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A BILL TO BE ENTITLED
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AN ACT
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relating to creating an offense for engaging in certain conduct |
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relating to cockfighting and to the criminal and civil consequences |
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of committing that offense. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 42, Penal Code, is amended by adding |
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Section 42.105 to read as follows: |
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Sec. 42.105. COCKFIGHTING. (a) In this section: |
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(1) "Cock" means the male of any type of domestic fowl. |
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(2) "Cockfighting" means any situation in which one |
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cock attacks or fights with another cock. |
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(3) "Gaff" means an artificial steel spur designed to |
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attach to the leg of a cock to replace or supplement the cock's |
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natural spur. |
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(4) "Slasher" means a steel weapon resembling a curved |
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knife blade designed to attach to the foot of a cock. |
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(b) A person commits an offense if the person knowingly: |
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(1) causes a cock to fight with another cock; |
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(2) participates in the earnings of or operates a |
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facility used for cockfighting; |
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(3) uses or permits another to use any real estate, |
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building, room, tent, arena, or other property for cockfighting; |
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(4) owns or trains a cock with the intent that the cock |
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be used in an exhibition of cockfighting; |
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(5) manufactures, buys, sells, barters, exchanges, |
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possesses, advertises, or otherwise offers a gaff, slasher, or |
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other sharp implement designed for attachment to a cock with the |
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intent that the implement be used in cockfighting; or |
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(6) attends as a spectator an exhibition of |
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cockfighting. |
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(c) An offense under Subsection (b)(1), (2), (3), or (5) is |
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a state jail felony. An offense under Subsection (b)(4) is a Class |
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A misdemeanor. An offense under Subsection (b)(6) is a Class C |
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misdemeanor. |
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(d) It is an affirmative defense to prosecution under |
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Subsection (b)(4) that the actor owns or trains a cock with the |
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intent that the cock be used as a show bird or pet. |
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SECTION 2. Article 14.06(d), Code of Criminal Procedure, is |
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amended to read as follows: |
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(d) Subsection (c) applies only to a person charged with |
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committing an offense under: |
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(1) Section 481.121, Health and Safety Code, if the |
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offense is punishable under Subsection (b)(1) or (2) of that |
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section; |
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(2) Section 28.03, Penal Code, if the offense is |
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punishable under Subsection (b)(2) of that section; |
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(3) Section 28.08, Penal Code, if the offense is |
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punishable under Subsection (b)(1) of that section; |
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(4) Section 31.03, Penal Code, if the offense is |
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punishable under Subsection (e)(2)(A) of that section; |
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(5) Section 31.04, Penal Code, if the offense is |
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punishable under Subsection (e)(2) of that section; |
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(6) Section 38.114, Penal Code, if the offense is |
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punishable as a Class B misdemeanor; [or] |
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(7) Section 42.105, Penal Code, if the offense is |
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punishable as a Class A misdemeanor; or |
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(8) Section 521.457, Transportation Code. |
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SECTION 3. Articles 18.18(a), (b), (e), (f), and (g), Code |
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of Criminal Procedure, are amended to read as follows: |
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(a) Following the final conviction of a person for |
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possession of a gambling device or equipment, altered gambling |
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equipment, or gambling paraphernalia, for an offense involving a |
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criminal instrument, for an offense involving an obscene device or |
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material, for an offense involving child pornography, or for an |
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offense involving a scanning device or re-encoder, the court |
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entering the judgment of conviction shall order that the machine, |
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device, gambling equipment or gambling paraphernalia, instrument, |
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obscene device or material, child pornography, or scanning device |
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or re-encoder be destroyed or forfeited to the state. Not later |
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than the 30th day after the final conviction of a person for an |
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offense involving a prohibited weapon, the court entering the |
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judgment of conviction on its own motion, on the motion of the |
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prosecuting attorney in the case, or on the motion of the law |
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enforcement agency initiating the complaint on notice to the |
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prosecuting attorney in the case if the prosecutor fails to move for |
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the order shall order that the prohibited weapon be destroyed or |
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forfeited to the law enforcement agency that initiated the |
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complaint. If the court fails to enter the order within the time |
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required by this subsection, any magistrate in the county in which |
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the offense occurred may enter the order. Following the final |
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conviction of a person for an offense involving dog fighting or |
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cockfighting, the court entering the judgment of conviction shall |
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order that any dog-fighting or cockfighting equipment be destroyed |
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or forfeited to the state. Destruction of dogs and cocks, if |
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necessary, must be carried out by a veterinarian licensed in this |
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state or, if one is not available, by trained personnel of a humane |
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society or an animal shelter. If forfeited, the court shall order |
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the contraband delivered to the state, any political subdivision of |
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the state, or to any state institution or agency. If gambling |
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proceeds were seized, the court shall order them forfeited to the |
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state and shall transmit them to the grand jury of the county in |
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which they were seized for use in investigating alleged violations |
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of the Penal Code, or to the state, any political subdivision of the |
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state, or to any state institution or agency. |
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(b) If there is no prosecution or conviction following |
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seizure, the magistrate to whom the return was made shall notify in |
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writing the person found in possession of the alleged gambling |
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device or equipment, altered gambling equipment or gambling |
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paraphernalia, gambling proceeds, prohibited weapon, obscene |
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device or material, child pornography, scanning device or |
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re-encoder, criminal instrument, or dog-fighting or cockfighting |
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equipment to show cause why the property seized should not be |
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destroyed or the proceeds forfeited. The magistrate, on the motion |
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of the law enforcement agency seizing a prohibited weapon, shall |
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order the weapon destroyed or forfeited to the law enforcement |
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agency seizing the weapon, unless a person shows cause as to why the |
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prohibited weapon should not be destroyed or forfeited. A law |
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enforcement agency shall make a motion under this section in a |
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timely manner after the time at which the agency is informed in |
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writing by the attorney representing the state that no prosecution |
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will arise from the seizure. |
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(e) Any person interested in the alleged gambling device or |
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equipment, altered gambling equipment or gambling paraphernalia, |
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gambling proceeds, prohibited weapon, obscene device or material, |
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child pornography, scanning device or re-encoder, criminal |
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instrument, or dog-fighting or cockfighting equipment seized must |
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appear before the magistrate on the 20th day following the date the |
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notice was mailed or posted. Failure to timely appear forfeits any |
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interest the person may have in the property or proceeds seized, and |
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no person after failing to timely appear may contest destruction or |
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forfeiture. |
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(f) If a person timely appears to show cause why the |
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property or proceeds should not be destroyed or forfeited, the |
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magistrate shall conduct a hearing on the issue and determine the |
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nature of property or proceeds and the person's interest therein. |
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Unless the person proves by a preponderance of the evidence that the |
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property or proceeds is not gambling equipment, altered gambling |
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equipment, gambling paraphernalia, gambling device, gambling |
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proceeds, prohibited weapon, obscene device or material, child |
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pornography, criminal instrument, scanning device or re-encoder, |
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or dog-fighting or cockfighting equipment and that he is entitled |
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to possession, the magistrate shall dispose of the property or |
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proceeds in accordance with Paragraph (a) of this article. |
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(g) For purposes of this article: |
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(1) "criminal instrument" has the meaning assigned by |
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[defined in] the Penal Code; |
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(2) "gambling device or equipment, altered gambling |
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equipment or gambling paraphernalia" has the meaning assigned by |
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[defined in] the Penal Code; |
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(3) "prohibited weapon" has the meaning assigned by |
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[defined in] the Penal Code; |
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(4) "dog-fighting equipment" means: |
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(A) equipment used for training or handling a |
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fighting dog, including a harness, treadmill, cage, decoy, pen, |
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house for keeping a fighting dog, feeding apparatus, or training |
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pen; |
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(B) equipment used for transporting a fighting |
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dog, including any automobile, or other vehicle, and its |
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appurtenances that [which] are intended to be used as a vehicle for |
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transporting a fighting dog; |
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(C) equipment used to promote or advertise an |
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exhibition of dog fighting, including a printing press or similar |
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equipment, paper, ink, or photography equipment; or |
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(D) a dog trained, being trained, or intended to |
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be used to fight with another dog; |
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(4-a) "cockfighting equipment" means: |
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(A) equipment used for training or handling a |
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fighting cock, including a cage, decoy, gaff, slasher, pen, house |
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for keeping a fighting cock, feeding apparatus, or training pen; |
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(B) equipment used for transporting a fighting |
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cock, including any automobile or other vehicle and its |
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appurtenances that are intended to be used as a vehicle for |
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transporting a fighting cock; |
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(C) equipment used to promote or advertise an |
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exhibition of cockfighting, including a printing press or similar |
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equipment, paper, ink, or photography equipment; or |
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(D) a cock trained, being trained, or intended to |
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be used to fight with another cock; |
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(4-b) "gaff" and "slasher" have the meanings assigned |
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by Section 42.105, Penal Code; |
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(5) "obscene device" and "obscene" have the meanings |
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assigned by Section 43.21, Penal Code; |
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(6) "re-encoder" has the meaning assigned by Section |
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522.001, Business & Commerce Code; |
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(7) "scanning device" has the meaning assigned by |
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Section 522.001, Business & Commerce Code; and |
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(8) "obscene material" and "child pornography" |
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include digital images and the media and equipment on which those |
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images are stored. |
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SECTION 4. Article 59.01(2), Code of Criminal Procedure, as |
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amended by Chapters 153 (S.B. 2225), 1130 (H.B. 2086), and 1357 |
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(S.B. 554), Acts of the 81st Legislature, Regular Session, 2009, is |
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reenacted and amended to read as follows: |
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(2) "Contraband" means property of any nature, |
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including real, personal, tangible, or intangible, that is: |
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(A) used in the commission of: |
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(i) any first or second degree felony under |
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the Penal Code; |
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(ii) any felony under Section 15.031(b), |
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20.05, 21.11, 38.04, Subchapter B of Chapter 43, or Chapter 29, 30, |
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31, 32, 33, 33A, or 35, Penal Code; |
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(iii) any felony under The Securities Act |
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(Article 581-1 et seq., Vernon's Texas Civil Statutes); or |
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(iv) any offense under Chapter 49, Penal |
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Code, that is punishable as a felony of the third degree or state |
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jail felony, if the defendant has been previously convicted three |
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times of an offense under that chapter; |
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(B) used or intended to be used in the commission |
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of: |
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(i) any felony under Chapter 481, Health |
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and Safety Code (Texas Controlled Substances Act); |
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(ii) any felony under Chapter 483, Health |
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and Safety Code; |
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(iii) a felony under Chapter 153, Finance |
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Code; |
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(iv) any felony under Chapter 34, Penal |
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Code; |
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(v) a Class A misdemeanor under Subchapter |
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B, Chapter 365, Health and Safety Code, if the defendant has been |
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previously convicted twice of an offense under that subchapter; |
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(vi) any felony under Chapter 152, Finance |
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Code; |
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(vii) any felony under Chapter 32, Human |
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Resources Code, or Chapter 31, 32, 35A, or 37, Penal Code, that |
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involves the state Medicaid program; |
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(viii) a Class B misdemeanor under Chapter |
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522, Business & Commerce Code; |
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(ix) a Class A misdemeanor under Section |
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306.051, Business & Commerce Code; [or] |
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(x) any offense under Section 42.10, Penal |
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Code; |
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(xi) [(x)] any offense under Section |
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46.06(a)(1) or 46.14, Penal Code; |
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(xii) [(x)] any offense under Chapter 71, |
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Penal Code; or |
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(xiii) any offense under Section 42.105, |
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Penal Code; |
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(C) the proceeds gained from the commission of a |
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felony listed in Paragraph (A) or (B) of this subdivision, a |
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misdemeanor listed in Paragraph (B)(viii), (x), (xi), (xii), or |
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(xiii) [(B)(viii) or (x)] of this subdivision, or a crime of |
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violence; |
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(D) acquired with proceeds gained from the |
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commission of a felony listed in Paragraph (A) or (B) of this |
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subdivision, a misdemeanor listed in Paragraph (B)(viii), (x), |
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(xi), (xii), or (xiii) [(B)(viii) or (x)] of this subdivision, or a |
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crime of violence; or |
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(E) used to facilitate or intended to be used to |
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facilitate the commission of a felony under Section 15.031 or |
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43.25, Penal Code. |
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SECTION 5. Chapter 59, Code of Criminal Procedure, is |
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amended by adding Article 59.012 to read as follows: |
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Art. 59.012. COCKFIGHTING CONTRABAND. If property |
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described by Article 59.01(2)(B)(xiii) is subject to forfeiture |
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under this chapter and Article 18.18, the attorney representing the |
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state may proceed under either provision. |
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SECTION 6. To the extent of any conflict, this Act prevails |
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over another Act of the 82nd Legislature, Regular Session, 2011, |
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relating to nonsubstantive additions to and corrections in enacted |
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codes. |
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SECTION 7. The changes in law made by this Act apply only to |
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an offense committed on or after the effective date of this Act or |
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to the forfeiture of property used in the commission of that |
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offense. An offense committed before the effective date of this |
|
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Act, or the forfeiture of property used in the commission of that |
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offense, is governed by the law in effect when the offense was |
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committed, and the former law is continued in effect for that |
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purpose. For purposes of this section, an offense was committed |
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before the effective date of this Act if any element of the offense |
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occurred before that date. |
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SECTION 8. This Act takes effect September 1, 2011. |