HB3167 - Relating to the prosecution and punishment of the criminal offense of organized retail theft; increasing criminal penalties.

  89R9191 JRR-F     By: Cook H.B. No. 3167       A BILL TO BE ENTITLED   AN ACT   relating to the prosecution and punishment of the criminal offense   of organized retail theft; increasing criminal penalties.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Chapter 21, Code of Criminal Procedure, is   amended by adding Article 21.155 to read as follows:           Art.   21.155.     ORGANIZED RETAIL THEFT. (a) In this article,   "merchant" has the meaning assigned by Section 31.01, Penal Code.           (b)     Notwithstanding Article 21.09, an indictment or   information in the prosecution of an offense under Section 31.16,   Penal Code, shall not be held insufficient for failure to name or   describe each item of property stolen. It shall be sufficient to   name the merchant and, if the offense level is based on a value of   the property stolen, the aggregate value range of the stolen   property applicable to the offense being alleged.          SECTION 2.  Chapter 38, Code of Criminal Procedure, is   amended by adding Article 38.51 to read as follows:           Art.   38.51.     EVIDENCE IN PROSECUTION FOR ORGANIZED RETAIL   THEFT. (a) In this article, "merchant" and "retail merchandise"   have the meanings assigned by Section 31.01, Penal Code.           (b)     In the prosecution of an offense under Section 31.16,   Penal Code:                 (1)     if issues of intent, knowledge, and whether the   defendant was acting in concert with one or more other persons are   raised by the defendant's plea of not guilty, evidence that the   defendant has participated in any theft offense, other than a theft   offense that forms the basis of the offense under Section 31.16,   Penal Code, on which the prosecution is based, is admissible:                       (A)     for the purpose of showing intent or   knowledge; or                       (B)     as evidence that the defendant was acting in   concert with one or more other persons;                 (2)     the unaltered price tag or other marking on retail   merchandise identifying the price of the retail merchandise is   prima facie evidence of the value of the retail merchandise for   purposes of Section 31.08(a-1), Penal Code; and                 (3)     a price tag or other marking described by   Subdivision (2) that identifies or is unique to a merchant is prima   facie evidence of the merchant's ownership of the retail   merchandise.          SECTION 3.  Section 31.01, Penal Code, is amended by   amending Subdivision (11) and adding Subdivision (15) to read as   follows:                (11)  "Retail merchandise" means one or more items of   tangible personal property displayed, held, stored, or offered for   sale by a merchant [ in a retail establishment ]. The term includes a   gift card.                 (15)     "Merchant" means any business that sells items to   the public.          SECTION 4.  Section 31.08, Penal Code, is amended by   amending Subsections (a), (c), and (d) and adding Subsection (a-1)   to read as follows:          (a)  Subject to the additional criteria of Subsections   (a-1), (b) , and (c), value under this chapter is:                (1)  the fair market value of the property or service at   the time and place of the offense; or                (2)  if the fair market value of the property cannot be   ascertained, the cost of replacing the property within a reasonable   time after the theft.           (a-1)     In the prosecution of an offense under Section 31.16   involving retail merchandise stolen from a merchant, the value of   the stolen retail merchandise is:                 (1)     the sales price of the retail merchandise as   stated, posted, or advertised by the merchant, including applicable   sales tax, at the time of the offense; or                 (2)     the rental price of the retail merchandise as   stated, posted, or advertised by the merchant, including applicable   sales tax, at the time of the offense plus the cost of replacing the   retail merchandise within a reasonable time after the offense.          (c)  If property or service has value that cannot be   reasonably ascertained by the criteria set forth in Subsections   (a) , (a-1), and (b), the property or service is deemed to have a   value of $750 or more but less than $2,500.          (d)  If the actor proves by a preponderance of the evidence   that the actor [ he ] gave consideration for or had a legal interest   in the property or service stolen, the amount of the consideration   or the value of the interest so proven shall be deducted from the   value of the property or service ascertained under Subsection (a),   (a-1), (b), or (c) to determine value for purposes of this chapter.          SECTION 5.  Section 31.16, Penal Code, is amended to read as   follows:          Sec. 31.16.  ORGANIZED RETAIL THEFT. (a) [ (b) ] A person   commits an offense if the person :                 (1)     acting in concert with one or more other persons,   unlawfully appropriates retail merchandise, money, or other   property from a merchant with the intent to deprive the merchant of   the property;                 (2)     on two or more occasions within a 180-day period,   unlawfully appropriates retail merchandise, money, or other   property from a merchant with the intent to deprive the merchant of   the property;                 (3)     knowingly obtains a benefit from conduct   constituting an offense under Subdivision (1) or (2) that was   committed by another person; or                 (4)     knowingly acts in concert with one or more other   persons to overwhelm the security response of a merchant or a peace   officer for the purpose of committing an offense under Subdivision   (1) or (2) or avoiding detection or apprehension for the offense   [ intentionally conducts, promotes, or facilitates an activity in   which the person receives, possesses, conceals, stores, barters,   sells, or disposes of:                [ (1)  stolen retail merchandise; or                [ (2)     merchandise explicitly represented to the person   as being stolen retail merchandise ].           (b)  In the prosecution of an offense under this section:                 (1)     Sections 31.03(b) and (c) apply to the offense for   purposes of determining whether property was unlawfully   appropriated from a merchant; and                 (2)     a person is presumed to have acted with the intent   to deprive a merchant of retail merchandise if the person:                       (A)     altered or removed a label, universal product   code, price tag, or retail theft detector for retail merchandise;   or                       (B)     transferred retail merchandise from the   merchandise's packaging into other packaging.          (c)   It is not a defense to prosecution under this section   that:                 (1)     a person who acted in concert with the actor has   not been charged, convicted, apprehended, or identified;                 (2)     the offense occurred as a result of a deception or   strategy on the part of a law enforcement agency, including the use   of an undercover operative or peace officer;                 (3)     the actor was provided by a law enforcement agency   with a facility in which to commit the offense or an opportunity to   engage in conduct constituting the offense; or                 (4)     the actor was solicited to commit the offense by a   peace officer, and the solicitation was of a type that would   encourage a person predisposed to commit the offense to actually   commit the offense but would not encourage a person not predisposed   to commit the offense to actually commit the offense.           (d)   An offense under this section is:                (1)  a Class B [ C ] misdemeanor if the total value of the   property [ merchandise ] involved in the offense [ activity ] is less   than $100;                (2)  a Class A [ B ] misdemeanor if the total value of the   property [ merchandise ] involved in the offense [ activity ] is $100   or more but less than $750;                (3)  a state jail felony [ Class A misdemeanor ] if the   total value of the property [ merchandise ] involved in the offense   [ activity ] is $750 or more but less than $2,500;                (4)  a [ state jail ] felony of the third degree if the   total value of the property [ merchandise ] involved in the offense   [ activity ] is $2,500 or more but less than $30,000;                (5)  a felony of the second [ third ] degree if the total   value of the property [ merchandise ] involved in the offense   [ activity ] is $30,000 or more but less than $150,000;                (6)  a felony of the first [ second ] degree if the total   value of the property [ merchandise ] involved in the offense   [ activity ] is $150,000 or more but less than $300,000; or                (7)  a felony of the first degree punishable by   imprisonment in the Texas Department of Criminal Justice for life   or for any term of not more than 99 years or less than 15 years, and   a fine not to exceed $250,000, if the total value of the property   [ merchandise ] involved in the offense [ activity ] is $300,000 or   more.           (e)     For purposes of enhancement of penalties under   Subchapter D, Chapter 12, a person is considered to have been   convicted of an offense under this section if the person was   adjudged guilty of the offense or entered a plea of guilty or nolo   contendere in return for a grant of deferred adjudication community   supervision, regardless of whether the sentence for the offense was   ever imposed or whether the sentence was probated and the person was   subsequently discharged from community supervision          [ (d)     An offense described for purposes of punishment by   Subsections (c)(1)-(6) is increased to the next higher category of   offense if it is shown on the trial of the offense that:                [ (1)     the person organized, supervised, financed, or   managed one or more other persons engaged in an activity described   by Subsection (b); or                [ (2)     during the commission of the offense, a person   engaged in an activity described by Subsection (b) intentionally,   knowingly, or recklessly:                      [ (A)     caused a fire exit alarm to sound or   otherwise become [Text truncated for display. 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