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A BILL TO BE ENTITLED
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AN ACT
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relating to the creation of certain criminal offenses involving |
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unauthorized aliens, to the forfeiture of property in relation to |
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criminal offenses involving unauthorized aliens, and to the |
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creation of a private cause of action for employing or contracting |
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with unauthorized aliens. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Title 4, Civil Practice and Remedies Code, is |
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amended by adding Chapter 94 to read as follows: |
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CHAPTER 94. LIABILITY FOR EMPLOYMENT OF UNAUTHORIZED ALIEN |
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Sec. 94.001. DEFINITION. In this chapter, "unauthorized |
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alien" has the meaning assigned by Section 40.01, Penal Code. |
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Sec. 94.002. LIABILITY. (a) A person is liable as provided |
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by Subsection (b) if the person intentionally, knowingly, or |
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recklessly: |
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(1) employs an unauthorized alien; or |
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(2) contracts for the performance of labor or other |
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work with an unauthorized alien. |
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(b) A person who is liable under Subsection (a) is liable to |
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the state for actual damages and any other appropriate relief. |
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(c) It is not a defense to liability under this chapter that |
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a defendant has not been prosecuted under Section 40.02, Penal |
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Code, or has been convicted of a different type or class of offense, |
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for the conduct that is alleged to give rise to liability under this |
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chapter. |
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Sec. 94.003. QUI TAM ACTION. (a) A person may file a civil |
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action for violation of Section 94.002. An action brought under |
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this section is a qui tam action on behalf of both the person and the |
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state and must be brought in the name of the person and the state. |
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(b) A person bringing an action under this section shall |
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serve a copy of the petition and a written disclosure of |
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substantially all material evidence and information the person |
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possesses on the attorney general in compliance with the Texas |
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Rules of Civil Procedure. |
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(c) The petition shall be filed in camera and, except as |
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provided by Subsection (e) or (f), shall remain under seal until at |
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least the 180th day after the date the petition is filed or the date |
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on which the state elects to intervene, whichever is earlier. The |
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petition may not be served on the defendant until the court orders |
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service on the defendant. |
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(d) The state may elect to intervene and proceed with the |
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action not later than the 180th day after the date the attorney |
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general receives the petition and the material evidence and |
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information. |
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(e) At the time the state intervenes, the attorney general |
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may file a motion with the court requesting that the petition remain |
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under seal for an extended period. |
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(f) The state may, for good cause shown, move the court to |
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extend the 180-day deadline under Subsection (c) or (d). A motion |
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under this subsection may be supported by affidavits or other |
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submissions in camera. |
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(g) An action under this section may be dismissed before the |
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end of the period during which the petition remains under seal only |
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if the court and the attorney general consent in writing to the |
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dismissal and state their reasons for consenting. |
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(h) A defendant is not required to file in accordance with |
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the Texas Rules of Civil Procedure an answer to a petition filed |
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under this section until the petition is unsealed and served on the |
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defendant. |
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(i) Not later than the last day of the period prescribed by |
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Subsection (d) or an extension of that period as provided by |
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Subsection (e) or (f), the state shall: |
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(1) proceed with the action; or |
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(2) notify the court that the state declines to take |
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over the action. |
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(j) If the state declines to take over the action, the |
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person bringing the action may proceed without the state's |
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participation. On request by the state, the state is entitled to be |
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served with copies of all pleadings filed in the action and be |
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provided at the state's expense with copies of all deposition |
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transcripts. If the person bringing the action proceeds without |
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the state's participation, the court, without limiting the status |
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and right of that person, may permit the state to intervene at a |
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later date on a showing of good cause. |
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(k) If the state proceeds with the action, the state has the |
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primary responsibility for prosecuting the action and is not bound |
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by an act of the person bringing the action. The person bringing |
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the action has the right to continue as a party to the action, |
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subject to the limitations in this section. |
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(l) The state may dismiss the action notwithstanding the |
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objections of the person bringing the action if: |
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(1) the attorney general notifies the person that the |
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state has filed a motion to dismiss; and |
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(2) the court provides the person with an opportunity |
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for a hearing on the motion. |
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(m) The state may settle the action with the defendant |
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notwithstanding the objections of the person bringing the action if |
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the court determines, after a hearing, that the proposed settlement |
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is fair, adequate, and reasonable under all the circumstances. On a |
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showing of good cause, the hearing may be held in camera. |
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(n) On a showing by the state that unrestricted |
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participation during the course of the litigation by the person |
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bringing the action would interfere with or unduly delay the |
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state's prosecution of the case, or would be repetitious, |
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irrelevant, or for purposes of harassment, the court may impose |
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limitations on the person's participation, including: |
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(1) limiting the number of witnesses the person may |
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call; |
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(2) limiting the length of the testimony of witnesses |
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called by the person; |
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(3) limiting the person's cross-examination of |
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witnesses; or |
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(4) otherwise limiting the participation by the person |
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in the litigation. |
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(o) On a showing by the defendant that unrestricted |
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participation during the course of the litigation by the person |
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bringing the action would be for purposes of harassment or would |
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cause the defendant undue burden or unnecessary expense, the court |
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may limit the participation by the person in the litigation. |
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(p) A person bringing an action under this section may |
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recover an amount not greater than half of the amount that the state |
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recovers as a result of the person bringing the action, excluding |
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attorney's fees and other expenses, interest, and costs, not to |
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exceed one-third of any judgment or award. |
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SECTION 2. 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; or |
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(xii) [(x)] any offense under Chapter 71, |
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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), or (xii) |
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[(B)(viii) or (x)] of this subdivision, or a crime of 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), or (xii) [(B)(viii) or (x)] of this subdivision, or a crime of |
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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; or |
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(F) located within this state and owned by a |
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person convicted of an offense under one or more of the following |
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provisions of the Penal Code, regardless of whether the property |
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was used or intended to be used in the commission of the offense or |
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offenses: |
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(i) Section 30.055, Penal Code; |
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(ii) Section 40.02, Penal Code; or |
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(iii) Section 38.05, Penal Code, if the |
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person who is harbored or concealed, provided with a means of |
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avoiding arrest or effecting escape, or warned of impending |
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discovery or apprehension: |
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(a) is a citizen of any country other |
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than the United States; and |
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(b) entered or remained on or in any |
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public or private property in this state in violation of 8 U.S.C. |
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Section 1325 or 1326. |
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SECTION 3. Chapter 30, Penal Code, is amended by adding |
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Section 30.055 to read as follows: |
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Sec. 30.055. CRIMINAL TRESPASS BY UNAUTHORIZED ALIEN. (a) |
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A person commits an offense if the person: |
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(1) is a citizen of any country other than the United |
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States; and |
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(2) enters or remains on or in any public or private |
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property in this state in violation of 8 U.S.C. Section 1325 or |
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1326. |
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(b) An offense under this section is a felony of the third |
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degree. |
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SECTION 4. The heading to Title 8, Penal Code, is amended to |
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read as follows: |
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TITLE 8. OFFENSES AGAINST PUBLIC ADMINISTRATION AND THE |
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ADMINISTRATION OF CERTAIN LAWS |
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SECTION 5. Title 8, Penal Code, is amended by adding Chapter |
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40 to read as follows: |
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CHAPTER 40. CERTAIN EMPLOYMENT OR CONTRACTS PROHIBITED UNDER |
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FEDERAL LAW |
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Sec. 40.01. DEFINITION. In this chapter, "unauthorized |
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alien" has the meaning assigned by 8 U.S.C. Section 1324a(h)(3). |
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Sec. 40.02. EMPLOYING OR CONTRACTING WITH UNAUTHORIZED |
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ALIEN. (a) A person commits an offense if the person |
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intentionally, knowingly, or recklessly: |
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(1) employs an unauthorized alien; or |
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(2) contracts for the performance of labor or other |
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work with an unauthorized alien. |
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(b) An offense under this section is a felony of the third |
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degree. |
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Sec. 40.03. EXCEPTION. It is an exception to the |
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application of Section 40.02 that the actor attempted to verify the |
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unauthorized alien's immigration status or work authorization and |
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had no knowledge of the unauthorized alien's actual immigration |
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status or work authorization. |
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SECTION 6. The change in law made by this Act in amending |
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Article 59.01(2), Code of Criminal Procedure, applies only to the |
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forfeiture of property in relation to an offense committed on or |
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after the effective date of this Act. Forfeiture of property in |
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relation to an offense committed before the effective date of this |
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Act is governed by the law in effect when the offense was committed, |
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and the former law is continued in effect for that purpose. For |
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purposes of this section, an offense was committed before the |
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effective date of this Act if any element of the offense occurred |
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before that date. |
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SECTION 7. 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 8. This Act takes effect September 1, 2011. |