81R15959 GCB-D
 
  By: Christian, et al. H.B. No. 1320
 
  Substitute the following for H.B. No. 1320:
 
  By:  Gallego C.S.H.B. No. 1320
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to creating an offense for engaging in certain conduct
  relating to cockfighting and to the criminal and civil consequences
  of committing that offense.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 42, Penal Code, is amended by adding
  Section 42.105 to read as follows:
         Sec. 42.105.  COCKFIGHTING. (a)  In this section:
               (1)  "Cock" means the male of any type of domestic fowl.
               (2)  "Cockfighting" means any situation in which one
  cock attacks or fights with another cock.
               (3)  "Gaff" means an artificial steel spur designed to
  attach to the leg of a cock to replace or supplement the cock's
  natural spur.
               (4)  "Slasher" means a steel weapon resembling a curved
  knife blade designed to attach to the foot of a cock.
         (b)  A person commits an offense if the person knowingly:
               (1)  causes a cock to fight with another cock;
               (2)  participates in the earnings of or operates a
  facility used for cockfighting;
               (3)  uses or permits another to use any real estate,
  building, room, tent, arena, or other property for cockfighting;
               (4)  owns or trains a cock with the intent that the cock
  be used in an exhibition of cockfighting;
               (5)  manufactures, buys, sells, barters, exchanges,
  possesses, advertises, or otherwise offers a gaff, slasher, or
  other sharp implement designed for attachment to a cock with the
  intent that the implement be used in cockfighting; or
               (6)  attends as a spectator an exhibition of
  cockfighting.
         (c)  An offense under Subsection (b)(1), (2), (3), or (5) is
  a state jail felony. An offense under Subsection (b)(4) or (6) is a
  Class A misdemeanor.
         SECTION 2.  Section 71.02(a), Penal Code, is amended to read
  as follows:
         (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; [or]
               (13)  any offense under Section 37.10; or
               (14)  any offense under Section 42.105.
         SECTION 3.  Articles 18.18(a), (b), (e), and (f), Code of
  Criminal Procedure, are amended to read as follows:
         (a)  Following the final conviction of a person for
  possession of a gambling device or equipment, altered gambling
  equipment, or gambling paraphernalia, for an offense involving a
  criminal instrument, for an offense involving an obscene device or
  material, for an offense involving child pornography, or for an
  offense involving a scanning device or re-encoder, the court
  entering the judgment of conviction shall order that the machine,
  device, gambling equipment or gambling paraphernalia, instrument,
  obscene device or material, child pornography, or scanning device
  or re-encoder be destroyed or forfeited to the state. Not later
  than the 30th day after the final conviction of a person for an
  offense involving a prohibited weapon, the court entering the
  judgment of conviction on its own motion, on the motion of the
  prosecuting attorney in the case, or on the motion of the law
  enforcement agency initiating the complaint on notice to the
  prosecuting attorney in the case if the prosecutor fails to move for
  the order shall order that the prohibited weapon be destroyed or
  forfeited to the law enforcement agency that initiated the
  complaint. If the court fails to enter the order within the time
  required by this subsection, any magistrate in the county in which
  the offense occurred may enter the order. Following the final
  conviction of a person for an offense involving dog fighting or
  cockfighting, the court entering the judgment of conviction shall
  order that any dog-fighting or cockfighting equipment be destroyed
  or forfeited to the state. Destruction of dogs and cocks, if
  necessary, must be carried out by a veterinarian licensed in this
  state or, if one is not available, by trained personnel of a humane
  society or an animal shelter. If forfeited, the court shall order
  the contraband delivered to the state, any political subdivision of
  the state, or to any state institution or agency. If gambling
  proceeds were seized, the court shall order them forfeited to the
  state and shall transmit them to the grand jury of the county in
  which they were seized for use in investigating alleged violations
  of the Penal Code, or to the state, any political subdivision of the
  state, or to any state institution or agency.
         (b)  If there is no prosecution or conviction following
  seizure, the magistrate to whom the return was made shall notify in
  writing the person found in possession of the alleged gambling
  device or equipment, altered gambling equipment or gambling
  paraphernalia, gambling proceeds, prohibited weapon, obscene
  device or material, child pornography, scanning device or
  re-encoder, criminal instrument, or dog-fighting or cockfighting
  equipment to show cause why the property seized should not be
  destroyed or the proceeds forfeited. The magistrate, on the motion
  of the law enforcement agency seizing a prohibited weapon, shall
  order the weapon destroyed or forfeited to the law enforcement
  agency seizing the weapon, unless a person shows cause as to why the
  prohibited weapon should not be destroyed or forfeited. A law
  enforcement agency shall make a motion under this section in a
  timely manner after the time at which the agency is informed in
  writing by the attorney representing the state that no prosecution
  will arise from the seizure.
         (e)  Any person interested in the alleged gambling device or
  equipment, altered gambling equipment or gambling paraphernalia,
  gambling proceeds, prohibited weapon, obscene device or material,
  child pornography, scanning device or re-encoder, criminal
  instrument, or dog-fighting or cockfighting equipment seized must
  appear before the magistrate on the 20th day following the date the
  notice was mailed or posted. Failure to timely appear forfeits any
  interest the person may have in the property or proceeds seized, and
  no person after failing to timely appear may contest destruction or
  forfeiture.
         (f)  If a person timely appears to show cause why the
  property or proceeds should not be destroyed or forfeited, the
  magistrate shall conduct a hearing on the issue and determine the
  nature of property or proceeds and the person's interest therein.
  Unless the person proves by a preponderance of the evidence that the
  property or proceeds is not gambling equipment, altered gambling
  equipment, gambling paraphernalia, gambling device, gambling
  proceeds, prohibited weapon, obscene device or material, child
  pornography, criminal instrument, scanning device or re-encoder,
  or dog-fighting or cockfighting equipment and that he is entitled
  to possession, the magistrate shall dispose of the property or
  proceeds in accordance with Paragraph (a) of this article.
         SECTION 4.  Article 18.18(g), Code of Criminal Procedure, as
  effective April 1, 2009, is amended to read as follows:
         (g)  For purposes of this article:
               (1)  "criminal instrument" has the meaning defined in
  the Penal Code;
               (2)  "gambling device or equipment, altered gambling
  equipment or gambling paraphernalia" has the meaning defined in the
  Penal Code;
               (3)  "prohibited weapon" has the meaning defined in the
  Penal Code;
               (4)  "dog-fighting equipment" means:
                     (A)  equipment used for training or handling a
  fighting dog, including a harness, treadmill, cage, decoy, pen,
  house for keeping a fighting dog, feeding apparatus, or training
  pen;
                     (B)  equipment used for transporting a fighting
  dog, including any automobile, or other vehicle, and its
  appurtenances which are intended to be used as a vehicle for
  transporting a fighting dog;
                     (C)  equipment used to promote or advertise an
  exhibition of dog fighting, including a printing press or similar
  equipment, paper, ink, or photography equipment; or
                     (D)  a dog trained, being trained, or intended to
  be used to fight with another dog;
               (4-a)  "cockfighting equipment" means:
                     (A)  equipment used for training or handling a
  fighting cock, including a cage, decoy, gaff, slasher, pen, house
  for keeping a fighting cock, feeding apparatus, or training pen;
                     (B)  equipment used for transporting a fighting
  cock, including any automobile or other vehicle and its
  appurtenances that are intended to be used as a vehicle for
  transporting a fighting cock;
                     (C)  equipment used to promote or advertise an
  exhibition of cockfighting, including a printing press or similar
  equipment, paper, ink, or photography equipment; or
                     (D)  a cock trained, being trained, or intended to
  be used to fight with another cock;
               (4-b)  "gaff" and "slasher" have the meanings assigned
  by Section 42.105, Penal Code;
               (5)  "obscene device" and "obscene" have the meanings
  assigned by Section 43.21, Penal Code;
               (6)  "re-encoder" has the meaning assigned by Section
  522.001, Business & Commerce Code;
               (7)  "scanning device" has the meaning assigned by
  Section 522.001, Business & Commerce Code; and
               (8)  "obscene material" and "child pornography" 
  include digital images and the media and equipment on which those
  images are stored.
         SECTION 5.  Article 59.01(2), Code of Criminal Procedure, as
  amended by Chapters 127 (S.B. 1694), 822 (H.B. 73), and 885 (H.B.
  2278), Acts of the 80th Legislature, Regular Session, 2007, is
  reenacted and amended to read as follows:
               (2)  "Contraband" means property of any nature,
  including real, personal, tangible, or intangible, that is:
                     (A)  used in the commission of:
                           (i)  any first or second degree felony under
  the Penal Code;
                           (ii)  any felony under Section 15.031(b),
  20.05, 21.11, 38.04, Subchapter B of Chapter 43, or Chapter 29, 30,
  31, 32, 33, 33A, or 35, Penal Code;
                           (iii)  any felony under The Securities Act
  (Article 581-1 et seq., Vernon's Texas Civil Statutes); or
                           (iv)  any offense under Chapter 49, Penal
  Code, that is punishable as a felony of the third degree or state
  jail felony, if the defendant has been previously convicted three
  times of an offense under that chapter;
                     (B)  used or intended to be used in the commission
  of:
                           (i)  any felony under Chapter 481, Health
  and Safety Code (Texas Controlled Substances Act);
                           (ii)  any felony under Chapter 483, Health
  and Safety Code;
                           (iii)  a felony under Chapter 153, Finance
  Code;
                           (iv)  any felony under Chapter 34, Penal
  Code;
                           (v)  a Class A misdemeanor under Subchapter
  B, Chapter 365, Health and Safety Code, if the defendant has been
  previously convicted twice of an offense under that subchapter;
                           (vi)  any felony under Chapter 152, Finance
  Code;
                           (vii)  any felony under Chapter 32, Human
  Resources Code, or Chapter 31, 32, 35A, or 37, Penal Code, that
  involves the state Medicaid program;
                           (viii)  a Class B misdemeanor under Chapter
  522, Business & Commerce Code; [or]
                           (ix)  a Class A misdemeanor under Section
  35.153, Business & Commerce Code; or
                           (x)  any offense under Section 42.105, Penal
  Code;
                     (C)  the proceeds gained from the commission of a
  felony listed in Paragraph (A) or (B) of this subdivision, a
  misdemeanor listed in Paragraph (B)(viii) or (x) of this
  subdivision, or a crime of violence;
                     (D)  acquired with proceeds gained from the
  commission of a felony listed in Paragraph (A) or (B) of this
  subdivision, a misdemeanor listed in Paragraph (B)(viii) or (x) of
  this subdivision, or a crime of violence; or
                     (E)  used to facilitate or intended to be used to
  facilitate the commission of a felony under Section 15.031 or
  43.25, Penal Code.
         SECTION 6.  Chapter 59, Code of Criminal Procedure, is
  amended by adding Article 59.011 to read as follows:
         Art. 59.011.  If property described by Article
  59.01(2)(B)(x) is subject to forfeiture under this chapter and
  Article 18.18, the attorney representing the state may proceed
  under either provision.
         SECTION 7.  The changes in law made by this Act apply only to
  an offense committed on or after the effective date of this Act or
  to the forfeiture of property used in the commission of that
  offense. An offense committed before the effective date of this
  Act, or the forfeiture of property used in the commission of that
  offense, is governed by the law in effect when the offense was
  committed, and the former law is continued in effect for that
  purpose. For purposes of this section, an offense was committed
  before the effective date of this Act if any element of the offense
  occurred before that date.
         SECTION 8.  This Act takes effect September 1, 2009.