For those of us who have been mailed a ticket from one of Texas' red light cameras, it can be a frustrating ordeal. You may think to yourself, "How much lazier can we get? We rely on cameras to issue tickets rather than having police officers do their job?"
I heard a story once (although this is not confirmed) that a Texas citizen was issued a ticket from one of these cameras with a picture of his traffic violation attached to the ticket. Rather than mailing the appropriate fine, the gentlemen sent the State a picture of the cash. The State, not amused, then sent the man a picture of handcuffs, to which he responded by promptly sending the appropriate payment - but in unrolled pennies.
Here is a recent story about a Texas lawyer who took another route to challenge a ticket that he received from a Dallas red light camera. Maybe you can take a page out of his book if you are ever the gracious recipient of one of these automated tickets.
Thursday, December 31, 2009
Tuesday, December 22, 2009
Can a Civil Penalty Trigger Double Jeopardy?
This issue was recently addressed by the 13th District Court of Appeals in State v. Almendarez.
The 5th Amendment to the United States Constitution provides, in relevant part, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." Many times there are civil and criminal penalties for certain actions, such as the administrative suspension of one's driver's license in addition to a subsequent prosecution for DWI. Do civil penalties violate the double jeopardy clause?
As a general rule, the 5th Amendment's prohibition on double jeopardy does not bar remedial civil proceedings based on the same offense as a prior criminal prosecution, or vice versa. State v. Solar, 906 S.W.2d 142 (Tex. App. - Fort Worth 1995, pet. ref'd). The U.S. Supreme Court provided, "whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction." Hudson v. U.S., 522 U.S. 93 (1997). However, even if intended by Congress to be civil in nature, the double jeopardy clause may be triggered if the "statutory scheme is so punitive either in purpose or effect as to transform what was clearly intended as a civil remedy into a criminal penalty." Rodriguez v. State, 93 S.W.3d 60 (Tex. Crim. App. 2002).
In order to evaluate whether the effects of the statute are criminally punitive, courts generally look to the non-dispositive factors set forth by the Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), and restated by the Court in Hudson. Termed the "Hudson factors," courts should consider:
The 5th Amendment to the United States Constitution provides, in relevant part, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." Many times there are civil and criminal penalties for certain actions, such as the administrative suspension of one's driver's license in addition to a subsequent prosecution for DWI. Do civil penalties violate the double jeopardy clause?
As a general rule, the 5th Amendment's prohibition on double jeopardy does not bar remedial civil proceedings based on the same offense as a prior criminal prosecution, or vice versa. State v. Solar, 906 S.W.2d 142 (Tex. App. - Fort Worth 1995, pet. ref'd). The U.S. Supreme Court provided, "whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction." Hudson v. U.S., 522 U.S. 93 (1997). However, even if intended by Congress to be civil in nature, the double jeopardy clause may be triggered if the "statutory scheme is so punitive either in purpose or effect as to transform what was clearly intended as a civil remedy into a criminal penalty." Rodriguez v. State, 93 S.W.3d 60 (Tex. Crim. App. 2002).
In order to evaluate whether the effects of the statute are criminally punitive, courts generally look to the non-dispositive factors set forth by the Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), and restated by the Court in Hudson. Termed the "Hudson factors," courts should consider:
- whether the sanction involves an affirmative disability or restraint;
- whether it has historically been regarded as a punishment;
- whether it comes into play only on a finding of scienter;
- whether its operation will promote the traditional aims of punishment-retribution and deterrence;
- whether the behavior to which it applies is already a crime;
- whether an alternative purpose to which it may rationally be connected is assignable for it; and
- whether it appears excessive in relation to the alternative purpose assigned.
Hudson at 99-100. Moreover (as if a 7-factor test weren't enough), the Court further provided, "these factors must be considered in relation to the statute on its face, and only the clearest proof will suffice to override legislative intent and transform was has been denominated a civil remedy into a criminal penalty." Id at 100.
As you can see, whether a civil penalty precludes later criminal prosecution depends on the particular facts of the case. The following examples from Texas caselaw help illustrate how this issue has played out in Texas courts:
- Termination of a person's rights to a horse and order to reimburse State for expense incurred in seizing horse did not constitute punishment and does not bar a subsequent criminal prosecution for animal cruelty and neglect. State v. Almendarez, ___ S.W.3d ___ (Tex.App. - Corpus Christie 2009).
- Trial for termination of parental rights is a civil proceeding with a remedial result - protecting abused and neglected children - and does not trigger jeopardy bar to subsequent criminal prosecution for aggravated sexual assault of a child. Malone v. State, 864 S.W.2d 156 (Tex.App. - Fort Worth 1993, no pet.).
- An administrative license suspension did not constitute punishment and therefore did not implicate the protections against double jeopardy in regard to a subsequent DWI prosecution. Ex parte Tharp, 935 S.W.2d 157 (Tex. Crim. App. 1996).
- Texas' civil asset-forfeiture scheme did not constitute punishment and therefore did not implicate the protections against double jeopardy in regard to a subsequent prosecution for the offense underlying the asset forfeiture. Fant v. State, 931 S.W.2d 299 (Tex. Crim. App. 1996).
- Disciplinary actions brought against an attorney did not constitute criminal punishment to bar subsequent criminal proceedings. Capps v. State, 265 S.W.3d 44 (Tex.App. - Houston [1st Dist.] 2008, pet. ref'd).
- Cancellation of defendant's alcoholic beverage license because he lied on the application did not constitute punishment and therefore did not bar his subsequent prosecution for making false statements on the application. Ex parte Sheridan, 974 S.W.2d 129 (Tex.App. - San Antonio 1998, pet. ref'd).
TAKEAWAY: Good luck establishing a double jeopardy challenge to a later prosecution for conduct which was the subject to a civil penalty. According to the bulk of caselaw, it seems to be quite a steep road.
Monday, December 21, 2009
When does a "Friendly Interview" become a "Custodial Interrogation?"
Texas Law enforcement is quite fond of the "friendly interview" (a.k.a. noncustodial interrogation) with crime suspects. Many convictions are achieved through evidence that is gathered using this technique. But when does a friendly interview become a custodial interrogation, thus triggering a person's constitutional rights? More specifically, as the 13th District Court of Appeals considered in State v. Vasquez, when must a person's request for counsel be honored and the interrogation be terminated?
In Vasquez, the defendant, who had been a suspect in a murder case, voluntarily accompanied police officers to the station for additional questioning. This occurred 4 years after the crime and initial interview of the defendant had taken place. As found by the trial court, the defendant repeatedly requested his lawyer whom he had retained 4 years prior, when the case first arose. Despite the defendant's requests for counsel, the police continued the interrogation and obtained an incriminatory statement. In opposition to the defense motion to suppress the statement, the State argued that interrogation was not "custodial." The trial court granted the motion to suppress.
In affirming the trial court's order granting the Motion to Suppress, the 13th District Court of Appeals, relying entirely on precedent from the U.S. Supreme Court and the Texas Court of Criminal Appeals, held:
In Vasquez, the defendant, who had been a suspect in a murder case, voluntarily accompanied police officers to the station for additional questioning. This occurred 4 years after the crime and initial interview of the defendant had taken place. As found by the trial court, the defendant repeatedly requested his lawyer whom he had retained 4 years prior, when the case first arose. Despite the defendant's requests for counsel, the police continued the interrogation and obtained an incriminatory statement. In opposition to the defense motion to suppress the statement, the State argued that interrogation was not "custodial." The trial court granted the motion to suppress.
In affirming the trial court's order granting the Motion to Suppress, the 13th District Court of Appeals, relying entirely on precedent from the U.S. Supreme Court and the Texas Court of Criminal Appeals, held:
"A person is in custody if, under the totality of the circumstances, a reasonable person would believe his freedom of movement was restrained to the degree associated with a formal arrest." Dowhitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996)
"When a person voluntarily accompanies officers to an interview, and he knows or should know that the police officers suspect he may be implicated in the crime under investigation, he is not 'restrained of movement' and is not in custody. Shiflet v. State, 732 S.W.2d 622 (Tex. Crim. App. 1985). However, and interview that begins as noncustodial may escalate into a custodial interrogation because of police conduct during the encounter. Dowhitt at 255.In determining whether a custodial interrogation, the Court examined the totality of the circumstances in light of the four factors discussed in Dowhitt, which are:
- if the suspect is physically deprived of his freedom of action in any significant way;
- if law enforcement officers tell a suspect that he cannot leave;
- if law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted (such as reading him his Miranda warnings); or
- if there is probable cause to arrest and law enforcement officers do not tell the suspect that his is free to leave.
Applying the law to a view of the evidence in the light most favorable to the trial court's decision, the Court held that "there is some evidence to support an implicit finding that Vasquez was physically deprived of his freedom of action in a significant was by not being provided the retained counsel that he repeatedly requested." The Court further held that:
"an innocent person in Vasquez's position who was: (1) approached at home by two sheriff's deputies and told that he 'had to go' with them, without reference to the matter in question. (2) taken to a sheriff's department office, (3) Mirandized, (4) questioned by three officers, (5) repeatedly told, against his belief, that he was no longer represented by a retained counsel, and (6) questioned after his repeated requests for retained counsel, would have believed he was in custody."
Accordingly, the order granting the motion to suppress was affirmed.
As you can see, this area of law is very fact dependent and as such, the decision of the trial court with be given considerable deference. If the trial court had denied the motion to suppress, the appellate court could have probably crafted an opinion affirming the denial.
Sunday, December 20, 2009
Can a Defendant "Un-waive" his Jury Waiver?
If a defendant submits a written waiver of his right to a jury trial in accordance with Article 1.13 of the Texas Code of Criminal Procedure, can he later reassert that right? And if so, how does he do it?
In a recent published opinion, the Texas Court of Criminal Appeals considered this issue. See Hobbs v. State. Justice Cochran delivered the opinion of the court, wherein he stated:
What exactly is the burden on the defendant to show an "absence of adverse consequences?" Per the CCA:
TAKEAWAY: Do not submit a written jury waiver unless and until you are sure that it is the right move.
In a recent published opinion, the Texas Court of Criminal Appeals considered this issue. See Hobbs v. State. Justice Cochran delivered the opinion of the court, wherein he stated:
"once the defendant validly waives his right to a jury trial, he does not have an unfettered right to reassert that right."However, the CCA noted, that if the defendant can show an "absence of adverse consequences," the trial court may, in his discretion, allow the defendant to reassert his right to a jury trial.
What exactly is the burden on the defendant to show an "absence of adverse consequences?" Per the CCA:
"He must establish, on the record, that his request to withdraw his jury waiver has been made sufficiently in advance of trial such that granting his request will not: (1) interfere with the orderly administration of the business of the court, (2) result in unnecessary delay or inconvenience to witnesses, or (3) prejudice the state. If the defendant's claims are rebutted by that State, trial court, or the record itself, the trial judge does not abuse his discretion in refusing to allow the withdrawal of the waiver."Whether a defendant is allowed to reassert his right to a jury trial after making a written waiver is very much dependent upon the facts of the particular case. In Hobbs, the court denied the defendant's request to continue the start of the case and reassert his right to a jury trial because to do so could have allowed the defendant to continue his efforts at witness tampering, which could result in prejudice to the State. The trial court's denial, according to the 5th Court of Appeals and the CCA, was not an abuse of discretion.
TAKEAWAY: Do not submit a written jury waiver unless and until you are sure that it is the right move.
More Published Texas Cases
I am traveling right now, but will soon be posting commentary on several recently published cases from a few district courts of appeals and the Texas Criminal Court of Appeals. Stay tuned!
Tuesday, December 15, 2009
Can an Affirmative "Deadly Weapon" Finding be Implied?
According to the CCA, in Crumpton v. State, it can.
In a 5-4 opinion with 2 separate dissents, the CCA disregarded its prior holdings in Polk v. State, 693 S.W.2d 391 (Tex.Cr.App. 1985) and LaFleur v. State, 106 S.W.3d 91 (Tex.Cr.App. 2003), concluding that a jury verdict of guilty to criminally negligent homicide (as a lesser-included offense of manslaughter) implies an affirmative "deadly weapon" finding regardless of whether the jury has seen a deadly weapon clause associated with the LIO.
In reaching this decision, the Court relied on Blount v. State, 257 S.W.3d 712 (Tex.Cr.App. 2008) wherein it held that the indictment itself was adequate notice that there would be an issue of use of a deadly weapon. As the dissent points out, however, the thrust of Blount regarded whether the defendant was on "notice," an issue that was not raised in Crumpton. The appellant in Crumpton argued that the jury was not charged and did not make an express deadly weapon finding when it returned its verdict - the court simply entered a deadly weapon finding as a logical (although not express) result of a guilty verdict to the LIO of criminally negligent homicide (because a homicide necessarily includes use of a deadly weapon or else no one would be dead).
In this case the CCA seems to have checked its reasoning and precedent at the door in order to uphold a conviction at all costs. By examining past CCA caselaw and distinguishing between the issues of "notice" and "express findings," Justice Meyers' dissent should have been the majority opinion.
In a 5-4 opinion with 2 separate dissents, the CCA disregarded its prior holdings in Polk v. State, 693 S.W.2d 391 (Tex.Cr.App. 1985) and LaFleur v. State, 106 S.W.3d 91 (Tex.Cr.App. 2003), concluding that a jury verdict of guilty to criminally negligent homicide (as a lesser-included offense of manslaughter) implies an affirmative "deadly weapon" finding regardless of whether the jury has seen a deadly weapon clause associated with the LIO.
In reaching this decision, the Court relied on Blount v. State, 257 S.W.3d 712 (Tex.Cr.App. 2008) wherein it held that the indictment itself was adequate notice that there would be an issue of use of a deadly weapon. As the dissent points out, however, the thrust of Blount regarded whether the defendant was on "notice," an issue that was not raised in Crumpton. The appellant in Crumpton argued that the jury was not charged and did not make an express deadly weapon finding when it returned its verdict - the court simply entered a deadly weapon finding as a logical (although not express) result of a guilty verdict to the LIO of criminally negligent homicide (because a homicide necessarily includes use of a deadly weapon or else no one would be dead).
In this case the CCA seems to have checked its reasoning and precedent at the door in order to uphold a conviction at all costs. By examining past CCA caselaw and distinguishing between the issues of "notice" and "express findings," Justice Meyers' dissent should have been the majority opinion.
Monday, December 14, 2009
Anders Brief - How to Avoid a Frivolous Appeal
What do you do when you believe that there exist no grounds for appeal to your indigent defendant's conviction? Do you file an appeal anyway, knowing that your points of error are frivolous and risk running afoul of your state bar's ethical obligations? Do you simply file no appeal at all and leave your client high and dry? The recently reported CCA case of Garner v. State, reminds us what to do.
The solution is the Anders brief, named after the Supreme Court case of Anders v. California, 386 U.S. 738 (1967) and elaborated upon in Bledsoe v. State, 178 S.W.3d 824 (Tex.Cr.App. 2005). In Anders, the Supreme Court held that the responsibility to determine whether an appeal is frivolous in nature lies with the appellate court - not with the attorney of record. In order to ensure effective counsel on appeal for indigent defendants, without requiring counsel to breach ethical prohibitions against making frivolous arguments, the Supreme Court instituted the now-established procedure of the Anders brief:
In Garner, the CCA determined whether the lower court's lengthy opinion analyzing and discussing the reasoning behind its holding that the appeal was frivolous, was implicitly a determination that there were "arguable grounds" for review. In affirming the Tenth Court of Appeals' decision, the CCA held that when a court of appeals find no issues of arguable merit in an Anders brief, it may explain why the issues have no arguable merit.
The solution is the Anders brief, named after the Supreme Court case of Anders v. California, 386 U.S. 738 (1967) and elaborated upon in Bledsoe v. State, 178 S.W.3d 824 (Tex.Cr.App. 2005). In Anders, the Supreme Court held that the responsibility to determine whether an appeal is frivolous in nature lies with the appellate court - not with the attorney of record. In order to ensure effective counsel on appeal for indigent defendants, without requiring counsel to breach ethical prohibitions against making frivolous arguments, the Supreme Court instituted the now-established procedure of the Anders brief:
- Following conviction, if counsel, after a conscientious examination of the case, believes that all imaginable points of error are purely frivolous, then counsel must (a) file a brief with the appellate court detailing the reasoning for that belief and referring to anything in the record which might arguably support the appeal, and (b) request permission to be removed from representation.
- A copy of counsel's brief must be furnished to the indigent defendant, who may file a pro se brief, thus allowing him to raise any points that he chooses.
- The appellate court must then examine the record and decide whether the appeal is wholly frivolous.
- If the court agrees that the appeal is frivolous, it may grant counsel's request to withdraw and affirm the conviction. If, on the other hand, it finds any of the legal points arguable on the merits (and therefore not frivolous) it must remand the cause to the trial court so that new counsel may be appointed to brief the issues.
In Garner, the CCA determined whether the lower court's lengthy opinion analyzing and discussing the reasoning behind its holding that the appeal was frivolous, was implicitly a determination that there were "arguable grounds" for review. In affirming the Tenth Court of Appeals' decision, the CCA held that when a court of appeals find no issues of arguable merit in an Anders brief, it may explain why the issues have no arguable merit.
Friday, December 11, 2009
Post-Trial Motions are NOT Self-Proving
For any new defense attorneys who may be reading this post, the following case is a must read.
Rouse v. State is a case about a defense attorney who improperly advised his client that if he did not like the sentence imposed by the judge during the sentencing phase of his guilty plea, he could simply withdraw his plea. The client was apparently led to believe that if he pled guilty (without a plea bargain), he would receive probation only. When the judge informed Appellant that he believed 10 years was an appropriate punishment (oddly, the judge seemed to be offering some kind of sua sponte plea bargain), Appellant tried to withdraw his plea, but the judge would not allow it. After Appellant was sentenced to 12 years TDC, his defense attorney (waiting until the last day to file his notice of appeal or motion for a new trial) faxed an unsworn document entitled "Motion for Appeal" to the court coordinator alleging that the defendant's plea should be withdrawn because of the incorrect legal advice that was provided to him.
On direct appeal, the 3rd District Court of Appeals relied on the unsworn affidavit to determine that Appellant's guilty plea was involuntary (Read lower court opinion here). On State's petition for discretionary review the Texas Court of Criminal Appeals considered whether the lower court erred by relying on unsworn allegations made by trial counsel in a document that was faxed to the court coordinator (when no fact-finder has evaluated the statement) to determine that a guilty plea was involuntary. Relying on precedent from Lamb v. State, 680 S.W.2d 11 (Tex.Cr.App. 1984), the CCA reversed the lower court decision, stating:
Rouse v. State is a case about a defense attorney who improperly advised his client that if he did not like the sentence imposed by the judge during the sentencing phase of his guilty plea, he could simply withdraw his plea. The client was apparently led to believe that if he pled guilty (without a plea bargain), he would receive probation only. When the judge informed Appellant that he believed 10 years was an appropriate punishment (oddly, the judge seemed to be offering some kind of sua sponte plea bargain), Appellant tried to withdraw his plea, but the judge would not allow it. After Appellant was sentenced to 12 years TDC, his defense attorney (waiting until the last day to file his notice of appeal or motion for a new trial) faxed an unsworn document entitled "Motion for Appeal" to the court coordinator alleging that the defendant's plea should be withdrawn because of the incorrect legal advice that was provided to him.
On direct appeal, the 3rd District Court of Appeals relied on the unsworn affidavit to determine that Appellant's guilty plea was involuntary (Read lower court opinion here). On State's petition for discretionary review the Texas Court of Criminal Appeals considered whether the lower court erred by relying on unsworn allegations made by trial counsel in a document that was faxed to the court coordinator (when no fact-finder has evaluated the statement) to determine that a guilty plea was involuntary. Relying on precedent from Lamb v. State, 680 S.W.2d 11 (Tex.Cr.App. 1984), the CCA reversed the lower court decision, stating:
"We decide that the court of appeals erred to rely on the allegations in the 'Motion for Appeal' because post-trial motions such as these are not self-proving and any allegations made in support of them by way of affidavit or otherwise must be offered into evidence at a hearing. This rule is based, in part, on permitting the non-moving party an opportunity to respond to these allegations before a conviction is reversed on their basis."The CCA also briefly considered whether and to what extent any "plea-bargaining" by the trial court concerning appellant's punishment could have influenced appellant's decision to enter an "open" plea of guilty. The CCA dismissed this contention as being without merit because the appellant's plea was entered the day before the judge's discussion with appellant regarding sentencing.
Thursday, December 10, 2009
Murder Conviction Remanded Because of Accomplice Perjury
The Texas Court of Criminal Appeals has long held that the Due Process Clause of the 14th Amendment is violated where the State knowingly uses perjured testimony to obtain a conviction. In Ex parte Chabot the Court was faced with whether to extend this holding to cases wherein the State unknowingly presents perjured testimony.
Appellant was convicted of murder and sentenced to life. The State predicated its trial theory on the testimony of an accomplice who was present at the time of the murder. Post-conviction DNA testing later revealed that the accomplice lied during trial when he denied any involvement in the sexual abuse of the victim.
On a subsequent application for writ of habeas corpus, the CCA considered: WHETHER DUE PROCESS IS VIOLATED WHEN THE STATE HAS UNKNOWINGLY PRESENTED PERJURED TESTIMONY?
In Ex parte Fierro, 934 S.W.2d 370 (Tex. Cr. App. 1996), the Court held that the knowing use of perjured testimony is a trial error that is subject to a harmless error analysis, wherein the applicant has the burden to prove by a preponderance of the evidence that the error contributed to his conviction or punishment. The Court now extends its application of this harmless error analysis to cases involving unknowing use of perjured testimony as well.
The court considered this question in a slight different setting in Ex parte Carmona, 185 S.W.3d 492 (Tex. Cr. App 2006)(plurality opinion), when a plurality held that community-supervision revocation based solely on perjured testimony, unknown to the State at the time of revocation, violated the applicant's due process rights. So really, this decision is only a small step from prior Court precedent.
In this case, the State acknowledged the critical importance of the accomplice testimony and conceded that the perjured testimony contributed to the verdict. Noting that it is the "ultimate factfinder," the CCA adopted the findings of fact of the lower court (5th District) and held that "the circumstances of the present case merit a finding that the applicant's due-process rights were violated, notwithstanding the absence of the State's knowledge of the perjured testimony at the time of trial." Remanded.
Appellant was convicted of murder and sentenced to life. The State predicated its trial theory on the testimony of an accomplice who was present at the time of the murder. Post-conviction DNA testing later revealed that the accomplice lied during trial when he denied any involvement in the sexual abuse of the victim.
On a subsequent application for writ of habeas corpus, the CCA considered: WHETHER DUE PROCESS IS VIOLATED WHEN THE STATE HAS UNKNOWINGLY PRESENTED PERJURED TESTIMONY?
In Ex parte Fierro, 934 S.W.2d 370 (Tex. Cr. App. 1996), the Court held that the knowing use of perjured testimony is a trial error that is subject to a harmless error analysis, wherein the applicant has the burden to prove by a preponderance of the evidence that the error contributed to his conviction or punishment. The Court now extends its application of this harmless error analysis to cases involving unknowing use of perjured testimony as well.
The court considered this question in a slight different setting in Ex parte Carmona, 185 S.W.3d 492 (Tex. Cr. App 2006)(plurality opinion), when a plurality held that community-supervision revocation based solely on perjured testimony, unknown to the State at the time of revocation, violated the applicant's due process rights. So really, this decision is only a small step from prior Court precedent.
In this case, the State acknowledged the critical importance of the accomplice testimony and conceded that the perjured testimony contributed to the verdict. Noting that it is the "ultimate factfinder," the CCA adopted the findings of fact of the lower court (5th District) and held that "the circumstances of the present case merit a finding that the applicant's due-process rights were violated, notwithstanding the absence of the State's knowledge of the perjured testimony at the time of trial." Remanded.
Wednesday, December 9, 2009
LWOP Upheld for Juvenile Capital Murder Case
The Fourth Court of Appeals (San Antonio), who, by the way, issues the most aesthetically pleasing opinions, just upheld a Cruel and Unusual Punishment challenge Texas' sentencing scheme (pre-Sept 1, 2009) that imposed a mandatory life without parole (LWOP) punishment on a juvenile capital murder offender. Meadoux v. State.
Appellant (16 years old), who was questioned for over an hour at the police station, ultimately confessed to killing his 2 friends (accidentally, of course). The police officers never advised Appellant of his Miranda rights, maintaining that he was could terminate the "interview" and leave anytime he wished. Accordingly, Appellant challenged, at trial and on appeal, the admission of his incriminating statement, as well as the Texas sentencing scheme of mandatory LWOP.
After a lengthy (and intriguing) recitation of the facts of the case, the Court spent another 11 pages discussing what is well-established precedent. "Viewing all the evidence in the light most favorable to the court's ruling" the Court affirmed the decision of the trial court that Appellant was not "in custody" and therefore, the officers were not required to read him his Miranda rights. Furthermore, because Appellant was not "in custody" the trial court did not have to submit a question to the jury regarding whether the confession was "voluntary."
If you want a crash course on juvenile criminal procedure, including the admissibility of statements, whether an interrogation is "custodial" and whether Miranda warnings are required, check out the full text of the case here. Justice Speedlin does an excellent job in her presentation of the law and application of the facts. Really, in my view, it could have gone either way at the trial level, but once the trial judge has spoken, it would have been a stretch for the appellate court to deviate.
I see all of this as a side issue, because, for me (and possibly the CCA), the thrust of this case was the issue of the constitutionality of mandatory LWOP for juvenile capital murder offenders. I hate that the Court gave such little attention to this issue (4 measly pages). As the Court notes, the U.S. Supreme Court recently heard oral arguments on the question of whether LWOP for a non-homicide offense committed by a juvenile is "cruel and unusual." Sullivan and Graham.
I know what you are thinking... "the Supremes are only considering the constitutionality of LWOP for a non-homicide offense and they will not likely extend any opinion beyond the issue presented." Right you are, but if (and that's a big IF) they hold that LWOP for a juvenile is unconstitutional as it applies to non-homicide offenses, we are only a small step (and a slight shift in public opinion or court ideological makeup) away from LWOP being unconstitutional for all juvenile cases. If you'll remember, it wasn't too long ago that a state could execute a mentally retarded person.
This hardly stands to cause a big fuss in Texas, because, as you may know, Texas recently amended section 12.31(a) of the penal code which now requires a mandatory Life sentence for juvenile cases rather than LWOP. But be on the lookout for U.S. Supreme Court opinions embracing this issue (Sullivan v. Florida and Graham v. Florida), for, while they are unlikely to affect current TX cases, they could bring on a firestorm of habeus petitions.
Appellant (16 years old), who was questioned for over an hour at the police station, ultimately confessed to killing his 2 friends (accidentally, of course). The police officers never advised Appellant of his Miranda rights, maintaining that he was could terminate the "interview" and leave anytime he wished. Accordingly, Appellant challenged, at trial and on appeal, the admission of his incriminating statement, as well as the Texas sentencing scheme of mandatory LWOP.
After a lengthy (and intriguing) recitation of the facts of the case, the Court spent another 11 pages discussing what is well-established precedent. "Viewing all the evidence in the light most favorable to the court's ruling" the Court affirmed the decision of the trial court that Appellant was not "in custody" and therefore, the officers were not required to read him his Miranda rights. Furthermore, because Appellant was not "in custody" the trial court did not have to submit a question to the jury regarding whether the confession was "voluntary."
If you want a crash course on juvenile criminal procedure, including the admissibility of statements, whether an interrogation is "custodial" and whether Miranda warnings are required, check out the full text of the case here. Justice Speedlin does an excellent job in her presentation of the law and application of the facts. Really, in my view, it could have gone either way at the trial level, but once the trial judge has spoken, it would have been a stretch for the appellate court to deviate.
I see all of this as a side issue, because, for me (and possibly the CCA), the thrust of this case was the issue of the constitutionality of mandatory LWOP for juvenile capital murder offenders. I hate that the Court gave such little attention to this issue (4 measly pages). As the Court notes, the U.S. Supreme Court recently heard oral arguments on the question of whether LWOP for a non-homicide offense committed by a juvenile is "cruel and unusual." Sullivan and Graham.
I know what you are thinking... "the Supremes are only considering the constitutionality of LWOP for a non-homicide offense and they will not likely extend any opinion beyond the issue presented." Right you are, but if (and that's a big IF) they hold that LWOP for a juvenile is unconstitutional as it applies to non-homicide offenses, we are only a small step (and a slight shift in public opinion or court ideological makeup) away from LWOP being unconstitutional for all juvenile cases. If you'll remember, it wasn't too long ago that a state could execute a mentally retarded person.
This hardly stands to cause a big fuss in Texas, because, as you may know, Texas recently amended section 12.31(a) of the penal code which now requires a mandatory Life sentence for juvenile cases rather than LWOP. But be on the lookout for U.S. Supreme Court opinions embracing this issue (Sullivan v. Florida and Graham v. Florida), for, while they are unlikely to affect current TX cases, they could bring on a firestorm of habeus petitions.
Friday, December 4, 2009
Section 71.05 - Renunciation Defense
Sec. 71.05. RENUNCIATION DEFENSE.
Text of subsection (a) as amended by Acts 1993, 73rd Leg., ch. 761, Sec. 3
(a) It is an affirmative defense to prosecution under Section 71.02 of this code 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 Subdivisions (1) through (7) or Subdivision (10) of Subsection (a) of Section 71.02 of this code and took further affirmative action that prevented the commission of the offense.
Text of subsection (a) as amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01
(a) It is an affirmative defense to prosecution under Section 71.02 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 Subsection (a) of Section 71.02 and took further affirmative action that prevented the commission of the offense.
(b) For the purposes of this section and Subsection (d) of Section 71.02, 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.
Text of subsection (c) as amended by Acts 1993, 73rd Leg., ch. 761, Sec. 3
(c) Evidence that the defendant withdrew from the combination before commission of an offense listed in Subdivisions (1) through (7) or Subdivision (10) of Subsection (a) of Section 71.02 of this code and made substantial effort to prevent the commission of an offense listed in Subdivisions (1) through (7) or Subdivision (10) of Subsection (a) of Section 71.02 of this code shall be admissible as mitigation at the hearing on punishment if he has been found guilty under Section 71.02 of this code, and in the event of a finding of renunciation under this subsection, the punishment shall be one grade lower than that provided under Section 71.02 of this code.
Added by Acts 1977, 65th Leg., p. 922, ch. 346, Sec. 1, eff. June 10, 1977. Amended by Acts 1981, 67th Leg., p. 2374, ch. 587, Sec. 4, 5, eff. Sept. 1, 1981; Acts 1993, 73rd Leg., ch. 761, Sec. 4, eff. Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Text of subsection (a) as amended by Acts 1993, 73rd Leg., ch. 761, Sec. 3
(a) It is an affirmative defense to prosecution under Section 71.02 of this code 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 Subdivisions (1) through (7) or Subdivision (10) of Subsection (a) of Section 71.02 of this code and took further affirmative action that prevented the commission of the offense.
Text of subsection (a) as amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01
(a) It is an affirmative defense to prosecution under Section 71.02 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 Subsection (a) of Section 71.02 and took further affirmative action that prevented the commission of the offense.
(b) For the purposes of this section and Subsection (d) of Section 71.02, 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.
Text of subsection (c) as amended by Acts 1993, 73rd Leg., ch. 761, Sec. 3
(c) Evidence that the defendant withdrew from the combination before commission of an offense listed in Subdivisions (1) through (7) or Subdivision (10) of Subsection (a) of Section 71.02 of this code and made substantial effort to prevent the commission of an offense listed in Subdivisions (1) through (7) or Subdivision (10) of Subsection (a) of Section 71.02 of this code shall be admissible as mitigation at the hearing on punishment if he has been found guilty under Section 71.02 of this code, and in the event of a finding of renunciation under this subsection, the punishment shall be one grade lower than that provided under Section 71.02 of this code.
Added by Acts 1977, 65th Leg., p. 922, ch. 346, Sec. 1, eff. June 10, 1977. Amended by Acts 1981, 67th Leg., p. 2374, ch. 587, Sec. 4, 5, eff. Sept. 1, 1981; Acts 1993, 73rd Leg., ch. 761, Sec. 4, eff. Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Section 71.02 - Testimonial Immunity
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.
Added by Acts 1977, 65th Leg., p. 922, ch. 346, Sec. 1, eff. June 10, 1977. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
(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.
Added by Acts 1977, 65th Leg., p. 922, ch. 346, Sec. 1, eff. June 10, 1977. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Section 71.03 - Defenses Excluded
Sec. 71.03. DEFENSES EXCLUDED. It is no defense to prosecution under Section 71.02 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; or
(4) once the initial combination of three 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.
Added by Acts 1977, 65th Leg., p. 922, ch. 346, Sec. 1, eff. June 10, 1977. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
(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; or
(4) once the initial combination of three 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.
Added by Acts 1977, 65th Leg., p. 922, ch. 346, Sec. 1, eff. June 10, 1977. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Section 71.029 - Maps as Evidence of Location or Area
Sec. 71.029. MAPS AS EVIDENCE OF LOCATION OR AREA. (a) In a prosecution of an offense for which punishment is increased under Section 71.028, a map produced or reproduced by a municipal or county engineer for the purpose of showing the location and boundaries of gang-free zones is admissible in evidence and is prima facie evidence of the location or boundaries of those zones if the governing body of the municipality or county adopts a resolution or ordinance approving the map as an official finding and record of the location or boundaries of those zones.
(b) A municipal or county engineer may, on request of the governing body of the municipality or county, revise a map that has been approved by the governing body of the municipality or county as provided by Subsection (a).
(c) A municipal or county engineer shall file the original or a copy of every approved or revised map approved as provided by Subsection (a) with the county clerk of each county in which the zone is located.
(d) This section does not prevent the prosecution from:
(1) introducing or relying on any other evidence or testimony to establish any element of an offense for which punishment is increased under Section 71.028; or
(2) using or introducing any other map or diagram otherwise admissible under the Texas Rules of Evidence.
Added by Acts 2009, 81st Leg., R.S., Ch. 1130, Sec. 3, eff. September 1, 2009.
(b) A municipal or county engineer may, on request of the governing body of the municipality or county, revise a map that has been approved by the governing body of the municipality or county as provided by Subsection (a).
(c) A municipal or county engineer shall file the original or a copy of every approved or revised map approved as provided by Subsection (a) with the county clerk of each county in which the zone is located.
(d) This section does not prevent the prosecution from:
(1) introducing or relying on any other evidence or testimony to establish any element of an offense for which punishment is increased under Section 71.028; or
(2) using or introducing any other map or diagram otherwise admissible under the Texas Rules of Evidence.
Added by Acts 2009, 81st Leg., R.S., Ch. 1130, Sec. 3, eff. September 1, 2009.
Section 71.028 - Gang-Free Zone
Sec. 71.028. GANG-FREE ZONES. (a) In this section:
(1) "Institution of higher education," "playground," "premises," "school," "video arcade facility," and "youth center" have the meanings assigned by Section 481.134, Health and Safety Code.
(2) "Shopping mall" means an enclosed public walkway or hall area that connects retail, service, or professional establishments.
(b) This section applies to an offense listed in Section 71.02(a)(1), (4), or (7), other than burglary, theft, burglary of a motor vehicle, or unauthorized use of a motor vehicle.
(c) Except as provided by Subsection (d), the punishment prescribed for an offense described by Subsection (b) is increased to the punishment prescribed for the next highest category of offense if the actor is 17 years of age or older and it is shown beyond a reasonable doubt on the trial of the offense that the actor committed the offense at a location that was:
(1) in, on, or within 1,000 feet of any:
(A) real property that is owned, rented, or leased by a school or school board;
(B) premises owned, rented, or leased by an institution of higher education;
(C) premises of a public or private youth center; or
(D) playground;
(2) in, on, or within 300 feet of any:
(A) shopping mall;
(B) movie theater;
(C) premises of a public swimming pool; or
(D) premises of a video arcade facility; or
(3) on a school bus.
(d) The punishment for an offense described by Subsection (b) may not be increased under this section if the offense is punishable under Section 71.02 as a felony of the first degree.
Added by Acts 2009, 81st Leg., R.S., Ch. 1130, Sec. 3, eff. September 1, 2009.
(1) "Institution of higher education," "playground," "premises," "school," "video arcade facility," and "youth center" have the meanings assigned by Section 481.134, Health and Safety Code.
(2) "Shopping mall" means an enclosed public walkway or hall area that connects retail, service, or professional establishments.
(b) This section applies to an offense listed in Section 71.02(a)(1), (4), or (7), other than burglary, theft, burglary of a motor vehicle, or unauthorized use of a motor vehicle.
(c) Except as provided by Subsection (d), the punishment prescribed for an offense described by Subsection (b) is increased to the punishment prescribed for the next highest category of offense if the actor is 17 years of age or older and it is shown beyond a reasonable doubt on the trial of the offense that the actor committed the offense at a location that was:
(1) in, on, or within 1,000 feet of any:
(A) real property that is owned, rented, or leased by a school or school board;
(B) premises owned, rented, or leased by an institution of higher education;
(C) premises of a public or private youth center; or
(D) playground;
(2) in, on, or within 300 feet of any:
(A) shopping mall;
(B) movie theater;
(C) premises of a public swimming pool; or
(D) premises of a video arcade facility; or
(3) on a school bus.
(d) The punishment for an offense described by Subsection (b) may not be increased under this section if the offense is punishable under Section 71.02 as a felony of the first degree.
Added by Acts 2009, 81st Leg., R.S., Ch. 1130, Sec. 3, eff. September 1, 2009.
Section 71.023 - Directing Activities of Certain Criminal Street Gangs
Sec. 71.023. DIRECTING ACTIVITIES OF CERTAIN CRIMINAL STREET GANGS. (a) A person commits an offense if the person knowingly initiates, organizes, plans, finances, directs, manages, or supervises a criminal street gang or members of a criminal street gang with the intent to benefit, promote, or further the interests of the criminal street gang or to increase the person's standing, position, or status in the criminal street gang.
(b) An offense under this section is a felony of the first degree.
(c) Notwithstanding Section 71.01, in this section, "criminal street gang" means:
(1) an organization that:
(A) has more than 10 members whose names are included in an intelligence database under Chapter 61, Code of Criminal Procedure;
(B) has a hierarchical structure that has been documented in an intelligence database under Chapter 61, Code of Criminal Procedure;
(C) engages in profit-sharing among two or more members of the organization; and
(D) in one or more regions of this state served by different regional councils of government, continuously or regularly engages in conduct:
(i) that constitutes an offense listed in Section 3g(a)(1), Article 42.12, Code of Criminal Procedure;
(ii) in which it is alleged that a deadly weapon is used or exhibited during the commission of or immediate flight from the commission of any felony offense; or
(iii) that is punishable as a felony of the first or second degree under Chapter 481, Health and Safety Code; or
(2) an organization that, in collaboration with an organization described by Subdivision (1), engages in conduct or commits an offense or conspires to engage in conduct or commit an offense described by Subdivision (1)(D).
Added by Acts 2009, 81st Leg., R.S., Ch. 1130, Sec. 3, eff. September 1, 2009.
(b) An offense under this section is a felony of the first degree.
(c) Notwithstanding Section 71.01, in this section, "criminal street gang" means:
(1) an organization that:
(A) has more than 10 members whose names are included in an intelligence database under Chapter 61, Code of Criminal Procedure;
(B) has a hierarchical structure that has been documented in an intelligence database under Chapter 61, Code of Criminal Procedure;
(C) engages in profit-sharing among two or more members of the organization; and
(D) in one or more regions of this state served by different regional councils of government, continuously or regularly engages in conduct:
(i) that constitutes an offense listed in Section 3g(a)(1), Article 42.12, Code of Criminal Procedure;
(ii) in which it is alleged that a deadly weapon is used or exhibited during the commission of or immediate flight from the commission of any felony offense; or
(iii) that is punishable as a felony of the first or second degree under Chapter 481, Health and Safety Code; or
(2) an organization that, in collaboration with an organization described by Subdivision (1), engages in conduct or commits an offense or conspires to engage in conduct or commit an offense described by Subdivision (1)(D).
Added by Acts 2009, 81st Leg., R.S., Ch. 1130, Sec. 3, eff. September 1, 2009.
Section 71.022 - Coercing, Inducing, or Soliciting Membership in a Criminal Street Gang
Sec. 71.022. COERCING, INDUCING, OR SOLICITING MEMBERSHIP IN A CRIMINAL STREET GANG. (a) A person commits an offense if the person knowingly causes, enables, encourages, recruits, or solicits another person to become a member of a criminal street gang which, as a condition of initiation, admission, membership, or continued membership, requires the commission of any conduct which constitutes an offense punishable as a Class A misdemeanor or a felony.
(a-1) A person commits an offense if, with intent to coerce, induce, or solicit a child to actively participate in the activities of a criminal street gang, the person:
(1) threatens the child or a member of the child's family with imminent bodily injury; or
(2) causes bodily injury to the child or a member of the child's family.
(b) Except as provided by Subsection (c), an offense under this section is a felony of the third degree.
(c) A second or subsequent offense under this section is a felony of the second degree.
(d) In this section:
(1) "Child" means an individual younger than 17 years of age.
(2) "Family" has the meaning assigned by Section 71.003, Family Code.
Added by Acts 1999, 76th Leg., ch. 1555, Sec. 1, eff. Sept. 1, 1999.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 435, Sec. 1, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 435, Sec. 2, eff. September 1, 2009.
(a-1) A person commits an offense if, with intent to coerce, induce, or solicit a child to actively participate in the activities of a criminal street gang, the person:
(1) threatens the child or a member of the child's family with imminent bodily injury; or
(2) causes bodily injury to the child or a member of the child's family.
(b) Except as provided by Subsection (c), an offense under this section is a felony of the third degree.
(c) A second or subsequent offense under this section is a felony of the second degree.
(d) In this section:
(1) "Child" means an individual younger than 17 years of age.
(2) "Family" has the meaning assigned by Section 71.003, Family Code.
Added by Acts 1999, 76th Leg., ch. 1555, Sec. 1, eff. Sept. 1, 1999.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 435, Sec. 1, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 435, Sec. 2, eff. September 1, 2009.
Section 71.021 - Violation of Court Order Enjoining Organized Criminal Activity
Sec. 71.021. VIOLATION OF COURT ORDER ENJOINING ORGANIZED CRIMINAL ACTIVITY. (a) A person commits an offense if the person knowingly violates a temporary or permanent order issued under Section 125.065(a) or (b), Civil Practice and Remedies Code.
(b) If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or under both sections.
(c) An offense under this section is a Class A misdemeanor.
Added by Acts 1995, 74th Leg., ch. 584, Sec. 1, eff. Sept. 1, 1995.
(b) If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or under both sections.
(c) An offense under this section is a Class A misdemeanor.
Added by Acts 1995, 74th Leg., ch. 584, Sec. 1, eff. Sept. 1, 1995.
Section 71.02 - Engaging in Organized Criminal Activity
Sec. 71.02. ENGAGING IN ORGANIZED CRIMINAL ACTIVITY.
Text of subsection as amended by Acts 2009, 81st Leg., R.S., Ch. 153, Sec. 2
(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 or as a member of a criminal street gang, the person 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, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle;
(2) any gambling offense punishable as a Class A misdemeanor;
(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 offense under Subchapter B, Chapter 43, depicting or involving conduct by or directed toward a child younger than 18 years of age;
(8) any felony offense under Chapter 32;
(9) any offense under Chapter 36;
(10) any offense under Chapter 34 or 35;
(11) any offense under Section 37.11(a);
(12) any offense under Chapter 20A;
(13) any offense under Section 37.10; or
(14) any offense under Section 46.06(a)(1) or 46.14.
Text of subsection as amended by Acts 2009, 81st Leg., R.S., Ch. 1130, Sec. 1
(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 or as a member of a criminal street gang, 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, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle;
(2) any gambling offense punishable as a Class A misdemeanor;
(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 offense under Subchapter B, Chapter 43, depicting or involving conduct by or directed toward a child younger than 18 years of age;
(8) any felony offense under Chapter 32;
(9) any offense under Chapter 36;
(10) any offense under Chapter 34 or 35;
(11) any offense under Section 37.11(a);
(12) any offense under Chapter 20A;
(13) any offense under Section 37.10; or
(14) any offense under Section 38.06, 38.07, 38.09, or 38.11.
Text of subsection as amended by Acts 2009, 81st Leg., R.S., Ch. 1357, Sec. 2
(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 or as a member of a criminal street gang, 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, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle;
(2) any gambling offense punishable as a Class A misdemeanor;
(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 offense under Subchapter B, Chapter 43, depicting or involving conduct by or directed toward a child younger than 18 years of age;
(8) any felony offense under Chapter 32;
(9) any offense under Chapter 36;
(10) any offense under Chapter 34 or 35;
(11) any offense under Section 37.11(a);
(12) any offense under Chapter 20A;
(13) any offense under Section 37.10; or
(14) any offense under Section 42.10.
Text of subsection (b) as amended by Acts 1993, 73rd Leg., ch. 761, Sec. 3
(b) Except as provided in Subsection (c) of this section, an offense under this section is one category higher than the most serious offense listed in Subdivisions (1) through (10) of Subsection (a) of this section that was committed, and if the most serious offense is a Class A misdemeanor, the offense is a felony of the third degree, except that if the most serious offense is a felony of the first degree, the offense is a felony of the first degree.
Text of subsection (b) as amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01
(b) Except as provided in Subsections (c) and (d), an offense under this section is one category higher than the most serious offense listed in Subsection (a) that was committed, and if the most serious offense is a Class A misdemeanor, the offense is a state jail felony, except that if the most serious offense is a felony of the first degree, the offense is a felony of the first degree.
Text of subsection (c) as amended by Acts 1993, 73rd Leg., ch. 761, Sec. 3
(c) Conspiring to commit an offense under this section is of the same degree as the most serious offense listed in Subdivisions (1) through (10) of Subsection (a) of this section that the person conspired to commit.
Text of subsection (c) as amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01
(c) Conspiring to commit an offense under this section is of the same degree as the most serious offense listed in Subsection (a) that the person conspired to commit.
(d) At the punishment stage of a trial, the defendant may raise the issue as to whether in voluntary and complete renunciation of the offense he withdrew from the combination before commission of an offense listed in Subsection (a) and made substantial effort to prevent the commission of the offense. If the defendant proves the issue in the affirmative by a preponderance of the evidence the offense is the same category of offense as the most serious offense listed in Subsection (a) that is committed, unless the defendant is convicted of conspiring to commit the offense, in which event the offense is one category lower than the most serious offense that the defendant conspired to commit.
Added by Acts 1977, 65th Leg., p. 922, ch. 346, Sec. 1, eff. June 10, 1977. Amended by Acts 1981, 67th Leg., p. 2373, ch. 587, Sec. 1 to 3, eff. Sept. 1, 1981; Acts 1989, 71st Leg., ch. 782, Sec. 2, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 555, Sec. 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 761, Sec. 3, eff. Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 318, Sec. 24, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 189, Sec. 9, eff. May 21, 1997; Acts 1999, 76th Leg., ch. 685, Sec. 8, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 641, Sec. 3, eff. Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 1162, Sec. 5, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch. 1163, Sec. 2, eff. September 1, 2007.
Acts 2009, 81st Leg., R.S., Ch. 153, Sec. 2, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1130, Sec. 1, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1357, Sec. 2, eff. September 1, 2009.
Text of subsection as amended by Acts 2009, 81st Leg., R.S., Ch. 153, Sec. 2
(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 or as a member of a criminal street gang, the person 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, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle;
(2) any gambling offense punishable as a Class A misdemeanor;
(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 offense under Subchapter B, Chapter 43, depicting or involving conduct by or directed toward a child younger than 18 years of age;
(8) any felony offense under Chapter 32;
(9) any offense under Chapter 36;
(10) any offense under Chapter 34 or 35;
(11) any offense under Section 37.11(a);
(12) any offense under Chapter 20A;
(13) any offense under Section 37.10; or
(14) any offense under Section 46.06(a)(1) or 46.14.
Text of subsection as amended by Acts 2009, 81st Leg., R.S., Ch. 1130, Sec. 1
(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 or as a member of a criminal street gang, 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, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle;
(2) any gambling offense punishable as a Class A misdemeanor;
(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 offense under Subchapter B, Chapter 43, depicting or involving conduct by or directed toward a child younger than 18 years of age;
(8) any felony offense under Chapter 32;
(9) any offense under Chapter 36;
(10) any offense under Chapter 34 or 35;
(11) any offense under Section 37.11(a);
(12) any offense under Chapter 20A;
(13) any offense under Section 37.10; or
(14) any offense under Section 38.06, 38.07, 38.09, or 38.11.
Text of subsection as amended by Acts 2009, 81st Leg., R.S., Ch. 1357, Sec. 2
(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 or as a member of a criminal street gang, 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, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle;
(2) any gambling offense punishable as a Class A misdemeanor;
(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 offense under Subchapter B, Chapter 43, depicting or involving conduct by or directed toward a child younger than 18 years of age;
(8) any felony offense under Chapter 32;
(9) any offense under Chapter 36;
(10) any offense under Chapter 34 or 35;
(11) any offense under Section 37.11(a);
(12) any offense under Chapter 20A;
(13) any offense under Section 37.10; or
(14) any offense under Section 42.10.
Text of subsection (b) as amended by Acts 1993, 73rd Leg., ch. 761, Sec. 3
(b) Except as provided in Subsection (c) of this section, an offense under this section is one category higher than the most serious offense listed in Subdivisions (1) through (10) of Subsection (a) of this section that was committed, and if the most serious offense is a Class A misdemeanor, the offense is a felony of the third degree, except that if the most serious offense is a felony of the first degree, the offense is a felony of the first degree.
Text of subsection (b) as amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01
(b) Except as provided in Subsections (c) and (d), an offense under this section is one category higher than the most serious offense listed in Subsection (a) that was committed, and if the most serious offense is a Class A misdemeanor, the offense is a state jail felony, except that if the most serious offense is a felony of the first degree, the offense is a felony of the first degree.
Text of subsection (c) as amended by Acts 1993, 73rd Leg., ch. 761, Sec. 3
(c) Conspiring to commit an offense under this section is of the same degree as the most serious offense listed in Subdivisions (1) through (10) of Subsection (a) of this section that the person conspired to commit.
Text of subsection (c) as amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01
(c) Conspiring to commit an offense under this section is of the same degree as the most serious offense listed in Subsection (a) that the person conspired to commit.
(d) At the punishment stage of a trial, the defendant may raise the issue as to whether in voluntary and complete renunciation of the offense he withdrew from the combination before commission of an offense listed in Subsection (a) and made substantial effort to prevent the commission of the offense. If the defendant proves the issue in the affirmative by a preponderance of the evidence the offense is the same category of offense as the most serious offense listed in Subsection (a) that is committed, unless the defendant is convicted of conspiring to commit the offense, in which event the offense is one category lower than the most serious offense that the defendant conspired to commit.
Added by Acts 1977, 65th Leg., p. 922, ch. 346, Sec. 1, eff. June 10, 1977. Amended by Acts 1981, 67th Leg., p. 2373, ch. 587, Sec. 1 to 3, eff. Sept. 1, 1981; Acts 1989, 71st Leg., ch. 782, Sec. 2, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 555, Sec. 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 761, Sec. 3, eff. Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 318, Sec. 24, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 189, Sec. 9, eff. May 21, 1997; Acts 1999, 76th Leg., ch. 685, Sec. 8, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 641, Sec. 3, eff. Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 1162, Sec. 5, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch. 1163, Sec. 2, eff. September 1, 2007.
Acts 2009, 81st Leg., R.S., Ch. 153, Sec. 2, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1130, Sec. 1, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1357, Sec. 2, eff. September 1, 2009.
Section 71.01 - Definitions
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.
(d) "Criminal street gang" means three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities.
Added by Acts 1977, 65th Leg., p. 922, ch. 346, Sec. 1, eff. June 10, 1977. Amended by Acts 1989, 71st Leg., ch. 782, Sec. 1, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 555, Sec. 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 318, Sec. 23, eff. Sept. 1, 1995.
(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.
(d) "Criminal street gang" means three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities.
Added by Acts 1977, 65th Leg., p. 922, ch. 346, Sec. 1, eff. June 10, 1977. Amended by Acts 1989, 71st Leg., ch. 782, Sec. 1, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 555, Sec. 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 318, Sec. 23, eff. Sept. 1, 1995.
Thursday, December 3, 2009
Section 49.12 - Applicability to Certain Conduct
Sec. 49.12. APPLICABILITY TO CERTAIN CONDUCT. Sections 49.07 and 49.08 do not apply to injury to or the death of an unborn child if the conduct charged is conduct committed by the mother of the unborn child.
Added by Acts 2003, 78th Leg., ch. 822, Sec. 2.05, eff. Sept. 1, 2003.
Added by Acts 2003, 78th Leg., ch. 822, Sec. 2.05, eff. Sept. 1, 2003.
Section 49.11 - Proof of Mental State Unnecessary
Sec. 49.11. PROOF OF MENTAL STATE UNNECESSARY. (a) Notwithstanding Section 6.02(b), proof of a culpable mental state is not required for conviction of an offense under this chapter.
(b) Subsection (a) does not apply to an offense under Section 49.031.
Added by Acts 1995, 74th Leg., ch. 318, Sec. 22, eff. Sept. 1, 1995. Amended by Acts 2001, 77th Leg., ch. 969, Sec. 4, eff. Sept. 1, 2001.
(b) Subsection (a) does not apply to an offense under Section 49.031.
Added by Acts 1995, 74th Leg., ch. 318, Sec. 22, eff. Sept. 1, 1995. Amended by Acts 2001, 77th Leg., ch. 969, Sec. 4, eff. Sept. 1, 2001.
Section 49.10 - No Defense
Sec. 49.10. NO DEFENSE. In a prosecution under Section 49.03, 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08, the fact that the defendant is or has been entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance is not a defense.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1999, 76th Leg., ch. 1364, Sec. 14, eff. Jan. 1, 2000; Acts 2003, 78th Leg., ch. 787, Sec. 3, eff. Sept. 1, 2003.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1999, 76th Leg., ch. 1364, Sec. 14, eff. Jan. 1, 2000; Acts 2003, 78th Leg., ch. 787, Sec. 3, eff. Sept. 1, 2003.
Cognate-Pleadings Test Applies to all Prosecutions
Murray v. State (Tex.Crim.App.)
In this case, the Court of Criminal Appeals affirmed the holding of the 14th Court of Appeals (Harris County), that the Cognate-Pleadings test for lesser-included offenses applies to all prosecutions, be they before judge or jury.
What is the Cognate-Pleadings test you ask?
The Cognate-Pleadings approach to lesser-included offenses requires the court to look to the facts and elements as alleged in the charging instrument, and not just to the statutory elements of the offense, to determine whether there exists a lesser-included offense of the greater charged offense. See Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007).
In this case, the Court of Criminal Appeals affirmed the holding of the 14th Court of Appeals (Harris County), that the Cognate-Pleadings test for lesser-included offenses applies to all prosecutions, be they before judge or jury.
What is the Cognate-Pleadings test you ask?
The Cognate-Pleadings approach to lesser-included offenses requires the court to look to the facts and elements as alleged in the charging instrument, and not just to the statutory elements of the offense, to determine whether there exists a lesser-included offense of the greater charged offense. See Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007).
Section 49.09 - Enhanced Offenses and Penalties
Sec. 49.09. ENHANCED OFFENSES AND PENALTIES. (a) Except as provided by Subsection (b), an offense under Section 49.04, 49.05, 49.06, or 49.065 is a Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated.
(b) An offense under Section 49.04, 49.05, 49.06, or 49.065 is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted:
(1) one time of an offense under Section 49.08 or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense under Section 49.08; or
(2) two times of any other offense relating to the operating of a motor vehicle while intoxicated, operating an aircraft while intoxicated, operating a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated.
(b-1) An offense under Section 49.07 is a felony of the second degree if it is shown on the trial of the offense that the person caused serious bodily injury to a peace officer, a firefighter, or emergency medical services personnel while in the actual discharge of an official duty.
(b-2) An offense under Section 49.08 is a felony of the first degree if it is shown on the trial of the offense that the person caused the death of a person described by Subsection (b-1).
(b-3) For the purposes of Subsection (b-1):
(1) "Emergency medical services personnel" has the meaning assigned by Section 773.003, Health and Safety Code.
(2) "Firefighter" means:
(A) an individual employed by this state or by a political or legal subdivision of this state who is subject to certification by the Texas Commission on Fire Protection; or
(B) a member of an organized volunteer fire-fighting unit that:
(i) renders fire-fighting services without remuneration; and
(ii) conducts a minimum of two drills each month, each at least two hours long.
(c) For the purposes of this section:
(1) "Offense relating to the operating of a motor vehicle while intoxicated" means:
(A) an offense under Section 49.04 or 49.045;
(B) an offense under Section 49.07 or 49.08, if the vehicle operated was a motor vehicle;
(C) an offense under Article 6701l-1, Revised Statutes, as that law existed before September 1, 1994;
(D) an offense under Article 6701l-2, Revised Statutes, as that law existed before January 1, 1984;
(E) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a motor vehicle; or
(F) an offense under the laws of another state that prohibit the operation of a motor vehicle while intoxicated.
(2) "Offense of operating an aircraft while intoxicated" means:
(A) an offense under Section 49.05;
(B) an offense under Section 49.07 or 49.08, if the vehicle operated was an aircraft;
(C) an offense under Section 1, Chapter 46, Acts of the 58th Legislature, Regular Session, 1963 (Article 46f-3, Vernon's Texas Civil Statutes), as that law existed before September 1, 1994;
(D) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was an aircraft; or
(E) an offense under the laws of another state that prohibit the operation of an aircraft while intoxicated.
(3) "Offense of operating a watercraft while intoxicated" means:
(A) an offense under Section 49.06;
(B) an offense under Section 49.07 or 49.08, if the vehicle operated was a watercraft;
(C) an offense under Section 31.097, Parks and Wildlife Code, as that law existed before September 1, 1994;
(D) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a watercraft; or
(E) an offense under the laws of another state that prohibit the operation of a watercraft while intoxicated.
(4) "Offense of operating or assembling an amusement ride while intoxicated" means:
(A) an offense under Section 49.065;
(B) an offense under Section 49.07 or 49.08, if the offense involved the operation or assembly of an amusement ride; or
(C) an offense under the law of another state that prohibits the operation of an amusement ride while intoxicated or the assembly of a mobile amusement ride while intoxicated.
(d) For the purposes of this section, a conviction for an offense under Section 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08 that occurs on or after September 1, 1994, is a final conviction, whether the sentence for the conviction is imposed or probated.
(e) Repealed by Acts 2005, 79th Leg., Ch. 996, Sec. 3, eff. September 1, 2005.
(f) Repealed by Acts 2005, 79th Leg., Ch. 996, Sec. 3, eff. September 1, 2005.
(g) A conviction may be used for purposes of enhancement under this section or enhancement under Subchapter D, Chapter 12, but not under both this section and Subchapter D.
(h) This subsection applies only to a person convicted of a second or subsequent offense relating to the operating of a motor vehicle while intoxicated committed within five years of the date on which the most recent preceding offense was committed. The court shall enter an order that requires the defendant to have a device installed, on each motor vehicle owned or operated by the defendant, 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, and that requires that before the first anniversary of the ending date of the period of license suspension under Section 521.344, Transportation Code, the defendant not operate any motor vehicle that is not equipped with that device. The court shall require the defendant to obtain the device at the defendant's own cost on or before that ending date, require the defendant to provide evidence to the court on or before that ending date that the device has been installed on each appropriate vehicle, and order the device to remain installed on each vehicle until the first anniversary of that ending date. If the court determines the offender is unable to pay for the device, the court may impose a reasonable payment schedule not to extend beyond the first anniversary of the date of installation. The Department of Public Safety shall approve devices for use under this subsection. Section 521.247, Transportation Code, applies to the approval of a device under this subsection and the consequences of that approval. Failure to comply with an order entered under this subsection is punishable by contempt. For the purpose of enforcing this subsection, the court that enters an order under this subsection retains jurisdiction over the defendant until the date on which the device is no longer required to remain installed. To the extent of a conflict between this subsection and Section 13(i), Article 42.12, Code of Criminal Procedure, this subsection controls.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 14.56, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 318, Sec. 21, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 1364, Sec. 12, 13, eff. Jan. 1, 2000; Acts 2001, 77th Leg., ch. 648, Sec. 1, 2, eff, Sept. 1, 2001; Acts 2001, 77th Leg., ch. 969, Sec. 3, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 787, Sec. 2, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1275, Sec. 2(117), eff. Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 996, Sec. 1, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 996, Sec. 3, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch. 662, Sec. 4, eff. September 1, 2007.
(b) An offense under Section 49.04, 49.05, 49.06, or 49.065 is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted:
(1) one time of an offense under Section 49.08 or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense under Section 49.08; or
(2) two times of any other offense relating to the operating of a motor vehicle while intoxicated, operating an aircraft while intoxicated, operating a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated.
(b-1) An offense under Section 49.07 is a felony of the second degree if it is shown on the trial of the offense that the person caused serious bodily injury to a peace officer, a firefighter, or emergency medical services personnel while in the actual discharge of an official duty.
(b-2) An offense under Section 49.08 is a felony of the first degree if it is shown on the trial of the offense that the person caused the death of a person described by Subsection (b-1).
(b-3) For the purposes of Subsection (b-1):
(1) "Emergency medical services personnel" has the meaning assigned by Section 773.003, Health and Safety Code.
(2) "Firefighter" means:
(A) an individual employed by this state or by a political or legal subdivision of this state who is subject to certification by the Texas Commission on Fire Protection; or
(B) a member of an organized volunteer fire-fighting unit that:
(i) renders fire-fighting services without remuneration; and
(ii) conducts a minimum of two drills each month, each at least two hours long.
(c) For the purposes of this section:
(1) "Offense relating to the operating of a motor vehicle while intoxicated" means:
(A) an offense under Section 49.04 or 49.045;
(B) an offense under Section 49.07 or 49.08, if the vehicle operated was a motor vehicle;
(C) an offense under Article 6701l-1, Revised Statutes, as that law existed before September 1, 1994;
(D) an offense under Article 6701l-2, Revised Statutes, as that law existed before January 1, 1984;
(E) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a motor vehicle; or
(F) an offense under the laws of another state that prohibit the operation of a motor vehicle while intoxicated.
(2) "Offense of operating an aircraft while intoxicated" means:
(A) an offense under Section 49.05;
(B) an offense under Section 49.07 or 49.08, if the vehicle operated was an aircraft;
(C) an offense under Section 1, Chapter 46, Acts of the 58th Legislature, Regular Session, 1963 (Article 46f-3, Vernon's Texas Civil Statutes), as that law existed before September 1, 1994;
(D) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was an aircraft; or
(E) an offense under the laws of another state that prohibit the operation of an aircraft while intoxicated.
(3) "Offense of operating a watercraft while intoxicated" means:
(A) an offense under Section 49.06;
(B) an offense under Section 49.07 or 49.08, if the vehicle operated was a watercraft;
(C) an offense under Section 31.097, Parks and Wildlife Code, as that law existed before September 1, 1994;
(D) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a watercraft; or
(E) an offense under the laws of another state that prohibit the operation of a watercraft while intoxicated.
(4) "Offense of operating or assembling an amusement ride while intoxicated" means:
(A) an offense under Section 49.065;
(B) an offense under Section 49.07 or 49.08, if the offense involved the operation or assembly of an amusement ride; or
(C) an offense under the law of another state that prohibits the operation of an amusement ride while intoxicated or the assembly of a mobile amusement ride while intoxicated.
(d) For the purposes of this section, a conviction for an offense under Section 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08 that occurs on or after September 1, 1994, is a final conviction, whether the sentence for the conviction is imposed or probated.
(e) Repealed by Acts 2005, 79th Leg., Ch. 996, Sec. 3, eff. September 1, 2005.
(f) Repealed by Acts 2005, 79th Leg., Ch. 996, Sec. 3, eff. September 1, 2005.
(g) A conviction may be used for purposes of enhancement under this section or enhancement under Subchapter D, Chapter 12, but not under both this section and Subchapter D.
(h) This subsection applies only to a person convicted of a second or subsequent offense relating to the operating of a motor vehicle while intoxicated committed within five years of the date on which the most recent preceding offense was committed. The court shall enter an order that requires the defendant to have a device installed, on each motor vehicle owned or operated by the defendant, 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, and that requires that before the first anniversary of the ending date of the period of license suspension under Section 521.344, Transportation Code, the defendant not operate any motor vehicle that is not equipped with that device. The court shall require the defendant to obtain the device at the defendant's own cost on or before that ending date, require the defendant to provide evidence to the court on or before that ending date that the device has been installed on each appropriate vehicle, and order the device to remain installed on each vehicle until the first anniversary of that ending date. If the court determines the offender is unable to pay for the device, the court may impose a reasonable payment schedule not to extend beyond the first anniversary of the date of installation. The Department of Public Safety shall approve devices for use under this subsection. Section 521.247, Transportation Code, applies to the approval of a device under this subsection and the consequences of that approval. Failure to comply with an order entered under this subsection is punishable by contempt. For the purpose of enforcing this subsection, the court that enters an order under this subsection retains jurisdiction over the defendant until the date on which the device is no longer required to remain installed. To the extent of a conflict between this subsection and Section 13(i), Article 42.12, Code of Criminal Procedure, this subsection controls.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 14.56, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 318, Sec. 21, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 1364, Sec. 12, 13, eff. Jan. 1, 2000; Acts 2001, 77th Leg., ch. 648, Sec. 1, 2, eff, Sept. 1, 2001; Acts 2001, 77th Leg., ch. 969, Sec. 3, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 787, Sec. 2, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1275, Sec. 2(117), eff. Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 996, Sec. 1, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 996, Sec. 3, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch. 662, Sec. 4, eff. September 1, 2007.
Section 49.08 - Intoxication Manslaughter
Sec. 49.08. INTOXICATION MANSLAUGHTER. (a) A person commits an offense if the person:
(1) operates a motor vehicle in a public place, operates an aircraft, a watercraft, or an amusement ride, or assembles a mobile amusement ride; and
(2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.
(b) Except as provided by Section 49.09, an offense under this section is a felony of the second degree.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1999, 76th Leg., ch. 1364, Sec. 11, eff. Jan. 1, 2000.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 662, Sec. 3, eff. September 1, 2007.
(1) operates a motor vehicle in a public place, operates an aircraft, a watercraft, or an amusement ride, or assembles a mobile amusement ride; and
(2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.
(b) Except as provided by Section 49.09, an offense under this section is a felony of the second degree.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1999, 76th Leg., ch. 1364, Sec. 11, eff. Jan. 1, 2000.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 662, Sec. 3, eff. September 1, 2007.
Section 49.07 - Intoxication Assault
Sec. 49.07. INTOXICATION ASSAULT. (a) A person commits an offense if the person, by accident or mistake:
(1) while operating an aircraft, watercraft, or amusement ride while intoxicated, or while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another; or
(2) as a result of assembling a mobile amusement ride while intoxicated causes serious bodily injury to another.
(b) In this section, "serious bodily injury" means injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.
(c) Except as provided by Section 49.09, an offense under this section is a felony of the third degree.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1999, 76th Leg., ch. 1364, Sec. 10, eff. Jan. 1, 2000.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 662, Sec. 2, eff. September 1, 2007.
(1) while operating an aircraft, watercraft, or amusement ride while intoxicated, or while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another; or
(2) as a result of assembling a mobile amusement ride while intoxicated causes serious bodily injury to another.
(b) In this section, "serious bodily injury" means injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.
(c) Except as provided by Section 49.09, an offense under this section is a felony of the third degree.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1999, 76th Leg., ch. 1364, Sec. 10, eff. Jan. 1, 2000.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 662, Sec. 2, eff. September 1, 2007.
Section 49.065 - Assembling or Operating an Amusement Ride While Intoxicated
Sec. 49.065. ASSEMBLING OR OPERATING AN AMUSEMENT RIDE WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating an amusement ride or while assembling a mobile amusement ride.
(b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor with a minimum term of confinement of 72 hours.
(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the amusement ride or assembling the mobile amusement ride had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor with a minimum term of confinement of six days.
Added by Acts 1999, 76th Leg., ch. 1364, Sec. 9, eff. Jan. 1, 2000.
(b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor with a minimum term of confinement of 72 hours.
(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the amusement ride or assembling the mobile amusement ride had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor with a minimum term of confinement of six days.
Added by Acts 1999, 76th Leg., ch. 1364, Sec. 9, eff. Jan. 1, 2000.
Section 49.06 - Boating While Intoxicated
Sec. 49.06. BOATING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating a watercraft.
(b) Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
(b) Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Section 49.05 - Flying While Intoxicated
Sec. 49.05. FLYING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating an aircraft.
(b) Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
(b) Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Section 49.045 - Driving While Intoxicated with Child Passenger
Sec. 49.045. DRIVING WHILE INTOXICATED WITH CHILD PASSENGER. (a) A person commits an offense if:
(1) the person is intoxicated while operating a motor vehicle in a public place; and
(2) the vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age.
(b) An offense under this section is a state jail felony.
Added by Acts 2003, 78th Leg., ch. 787, Sec. 1, eff. Sept. 1, 2003.
(1) the person is intoxicated while operating a motor vehicle in a public place; and
(2) the vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age.
(b) An offense under this section is a state jail felony.
Added by Acts 2003, 78th Leg., ch. 787, Sec. 1, eff. Sept. 1, 2003.
Section 49.04 - Driving While Intoxicated (DWI)
Sec. 49.04. DRIVING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
(b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 14.55, eff. Sept. 1, 1995.
(b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 14.55, eff. Sept. 1, 1995.
Section 49.031 - Possession of Alcoholic Beverage in Motor Vehicle
Sec. 49.031. POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR VEHICLE. (a) In this section:
(1) "Open container" means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.
(2) "Passenger area of a motor vehicle" means the area of a motor vehicle designed for the seating of the operator and passengers of the vehicle. The term does not include:
(A) a glove compartment or similar storage container that is locked;
(B) the trunk of a vehicle; or
(C) the area behind the last upright seat of the vehicle, if the vehicle does not have a trunk.
(3) "Public highway" means the entire width between and immediately adjacent to the boundary lines of any public road, street, highway, interstate, or other publicly maintained way if any part is open for public use for the purpose of motor vehicle travel. The term includes the right-of-way of a public highway.
(b) A person commits an offense if the person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked. Possession by a person of one or more open containers in a single criminal episode is a single offense.
(c) It is an exception to the application of Subsection (b) that at the time of the offense the defendant was a passenger in:
(1) the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation, including a bus, taxicab, or limousine; or
(2) the living quarters of a motorized house coach or motorized house trailer, including a self-contained camper, a motor home, or a recreational vehicle.
(d) An offense under this section is a Class C misdemeanor.
(e) A peace officer charging a person with an offense under this section, instead of taking the person before a magistrate, shall issue to the person a written citation and notice to appear that contains the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged. If the person makes a written promise to appear before the magistrate by signing in duplicate the citation and notice to appear issued by the officer, the officer shall release the person.
Added by Acts 2001, 77th Leg., ch. 969, Sec. 2, eff. Sept. 1, 2001.
(1) "Open container" means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.
(2) "Passenger area of a motor vehicle" means the area of a motor vehicle designed for the seating of the operator and passengers of the vehicle. The term does not include:
(A) a glove compartment or similar storage container that is locked;
(B) the trunk of a vehicle; or
(C) the area behind the last upright seat of the vehicle, if the vehicle does not have a trunk.
(3) "Public highway" means the entire width between and immediately adjacent to the boundary lines of any public road, street, highway, interstate, or other publicly maintained way if any part is open for public use for the purpose of motor vehicle travel. The term includes the right-of-way of a public highway.
(b) A person commits an offense if the person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked. Possession by a person of one or more open containers in a single criminal episode is a single offense.
(c) It is an exception to the application of Subsection (b) that at the time of the offense the defendant was a passenger in:
(1) the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation, including a bus, taxicab, or limousine; or
(2) the living quarters of a motorized house coach or motorized house trailer, including a self-contained camper, a motor home, or a recreational vehicle.
(d) An offense under this section is a Class C misdemeanor.
(e) A peace officer charging a person with an offense under this section, instead of taking the person before a magistrate, shall issue to the person a written citation and notice to appear that contains the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged. If the person makes a written promise to appear before the magistrate by signing in duplicate the citation and notice to appear issued by the officer, the officer shall release the person.
Added by Acts 2001, 77th Leg., ch. 969, Sec. 2, eff. Sept. 1, 2001.
Section 49.02 - Public Intoxication
Sec. 49.02. PUBLIC INTOXICATION. (a) A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.
(a-1) For the purposes of this section, a premises licensed or permitted under the Alcoholic Beverage Code is a public place.
(b) It is a defense to prosecution under this section that the alcohol or other substance was administered for therapeutic purposes and as a part of the person's professional medical treatment by a licensed physician.
(c) Except as provided by Subsection (e), an offense under this section is a Class C misdemeanor.
(d) An offense under this section is not a lesser included offense under Section 49.04.
(e) An offense under this section committed by a person younger than 21 years of age is punishable in the same manner as if the minor committed an offense to which Section 106.071, Alcoholic Beverage Code, applies.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1997, 75th Leg., ch. 1013, Sec. 12, eff. Sept. 1, 1997.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 68, Sec. 25, eff. September 1, 2007.
(a-1) For the purposes of this section, a premises licensed or permitted under the Alcoholic Beverage Code is a public place.
(b) It is a defense to prosecution under this section that the alcohol or other substance was administered for therapeutic purposes and as a part of the person's professional medical treatment by a licensed physician.
(c) Except as provided by Subsection (e), an offense under this section is a Class C misdemeanor.
(d) An offense under this section is not a lesser included offense under Section 49.04.
(e) An offense under this section committed by a person younger than 21 years of age is punishable in the same manner as if the minor committed an offense to which Section 106.071, Alcoholic Beverage Code, applies.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1997, 75th Leg., ch. 1013, Sec. 12, eff. Sept. 1, 1997.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 68, Sec. 25, eff. September 1, 2007.
Section 49.01 - Definitions
Sec. 49.01. DEFINITIONS. In this chapter:
(1) "Alcohol concentration" means the number of grams of alcohol per:
(A) 210 liters of breath;
(B) 100 milliliters of blood; or
(C) 67 milliliters of urine.
(2) "Intoxicated" means:
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
(B) having an alcohol concentration of 0.08 or more.
(3) "Motor vehicle" has the meaning assigned by Section 32.34(a).
(4) "Watercraft" means a vessel, one or more water skis, an aquaplane, or another device used for transporting or carrying a person on water, other than a device propelled only by the current of water.
(5) "Amusement ride" has the meaning assigned by Section 2151.002, Occupations Code.
(6) "Mobile amusement ride" has the meaning assigned by Section 2151.002, Occupations Code.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1999, 76th Leg., ch. 234, Sec. 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1364, Sec. 8, eff. Jan. 1, 2000; Acts 2001, 77th Leg., ch. 1420, Sec. 14.707, eff. Sept. 1, 2001.
(1) "Alcohol concentration" means the number of grams of alcohol per:
(A) 210 liters of breath;
(B) 100 milliliters of blood; or
(C) 67 milliliters of urine.
(2) "Intoxicated" means:
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
(B) having an alcohol concentration of 0.08 or more.
(3) "Motor vehicle" has the meaning assigned by Section 32.34(a).
(4) "Watercraft" means a vessel, one or more water skis, an aquaplane, or another device used for transporting or carrying a person on water, other than a device propelled only by the current of water.
(5) "Amusement ride" has the meaning assigned by Section 2151.002, Occupations Code.
(6) "Mobile amusement ride" has the meaning assigned by Section 2151.002, Occupations Code.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1999, 76th Leg., ch. 234, Sec. 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1364, Sec. 8, eff. Jan. 1, 2000; Acts 2001, 77th Leg., ch. 1420, Sec. 14.707, eff. Sept. 1, 2001.
Section 48.02 - Prohibition of the Purchase and Sale of Human Organs
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 Class A misdemeanor.
Added by Acts 1985, 69th Leg., ch. 40, Sec. 1, eff. Aug. 26, 1985. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
(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 Class A misdemeanor.
Added by Acts 1985, 69th Leg., ch. 40, Sec. 1, eff. Aug. 26, 1985. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Section 48.015 - Prohibitions Relating to Certain Cigarettes
Sec. 48.015. PROHIBITIONS RELATING TO CERTAIN CIGARETTES. (a) A person may not acquire, hold, own, possess, or transport for sale or distribution in this state or import or cause to be imported into this state for sale or distribution in this state:
(1) cigarettes that do not comply with all applicable requirements imposed by or under federal law and implementing regulations; or
(2) cigarettes to which stamps may not be affixed under Section 154.0415, Tax Code, other than cigarettes lawfully imported or brought into the state for personal use and cigarettes lawfully sold or intended to be sold as duty-free merchandise by a duty-free sales enterprise in accordance with 19 U.S.C. Section 1555(b), as amended.
(b) A person who commits an act prohibited by Subsection (a), knowing or having reason to know that the person is doing so, is guilty of a Class A misdemeanor.
Added by Acts 2001, 77th Leg., ch. 1104, Sec. 6, eff. Sept. 1, 2001.
(1) cigarettes that do not comply with all applicable requirements imposed by or under federal law and implementing regulations; or
(2) cigarettes to which stamps may not be affixed under Section 154.0415, Tax Code, other than cigarettes lawfully imported or brought into the state for personal use and cigarettes lawfully sold or intended to be sold as duty-free merchandise by a duty-free sales enterprise in accordance with 19 U.S.C. Section 1555(b), as amended.
(b) A person who commits an act prohibited by Subsection (a), knowing or having reason to know that the person is doing so, is guilty of a Class A misdemeanor.
Added by Acts 2001, 77th Leg., ch. 1104, Sec. 6, eff. Sept. 1, 2001.
Section 48.01 - Smoking Tobacco
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 541.201, Transportation Code, 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.
Added by Acts 1975, 64th Leg., p. 744, ch. 290, Sec. 1, eff. Sept. 1, 1975. Amended by Acts 1991, 72nd Leg., ch. 108, Sec. 2, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 165, Sec. 30.242, eff. Sept. 1, 1997.
(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.
Added by Acts 1975, 64th Leg., p. 744, ch. 290, Sec. 1, eff. Sept. 1, 1975. Amended by Acts 1991, 72nd Leg., ch. 108, Sec. 2, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 165, Sec. 30.242, eff. Sept. 1, 1997.
Wednesday, December 2, 2009
Section 47.10 - American Documentation of Vessel Required
Sec. 47.10. AMERICAN DOCUMENTATION OF VESSEL REQUIRED. If 18 U.S.C. Section 1082 is repealed, the affirmative defenses provided by Section 47.09(b) apply only if the vessel is documented under the laws of the United States.
Added by Acts 1989, 71st Leg., ch. 1030, Sec. 4, eff. Sept. 1, 1989. Renumbered from Penal Code Sec. 47.12 by Acts 1990, 71st Leg., 6th C.S., ch. 12, Sec. 2(27), eff. Sept. 6, 1990. Renumbered from Penal Code Sec. 47.13 and amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Added by Acts 1989, 71st Leg., ch. 1030, Sec. 4, eff. Sept. 1, 1989. Renumbered from Penal Code Sec. 47.12 by Acts 1990, 71st Leg., 6th C.S., ch. 12, Sec. 2(27), eff. Sept. 6, 1990. Renumbered from Penal Code Sec. 47.13 and amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Section 47.09 - Other Defenses
Sec. 47.09. OTHER DEFENSES. (a) It is a defense to prosecution under this chapter that the conduct:
(1) was authorized under:
(A) Chapter 2001, Occupations Code;
(B) Chapter 2002, Occupations Code; or
(C) the Texas Racing Act (Article 179e, Vernon's Texas Civil Statutes);
(2) consisted entirely of participation in the state lottery authorized by Chapter 466, Government Code; or
(3) was a necessary incident to the operation of the state lottery and was directly or indirectly authorized by:
(A) Chapter 466, Government Code;
(B) the lottery division of the Texas Lottery Commission;
(C) the Texas Lottery Commission; or
(D) the director of the lottery division of the Texas Lottery Commission.
(b) It is an affirmative defense to prosecution under Sections 47.04, 47.06(a), and 47.06(c) that the gambling device, equipment, or paraphernalia is aboard an ocean-going vessel that enters the territorial waters of this state to call at a port in this state if:
(1) before the vessel enters the territorial waters of this state, the district attorney or, if there is no district attorney, the county attorney for the county in which the port is located receives notice of the existence of the device, equipment, or paraphernalia on board the vessel and of the anticipated dates on which the vessel will enter and leave the territorial waters of this state;
(2) at all times while the vessel is in the territorial waters of this state all devices, equipment, or paraphernalia are disabled, electronically or by another method, from a remote and secured area of the vessel in a manner that allows only the master or crew of the vessel to remove any disabling device;
(3) at all times while the vessel is in the territorial waters of this state any disabling device is not removed except for the purposes of inspecting or repairing the device, equipment, or paraphernalia; and
(4) the device, equipment, or paraphernalia is not used for gambling or other gaming purposes while the vessel is in the territorial waters of this state.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 14.54, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 111, Sec. 1, eff. May 16, 1997; Acts 1997, 75th Leg., ch. 1035, Sec. 55, eff. June 19, 1997; Acts 1999, 76th Leg., ch. 844, Sec. 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1420, Sec. 14.835, eff. Sept. 1, 2001.
(1) was authorized under:
(A) Chapter 2001, Occupations Code;
(B) Chapter 2002, Occupations Code; or
(C) the Texas Racing Act (Article 179e, Vernon's Texas Civil Statutes);
(2) consisted entirely of participation in the state lottery authorized by Chapter 466, Government Code; or
(3) was a necessary incident to the operation of the state lottery and was directly or indirectly authorized by:
(A) Chapter 466, Government Code;
(B) the lottery division of the Texas Lottery Commission;
(C) the Texas Lottery Commission; or
(D) the director of the lottery division of the Texas Lottery Commission.
(b) It is an affirmative defense to prosecution under Sections 47.04, 47.06(a), and 47.06(c) that the gambling device, equipment, or paraphernalia is aboard an ocean-going vessel that enters the territorial waters of this state to call at a port in this state if:
(1) before the vessel enters the territorial waters of this state, the district attorney or, if there is no district attorney, the county attorney for the county in which the port is located receives notice of the existence of the device, equipment, or paraphernalia on board the vessel and of the anticipated dates on which the vessel will enter and leave the territorial waters of this state;
(2) at all times while the vessel is in the territorial waters of this state all devices, equipment, or paraphernalia are disabled, electronically or by another method, from a remote and secured area of the vessel in a manner that allows only the master or crew of the vessel to remove any disabling device;
(3) at all times while the vessel is in the territorial waters of this state any disabling device is not removed except for the purposes of inspecting or repairing the device, equipment, or paraphernalia; and
(4) the device, equipment, or paraphernalia is not used for gambling or other gaming purposes while the vessel is in the territorial waters of this state.
Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 14.54, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 111, Sec. 1, eff. May 16, 1997; Acts 1997, 75th Leg., ch. 1035, Sec. 55, eff. June 19, 1997; Acts 1999, 76th Leg., ch. 844, Sec. 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1420, Sec. 14.835, eff. Sept. 1, 2001.
Section 47.08 - Testimonial Immunity
Sec. 47.08. 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.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Renumbered from Penal Code Sec. 47.09 by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
(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.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Renumbered from Penal Code Sec. 47.09 by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Section 47.07 - Evidence
Sec. 47.07. EVIDENCE. 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.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Renumbered from Penal Code Sec. 47.08 and amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Renumbered from Penal Code Sec. 47.08 and amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Section 47.06 - Possession of Gambling Device, Equipment, or Paraphernalia
Sec. 47.06. POSSESSION OF GAMBLING DEVICE, EQUIPMENT, OR PARAPHERNALIA. (a) A person commits an offense if, with the intent to further gambling, 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) A person commits an offense if, with the intent to further gambling, the person knowingly owns, manufactures, transfers commercially, or possesses gambling paraphernalia.
(d) It is a defense to prosecution under Subsections (a) and (c) that:
(1) the device, equipment, or paraphernalia is used for or is intended for use in gambling that is to occur entirely in a private place;
(2) a person involved in the gambling does not receive any economic benefit other than personal winnings; and
(3) except for the advantage of skill or luck, the chance of winning is the same for all participants.
(e) An offense under this section is a Class A misdemeanor.
(f) It is a defense to prosecution under Subsection (a) or (c) that the person owned, manufactured, transferred, or possessed the gambling device, equipment, or paraphernalia for the sole purpose of shipping it to another jurisdiction where the possession or use of the device, equipment, or paraphernalia was legal.
(g) A district or county attorney is not required to have a search warrant or subpoena to inspect a gambling device or gambling equipment or paraphernalia on an ocean-going vessel that enters the territorial waters of this state to call at a port in this state.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1977, 65th Leg., p. 668, ch. 251, Sec. 2, eff. Aug. 29, 1977; Acts 1977, 65th Leg., p. 1865, ch. 741, Sec. 1, eff. Aug. 29, 1977; Acts 1987, 70th Leg., ch. 167, Sec. 5.01(a)(48), eff. Sept. 1, 1987; Acts 1987, 70th Leg., ch. 458, Sec. 1, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 1030, Sec. 2, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 44, Sec. 1, eff. Aug. 26, 1991; Acts 1991, 72nd Leg., ch. 315, Sec. 1, eff. Sept. 1, 1991; Acts 1991, 72nd Leg., 1st C.S., ch. 6, Sec. 4; Acts 1993, 73rd Leg., ch. 107, Sec. 4.05, eff. Aug. 30, 1993; Acts 1993, 73rd Leg., ch. 284, Sec. 30, eff. Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
(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) A person commits an offense if, with the intent to further gambling, the person knowingly owns, manufactures, transfers commercially, or possesses gambling paraphernalia.
(d) It is a defense to prosecution under Subsections (a) and (c) that:
(1) the device, equipment, or paraphernalia is used for or is intended for use in gambling that is to occur entirely in a private place;
(2) a person involved in the gambling does not receive any economic benefit other than personal winnings; and
(3) except for the advantage of skill or luck, the chance of winning is the same for all participants.
(e) An offense under this section is a Class A misdemeanor.
(f) It is a defense to prosecution under Subsection (a) or (c) that the person owned, manufactured, transferred, or possessed the gambling device, equipment, or paraphernalia for the sole purpose of shipping it to another jurisdiction where the possession or use of the device, equipment, or paraphernalia was legal.
(g) A district or county attorney is not required to have a search warrant or subpoena to inspect a gambling device or gambling equipment or paraphernalia on an ocean-going vessel that enters the territorial waters of this state to call at a port in this state.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1977, 65th Leg., p. 668, ch. 251, Sec. 2, eff. Aug. 29, 1977; Acts 1977, 65th Leg., p. 1865, ch. 741, Sec. 1, eff. Aug. 29, 1977; Acts 1987, 70th Leg., ch. 167, Sec. 5.01(a)(48), eff. Sept. 1, 1987; Acts 1987, 70th Leg., ch. 458, Sec. 1, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 1030, Sec. 2, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 44, Sec. 1, eff. Aug. 26, 1991; Acts 1991, 72nd Leg., ch. 315, Sec. 1, eff. Sept. 1, 1991; Acts 1991, 72nd Leg., 1st C.S., ch. 6, Sec. 4; Acts 1993, 73rd Leg., ch. 107, Sec. 4.05, eff. Aug. 30, 1993; Acts 1993, 73rd Leg., ch. 284, Sec. 30, eff. Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Section 47.05 - Communicating Gambling Information
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) It is an exception to the application of Subsection (a) that the information communicated is intended for use in placing a lawful wager under Article 11, Texas Racing Act (Article 179e, Vernon's Texas Civil Statutes), and is not communicated in violation of Section 14.01 of that Act.
(c) An offense under this section is a Class A misdemeanor.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
(b) It is an exception to the application of Subsection (a) that the information communicated is intended for use in placing a lawful wager under Article 11, Texas Racing Act (Article 179e, Vernon's Texas Civil Statutes), and is not communicated in violation of Section 14.01 of that Act.
(c) An offense under this section is a Class A misdemeanor.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Section 47.04 - Keeping a Gambling Place
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 gambling occurred 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) An offense under this section is a Class A misdemeanor.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1977, 65th Leg., p. 667, ch. 251, Sec. 1, eff. Aug. 29, 1977. Acts 1989, 71st Leg., ch. 1030, Sec. 1, eff. Sept. 1, 1989. Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
(b) It is an affirmative defense to prosecution under this section that:
(1) the gambling occurred 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) An offense under this section is a Class A misdemeanor.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1977, 65th Leg., p. 667, ch. 251, Sec. 1, eff. Aug. 29, 1977. Acts 1989, 71st Leg., ch. 1030, Sec. 1, eff. Sept. 1, 1989. Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Section 47.03 - Gambling Promotion
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) An offense under this section is a Class A misdemeanor.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1987, 70th Leg., ch. 313, Sec. 3, eff. Sept. 1, 1987; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
(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) An offense under this section is a Class A misdemeanor.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1987, 70th Leg., ch. 313, Sec. 3, eff. Sept. 1, 1987; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Section 47.02 - Gambling
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, balls, or any other gambling device.
(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 Chapter 2001, Occupations Code;
(2) was permitted under Chapter 2002, Occupations Code;
(3) consisted entirely of participation in the state lottery authorized by the State Lottery Act (Chapter 466, Government Code);
(4) was permitted under the Texas Racing Act (Article 179e, Vernon's Texas Civil Statutes); or
(5) consisted entirely of participation in a drawing for the opportunity to participate in a hunting, fishing, or other recreational event conducted by the Parks and Wildlife Department.
(d) An offense under this section is a Class C misdemeanor.
(e) It is a defense to prosecution under this section that a person played for something of value other than money using an electronic, electromechanical, or mechanical contrivance excluded from the definition of "gambling device" under Section 47.01(4)(B).
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1981, 67th Leg., 1st C.S., p. 101, ch. 11, Sec. 43, eff. Nov. 10, 1981; Acts 1989, 71st Leg., ch. 957, Sec. 2, eff. Jan. 1, 1990; Acts 1991, 72nd Leg., 1st C.S., ch. 6, Sec. 3; Acts 1993, 73rd Leg., ch. 107, Sec. 4.04, eff. Aug. 30, 1993; Acts 1993, 73rd Leg., ch. 774, Sec. 2, eff. Aug. 30, 1993. Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 76, Sec. 14.53, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 318, Sec. 20, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 931, Sec. 79, eff. June 16, 1995; Acts 1997, 75th Leg., ch. 1256, Sec. 124, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1420, Sec. 14.834, eff. Sept. 1, 2001.
(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, balls, or any other gambling device.
(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 Chapter 2001, Occupations Code;
(2) was permitted under Chapter 2002, Occupations Code;
(3) consisted entirely of participation in the state lottery authorized by the State Lottery Act (Chapter 466, Government Code);
(4) was permitted under the Texas Racing Act (Article 179e, Vernon's Texas Civil Statutes); or
(5) consisted entirely of participation in a drawing for the opportunity to participate in a hunting, fishing, or other recreational event conducted by the Parks and Wildlife Department.
(d) An offense under this section is a Class C misdemeanor.
(e) It is a defense to prosecution under this section that a person played for something of value other than money using an electronic, electromechanical, or mechanical contrivance excluded from the definition of "gambling device" under Section 47.01(4)(B).
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1981, 67th Leg., 1st C.S., p. 101, ch. 11, Sec. 43, eff. Nov. 10, 1981; Acts 1989, 71st Leg., ch. 957, Sec. 2, eff. Jan. 1, 1990; Acts 1991, 72nd Leg., 1st C.S., ch. 6, Sec. 3; Acts 1993, 73rd Leg., ch. 107, Sec. 4.04, eff. Aug. 30, 1993; Acts 1993, 73rd Leg., ch. 774, Sec. 2, eff. Aug. 30, 1993. Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 76, Sec. 14.53, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 318, Sec. 20, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 931, Sec. 79, eff. June 16, 1995; Acts 1997, 75th Leg., ch. 1256, Sec. 124, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1420, Sec. 14.834, eff. Sept. 1, 2001.
Section 47.01 - Definitions
Sec. 47.01. DEFINITIONS. In this chapter:
(1) "Bet" means an agreement to win or lose something of value solely or partially by chance. 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; or
(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, including any nonprofit agricultural or civic group incorporated by the state before 1955, if the person to receive the merchandise from the proprietor is the person who performs the carnival contest.
(2) "Bookmaking" means:
(A) to receive and record or to forward more than five bets or offers to bet in a period of 24 hours;
(B) to receive and record or to forward bets or offers to bet totaling more than $1,000 in a period of 24 hours; or
(C) a scheme by three or more persons to receive, record, or forward a bet or an offer to bet.
(3) "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, bookmaking, or the conducting of a lottery or the playing of gambling devices.
(4) "Gambling device" means any electronic, electromechanical, or mechanical contrivance not excluded under Paragraph (B) that for a consideration affords the player an opportunity to obtain anything of value, the award of which is determined solely or partially by chance, even though accompanied by some skill, whether or not the prize is automatically paid by the contrivance. The term:
(A) includes, but is not limited to, gambling device versions of bingo, keno, blackjack, lottery, roulette, video poker, or similar electronic, electromechanical, or mechanical games, or facsimiles thereof, that operate by chance or partially so, that as a result of the play or operation of the game award credits or free games, and that record the number of free games or credits so awarded and the cancellation or removal of the free games or credits; and
(B) does not include any electronic, electromechanical, or mechanical contrivance designed, made, and adapted solely for bona fide amusement purposes if the contrivance rewards the player exclusively with noncash merchandise prizes, toys, or novelties, or a representation of value redeemable for those items, that have a wholesale value available from a single play of the game or device of not more than 10 times the amount charged to play the game or device once or $5, whichever is less.
(5) "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 or designed to enhance the actor's chances of winning.
(6) "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.
(7) "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.
(8) "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, motels, office buildings, transportation facilities, and shops.
(9) "Thing of value" means any benefit, but does not include an unrecorded and immediate right of replay not exchangeable for value.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1987, 70th Leg., ch. 313, Sec. 1, 2, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 396, Sec. 1, eff. June 14, 1989; Acts 1993, 73rd Leg., ch. 774, Sec. 1, eff. Aug. 30, 1993; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 318, Sec. 19, eff. Sept. 1, 1995.
(1) "Bet" means an agreement to win or lose something of value solely or partially by chance. 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; or
(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, including any nonprofit agricultural or civic group incorporated by the state before 1955, if the person to receive the merchandise from the proprietor is the person who performs the carnival contest.
(2) "Bookmaking" means:
(A) to receive and record or to forward more than five bets or offers to bet in a period of 24 hours;
(B) to receive and record or to forward bets or offers to bet totaling more than $1,000 in a period of 24 hours; or
(C) a scheme by three or more persons to receive, record, or forward a bet or an offer to bet.
(3) "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, bookmaking, or the conducting of a lottery or the playing of gambling devices.
(4) "Gambling device" means any electronic, electromechanical, or mechanical contrivance not excluded under Paragraph (B) that for a consideration affords the player an opportunity to obtain anything of value, the award of which is determined solely or partially by chance, even though accompanied by some skill, whether or not the prize is automatically paid by the contrivance. The term:
(A) includes, but is not limited to, gambling device versions of bingo, keno, blackjack, lottery, roulette, video poker, or similar electronic, electromechanical, or mechanical games, or facsimiles thereof, that operate by chance or partially so, that as a result of the play or operation of the game award credits or free games, and that record the number of free games or credits so awarded and the cancellation or removal of the free games or credits; and
(B) does not include any electronic, electromechanical, or mechanical contrivance designed, made, and adapted solely for bona fide amusement purposes if the contrivance rewards the player exclusively with noncash merchandise prizes, toys, or novelties, or a representation of value redeemable for those items, that have a wholesale value available from a single play of the game or device of not more than 10 times the amount charged to play the game or device once or $5, whichever is less.
(5) "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 or designed to enhance the actor's chances of winning.
(6) "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.
(7) "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.
(8) "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, motels, office buildings, transportation facilities, and shops.
(9) "Thing of value" means any benefit, but does not include an unrecorded and immediate right of replay not exchangeable for value.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1987, 70th Leg., ch. 313, Sec. 1, 2, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 396, Sec. 1, eff. June 14, 1989; Acts 1993, 73rd Leg., ch. 774, Sec. 1, eff. Aug. 30, 1993; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 318, Sec. 19, eff. Sept. 1, 1995.
Section 46.15 - Nonapplicability
Sec. 46.15. NONAPPLICABILITY. (a) Sections 46.02 and 46.03 do not apply to:
(1) peace officers or special investigators under Article 2.122, Code of Criminal Procedure, and neither section prohibits a peace officer or special investigator from carrying a weapon in this state, including in an establishment in this state serving the public, regardless of whether the peace officer or special investigator is engaged in the actual discharge of the officer's or investigator's duties while carrying the weapon;
(2) parole officers and neither section prohibits an officer from carrying a weapon in this state if the officer is:
(A) engaged in the actual discharge of the officer's duties while carrying the weapon; and
(B) in compliance with policies and procedures adopted by the Texas Department of Criminal Justice regarding the possession of a weapon by an officer while on duty;
(3) community supervision and corrections department officers appointed or employed under Section 76.004, Government Code, and neither section prohibits an officer from carrying a weapon in this state if the officer is:
(A) engaged in the actual discharge of the officer's duties while carrying the weapon; and
(B) authorized to carry a weapon under Section 76.0051, Government Code;
(4) a judge or justice of a federal court, the supreme court, the court of criminal appeals, a court of appeals, a district court, a criminal district court, a constitutional county court, a statutory county court, a justice court, or a municipal court who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code;
(5) an honorably retired peace officer or federal criminal investigator who holds a certificate of proficiency issued under Section 1701.357, Occupations Code, and is carrying a photo identification that:
(A) verifies that the officer honorably retired after not less than 15 years of service as a commissioned officer; and
(B) is issued by a state or local law enforcement agency;
(6) a district attorney, criminal district attorney, county attorney, or municipal attorney who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code;
(7) an assistant district attorney, assistant criminal district attorney, or assistant county attorney who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code;
(8) a bailiff designated by an active judicial officer as defined by Section 411.201, Government Code, who is:
(A) licensed to carry a concealed handgun under Chapter 411, Government Code; and
(B) engaged in escorting the judicial officer; or
(9) a juvenile probation officer who is authorized to carry a firearm under Section 142.006, Human Resources Code.
(b) Section 46.02 does 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 431.001, 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 or motor vehicle, 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 concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun of the same category as the handgun the person is carrying;
(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.
(c) The provision of Section 46.02 prohibiting the carrying of a club does not apply to a noncommissioned security guard at an institution of higher education who carries a nightstick or similar club, and who has 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 subsection, "nonviolent restraint" means the use of reasonable force, not intended and not likely to inflict bodily injury.
(d) The provisions of Section 46.02 prohibiting the carrying of a firearm or carrying of a club do not apply to a public security officer employed by the adjutant general under Section 431.029, Government Code, in performance of official duties or while traveling to or from a place of duty.
(e) The provisions of Section 46.02 prohibiting the carrying of an illegal knife do not apply to an individual carrying a bowie knife or a sword used in a historical demonstration or in a ceremony in which the knife or sword is significant to the performance of the ceremony.
(f) Section 46.03(a)(6) does not apply to a person who possesses a firearm or club while in the actual discharge of official duties as:
(1) a member of the armed forces or state military forces, as defined by Section 431.001, Government Code; or
(2) an employee of a penal institution.
(g) The provisions of Sections 46.02 and 46.03 prohibiting the possession or carrying of a club do not apply to an animal control officer who holds a certificate issued under Section 829.006, Health and Safety Code, and who possesses or carries an instrument used specifically for deterring the bite of an animal while the officer is in the performance of official duties under the Health and Safety Code or is traveling to or from a place of duty.
(h) Repealed by Acts 2007, 80th Leg., R.S., Ch. 693, Sec. 3(1), eff. September 1, 2007.
(i) Repealed by Acts 2007, 80th Leg., R.S., Ch. 693, Sec. 3(2), eff. September 1, 2007.
(j) The provisions of Section 46.02 prohibiting the carrying of a handgun do not apply to an individual who carries a handgun as a participant in a historical reenactment performed in accordance with the rules of the Texas Alcoholic Beverage Commission.
Added by Acts 1995, 74th Leg., ch. 318, Sec. 18, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1221, Sec. 4, eff. June 20, 1997; Acts 1997, 75th Leg., ch. 1261, Sec. 28, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 62, Sec. 9.25, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1445, Sec. 2, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1060, Sec. 3, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 325, Sec. 2, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 421, Sec. 1, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 795, Sec. 1, eff. June 20, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 288, Sec. 1, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 728, Sec. 23.001(78), eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 976, Sec. 4, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 1093, Sec. 1, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 1093, Sec. 4, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 1179, Sec. 2, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 1179, Sec. 3, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch. 647, Sec. 1, eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch. 693, Sec. 2, eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch. 693, Sec. 3(1), eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch. 693, Sec. 3(2), eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch. 921, Sec. 17.001(62), eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch. 1048, Sec. 3, eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch. 1214, Sec. 1, eff. June 15, 2007.
Acts 2007, 80th Leg., R.S., Ch. 1222, Sec. 6, eff. June 15, 2007.
Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 19.004, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 299, Sec. 1, eff. June 19, 2009.
Acts 2009, 81st Leg., R.S., Ch. 794, Sec. 4, eff. June 19, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1146, Sec. 4B.22, eff. September 1, 2009.
(1) peace officers or special investigators under Article 2.122, Code of Criminal Procedure, and neither section prohibits a peace officer or special investigator from carrying a weapon in this state, including in an establishment in this state serving the public, regardless of whether the peace officer or special investigator is engaged in the actual discharge of the officer's or investigator's duties while carrying the weapon;
(2) parole officers and neither section prohibits an officer from carrying a weapon in this state if the officer is:
(A) engaged in the actual discharge of the officer's duties while carrying the weapon; and
(B) in compliance with policies and procedures adopted by the Texas Department of Criminal Justice regarding the possession of a weapon by an officer while on duty;
(3) community supervision and corrections department officers appointed or employed under Section 76.004, Government Code, and neither section prohibits an officer from carrying a weapon in this state if the officer is:
(A) engaged in the actual discharge of the officer's duties while carrying the weapon; and
(B) authorized to carry a weapon under Section 76.0051, Government Code;
(4) a judge or justice of a federal court, the supreme court, the court of criminal appeals, a court of appeals, a district court, a criminal district court, a constitutional county court, a statutory county court, a justice court, or a municipal court who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code;
(5) an honorably retired peace officer or federal criminal investigator who holds a certificate of proficiency issued under Section 1701.357, Occupations Code, and is carrying a photo identification that:
(A) verifies that the officer honorably retired after not less than 15 years of service as a commissioned officer; and
(B) is issued by a state or local law enforcement agency;
(6) a district attorney, criminal district attorney, county attorney, or municipal attorney who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code;
(7) an assistant district attorney, assistant criminal district attorney, or assistant county attorney who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code;
(8) a bailiff designated by an active judicial officer as defined by Section 411.201, Government Code, who is:
(A) licensed to carry a concealed handgun under Chapter 411, Government Code; and
(B) engaged in escorting the judicial officer; or
(9) a juvenile probation officer who is authorized to carry a firearm under Section 142.006, Human Resources Code.
(b) Section 46.02 does 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 431.001, 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 or motor vehicle, 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 concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun of the same category as the handgun the person is carrying;
(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.
(c) The provision of Section 46.02 prohibiting the carrying of a club does not apply to a noncommissioned security guard at an institution of higher education who carries a nightstick or similar club, and who has 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 subsection, "nonviolent restraint" means the use of reasonable force, not intended and not likely to inflict bodily injury.
(d) The provisions of Section 46.02 prohibiting the carrying of a firearm or carrying of a club do not apply to a public security officer employed by the adjutant general under Section 431.029, Government Code, in performance of official duties or while traveling to or from a place of duty.
(e) The provisions of Section 46.02 prohibiting the carrying of an illegal knife do not apply to an individual carrying a bowie knife or a sword used in a historical demonstration or in a ceremony in which the knife or sword is significant to the performance of the ceremony.
(f) Section 46.03(a)(6) does not apply to a person who possesses a firearm or club while in the actual discharge of official duties as:
(1) a member of the armed forces or state military forces, as defined by Section 431.001, Government Code; or
(2) an employee of a penal institution.
(g) The provisions of Sections 46.02 and 46.03 prohibiting the possession or carrying of a club do not apply to an animal control officer who holds a certificate issued under Section 829.006, Health and Safety Code, and who possesses or carries an instrument used specifically for deterring the bite of an animal while the officer is in the performance of official duties under the Health and Safety Code or is traveling to or from a place of duty.
(h) Repealed by Acts 2007, 80th Leg., R.S., Ch. 693, Sec. 3(1), eff. September 1, 2007.
(i) Repealed by Acts 2007, 80th Leg., R.S., Ch. 693, Sec. 3(2), eff. September 1, 2007.
(j) The provisions of Section 46.02 prohibiting the carrying of a handgun do not apply to an individual who carries a handgun as a participant in a historical reenactment performed in accordance with the rules of the Texas Alcoholic Beverage Commission.
Added by Acts 1995, 74th Leg., ch. 318, Sec. 18, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1221, Sec. 4, eff. June 20, 1997; Acts 1997, 75th Leg., ch. 1261, Sec. 28, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 62, Sec. 9.25, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1445, Sec. 2, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1060, Sec. 3, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 325, Sec. 2, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 421, Sec. 1, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 795, Sec. 1, eff. June 20, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 288, Sec. 1, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 728, Sec. 23.001(78), eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 976, Sec. 4, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 1093, Sec. 1, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 1093, Sec. 4, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 1179, Sec. 2, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 1179, Sec. 3, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch. 647, Sec. 1, eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch. 693, Sec. 2, eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch. 693, Sec. 3(1), eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch. 693, Sec. 3(2), eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch. 921, Sec. 17.001(62), eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch. 1048, Sec. 3, eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch. 1214, Sec. 1, eff. June 15, 2007.
Acts 2007, 80th Leg., R.S., Ch. 1222, Sec. 6, eff. June 15, 2007.
Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 19.004, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 299, Sec. 1, eff. June 19, 2009.
Acts 2009, 81st Leg., R.S., Ch. 794, Sec. 4, eff. June 19, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1146, Sec. 4B.22, eff. September 1, 2009.
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