RBT C.S.H.B. 938 76(R) BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 938 By: Thompson Judicial Affairs 3/16/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE Hate crimes are acts committed primarily because of the actor's bias or prejudice against the victim. Even though hate crimes are not always reported and some counties do not keep such statistics, more than 2,300 hate crimes were reported in Texas between 1992 and 1997. According to the Texas Crime Report, about 25 percent of hate crimes are property crimes. Two out of three hate crimes are due to race bias; nearly 50 percent of all reported incidents were directed against African-Americans. C.S.H.B. 938 enhances penalties for crimes motivated by hate, prejudice, or bias. It provides aid to counties with populations under 50,000 to prosecute hate crimes and establishes a hate crimes prosecution coordinator in the Office of the Attorney General. It provides for protective orders against hate crime perpetrators and penalties for violations of those protective orders. It authorizes civil actions against hate crime perpetrators and requires law enforcement training relating to hate crimes. This bill redefines "hate crime" to conform with language upheld by the U.S. Supreme Court. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the criminal justice division of the governor's office in SECTION 2.01 (Article 104.004, Code of Criminal Procedure) of this bill. SECTION BY SECTION ANALYSIS ARTICLE 1 SECTION 1.01. Amends Section 12.47, Penal Code, to provide that this section does not apply to the trial of an offense of injury to a disabled person under Section 22.04, Penal Code (Injury to a Child, Elderly Individual, or Disabled Individual), if the affirmative finding in the case under Article 42.014, Code of Criminal Procedure (Finding that Offense was Committed Because of Bias or Prejudice), shows that the defendant intentionally selected the victim because the victim was disabled. Authorizes the attorney general, upon request of a prosecuting attorney, to assist a prosecuting attorney in the investigation or prosecution of an offense committed because of bias or prejudice. Requires the attorney general to designate one individual in the attorney general's office that assists in the prosecution of criminal cases to coordinate responses to requests made under this subsection. SECTION 1.02. Amends Article 42.014, Code of Criminal Procedure, to specify that this section applies to Title 5 (Offenses Against the Person), Section 28.02 (Arson), or 28.03 (Criminal Mischief), Penal Code. Requires the court to make an affirmative finding of fact if the court determines by a preponderance of the evidence that the defendant intentionally selected the person against whom the offense was committed or intentionally selected property damaged or affected as a result of the offense because of the defendant's bias or prejudice against a group, including a group identified by race, color, disability, religion, national origin or ancestry, or sexual orientation of the victim. Provides that a defendant's mistake as to the victim' membership in a group described by this article is immaterial to the determination under this article. SECTION 1.03. Makes application of this Article prospective. ARTICLE 2 SECTION 2.01. Amends Chapter 104, Code of Criminal Procedure, by adding Article 104.004, as follows: Art. 104.004. EXTRAORDINARY PROSECUTION COSTS. Requires the criminal justice division (division) of the governor's office to distribute grants as provided by this article. Sets forth the eligibility requirements for a grant under this article for a county of less than 50,000. Provides that the commissioners court of the county must submit a financial statement which documents the requirements. Sets forth limitations on the amount of the grants. Authorizes the division to adopt a budget and rules for the making of grants under this article. Provides that all grants and all expenditures made under this article are subject to audit by the state auditor. SECTION 2.02. Authorizes the commissioners court of a county to apply to the criminal justice division of the governor's office for a grant, as provided by this Act, on or after September 1, 1999. ARTICLE 3 SECTION 3.01. Amends Title 6, Civil Practice and Remedies Code, by adding Chapter 140, as follows: CHAPTER 140. REMEDIES FOR AND PROTECTIONS AGAINST HATEFUL ACTS Sec. 140.001. DEFINITIONS. Defines "claimant" and "defendant." Sec. 140.002. RIGHT TO BE FREE FROM HATEFUL ACTS. Provides that an individual in this state has the right to be free from an act of violence, or intimidation by threat of violence, committed against the person or property of the individual because of the individual's race, color, disability, religion, national origin or ancestry, or sexual orientation, or another person's perception of the foregoing. Sec. 140.003. ACTION BY INDIVIDUAL. Authorizes a lawsuit for damages, including punitive damages and attorney's fees, to an individual arising from the actions of a defendant in violating the peaceable exercise or enjoyment by the individual of the right secured by Section 140.002. Sec. 140.004. INDEPENDENT REMEDY. Provides that a lawsuit brought under this chapter is independent of any other authorized lawsuit. SECTION 3.02. Makes application of Chapter 140, Civil Practice and Remedies Code, prospective. ARTICLE 4 SECTION 4.01. Amends Chapter 6, Code of Criminal Procedure, by adding Article 6.08, as follows: Art. 6.08. PROTECTIVE ORDER PROHIBITING OFFENSE CAUSED BY BIAS OR PREJUDICE. (a) Authorizes a person to request the court to render a protective order under Title 4, Family Code (Protective Orders and Family Violence), for the protection of the person at any proceeding in which the defendant appears in constitutional county court, statutory county court, or district court that is related to an offense under Title 5 (Offenses Against the Person) or Section 28.02 (Arson) or 28.03 (Criminal Mischief), Penal Code, in which it is alleged that the defendant committed the offense because of bias or prejudice as described by Article 42.014. (b) Requires the court to render a protective order in the manner provided by Title 4, Family Code, if the court finds that probable cause exists to believe that an offense under under Title 5 or Section 28.02 or 28.03, Penal Code, occurred and that the defendant committed the offense because of bias or prejudice, and that the nature of the scheme or course of conduct engaged in by the defendant in the commission of the offense indicates that the defendant is likely to engage in the future in conduct prohibited by Title 5 or Section 28.02 or 28.03, Penal Code, because of bias or prejudice. (c) Provides that the procedure for the enforcement of a protective order under Title 4, Family Code, applies to the fullest extent practicable to the enforcement of a protective order under this article. Sets forth additional requirements regarding service and notification that the order is based on offenses committed because of bias or prejudice. SECTION 4.02. Amends Chapter 25, Penal Code, by adding Section 25.071, as follows: Sec. 25.071. VIOLATION OF PROTECTIVE ORDER PREVENTING OFFENSE CAUSED BY BIAS OR PREJUDICE. (a) Provides that a person commits a Class A misdemeanor, unless it is shown at the trial that the person has previously been convicted two or more times or has violated the protective order by committing an assault, in which event the person commits a third degree felony, if the person in violation of an order issued under Article 6.08, Code of Criminal Procedure, knowingly or intentionally: commits an offense under Title 5 (Offenses Against the Person) or Section 28.02 (Arson) or 28.03 (Criminal Mischief), Penal Code, and commits the offense because of bias or prejudice as described by Article 42.014, Code of Criminal Procedure; communicates directly, through another, or in any other manner, with a protected individual in a threatening or harassing manner; or goes to or near the residence or place of employment or business of a protected individual. Authorizes the prosecution of a person for violation of this section and any other section of this code, if the person's conduct constitutes a violation of a section in addition to this section. Prohibits a peace officer from arresting the person protected by an order of protection when investigating conduct that may constitute an offense under this section for a violation of an order. ARTICLE 5 SECTION 5.01. Amends Section 415.032(b), Government Code, to include offenses committed because of bias or prejudice among those types of crimes the Commission on Law Enforcement Officer Standards and Education is required to have courses and training on. SECTION 5.02. Amends Section 415.034, Government Code, by adding Subsection (j), as follows: (j) Provides that the training course provided to peace officers must include education and training in the recognition of offenses that are committed because of bias or prejudice, in addition to the types of cases already required, unless the agency head determines that the education and training is inconsistent with the officer's assigned duties. Requires the agency to provide an officer the education and training described by this subsection every 48 months. ARTICLE 6 SECTION 6.01. Effective date: September 1, 1999. SECTION 6.02. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The substitute modifies the original in SECTION 1 by modifying the burden of proof from beyond a reasonable doubt to a preponderance of the evidence standard when the court makes a determination as to whether a person committed a crime due to bias or prejudice against a group. The substitute also provides that a defendant's mistake as to whether the victim is a member of a described group is irrelevant. The substitute removes provisions regarding injunctive relief proposed by the original in SECTION 3.01. The substitute does not contain the following sections that were included in Chapter 140 as it was proposed in the original bill: Section 140.005 (Content of Speech); Section 140.006 (Forum); Section 140.007 (Enforcement); Section 140.008 (Warning); and Section 140.009 (Notification of Law Enforcement Agencies). The substitute does not contain the following addition to the Penal Code in Section 3.02 of the original: Section 22.11 (Violation of Order Enjoining Hateful Acts). Redesignates Article 4 in the original bill to Article 5 in the substitute. Redesignates Article 5 in the original bill to Article 6 in the substitute. The substitute adds ARTICLE 4, which adds a number of provisions regarding orders of protection for cases involving bias or prejudice. The substitute requires less frequent training for law enforcement regarding crimes involving bias or prejudice in SECTION 5.02.