Subsection (a) is a Class C
misdemeanor^s, unless it is shown on the trial of a defendant that^t
^sthe defendant has previously been convicted under Subsection (a),^t
^sin which event the offense is a Class B misdemeanor^t.
(e) An offense under Subsection (b) is a Class A
misdemeanor, unless it is shown on the trial of a defendant that
the defendant has previously been convicted under Subsection (b) or
(c), in which event the offense is ^upunishable by confinement in^w
^ujail for a term of not more than one year or less than 90 days^w ^sa^t
^sfelony of the third degree^t.
(f) An offense under Subsection (c) is a ^ustate jail^w felony
^sof the third degree^t.
Sec. 481.126. OFFENSE: ILLEGAL EXPENDITURE OR INVESTMENT.
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(a) A person commits an offense if the person knowingly or
intentionally:
(1) expends funds the person knows are derived from
the commission of an offense^u:^w
^u(A)^w under Section ^u481.115(a) or 481.116(a)^w
^s481.112(c), 481.113(c), 481.114(c), 481.115(c), 481.116(c),^t
^s481.117(c), 481.118(c), 481.120(c), or 481.121(c)^t; or
^u(B) punishable under Section 481.112(d),^w
^u481.112(e), 481.113(d), 481.114(c), 481.117(c), 481.118(c),^w
^u481.120(b)(5), 481.120(b)(6), 481.121(b)(5), or 481.121(b)(6); or^w
(2) finances or invests funds the person knows or
believes are intended to further the commission of an offense
listed in Subdivision (1) ^uor an offense for which the punishment is^w
^ulisted under Subdivision (1)^w.
(b) An offense under this section is ^ua felony of the first^w
^udegree^w ^spunishable by confinement in the Texas Department of^t
^sCorrections for life or for a term of not more than 99 years or^t
^sless than 5 years, and a fine of not more than $1,000,000 or less^t
^sthan $50,000^t.
Sec. 481.127. OFFENSE: UNAUTHORIZED DISCLOSURE OF
INFORMATION. (a) A person commits an offense if the person
intentionally or knowingly gives, permits, or obtains unauthorized
access to information submitted to the Department of Public Safety
under Section 481.075.
(b) An offense under this section is a ^ustate jail^w felony ^sof^t
^sthe third degree^t.
Sec. 481.128. OFFENSE AND CIVIL PENALTY: COMMERCIAL
MATTERS. (a) A registrant or dispenser commits an offense if the
registrant or dispenser knowingly or intentionally:
(1) distributes, delivers, administers, or dispenses
a controlled substance in violation of Sections 481.070-481.074;
(2) manufactures a controlled substance not authorized
by the person's registration or distributes or dispenses a
controlled substance not authorized by the person's registration to
another registrant or other person;
(3) refuses or fails to make, keep, or furnish a
record, report, notification, order form, statement, invoice, or
information required by this chapter;
(4) prints, manufactures, possesses, or produces a
triplicate prescription form without the approval of the Department
of Public Safety;
(5) delivers or possesses a counterfeit triplicate
prescription;
(6) refuses an entry into a premise for an inspection
authorized by this chapter;
(7) refuses or fails to return a triplicate
prescription form as required by Section 481.075(h); or
(8) refuses or fails to make, keep, or furnish a
record, report, notification, order form, statement, invoice, or
information required by a rule adopted before June 1, 1991, by the
director.
(b) If the registrant or dispenser knowingly or
intentionally refuses or fails to make, keep, or furnish a record,
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report, notification, order form, statement, invoice, or
information required by a rule or a rule amendment adopted on or
after June 1, 1991, by the director, the registrant or dispenser is
liable to the state for a civil penalty of not more than $5,000 for
each act.
(c) If the registrant or dispenser negligently fails to
make, keep, or furnish a record, report, notification, order form,
statement, invoice, or information required by a rule or a rule
amendment adopted on or after June 1, 1991, by the director, the
registrant or dispenser is liable to the state for a civil penalty
of not more than $1,000 for each act.
(d) An offense under Subsection (a) is a ^ustate jail^w felony
^sof the second degree, unless it is shown on the trial of a^t
^sdefendant that the defendant has previously been convicted under^t
^sSubsection (a), in which event the offense is a felony of the first^t
^sdegree^t.
(e) If a person negligently commits an act that would
otherwise be an offense under Subsection (a), the person is liable
to the state for a civil penalty of not less than $5,000 or more
than $10,000 for each act.
(f) A district attorney of the county where the act occurred
may file suit in district court in that county to collect a civil
penalty under this section, or the district attorney of Travis
County or the attorney general may file suit in district court in
Travis County to collect the penalty.
Sec. 481.129. OFFENSE: FRAUD. (a) A person commits an
offense if the person knowingly or intentionally:
(1) distributes as a registrant or dispenser a
controlled substance listed in Schedule I or II, unless the person
distributes the controlled substance under an order form as
required by Section 481.069;
(2) uses in the course of manufacturing, prescribing,
or distributing a controlled substance a registration number that
is fictitious, revoked, suspended, or issued to another person;
(3) uses a triplicate prescription form issued to
another person to prescribe a controlled substance;
(4) possesses or attempts to possess a controlled
substance:
(A) by misrepresentation, fraud, forgery,
deception, or subterfuge;
(B) through use of a fraudulent prescription
form; or
(C) through use of a fraudulent oral or
telephonically communicated prescription; or
(5) furnishes false or fraudulent material information
in or omits material information from an application, report,
record, or other document required to be kept or filed under this
chapter.
(b) A person commits an offense if the person knowingly or
intentionally:
(1) makes, distributes, or possesses a punch, die,
plate, stone, or other thing designed to print, imprint, or
reproduce an actual or simulated trademark, trade name, or other
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identifying mark, imprint, or device of another on a controlled
substance or the container or label of a container for a controlled
substance, so as to make the controlled substance a counterfeit
substance; or
(2) manufactures, delivers, or possesses with intent
to deliver a counterfeit substance.
(c) A person commits an offense if the person knowingly or
intentionally:
(1) delivers a prescription or a prescription form for
other than a valid medical purpose in the course of professional
practice; or
(2) possesses a prescription for a controlled
substance or a prescription form unless the prescription or
prescription form is possessed:
(A) during the manufacturing or distribution
process;
(B) by a practitioner, practitioner's agent, or
an institutional practitioner for a valid medical purpose during
the course of professional practice;
(C) by a pharmacist or agent of a pharmacy
during the professional practice of pharmacy;
(D) under a practitioner's order made by the
practitioner for a valid medical purpose in the course of
professional practice; or
(E) by an officer or investigator authorized to
enforce this chapter within the scope of the officer's or
investigator's official duties.
(d) An offense under Subsection (a) is:
(1) a felony of the second degree if the controlled
substance that is the subject of the offense is listed in Schedule
I or II;
(2) a felony of the third degree if the controlled
substance that is the subject of the offense is listed in Schedule
III or IV; and
(3) a Class A misdemeanor if the controlled substance
that is the subject of the offense is listed in Schedule V.
(e) An offense under Subsection (b) is a Class A
misdemeanor.
(f) An offense under Subsection (c)(1) is:
(1) a felony of the second degree if the defendant
delivers:
(A) a prescription form; or
(B) a prescription for a controlled substance
listed in Schedule II; and
(2) a felony of the third degree if the defendant
delivers a prescription for a controlled substance listed in
Schedule III, IV, or V.
(g) An offense under Subsection (c)(2) is:
(1) a ^ustate jail^w felony ^sof the third degree^t if the
defendant possesses:
(A) a prescription form; or
(B) a prescription for a controlled substance
listed in Schedule II or III; and
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(2) a Class B misdemeanor if the defendant possesses a
prescription for a controlled substance listed in Schedule IV or V.
Sec. 481.131. OFFENSE: DIVERSION OF CONTROLLED SUBSTANCE
PROPERTY OR PLANT. (a) A person commits an offense if the person
intentionally or knowingly:
(1) converts to the person's own use or benefit a
controlled substance property or plant seized under Section 481.152
or 481.153; or
(2) diverts to the unlawful use or benefit of another
person a controlled substance property or plant seized under
Section 481.152 or 481.153.
(b) An offense under this section is a ^ustate jail^w felony ^sof^t
^sthe third degree^t.
SECTION 2.03. Section 482.002, Health and Safety Code, is
amended to read as follows:
Sec. 482.002. UNLAWFUL DELIVERY OR MANUFACTURE WITH INTENT
TO DELIVER; CRIMINAL PENALTY. (a) A person commits an offense if
the person knowingly or intentionally manufactures with the intent
to deliver or delivers a simulated controlled substance and the
person:
(1) expressly represents the substance to be a
controlled substance;
(2) represents the substance to be a controlled
substance in a manner that would lead a reasonable person to
believe that the substance is a controlled substance; or
(3) states to the person receiving or intended to
receive the simulated controlled substance that the person may
successfully represent the substance to be a controlled substance
to a third party.
(b) It is a defense to prosecution under this section that
the person manufacturing with the intent to deliver or delivering
the simulated controlled substance was:
(1) acting in the discharge of the person's official
duties as a peace officer;
(2) manufacturing the substance for or delivering the
substance to a licensed medical practitioner for use as a placebo
in the course of the practitioner's research or practice; or
(3) a licensed medical practitioner, pharmacist, or
other person authorized to dispense or administer a controlled
substance, and the person was acting in the legitimate performance
of the person's professional duties.
(c) It is not a defense to prosecution under this section
that the person manufacturing with the intent to deliver or
delivering the simulated controlled substance believed the
substance to be a controlled substance.
(d) An offense under this section is a ^ustate jail^w felony ^sof^t
^sthe third degree^t.
SECTION 2.04. Section 483.042, Health and Safety Code, is
amended to read as follows:
Sec. 483.042. DELIVERY OR OFFER OF DELIVERY OF DANGEROUS
DRUG. (a) A person commits an offense if the person delivers or
offers to deliver a dangerous drug:
(1) unless:
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(A) the dangerous drug is delivered or offered
for delivery by a pharmacist under:
(i) a prescription issued by a
practitioner described by Section 483.001(12)(A) or (B); or
(ii) an original written prescription
issued by a practitioner described by Section 483.001(12)(C); and
(B) a label is attached to the immediate
container in which the drug is delivered or offered to be delivered
and the label contains the following information:
(i) the name and address of the pharmacy
from which the drug is delivered or offered for delivery;
(ii) the date the prescription for the
drug is dispensed;
(iii) the number of the prescription as
filed in the prescription files of the pharmacy from which the
prescription is dispensed;
(iv) the name of the practitioner who
prescribed the drug;
(v) the name of the patient and, if the
drug is prescribed for an animal, a statement of the species of the
animal; and
(vi) directions for the use of the drug as
contained in the prescription; or
(2) unless:
(A) the dangerous drug is delivered or offered
for delivery by a practitioner in the course of practice; and
(B) a label is attached to the immediate
container in which the drug is delivered or offered to be delivered
and the label contains the following information:
(i) the name and address of the
practitioner;
(ii) the date the drug is delivered;
(iii) the name of the patient and, if the
drug is prescribed for an animal, a statement of the species of the
animal; and
(iv) the name of the drug, the strength of
the drug, and directions for the use of the drug.
(b) Subsection (a) does not apply to the delivery or offer
for delivery of a dangerous drug to a person listed in Section
483.041(c) for use in the usual course of business or practice or
in the performance of official duties by the person.
(c) Proof of an offer to sell a dangerous drug must be
corroborated by a person other than the offeree or by evidence
other than a statement by the offeree.
(d) An offense under this section is a ^ustate jail^w felony ^sof^t
^sthe third degree^t.
SECTION 2.05. Section 483.043, Health and Safety Code, is
amended to read as follows:
Sec. 483.043. MANUFACTURE OF DANGEROUS DRUG. (a) A person
commits an offense if the person manufactures a dangerous drug and
the person is not authorized by law to manufacture the drug.
(b) An offense under this section is a ^ustate jail^w felony ^sof^t
^sthe third degree^t.
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SECTION 2.06. Section 485.033, Health and Safety Code, is
amended to read as follows:
Sec. 485.033. DELIVERY TO A MINOR. (a) A person commits an
offense if the person intentionally, knowingly, or recklessly
delivers abusable glue or aerosol paint to a person who is younger
than 18 years of age.
(b) It is a defense to prosecution under this section that
the abusable glue or aerosol paint that was delivered contains
additive material that effectively discourages intentional abuse by
inhalation or is in compliance with rules adopted by the
commissioner under Section 485.011.
(c) It is an affirmative defense to prosecution under this
section that:
(1) the person making the delivery is an adult having
supervisory responsibility over the person younger than 18 years of
age and:
(A) the adult permits the use of the abusable
glue or aerosol paint only under the adult's direct supervision and
in the adult's presence and only for its intended purpose; and
(B) the adult removes the substance from the
person younger than 18 years of age on completion of that use; or
(2) the person to whom the abusable glue or aerosol
paint was delivered presented to the defendant an apparently valid
Texas driver's license or an identification card, issued by the
Department of Public Safety of the State of Texas and containing a
physical description consistent with the person's appearance, that
purported to establish that the person was 18 years of age or
older.
(d) Except as provided by Subsections (e) and (f), an
offense under this section is a ^ustate jail^w felony ^sof the third^t
^sdegree^t.
(e) An offense under this section is a Class B misdemeanor
if it is shown on the trial of the defendant that at the time of
the delivery the defendant or the defendant's employer had a glue
and paint sales permit for the location of the sale.
(f) An offense under this section is a Class A misdemeanor
if it is shown on the trial of the defendant that at the time of
the delivery the defendant or the defendant's employer:
(1) did not have a glue and paint sales permit but did
have a sales tax permit for the location of the sale; and
(2) had not been convicted previously under this
section for an offense committed after January 1, 1988.
SECTION 2.07. Sections 481.106 and 481.107, Health and
Safety Code, are repealed.
SECTION 2.08. (a) The change in law made by this article
applies only to an offense committed on or after the effective date
of this article. For purposes of this section, an offense is
committed before the effective date of this article if any element
of the offense occurs before the effective date.
(b) An offense committed before the effective date of this
article is covered by the law in effect when the offense was
committed, and the former law is continued in effect for that
purpose.
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SECTION 2.09. This article takes effect on September 1,
1994.
ARTICLE 3
SECTION 3.01. Article 13.25(a), Code of Criminal Procedure,
is amended to read as follows:
(a) In this section ^u"access,"^w "computer," "computer
network," "computer program," ^sand^t "computer system^u,^w" ^uand "owner"^w
have the meanings assigned to those terms in Section 33.01, Penal
Code.
SECTION 3.02. Articles 14.03(a) and (d), Code of Criminal
Procedure, are amended to read as follows:
(a) Any peace officer may arrest, without warrant:
(1) persons found in suspicious places and under
circumstances which reasonably show that such persons have been
guilty of some felony^u, violation of Title 9, Chapter 42, Penal^w
^uCode,^w ^sor^t breach of the peace^u, or offense under Section 49.02,^w
^uPenal Code^w, or threaten, or are about to commit some offense
against the laws;
(2) persons who the peace officer has probable cause
to believe have committed an assault resulting in bodily injury to
another person and the peace officer has probable cause to believe
that there is danger of further bodily injury to that person;
(3) persons who the peace officer has probable cause
to believe have committed the offense defined by Section 25.08,
Penal Code (violation of Protective Order), if the offense is not
committed in the presence of the peace officer; or
(4) persons who the peace officer has probable cause
to believe have committed an assault resulting in bodily injury to
a member of the person's family or household.
(d) A peace officer who is outside his jurisdiction may
arrest, without warrant, a person who commits an offense within the
officer's presence or view, if the offense is a felony^u,^w ^sor^t a
violation of Title 9, Chapter 42, Penal Code^u, a breach of the^w
^upeace, or an offense under Section 49.02, Penal Code^w. A peace
officer making an arrest under this subsection shall, as soon as
practicable after making the arrest, notify a law enforcement
agency having jurisdiction where the arrest was made. The law
enforcement agency shall then take custody of the person committing
the offense and take the person before a magistrate in compliance
with Article 14.06 of this code.
SECTION 3.03. Article 102.016(a), Code of Criminal
Procedure, is amended to read as follows:
(a) A person convicted of an offense under ^uChapter 49^w
^sArticle 6701l1-1, Revised Statutes, Section 19.05(a)(2)^t, Penal
Code, ^uother than an offense punishable as a Class C misdemeanor, or^w
^uof an offense under^w the Texas Commercial Driver's License Act
(Article 6687b-2, Revised Statutes), ^sor Section 31.097, Parks and^t
^sWildlife Code,^t shall pay as court costs $30, in addition to other
court costs.
SECTION 3.04. Subsection (b), Article 102.081, Code of
Criminal Procedure, is amended to read as follows:
(b) A person convicted of an offense under ^uChapter 49, Penal^w
^uCode, other than an offense punishable as a Class C misdemeanor^w
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^sArticle 6701l-1, Revised Statutes^t, shall pay as a cost of court
$25.
SECTION 3.05. Chapter 16, Code of Criminal Procedure, is
amended by adding Article 16.22 to read as follows:
^uArt. 16.22. EXAMINATION AND TRANSFER OF SUSPECTED MENTALLY^w
^uILL OR RETARDED DEFENDANT. (a) If a sheriff provides to a^w
^umagistrate evidence or a statement that establishes reasonable^w
^ucause to believe that a defendant committed to the sheriff's^w
^ucustody is a person with mental illness or mental retardation, the^w
^umagistrate shall order an examination of the defendant under^w
^uSection 3(b), Article 46.02, of this code and, if necessary, the^w
^utransfer of the defendant to the nearest appropriate mental health^w
^uor mental retardation facility in the manner provided by Section^w
^u3(b), Article 46.02, of this code.^w
^u(b) After the court receives the examining expert's report^w
^urelating to the defendant under Section 3(d), Article 46.02, of^w
^uthis code, the court may resume the criminal proceedings against^w
^uthe defendant or further competency proceedings, if required, as^w
^uprovided by Article 46.02 of this code.^w
SECTION 3.06. Chapter 17, Code of Criminal Procedure, is
amended by adding Article 17.032 to read as follows:
^uArt. 17.032. RELEASE ON PERSONAL BOND OF CERTAIN MENTALLY^w
^uILL DEFENDANTS. (a) In this article, "violent offense" means an^w
^uoffense under the following sections of the Penal Code:^w
^u(1) Section 19.02 (murder);^w
^u(2) Section 19.03 (capital murder);^w
^u(3) Section 20.03 (kidnapping);^w
^u(4) Section 20.04 (aggravated kidnapping);^w
^u(5) Section 21.11 (indecency with a child);^w
^u(6) Section 22.01(a)(1) (assault);^w
^u(7) Section 22.011 (sexual assault);^w
^u(8) Section 22.02 (aggravated assault);^w
^u(9) Section 22.021 (aggravated sexual assault);^w
^u(10) Section 22.04 (injury to a child, elderly^w
^uindividual, or invalid); or^w
^u(11) Section 29.03 (aggravated robbery).^w
^u(b) A magistrate shall release a defendant on personal bond^w
^uif the:^w
^u(1) defendant is not charged with and has not been^w
^upreviously convicted of a violent offense;^w
^u(2) defendant is examined by a mental health expert^w
^uunder Section 3(b), Article 46.02 of this code;^w
^u(3) examining expert, in a report submitted to the^w
^umagistrate under Section 3(d), Article 46.02, of this code:^w
^u(A) concludes that the defendant is mentally ill^w
^uand is nonetheless competent to stand trial; and^w
^u(B) recommends mental health treatment for the^w
^udefendant; and^w
^u(4) magistrate determines, in consultation with a^w
^ulocal mental health services provider, that appropriate mental^w
^uhealth services for the defendant are available through the Texas^w
^uDepartment of Mental Health and Mental Retardation under Section^w
^u534.053, Health and Safety Code, or through another mental health^w
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^uservices provider.^w
^u(c) The magistrate may require as a condition of release on^w
^upersonal bond under this article that the defendant submit to^w
^uoutpatient or inpatient mental health treatment if the defendant's:^w
^u(1) mental illness is chronic in nature; or^w
^u(2) ability to function independently will continue to^w
^udeteriorate if the defendant is not treated.^w
^u(d) In addition to a condition of release imposed under^w
^uSubsection (c) of this article, the magistrate may require the^w
^udefendant to comply with other conditions that are reasonably^w
^unecessary to protect the community.^w
^u(e) In this article, a person is considered to have been^w
^uconvicted of an offense if:^w
^u(1) a sentence is imposed;^w
^u(2) the person is placed on community supervision or^w
^ureceives deferred adjudication; or^w
^u(3) the court defers final disposition of the case.^w
SECTION 3.07. (a) The change in law made by this article
applies only to an offense committed on or after the effective date
of this article. For purposes of this section, an offense is
committed before the effective date of this article if any element
of the offense occurs before the effective date.
(b) An offense committed before the effective date of this
article is covered by the law in effect when the offense was
committed, and the former law is continued in effect for that
purpose.
SECTION 3.08. This article takes effect on September 1,
1994.
ARTICLE 4
SECTION 4.01. Article 42.12, Code of Criminal Procedure, is
amended to read as follows:
Art. 42.12. ^uCOMMUNITY SUPERVISION^w ^sADULT PROBATION^t
Sec. 1. Purpose. It is the purpose of this ^uarticle^w
^sArticle^t to place wholly within the ^ustate^w ^sState^t courts ^sof^t
^sappropriate jurisdiction^t the responsibility for determining when
the imposition of sentence in certain cases shall be suspended, the
conditions of ^ucommunity supervision^w ^sprobation^t, and the
supervision of ^udefendants placed on community supervision^w
^sprobationers^t, in consonance with the powers assigned to the
judicial branch of this government by the Constitution of Texas.
It is the purpose of this ^uarticle^w ^sArticle^t to remove from existing
statutes the limitations, other than questions of
constitutionality, that have acted as barriers to effective systems
of ^ucommunity supervision^w ^sprobations^t in the public interest.
Sec. 2. Definitions. In this ^uarticle^w ^sArticle^t:
(1) ^u"Court" means a court^w ^s"Courts" shall mean the^t
^scourts^t of record having original criminal jurisdiction.
(2) ^u"Community supervision" means^w ^s"Probation" shall^t
^smean^t the ^uplacement^w ^ssupervised release^t of a ^sconvicted^t defendant
by a court under a continuum of programs and sanctions^u,^w with
conditions imposed by the court for a specified period during
which^u:^w
^u(A) criminal proceedings are deferred without an^w
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^uadjudication of guilt; or^w
^u(B) a sentence of imprisonment or confinement,^w
^uimprisonment and fine, or confinement and fine, is probated and^w the
imposition of sentence is suspended ^uin whole or in part^w.
(3) ^u"Supervision officer" means^w ^s"Probation officer"^t
^sshall mean either^t a person ^sduly^t appointed ^uor employed under^w
^uSection 4, Article 42.131 of this code^w ^sby one or more courts of^t
^srecord having original criminal jurisdiction^t to supervise
defendants placed on ^ucommunity supervision^w ^sprobation; or a person^t
^sdesignated by such courts for such duties on a part-time basis^t.
^s(4) "Probationer" means a defendant who is on^t
^sprobation.^t
Sec. 3. ^uJUDGE^w ^sCOURT^t ORDERED ^uCOMMUNITY SUPERVISION^w
^sPROBATION^t. ^u(a) A judge, in the best interest of justice, the^w
^upublic, and the defendant, after conviction or a plea of guilty or^w
^unolo contendere, may suspend the imposition of the sentence and^w
^uplace the defendant on community supervision or impose a fine^w
^uapplicable to the offense and place the defendant on community^w
^usupervision.^w
^u(b) In a felony case the minimum period of community^w
^usupervision is the same as the minimum term of imprisonment^w
^uapplicable to the offense and the maximum period of community^w
^usupervision is 10 years.^w
^u(c) The maximum period of community supervision in a^w
^umisdemeanor case is two years.^w
^u(d) A judge may increase the maximum period of community^w
^usupervision in the manner provided by Section 22(c) of this^w
^uarticle.^w
^u(e) A defendant is not eligible for community supervision^w
^uunder this section if the defendant:^w
^u(1) is sentenced to a term of imprisonment that^w
^uexceeds 10 years; or^w
^u(2) is sentenced to serve a term of confinement under^w
^uSection 12.35, Penal Code.^w ^sThe judges of the courts of the State^t
^sof Texas having original jurisdiction of criminal actions, when it^t
^sshall appear to the satisfaction of the court that the ends of^t
^sjustice and the best interests of the public as well as the^t
^sdefendant will be subserved thereby, shall have the power, after^t
^sconviction or a plea of guilty or nolo contendere for any crime or^t
^soffense, where the maximum punishment assessed against the^t
^sdefendant does not exceed ten years imprisonment, to suspend the^t
^simposition of the sentence and may place the defendant on probation^t
^sor impose a fine applicable to the offense committed and also place^t
^sthe defendant on probation as hereinafter provided. Except as^t
^sotherwise provided by this section, in all felony cases where the^t
^spunishment is assessed by the Court it may fix the period of^t
^sprobation without regard to the term of punishment assessed, but in^t
^sno event may the period of probation be greater than 10 years or^t
^sless than the minimum prescribed for the offense for which the^t
^sdefendant was convicted. In a misdemeanor case in which^t
^sconfinement is imposed by the court or in a third-degree felony^t
^scase punished under Section 12.34(a)(2), Penal Code, the period of^t
^sprobation shall be for a period of time not to exceed the maximum^t
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^sconfinement applicable to the offense or two years, whichever^t
^speriod is greater. Any such person placed on probation, whether in^t
^sa trial by jury or before the court, shall be under the supervision^t
^sof such court.^t
Sec. 3g. LIMITATION ON ^uJUDGE^w ^sCOURT^t ORDERED ^uCOMMUNITY^w
^uSUPERVISION^w ^sPROBATION^t. (a) The provisions of Section 3 of this
article do not apply:
(1) to a defendant adjudged guilty of an offense
defined by the following sections of the Penal Code:
(A) ^uSection 19.02 (Murder);^w
^u(B)^w Section 19.03 (Capital murder);
^u(C) Section 21.11(a)(1) (Indecency with a^w
^uchild);^w
^u(D)^w ^s(B)^t Section 20.04 (Aggravated kidnapping);
^u(E)^w ^s(C)^t Section 22.021 (Aggravated sexual
assault);
^u(F)^w ^s(D)^t Section 29.03 (Aggravated robbery); or
(2) to a defendant when it is shown that a deadly
weapon as defined in Section 1.07^s(a)(11)^t, Penal Code, was used or
exhibited during the commission of a felony offense or during
immediate flight therefrom, and that the defendant used or
exhibited the deadly weapon or was a party to the offense and knew
that a deadly weapon would be used or exhibited. On an affirmative
finding under this subdivision, the trial court shall enter the
finding in the judgment of the court. On an affirmative finding
that the deadly weapon was a firearm, the court shall enter that
finding in its judgment.
(b) If there is an affirmative finding under Subsection
(a)(2) in the trial of a felony of the second degree or higher that
the deadly weapon used or exhibited was a firearm and the defendant
is granted ^ucommunity supervision^w ^sprobation^t, the court may order
the defendant confined in the institutional division of the Texas
Department of Criminal Justice for not less than 60 and not more
than 120 days. At any time after the defendant has served 60 days
in the custody of the institutional division, the sentencing judge,
on his own motion or on motion of the defendant, may order the
defendant released to ^ucommunity supervision^w ^sprobation^t. The
institutional division shall release the defendant to ^ucommunity^w
^usupervision^w ^sprobation^t after he has served 120 days.
Sec. 4. JURY RECOMMENDED ^uCOMMUNITY SUPERVISION^w ^sPROBATION^t.
(a) ^uA jury that imposes confinement as punishment for an offense^w
^umay recommend to the judge that the judge suspend the imposition of^w
^uthe sentence and place the defendant on community supervision. A^w
^ujudge shall suspend the imposition of the sentence and place the^w
^udefendant on community supervision if the jury makes that^w
^urecommendation in the verdict.^w
^u(b) If the jury recommends to the judge that the judge place^w
^uthe defendant on community supervision, the judge shall place the^w
^udefendant on community supervision for any period permitted under^w
^uSection 3(b) or 3(c) of this article, as appropriate.^w
^u(c) A judge may increase the maximum period of community^w
^usupervision in the manner provided by Section 22(c) of this^w
^uarticle.^w
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^u(d) A defendant is not eligible for community supervision^w
^uunder this section if the defendant:^w
^u(1) is sentenced to a term of imprisonment that^w
^uexceeds 10 years;^w
^u(2) is sentenced to serve a term of confinement under^w
^uSection 12.35, Penal Code; or^w
^u(3) does not file a sworn motion under Subsection (e)^w
^uof this section or for whom the jury does not enter in the verdict^w
^ua finding that the information contained in the motion is true.^w
^u(e) A defendant is eligible for community supervision under^w
^uthis section only if before the trial begins the defendant files a^w
^uwritten sworn motion with the judge that the defendant has not^w
^upreviously been convicted of a felony in this or any other state,^w
^uand the jury enters in the verdict a finding that the information^w
^uin the defendant's motion is true.^w ^sWhen there is a felony^t
^sconviction in any court of this State and the punishment assessed^t
^sby the jury shall not exceed ten years, the jury may recommend^t
^sprobation for a period of any term of years authorized for the^t
^soffense for which the defendant was convicted, but in no event for^t
^smore than ten years, upon written sworn motion made therefor by the^t
^sdefendant, filed before the trial begins. When the jury recommends^t
^sprobation, it may also assess a fine applicable to the offense for^t
^swhich the defendant was convicted. When the trial is to a jury,^t
^sand the defendant has no counsel, the court shall inform the^t
^sdefendant of his right to make such motion, and the court shall^t
^sappoint counsel to prepare and present same, if desired by the^t
^sdefendant. In no case shall probation be recommended by the jury^t
^sexcept when the sworn motion and proof shall show, and the jury^t
^sshall find in their verdict that the defendant has never before^t
^sbeen convicted of a felony in this or any other State. This law is^t
^snot to be construed as preventing the jury from passing on the^t
^sguilt of the defendant, but he may enter a plea of not guilty. In^t
^sall eligible cases, probation shall be granted by the court, if the^t
^sjury recommends it in their verdict, for the period recommended by^t
^sthe jury. This section does not apply to a defendant adjudged^t
^sguilty of an offense under Section 481.122, Texas Controlled^t
^sSubstances Act (Chapter 481, Health and Safety Code), if it is^t
^sshown on the trial of the offense that the defendant was 21 years^t
^sof age or older at the time the offense was committed by his own^t
^sconduct.^t
^s(b) Where there is a misdemeanor conviction in any court of^t
^sthis state and the punishment assessed by the jury shall be by^t
^simprisonment in jail or by a fine or by both such fine and^t
^simprisonment, the jury may recommend probation for a period of time^t
^snot to exceed two years, upon sworn motion made therefor by the^t
^sdefendant, filed before the penalty stage of the trial begins.^t
^sWhen the jury recommends probation, it may recommend that the^t
^simprisonment or fine or both such fine and imprisonment found in^t
^sits verdict may be probated. When the trial is to a jury and the^t
^sdefendant has no counsel, the court shall inform the defendant of^t
^shis right to make such motion, and the court shall appoint counsel^t
^sto prepare and present same, if desired by the defendant. In no^t
^scase shall probation be recommended by the jury except when the^t
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^sdefendant, before the trial began, had filed a sworn statement that^t
^sthe defendant has never before been convicted of a felony, and^t
^safter conviction and before the penalty stage of the trial began,^t
^sthe defendant shall have filed a sworn motion for probation and the^t
^sproof shall show and the jury shall find in their verdict that the^t
^sdefendant has never before been convicted of a felony in this or^t
^sany other state. This law is not to be construed as preventing the^t
^sjury from passing on the guilt of the defendant, but the defendant^t
^smay enter a plea of not guilty. In all eligible cases, probation^t
^sshall be granted by the court, if the jury recommends it in their^t
^sverdict.^t
^s(c) This section does not prohibit a court from granting^t
^sprobation in a case if the jury in the case does not recommend^t
^sprobation.^t
Sec. 5. Deferred Adjudication^u; Community Supervision^w.
(a) Except as provided by Subsection (d) of this section, when in
^uthe judge's^w ^sits^t opinion the best interest of society and the
defendant will be served, the ^ujudge^w ^scourt^t may, after receiving a
plea of guilty or plea of nolo contendere, hearing the evidence,
and finding that it substantiates the defendant's guilt, defer
further proceedings without entering an adjudication of guilt, and
place the defendant on ^ucommunity supervision^w ^sprobation^t. The
^ujudge^w ^scourt^t shall inform the defendant orally or in writing of
the possible consequences under Subsection (b) of this section of a
violation of ^ucommunity supervision^w ^sprobation^t. If the information
is provided orally, the ^ujudge^w ^scourt^t must record and maintain the
^ujudge's^w ^scourt's^t statement to the defendant. In a felony case,
the period of ^ucommunity supervision^w ^sprobation^t may not exceed 10
years. In a misdemeanor case, the period of ^ucommunity supervision^w
^sprobation^t may not exceed two years. ^uA judge may increase the^w
^umaximum period of community supervision in the manner provided by^w
^uSection 22(c) of this article.^w The ^ujudge^w ^scourt^t may impose a fine
applicable to the offense and require any reasonable ^sterms and^t
conditions of ^ucommunity supervision, including mental health^w
^utreatment under Section 11(d) of this article, that a judge could^w
^uimpose on a defendant placed on community supervision for a^w
^uconviction that was probated and suspended, including confinement^w
^sprobation^t. However, upon written motion of the defendant
requesting final adjudication filed within 30 days after entering
such plea and the deferment of adjudication, the ^ujudge^w ^scourt^t
shall proceed to final adjudication as in all other cases.
(b) On violation of a condition of ^ucommunity supervision^w
^sprobation^t imposed under Subsection (a) of this section, the
defendant may be arrested and detained as provided in Section ^u21^w
^s24^t of this ^uarticle^w ^sArticle^t. The defendant is entitled to a
hearing limited to the determination by the court of whether it
proceeds with an adjudication of guilt on the original charge. No
appeal may be taken from this determination. After an adjudication
of guilt, all proceedings, including assessment of punishment,
pronouncement of sentence, granting of ^ucommunity supervision^w
^sprobation^t, and defendant's appeal continue as if the
adjudication of guilt had not been deferred.
(c) On expiration of a ^ucommunity supervision^w ^sprobationary^t
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period imposed under Subsection (a) of this section, if the ^ujudge^w
^scourt^t has not proceeded to adjudication of guilt, the ^ujudge^w
^scourt^t shall dismiss the proceedings against the defendant and
discharge him. The ^ujudge^w ^scourt^t may dismiss the proceedings and
discharge the defendant prior to the expiration of the term of
^ucommunity supervision^w ^sprobation^t if in ^uthe judge's^w ^sits^t opinion
the best interest of society and the defendant will be served. A
dismissal and discharge under this section may not be deemed a
conviction for the purposes of disqualifications or disabilities
imposed by law for conviction of an offense, except that:
(1) upon conviction of a subsequent offense, the fact
that the defendant had previously received ^ucommunity supervision^w
^uwith a deferred adjudication of guilt^w ^sprobation^t shall be
admissible before the court or jury to be considered on the issue
of penalty; and
(2) if the defendant is an applicant for a license or
is a licensee under Chapter 42, Human Resources Code, the Texas
Department of Human Services may consider the fact that the
defendant previously has received ^ucommunity supervision with a^w
^udeferred adjudication of guilt^w ^sprobation^t under this section in
issuing, renewing, denying, or revoking a license under that
chapter.
(d) ^uIn all other cases the judge may grant deferred^w
^uadjudication unless the defendant is charged with an offense under^w
^uSection 49.04, 49.05, 49.06, 49.07, or 49.08, Penal Code.^w ^sThis^t
^ssection does not apply to a defendant charged with an offense under^t
^sSubdivision (2), Subsection (a), Section 19.05, Penal Code, an^t
^soffense under Sections 481.107(b) through (e), 481.122, or 481.126,^t
^sHealth and Safety Code, an offense under Article 6701l-1, Revised^t
^sStatutes, an offense under Section 34, Chapter 173, Acts of the^t
^s47th Legislature, Regular Session, 1941 (Article 6687b, Vernon's^t
^sTexas Civil Statutes), an offense under Section 32(c), Texas Motor^t
^sVehicle Safety-Responsibility Act (Article 6701h, Vernon's Texas^t
^sCivil Statutes), or an offense under Section 10, Texas Commercial^t
^sDriver's License Act (Article 6687b-2, Revised Statutes).^t
Sec. 6. Continuing Court Jurisdiction in Felony Cases.
(a) For the purposes of this section, the jurisdiction of a court
in which a sentence requiring ^uimprisonment^w ^sconfinement^t in the
^uinstitutional division of the^w Texas Department of ^uCriminal^w
^uJustice^w ^sCorrections^t is imposed ^uby the judge of the court^w shall
continue for 180 days from the date the execution of the sentence
actually begins. Before the expiration of 180 days from the date
the execution of the sentence actually begins, the judge of the
court that imposed such sentence may on his own motion, on the
motion of the attorney representing the state, or on the written
motion of the defendant, suspend further execution of the sentence
and place the defendant on ^ucommunity supervision^w ^sprobation^t under
the terms and conditions of this article, if in the opinion of the
judge the defendant would not benefit from further ^uimprisonment^w
^sincarceration^t and:
(1) the defendant is otherwise eligible for ^ucommunity^w
^usupervision^w ^sprobation^t under this article; ^uand^w
(2) the defendant had never before been incarcerated
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in a penitentiary serving a sentence for a felony^s; and^t
^s(3) the offense for which the defendant was convicted^t
^swas other than those defined by Section 19.02, 20.04, 22.021,^t
^s22.03, 22.04(a)(1), (2), or (3), 29.03, 36.02, 38.07, 71.02 or a^t
^sfelony of the second degree under Section 38.10, Penal Code^t.
(b) ^sIf a court imposes a sentence under Section^t
^s12.34(a)(2), Penal Code, the period of time during which the court^t
^smay suspend further execution of the sentence and place the^t
^sdefendant on probation runs from the 60th day after the date of^t
^ssentencing until the date the sentence expires.^t
^s(c)^t When the defendant or the attorney representing the
state files a written motion requesting suspension by the ^ujudge^w
^scourt^t of further execution of the sentence and placement of the
defendant on ^ucommunity supervision^w ^sprobation^t, and when requested
to do so by the ^ujudge^w ^scourt^t, the clerk of the court shall request
a copy of the defendant's record while ^uimprisoned^w ^sincarcerated^t
from the ^uinstitutional division of the^w Texas Department of ^uCriminal^w
^uJustice^w ^sCorrections^t or, if the defendant is ^uconfined^w
^sincarcerated^t in county jail, from the sheriff. Upon receipt of
such request, the ^uinstitutional division of the^w Texas Department of
^uCriminal Justice^w ^sCorrections^t or the sheriff shall forward to the
^ujudge^w ^scourt^t, as soon as possible, a full and complete copy of
the defendant's record while ^uimprisoned or confined^w ^sincarcerated^t.
When the defendant files a written motion requesting suspension of
further execution of the sentence and placement on ^ucommunity^w
^usupervision^w ^sprobation^t, he shall immediately deliver or cause to
be delivered a true and correct copy of the motion to the office of
the attorney representing the state.
^u(c)^w ^s(d)^t The ^ujudge^w ^scourt^t may deny the motion without a
hearing but may not grant the motion without holding a hearing and
providing the attorney representing the state and the defendant the
opportunity to present evidence on the motion.
^s(e) If a court imposes punishment under Section 12.422,^t
^sPenal Code, the jurisdiction of the court continues until the 30th^t
^sday after the date the defendant is released from a substance abuse^t
^sfacility, for the purpose of allowing the court to place the^t
^sdefendant on probation under this article. A court may place the^t
^sdefendant on probation under this subsection on its own motion or^t
^son the motion of any party. If probation is imposed, the period of^t
^sprobation may not exceed the term of years imposed under Section^t
^s12.422(a)(2), Penal Code, and the court must impose as a condition^t
^sof probation that the defendant participate in a drug or alcohol^t
^sabuse after-care program. If the court does not impose probation^t
^son the defendant within the time permitted under this subsection,^t
^sthe punishment under Section 12.422(a)(2), Penal Code, is^t
^sautomatically discharged.^t
Sec. 7. Continuing Court Jurisdiction in Misdemeanor Cases.
(a) For the purposes of this section, the jurisdiction of the
courts in this state in which a sentence requiring confinement in a
jail is imposed for conviction of a misdemeanor shall continue for
^u180 days from the date the execution of the sentence actually^w
^ubegins^w ^sa period equal to the sentence imposed^t. The judge of the
court that imposed such sentence may on his own motion, on the
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motion of the attorney representing the state, or on the written
motion of the defendant suspend further execution of the sentence
and place the defendant on ^ucommunity supervision^w ^sprobation^t under
the terms and conditions of this article, if ^sprior to the^t
^sexecution of that sentence the defendant had never been^t
^sincarcerated in a penitentiary or jail serving a sentence for a^t
^sfelony or misdemeanor and^t in the opinion of the judge the
defendant would not benefit from further ^uconfinement^w
^sincarceration^t.
(b) When the defendant files a written motion with the court
requesting suspension of further execution of the sentence and
placement on ^ucommunity supervision^w ^sprobation^t or when requested to
do so by the judge, the clerk of the court shall request a copy of
the defendant's record while ^uconfined^w ^sincarcerated^t from the
agency operating the jail where the defendant is ^uconfined^w
^sincarcerated^t. Upon receipt of such request, the agency
operating the jail where the defendant is ^uconfined^w ^sincarcerated^t
shall forward to the court as soon as possible a full and complete
copy of the defendant's record while ^uconfined^w ^sincarcerated^t.
(c) The ^ujudge^w ^scourt^t may deny the motion without a hearing
but may not grant a motion without holding a hearing and allowing
the attorney representing the state and the defendant to present
evidence in the case.
Sec. 8. ^uState Boot Camp Program^w ^sALTERNATIVE INCARCERATION^t
^sPROBATION^t. (a) For the purposes of this section, the
jurisdiction of a court in which a sentence requiring ^uimprisonment^w
^sconfinement^t in the institutional division of the Texas Department
of Criminal Justice is imposed for conviction of a felony shall
continue for 90 days from the date on which the convicted person is
received into custody by the institutional division. After the
expiration of 75 days but prior to the expiration of 90 days from
the date on which the convicted person is received into custody by
the institutional division, the judge of the court that imposed the
sentence may suspend further execution of the sentence imposed and
place the person on ^ucommunity supervision^w ^sprobation^t under the
terms and conditions of this article, if in the opinion of the
judge the person would not benefit from further ^uimprisonment^w
^sincarceration in a penitentiary^t. The court shall clearly
indicate in its order recommending the placement of the person in
the ^ustate boot camp^w ^salternative incarceration^t program that the
court is not retaining jurisdiction over the person for the
purposes of Section 6 of this article. A court may recommend a
person for placement in the ^ustate boot camp^w ^salternative^t
^sincarceration^t program only if:
(1) the person is otherwise eligible for ^ucommunity^w
^usupervision^w ^sprobation^t under this article;
(2) the person is 17 years of age or older but younger
than 26 years and ^uis physically and mentally capable of^w
^uparticipating in a program^w ^sdoes not have a physical or mental^t
^shandicap^t that ^urequires^w ^sprecludes^t strenuous physical activity;
and
(3) the person ^uis not convicted of an offense^w
^upunishable as a state jail felony^w ^shad never before been^t
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^sincarcerated in a federal penitentiary or penitentiary of this or^t
^sany other state or has never been paroled from a county or^t
^smunicipal jail while awaiting transfer to a penitentiary^t.
(b) On the 76th day after the day on which the convicted
person is received into custody by the institutional division, the
institutional division shall send the convicting court the record
of the person's progress, conduct, and conformity to institutional
division rules.
(c) The ^ujudge's^w ^scourt's^t recommendation that a person be
placed in ^uthe state boot camp^w ^san alternative incarceration^t
program created under Section 499.052, Government Code, does not
give the court the power to hold the Texas Department of Criminal
Justice or any officer or employee of the department in contempt of
court for failure to adhere to that recommendation.
Sec. 9. Presentence Investigations. (a) ^uExcept as provided^w
^uby Subsection (g) of this section, before^w ^sBefore^t the imposition
of sentence by ^ua judge^w ^sthe court^t in a felony case, and except as
provided by Subsection (b) of this section, before the imposition
of sentence by ^ua judge^w ^sthe court^t in a misdemeanor case the ^ujudge^w
^scourt^t shall direct a ^usupervision^w ^sprobation^t officer to report to
the ^ujudge^w ^scourt^t in writing on the circumstances of the offense
with which the defendant is charged, the amount of restitution
necessary to adequately compensate a victim of the offense, the
criminal and social history of the defendant, and any other
information relating to the defendant or the offense requested by
the ^ujudge^w ^scourt^t. It is not necessary that the report contain a
sentencing recommendation, but the report must contain a proposed
client supervision plan describing programs and sanctions that the
community supervision and corrections department would provide the
defendant if the ^ujudge suspended the imposition of the sentence or^w
^ugranted deferred adjudication^w ^sdefendant were granted probation^t.
(b) The ^ujudge^w ^scourt^t is not required to direct a
^usupervision^w ^sprobation^t officer to prepare a report in a
misdemeanor case if:
(1) the defendant requests that a report not be made
and the ^ujudge^w ^scourt^t agrees to the request; or
(2) the ^ujudge^w ^scourt^t finds that there is sufficient
information in the record to permit the meaningful exercise of
sentencing discretion and the ^ujudge^w ^scourt^t explains this finding
on the record.
(c) The ^ujudge^w ^scourt^t may not inspect a report and the
contents of the report may not be disclosed to any person unless:
(1) the defendant pleads guilty or nolo contendere or
is convicted of the offense; or
(2) the defendant, in writing, authorizes the judge to
inspect the report.
(d) Before sentencing a defendant, the ^ujudge^w ^scourt^t shall
permit the defendant or his counsel to read the presentence report.
(e) The ^ujudge^w ^scourt^t shall allow the defendant or his
attorney to comment on the report and, with the approval of the
^ujudge^w ^scourt^t, introduce testimony or other information alleging
a factual inaccuracy in the report.
(f) The ^ujudge^w ^scourt^t shall allow the attorney representing
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the state access to any information made available to the defendant
under this section.
(g) ^uUnless requested by the defendant, a judge is not^w
^urequired to direct an officer to prepare a presentence report in a^w
^ufelony case under this section if:^w
^u(1) punishment is to be assessed by a jury;^w
^u(2) the defendant is convicted of or enters a plea of^w
^uguilty or nolo contendere to capital murder;^w
^u(3) the only available punishment is imprisonment; or^w
^u(4) the judge is informed that a plea bargain^w
^uagreement exists, under which the defendant agrees to a punishment^w
^uof imprisonment, and the judge intends to follow the agreement^w
^sThe probation officer making a report under this section shall^t
^ssend a copy of the report to an institution to which the defendant^t
^sis committed^t.
(h) On a determination by the ^ujudge^w ^scourt^t that alcohol or
drug abuse may have contributed to the commission of the offense,
the ^ujudge^w ^scourt^t shall direct a ^usupervision^w ^sprobation^t officer
approved by the ^ucommunity supervision and corrections^w ^sprobation^t
department or the ^ujudge^w ^scourt^t or a person, program, or other
agency approved by the Texas Commission on Alcohol and Drug Abuse,
to conduct an evaluation to determine the appropriateness of, and a
course of conduct necessary for, alcohol or drug rehabilitation for
a defendant and to report that evaluation to the ^ujudge^w ^scourt^t.
The evaluation shall be made:
(1) after arrest and before conviction, if requested
by the defendant;
(2) after conviction and before sentencing, if the
^ujudge^w ^scourt^t assesses punishment in the case;
(3) after sentencing and before the entry of a final
judgment, if the jury assesses punishment in the case; or
(4) after ^ucommunity supervision^w ^sprobation^t is
granted, if the evaluation is required as a condition of ^ucommunity^w
^usupervision^w ^sprobation^t under Section 13 of this article.
(i) A presentence investigation conducted on any ^udefendant^w
^soffender^t convicted of a felony offense who appears to the ^ujudge^w
^scourt^t through its own observation or on suggestion of a party to
have a mental impairment shall include a psychological evaluation
which determines, at a minimum, the defendant's IQ and adaptive
behavior score. The results of the evaluation shall be included in
the report to the ^ujudge^w ^scourt^t as required by Subsection (a) of
this section.
(j) The ^ujudge^w ^scourt^t by order may direct that any
information and records that are not privileged and that are
relevant to the report required by Subsection (a) of this section
be released to the officer conducting the presentence investigation
under Subsection (i) of this section. The ^ujudge^w ^scourt^t may also
issue a subpoena to obtain that information. The report and all
information obtained in connection with the presentence
investigation are confidential and may be released only to those
persons and under those circumstances authorized under Subsections
(d), (e), (f), and (g) of this section and as directed by the ^ujudge^w
^scourt^t for the effective supervision of the defendant. Medical
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and psychiatric records obtained by court order shall be kept
separate from the defendant's ^ucommunity supervision^w ^sprobation^t
file and may be released only by order of the ^ujudge^w ^scourt^t.
^u(k) If a presentence report in a felony case is not required^w
^uunder this section, the judge shall direct the officer to prepare a^w
^upostsentence report containing the same information that would have^w
^ubeen required for the presentence report, other than a proposed^w
^uclient supervision plan and any information that is reflected in^w
^uthe judgment. The officer shall send the postsentence report to^w
^uthe clerk of the court not later than the 30th day after the date^w
^uon which sentence is pronounced or deferred adjudication is^w
^ugranted, and the clerk shall file the postsentence report with the^w
^upapers in the case.^w
Sec. 10. AUTHORITY TO IMPOSE, MODIFY, OR REVOKE ^uCOMMUNITY^w
^uSUPERVISION^w ^sPROBATION^t. (a) Only the court in which the
defendant was tried may grant ^ucommunity supervision^w ^sprobation^t,
impose conditions, revoke the ^ucommunity supervision^w ^sprobation^t, or
discharge the defendant, unless the court has transferred
jurisdiction of the case to another court with the latter's
consent. Except as provided by Subsection (d) of this section,
only the court may alter conditions of ^ucommunity supervision^w
^sprobation^t. In a felony case, only the judge who originally
sentenced the defendant may suspend execution thereof and place the
defendant under ^ucommunity supervision^w ^sprobation^t pursuant to
Section 6 of this article^u. If^w ^sexcept that if^t the judge who
originally sentenced the defendant is deceased or disabled or if
the office is vacant ^uand the judge who originally sentenced the^w
^udefendant is deceased or disabled or if the office is vacant^w and a
motion is filed in accordance with Section 6 of this article, the
clerk of the court shall promptly forward a copy of the motion to
the presiding judge of the administrative judicial district for
that court, who may deny the motion without a hearing or appoint a
judge to hold a hearing on the motion.
(b) After a defendant has been placed on ^ucommunity^w
^usupervision^w ^sprobation^t, jurisdiction of the case may be
transferred to a court of the same rank in this ^ustate^w ^sState^t
having geographical jurisdiction where the defendant is residing or
where a violation of the conditions of ^ucommunity supervision^w
^sprobation^t occurs. Upon transfer, the clerk of the court of
original jurisdiction shall forward a transcript of such portions
of the record as the transferring judge shall direct to the court
accepting jurisdiction, which latter court shall thereafter proceed
as if the trial and conviction had occurred in that court.
(c) Any ^ujudge of a^w court having geographical jurisdiction
where the defendant is residing or where a violation of the
conditions of ^ucommunity supervision^w ^sprobation^t occurs may issue a
warrant for his arrest, but the determination of action to be taken
after arrest shall be only by the ^ujudge of the^w court having
jurisdiction of the case at the time the action is taken.
(d) A ^ujudge^w ^scourt^t that places a defendant on ^ucommunity^w
^usupervision^w ^sprobation^t may authorize the ^usupervision^w ^sprobation^t
officer supervising the ^udefendant^w ^sprobationer^t or a magistrate
appointed by the district courts in the county that give preference
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to criminal cases to modify the conditions of ^ucommunity supervision^w
^sprobation^t for the limited purpose of transferring the ^udefendant^w
^sprobationer^t to different programs within the ^ucommunity^w
^usupervision continuum of programs and sanctions^w ^sprobation^t
^sprogram^t.
(e) If a ^usupervision^w ^sprobation^t officer or magistrate
modifies the conditions of ^ucommunity supervision^w ^sprobation^t, the
^sprobation^t officer or magistrate shall deliver a copy of the
modified conditions to the ^udefendant^w ^sprobationer^t, shall file a
copy of the modified conditions with the sentencing court, and
shall note the date of delivery of the copy in the ^udefendant's^w
^sprobationer's^t file. If the ^udefendant^w ^sprobationer^t agrees to
the modification in writing, the ^sprobation^t officer or magistrate
shall file a copy of the modified conditions with the district
clerk and the conditions shall be enforced as modified. If the
^udefendant^w ^sprobationer^t does not agree to the modification in
writing, the ^usupervision^w ^sprobation^t officer or magistrate shall
refer the case to the ^ujudge of the^w court for modification ^sby the^t
^sjudge^t in the manner provided by Section ^u22^w ^s24^t of this article.
^s(j-3) The judges of the county courts at law in Hidalgo^t
^sCounty shall participate in the management of the probation^t
^sdepartment serving the county, and for that purpose have the same^t
^sduties and powers imposed by this section as do the district judges^t
^strying criminal cases in the county. The probation department may^t
^sobtain criminal history record information (CHRI) relating to an^t
^sapplicant for employment with the department that is maintained by^t
^sthe Department of Public Safety, the Federal Bureau of^t
^sInvestigation identification division, or any other law enforcement^t
^sagency. The information obtained under this subsection is for the^t
^sexclusive use of the department and is privileged and confidential.^t
^sThe information may not be released or otherwise disclosed except^t
^son court order or consent of the applicant.^t
^sSec. 10A. (j) Except as provided in Subsection (k) of this^t
^ssection on satisfactory completion by a probationer of the required^t
^samount of community-service restitution work and full payment of^t
^srestitution as ordered by the court, if the court has not proceeded^t
^sto adjudication of guilt, the court shall dismiss the proceedings^t
^sagainst the defendant and discharge him. A dismissal and discharge^t
^sunder this section may not be deemed a conviction for the purposes^t
^sof disqualifications or disabilities imposed by law for conviction^t
^sof an offense, except that:^t
^s(1) on conviction of a subsequent offense the fact^t
^sthat the defendant previously received community-service probation^t
^sis admissible on the issue of penalty; and^t
^s(2) if the defendant is an applicant for a license or^t
^sis a licensee under Chapter 42, Human Resources Code, the Texas^t
^sDepartment of Human Services may consider the fact that the^t
^sdefendant previously has received probation under this section in^t
^sissuing, renewing, denying, or revoking a license under that^t
^schapter.^t
^sSec. 10B. EL PASO COUNTY PRETRIAL DIVERSION PROGRAM.^t
^s(a) As a condition for a defendant to enter any pretrial diversion^t
^sprogram or the functional equivalent that may be operated in El^t
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^sPaso County by the West Texas Regional Adult Probation Department^t
^sor a county or district attorney of El Paso County, a defendant^t
^smust file in the court in which the charges are pending a sworn^t
^swaiver of speedy trial motion requesting the court to approve^t
^swithout a hearing the defendant's waiver of his speedy trial rights^t
^sunder the constitution and other law. If the court approves the^t
^swaiver, the defendant is eligible for consideration for acceptance^t
^sinto a pretrial diversion program or equivalent program.^t
^s(b) At the time the motion to waive speedy trial rights^t
^srequired by Subsection (a) of this section is filed, the court^t
^sclerk shall collect a $125 filing fee unless the court for good^t
^scause or otherwise waives the fee or any part of the fee under^t
^sguidelines that may be set by the El Paso Council of Judges. The^t
^sfiling fee is nonrefundable.^t
^s(c) The fees collected by the court clerk under Subsection^t
^s(b) of this section shall be deposited in the general fund of the^t
^scounty treasury as provided by Chapter 113, Local Government Code.^t
Sec. 11. BASIC CONDITIONS OF ^uCOMMUNITY SUPERVISION^w
^sPROBATION^t. (a) The ^ujudge of the^w court having jurisdiction of
the case shall determine the ^sterms and^t conditions of ^ucommunity^w
^usupervision^w ^sprobation^t and may, at any time, during the period of
^ucommunity supervision^w ^sprobation^t alter or modify the conditions
^uas provided by Sections 10 and 22 of this article^w^s; provided,^t
^showever, that the clerk of the court shall furnish a copy of such^t
^sterms and conditions to the probationer, and shall note the date of^t
^sdelivery of such copy on the docket^t. ^uThe judge may impose any^w
^ureasonable condition that is designed to protect or restore the^w
^ucommunity, protect or restore the victim, or punish, rehabilitate,^w
^uor reform the defendant. Conditions^w ^sTerms and conditions^t of
^ucommunity supervision^w ^sprobation^t may include, but shall not be
limited to, the conditions that the ^udefendant^w ^sprobationer^t shall:
(1) Commit no offense against the laws of this State
or of any other State or of the United States;
(2) Avoid injurious or vicious habits;
(3) Avoid persons or places of disreputable or harmful
character;
(4) Report to the ^usupervision^w ^sprobation^t officer as
directed by the judge or ^usupervision^w ^sprobation^t officer and obey
all rules and regulations of the ^ucommunity supervision and^w
^ucorrections^w ^sprobation^t department;
(5) Permit the ^usupervision^w ^sprobation^t officer to
visit him at his home or elsewhere;
(6) Work faithfully at suitable employment as far as
possible;
(7) Remain within a specified place;
(8) Pay his fine, if one be assessed, and all court
costs whether a fine be assessed or not, in one or several sums,
and make restitution or reparation in any sum that the ^ujudge^w
^scourt^t shall determine;
(9) Support his dependents;
(10) Participate, for a time specified by the ^ujudge^w
^scourt^t in any community-based program, including a
community-service work program ^uunder Section 16 of this article^w
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^sdesignated by the court^t;
(11) Reimburse the county in which the prosecution was
instituted for compensation paid to appointed counsel for defending
him in the case, if counsel was appointed, or if he was represented
by a county-paid public defender, in an amount that would have been
paid to an appointed attorney had the county not had a public
defender;
(12) Remain under custodial supervision in a ^ucommunity^w
^ucorrections^w ^scommunity-based^t facility, obey all rules and
regulations of such facility, and pay a percentage of his income to
the facility for room and board;
(13) Pay a percentage of his income to his dependents
for their support while under custodial ^usupervision^w ^ssuspension^t in
a ^ucommunity corrections^w ^scommunity-based^t facility;
(14) Pay a percentage of his income to the victim of
the offense, if any, to compensate the victim for any property
damage or medical expenses sustained by the victim as a direct
result of the commission of the offense;
(15) Submit to testing for ^ualcohol or^w controlled
substances;
(16) Attend counseling sessions for substance abusers
or participate in substance abuse treatment services in a program
or facility approved or licensed by the Texas Commission on Alcohol
and Drug Abuse^s, if the person was sentenced for an offense^t
^sinvolving controlled substances or the court determines that the^t
^sdefendant's use of controlled substances was connected to the^t
^scommission of the offense^t;
(17) Register under Article 6252-13c.1, Revised
Statutes; ^sand^t
(18) With the consent of the victim of a misdemeanor
offense or of any offense under Title 7, Penal Code, participate in
victim-defendant mediation for the purpose of making restitution to
the victim^u;^w
^u(19) Submit to electronic monitoring;^w
^u(20) Reimburse the crime victims compensation fund^w
^ucreated under the Crime Victims Compensation Act (Article 8309-1,^w
^uVernon's Texas Civil Statutes) for any amounts paid from that fund^w
^uto a victim, as defined by Article 56.01 of this code, of the^w
^udefendant's offense;^w
^u(21) Reimburse a law enforcement agency for the^w
^uanalysis, storage, or disposal of raw materials, controlled^w
^usubstances, chemical precursors, drug paraphernalia, or other^w
^umaterials seized in connection with the offense;^w
^u(22) Pay all or part of the reasonable and necessary^w
^ucosts incurred by the victim for psychological counseling made^w
^unecessary by the offense or for counseling and education relating^w
^uto acquired immune deficiency syndrome or human immunodeficiency^w
^uvirus made necessary by the offense; and^w
^u(23) Make one payment in an amount not to exceed $50^w
^uto a local crime stoppers program as defined by Section 414.001,^w
^uGovernment Code, and as certified by the Crime Stoppers Advisory^w
^uCouncil^w.
(b) A ^ujudge^w ^scourt^t may not order a ^udefendant^w ^sprobationer^t
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to make any payments as a term or condition of ^ucommunity^w
^usupervision^w ^sprobation^t, except for fines, court costs, restitution
to the victim, and other ^sterms or^t conditions related personally
to the rehabilitation of the ^udefendant^w ^sprobationer^t or otherwise
expressly authorized by law. The court shall consider the ability
of the ^udefendant^w ^sprobationer^t to make payments in ordering the
^udefendant^w ^sprobationer^t to make payments under this article.
(c) ^sIn addition to any other terms and conditions of^t
^sprobation, the court may require a probationer to reimburse the^t
^scrime victims compensation fund created under the Crime Victims^t
^sCompensation Act (Article 8309-1, Vernon's Texas Civil Statutes)^t
^sfor any amounts paid from that fund to a victim of the^t
^sprobationer's offense. In this subsection, "victim" has the^t
^smeaning assigned by Article 56.01 of this code.^t
^s(c) If a court grants probation to a person convicted of an^t
^soffense under Chapter 481, Health and Safety Code, the court may^t
^sorder the person to reimburse a law enforcement agency for the^t
^sagency's expenses for the confiscation, analysis, storage, or^t
^sdisposal of raw materials, controlled substances, chemical^t
^sprecursors, drug paraphernalia, or other materials seized in^t
^sconnection with the offense.^t
^s(e) A court may not order a probationer to make any^t
^spayments as a term and condition of probation, except for fines,^t
^scourt costs, restitution of the victim, payment to a local crime^t
^sstoppers program under Subsection (h) of this section, and other^t
^sterms and conditions expressly authorized by statute.^t
^s(f) If the court grants probation to a person convicted of^t
^san offense under Section 21.11, 22.011, 22.021, or 22.04, Penal^t
^sCode, the court may, on a finding that the probationer is^t
^sfinancially able to make payment, require the probationer to pay^t
^sall or a part of the reasonable and necessary costs incurred by the^t
^svictim for psychological counseling made necessary by the offense^t
^sor for counseling and education relating to acquired immune^t
^sdeficiency syndrome or human immunodeficiency virus made necessary^t
^sby the offense. Any payments ordered under this subsection may not^t
^sextend past one year from the date of the order.^t
^s(g)^t If the ^ujudge^w ^scourt^t or jury ^uplaces a defendant on^w
^ucommunity supervision^w ^sgrants probation to a person^t, the ^ujudge^w
^scourt^t shall require the ^udefendant^w ^sperson^t to demonstrate to
the court whether the ^udefendant^w ^sperson^t has an educational skill
level that is equal to or greater than the average skill level of
students who have completed the sixth grade in public schools in
this state. If the ^ujudge^w ^scourt^t determines that the ^udefendant^w
^sperson^t has not attained that skill level, the ^ujudge^w ^scourt^t
shall require as a condition of ^ucommunity supervision^w ^sprobation^t
that the ^udefendant^w ^sperson^t attain that level of educational skill,
unless the ^ujudge^w ^scourt^t determines that the ^udefendant^w ^sperson^t
lacks the intellectual capacity or the learning ability to ever
achieve that level of skill.
^u(d) If the judge places a defendant on community supervision^w
^uand the defendant is determined to be mentally ill by an examining^w
^uexpert under Section 3, Article 46.02, of this code or in a^w
^upsychological evaluation conducted under Section 9(i) of this^w
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^uarticle, the judge may require the defendant as a condition of^w
^ucommunity supervision to submit to outpatient or inpatient mental^w
^uhealth treatment if the:^w
^u(1) defendant's:^w
^u(A) mental illness is chronic in nature; or^w
^u(B) ability to function independently will^w
^ucontinue to deteriorate if the defendant is not treated; and^w
^u(2) judge determines, in consultation with a local^w
^umental health services provider, that appropriate mental health^w
^uservices for the defendant are available through the Texas^w
^uDepartment of Mental Health and Mental Retardation under Section^w
^u534.053, Health and Safety Code, or through another mental health^w
^uservices provider.^w
^s(g) If the court grants probation to a person convicted of^t
^san offense under Section 21.11, 22.011, 22.021, or 43.02, Penal^t
^sCode, the court may require the probationer to receive counseling^t
^sor education, or both, relating to acquired immune deficiency^t
^ssyndrome or human immunodeficiency virus.^t
^s(g) On any evidence of the presence of a controlled^t
^ssubstance in the defendant's body, or on any evidence the defendant^t
^shas used a controlled substance, or on evidence that controlled^t
^ssubstance use is related to the offense for which the defendant was^t
^splaced on probation, the court shall require as a condition of^t
^sprobation that the defendant submit to testing for controlled^t
^ssubstances in the defendant's body.^t
^s(h) In addition to any other terms and conditions imposed^t
^sunder this section, the court may require the probationer as a^t
^scondition of his probation to make one payment in an amount not to^t
^sexceed $50 to a local crime stoppers program as defined by Section^t
^s414.001(2), Government Code, and as certified by the Crime Stoppers^t
^sAdvisory Council. In imposing the condition, the court shall^t
^sconsider the ability of the probationer to make the payment and the^t
^seffectiveness and fiscal responsibility of the local crime stoppers^t
^sprogram.^t
^s(h) If the court grants probation to a person convicted of^t
^san offense under the Texas Controlled Substances Act (Article^t
^s4476-15, Vernon's Texas Civil Statutes), the court may require the^t
^sprobationer to receive counseling or education, or both, relating^t
^sto acquired immune deficiency syndrome or human immunodeficiency^t
^svirus. The court shall order that a report be made under Section 4^t
^sof this article to determine if the probationer should receive the^t
^scounseling and education.^t
Sec. 12. ^uCONFINEMENT^w ^sDETENTION^t AS A CONDITION OF ^uCOMMUNITY^w
^uSUPERVISION^w ^sPROBATION^t. ^u(a) If a judge^w ^sWhen the court^t having
jurisdiction of a misdemeanor case ^urequires^w ^sgrants probation to^t
^sthe defendant, the court may require^t as a condition of ^ucommunity^w
^usupervision^w ^sprobation^t that the defendant submit to a period of
^uconfinement^w ^sdetention^t in a county jail^u, the period of^w
^uconfinement may^w ^sor community corrections facility to serve a term^t
^sof imprisonment^t not ^sto^t exceed 30 days ^sand serve up to 100 hours^t
^sof community service^t. ^uIf a judge having jurisdiction of^w ^sIn^t a
felony case ^urequires^w ^sthe court may require^t as a condition of
^ucommunity supervision^w ^sprobation^t that the defendant submit to a
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period of ^uconfinement^w ^sdetention^t in a county jail^u, the period of^w
^uconfinement may^w ^sto serve a term of imprisonment^t not ^sto^t exceed
180 days^s. A court granting probation to a defendant convicted of^t
^san offense under Section 71.02, Penal Code, may require as a^t
^scondition of probation that the defendant submit to 180 days^t
^sdetention in the county jail or community corrections facility and^t
^sserve up to 200 hours of public service in addition to any other^t
^spenalty prescribed by law^t.
^u(b) A judge that requires as a condition of community^w
^usupervision that the defendant serve a term in a community^w
^ucorrections facility under Section 18 of this article may not^w
^uimpose a term of confinement under this section that, when added to^w
^uthe term imposed under Section 18, exceeds 24 months.^w
^u(c) A judge may impose confinement as a condition of^w
^ucommunity supervision under Subsection (a) of this section on^w
^uplacing the defendant on supervision or at any time during the^w
^usupervision period. The judge may impose periods of confinement as^w
^ua condition of community supervision in increments smaller than the^w
^umaximum periods provided by Subsection (a) of this section but may^w
^unot impose periods of confinement that if added together exceed the^w
^umaximum periods provided by Subsection (a).^w
Sec. 13. DWI ^uCOMMUNITY SUPERVISION^w ^sPROBATION^t. (a) A
^ujudge^w ^scourt^t granting ^ucommunity supervision^w ^sprobation^t to a
defendant convicted of an offense under ^uChapter 49, Penal Code,^w
^sArticle 6701l-1, Revised Statutes, and punished under Subsection^t
^s(d), (e), or (f) of that article^t shall require as a condition of
^ucommunity supervision^w ^sprobation^t that the defendant submit to:
(1) ^unot less than^w 72 hours of ^ucontinuous confinement^w
^sdetention in a jail^t if the defendant was ^upunished^w ^sconvicted^t
under ^uSection 49.09(a)^w ^sSubsection (d) of Article 6701l-1, Revised^t
^sStatutes^t; ^unot less than^w 10 days of ^ucontinuous confinement^w
^sdetention in a jail^t if the defendant was ^upunished^w ^sconvicted^t
under ^uSection 49.09(b) or (c)^w ^sSubsection (e) of Article 6701l-1,^t
^sRevised Statutes^t; or ^unot less than^w 30 days of ^ucontinuous^w
^uconfinement^w ^sdetention in a jail^t if the defendant was convicted
under ^uSection 49.07^w ^sSubsection (f) of Article 6701l-1, Revised^t
^sStatutes^t; and
(2) an evaluation by a ^usupervision^w ^sprobation^t officer
or by a person, program, or facility approved by the Texas
Commission on Alcohol and Drug Abuse for the purpose of having the
facility prescribe and carry out a course of conduct necessary for
the rehabilitation of the defendant's drug or alcohol dependence
condition.
(b) A ^ujudge^w ^scourt^t granting ^ucommunity supervision^w
^sprobation^t to a defendant convicted of an offense under
^sSubdivision (2), Subsection (a),^t Section ^u49.08^w ^s19.05^t, Penal
Code, shall require as a condition of ^ucommunity supervision^w
^sprobation^t that the defendant submit to a period of ^sdetention^t
^sin a penal institution to serve a term of^t confinement of not less
than 120 days.
(c) If the director of a facility to which a ^udefendant^w
^sperson^t is referred under Subdivision (2) of Subsection (a) of
this section determines that the ^udefendant^w ^sperson^t is not making a
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good faith effort to participate in a program of rehabilitation,
the director shall notify the ^ujudge^w ^scourt^t that referred the
^udefendant^w ^sperson^t of that fact.
(d) If a ^ujudge^w ^scourt^t requires as a condition of ^ucommunity^w
^usupervision^w ^sprobation^t that the defendant participate in a
prescribed course of conduct necessary for the rehabilitation of
the defendant's drug or alcohol dependence condition, the ^ujudge^w
^scourt^t shall require that the defendant pay for all or part of
the cost of such rehabilitation based on the defendant's ability to
pay. The ^ujudge^w ^scourt^t may, in its discretion, credit such cost
paid by the defendant against the fine assessed. In making a
determination of a defendant's ability to pay the cost of
rehabilitation under this subsection, the ^ujudge^w ^scourt^t shall
consider whether the defendant has insurance coverage that will pay
for rehabilitation.
(e) The ^uconfinement^w ^simprisonment^t imposed shall be treated
as a condition of ^ucommunity supervision^w ^sprobation^t, and in the
event of a sentence of ^uconfinement^w ^simprisonment^t upon the
revocation of ^ucommunity supervision^w ^sprobation^t, the term of
imprisonment served hereunder shall be credited toward service of
such subsequent ^uconfinement^w ^simprisonment^t.
(f) If a ^ujudge^w ^scourt^t grants ^ucommunity supervision^w
^sprobation^t to a defendant convicted of an offense under ^uSections^w
^u49.04-49.08, Penal Code^w ^sArticle 6701l-1, Revised Statutes, and^t
^spunished under Subsection (c) of that article^t, and if before
receiving ^ucommunity supervision^w ^sprobation^t the defendant has not
submitted to an evaluation under Section 9 of this article, the
^ujudge^w ^scourt^t shall require the defendant to submit to the
evaluation as a condition of ^ucommunity supervision^w ^sprobation^t. If
the evaluation indicates to the ^ujudge^w ^scourt^t that the defendant is
in need of treatment for drug or alcohol dependency, the ^ujudge^w
^scourt^t shall require the defendant to submit to that treatment
as a condition of ^ucommunity supervision^w ^sprobation^t in a program or
facility approved or licensed by the Texas Commission on Alcohol
and Drug Abuse or in a program or facility that complies with
standards established by the community justice assistance division
of the Texas Department of Criminal Justice, after consultation by
the division with the commission.
(g) A jury that recommends ^ucommunity supervision^w ^sprobation^t
for a person convicted of an offense under ^uSections 49.04-49.08,^w
^uPenal Code^w ^sArticle 6701l-1, Revised Statutes, and punished under^t
^sSubsection (c) of that article^t, may recommend that any driver's
license issued to the defendant under Chapter 173, Acts of the 47th
Legislature, Regular Session, 1941 (Article 6687b, Vernon's Texas
Civil Statutes), not be suspended only if the defendant was 21
years of age or older at the time of the commission of the offense.
(h) If a person convicted of an offense under ^uSections^w
^u49.04-49.08, Penal Code^w ^sArticle 6701l-1, Revised Statutes, is^t
^spunished under Subsection (c) of that article and^t is placed on
^ucommunity supervision^w ^sprobation^t, the ^ujudge^w ^scourt^t shall
require, as a condition of the ^ucommunity supervision^w ^sprobation^t,
that the defendant attend and successfully complete before the
181st day after the day ^ucommunity supervision^w ^sprobation^t is
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granted an educational program jointly approved by the Texas
Commission on Alcohol and Drug Abuse, the Department of Public
Safety, the Traffic Safety Section of the ^uTexas^w ^sState^t Department
of ^sHighways and Public^t Transportation, and the ^ucommunity justice^w
^uassistance division of the Texas Department of Criminal Justice^w
^sTexas Adult Probation Commission^t designed to rehabilitate
persons who have driven while intoxicated. The Texas Commission on
Alcohol and Drug Abuse shall publish the jointly approved rules and
shall monitor, coordinate, and provide training to persons
providing the educational programs. The Texas Commission on
Alcohol and Drug Abuse is responsible for the administration of the
certification of approved educational programs and may charge a
nonrefundable application fee for the initial certification of
approval and for renewal of a certificate. The judge may waive the
educational program requirement, however, if the defendant by a
motion in writing shows good cause. In determining good cause, the
judge may consider but is not limited to: the ^udefendant's^w
^soffender's^t school and work schedule, the ^udefendant's^w
^soffender's^t health, the distance that the ^udefendant^w ^soffender^t
must travel to attend an educational program, and the fact that the
^udefendant^w ^soffender^t resides out of state, has no valid driver's
license, or does not have access to transportation. The judge
shall set out the finding of good cause in the judgment. If a
^udefendant^w ^sperson^t is required, as a condition of ^ucommunity^w
^usupervision^w ^sprobation^t, to attend an educational program, the
court clerk shall immediately report that fact to the Department of
Public Safety, on a form prescribed by the department, for
inclusion in the person's driving record. The report must include
the beginning date of the person's ^ucommunity supervision^w
^sprobation^t. Upon the successful completion of the educational
program, the person shall give notice to the ^ucommunity supervision^w
^uand corrections^w ^sprobation^t department. The ^sprobation^t department
shall then forward the notice to the court clerk. The court clerk
shall then report the date of successful completion of the
educational program to the Department of Public Safety for
inclusion in the ^udefendant's^w ^sperson's^t driving record. If the
department does not receive notice that a ^udefendant^w ^sperson^t
required to complete an educational program has successfully
completed the program within the period required by this section,
as shown on department records, the department shall suspend the
^udefendant's^w ^sperson's^t driver's license, permit, or privilege or
prohibit the person from obtaining a license or permit, as provided
by Section 24(g)(2), Chapter 173, Acts of the 47th Legislature,
Regular Session, 1941 (Article 6687b, Vernon's Texas Civil
Statutes). This subsection does not apply to a defendant if a jury
recommends ^ucommunity supervision^w ^sprobation^t for the defendant and
also recommends that the defendant's driver's license not be
suspended.
(i) If a ^udefendant^w ^sperson^t convicted of an offense under
^uSections 49.04-49.08^w ^sArticle 6701l-1, Revised Statutes, or^t
^sSection 19.05(a)(2)^t, Penal Code, is placed on ^ucommunity^w
^usupervision^w ^sprobation^t, the ^ujudge^w ^scourt^t may require as a
condition of ^ucommunity supervision^w ^sprobation^t that the defendant
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not operate a motor vehicle unless the vehicle is equipped with a
device that uses a deep-lung breath analysis mechanism to make
impractical the operation of the motor vehicle if ethyl alcohol is
detected in the breath of the operator. The ^ujudge^w ^scourt^t shall
require the defendant to obtain the device at his own cost. The
Department of Public Safety shall approve devices for use under
this subsection. The provisions of Section 23A(f), Chapter 173,
Acts of the 47th Legislature, Regular Session, 1941 (Article 6687b,
Vernon's Texas Civil Statutes), apply to the approval of a device
under this subsection and the consequences of that approval.
Notwithstanding the provisions of this section, if a ^udefendant^w
^sperson^t is required to operate a motor vehicle in the course and
scope of the ^udefendant's^w ^sperson's^t employment and if the vehicle
is owned by the employer, the ^udefendant^w ^sperson^t may operate that
vehicle without installation of an approved ignition interlock
device if the employer has been notified of that driving privilege
restriction and if proof of that notification is with the vehicle.
This employment exemption does not apply, however, if the business
entity that owns the vehicle is owned or controlled by the
^udefendant^w ^sperson^t whose driving privilege has been restricted.
(j) The ^ujudge shall^w ^scourt may^t require ^sor permit^t a
^udefendant^w ^sperson^t who ^uis punished^w ^swas previously convicted of^t
^san offense^t under ^uSection 49.09, Penal Code,^w ^sArticle 6701l-1,^t
^sRevised Statutes, and who was required to attend an educational^t
^sprogram under Subsection (h) of this section^t as a condition of
^ucommunity supervision^w ^sprobation^t, to attend ^uand successfully^w
^ucomplete, before the end of the defendant's period of driver's^w
^ulicense suspension,^w an educational program ^sunder Subsection (h) of^t
^sthis section with a curriculum^t for repeat offenders approved by
the Texas Commission on Alcohol and Drug Abuse ^sif the court^t
^sdetermines that attendance at a program would be in the person's^t
^sbest interest^t. ^uThe Texas Commission on Alcohol and Drug Abuse^w
^ushall adopt rules and shall monitor, coordinate, and provide^w
^utraining to persons providing the educational programs. The Texas^w
^uCommission on Alcohol and Drug Abuse is responsible for the^w
^uadministration of the certification of approved educational^w
^uprograms. The judge may waive the educational program requirement^w
^uonly if the defendant by a motion in writing shows good cause. In^w
^udetermining good cause, the judge may consider the defendant's^w
^uschool and work schedule, the defendant's health, the distance that^w
^uthe defendant must travel to attend an educational program, and^w
^uwhether the defendant resides out of state or does not have access^w
^uto transportation. The judge shall set out the finding of good^w
^ucause in the judgment. If a defendant is required, as a condition^w
^uof community supervision, to attend an educational program, the^w
^ucourt clerk shall immediately report that fact to the Department of^w
^uPublic Safety, on a form prescribed by the department, for^w
^uinclusion in the defendant's driving record. The report must^w
^uinclude the beginning date of the defendant's community^w
^usupervision. On the successful completion of the educational^w
^uprogram for repeat offenders, the defendant shall give notice to^w
^uthe community supervision and corrections department. The^w
^ucommunity supervision and corrections department shall then forward^w
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^uthe notice to the court clerk. The court clerk shall then report^w
^uthe date of successful completion of the educational program to the^w
^uDepartment of Public Safety for inclusion in the defendant's^w
^udriving record. If the Department of Public Safety does not^w
^ureceive notice that a defendant required to complete an educational^w
^uprogram has successfully completed the program for repeat offenders^w
^uwithin the period required by this section, as shown on department^w
^urecords, the department shall continue the suspension of the^w
^udefendant's driver's license, permit, or privilege or prohibit the^w
^udefendant from obtaining a license or permit, as provided by^w
^uSection 24(g)(2), Chapter 173, Acts of the 47th Legislature,^w
^uRegular Session, 1941 (Article 6687b, Vernon's Texas Civil^w
^uStatutes).^w
(k) Notwithstanding Section 24(g), Chapter 173, Acts of the
47th Legislature, Regular Session, 1941 (Article 6687b, Vernon's
Texas Civil Statutes), if the ^ujudge^w ^scourt^t, under Subsection (h)
or (j) of this section, permits or requires a ^udefendant punished^w
^uunder Section 49.09, Penal Code,^w ^sperson^t to attend an educational
program as a condition of ^ucommunity supervision^w ^sprobation^t, and
the ^udefendant^w ^sperson has previously been convicted of an offense^t
^sunder Article 6701l-1, Revised Statutes, and^t has previously been
required to attend such a program, the ^ujudge^w ^scourt^t nonetheless
shall automatically suspend the driver's license, permit, or
operating privilege of that person for a period determined by the
^ujudge^w ^scourt^t according to the following schedule:
(1) not less than 90 days or more than 365 days, if
the ^udefendant^w ^sperson^t is ^uconvicted^w ^spunished^t under ^uSections^w
^u49.04-49.08, Penal Code^w ^sSubsection (c), Article 6701l-1, Revised^t
^sStatutes, whether or not the punishment is increased under^t
^sSubsection (f) of that article^t; or
(2) not less than 180 days or more than two years, if
the ^udefendant^w ^sperson^t is punished under ^uSection 49.09, Penal Code^w
^sSubsection (d) or (e), Article 6701l-1, Revised Statutes, whether^t
^sor not the punishment is increased under Subsection (f) of that^t
^sarticle^t.
(l) If the Department of Public Safety receives notice that
a ^udefendant^w ^sperson^t has been required or permitted to attend an
educational program under Subsection (h) of this section, but the
^ujudge^w ^scourt^t has not ordered a period of suspension, the
department shall suspend the ^udefendant's^w ^sperson's^t driver's
license, permit, or operating privilege, or shall issue an order
prohibiting the ^udefendant^w ^sperson^t from obtaining a license or
permit for a period of 365 days.
Sec. 14. ^uSUBSTANCE ABUSE FELONY PROGRAM. (a) If a court^w
^uplaces a defendant on community supervision under any provision of^w
^uthis article as an alternative to imprisonment, the judge may^w
^urequire as a condition of community supervision that the defendant^w
^userve a term of confinement and treatment in a substance abuse^w
^utreatment facility operated by the Texas Department of Criminal^w
^uJustice under Section 493.009, Government Code. A term of^w
^uconfinement and treatment imposed under this section must be an^w
^uindeterminate term of not more than one year or less than six^w
^umonths.^w
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^u(b) A judge may impose the condition of community^w
^usupervision created under this section if:^w
^u(1) the judge places the defendant on community^w
^usupervision under this article;^w
^u(2) the defendant is charged with or convicted of a^w
^ufelony other than a felony under Section 21.11, 22.011, 22.021, or^w
^u25.06, Penal Code; and^w
^u(3) the judge makes an affirmative finding that:^w
^u(A) drug or alcohol abuse significantly^w
^ucontributed to the commission of the crime or violation of^w
^ucommunity supervision; and^w
^u(B) the defendant is a suitable candidate for^w
^utreatment, as determined by the suitability criteria established by^w
^uthe Texas Board of Criminal Justice under Section 493.009(b),^w
^uGovernment Code.^w
^u(c) If a judge requires as a condition of community^w
^usupervision that the defendant serve a term of confinement and^w
^utreatment in a substance abuse treatment facility under this^w
^usection, the judge shall also require as a condition of community^w
^usupervision that on release from the facility the defendant^w
^uparticipate in a drug or alcohol abuse continuum of care treatment^w
^uplan.^w
^u(d) The Texas Commission on Alcohol and Drug Abuse shall^w
^udevelop the continuum of care treatment plan.^w ^sCHILD ABUSERS AND^t
^sSEX OFFENDERS; SPECIAL CONDITIONS. (a) If the court grants^t
^sprobation to a person convicted of an offense described by Article^t
^s17.41(a) of this code, the court may require as a condition of^t
^sprobation that the defendant not directly communicate with the^t
^svictim of the offense or go near a residence, school, or other^t
^slocation, as specifically described in the copy of terms and^t
^sconditions, frequented by the victim. In imposing the condition,^t
^sthe court may grant the defendant supervised access to the victim.^t
^sTo the extent that a condition imposed under this subsection^t
^sconflicts with an existing court order granting possession of or^t
^saccess to a child, the condition imposed under this subsection^t
^sprevails for a period specified by the court granting probation,^t
^snot to exceed 90 days.^t
^s(b) If the court grants probation to a person convicted of^t
^san offense under Section 21.11, 22.011, 22.021, or 22.04, Penal^t
^sCode, the court may require the probationer to attend psychological^t
^scounseling sessions at the direction of the probation officer and^t
^smay require the probationer to pay all or a part of the reasonable^t
^sand necessary costs incurred by the victim for psychological^t
^scounseling made necessary by the offense, upon a finding that the^t
^sprobationer is financially able to make payment. Any payments^t
^sordered under this subsection may not extend past one year from the^t
^sdate of the order.^t
Sec. 15. ^uPROCEDURES RELATING TO STATE JAIL FELONY COMMUNITY^w
^uSUPERVISION. (a) On conviction of a state jail felony, the judge^w
^ushall suspend the imposition of the sentence of confinement and^w
^uplace the defendant on community supervision. The judge may^w
^ususpend in whole or in part the imposition of any fine imposed on^w
^uconviction.^w
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^u(b) The minimum period of community supervision a judge may^w
^uimpose under this section is two years. The maximum period of^w
^ucommunity supervision a judge may impose under this section is five^w
^uyears. A judge may extend a period of community supervision under^w
^uthis section at any time during the period of community^w
^usupervision, or if a motion for revocation of community supervision^w
^uis filed before the period of community supervision ends, before^w
^uthe first anniversary of the expiration of the period of community^w
^usupervision.^w
^u(c) A judge may impose any condition of community^w
^usupervision on a defendant that the judge could impose on a^w
^udefendant placed on supervision for an offense other than a state^w
^ujail felony, except that the judge may impose on the defendant a^w
^ucondition that the defendant submit to a period of confinement in a^w
^ucounty jail under Section 12 of this article only if the term does^w
^unot exceed 30 days, or does not exceed 60 days if the defendant^w
^upreviously has been convicted of a felony.^w
^u(d) A judge may impose as a condition of community^w
^usupervision that a defendant submit at the beginning of the period^w
^uof community supervision to a term of confinement in a state jail^w
^ufelony facility for a term not to exceed 60 days, or 180 days if^w
^uthe defendant previously has been convicted of a felony, or one^w
^uyear if the defendant is convicted of an offense punishable as a^w
^ustate jail felony under Section 481.112, Health and Safety Code, or^w
^uthe defendant previously has been convicted of two or more^w
^ufelonies. A judge may not require a defendant to submit to both^w
^uthe term of confinement authorized by this subsection and a term of^w
^uconfinement under Section 12 of this article. For the purposes of^w
^uthis subsection, a defendant previously has been convicted of a^w
^ufelony regardless of whether the sentence for the previous^w
^uconviction was actually imposed or was probated and suspended.^w
^u(e) If a defendant violates a condition of community^w
^usupervision imposed on the defendant under this article and after a^w
^uhearing under Section 21 of this article the judge modifies the^w
^udefendant's community supervision, the judge may impose any^w
^usanction permitted by Section 22 of this article, except that the^w
^ujudge may not require a defendant to serve a period of confinement^w
^uin a state jail felony facility as a modification of the^w
^udefendant's community supervision.^w
^u(f) If a defendant violates a condition of community^w
^usupervision imposed on the defendant under this article and after a^w
^uhearing under Section 21 of this article the judge revokes the^w
^udefendant's community supervision, the judge shall dispose of the^w
^ucase in the manner provided by Section 23 of this article. The^w
^ucourt retains jurisdiction over the defendant until the first^w
^uanniversary of the date the defendant is received into the custody^w
^uof a state jail. At any time after the 75th day after the date the^w
^udefendant is received into the custody of a state jail and before^w
^uthe first anniversary of the date the defendant is received into^w
^uthe custody of a state jail, the judge on the judge's own motion,^w
^uon the motion of the attorney representing the state, or on the^w
^umotion of the defendant may suspend further execution of the^w
^usentence and place the defendant on community supervision under the^w
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^uconditions of this section.^w
^u(g) The facility director of a state jail felony facility^w
^ushall report to a judge who orders a defendant confined in the^w
^ufacility not less than every 90 days on the defendant's^w
^uprogrammatic progress, conduct, and conformity to the rules of the^w
^ufacility.^w
^u(h)(1) A defendant confined in a state jail felony facility^w
^uafter revocation of community supervision does not earn good^w
^uconduct time for time served in the facility.^w
^u(2) A judge may credit against any time a defendant is^w
^usubsequently required to serve in a state jail felony facility^w
^uafter revocation of community supervision time served by the^w
^udefendant in county jail:^w
^u(A) from the time of the defendant's arrest and^w
^uconfinement until sentencing by the trial court;^w
^u(B) as a condition of community supervision^w
^uunder Subsection (d) of this section; and^w
^u(C) after modification of community supervision.^w
^u(3) A judge shall credit against any time a defendant^w
^uis subsequently required to serve in a state jail felony facility^w
^uafter revocation of community supervision any time served by the^w
^udefendant in a state jail felony facility after sentencing.^w
^sRESTITUTION. (a) If a payment is received under Section^t
^s6(a)(8) or (a)(14) of this article from a probationer for^t
^stransmittal to a victim of an offense, the probation department^t
^sthat receives the payment for disbursement to the victim shall^t
^sdeposit the payment in an interest-bearing account in the^t
^sdepartment having original jurisdiction. The department shall^t
^stransmit the payment to the victim as soon as practicable.^t
^s(a) If the court requires a probationer to make restitution^t
^sto a victim of the probationer's offense, and a payment is received^t
^sunder this article from the probationer for transmittal to a victim^t
^sof the offense, the probation department that receives the payment^t
^sfor disbursement to the victim shall immediately deposit the^t
^spayment in an interest-bearing account in the department having^t
^soriginal jurisdiction. The department shall transmit the payment^t
^sto the victim as soon as practicable.^t
^s(b) If a victim cannot be located, immediately after^t
^sreceiving a final payment in satisfaction of an order of^t
^srestitution for the victim, the probation department shall notify^t
^sthe victim of that fact by certified mail, mailed to the last known^t
^saddress of the victim. If after receiving notice, a victim makes a^t
^sclaim for payment, the probation department promptly shall remit^t
^sthe payment to the victim. Not earlier than the fifth anniversary^t
^sof the date on which a probation department mails notice under this^t
^ssubsection, if the victim has not made a claim for payment, the^t
^sprobation department shall transfer the payment from the^t
^sinterest-bearing account to the comptroller of public accounts,^t
^safter deducting five percent of the payment as a collection fee and^t
^sdeducting any interest accrued on the payment. The comptroller^t
^sshall deposit the payment in the state treasury to the credit of^t
^sthe compensation to victims of crime auxiliary fund.^t
^s(b) If a victim cannot be located, immediately after^t
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^sreceiving a final payment in satisfaction of an order of^t
^srestitution for the victim the probation department shall attempt^t
^sto notify the victim of that fact by certified mail, mailed to the^t
^slast known address of the victim. If a victim then makes a claim^t
^sfor payment, the probation department promptly shall remit the^t
^spayment to the victim. Not earlier than the fifth anniversary of^t
^sthe date on which a probation department mails notice under this^t
^ssubsection, if the victim has not made a claim for payment, the^t
^sprobation department shall transfer the payment from the^t
^sinterest-bearing account to the comptroller of public accounts,^t
^safter deducting five percent of the payment as a collection fee and^t
^sdeducting any interest accrued on the payment. The comptroller^t
^sshall deposit the payment in the state treasury to the credit of^t
^sthe compensation to victims of crime auxiliary fund.^t
^s(c) The collection fee under Subsection (b) of this section^t
^sand the accrued interest under Subsections (a) and (b) of this^t
^sSection shall be deposited in the special fund of the county^t
^streasury provided by Section 11, Article 42.13, of this code to be^t
^sused for the same purposes for which state aid may be used under^t
^sthat section. The probation department has a maximum of 121 days^t
^safter the four-year expiration date to transfer the funds to the^t
^scomptroller's office. Failure to comply with the 121-day deadline^t
^swill result in a five percent collection fee penalty calculated^t
^sfrom the total deposit and all interest attributable to the^t
^sunclaimed funds.^t
^s(d) If the victim of the offense claims the payment during^t
^sthe four-year period in which the payment is held in the^t
^sinterest-bearing account, the probation department shall pay the^t
^svictim the amount of the original payment, less any interest earned^t
^swhile holding the payment. After the payment has been transferred^t
^sto the comptroller, the probation department has no liability in^t
^sregard to the payment, and any claim for the payment must be made^t
^sto the comptroller. If the victim makes a claim to the^t
^scomptroller, the comptroller shall pay the victim the amount of the^t
^soriginal payment, less the collection fee, from the compensation to^t
^svictims of crime auxiliary fund.^t
^sSec. 16. WORK PROBATION. (a) A court granting probation^t
^sto a defendant convicted of a felony may require as a condition of^t
^sprobation that the defendant work a specified number of hours under^t
^sSection 17 of this article or work a specified number of hours in a^t
^ssupervision work program authorized under this section, unless the^t
^scourt determines that the defendant is physically or mentally^t
^sincapable of participating in the work program or that^t
^sparticipating in the work program will work a hardship on the^t
^sdefendant or the defendant's dependents, in which event the court^t
^sshall note that fact on the order granting probation. The amount^t
^sof work hours may not be less than 24 hours and may not be more^t
^sthan 1,000 hours. The court may not require the defendant to work^t
^smore than eight hours during any week. The court shall make a^t
^sgood-faith effort to place the defendant in a type of work for^t
^swhich the defendant's previous job experience makes the defendant^t
^smost suited.^t
^s(b) The director of a probation department may contract^t
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^swith state agencies or political subdivisions of the state, using^t
^sdefendants required to participate in a work program under this^t
^ssection, to perform tasks contracted for by the agency or^t
^ssubdivision. Proceeds from a contract entered into under this^t
^ssubsection shall be used by the probation department to offset^t
^sexpenses incurred by the department in supervising probationers^t
^sparticipating in the work program. Any proceeds in excess of the^t
^samount needed to offset the expenses, including the purchase of^t
^sliability insurance and workers' compensation coverage for^t
^sprobationers performing community service work, shall be remitted^t
^sby the director of the probation department to the Texas Adult^t
^sProbation Commission. Proceeds received by the commission under^t
^sthis subsection shall be used to offset expenses incurred by the^t
^scommission in assisting probation departments to establish and^t
^sadminister programs under this section. Any proceeds in excess of^t
^sthe amount needed to offset the expenses shall be remitted by the^t
^scommission to the comptroller of public accounts, to be deposited^t
^sin the general revenue fund.^t
^s(c) A director of an adult probation department may^t
^scontract for work probation programs with nonprofit organizations^t
^sthat serve the public good by providing assistance to the poor,^t
^sassisting the elderly, or performing other projects that benefit^t
^sthe community. Under the contract, defendants required under this^t
^ssection to participate in a work program as a condition of^t
^sprobation shall perform tasks assigned by the nonprofit^t
^sorganization. The nonprofit organization in turn must enter into^t
^scontracts with state agencies, political subdivisions, or other^t
^snonprofit organizations under which the nonprofit organization^t
^sfurnishes supervised persons to participate in work projects for^t
^sthe public good.^t
^s(d) A director of an adult probation department, an^t
^semployee of a department, an officer of a state agency or political^t
^ssubdivision, an organization acting in furtherance of a court's^t
^swork program order, a director of the organization, or an^t
^sauthorized volunteer working for or utilized by the organization is^t
^snot liable for damages arising from an act or failure to act by the^t
^sdirector, officer, employee, or volunteer in connection with a work^t
^sprogram described by this section if the act or failure to act:^t
^s(1) was performed in an official capacity or in^t
^sfurtherance of a court's work program order; and^t
^s(2) was not intentional, wilfully or wantonly^t
^snegligent, or performed with conscious indifference or reckless^t
^sdisregard for the safety of others.^t
^s(e) Chapter 101, Civil Practice and Remedies Code, does not^t
^sapply to a claim based on an act or a failure to act of an adult^t
^sprobation department, a director, officer, or employee of a^t
^sdepartment, a state agency or political subdivision, an officer or^t
^semployee of a state agency or political subdivision, an^t
^sorganization acting in furtherance of a court's work program order,^t
^sa director of the organization, or an authorized volunteer working^t
^sfor or utilized by the organization if the act or failure to act is^t
^sin connection with a work program.^t
^s(f) This section may not be used by a court in a manner^t
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^sthat results in a loss of jobs by employees of the state or any^t
^spolitical subdivision of the state.^t
^s(g) State agencies and political subdivisions of the state^t
^sentering into contracts under this section may require liability^t
^sand workers' compensation coverage to the maximum of their^t
^sliability limits as a condition for entry into the contract and may^t
^salso require that the contracting unit of government and its agents^t
^sand employees be coinsured under the policies.^t
^s(h) Notwithstanding the provisions of Subsection (a) of^t
^sthis section, a court may order a defendant who is not employed to^t
^sperform up to 32 hours of work probation under this section and may^t
^sdirect the defendant to use the remaining hours of the week to seek^t
^semployment.^t
Sec. ^u16^w ^s17^t. COMMUNITY SERVICE. (a) ^uA judge shall^w ^sIf the^t
^scourt places a defendant on probation, the court may^t require^s,^t as
a condition of ^ucommunity supervision^w ^sthe probation^t,) that the
defendant work a specified number of hours at a community service
project or projects for an organization or organizations ^uapproved^w
^uby the judge and designated by the department, unless the judge^w
^udetermines and notes on the order placing the defendant on^w
^ucommunity supervision that:^w
^u(1) the defendant is physically or mentally incapable^w
^uof participating in the project;^w
^u(2) participating in the project will work a hardship^w
^uon the defendant or the defendant's dependents;^w
^u(3) the defendant is to be confined in a substance^w
^uabuse punishment facility as a condition of community supervision;^w
^uor^w
^u(4) there is other good cause shown^w ^snamed in the^t
^scourt's order, and may also require that the defendant submit to^t
^stesting for controlled substances^t.
(b) The amount of community service work ordered by the
^ujudge^w ^scourt^t:
(1) may not exceed 1,000 hours and may not be less
than 320 hours for an offense classified as a first degree felony;
(2) may not exceed 800 hours and may not be less than
240 hours for an offense classified as a second degree felony;
(3) may not exceed 600 hours and may not be less than
160 hours for an offense classified as a third degree felony;
(4) ^umay not exceed 400 hours and may not be less than^w
^u120 hours for an offense classified as a state jail felony;^w
^u(5)^w may not exceed 200 hours and may not be less
than 80 hours for an offense classified as a Class A misdemeanor or
for any other misdemeanor for which the maximum permissible
^uconfinement^w ^simprisonment^t, if any, exceeds six months or the
maximum permissible fine, if any, exceeds ^u$4,000^w ^s$1,000^t; and
^u(6)^w ^s(5)^t may not exceed 100 hours and may not be less
than 24 hours for an offense classified as a Class B misdemeanor or
for any other misdemeanor for which the maximum permissible
^uconfinement^w ^simprisonment^t, if any, does not exceed six months
and the maximum permissible fine, if any, does not exceed ^u$4,000^w
^s$1,000^t.
^u(c) If the judge modifies the defendant's terms of community^w
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^usupervision to include confinement in a state jail felony facility,^w
^uthe judge shall order the defendant to continue to work towards^w
^ufulfillment of his work requirement during his period of^w
^uconfinement.^w
^u(d) A defendant required to perform community service under^w
^uthis section is not a state employee for the purposes of Article^w
^u8309g or 8309h, Revised Statutes.^w
^s(c) A director of a community supervision and corrections^t
^sdepartment, an employee of a department, or an officer of a state^t
^sagency or political subdivision is not liable for damages arising^t
^sfrom an act or failure to act by the director, employee, or officer^t
^sin connection with a community restitution service program^t
^sdescribed by this section if the act or failure to act:^t
^s(1) was performed in an official capacity; and^t
^s(2) was not intentional, wilfully or wantonly^t
^snegligent, or performed with conscious indifference or reckless^t
^sdisregard for the safety of others.^t
^s(d) Chapter 101, Civil Practice and Remedies Code, does not^t
^sapply to a claim based on an act or a failure to act of a community^t
^ssupervision and corrections department, a director, officer, or^t
^semployee of a department, a state agency or political subdivision,^t
^sor an officer or employee of a state agency or political^t
^ssubdivision if the act or failure to act is in connection with a^t
^scommunity service program.^t
^s(e) A sheriff, employee of a sheriff's department, county^t
^scommissioner, county employee, county judge, employee of a^t
^scommunity corrections and supervision department, restitution^t
^scenter, or officer or employee of a political subdivision other^t
^sthan a county is not liable for damages arising from an act or^t
^sfailure to act in connection with community service performed by an^t
^sinmate pursuant to this article if the act or failure to act:^t
^s(1) was performed pursuant to court order; and^t
^s(2) was not intentional, wilfully or wantonly^t
^snegligent, or performed with conscious indifference or reckless^t
^sdisregard for the safety of others.^t
Sec. ^u17. CHANGE OF RESIDENCE; LEAVING THE STATE. (a) If,^w
^ufor good and sufficient reasons, a defendant desires to change his^w
^uresidence within the state, the change may be effected by^w
^uapplication to the supervising supervision officer, which change^w
^ushall be subject to the judge's consent and subject to such^w
^uregulations as the judge may require in the absence of an officer^w
^uin the locality to which the defendant is transferred.^w
^u(b) Any defendant who removes himself from the state without^w
^upermission of the judge having jurisdiction of the case shall be^w
^uconsidered a fugitive from justice and shall be subject to^w
^uextradition as provided by law.^w ^s18. RESTITUTION CENTERS.^t
^s(a) If a judge places a defendant on probation under any provision^t
^sof this article as an alternative to imprisonment, the judge may^t
^srequire as a condition of probation that the defendant serve a term^t
^sof not less than three months or more than 12 months in a^t
^srestitution center if:^t
^s(1) the district is served by a restitution center or^t
^scontracts with a department that agrees to provide spaces in its^t
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^srestitution center;^t
^s(2) the defendant is not sentenced for a felony^t
^soffense under Title 5, Penal Code; and^t
^s(3) the trier of facts determines that the defendant^t
^sdid not cause the serious bodily injury or death of another as a^t
^sresult of the commission of the offense or use a deadly weapon^t
^sduring the commission of or flight from the offense^t.
^s(b) If a jury recommends that an eligible defendant serve^t
^san alternate term in a restitution center, the judge shall follow^t
^sthe jury's recommendation.^t
^s(c) A probationer granted probation under this section may^t
^snot earn good conduct credit for time spent in a restitution center^t
^sor apply time spent in the center toward completion of a prison^t
^ssentence if the probation is revoked.^t
^s(d) As directed by the judge but at least once during every^t
^sthree months after the date that a probationer is in a restitution^t
^scenter, the restitution center director shall file with the chief^t
^sadult probation officer or the probation department director a copy^t
^sof an evaluation made by the director of the probationer's behavior^t
^sand attitude at the center. The officer or director shall examine^t
^sthe evaluation, make written comments on the evaluation that he^t
^sconsiders relevant, and file the evaluation and comments with the^t
^sjudge who granted probation to the probationer. If the evaluation^t
^sindicates that the probationer has made significant progress toward^t
^scompliance with court-ordered conditions of probation and payment^t
^sof restitution, the court may release the probationer from the^t
^srestitution center. The probationer shall serve the remainder of^t
^shis probation under any terms and conditions the court imposes^t
^sunder this article.^t
^s(e) No later than nine months after the date on which a^t
^sdefendant is granted probation under this section, the restitution^t
^scenter director shall file with the chief adult probation officer^t
^sor the probation department director a copy of an evaluation made^t
^sby the director of the probationer's behavior and attitude at the^t
^scenter. The officer or director shall examine the evaluation, make^t
^swritten comments on the evaluation that he considers relevant, and^t
^sfile the evaluation and comments with the judge who granted^t
^sprobation to the defendant. If the report indicates that the^t
^sprobationer has made significant progress toward court-ordered^t
^sconditions of probation and payment of restitution, the court may^t
^smodify its sentence and release the probationer in the same manner^t
^sas provided by Subsection (d) of this section. If the report^t
^sindicates that the probationer would benefit from continued^t
^sparticipation in the restitution center program, the court may^t
^sorder the probationer to remain at the restitution center for a^t
^speriod determined by the court. If the report indicates that the^t
^sprobationer has not made significant progress toward^t
^srehabilitation, the court may revoke probation and order the^t
^sprisoner to the term of imprisonment specified in the probationer's^t
^ssentence.^t
^s(f) If ordered by the judge who placed the defendant on^t
^sprobation, a restitution center director shall attempt to secure^t
^semployment for the probationer. The director shall also attempt to^t
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^splace a probationer as a worker in a community-service project of a^t
^stype described by Section 17 of this article, either during^t
^soff-work hours if the probationer is employed or during any time if^t
^sthe probationer is unable to find employment, if so ordered by the^t
^sjudge that placed the defendant on probation.^t
^s(g) The employer of a probationer participating in a^t
^sprogram under this section shall deliver the probationer's salary^t
^sto the restitution center director. The director shall deposit the^t
^ssalary into a fund to be given to the probationer on his release^t
^safter deducting:^t
^s(1) the cost to the center for the probationer's^t
^sfood, housing, and supervision;^t
^s(2) necessary travel expense to and from work and^t
^scommunity-service projects and other incidental expenses of the^t
^sprobationer;^t
^s(3) support of the probationer's dependents; and^t
^s(4) restitution to the victims of an offense^t
^scommitted by the probationer.^t
^s(h) If a restitution center director is unable to find^t
^semployment for a probationer, the director may transfer the^t
^sprobationer to the supervision of the director of another^t
^srestitution center who agrees to accept the probationer as a^t
^sparticipant in the center's program.^t
^s(i) A restitution center director may grant a short-term^t
^sfurlough to a probationer and may grant an emergency furlough to a^t
^sprobationer for the documented purposes of obtaining medical^t
^streatment or diagnosis or attending funerals or visiting critically^t
^sill relatives.^t
^s(j) A probationer participating in a program under this^t
^sarticle shall be confined in the restitution center at all times^t
^sexcept for:^t
^s(1) time spent at work and traveling to and from^t
^swork;^t
^s(2) time spent attending and traveling to and from an^t
^seducation or rehabilitation program approved by the restitution^t
^scenter director or the court;^t
^s(3) time spent attending and traveling to and from a^t
^scommunity-service project; and^t
^s(4) time spent on short-term or emergency furlough.^t
Sec. ^u18^w ^s19^t. COMMUNITY CORRECTIONS FACILITIES ^sOTHER THAN^t
^sRESTITUTION CENTERS^t. (a) In this section, "community corrections
facility" means a facility ^udescribed by Subsection (b)(2)^w ^slisted^t
^sin Subdivision (1)^t of Section ^u1^w ^s5^t, Article 42.13, of this code^s,^t
^sother than a restitution center^t.
(b) If a judge ^urequires^w ^splaces a defendant on probation^t
^sunder any provision of this article as an alternative to^t
^simprisonment, the judge may require^t as a condition of ^ucommunity^w
^usupervision^w ^sprobation^t that the defendant serve a term ^sof not^t
^sless than one month or more than 24 months^t in a community
corrections facility^u, the term may not be more than 24 months^w
^sdesignated by the judge if:^t
^s(1) the district is served by such a community^t
^scorrections facility or contracts with a department that agrees to^t
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^sprovide spaces in its community corrections facility of that type;^t
^sand^t
^s(2) the trier of facts determines that the defendant^t
^sdid not cause the serious bodily injury or death of another as a^t
^sresult of the commission of the offense or use a deadly weapon^t
^sduring the commission of or flight from the offense^t.
(c) ^sIf a jury recommends that an eligible defendant serve^t
^san alternate term in a community corrections facility, the judge^t
^sshall follow the jury's recommendation.^t
^s(d)^t A ^udefendant^w ^sprobationer^t granted ^ucommunity^w
^usupervision^w ^sprobation^t under this section may not earn good
conduct credit for time spent in a community corrections facility
or apply time spent in the facility toward completion of a prison
sentence if the ^ucommunity supervision^w ^sprobation^t is revoked.
^u(d)^w ^s(e)^t As directed by the judge, the corrections facility
director shall file with the ^ucommunity supervision and corrections^w
^schief adult probation officer or the probation^t department
director a copy of an evaluation made by the director of the
^udefendant's^w ^sprobationer's^t behavior and attitude at the
facility. The ^sofficer or^t director shall examine the evaluation,
make written comments on the evaluation that he considers relevant,
and file the evaluation and comments with the judge who granted
^ucommunity supervision^w ^sprobation^t to the ^udefendant^w ^sprobationer^t.
If the evaluation indicates that the ^udefendant^w ^sprobationer^t has
made significant progress toward compliance with court-ordered
conditions of ^ucommunity supervision^w ^sprobation^t, the court may
release the ^udefendant^w ^sprobationer^t from the community corrections
facility. The ^udefendant^w ^sprobationer^t shall serve the remainder of
his ^ucommunity supervision^w ^sprobation^t under any terms and
conditions the court imposes under this article.
^u(e)^w ^s(f)^t No later than 18 months after the date on which a
defendant is granted ^ucommunity supervision^w ^sprobation^t under this
section, the community corrections facility director shall file
with the ^ucommunity supervision and corrections^w ^schief adult^t
^sprobation officer or the probation^t department director a copy of
an evaluation made by the director of the ^udefendant's^w
^sprobationer's^t behavior and attitude at the center. The
^sofficer or^t director shall examine the evaluation, make written
comments on the evaluation that he considers relevant, and file the
evaluation and comments with the judge who granted ^ucommunity^w
^usupervision^w ^sprobation^t to the defendant. If the report indicates
that the ^udefendant^w ^sprobationer^t has made significant progress
toward court-ordered conditions of ^ucommunity supervision^w
^sprobation^t, the court shall modify its sentence and release
the ^udefendant^w ^sprobationer^t in the same manner as provided by
Subsection (e) of this section. If the report indicates that the
^udefendant^w ^sprobationer^t would benefit from continued
participation in the community corrections facility program, the
court may order the ^udefendant^w ^sprobationer^t to remain at the
community corrections facility for a period determined by the
court. If the report indicates that the ^udefendant^w ^sprobationer^t
has not made significant progress toward rehabilitation, the court
may revoke ^ucommunity supervision^w ^sprobation^t and order the
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^udefendant^w ^sprisoner^t to the term of ^uconfinement^w ^simprisonment^t
specified in the ^udefendant's^w ^sprobationer's^t sentence.
^u(f)^w ^s(g)^t If ordered by the judge who placed the defendant
on ^ucommunity supervision^w ^sprobation^t, a community corrections
facility director shall attempt to place a ^udefendant^w ^sprobationer^t
as a worker in a community-service project of a type described by
Section ^u16^w ^s17^t of this article.
^u(g)^w ^s(h) A community corrections facility director has the^t
^ssame authority as a restitution center director has under Section^t
^s18(i) of this article.^t
^s(i)^t A ^udefendant^w ^sprobationer^t participating in a program
under this article shall be confined in the community corrections
facility at all times except for:
(1) time spent attending and traveling to and from an
education or rehabilitation program as ordered by the court;
(2) time spent attending and traveling to and from a
community-service project; ^sand^t
(3) time spent away from the facility for purposes
described by ^sSection 18(i) of^t this ^usection; and^w
^u(4) time spent traveling to and from work, if^w
^uapplicable^w ^sarticle^t.
^u(h) A judge that requires as a condition of community^w
^usupervision that the defendant serve a term in a community^w
^ucorrections facility may not impose a subsequent term in a^w
^ucommunity corrections facility or jail during the same supervision^w
^uperiod that, when added to the terms previously imposed, exceeds 24^w
^umonths.^w
^u(i) If a defendant participating in a program under this^w
^usection is not required by the judge to deliver the defendant's^w
^usalary to the restitution center director, the employer of the^w
^udefendant shall deliver the salary to the director. The director^w
^ushall deposit the salary into a fund to be given to the defendant^w
^uon release after deducting:^w
^u(1) the cost to the center for the defendant's food,^w
^uhousing, and supervision;^w
^u(2) necessary travel expense to and from work and^w
^ucommunity-service projects and other incidental expenses of the^w
^udefendant;^w
^u(3) support of the defendant's dependents; and^w
^u(4) restitution to the victims of an offense committed^w
^uby the defendant.^w
^sSec. 20. INTENSIVE OR MAXIMUM PROBATION. If a judge^t
^sdetermines that a defendant whom the judge would otherwise sentence^t
^sto the institutional division of the Texas Department of Criminal^t
^sJustice would benefit from intensive or maximum probation, the^t
^sjudge shall suspend imposition of the sentence and place the^t
^sdefendant on intensive or maximum probation.^t
^sSec. 21. ELECTRONIC MONITORING. (a) If a judge sentences^t
^sa defendant to a term of confinement in the county jail or^t
^simprisonment in the institutional division of the Texas Department^t
^sof Criminal Justice, the defendant is eligible for probation, and^t
^sthe district is served by a district probation office that has an^t
^selectronic monitoring program approved by the community justice^t
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^sassistance division of the Texas Department of Criminal Justice,^t
^sthe judge may suspend imposition of the sentence of imprisonment or^t
^sconfinement and require as a condition of probation that the^t
^sdefendant submit to electronic monitoring. The judge may also^t
^srequire the defendant to submit to testing for controlled^t
^ssubstances.^t
^s(b) The court may, on a determination that the probationer^t
^shas made significant progress toward compliance with court-ordered^t
^sconditions of probation, release the probationer from the^t
^selectronic monitoring program. The probationer shall serve the^t
^sremainder of his probation under any terms and conditions the court^t
^simposes under this article.^t
^s(b) If at any time after a probationer is placed on^t
^sprobation under this section the court determines the probationer^t
^shas violated a condition of probation under this section or any^t
^sother section of this article, the court may revoke probation and^t
^sorder the probationer to the term of imprisonment or confinement^t
^sspecified in the probationer's sentence.^t
^s(d) A probationer serving on electronic monitoring as a^t
^scourt-ordered condition of probation commits an offense if he^t
^sintentionally or recklessly damages or destroys any of the^t
^selectronic monitoring devices. An offense under this subsection is^t
^sa Class B misdemeanor.^t
Sec. ^u19^w ^s22^t. FEES. (a) Except as otherwise provided by
this subsection, a ^ujudge^w ^scourt^t granting ^ucommunity supervision^w
^sprobation^t shall fix a fee of not less than $25 and not more
than $40 per month to be paid to the court by the ^udefendant^w
^sprobationer^t during the ^ucommunity supervision^w ^sprobationary^t
period. The ^ujudge^w ^scourt^t may make payment of the fee a condition
of granting or continuing the ^ucommunity supervision^w ^sprobation^t.
The ^ujudge^w ^scourt^t may waive or reduce the fee or suspend a monthly
payment of the fee if ^uthe judge^w ^sit^t determines that payment of the
fee would cause the ^udefendant^w ^sprobationer^t a significant financial
hardship.
(b) The ^ujudge^w ^scourt^t shall deposit the fees received under
Subsection (a) of this section in the special fund of the county
treasury, to be used for the same purposes for which state aid may
be used under Article 42.131 of this code.
(c) A ^ujudge^w ^scourt^t receiving a ^udefendant^w ^sprobationer^t for
supervision as authorized by Article 42.11 of this code may impose
on the ^udefendant^w ^sprobationer^t any term of ^ucommunity supervision^w
^sprobation^t authorized by this article and may require the
^udefendant^w ^sprobationer^t to pay the fee authorized by Subsection
(a) of this section. Fees received under this section shall be
deposited in the same manner as required by Subsection (b) of this
section.
(d) For the purpose of determining when fees due on
conviction are to be paid to any officer or officers, the placing
of the defendant on ^ucommunity supervision^w ^sprobation^t shall be
considered a final disposition of the case, without the necessity
of waiting for the termination of the period of ^ucommunity^w
^usupervision^w ^sprobation or suspension of sentence^t.
Sec. ^u20^w ^s23^t. REDUCTION OR TERMINATION OF ^uCOMMUNITY^w
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^uSUPERVISION^w ^sPROBATION^t. ^u(a)^w At any time, after the defendant has
satisfactorily completed one-third of the original ^ucommunity^w
^usupervision^w ^sprobationary^t period or two years of ^ucommunity^w
^usupervision^w ^sprobation^t, whichever is ^uless^w ^sthe lesser^t, the period
of ^ucommunity supervision^w ^sprobation^t may be reduced or terminated
by the ^ujudge^w ^scourt^t. Upon the satisfactory fulfillment of the
conditions of ^ucommunity supervision^w ^sprobation^t, and the expiration
of the period of ^ucommunity supervision^w ^sprobation^t, the ^ujudge^w
^scourt^t, by order duly entered, shall amend or modify the
original sentence imposed, if necessary, to conform to the
^ucommunity supervision^w ^sprobation^t period and shall discharge the
defendant. ^uIf^w ^sIn case the defendant has been convicted or has^t
^sentered a plea of guilty or a plea of nolo contendere to an offense^t
^sother than an offense under Subdivision (2), Subsection (a),^t
^sSection 19.05, Penal Code, or an offense under Article 6701l-1,^t
^sRevised Statutes, and^t the ^ujudge discharges the^w ^scourt has^t
^sdischarged the^t defendant ^uunder this section, the judge^w ^shereunder,^t
^ssuch court^t may set aside the verdict or permit the defendant to
withdraw his plea, and shall dismiss the accusation, complaint,
information or indictment against ^uthe^w ^ssuch^t defendant, who shall
thereafter be released from all penalties and disabilities
resulting from the offense or crime of which he has been convicted
or to which he has pleaded guilty, except that:
(1) proof of ^uthe^w ^shis said^t conviction or plea of
guilty shall be made known to the ^ujudge^w ^scourt^t should the
defendant again be convicted of any criminal offense; and
(2) if the defendant is an applicant for a license or
is a licensee under Chapter 42, Human Resources Code, the Texas
Department of Human Services may consider the fact that the
defendant previously has received ^ucommunity supervision^w ^sprobation^t
under this ^uarticle^w ^ssection^t in issuing, renewing, denying, or
revoking a license under that chapter.
^u(b) This section does not apply to a defendant convicted of^w
^uan offense under Sections 49.04-49.08, Penal Code, or a defendant^w
^uconvicted of an offense punishable as a state jail felony.^w
Sec. ^u21^w ^s24^t. VIOLATION OF ^uCOMMUNITY SUPERVISION^w
^sPROBATION^t: DETENTION AND HEARING. (a) At any time during
the period of ^ucommunity supervision^w ^sprobation^t the ^ujudge^w ^scourt^t
may issue a warrant for violation of any of the conditions of the
^ucommunity supervision^w ^sprobation^t and cause a defendant convicted
under Section 43.02, Penal Code, or under Chapter 481, Health and
Safety Code, or Sections 485.031 through 485.035, Health and Safety
Code, ^uor placed on deferred adjudication after being charged with^w
^uone of those offenses,^w to be subject to the control measures of
Section 81.083, Health and Safety Code, and to the
court-ordered-management provisions of Subchapter G, Chapter 81,
Health and Safety Code.
^u(b)^w At any time during the period of ^ucommunity supervision^w
^sprobation^t the ^ujudge^w ^scourt^t may issue a warrant for violation
of any of the conditions of the ^ucommunity supervision^w ^sprobation^t
and cause the defendant to be arrested. Any ^usupervision^w
^sprobation^t officer, police officer or other officer with power
of arrest may arrest such defendant with or without a warrant upon
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the order of the judge ^sof such court^t to be noted on the docket of
the court. A ^udefendant^w ^sprobationer^t so arrested may be detained
in the county jail or other appropriate place of ^uconfinement^w
^sdetention^t until he can be taken before the ^ujudge^w ^scourt^t. Such
officer shall forthwith report such arrest and detention to such
^ujudge^w ^scourt^t. If the defendant has not been released on bail,
on motion by the defendant the ^ujudge^w ^scourt^t shall cause the
defendant to be brought before ^uthe judge^w ^sit^t for a hearing within
20 days of filing of said motion, and after a hearing without a
jury, may either continue, extend, modify, or revoke the ^ucommunity^w
^usupervision^w ^sprobation^t. A ^ujudge^w ^scourt^t may revoke the ^ucommunity^w
^usupervision^w ^sprobation^t of a defendant who is ^uimprisoned^w ^sconfined^t
in a penal ^sor correctional^t institution without a hearing if the
defendant in writing before a court of record in the jurisdiction
where ^uimprisoned^w ^sconfined^t waives his right to a hearing and to
counsel, affirms that he has nothing to say as to why sentence
should not be pronounced against him, and requests the ^ujudge^w
^scourt^t to revoke ^ucommunity supervision^w ^sprobation^t and to
pronounce sentence. In a felony case, the state may amend the
motion to revoke ^ucommunity supervision^w ^sprobation^t any time up to
seven days before the date of the revocation hearing, after which
time the motion may not be amended except for good cause shown, and
in no event may the state amend the motion after the commencement
of taking evidence at the hearing. The ^ujudge^w ^scourt^t may continue
the hearing for good cause shown by either the defendant or the
state.
^u(c)^w ^s(b)^t In a ^ucommunity supervision^w ^sprobation^t revocation
hearing at which it is alleged only that the ^udefendant^w
^sprobationer^t violated the conditions of ^ucommunity supervision^w
^sprobation^t by failing to pay compensation paid to appointed
counsel, ^ucommunity supervision^w ^sprobation^t fees, court costs,
restitution, or reparations, the inability of the ^udefendant^w
^sprobationer^t to pay as ordered by the ^ujudge^w ^scourt^t is an
affirmative defense to revocation, which the ^udefendant^w
^sprobationer^t must prove by a preponderance of evidence.
^u(d)^w ^s(c)^t A defendant has a right to counsel at a hearing
under this section.
Sec. ^u22^w ^s25^t. CONTINUATION OR MODIFICATION. (a) If after a
hearing under Section ^u21^w ^s24^t of this article a ^ujudge^w ^scourt^t
continues or modifies ^ucommunity supervision^w ^sa felony probation^t
after determining that the ^udefendant^w ^sprobationer^t violated a
condition of ^ucommunity supervision^w ^sprobation^t, the ^ujudge^w ^scourt^t
may impose ^uany other conditions the judge determines are^w
^uappropriate, including^w ^sone or more of the following sanctions on^t
^sthe probationer^t:
(1) a requirement that the ^udefendant^w ^sprobationer^t
perform ^swork probation or^t community service for a number of hours
specified by the court under Section 16 ^sor 17^t of this article, or
an increase in the number of hours that the ^udefendant^w ^sprobationer^t
has previously been required to perform under those sections ^uin an^w
^uamount not to exceed double the number of hours permitted by^w
^uSection 16^w;
(2) an increase in the period of ^ucommunity supervision^w
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^sprobation^t, in the manner described by Subsection (b) of this
section;
(3) an increase in the ^udefendant's^w ^sprobationer's^t
fine, in the manner described by Subsection ^u(d)^w ^s(c)^t of this
section; ^uor^w
(4) ^uthe placement of the defendant in a substance^w
^uabuse felony punishment program operated under Section 493.009,^w
^uGovernment Code, if:^w
^u(A) the defendant is convicted of a felony other^w
^uthan a felony under Section 21.11, 22.011, 22.021, or 25.06, Penal^w
^uCode; and^w
^u(B) the judge makes an affirmative finding that:^w
^u(i) drug or alcohol abuse significantly^w
^ucontributed to the commission of the crime or violation of^w
^ucommunity supervision; and^w
^u(ii) the defendant is a suitable candidate^w
^ufor treatment, as determined by the suitability criteria^w
^uestablished by the Texas Board of Criminal Justice under Section^w
^u493.009(b), Government Code.^w ^sthe placement of the probationer in^t
^san intensive or maximum probation program, in the same manner and^t
^sunder the same conditions as if the court had originally placed the^t
^sprobationer in that program;^t
^s(5) the placement of the probationer in an electronic^t
^smonitoring program under Section 21 of this article;^t
^s(6) confinement in the county jail for a period not^t
^sto exceed 30 days, to be served consecutively, or at the discretion^t
^sof the court, in the manner provided by Article 42.033 or 42.034 of^t
^sthis code;^t
^s(7) placement in a community corrections facility, in^t
^sthe same manner and under the same conditions as if the court had^t
^soriginally placed the probationer in that program, if the^t
^sprobationer would have been eligible for sentencing to the center^t
^son conviction of the offense for which the probationer received^t
^sprobation;^t
^s(8) confinement in the county jail for a period not^t
^sto exceed 90 days, to be served consecutively; or^t
^s(9) confinement in a facility operated by the^t
^sinstitutional division of the Texas Department of Criminal Justice^t
^sfor a period of either 60 or 90 days, as specified by the court, if^t
^sthe court enters in the order modifying probation a statement that^t
^sthe court has previously imposed three or more sanctions on the^t
^sdefendant under this section.^t
(b) ^uIf the judge imposes a sanction under Subsection (a)(4)^w
^uof this section, the judge shall also impose a condition requiring^w
^uthe defendant on successful completion of the program to^w
^uparticipate in a drug or alcohol abuse continuum of care program.^w
^u(c) The judge may extend a period of community supervision^w
^uunder this section as often as the judge determines is necessary,^w
^ubut in no case may the period of community supervision in a first,^w
^usecond, or third degree felony case exceed 10 years or the period^w
^uof community supervision in a misdemeanor case exceed three years.^w
^uA court may extend a period of community supervision under this^w
^usection at any time during the period of supervision or, if a^w
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^umotion for revocation of community supervision is filed before the^w
^uperiod of supervision ends, before the first anniversary of the^w
^udate on which the period of supervision expires.^w ^sA court may^t
^simpose a sanction on a probationer described by Subsection (a)(2)^t
^sof this section by extending the period of probation for a period^t
^snot to exceed one year. The total period of probation, including^t
^sany extensions under this subsection, may not exceed 10 years.^t
^u(d)^w ^s(c)^t A ^ujudge^w ^scourt^t may impose a sanction on a
^udefendant^w ^sprobationer^t described by Subsection (a)(3) of this
section by increasing the fine imposed on the defendant. The
original fine imposed on the ^udefendant^w ^sprobationer^t and an
increase in the fine imposed under this subsection may not exceed
the maximum fine for the offense for which the ^udefendant^w
^sprobationer^t was sentenced. The ^ujudge^w ^scourt^t shall deposit
money received from an increase in the ^udefendant's^w ^sprobationer's^t
fine under this subsection in the special fund of the county
treasury to be used for the same purposes for which state aid may
be used under Article 42.131 of this code.
^s(d) If a court continues or modifies a misdemeanor^t
^sprobation after determining that the probationer violated a^t
^scondition of probation, the court may extend the probationer's^t
^speriod of probation or increase the probationer's fine, in the same^t
^smanner under Subsections (b) and (c) of this section as if the^t
^sprobationer were a felony probationer, except that the total period^t
^sof probation, including any extensions imposed under this^t
^ssubsection, may not exceed three years.^t
Sec. ^u23^w ^s26^t. REVOCATION. (a) If ^ucommunity supervision^w
^sprobation^t is revoked after a hearing under Section ^u21^w ^s24^t of
this article, the ^ujudge^w ^scourt^t may proceed to dispose of the case
as if there had been no ^ucommunity supervision^w ^sprobation^t, or if
^uthe judge^w ^sit^t determines that the best interests of society and
the ^udefendant^w ^sprobationer^t would be served by a shorter term of
^uconfinement^w ^simprisonment^t, reduce the term of ^uconfinement^w
^simprisonment^t originally assessed to any term of ^uconfinement^w
^simprisonment^t not less than the minimum prescribed for the
offense of which the ^udefendant^w ^sprobationer^t was convicted. The
^ujudge^w ^scourt^t shall enter the amount of restitution or reparation
owed by the defendant on the date of revocation in the judgment in
the case.
(b) No part of the time that the defendant is on ^ucommunity^w
^usupervision^w ^sprobation^t shall be considered as any part of the time
that he shall be sentenced to serve^s, except for time spent by the^t
^sdefendant in actual confinement as a condition of probation under^t
^sSection 12 or 13 of this article^t. The right of the ^udefendant^w
^sprobationer^t to appeal ^sto the Court of Appeals^t for a review of
the ^strial and^t conviction ^uand punishment^w, as provided by law,
shall be accorded the ^udefendant^w ^sprobationer^t at the time he is
placed on ^ucommunity supervision^w ^sprobation^t. When he is notified
that his ^ucommunity supervision^w ^sprobation^t is revoked for violation
of the conditions of ^ucommunity supervision^w ^sprobation^t and he is
called on to serve a sentence in a jail or in ^uthe institutional^w
^udivision of the Texas Department of Criminal Justice^w ^san^t
^sinstitution operated by the Department of Corrections^t, he may
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appeal the revocation.
^uSec. 24. PILOT SUPERVISION CONTRACTS. The Texas Board of^w
^uCriminal Justice may contract with the Commissioners Court of^w
^uTravis County or the Travis County community supervision and^w
^ucorrections department for the confinement of felons under^w
^ucommunity supervision. The commissioners court or the community^w
^usupervision and corrections department may not enter into a^w
^ucontract under this section unless the commissioners court or^w
^udepartment first consults with the community justice council^w
^userving the county or the department. If the county commissioners^w
^uor the community supervision and corrections department contracts^w
^uwith the board under this section, the commissioners court or the^w
^udepartment may subcontract with a private vendor for the provision^w
^uof any and all services described in this section. This section^w
^uexpires on September 1, 1995.^w
^sSec. 27. CHANGE OF RESIDENCE; LEAVING THE STATE. (a) If,^t
^sfor good and sufficient reasons, a probationer desires to change^t
^shis residence within the State, such transfer may be effected by^t
^sapplication to the supervising probation officer, which transfer^t
^sshall be subject to the court's consent and subject to such^t
^sregulations as the court may require in the absence of a probation^t
^sofficer in the locality to which the probationer is transferred.^t
^s(b) Any probationer who removes himself from the State of^t
^sTexas without permission of the court having jurisdiction of the^t
^scase shall be considered a fugitive from justice and shall be^t
^ssubject to extradition as now provided by law.^t
^sSec. 28. PROGRAM TO ASSESS AND ENHANCE PROBATIONER'S^t
^sEDUCATIONAL AND VOCATIONAL SKILLS. (a) A community supervision^t
^sand corrections department, with the assistance of public school^t
^sdistricts, community and public junior colleges, public and private^t
^sinstitutions of higher education, and other appropriate public and^t
^sprivate entities, may establish a developmental program for a^t
^sprobationer under the supervision of the department on the basis of^t
^sinformation developed under Section 11(g) of this article, as added^t
^sby Chapter 260, Acts of the 71st Legislature, Regular Session,^t
^s1989.^t
^s(b) The developmental program may provide the probationer^t
^swith the educational and vocational training necessary to:^t
^s(1) meet the average skill level required under^t
^sSection 11(g) of this article, as added by Chapter 260, Acts of the^t
^s71st Legislature, Regular Session, 1989; and^t
^s(2) maintain employment while under the supervision^t
^sof the department, to lessen the likelihood that the probationer^t
^swill commit additional offenses.^t
^s(c) To decrease expenditures by community supervision and^t
^scorrections departments for the educational and vocational skills^t
^sassessment and enhancement program established under this section,^t
^sthe Texas Department of Commerce shall provide information to^t
^scommunity supervision and corrections departments, public school^t
^sdistricts, community and public junior colleges, public and private^t
^sinstitutions of higher education, and other appropriate public and^t
^sprivate entities for obtaining financial assistance through the^t
^sTexas Job-Training Partnership Act (Article 4413(52), Vernon's^t
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^sTexas Civil Statutes) and other applicable programs of public or^t
^sprivate entities.^t
SECTION 4.02. (a) Except as provided by Subsection (b) of
this section, the change in law made by this article to Article
42.12, Code of Criminal Procedure, applies only to a defendant
charged with or convicted of an offense committed on or after the
effective date of this article. For the purposes of this section,
an offense is committed before the effective date of this article
if any element of the offense occurs before that date. A defendant
charged with or convicted of an offense committed before the
effective date of this article is covered by the law in effect when
the offense was committed, and the former law is continued in
effect for this purpose.
(b) A court may require the confinement and treatment of a
defendant as a condition of probation under Section 14, Article
42.12, Code of Criminal Procedure, as added by this article,
granted for an offense whether the offense is committed before, on,
or after the effective date of this Act.
SECTION 4.021. Section 534.053(c), Health and Safety Code,
is amended to read as follows:
(c) To the extent that resources are available, the
department shall:
(1) ensure that the services listed in this section
are available for children, including adolescents, as well as
adults, in each service area; ^sand^t
(2) emphasize early intervention services for
children, including adolescents, who meet the department's
definition of being at high risk of developing severe emotional
disturbances or severe mental illnesses^u; and^w
^u(3) ensure that services listed in this section are^w
^uavailable for defendants required to submit to mental health^w
^utreatment under Article 17.032 or Section 5(a) or 11(d), Article^w
^u42.12, Code of Criminal Procedure^w.
SECTION 4.03. From the effective date of this article until
September 1, 1994, a reference in Article 42.12, Code of Criminal
Procedure, as amended by this Act, to an offense under Chapter 49,
Penal Code, shall be construed as a reference to the offense and
the punishment provisions for the offense as they existed before
the effective date of Article 1 of this Act.
SECTION 4.04. (a) On and after September 1, 1993, a
reference in the law to "probation" or "deferred adjudication"
means "community supervision," as that term is defined in Section
2, Article 42.12, Code of Criminal Procedure, as amended by
Section 4.01 of this article. A defendant who is placed on
probation or who receives deferred adjudication before September 1,
1993, is considered on and after September 1, 1993, to have
previously been placed on community supervision.
(b) The legislature declares that among its purposes in
amending Article 42.12, Code of Criminal Procedure, in Section 4.01
of this article, is the purpose of authorizing a judge to place a
defendant for whom the judge defers criminal proceedings without an
adjudication of guilt under the same continuum of programs and
sanctions that the judge could place a defendant under if the judge
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probated the defendant's sentence and suspended the imposition of
the sentence. It is not the intent of the legislature to eliminate
or alter substantive or procedural distinctions between probated
and suspended sentences and deferred adjudications, other than
those distinctions related to placement of defendants under a
continuum of sanctions and programs.
SECTION 4.05. (a) Except as provided by Subsection (b) of
this section, this article takes effect September 1, 1993.
(b) Section 15, Article 42.12, Code of Criminal Procedure,
as added by this article, takes effect September 1, 1994.
ARTICLE 5
SECTION 5.01. Section 3(d), Article 37.07, Code of Criminal
Procedure, is amended to read as follows:
(d) When the judge assesses the punishment, he may order an
investigative report as contemplated in Section ^u9^w ^s4^t of Article
42.12 of this code and after considering the report, and after the
hearing of the evidence hereinabove provided for, he shall
forthwith announce his decision in open court as to the punishment
to be assessed.
SECTION 5.02. Section 4, Article 37.07, Code of Criminal
Procedure, is amended to read as follows:
Sec. 4. (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 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 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, he will not become eligible
for parole until the actual time served equals ^uone-half^w
^sone-fourth^t of the sentence imposed or ^u30^w ^s15^t years,
whichever is less, without consideration of any good conduct time
he may earn. If the defendant is sentenced to a term of less than
^ufour^w ^ssix^t years, he must serve at least two years before 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
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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."
(b) 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 is punishable as a felony of the first
degree, if a prior conviction has been alleged for enhancement of
punishment as provided by Section 12.42(b), (c), or (d), Penal
Code, or if the offense is a felony not designated as a capital
felony or a felony of the first, second, or third degree and the
maximum term of imprisonment that may be imposed for the offense is
longer than 60 years, unless the offense of which the jury has
found the defendant guilty is listed in Section 3g(a)(1), Article
42.12, of this code or the judgment contains an affirmative finding
under Section 3g(a)(2), Article 42.12, of this code, 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, he will not become eligible
for parole until the actual time served plus any good conduct time
earned equals one-fourth of the sentence imposed or 15 years,
whichever is less. 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."
(c) 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 is punishable as a felony of the second or
third degree, if a prior conviction has been alleged for
enhancement as provided by Section 12.42(a), Penal Code, or if the
offense is a felony not designated as a capital felony or a felony
of the first, second, or third degree and the maximum term of
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imprisonment that may be imposed for the offense is 60 years or
less, unless the offense of which the jury has found the defendant
guilty is listed in Section 3g(a)(1), Article 42.12, of this
code or the judgment contains an affirmative finding under Section
3g(a)(2), Article 42.12, of this code, 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, he will not become eligible
for parole until the actual time served plus any good conduct time
earned equals one-fourth of the sentence imposed. 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."
(d) This section does not permit the introduction of
evidence on the operation of parole and good conduct time laws.
SECTION 5.03. Chapter 42, Code of Criminal Procedure, is
amended by amending Articles 42.01-42.036, 42.08, and 42.09 and
adding Articles 42.023 and 42.20 to read as follows:
Art. 42.01. JUDGMENT
Sec. 1. A judgment is the written declaration of the court
signed by the trial judge and entered of record showing the
conviction or acquittal of the defendant. The sentence served
shall be based on the information contained in the judgment. The
judgment should reflect:
1. The title and number of the case;
2. That the case was called and the parties appeared,
naming the attorney for the state, the defendant, and the attorney
for the defendant, or, where a defendant is not represented by
counsel, that the defendant knowingly, intelligently, and
voluntarily waived the right to representation by counsel;
3. The plea or pleas of the defendant to the offense
charged;
4. Whether the case was tried before a jury or a jury
was waived;
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5. The submission of the evidence, if any;
6. In cases tried before a jury that the jury was
charged by the court;
7. The verdict or verdicts of the jury or the finding
or findings of the court;
8. In the event of a conviction that the defendant is
adjudged guilty of the offense as found by the verdict of the jury
or the finding of the court, and that the defendant be punished in
accordance with the jury's verdict or the court's finding as to the
proper punishment;
9. In the event of conviction where death or any
^snonprobated^t punishment is assessed that the defendant be
sentenced to death, a term of ^uconfinement or community supervision^w
^simprisonment^t, or to pay a fine, as the case may be;
10. In the event of conviction where ^sany probated^t
^spunishment is assessed that^t the imposition of sentence is
suspended and the defendant is placed on ^ucommunity supervision^w
^sprobation^t, setting forth the punishment assessed, the length of
^ucommunity supervision^w ^sprobation^t, and the ^sprobationary terms and^t
conditions ^uof community supervision^w;
11. In the event of acquittal that the defendant be
discharged;
12. The county and court in which the case was tried
and, if there was a change of venue in the case, the name of the
county in which the prosecution was originated;
13. The offense or offenses for which the defendant
was convicted;
14. The date of the offense or offenses and degree of
offense for which the defendant was convicted;
15. The term of sentence;
16. The date judgment is entered;
17. The date sentence is imposed;
18. The date sentence is to commence and any credit
for time served;
19. The terms of any order entered pursuant to Article
42.08 of this code that the defendant's sentence is to run
cumulatively or concurrently with another sentence or sentences;
20. The terms of any plea bargain;
21. Affirmative findings entered pursuant to
Subdivision (2) of Subsection (a) of Section 3g of Article 42.12 of
this code;
22. The terms of any fee payment ordered under
Articles 37.072 and 42.151 of this code;
23. The defendant's thumbprint taken in accordance
with Article 38.33 of this code;
24. In the event that the judge orders the defendant
to repay a reward or part of a reward under Articles 37.073 and
42.152 of this code, a statement of the amount of the payment or
payments required to be made; ^sand^t
25. In the event that the court orders restitution to
be paid to the victim ^sof a felony^t, a statement of the amount of
restitution ordered and:
(A) the name of the victim and the permanent
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mailing address of the victim at the time of the judgment; or
(B) if the court determines that the inclusion
of the victim's name and address in the judgment is not in the best
interest of the victim, the name and address of a person or agency
that will accept and forward restitution payments to the victim^u;^w
^uand^w
^u26. In the event that a presentence investigation is^w
^urequired by Section 9(a), (b), (h), or (i), Article 42.12 of this^w
^ucode, a statement that the presentence investigation was done^w
^uaccording to the applicable provision^w.
Sec. 2. The judge may order the clerk of the court, the
prosecuting attorney, or the attorney or attorneys representing any
defendant to prepare the judgment, or the court may prepare the
same.
Sec. 3. The provisions of this ^uarticle^w ^sArticle^t shall apply
to both felony and misdemeanor cases.
Sec. 4. The Office of Court Administration of the Texas
Judicial System shall promulgate a standardized felony judgment
form that conforms to the requirements of Section 1 of this
article. ^sA copy of the promulgated form shall be mailed to all^t
^sdistrict courts hearing criminal cases on or before October 1,^t
^s1985.^t
^sArt. 42.011. RISK ASSESSMENT INSTRUMENTS. (a) Not later^t
^sthan the 30th day after the date on which a court pronounces^t
^ssentence in a felony case, the court shall submit a risk assessment^t
^sinstrument to the community justice assistance division of the^t
^sTexas Department of Criminal Justice on a form provided by the^t
^sdivision. If the court does not suspend a sentence of confinement^t
^sin the case or sentence a defendant under Section 12.34(a)(2),^t
^sPenal Code, the court shall attach a statement of its reasons to^t
^sthe form.^t
^s(b) The division shall develop and distribute forms for use^t
^sunder Subsection (a) of this article not later than September 1,^t
^s1990.^t
Art. 42.02. Sentence. The sentence is that part of the
judgment, or order revoking a ^ususpension of the imposition of a^w
^sprobated^t sentence, that orders that the punishment be carried
into execution in the manner prescribed by law.
^uArt. 42.023. JUDGE MAY CONSIDER ALTERNATIVE SENTENCING.^w
^uBefore pronouncing sentence on a defendant convicted of a criminal^w
^uoffense, the judge may consider whether the defendant should be^w
^ucommitted for care and treatment under Section 462.081, Health and^w
^uSafety Code.^w
Art. 42.03. PRONOUNCING SENTENCE; TIME; CREDIT FOR TIME
SPENT IN JAIL BETWEEN ARREST AND SENTENCE OR PENDING APPEAL
Sec. 1. (a) Except as provided in Article 42.14, sentence
shall be pronounced in the defendant's presence.
(b) The court shall permit a victim, close relative of a
deceased victim, or guardian of a victim, as defined by Article
56.01 of this code, to appear in person to present to the court a
statement of the person's views about the offense, the defendant,
and the effect of the offense on the victim. ^uThe court reporter^w
^umay not transcribe the statement.^w The statement must be made:
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(1) after punishment has been assessed and the court
has determined whether or not to grant ^ucommunity supervision^w
^sprobation^t in the case;
(2) after the court has announced the terms and
conditions of the sentence; and
(3) after sentence is pronounced ^sand shall not be^t
^stranscribed by the court reporter^t.
Sec. 2. (a) In all criminal cases the judge of the court in
which the defendant was convicted shall give the defendant credit
on his sentence ^sor period of confinement served as a condition of^t
^sprobation^t for the time that the defendant has spent in jail in
said cause, ^uother than confinement served as a condition of^w
^ucommunity supervision,^w from the time of his arrest and confinement
until his sentence by the trial court.
(b) In all ^sfelony probation^t revocations ^uof a suspension of^w
^uthe imposition of a sentence^w the judge shall enter the restitution
or reparation due and owing on the date of the revocation ^sof^t
^sprobation^t.
Sec. 3. If a defendant appeals his conviction, is not
released on bail, and is retained in a ^slocal^t jail as provided in
Section ^u7^w ^s5^t, Article 42.09, pending his appeal, the judge of the
court in which the defendant was convicted shall give the defendant
credit on his sentence for the time that the defendant has spent in
jail pending disposition of his appeal. The court shall endorse on
both the commitment and the mandate from the appellate court all
credit given the defendant under this section, and the
^uinstitutional division of the Texas^w Department of ^uCriminal^w
^uJustice^w ^sCorrections^t shall grant the credit in computing the
defendant's eligibility for parole and discharge.
Sec. 4. When a defendant who has been sentenced to
imprisonment in the ^uinstitutional division of the Texas^w Department
of ^uCriminal Justice^w ^sCorrections^t has spent time in jail pending
trial and sentence or pending appeal, the judge of the sentencing
court shall direct the sheriff to attach to the commitment papers a
statement assessing the defendant's conduct while in jail.
^sSec. 7. (a) If jail time is awarded to a person sentenced^t
^sfor an offense under Section 25.05, Penal Code, or if the person is^t
^srequired to serve a period of confinement as a condition of^t
^sprobation, the judge, at the time of the pronouncement of the^t
^ssentence or at any time while the person is serving the sentence or^t
^speriod of confinement, on the judge's own motion or on the written^t
^smotion of the defendant, may permit the defendant to serve the^t
^ssentence or period of confinement under house arrest, including^t
^selectronic monitoring and any other conditions the court chooses to^t
^simpose, during the person's off-work hours. The judge may require^t
^sbail of the defendant to ensure the faithful performance of the^t
^ssentence or period of confinement.^t
^s(b) The court shall require as a condition to permitting^t
^sthe defendant to serve the jail time assessed or period of^t
^sconfinement imposed under house arrest a requirement that the^t
^sdefendant perform community service work specified by the court for^t
^sa specified number of hours.^t
^s(c) The court may require the defendant to pay any^t
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^sreasonable cost to the county incurred by the county because of the^t
^sdefendant's participation in the house arrest program, including^t
^sthe cost to the county for the defendant's participation in^t
^scommunity service work and the cost of electronic monitoring.^t
^s(d) The sentencing and confinement alternatives provided by^t
^sthis section are in addition to any other sentencing and^t
^sconfinement alternatives provided by law.^t
^sSec. 7A. A court in a county served by a district probation^t
^soffice that has an electronic monitoring program approved by the^t
^scommunity justice assistance division of the Texas Department of^t
^sCriminal Justice may require a defendant to serve all or part of a^t
^ssentence of confinement in county jail or period of confinement^t
^sserved as a condition of probation by submitting to electronic^t
^smonitoring rather than being confined in the county jail.^t
^sSec. 8. (a) A court may require a defendant to serve all^t
^sor part of a sentence of confinement in county jail or period of^t
^sconfinement served as a condition of probation by performing^t
^scommunity service rather than by being confined in county jail.^t
^s(b) In its order requiring a defendant to participate in^t
^scommunity service work, the court must specify:^t
^s(1) the number of hours the defendant is required to^t
^swork;^t
^s(2) the entity or organization for which the^t
^sdefendant is required to work;^t
^s(3) the project on which the defendant is required to^t
^swork; and^t
^s(4) whether the district probation department or a^t
^scourt related services office will perform the administrative^t
^sduties required by the placement of the defendant in the community^t
^sservice program.^t
^s(c) The court may order the defendant to perform community^t
^sservice work under this section only for a governmental entity or a^t
^snonprofit organization that provides services to the general public^t
^sthat enhance social welfare and the general well-being of the^t
^scommunity. A governmental entity or nonprofit organization that^t
^saccepts a defendant under this section to perform community service^t
^smust agree to supervise the defendant in the performance of the^t
^sdefendant's work and report on the defendant's work to the district^t
^sprobation department or court related services office.^t
^s(d) A court may not order a defendant to perform more than^t
^s16 hours per week of community service under this section unless^t
^sthe court determines that requiring the defendant to work^t
^sadditional hours does not work a hardship on the defendant or the^t
^sdefendant's dependents.^t
^s(e) A defendant is considered to have served one day in^t
^sjail for each eight hours of community service performed under this^t
^ssection.^t
^s(f) Notwithstanding the provisions of Subsection (d) of^t
^sthis section, a court may order a defendant who is not employed to^t
^sperform up to 32 hours of community service under this section and^t
^smay direct the defendant to use the remaining hours of the week to^t
^sseek employment.^t
^s(f) A sheriff, employee of a sheriff's department, county^t
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^scommissioner, county employee, county judge, employee of a^t
^scommunity corrections and supervision department, restitution^t
^scenter, or officer or employee of a political subdivision other^t
^sthan a county is not liable for damages arising from an act or^t
^sfailure to act in connection with community service performed by an^t
^sinmate pursuant to this article if the act or failure to act:^t
^s(1) was performed pursuant to court order; and^t
^s(2) was not intentional, wilfully or wantonly^t
^snegligent, or performed with conscious indifference or reckless^t
^sdisregard for the safety of others.^t
Art. 42.031. WORK RELEASE PROGRAM
Sec. 1. (a) The sheriff of each county may attempt to
secure employment for each ^udefendant^w ^sprisoner^t sentenced to the
county jail work release program under Article 42.034 of this code
^uand each defendant confined in the county jail awaiting transfer^w
^uto the institutional division of the Texas Department of Criminal^w
^uJustice^w ^sor permitted under that article to participate in the^t
^sprogram as an alternative to serving a period of confinement as a^t
^scondition of probation^t.
(b) The employer of a ^udefendant^w ^sprisoner^t participating in
a program under this article shall pay the ^udefendant's^w ^sprisoner's^t
salary to the sheriff. The sheriff shall deposit the salary into a
special fund to be given to the ^udefendant^w ^sprisoner^t on his release
after deducting:
(1) the cost to the county^s, as determined by the^t
^scommissioners court of the county,^t for the ^udefendant's confinement^w
^sprisoner's incarceration^t during the pay period ^ubased on the^w
^uaverage daily cost of confining defendants in the county jail, as^w
^udetermined by the commissioners court of the county^w;
(2) support of the ^udefendant's^w ^sprisoner's^t
dependents; and
(3) restitution to the victims of an offense committed
by the ^udefendant^w ^sprisoner^t.
(c) At the time of sentencing or at a later date, the court
sentencing a ^udefendant^w ^sprisoner^t may direct the sheriff not to
deduct the cost described under Subdivision (1) of Subsection (b)
of this section or to deduct only a specified portion of the cost
if the court determines that the full deduction would cause a
significant financial hardship to the ^udefendant's^w ^sprisoner's^t
dependents.
(d) If the sheriff does not find employment for a ^udefendant^w
^sprisoner^t who would otherwise be sentenced to imprisonment ^sor^t
^sconfined as a condition of probation^t in the institutional
division, the sheriff shall:
(1) transfer the ^udefendant^w ^sprisoner^t to the sheriff
of a county who agrees to accept the ^udefendant^w ^sprisoner^t as a
participant in the county jail work release program; or
(2) retain the ^udefendant^w ^sprisoner^t in the county jail
for employment as soon as possible in a jail work release program.
^s(e) A sheriff or an employee of a sheriff's department is^t
^snot liable for damages arising from an act or failure to act by the^t
^ssheriff or employee in connection with a work program operated^t
^sunder this section if the act or failure to act was performed in an^t
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^sofficial capacity.^t
Sec. 2. A ^udefendant^w ^sprisoner^t participating in a program
under this article shall be confined in the county jail or in
another facility designated by the sheriff at all times except for:
(1) time spent at work and traveling to or from work;
and
(2) time spent attending or traveling to or from an
education or rehabilitation program approved by the sheriff.
Sec. 3. (a) The sheriff of each county shall classify each
felon serving a sentence in the county jail work release program
^sor participating in that program as an alternative to serving a^t
^speriod of confinement as a condition of probation^t for the purpose
of awarding good conduct time credit in the same manner as inmates
of the ^uinstitutional division of the^w Texas Department of ^uCriminal^w
^uJustice^w ^sCorrections^t are classified under Chapter 498, Government
Code, and shall award good conduct time in the same manner as the
director of the department does in that ^uchapter^w ^sarticle^t.
(b) ^uIf the sheriff determines that the defendant is^w
^uconducting himself in a manner that is dangerous to inmates in the^w
^ucounty jail or to society as a whole, the sheriff may remove the^w
^udefendant from participation in the program pending a hearing^w
^ubefore the sentencing court. At the hearing, if the court^w
^udetermines that the sheriff's assessment of the defendant's conduct^w
^uis correct, the court may terminate the defendant's participation^w
^uin the program and order the defendant to the term of imprisonment^w
^uthat the defendant would have received had he not entered the^w
^uprogram. If the court determines that the sheriff's assessment is^w
^uincorrect, the court shall order the sheriff to readmit the^w
^udefendant to the program. A defendant shall receive as credit^w
^utoward his sentence any time served as a participant in the program^w
^sIf at a hearing requested by a sheriff the court that sentenced^t
^sthe prisoner to participation in a county jail work release program^t
^sdetermines that the prisoner is conducting himself in a manner that^t
^sis dangerous to inmates in the county jail or to society as a^t
^swhole, the court shall order the prisoner's participation in the^t
^sprogram terminated and order the prisoner to the term or period of^t
^sconfinement or the term of imprisonment that the prisoner would^t
^shave received had he not entered the program. The prisoner shall^t
^sreceive as credit toward his sentence or period of confinement any^t
^stime served as a participant in the program^t.
Art. 42.032. GOOD CONDUCT
Sec. 1. To encourage county jail discipline, a distinction
may be made to give orderly, industrious, and obedient ^udefendants^w
^sprisoners^t the comforts and privileges they deserve. The reward
for good conduct may consist of a relaxation of strict county jail
rules and extension of social privileges consistent with proper
discipline.
Sec. 2. The sheriff in charge of each county jail may grant
commutation of time for good conduct, industry, and obedience. A
deduction not to exceed one day for each day of the original
sentence actually served may be made for the term or terms of
sentences ^sor periods of confinement served as conditions of^t
^sprobation^t if a charge of misconduct has not been sustained against
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the ^udefendant^w ^sprisoner^t.
Sec. 3. This article applies whether or not the judgment of
conviction is a fine or jail sentence or both ^sor whether the^t
^sconfinement is a condition of probation^t, but the deduction in time
may not exceed one-third of the original sentence as to fines and
court costs assessed in the judgment of conviction ^sor one-third of^t
^sthe period of confinement ordered as a condition of probation^t.
Sec. 4. A ^udefendant^w ^sprisoner^t serving two or more
cumulative sentences shall be allowed commutation as if the
sentences were one sentence^s, and a probationer serving two or more^t
^speriods of confinement as conditions of probation in more than one^t
^scase shall be allowed commutation as if the periods were conditions^t
^sof one grant of probation^t.
Sec. 5. Any part or all of the commutation accrued under
this article may be forfeited and taken away by the sheriff for a
sustained charge of misconduct in violation of any rule known to
the ^udefendant^w ^sprisoner^t, including escape or attempt to escape, if
the sheriff has complied with discipline proceedings as approved by
the Commission on Jail Standards.
Sec. 6. Except for credit earned by ^ua defendant^w ^san inmate^t
under Article 43.10, no other time allowance or credits in addition
to the commutation of time under this article may be deducted from
the term or terms of sentences ^sor periods of confinement served as^t
^sa condition of probation^t.
Sec. 7. The sheriff shall keep a conduct record in card or
ledger form and a calendar card on each ^udefendant^w ^sinmate^t showing
all forfeitures of commutation time and the reasons for the
forfeitures.
Art. 42.033. SENTENCE TO SERVE TIME DURING OFF-WORK HOURS.
(a) Where jail time has been awarded to a person sentenced for a
misdemeanor or sentenced to confinement in the county jail for a
felony or when a defendant is serving a period of confinement as a
condition of ^ucommunity supervision^w ^sprobation^t, the trial judge, at
the time of the pronouncement of sentence or at any time while the
defendant is serving the sentence or period of confinement, when in
the judge's discretion the ends of justice would best be served,
may permit the defendant to serve the defendant's sentence or
period of confinement ^uintermittently^w during his off-work hours or
on weekends. The judge may require bail of the defendant to ensure
the faithful performance of the sentence or period of confinement.
The judge may attach conditions regarding the employment, travel,
and other conduct of the defendant during the performance of such a
sentence or period of confinement.
(b) The court may impose as a condition to permitting a
defendant to serve the jail time assessed or period of confinement
^uintermittently^w ^sduring off-work hours or on weekends^t an
additional requirement that the defendant make any of the following
payments to the court, agencies, or persons, or that the defendant
execute a letter and direct it to the defendant's employer
directing the employer to deduct from the defendant's salary an
amount directed by the court, which is to be sent by the employer
to the clerk of the court. The money received by the court under
this section may be used to pay the following expenses as directed
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by the court:
(1) the support of the defendant's dependents, if
necessary;
(2) the defendant's documented personal, business, and
travel expenses;
(3) reimbursement of the general fund of the county
for the maintenance of the defendant in jail; and
(4) installment payments on restitution, fines, and
court costs ordered by the court.
(c) The condition imposed under Subsection (b) of this
article is not binding on an employer, except that income withheld
for child support is governed by Chapter 14, Family Code.
(d) The court may permit the defendant to serve the
defendant's sentence or period of confinement ^uintermittently^w
^sduring the defendant's off-work hours or on weekends^t in order
for the defendant to continue employment if the court imposes
confinement for failure to pay a fine or court costs, as punishment
for criminal nonsupport under Section 25.05, Penal Code, or for
contempt of a court order for periodic payments for the support of
a child.
(e) The court may permit the defendant to seek employment or
obtain medical, psychological, or substance abuse treatment or
counseling or obtain training or needed education under the same
terms and conditions that apply to employment under this article.
Art. 42.034. COUNTY JAIL WORK RELEASE PROGRAM. (a) If jail
time has been awarded to a person sentenced for a misdemeanor or
sentenced to confinement in the county jail for a felony ^sor when a^t
^sdefendant is serving a period of confinement as a condition of^t
^sprobation^t, the trial judge at the time of pronouncement of
sentence or at any time while the defendant is serving the sentence
^sor period of confinement^t, when in the judge's discretion the ends
of justice would best be served, may permit the defendant to serve
an alternate term for the same period of time in the county jail
work release program of the county in which the offense occurred
^sif:^t
^s(1) the trier of fact determines that the defendant^t
^sdid not cause the serious bodily injury or death of another as a^t
^sresult of the commission of the offense; and^t
^s(2) the judgment for the offense does not contain an^t
^saffirmative finding under Section 3g(a)(2), Article 42.12, of this^t
^scode^t.
(b) A defendant sentenced under this section ^sor serving a^t
^speriod of confinement^t who would otherwise be sentenced to
confinement in jail ^sor required to serve a period of confinement^t
^sin jail^t may earn good conduct credit in the same manner as
provided by ^uArticle 42.032 of this code^w ^sSection 1, Chapter 461,^t
^sActs of the 54th Legislature, Regular Session, 1955 (Article 5118a,^t
^sVernon's Texas Civil Statutes)^t, but only while actually confined.
^s(c) A sheriff or an employee of a sheriff's department is^t
^snot liable for damages arising from an act or failure to act by the^t
^ssheriff or employee in connection with a work program operated^t
^sunder this section if the act or failure to act was performed in an^t
^sofficial capacity.^t
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Art. 42.035. ELECTRONIC MONITORING^u; HOUSE ARREST^w. (a) A
court in a county served by a ^ucommunity supervision and corrections^w
^udepartment^w ^sdistrict probation office^t that has an electronic
monitoring program approved by the ^ucommunity justice assistance^w
^udivision of the^w Texas ^uDepartment of Criminal Justice^w ^sAdult^t
^sProbation Commission^t may require a defendant to serve all or part
of a sentence of confinement in county jail by submitting to
electronic monitoring rather than being confined in the county
jail.
(b) ^uA judge, at the time of the pronouncement of a sentence^w
^uof confinement or at any time while the defendant is serving the^w
^usentence, on the judge's own motion or on the written motion of the^w
^udefendant, may permit the defendant to serve the sentence under^w
^uhouse arrest, including electronic monitoring and any other^w
^uconditions the court chooses to impose, during the person's^w
^uoff-work hours. The judge may require bail of the defendant to^w
^uensure the faithful performance of the sentence.^w
^u(c) The court may require the defendant to pay to the^w
^ucommunity supervision and corrections department or the county any^w
^ureasonable cost incurred because of the defendant's participation^w
^uin the house arrest program, including the cost of electronic^w
^umonitoring.^w
^u(d)^w A defendant who submits to electronic monitoring ^uor^w
^uparticipates in the house arrest program^w under ^sSubsection (a) of^t
this section discharges a sentence of confinement without
deductions, good conduct time credits, or commutations.
Art. 42.036. COMMUNITY SERVICE. (a) A court may require a
defendant^u, other than a defendant convicted of an offense under^w
^uSections 49.04-49.08, Penal Code,^w to serve all or part of a
sentence of confinement or period of confinement required as a
condition of ^ucommunity supervision^w ^sprobation^t in county jail by
performing community service rather than by being confined in
county jail unless the sentence of confinement was imposed by the
jury in the case.
(b) In its order requiring a defendant to participate in
community service work, the court must specify:
(1) the number of hours the defendant is required to
work; ^uand^w
(2) the entity or organization for which the defendant
is required to work^s;^t
^s(3) the project on which the defendant is required to^t
^swork; and^t
^s(4) whether the district probation department or a^t
^scourt-related services office will perform the administrative^t
^sduties required by the placement of the defendant in the community^t
^sservice program^t.
(c) The court may order the defendant to perform community
service work under this article only for a governmental entity or a
nonprofit organization that provides services to the general public
that enhance social welfare and the general well-being of the
community. A governmental entity or nonprofit organization that
accepts a defendant under this section to perform community service
must agree to supervise the defendant in the performance of the
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defendant's work and report on the defendant's work to the
^ucommunity supervision and corrections^w ^sdistrict probation^t
department or court-related services office.
(d) The court may require bail of a defendant to ensure the
defendant's faithful performance of community service and may
attach conditions to the bail as it determines are proper.
(e) A court may not order a defendant ^uwho is employed^w to
perform more than 16 hours per week of community service under this
^uarticle^w ^ssection^t unless the court determines that requiring the
defendant to work additional hours does not work a hardship on the
defendant or the defendant's dependents. ^uA court may not order a^w
^udefendant who is unemployed to perform more than 32 hours per week^w
^uof community service under this article, but may direct the^w
^udefendant to use the remaining hours of the week to seek^w
^uemployment.^w
(f) A defendant is considered to have served one day in jail
for each eight hours of community service performed under this
^uarticle^w ^ssection^t.
^s(g) An officer or an employee of a governmental entity is^t
^snot liable for damages arising from an act or failure to act by the^t
^sofficer or employee in connection with a community service program^t
^soperated under this section if the act or failure to act was^t
^sperformed in an official capacity.^t
^s(h) A sheriff, employee of a sheriff's department, county^t
^scommissioner, county employee, county judge, employee of a^t
^scommunity corrections and supervision department, restitution^t
^scenter, or officer or employee of a political subdivision other^t
^sthan a county is not liable for damages arising from an act or^t
^sfailure to act in connection with community service performed by an^t
^sinmate pursuant to this article if the act or failure to act:^t
^s(1) was performed pursuant to court order; and^t
^s(2) was not intentional, wilfully or wantonly^t
^snegligent, or performed with conscious indifference or reckless^t
^sdisregard for the safety of others.^t
Art. 42.08. Cumulative or Concurrent Sentence. (a) When
the same defendant has been convicted in two or more cases,
judgment and sentence shall be pronounced in each case in the same
manner as if there had been but one conviction. Except as provided
by Sections (b) and (c) of this article, in the discretion of the
court, the judgment in the second and subsequent convictions may
either be that the sentence imposed or suspended shall begin when
the judgment and the sentence imposed or suspended in the preceding
conviction has ceased to operate, or that the sentence imposed or
suspended shall run concurrently with the other case or cases, and
sentence and execution shall be accordingly; provided, however,
that the cumulative total of suspended sentences in felony cases
shall not exceed 10 years, and the cumulative total of suspended
sentences in misdemeanor cases shall not exceed the maximum period
of ^uconfinement^w ^simprisonment^t in jail applicable to the misdemeanor
offenses, though in no event more than three years, including
extensions of periods of ^ucommunity supervision^w ^sprobation^t under
Section ^u22^w ^s24^t, Article 42.12, of this code, if none of the
offenses are offenses under ^uChapter 49, Penal Code^w ^sArticle^t
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^s6701l-1, Revised Statutes^t, or four years, including extensions, if
any of the offenses are offenses under ^uChapter 49, Penal Code^w
^sArticle 6701l-1, Revised Statutes^t.
(b) If a defendant is sentenced for an offense committed
while the defendant was ^uan inmate^w ^sa prisoner^t in the ^uinstitutional^w
^udivision of the Texas^w Department of ^uCriminal Justice^w ^sCorrections^t
and the defendant has not completed the sentence he was serving at
the time of the offense, the judge shall order the sentence for the
subsequent offense to commence immediately on completion of the
sentence for the original offense.
(c) If a defendant has been convicted in two or more cases
and the court suspends the imposition of the sentence in one of the
cases, the court may not order a sentence of confinement to
commence on the completion of a suspended sentence for an offense.
Art. 42.09. COMMENCEMENT OF SENTENCE^u; STATUS DURING APPEAL;^w
^uPEN PACKET^w ^sAND DELIVERY TO PLACE OF CONFINEMENT^t
Sec. 1. Except as provided in Sections 2 and 3, a defendant
shall be delivered to ^ua^w jail or to the ^uinstitutional division of^w
^uthe Texas^w Department of ^uCriminal Justice^w ^sCorrections^t when his
sentence ^sto imprisonment^t is pronounced, or his sentence to death
is announced, by the court. The defendant's sentence begins to run
on the day it is pronounced, but with all credits, if any, allowed
by Article 42.03.
Sec. 2. If a defendant appeals his conviction and is
released on bail pending disposition of his appeal, when his
conviction is affirmed, the clerk of the trial court, on receipt of
the mandate from the appellate court, shall issue a commitment
against the defendant. The officer executing the commitment shall
endorse thereon the date he takes the defendant into custody and
the defendant's sentence begins to run from the date endorsed on
the commitment. The ^uinstitutional division of the Texas^w Department
of ^uCriminal Justice^w ^sCorrections^t shall admit the defendant named
in the commitment on the basis of the commitment.
Sec. 3. If a defendant is convicted of a felony and
sentenced to death, life, or a term of more than ten years in the
^uinstitutional division of the Texas^w Department of ^uCriminal^w
^uJustice^w ^sCorrections^t and he gives notice of appeal, he shall be
transferred to the ^uinstitutional division^w ^sDepartment of^t
^sCorrections^t on a commitment pending a mandate from the court of
appeals or the Court of Criminal Appeals.
Sec. 4. If a defendant is convicted of a felony and his
sentence is a term of ten years or less and he gives notice of
appeal, he shall be transferred to the ^uinstitutional division of^w
^uthe Texas^w Department of ^uCriminal Justice^w ^sCorrections^t on a
commitment pending a mandate from the court of appeals or the Court
of Criminal Appeals upon request in open court or upon written
request to the sentencing court. Upon a valid transfer to the
^uinstitutional division^w ^sDepartment of Corrections^t under this
section, the defendant may not thereafter be released on bail
pending his appeal.
Sec. 5. If a defendant is transferred to the ^uinstitutional^w
^udivision of the Texas^w Department of ^uCriminal Justice^w ^sCorrections^t
pending appeal under Section 3 or 4, his sentence shall be computed
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as if no appeal had been taken if the appeal is affirmed.
Sec. 6. All defendants who have been transferred to the
^uinstitutional division of the Texas^w Department of ^uCriminal^w
^uJustice^w ^sCorrections^t pending the appeal of their convictions under
this ^uarticle^w ^sArticle,^t shall be under the control and authority of
the ^uinstitutional division^w ^sDepartment of Corrections^t for all
purposes as if no appeal were pending.
Sec. 7. If a defendant is sentenced to a term of
^uimprisonment^w ^sconfinement^t in the ^uinstitutional division of the^w
Texas Department of ^uCriminal Justice^w ^sCorrections^t but is not
transferred to the ^uinstitutional division^w ^sDepartment of^t
^sCorrections^t under Section 3 or 4 of this article, the court,
before the date on which it would lose jurisdiction under Section
^u6(a)^w ^s3e^t, Article 42.12, of this code, shall send to the
department a document containing a statement of the date on which
the defendant's sentence was pronounced and credits earned by the
defendant under ^uArticle^w ^sSection^t 42.03 of this code as of the date
of the statement.
Sec. 8. (a) A county that transfers a defendant to the
^uinstitutional division of the Texas^w Department of ^uCriminal^w
^uJustice^w ^sCorrections^t under this ^uarticle^w ^sArticle^t shall deliver to
the director of the ^udivision^w ^sdepartment^t:
(1) a copy of the judgment entered pursuant to Article
42.01 of this code, completed on a standardized felony judgment
form described by Section 4 of that ^uarticle^w ^sArticle^t;
(2) a copy of any order revoking probation and
imposing sentence pursuant to Section ^u23,^w ^s8 of^t Article 42.12^u,^w of
this code, including:
(A) any amounts owed for restitution, fines, and
court costs, completed on a standardized felony judgment form
described by Section 4^u,^w ^sof^t Article 42.01^u,^w of this code; and
(B) a copy of the client supervision plan
prepared for the defendant by the ^ucommunity supervision and^w
^ucorrections^w ^sadult probation^t department supervising the defendant,
if such a plan was prepared;
(3) a written report that states the nature and the
seriousness of each offense and that states the citation to the
provision or provisions of the Penal Code or other law under which
the defendant was convicted;
(4) a copy of the victim impact statement, if one has
been prepared in the case under Article 56.03 of this code;
(5) a statement as to whether there was a change in
venue in the case and, if so, the names of the county prosecuting
the offense and the county in which the case was tried;
(6) a copy of the record of arrest for each offense;
(7) ^uif requested,^w information regarding the criminal
history of the defendant^u, including the defendant's state^w
^uidentification number if the number has been issued^w;
(8) a copy of the indictment or information for each
offense;
(9) a checklist sent by the department to the county
and completed by the county in a manner indicating that the
documents required by this subsection and Subsection (c) of this
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section accompany the defendant; ^uand^w
(10) ^sa copy of the Criminal Justice Data Report^t
^sprepared under Section 413.018, Government Code; and^t
^s(11)^t a copy of a presentence ^uor postsentence^w
investigation report prepared under Section 9, Article 42.12 of
this code.
(b) The ^uinstitutional division of the Texas^w Department of
^uCriminal Justice^w ^sCorrections^t shall not take a defendant into
custody under this ^uarticle^w ^sArticle^t until the director receives
the documents required by Subsections (a) and (c) of this section.
^uThe director shall certify under the seal of the institutional^w
^udivision the documents received under Subsections (a) and (c) of^w
^uthis section. A document certified under this subsection is^w
^uself-authenticated for the purposes of Rules 901 and 902, Texas^w
^uRules of Criminal Evidence.^w
(c) A county that transfers a defendant to the ^uinstitutional^w
^udivision of the Texas^w Department of ^uCriminal Justice^w ^sCorrections^t
under this ^uarticle^w ^sArticle^t shall also deliver to the director of
the ^udivision^w ^sdepartment^t any presentence ^uor postsentence^w
investigation report, ^sprobation^t revocation report, psychological
or psychiatric evaluation of the defendant, and available social or
psychological background information relating to the defendant and
may deliver to the director any additional information upon which
the judge or jury bases the punishment decision.
(d) The ^uinstitutional division of the Texas^w Department of
^uCriminal Justice^w ^sCorrections^t shall make documents received
under Subsections (a) and (c) of this section available to the
^upardons and paroles division^w ^sBoard of Pardons and Paroles^t on
the request of the ^upardons and paroles division^w ^sboard or its^t
^srepresentative^t.
(e) A county is not required to deliver separate documents
containing information relating to citations to provisions of the
Penal Code or other law and to changes of venue, as otherwise
required by Subsections (a)(3) and (a)(5) of this ^uarticle^w
^sArticle^t, if the standardized felony judgment form described
by Section 4^u,^w ^sof^t Article 42.01^u,^w of this code is modified to
require that information.
(f) Except as provided by Subsection (g) of this section,
the county sheriff is responsible for ensuring that documents and
information required by this section accompany defendants sentenced
by district courts in the county to terms of ^uimprisonment^w
^sconfinement^t in the ^uinstitutional division of the^w Texas
Department of ^uCriminal Justice^w ^sCorrections^t.
(g) If the presiding judge of the administrative judicial
region in which the county is located determines that the county
sheriff is unable to perform the duties required by Subsection (f)
of this section, the presiding judge may impose those duties on:
(1) the district clerk; or
(2) the prosecutor of each district court in the
county.
(h) If ^ua parole panel^w ^sthe board^t releases on parole a
person who is confined in a jail in this state, a federal
correctional institution, or a correctional institution in another
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state, the ^upardons and paroles division of the Texas Department of^w
^uCriminal Justice^w ^sBoard of Pardons and Paroles^t shall request the
sheriff who would otherwise be required to transfer the person to
the ^uinstitutional division^w ^sTexas Department of Corrections^t to
forward to ^uboth divisions^w ^sthe board and to the department^t the
information described by Subsections (a) and (c) of this section.
The sheriff shall comply with the request of the ^upardons and^w
^uparoles division^w ^sboard^t. The ^upardons and paroles division^w ^sboard^t
shall determine whether the information forwarded by the sheriff
under this subsection contains a ^uthumbprint taken^w ^sfingerprint^t
from the person ^uin the manner provided by Article 38.33 of this^w
^ucode^w and, if not, the ^udivision^w ^sboard^t shall obtain a ^uthumbprint^w
^utaken in the manner provided by that article^w ^s10-finger print from^t
^sthe person, either by use of the ink-rolled print method or by use^t
^sof a live-scanning device that prints the fingerprint image on^t
^spaper,^t and shall forward the ^uthumbprint^w ^s10-finger print^t to the
^uinstitutional division^w ^sdepartment^t for inclusion with the
information sent by the sheriff.
^u(i) A county may deliver the documents required under^w
^uSubsections (a) and (c) of this section to the institutional^w
^udivision of the Texas Department of Criminal Justice by electronic^w
^umeans. For purposes of this subsection, "electronic means" means^w
^uthe transmission of data between word processors, data processors,^w
^uor similar automated information equipment over dedicated cables,^w
^ucommercial lines, or other similar methods of transmission.^w
^uArt. 42.20. IMMUNITIES. (a) An individual listed in^w
^uSubsection (c) of this article and the governmental entity that the^w
^uindividual serves as an officer or employee are not liable for^w
^udamages arising from an act or failure to act by the individual or^w
^ugovernmental entity in connection with a community service program^w
^uor work program established under this chapter if the act or^w
^ufailure to act:^w
^u(1) was performed pursuant to a court order or was^w
^uotherwise performed in an official capacity; and^w
^u(2) was not performed with conscious indifference for^w
^uthe safety of others.^w
^u(b) Chapter 101, Civil Practice and Remedies Code, does not^w
^uapply to a claim based on an act or a failure to act of an^w
^uindividual listed in Subsection (c) of this article or a^w
^ugovernmental entity the officer serves as an officer or employee if^w
^uthe act or failure to act is in connection with a program described^w
^uby Subsection (a) of this article.^w
^u(c) This article applies to:^w
^u(1) a director or employee of a community supervision^w
^uand corrections department or a community corrections facility;^w
^u(2) a sheriff or employee of a sheriff's department;^w
^u(3) a county judge, county commissioner, or county^w
^uemployee;^w
^u(4) an officer or employee of a state agency; or^w
^u(5) an officer or employee of a political subdivision^w
^uother than a county.^w
SECTION 5.04. Chapter 43, Code of Criminal Procedure, is
amended by amending Articles 43.01, 43.03, 43.09, 43.10, 43.101,
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43.11, and 43.12 and adding Article 43.131 to read as follows:
Art. 43.01. Discharging Judgment for Fine. (a) When the
sentence against an individual defendant is for fine and costs, he
shall be discharged from the same:
(1) when the amount thereof has been fully paid; ^sor^t
(2) when remitted by the proper authority; ^sor^t
(3) when he has remained in custody for the time
required by law to satisfy the amount thereof^u; or^w
^u(4) when the defendant has discharged the amount of^w
^ufines and costs in any other manner permitted by this code^w.
(b) When the sentence against a defendant corporation or
association is for fine and costs, it shall be discharged from
same:
(1) when the amount thereof has been fully paid; ^sor^t
(2) when the execution against the corporation or
association has been fully satisfied; or
(3) when the judgment has been fully satisfied in any
other manner.
Art. 43.03. Payment of Fine. (a) If a defendant is
sentenced to pay a fine or costs or both and he defaults in
payment, the court ^uafter a hearing under Subsection (d) of this^w
^uarticle^w may order him ^uconfined^w ^simprisoned^t in jail until
discharged as provided by law ^uor may order him to discharge the^w
^ufines and costs in any other manner provided by Article 43.09 of^w
^uthis code^w. A certified copy of the judgment, sentence, and order
is sufficient to authorize ^uconfinement under this subsection^w ^ssuch^t
^simprisonment^t.
(b) A term of ^uconfinement^w ^simprisonment^t for default in
payment of fine or costs or both may not exceed the maximum term of
^uconfinement^w ^simprisonment^t authorized for the offense for which ^uthe^w
defendant was sentenced to pay the fine or costs or both. ^uIf a^w
^ucourt orders a term of confinement for default in payment of fines^w
^uor costs under this article at a time during which a defendant is^w
^userving another term of confinement for default or is serving a^w
^uterm of confinement for conviction of an offense, the term of^w
^uconfinement for default runs concurrently with the other term of^w
^uconfinement, unless the court orders the terms to run consecutively^w
^uunder Article 42.08 of this code.^w
(c) If a defendant is sentenced both to ^uconfinement^w
^simprisonment^t and to pay a fine or costs or both, and he
defaults in payment of either, a term of ^uconfinement^w ^simprisonment^t
for the default, when combined with the term of ^uconfinement^w
^simprisonment^t already assessed, may not exceed the maximum term
of ^uconfinement^w ^simprisonment^t authorized for the offense for which
^uthe^w defendant was sentenced.
^u(d) A court may not order a defendant confined under^w
^uSubsection (a) of this article unless the court at a hearing:^w
^u(1) determines that the defendant is not indigent or^w
^udetermines that the defendant wilfully refused to pay or failed to^w
^umake sufficient bona fide efforts legally to acquire the resources^w
^uto pay and enters that determination in writing in the court^w
^udocket; and^w
^u(2) determines that no alternative method of^w
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^udischarging fines and costs provided by Article 43.09 of this code^w
^uis appropriate for the defendant.^w
Art. 43.09. Fine Discharged. (a) When a defendant is
convicted of a misdemeanor and his punishment is assessed at a
pecuniary fine, if he is unable to pay the fine and costs adjudged
against him, he may for such time as will satisfy the judgment be
put to work in the workhouse, or on the county farm, or public
improvements of the county or a political subdivision located in
whole or in part in the county, as provided in the succeeding
^uarticle^w ^sArticle^t; or if there be no such workhouse, farm or
improvements, he shall be ^uconfined^w ^simprisoned^t in jail for a
sufficient length of time to discharge the full amount of fine and
costs adjudged against him; rating such ^uconfinement^w ^simprisonment^t
at $50 for each day and rating such labor at $50 for each day;
provided, however, that the defendant may pay the pecuniary fine
assessed against him at any time while he is serving at work in the
workhouse, or on the county farm, or on the public improvements of
the county or a political subdivision located in whole or in part
in the county, or while he is serving his jail sentence, and in
such instances he shall be entitled to the credit he has earned
under this subsection during the time that he has served and he
shall only be required to pay his balance of the pecuniary fine
assessed against him. A defendant who performs labor under this
article during a day in which he is ^uconfined^w ^simprisoned^t is
entitled to both the credit for ^uconfinement^w ^simprisonment^t and the
credit for labor provided by this article.
(b) In its discretion, the court may order that for each
day's confinement served by a defendant under this ^uarticle^w
^sArticle^t, the defendant receive credit toward payment of the
pecuniary fine and credit toward payment of costs adjudged against
the defendant. Additionally, the court may order that the
defendant receive credit under this ^uarticle^w ^sArticle^t for each
day's confinement served by the defendant as punishment for the
offense.
(c) In its discretion, the court may order that a defendant
serving concurrent, but not consecutive, sentences for two or more
misdemeanors may, for each day served, receive credit toward the
satisfaction of costs and fines imposed for each separate offense.
(d) Notwithstanding any other provision of this article, in
its discretion, the court or the sheriff of the county may grant an
additional two days credit for each day served to any inmate
participating in an approved work program under this article or a
rehabilitation, restitution, or education program.
(e) A court in a county served by a community supervision
and corrections department that has an electronic monitoring
program approved by the community justice assistance division of
the Texas Department of Criminal Justice may require a defendant
who is unable to pay a fine or costs to discharge all or part of
the fine or costs by submitting to electronic monitoring. A
defendant that submits to electronic monitoring under this
subsection discharges fines and costs in the same manner as if the
defendant were confined in county jail.
(f) A court may require a defendant who is unable to pay a
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fine or costs to discharge all or part of the fine or costs by
performing community service.
(g) In its order requiring a defendant to participate in
community service work under Subsection (f) of this article, the
court must specify:
(1) the number of hours the defendant is required to
work; ^uand^w
(2) ^sthe entity or organization for which the^t
^sdefendant is required to work;^t
^s(3) the project on which the defendant is required to^t
^swork; and^t
^s(4)^t whether the ^ucommunity supervision and^w
^ucorrections^w ^sdistrict probation^t department or a court-related
services office will perform the administrative duties required by
the placement of the defendant in the community service program.
(h) The court may order the defendant to perform community
service work under Subsection (f) of this article only for a
governmental entity or a nonprofit organization that provides
services to the general public that enhance social welfare and the
general well-being of the community. A governmental entity or
nonprofit organization that accepts a defendant under Subsection
(f) of this article to perform community service must agree to
supervise the defendant in the performance of the defendant's work
and report on the defendant's work to the district probation
department or court-related services office.
(i) The court may require bail of a defendant to ensure the
defendant's faithful performance of community service under
Subsection (f) of this article and may attach conditions to the
bail as it determines are proper.
(j) A court may not order a defendant to perform more than
16 hours per week of community service under Subsection (f) of this
article unless the court determines that requiring the defendant to
work additional hours does not work a hardship on the defendant or
the defendant's dependents.
(k) A defendant is considered to have discharged $50 of
fines or costs for each eight hours of community service performed
under Subsection (f) of this article.
^s(l) A sheriff, employee of a sheriff's department, county^t
^scommissioner, county employee, county judge, an employee of a^t
^scommunity corrections and supervision department, restitution^t
^scenter, or officer or employee of a political subdivision other^t
^sthan a county is not liable for damages arising from an act or^t
^sfailure to act in connection with manual labor performed by an^t
^sinmate pursuant to this article if the act or failure to act:^t
^s(1) was performed pursuant to court order; and^t
^s(2) was not intentional, wilfully or wantonly^t
^snegligent, or performed with conscious indifference or reckless^t
^sdisregard for the safety of others.^t
Art. 43.10. ^sTo Do^t Manual Labor. ^s(a)^t Where the
punishment assessed in a conviction for misdemeanor is confinement
in jail for more than one day, or where in such conviction the
punishment is assessed only at a pecuniary fine and the party so
convicted is unable to pay the fine and costs adjudged against him,
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or where the party convicted is required to serve a period of
confinement as a condition of ^ucommunity supervision^w ^sprobation^t,
the party convicted or required to serve the period of confinement
shall be required to do manual labor in accordance with the
provisions of this ^uarticle^w ^sArticle^t under the following rules and
regulations:
1. Each commissioners court may provide for the
erection of a workhouse and the establishment of a county farm in
connection therewith for the purpose of utilizing the labor of said
parties so convicted or required to serve a period of confinement;
2. Such farms and workhouses shall be under the
control and management of the sheriff, and the sheriff may adopt
such rules and regulations not inconsistent with the rules and
regulations of the Texas Commission on Jail Standards and with the
laws as the sheriff deems necessary;
3. Such overseers and guards may be employed by the
sheriff under the authority of the commissioners court as may be
necessary to prevent escapes and to enforce such labor, and they
shall be paid out of the county treasury such compensation as the
commissioners court may prescribe;
4. They shall be put to labor upon public works,
including public works for a political subdivision located in whole
or in part in the county;
5. One who from age, disease, or other physical or
mental disability is unable to do manual labor shall not be
required to work. His inability to do manual labor may be
determined by a physician appointed for that purpose by the county
judge or the commissioners court, who shall be paid for such
service such compensation as said court may allow; and
6. For each day of manual labor, in addition to any
other credits allowed by law, a ^udefendant^w ^sprisoner^t is entitled to
have one day deducted from each sentence or period of confinement
he is serving. The deduction authorized by this article, when
combined with the deduction required by Article 42.10, Code of
Criminal Procedure, may not exceed two-thirds (2/3) of the sentence
or period of confinement.
^s(b) A sheriff, employee of a sheriff's department, county^t
^scommissioner, county employee, county judge, and employee of a^t
^scommunity corrections and supervision department, restitution^t
^scenter, or officer or employee of a political subdivision other^t
^sthan a county is not liable for damages arising from an act or^t
^sfailure to act in connection with manual labor performed by an^t
^sinmate pursuant to this article if the act or failure to act:^t
^s(1) was performed pursuant to court order; and^t
^s(2) was not intentional, wilfully or wantonly^t
^snegligent, or performed with conscious indifference or reckless^t
^sdisregard for the safety of others.^t
Art. 43.101. Voluntary Work ^sby Pretrial Detainees^t. (a) A
defendant confined in county jail awaiting trial ^uor a defendant^w
^uconfined in county jail after conviction of a felony and awaiting^w
^utransfer to the institutional division of the Texas Department of^w
^uCriminal Justice^w may volunteer to participate in any work program
operated by the sheriff that uses the labor of convicted
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defendants.
(b) The sheriff may accept a defendant as a volunteer under
Subsection (a) of this section if the defendant is not awaiting
trial for an offense involving violence ^uor is not awaiting transfer^w
^uto the institutional division of the Texas Department of Criminal^w
^uJustice after conviction of a felony involving violence^w, and if the
sheriff determines that the inmate has not engaged previously in
violent conduct and does not pose a security risk to the general
public if allowed to participate in the work program.
(c) ^uA defendant participating in a work program under this^w
^usection is not a state employee for the purposes of Article 8309g^w
^uor 8309h, Revised Statutes.^w ^sThe limitations on liability of a^t
^scounty for damages suffered by an inmate participating in a work^t
^sprogram operated by the sheriff apply to a defendant who volunteers^t
^sunder Subsection (a) of this article in the same manner as if the^t
^sinmate were participating in the program after conviction of an^t
^soffense.^t
Art. 43.11. Authority for ^uConfinement^w ^sImprisonment^t. When,
by the judgment and sentence of the court, a defendant is to be
^uconfined^w ^simprisoned^t in jail, a certified copy of such judgment
and sentence shall be sufficient authority for the sheriff to place
such defendant in jail.
Art. 43.12. Capias for ^uConfinement^w ^sImprisonment^t. A capias
issued for the arrest and commitment of one convicted of a
misdemeanor, the penalty of which or any part thereof is ^ua fine^w
^simprisonment in jail^t, shall recite the judgment and sentence
and command the sheriff to ^uimmediately bring^w ^splace^t the defendant
^ubefore the court^w ^sin jail, to remain the length of time therein^t
^sfixed^t; and this writ shall be sufficient to authorize the sheriff
to place ^uthe^w ^ssuch^t defendant in jail ^uuntil the defendant appears^w
^ubefore the court^w.
^uArt. 43.131. IMMUNITIES. (a) An individual listed in^w
^uSubsection (c) of this article and the governmental entity that the^w
^uindividual serves as an officer or employee are not liable for^w
^udamages arising from an act or failure to act by the individual or^w
^ugovernmental entity in connection with a community service program^w
^uor work program established under this chapter if the act or^w
^ufailure to act:^w
^u(1) was performed pursuant to a court order or was^w
^uotherwise performed in an official capacity; and^w
^u(2) was not performed with conscious indifference for^w
^uthe safety of others.^w
^u(b) Chapter 101, Civil Practice and Remedies Code, does not^w
^uapply to a claim based on an act or a failure to act of an^w
^uindividual listed in Subsection (c) of this article or a^w
^ugovernmental entity the officer serves as an officer or employee if^w
^uthe act or failure to act is in connection with a program described^w
^uby Subsection (a) of this article.^w
^u(c) This article applies to:^w
^u(1) a director or employee of a community supervision^w
^uand corrections department or a community corrections facility;^w
^u(2) a sheriff or employee of a sheriff's department;^w
^u(3) a county judge, county commissioner, or county^w
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^uemployee;^w
^u(4) an officer or employee of a state agency; or^w
^u(5) an officer or employee of a political subdivision^w
^uother than a county.^w
SECTION 5.05. Section 3(a), Article 37.07, Code of Criminal
Procedure, is amended to read as follows:
(a) Regardless of the plea and whether the punishment be
assessed by the judge or the jury, evidence may^s, as permitted by^t
^sthe Rules of Evidence,^t be offered by the state and the defendant
as to any matter the court deems relevant to sentencing, including
^ubut not limited to^w the prior criminal record of the defendant,
his general reputation^u,^w ^sand^t his character^u, an opinion regarding^w
^uhis character, the circumstances of the offense for which he is^w
^ubeing tried, and, notwithstanding Rules 404 and 405, Texas Rules of^w
^uCriminal Evidence, any other evidence of an extraneous crime or bad^w
^uact that is shown beyond a reasonable doubt by evidence to have^w
^ubeen committed by the defendant or for which he could be held^w
^ucriminally responsible, regardless of whether he has previously^w
^ubeen charged with or finally convicted of the crime or act^w. ^sThe^t
^sterm prior criminal record means a final conviction in a court of^t
^srecord, or a probated or suspended sentence that has occurred prior^t
^sto trial, or any final conviction material to the offense charged.^t
A court may consider as a factor in mitigating punishment the
conduct of a defendant while participating in a program under
^uChapter 17^w ^sArticle 17.40 or 17.42(a)^t of this code as a
condition of release on bail. Additionally, notwithstanding Rule
609(d), Texas Rules of Criminal Evidence, evidence may be offered
by the state and the defendant of an adjudication of delinquency
based on a violation by the defendant of a penal law of the grade
of felony unless:
(1) the adjudication is based on conduct committed
more than five years before the commission of the offense for which
the person is being tried; and
(2) in the five years preceding the date of the
commission of the offense for which the person is being tried, the
person did not engage in conduct for which the person has been
adjudicated as a delinquent child or a child in need of supervision
and did not commit an offense for which the person has been
convicted.
SECTION 5.06. Section 3, Article 37.07, Code of Criminal
Procedure, is amended by adding Subsection (g) to read as follows:
^u(g) On timely request of the defendant, notice of intent to^w
^uintroduce evidence under this article shall be given in the same^w
^umanner required by Rule 404(b), Texas Rules of Criminal Evidence.^w
^uIf the attorney representing the state intends to introduce an^w
^uextraneous crime or bad act that has not resulted in a final^w
^uconviction in a court of record or a probated or suspended^w
^usentence, notice of that intent is reasonable only if the notice^w
^uincludes the date on which and the county in which the alleged^w
^ucrime or bad act occurred and the name of the alleged victim of the^w
^ucrime or bad act. The requirement under this subsection that the^w
^uattorney representing the state give notice applies only if the^w
^udefendant makes a timely request to the attorney representing the^w
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^ustate for the notice.^w
SECTION 5.07. Article 45.54, Code of Criminal Procedure, is
amended to read as follows:
Art. 45.54. SUSPENSION OF SENTENCE AND DEFERRAL OF FINAL
DISPOSITION. (1) On a plea of guilty or nolo contendere by a
defendant or on a finding of guilt in a misdemeanor case punishable
by fine only and payment of all court costs, the justice may defer
further proceedings without entering an adjudication of guilt and
place the defendant on probation for a period not to exceed 180
days. This article does not apply to a misdemeanor case disposed
of by Section 143A, Uniform Act Regulating Traffic on Highways
(Article 6701d, Vernon's Texas Civil Statutes), or a serious
traffic violation as defined in Section 3(26), Texas Commercial
Driver's License Act (Article 6687b-2, Revised Statutes).
(2) During the deferral period, the justice shall require
the defendant to successfully complete a Central Education
Agency-approved driving safety course, if the offense alleged is an
offense involving the operation of a motor vehicle, other than a
commercial motor vehicle, as defined in Subdivision (6), Section 3,
Texas Commercial Driver's License Act (Article 6687b-2, Revised
Statutes)^u, and the defendant:^w
^u(A) has completed an approved driving safety course^w
^uwithin the preceding 12 months; or^w
^u(B) is a first-time offender who elects deferred^w
^uadjudication^w.
(3) During said deferral period, the justice may require the
defendant to:
(a) post a bond in the amount of the fine assessed to
secure payment of the fine;
(b) pay restitution to the victim of the offense in an
amount not to exceed the fine assessed;
(c) submit to professional counseling; ^sand^t
(d) comply with any other reasonable condition^u; and^w
^u(e) require the defendant to successfully complete a^w
^uCentral Education Agency approved driving safety course, if:^w
^u(1) the offense alleged is an offense involving^w
^uthe operation of a motor vehicle, other than a commercial motor^w
^uvehicle, as defined in Subdivision (6), Section 3, Texas Commercial^w
^uDriver's License Act (Article 6687b-2, Revised Statutes); and^w
^u(2) the defendant has not completed an approved^w
^udriving safety course within the preceding 12 months^w.
(4) At the conclusion of the deferral period, if the
defendant presents satisfactory evidence that he has complied with
the requirements imposed, the justice shall dismiss the complaint,
and it shall be clearly noted in the docket that the complaint is
dismissed and that there is not a final conviction. Otherwise, the
justice may proceed with an adjudication of guilt. After an
adjudication of guilt, the justice may reduce the fine assessed or
may then impose the fine assessed, less any portion of the assessed
fine that has been paid. If the complaint is dismissed, a special
expense not to exceed the amount of the fine assessed may be
imposed.
(5) If at the conclusion of the deferral period the
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defendant does not present satisfactory evidence that the defendant
complied with the requirements imposed, the justice may impose the
fine assessed or impose a lesser fine. The imposition of the fine
or lesser fine constitutes a final conviction of the defendant.
(6) Records relating to a complaint dismissed as provided by
this article may be expunged under Article 55.01 of this code. If
a complaint is dismissed under this article, there is not a final
conviction and the complaint may not be used against the person for
any purpose.
SECTION 5.08. From the effective date of this article to
September 1, 1994, a reference in an article of the Code of
Criminal Procedure, as amended by this article, to an offense under
Chapter 49, Penal Code, shall be construed as a reference to the
offense and the punishment provision for the offense as they
existed before the effective date of Article 1 of this Act.
SECTION 5.09. (a) The change in law made by this article
applies only to an offense committed on or after the effective date
of this article. For purposes of this section, an offense is
committed before the effective date of this article if any element
of the offense occurs before the effective date.
(b) An offense committed before the effective date of this
article is covered by the law in effect when the offense was
committed, and the former law is continued in effect for that
purpose.
SECTION 5.10. This article takes effect on September 1,
1993.
ARTICLE 6
SECTION 6.01. Subsection (b), Section 8, Article 42.18, Code
of Criminal Procedure, is amended to read as follows:
(b)(1) A prisoner under sentence of death is not eligible
for parole.
(2) If a prisoner is serving a life sentence for a
capital felony, the prisoner is not eligible for release on parole
until the actual calendar time the prisoner has served, without
consideration of good conduct time, equals ^u40^w ^s35^t calendar years.
(3) If a prisoner is serving a sentence for the
offenses listed in Subdivision (1)^u(A)^w^s(B)^t, (C), ^sor^t (D)^u, (E), or^w
^u(F)^w of Section 3g(a), Article 42.12 of this code, or if the
judgment contains an affirmative finding under Subdivision (2) of
Subsection (a) of Section 3g of that article, he is not eligible
for release on parole until his actual calendar time served,
without consideration of good conduct time, equals ^uone-half^w
^sone-fourth^t of the maximum sentence or ^u30^w ^s15^t calendar years,
whichever is less, but in no event shall he be eligible for release
on parole in less than two calendar years.
(4) Except as provided by Subsection (m) of this
section, all other prisoners shall be eligible for release on
parole when their calendar time served plus good conduct time
equals one-fourth of the maximum sentence imposed or 15 years,
whichever is less.
SECTION 6.02. Section 8(c), Article 42.18, Code of Criminal
Procedure, is amended to read as follows:
(c) Except as otherwise provided by this subsection, a
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prisoner who is not on parole shall be released to mandatory
supervision by order of a parole panel when the calendar time he
has served plus any accrued good conduct time equal the maximum
term to which he was sentenced. A prisoner released to mandatory
supervision shall, upon release, be deemed as if released on
parole. To the extent practicable, arrangements for the prisoner's
proper employment, maintenance, and care shall be made prior to his
release to mandatory supervision. The period of mandatory
supervision shall be for a period equivalent to the maximum term
for which the prisoner was sentenced less calendar time actually
served on the sentence. The time served on mandatory supervision
is calculated as calendar time. Every prisoner while on mandatory
supervision shall remain in the legal custody of the state and
shall be amenable to conditions of supervision ordered by the
parole panel. A prisoner may not be released to mandatory
supervision if the prisoner is serving a sentence for an offense
and the judgment for the offense contains an affirmative finding
under Subdivision (2), Subsection (a), Section 3g, Article 42.12,
of this code or if the prisoner is serving a sentence for:
(1) a first degree felony under Section 19.02, Penal
Code (Murder);
(2) a capital felony under Section 19.03, Penal Code
(Capital Murder);
(3) a first degree felony or a second degree felony
under Section 20.04, Penal Code (Aggravated Kidnapping);
(4) a second degree felony under Section 22.011, Penal
Code (Sexual Assault);
(5) a second degree or ^ufirst^w ^sthird^t degree felony
under Section 22.02, Penal Code (Aggravated Assault);
(6) a first degree felony under Section 22.021, Penal
Code (Aggravated Sexual Assault);
(7) ^sa first degree felony under Section 22.03, Penal^t
^sCode (Deadly Assault on Law Enforcement or Corrections Officer or^t
^sCourt Participant);^t
^s(8)^t a first degree felony under Section 22.04, Penal
Code (Injury to a Child or an Elderly Individual);
^u(8)^w ^s(9)^t a first degree felony under Section 28.02,
Penal Code (Arson);
^u(9)^w ^s(10)^t a second degree felony under Section 29.02,
Penal Code (Robbery);
^u(10)^w ^s(11)^t a first degree felony under Section 29.03,
Penal Code (Aggravated Robbery); or
^u(11)^w ^s(12)^t a first degree felony under Section 30.02,
Penal Code (Burglary), if the offense is punished under Subsection
(d)(2) or (d)(3) of that section.
SECTION 6.03. Section 7, Article 42.18, Code of Criminal
Procedure, is amended by amending Subsection (e) and adding
Subsection (g) to read as follows:
(e) ^uExcept as provided by Subsection (g) of this section, in^w
^sIn^t matters of parole, release to mandatory supervision, and
revocation of parole or mandatory supervision, the board members
shall act in panels comprised of three persons in each panel. The
composition of the respective panels shall be designated by the
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chairman of the board. A majority of each panel shall constitute a
quorum for the transaction of its business, and its decisions shall
be by majority vote.
^u(g) The board may grant parole to a person convicted of a^w
^ucapital felony only on a two-thirds vote of the entire membership^w
^uof the board.^w
SECTION 6.04. (a) The change in law made by this article to
Article 42.18, Code of Criminal Procedure, applies only to a
defendant sentenced for an offense committed on or after the
effective date of this article. A defendant sentenced for an
offense committed before the effective date of this article is
covered by the law in effect when the offense was committed, and
the former law is continued in effect for this purpose.
(b) For the purposes of this section, an offense is
committed before the effective date of this article if any element
of the offense occurs before that date.
SECTION 6.05. This article takes effect September 1, 1993.
ARTICLE 7
SECTION 7.01. (a) Chapter 48, Code of Criminal Procedure,
is amended by adding Article 48.05 to read as follows:
^uArt. 48.05. RESTORATION OF CIVIL RIGHTS. (a) An individual^w
^uconvicted of a federal offense other than an offense involving^w
^uviolence or the threat of violence or involving drugs or firearms^w
^umay, except as provided by Subsection (b) of this article, submit^w
^uan application for restoration of any civil rights forfeited under^w
^uthe laws of this state as a result of the conviction.^w
^u(b) An individual may not apply for restoration of civil^w
^urights under this article unless:^w
^u(1) the individual has completed the sentence for the^w
^ufederal offense;^w
^u(2) the conviction occurred three or more years before^w
^uthe date of application; and^w
^u(3) the individual has not been convicted at any other^w
^utime of an offense under the laws of this state, another state, or^w
^uthe United States.^w
^u(c) An application for restoration of civil rights must^w
^ucontain:^w
^u(1) a completed application on a form adopted by the^w
^uBoard of Pardons and Paroles;^w
^u(2) three or more affidavits attesting to the good^w
^ucharacter of the applicant; and^w
^u(3) proof that the applicant has completed the^w
^usentence for the federal offense.^w
^u(d) The applicant must submit the application to:^w
^u(1) the sheriff of the county in which the applicant^w
^uresides at the time of application or resided at the time of^w
^uconviction of the federal offense, if the individual resided in^w
^uthis state at that time; or^w
^u(2) the Board of Pardons and Paroles.^w
^u(e) If an application is submitted to a sheriff, the sheriff^w
^ushall review the application and recommend to the Board of Pardons^w
^uand Paroles whether the individual's civil rights should be^w
^urestored. If the sheriff recommends restoration of the^w
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^uindividual's civil rights, the board may either:^w
^u(1) concur in the recommendation and forward the^w
^urecommendation to the governor; or^w
^u(2) independently review the application to determine^w
^uwhether to recommend to the governor the restoration of the^w
^uindividual's civil rights.^w
^u(f) If the sheriff does not recommend the restoration of the^w
^uindividual's civil rights, the individual may apply directly to the^w
^uBoard of Pardons and Paroles.^w
^u(g) If an application is submitted to the Board of Pardons^w
^uand Paroles without first being submitted to a sheriff, the board^w
^ushall review the application and recommend to the governor as to^w
^uwhether the individual's civil rights should be restored.^w
^u(h) The Board of Pardons and Paroles may require or obtain^w
^uadditional information as necessary to perform a review under^w
^uSubsection (e)(2) or Subsection (g) of this article.^w
^u(i) On receipt from the Board of Pardons and Paroles of a^w
^urecommendation to restore the civil rights of an individual, the^w
^ugovernor may either grant or deny the restoration of civil rights^w
^uto the individual. If the governor grants the restoration of civil^w
^urights to the individual, the governor shall issue a certificate of^w
^urestoration of civil rights.^w
^u(j) If an application under this article is denied by the^w
^uBoard of Pardons and Paroles or the governor, the individual may^w
^unot file another application under this article before the first^w
^uanniversary of the date of the denial.^w
^u(k) A restoration of civil rights under this article is a^w
^uform of pardon that restores all civil rights under the laws of^w
^uthis state that an individual forfeits as a result of the^w
^uindividual's conviction of a federal offense, except as^w
^uspecifically provided in the certificate of restoration.^w
(b) Article 48.05, Code of Criminal Procedure, as added by
this article, applies to an individual convicted of a federal
offense committed before, on, or after the effective date of this
Act.
SECTION 7.02. (a) Article 55.01, Code of Criminal
Procedure, is amended to read as follows:
Art. 55.01. Right to Expunction. ^u(a)^w A person who has been
arrested for commission of either a felony or misdemeanor is
entitled to have all records and files relating to the arrest
expunged if^u:^w
^u(1) the person is tried for the offense for which the^w
^uperson was arrested and is:^w
^u(A) acquitted by the trial court; or^w
^u(B) convicted and subsequently pardoned; or^w
^u(2)^w each of the following conditions exist:
^u(A)^w ^s(1)^t an indictment or information charging
him with commission of a felony has not been presented against him
for an offense arising out of the transaction for which he was
arrested or, if an indictment or information charging him with
commission of a felony was presented, it has been dismissed and the
court finds that it was dismissed because the presentment had been
made because of mistake, false information, or other similar reason
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indicating absence of probable cause at the time of the dismissal
to believe the person committed the offense or because it was void;
^u(B)^w ^s(2)^t he has been released and the charge,
if any, has not resulted in a final conviction and^s,^t is no longer
pending and there was no court ordered probation under Article
42.12, Code of Criminal Procedure, nor a conditional discharge
under Section 481.109, Health and Safety Code; and
^u(C)^w ^s(3)^t he has not been convicted of a felony
in the five years preceding the date of the arrest.
^u(b) A district court may expunge all records and files^w
^urelating to the arrest of a person who has been arrested for^w
^ucommission of a felony or misdemeanor under the procedure^w
^uestablished under Article 55.02 of this code if the person is:^w
^u(1) tried for the offense for which the person was^w
^uarrested;^w
^u(2) convicted of the offense; and^w
^u(3) acquitted by the court of criminal appeals.^w
(b) The change in law to Article 55.01, Code of Criminal
Procedure, made by this article permitting expunctions for persons
acquitted of or pardoned for offenses applies to a defendant
acquitted of or pardoned for an offense regardless of whether the
offense was committed before, on, or after the effective date of
this article.
SECTION 7.03. Chapter 38, Code of Criminal Procedure, is
amended by adding Article 38.36 to read as follows:
^uArt. 38.36. EVIDENCE IN PROSECUTIONS FOR MURDER. (a) In^w
^uall prosecutions for murder, the state or the defendant shall be^w
^upermitted to offer testimony as to all relevant facts and^w
^ucircumstances surrounding the killing and the previous relationship^w
^uexisting between the accused and the deceased, together with all^w
^urelevant facts and circumstances going to show the condition of the^w
^umind of the accused at the time of the offense.^w
^u(b) In a prosecution for murder, if a defendant raises as a^w
^udefense a justification provided by Section 9.31, 9.32, or 9.33,^w
^uPenal Code, the defendant, in order to establish the defendant's^w
^ureasonable belief that use of force or deadly force was immediately^w
^unecessary, shall be permitted to offer:^w
^u(1) relevant evidence that the defendant had been the^w
^uvictim of acts of family violence committed by the deceased, as^w
^ufamily violence is defined by Section 71.01, Family Code; and^w
^u(2) relevant expert testimony regarding the condition^w
^uof the mind of the defendant at the time of the offense, including^w
^uthose relevant facts and circumstances relating to family violence^w
^uthat are the basis of the expert's opinion.^w
SECTION 7.04. Section 14, Chapter 652, Acts of the 72nd
Legislature, Regular Session, 1991, is repealed.
SECTION 7.05. (a) Except as provided by Subsection (b) of
this section, this article takes effect September 1, 1993.
(b) Section 7.03 of this article takes effect September 1,
1994.
ARTICLE 8
SECTION 8.01. Article 5.05, Code of Criminal Procedure, is
amended by amending Subsection (a) and adding Subsection (e) to
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read as follows:
(a) A peace officer who ^uinvestigates a family violence^w
^uincident or who responds to a disturbance call that may involve^w
^shas reason to believe that an offense involving^t family violence
^shas occurred^t shall make a written report, including but not
limited to:
(1) the names of the suspect and complainant;
(2) the date, time, and location of the incident;
(3) any visible or reported injuries; and
(4) a description of the incident and a statement of
its disposition.
^u(e) A peace officer who makes a report under Subsection (a)^w
^uof this article shall provide information concerning the incident^w
^uor disturbance to the bureau of identification and records of the^w
^uDepartment of Public Safety for its recordkeeping function under^w
^uSection 411.042, Government Code. The bureau shall prescribe the^w
^uform and nature of the information required to be reported to the^w
^ubureau by this article.^w
SECTION 8.02. This article takes effect September 1, 1993.
ARTICLE 9
SECTION 9.01. Chapter 42, Code of Criminal Procedure, is
amended by adding Article 42.013 to read as follows:
^uArt. 42.013. FINDING OF FAMILY VIOLENCE. In the trial of an^w
^uoffense under Title 5, Penal Code, if the court determines that the^w
^uoffense involved family violence, as defined by Section 71.01,^w
^uFamily Code, the court shall make an affirmative finding of that^w
^ufact and enter the affirmative finding in the judgment of the case.^w
SECTION 9.02. Article 42.01, Code of Criminal Procedure, is
amended by adding Section 5 to read as follows:
^uSec. 5. In addition to the information described by Section^w
^u1 of this article, the judgment should reflect affirmative findings^w
^uentered pursuant to Article 42.013 of this code.^w
SECTION 9.03. This article takes effect September 1, 1993.
ARTICLE 10
SECTION 10.01. Article 24.03, Code of Criminal Procedure, is
amended to read as follows:
Art. 24.03. SUBPOENA AND APPLICATION THEREFOR. ^u(a)^w Before
the clerk or his deputy shall be required or permitted to issue a
subpoena in any felony case pending in any district or criminal
district court of this State of which he is clerk or deputy, the
defendant or his attorney or the State's attorney shall make
written, sworn application to such clerk for each witness desired.
Such application shall state the name of each witness desired, the
location and vocation, if known, and that the testimony of said
witness is material to the State or to the defense. The
application must be filed with the clerk and placed with the papers
in the cause and made available to both the State and the
defendant. ^uExcept as provided by Subsection (b) of this article,^w
^uas^w ^sAs^t far as is practical such clerk shall include in one
subpoena the names of all witnesses for the State and for
defendant, and such process shall show that the witnesses are
summoned for the State or for the defendant. When a witness has
been served with a subpoena, attached or placed under bail at the
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instance of either party in a particular case, such execution of
process shall inure to the benefit of the opposite party in such
case in the event such opposite party desires to use such witness
on the trial of the case, provided that when a witness has once
been served with a subpoena, no further subpoena shall be issued
for said witness.
^u(b) If the defendant is a member of a combination as defined^w
^uby Section 71.01, Penal Code, the clerk shall issue for each^w
^uwitness a subpoena that does not include a list of the names of all^w
^uother witnesses for the State or the defendant.^w
SECTION 10.02. This article takes effect September 1, 1993.
ARTICLE 11
SECTION 11.01. Chapter 40, Code of Criminal Procedure, is
amended by adding Article 40.001 to read as follows:
^uArt. 40.001. NEW TRIAL ON MATERIAL EVIDENCE. A new trial^w
^ushall be granted an accused where material evidence favorable to^w
^uthe accused has been discovered since trial.^w
SECTION 11.02. Under the terms of Section 22.108(b),
Government Code, Rule 30(b)(6), Texas Rules of Appellate Procedure,
is disapproved.
SECTION 11.03. The rulemaking authority granted to the court
of criminal appeals under Section 22.108, Government Code, is
withdrawn with respect to rules of appellate procedure relating to
granting a new trial on the grounds of evidence other than material
evidence discovered after the trial of an offense.
SECTION 11.04. (a) The change in law made by this article
applies only to a new trial for an offense committed on or after
the effective date of this article. For purposes of this section,
an offense is committed before the effective date of this article
if any element of the offense occurs before the effective date.
(b) A new trial for an offense committed before the
effective date of this article is covered by the law in effect when
the offense was committed, and the former law is continued in
effect for this purpose.
SECTION 11.05. This article takes effect September 1, 1993.
ARTICLE 12
SECTION 12.01. Article 38.07, Code of Criminal Procedure, is
amended to read as follows:
Art. 38.07. TESTIMONY IN CORROBORATION OF VICTIM OF SEXUAL
OFFENSE. A conviction under Chapter 21, Section 22.011, or Section
22.021, Penal Code, is supportable on the uncorroborated testimony
of the victim of the sexual offense if the victim informed any
person, other than the defendant, of the alleged offense within ^uone^w
^uyear^w ^ssix months^t after the date on which the offense is alleged to
have occurred. The requirement that the victim inform another
person of an alleged offense does not apply if the victim was
younger than ^u18^w ^s14^t years of age at the time of the alleged
offense. ^sThe court shall instruct the jury that the time which^t
^slapsed between the alleged offense and the time it was reported^t
^sshall be considered by the jury only for the purpose of assessing^t
^sthe weight to be given to the testimony of the victim.^t
SECTION 12.02. This article takes effect September 1, 1993.
ARTICLE 13
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SECTION 13.01. Notwithstanding any provision of this Act
establishing an effective date for an article of this Act, this Act
takes effect only if Senate Bill No. 532, Acts of the 73rd
Legislature, Regular Session, 1993, takes effect. If Senate Bill
No. 532 does not take effect, this Act has no effect.
SECTION 13.02. (a) Except as provided by Subsection (c) of
this section, an amendment to any provision of the Penal Code made
by another Act of the 73rd Legislature, Regular Session, 1993, an
amendment in another Act to a provision of Article 6701l-1, Revised
Statutes, or an amendment in another Act to a provision of the
Health and Safety Code also amended by this Act, applies only to an
offense committed under the provision on or after the effective
date of the other Act and before September 1, 1994. The amendment
made by the other Act continues in effect only for the limited
purpose of the prosecution of an offense committed before September
1, 1994.
(b) For purposes of this section, an offense is committed
before September 1, 1994, if all elements of the offense occur
before that date.
(c) If House Bill No. 354, 73rd Legislature, Regular
Session, 1993, is enacted and becomes law, the amendments made to
the Penal Code by that Act continue in effect on and after
September 1, 1994. If Senate Bill No. 456, 73rd Legislature,
Regular Session, 1993, is enacted and becomes law, the amendments
made to the Penal Code by that Act continue in effect on and after
September 1, 1994.
SECTION 13.03. The importance of this legislation and the
crowded condition of the calendars in both houses create an
emergency and an imperative public necessity that the
constitutional rule requiring bills to be read on three several
days in each house be suspended, and this rule is hereby suspended.
S.B. No. 1067
________________________________ ________________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1067 passed the Senate on
April 22, 1993, by a viva-voce vote; May 11, 1993, Senate refused
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to concur in House amendments and requested appointment of
Conference Committee; May 19, 1993, House granted request of the
Senate; May 27, 1993, Senate adopted Conference Committee Report by
a viva-voce vote.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1067 passed the House, with
amendments, on May 8, 1993, by a non-record vote; May 19, 1993,
House granted request of the Senate for appointment of Conference
Committee; May 29, 1993, House adopted Conference Committee Report
by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
________________________________
Date
________________________________
Governor
