Relating to prohibiting the carrying of a firearm by a member of a criminal street gang while engaged in certain criminal activity; creating a criminal offense; changing the eligibility for community supervision.
https://capitol.texas.gov/tlodocs/88R/billtext/html/HB04014H.htm
| 88R23000 JSC-D | |||
| By: Murr | H.B. No. 4014 | ||
| Substitute the following for H.B. No. 4014: | |||
| By: Burrows | C.S.H.B. No. 4014 | ||
|
|
||
|
|
||
| relating to prohibiting the carrying of a firearm by a member of a | ||
| criminal street gang while engaged in certain criminal activity; | ||
| creating a criminal offense; changing the eligibility for community | ||
| supervision. | ||
| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
| SECTION 1. Section 125.0015(a), Civil Practice and Remedies | ||
| Code, is amended to read as follows: | ||
| (a) A person who maintains a place to which persons | ||
| habitually go for the following purposes and who knowingly | ||
| tolerates the activity and furthermore fails to make reasonable | ||
| attempts to abate the activity maintains a common nuisance: | ||
| (1) discharge of a firearm in a public place as | ||
| prohibited by the Penal Code; | ||
| (2) reckless discharge of a firearm as prohibited by | ||
| the Penal Code; | ||
| (3) engaging in organized criminal activity as a | ||
| member of a combination as prohibited by the Penal Code; | ||
| (4) delivery, possession, manufacture, or use of a | ||
| substance or other item in violation of Chapter 481, Health and | ||
| Safety Code; | ||
| (5) gambling, gambling promotion, or communicating | ||
| gambling information as prohibited by the Penal Code; | ||
| (6) prostitution as described by Section 43.02, Penal | ||
| Code, solicitation of prostitution as described by Section 43.021, | ||
| Penal Code, promotion of prostitution as described by Section | ||
| 43.03, Penal Code, or aggravated promotion of prostitution as | ||
| described by Section 43.04, Penal Code; | ||
| (7) compelling prostitution as prohibited by the Penal | ||
| Code; | ||
| (8) commercial manufacture, commercial distribution, | ||
| or commercial exhibition of obscene material as prohibited by the | ||
| Penal Code; | ||
| (9) aggravated assault as described by Section 22.02, | ||
| Penal Code; | ||
| (10) sexual assault as described by Section 22.011, | ||
| Penal Code; | ||
| (11) aggravated sexual assault as described by Section | ||
| 22.021, Penal Code; | ||
| (12) robbery as described by Section 29.02, Penal | ||
| Code; | ||
| (13) aggravated robbery as described by Section 29.03, | ||
| Penal Code; | ||
| (14) unlawfully carrying a weapon as described by | ||
| Section 46.02, Penal Code, or unlawfully carrying a firearm as | ||
| described by Section 46.025, Penal Code; | ||
| (15) murder as described by Section 19.02, Penal Code; | ||
| (16) capital murder as described by Section 19.03, | ||
| Penal Code; | ||
| (17) continuous sexual abuse of young child or | ||
| disabled individual as described by Section 21.02, Penal Code; | ||
| (18) massage therapy or other massage services in | ||
| violation of Chapter 455, Occupations Code; | ||
| (19) employing or entering into a contract for the | ||
| performance of work or the provision of a service with an individual | ||
| younger than 21 years of age for work or services performed at a | ||
| sexually oriented business as defined by Section 243.002, Local | ||
| Government Code; | ||
| (20) trafficking of persons as described by Section | ||
| 20A.02, Penal Code; | ||
| (21) sexual conduct or performance by a child as | ||
| described by Section 43.25, Penal Code; | ||
| (22) employment harmful to a child as described by | ||
| Section 43.251, Penal Code; | ||
| (23) criminal trespass as described by Section 30.05, | ||
| Penal Code; | ||
| (24) disorderly conduct as described by Section 42.01, | ||
| Penal Code; | ||
| (25) arson as described by Section 28.02, Penal Code; | ||
| (26) criminal mischief as described by Section 28.03, | ||
| Penal Code, that causes a pecuniary loss of $500 or more; | ||
| (27) a graffiti offense in violation of Section 28.08, | ||
| Penal Code; or | ||
| (28) permitting an individual younger than 18 years of | ||
| age to enter the premises of a sexually oriented business as defined | ||
| by Section 243.002, Local Government Code. | ||
| SECTION 2. Article 17.03(b-2), Code of Criminal Procedure, | ||
| is amended to read as follows: | ||
| (b-2) Except as provided by Articles 15.21, 17.033, and | ||
| 17.151, a defendant may not be released on personal bond if the | ||
| defendant: | ||
| (1) is charged with: | ||
| (A) an offense involving violence; or | ||
| (B) an offense under Section 46.025, Penal Code; | ||
| or | ||
| (2) while released on bail or community supervision | ||
| for an offense described by Subdivision (1) [ |
||
| is charged with committing: | ||
| (A) any offense punishable as a felony; or | ||
| (B) an offense under the following provisions of | ||
| the Penal Code: | ||
| (i) Section 22.01(a)(1) (assault); | ||
| (ii) Section 22.05 (deadly conduct); | ||
| (iii) Section 22.07 (terroristic threat); | ||
| or | ||
| (iv) Section 42.01(a)(7) or (8) (disorderly | ||
| conduct involving firearm). | ||
| SECTION 3. Article 42A.054(a), Code of Criminal Procedure, | ||
| is amended to read as follows: | ||
| (a) Article 42A.053 does not apply to a defendant adjudged | ||
| guilty of an offense under: | ||
| (1) Section 15.03, Penal Code, if the offense is | ||
| punishable as a felony of the first degree; | ||
| (2) Section 19.02, Penal Code (Murder); | ||
| (3) Section 19.03, Penal Code (Capital Murder); | ||
| (4) Section 20.04, Penal Code (Aggravated | ||
| Kidnapping); | ||
| (5) Section 20A.02, Penal Code (Trafficking of | ||
| Persons); | ||
| (6) Section 20A.03, Penal Code (Continuous | ||
| Trafficking of Persons); | ||
| (7) Section 21.11, Penal Code (Indecency with a | ||
| Child); | ||
| (8) Section 22.011, Penal Code (Sexual Assault); | ||
| (9) Section 22.021, Penal Code (Aggravated Sexual | ||
| Assault); | ||
| (10) Section 22.04(a)(1), Penal Code (Injury to a | ||
| Child, Elderly Individual, or Disabled Individual), if: | ||
| (A) the offense is punishable as a felony of the | ||
| first degree; and | ||
| (B) the victim of the offense is a child; | ||
| (11) Section 29.03, Penal Code (Aggravated Robbery); | ||
| (12) Section 30.02, Penal Code (Burglary), if: | ||
| (A) the offense is punishable under Subsection | ||
| (d) of that section; and | ||
| (B) the actor committed the offense with the | ||
| intent to commit a felony under Section 21.02, 21.11, 22.011, | ||
| 22.021, or 25.02, Penal Code; | ||
| (13) Section 43.04, Penal Code (Aggravated Promotion | ||
| of Prostitution); | ||
| (14) Section 43.05, Penal Code (Compelling | ||
| Prostitution); | ||
| (15) Section 43.25, Penal Code (Sexual Performance by | ||
| a Child); | ||
| (15-a) Section 46.025, Penal Code; | ||
| (16) Chapter 481, Health and Safety Code, for which | ||
| punishment is increased under: | ||
| (A) Section 481.140 of that code (Use of Child in | ||
| Commission of Offense); or | ||
| (B) Section 481.134(c), (d), (e), or (f) of that | ||
| code (Drug-free Zones) if it is shown that the defendant has been | ||
| previously convicted of an offense for which punishment was | ||
| increased under any of those subsections; or | ||
| (17) Section 481.1123, Health and Safety Code | ||
| (Manufacture or Delivery of Substance in Penalty Group 1-B), if the | ||
| offense is punishable under Subsection (d), (e), or (f) of that | ||
| section. | ||
| SECTION 4. Article 42A.102(b), Code of Criminal Procedure, | ||
| is amended to read as follows: | ||
| (b) In all other cases, the judge may grant deferred | ||
| adjudication community supervision unless: | ||
| (1) the defendant is charged with an offense: | ||
| (A) under Section 20A.02, 20A.03, 49.045, 49.05, | ||
| 49.065, 49.07, or 49.08, Penal Code; | ||
| (B) under Section 49.04 or 49.06, Penal Code, | ||
| and, at the time of the offense: | ||
| (i) the defendant held a commercial | ||
| driver's license or a commercial learner's permit; or | ||
| (ii) the defendant's alcohol concentration, | ||
| as defined by Section 49.01, Penal Code, was 0.15 or more; | ||
| (C) for which punishment may be increased under | ||
| Section 49.09, Penal Code; | ||
| (D) for which punishment may be increased under | ||
| Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it | ||
| is shown that the defendant has been previously convicted of an | ||
| offense for which punishment was increased under any one of those | ||
| subsections; [ |
||
| (E) under Section 481.1123, Health and Safety | ||
| Code, that is punishable under Subsection (d), (e), or (f) of that | ||
| section; or | ||
| (F) under Section 46.025, Penal Code; | ||
| (2) the defendant: | ||
| (A) is charged with an offense under Section | ||
| 21.11, 22.011, 22.021, 43.04, or 43.05, Penal Code, regardless of | ||
| the age of the victim, or a felony described by Article 42A.453(b), | ||
| other than a felony described by Subdivision (1)(A) or (3)(B) of | ||
| this subsection; and | ||
| (B) has previously been placed on community | ||
| supervision for an offense under Paragraph (A); | ||
| (3) the defendant is charged with an offense under: | ||
| (A) Section 21.02, Penal Code; or | ||
| (B) Section 22.021, Penal Code, that is | ||
| punishable under Subsection (f) of that section or under Section | ||
| 12.42(c)(3) or (4), Penal Code; or | ||
| (4) the defendant is charged with an offense under | ||
| Section 19.02, Penal Code, except that the judge may grant deferred | ||
| adjudication community supervision on determining that the | ||
| defendant did not cause the death of the deceased, did not intend to | ||
| kill the deceased or another, and did not anticipate that a human | ||
| life would be taken. | ||
| SECTION 5. Section 9.31(b), Penal Code, is amended to read | ||
| as follows: | ||
| (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); | ||
| (3) if the actor consented to the exact force used or | ||
| attempted by the other; | ||
| (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; or | ||
| (5) if the actor sought an explanation from or | ||
| discussion with the other person concerning the actor's differences | ||
| with the other person while the actor was: | ||
| (A) carrying a weapon in violation of Section | ||
| 46.02; [ |
||
| (B) carrying a firearm in violation of Section | ||
| 46.025; or | ||
| (C) possessing or transporting a weapon in | ||
| violation of Section 46.05. | ||
| SECTION 6. Chapter 46, Penal Code, is amended by adding | ||
| Section 46.025 to read as follows: | ||
| Sec. 46.025. PROHIBITED CARRYING OF FIREARMS BY GANG | ||
| MEMBERS. (a) In this section, "criminal street gang" has the | ||
| meaning assigned by Section 71.01. | ||
| (b) A person who is a member of a criminal street gang | ||
| commits an offense if the person: | ||
| (1) intentionally, knowingly, or recklessly carries | ||
| on or about his or her person a firearm; and | ||
| (2) is engaged in conduct constituting an offense that | ||
| is a Class B misdemeanor or any higher category of offense: | ||
| (A) listed in Section 42A.054(a), Code of | ||
| Criminal Procedure; | ||
| (B) listed in Section 71.02(a) of this code; | ||
| (C) under Title 5 or 6 of this code; | ||
| (D) under Subchapter D, Chapter 481, Health and | ||
| Safety Code; or | ||
| (E) during the commission of which or during the | ||
| immediate flight from the commission of which the firearm or other | ||
| deadly weapon was used or exhibited. | ||
| (c) It is an affirmative defense to prosecution under this | ||
| section that: | ||
| (1) the person is not a member of a criminal street | ||
| gang and the inclusion of the person's information in an | ||
| intelligence database under Chapter 67, Code of Criminal Procedure, | ||
| was in error; or | ||
| (2) the person's information did not meet the | ||
| submission criteria established under Article 67.054(b), Code of | ||
| Criminal Procedure, for the inclusion of the person's information | ||
| in an intelligence database under Chapter 67 of that code. | ||
| (d) If conduct constituting an offense under this section | ||
| also constitutes an offense under Section 46.02, the actor may be | ||
| prosecuted only under this section. | ||
| (e) An offense under this section is a felony of the third | ||
| degree. | ||
| SECTION 7. Section 46.04(e), Penal Code, is amended to read | ||
| as follows: | ||
| (e) An offense under Subsection (a) is a felony of the third | ||
| degree. An offense under Subsection [ |
||
| Class A misdemeanor. | ||
| SECTION 8. Section 46.15(b), Penal Code, is amended to read | ||
| as follows: | ||
| (b) Sections 46.02 and[ |
||
| not apply to a person who: | ||
| (1) is in the actual discharge of official duties as a | ||
| member of the armed forces or state military forces as defined by | ||
| Section 437.001, Government Code, or as a guard employed by a penal | ||
| institution; | ||
| (2) is traveling; | ||
| (3) is engaging in lawful hunting, fishing, or other | ||
| sporting activity on the immediate premises where the activity is | ||
| conducted, or is en route between the premises and the actor's | ||
| residence, motor vehicle, or watercraft, if the weapon is a type | ||
| commonly used in the activity; | ||
| (4) holds a security officer commission issued by the | ||
| Texas Private Security Board, if the person is engaged in the | ||
| performance of the person's duties as an officer commissioned under | ||
| Chapter 1702, Occupations Code, or is traveling to or from the | ||
| person's place of assignment and is wearing the officer's uniform | ||
| and carrying the officer's weapon in plain view; | ||
| (5) acts as a personal protection officer and carries | ||
| the person's security officer commission and personal protection | ||
| officer authorization, if the person: | ||
| (A) is engaged in the performance of the person's | ||
| duties as a personal protection officer under Chapter 1702, | ||
| Occupations Code, or is traveling to or from the person's place of | ||
| assignment; and | ||
| (B) is either: | ||
| (i) wearing the uniform of a security | ||
| officer, including any uniform or apparel described by Section | ||
| 1702.323(d), Occupations Code, and carrying the officer's weapon in | ||
| plain view; or | ||
| (ii) not wearing the uniform of a security | ||
| officer and carrying the officer's weapon in a concealed manner; | ||
| (6) is carrying: | ||
| (A) a license issued under Subchapter H, Chapter | ||
| 411, Government Code, to carry a handgun; and | ||
| (B) a handgun: | ||
| (i) in a concealed manner; or | ||
| (ii) in a holster; | ||
| (7) holds an alcoholic beverage permit or license or | ||
| is an employee of a holder of an alcoholic beverage permit or | ||
| license if the person is supervising the operation of the permitted | ||
| or licensed premises; or | ||
| (8) is a student in a law enforcement class engaging in | ||
| an activity required as part of the class, if the weapon is a type | ||
| commonly used in the activity and the person is: | ||
| (A) on the immediate premises where the activity | ||
| is conducted; or | ||
| (B) en route between those premises and the | ||
| person's residence and is carrying the weapon unloaded. | ||
| SECTION 9. Section 46.04(a-1), Penal Code, is repealed. | ||
| SECTION 10. (a) Except as provided by Subsection (b) of | ||
| this section, the changes in law made by this Act apply only to an | ||
| offense committed on or after the effective date of this Act. An | ||
| offense committed before the effective date of this Act is governed | ||
| by the law in effect on the date the offense was committed, and the | ||
| former law is continued in effect for that purpose. For purposes of | ||
| this subsection, an offense was committed before the effective date | ||
| of this Act if any element of the offense was committed before that | ||
| date. | ||
| (b) The change in law made by this Act in amending Article | ||
| 17.03(b-2), Code of Criminal Procedure, applies only to a person | ||
| who is arrested on or after the effective date of this Act. A person | ||
| arrested before the effective date of this Act is governed by the | ||
| law in effect on the date the person was arrested, and the former | ||
| law is continued in effect for that purpose. | ||
| SECTION 11. This Act takes effect September 1, 2023. | ||
