Penalties rise for senior fraud, drive-by shootings under new Texas laws


by By TERRENCE STUTZ / The Dallas Morning News

Posted on August 31, 2009 at 8:33 AM

Updated Wednesday, Oct 21 at 3:54 PM

AUSTIN - Stiffer criminal penalties start Tuesday for those who defraud senior citizens, carry out drive-by shootings that inflict injury or loot an area evacuated because of natural disaster.

Criminals also will face more stringent punishment under new state laws aimed at cracking down on street gangs, tampering with government records, and stealing air conditioning parts and other materials made of copper.

Graffiti writers will find less tolerance for their late-night work, with a new requirement that they fully reimburse the property owner and perform mandatory community service based on the amount of damage they cause.

In all, more than a dozen laws boosting the penalties for certain crimes will go on the books Tuesday.

Legislators raised the stakes even as they have tried to control the size and cost of Texas' prison system. Some critics question whether more mandatory jail time for various offenses makes sense.

But influential groups such as the Texas Silver-Haired Legislature urged that decisive action be taken against certain criminals, a plea that most lawmakers found hard to resist. For the Silver-Haired Legislature, made up of senior citizens who recommend changes in the law, one of the biggest problems in Texas is the growing number of fraud crimes against the elderly.

"It is a fairly widespread problem, which is being made worse by the increasing number of seniors and the tight economy," said Carlos Higgins, a representative of the group who lobbied for the new law.

"As folks get older, too often they are less able to recognize and defend against the sharks out there, and we know the sharks are targeting seniors all over the state. Unfortunately, we also too often see seniors abused by their own family members."

The law, sponsored by state Sen. John Carona, R-Dallas, and state Rep. Ryan Guillen, D-Rio Grande City, will allow prosecutors to increase the category of the offense - and penalty - for forgery, credit and debit card abuse, or fraudulent use of identifying information, if the victim is an elderly individual.

One of those crimes could be increased from a state jail felony to a third-degree felony if committed against a person 65 or older. That would increase the maximum jail sentence from two years to 10 years under the criminal code.

"The elderly who rely on the care of others are some of our most vulnerable citizens," Carona said of the new law, which easily passed the House and Senate. "Increasing the penalties for these crimes will help protect our elderly citizens."


Similarly, there was strong legislative support for increasing the punishment for drive-by shootings that cause serious injury to any person. The crime will now be a first-degree felony, subject to imprisonment of five to 99 years.

Currently, the law does not define drive-by shootings as a specific crime. A person can be charged with deadly conduct, which carries a prison sentence of two to 10 years, but the charge also can result in probation. Serious injury now results in a second-degree felony charge.

The legislation was in part a response to the 2007 death of a 4-year-old Abilene girl who was killed by a drive-by shooter as she slept in her mother's bed.

"This child was indiscriminately and recklessly killed by someone shooting rounds into her house," said state Rep. Susan King, R-Abilene, who authored the legislation.

Reacting to the property looting in the wake of Hurricane Ike, lawmakers also raised the penalties for theft, burglary and assault if committed during an emergency evacuation order or state of disaster. The punishment will be increased to the next highest category of offense depending on the type of crime.

"The goal is to deter looting and other related crimes so that people may focus on saving their families and homes rather than protecting themselves from criminal elements," said state Sen. Dan Patrick, R-Houston, author of the measure.

Any effect?

While levying additional punishment for certain criminal activities appeals to most lawmakers, some critics contend that it doesn't accomplish much.

"It's an easy way to pretend you're doing something without really affecting the problem," said Scott Henson, a former policy director for the Innocence Project of Texas who writes a blog about Texas criminal justice practices and politics.

"You increase the penalty and say you're getting tough on criminals, but when you look down the line, it really doesn't have much effect on criminals," he said, contending there is little deterrent value in most enhanced penalty laws. Further, he added, enhanced penalties add to the prison population.

Henson noted that in 2007, the Legislature enhanced criminal penalties for theft of copper and aluminum wire and cable. After the bill passed, he said, prices for the metals jumped - and theft of copper and aluminum skyrocketed anyway.

"What was their response this year? They expanded the law to include other types of copper and aluminum materials," he said. "It didn't work the first time, so they decided to do it again."

Supporters of the change said the law needed to be expanded because it only applied to wire and cable, and not such things as air conditioner coils and lightning arrestor rods connected to telephone poles and buildings. Such thefts will now be a state jail felony instead of a misdemeanor.

State Rep. Armando Walle, D-Houston, has touted his legislation to make graffiti writers pay for their crime, now a Class A or Class B misdemeanor. At least 30 hours of community service would be required in which the loss to the property owner - including cleanup - exceeds $500.

"Graffiti is a serious problem for our community and state," Walle said. "This will force offenders to clean up their mess and give back to the community they defaced, deterring future offenses."


Some areas where lawmakers enhanced criminal penalties:

Defrauding senior citizens: The punishment increases for forgery, credit card abuse and fraudulent use of identification in which the victim is elderly; the crime raised to next highest offense category.

Drive-by shootings: The offense and punishment increases to a first-degree felony in cases in which the shooting seriously injures a person.

Looting in disaster areas: Penalties are toughened for theft, burglary and assault committed during an evacuation order or a state of disaster; the crime increased to next highest offense level

Gang membership: Coercing, inducing or soliciting membership in a criminal street gang through threats of bodily injury to a child or his family members becomes a third-degree felony.

Copper theft: Expanding on a law passed two years ago, lawmakers made it a state jail felony to steal copper and aluminum products such as air conditioning parts.

Graffiti: Writers of graffiti who are convicted will face new penalties that require extensive community service and compensation to property owners for damage caused by graffiti.