81R942 PEP-F
By: Pitts H.B. No. 1482
A BILL TO BE ENTITLED
AN ACT
relating to the creation of the offense of assault with bodily
fluids, the prosecution and punishment of that offense, and the
consequences of a conviction for that offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 22, Penal Code, is amended by adding
Section 22.03 to read as follows:
Sec. 22.03. ASSAULT WITH BODILY FLUIDS. (a) A person
commits an offense if:
(1) with the intent to assault, harass, or alarm, the
person causes another person to contact the blood, seminal fluid,
vaginal fluid, saliva, urine, or feces of the actor, any other
person, or an animal;
(2) with the intent to arouse or gratify the sexual
desire of any person, the person causes another person, without
that person's consent, to contact the blood, seminal fluid, vaginal
fluid, saliva, urine, or feces of the actor, any other person, or an
animal; or
(3) with the intent to arouse or gratify the sexual
desire of any person, the person causes a child to contact the
blood, seminal fluid, vaginal fluid, saliva, urine, or feces of the
actor, any other person, or an animal.
(b) In this section, "child" has the meaning assigned by
Section 22.011(c)(1).
(c) An offense under this section is:
(1) a Class A misdemeanor, if the offense is committed
under Subsection (a)(1);
(2) a felony of the third degree, if the offense is
committed under Subsection (a)(2); and
(3) a felony of the second degree, if the offense is
committed under Subsection (a)(3).
(d) An offense under Subsection (a)(2) or (3) is increased
to the next higher category of offense if it is shown at the trial of
the offense that, at the time of the commission of the offense, the
actor was:
(1) a peace officer as defined by Article 2.12, Code of
Criminal Procedure, or other law;
(2) a corrections officer employed by a secure
correctional facility;
(3) a health care services provider as defined by
Section 22.011(c)(3);
(4) a mental health services provider as defined by
Section 22.011(c)(4); or
(5) an employee of a facility as defined by Section
22.011(c)(5).
(e) It is an affirmative defense to prosecution under
Subsection (a)(3) that:
(1) the actor was not more than three years older than
the victim and at the time of the offense:
(A) was not required under Chapter 62, Code of
Criminal Procedure, to register for life as a sex offender; or
(B) was not a person who under Chapter 62, Code of
Criminal Procedure, had a reportable conviction or adjudication for
an offense under this section; and
(2) the victim:
(A) was a child of 14 years of age or older; and
(B) was not a person whom the actor was
prohibited from marrying or purporting to marry or with whom the
actor was prohibited from living under the appearance of being
married under Section 25.01.
(f) If conduct constituting an offense under this section
also constitutes an offense under another section of this code, the
actor may be prosecuted under either section or under both
sections.
SECTION 2. Section 3.03(b), Penal Code, is amended to read
as follows:
(b) If the accused is found guilty of more than one offense
arising out of the same criminal episode, the sentences may run
concurrently or consecutively if each sentence is for a conviction
of:
(1) an offense:
(A) under Section 49.07 or 49.08, regardless of
whether the accused is convicted of violations of the same section
more than once or is convicted of violations of both sections; or
(B) for which a plea agreement was reached in a
case in which the accused was charged with more than one offense
listed in Paragraph (A), regardless of whether the accused is
charged with violations of the same section more than once or is
charged with violations of both sections;
(2) an offense:
(A) under Section 33.021 or an offense under
Section 21.02, 21.11, 22.011, 22.021, 22.03(a)(3), 25.02, or 43.25
committed against a victim younger than 17 years of age at the time
of the commission of the offense regardless of whether the accused
is convicted of violations of the same section more than once or is
convicted of violations of more than one section; or
(B) for which a plea agreement was reached in a
case in which the accused was charged with more than one offense
listed in Paragraph (A) committed against a victim younger than 17
years of age at the time of the commission of the offense regardless
of whether the accused is charged with violations of the same
section more than once or is charged with violations of more than
one section; or
(3) an offense:
(A) under Section 21.15 or 43.26, regardless of
whether the accused is convicted of violations of the same section
more than once or is convicted of violations of both sections; or
(B) for which a plea agreement was reached in a
case in which the accused was charged with more than one offense
listed in Paragraph (A), regardless of whether the accused is
charged with violations of the same section more than once or is
charged with violations of both sections.
SECTION 3. Section 12.42(c)(2), Penal Code, is amended to
read as follows:
(2) Notwithstanding Subdivision (1), a defendant
shall be punished by imprisonment in the Texas Department of
Criminal Justice for life if:
(A) the defendant is convicted of an offense:
(i) under Section 21.11(a)(1), 22.021, or
22.011[, Penal Code];
(ii) under Section 20.04(a)(4)[, Penal
Code], if the defendant committed the offense with the intent to
violate or abuse the victim sexually; or
(iii) under Section 30.02[, Penal Code],
punishable under Subsection (d) of that section, if the defendant
committed the offense with the intent to commit a felony described
by Subparagraph (i) or (ii) or a felony under Section 21.11 or
22.03(a)(2) or (3)[, Penal Code]; and
(B) the defendant has been previously convicted
of an offense:
(i) under Section 43.25 or 43.26[, Penal
Code,] or an offense under Section 43.23[, Penal Code,] punishable
under Subsection (h) of that section;
(ii) under Section 21.02, 21.11, 22.011,
22.021, 22.03(a)(2) or (3), or 25.02[, Penal Code];
(iii) under Section 20.04(a)(4)[, Penal
Code], if the defendant committed the offense with the intent to
violate or abuse the victim sexually;
(iv) under Section 30.02[, Penal Code],
punishable under Subsection (d) of that section, if the defendant
committed the offense with the intent to commit a felony described
by Subparagraph (ii) or (iii); or
(v) under the laws of another state
containing elements that are substantially similar to the elements
of an offense listed in Subparagraph (i), (ii), (iii), or (iv).
SECTION 4. Section 15.031(b), Penal Code, is amended to
read as follows:
(b) A person commits an offense if, with intent that an
offense under Section 21.02, 21.11, 22.011, 22.021, 22.03(a)(2) or
(3), or 43.25 be committed, the person by any means requests,
commands, or attempts to induce a minor or another whom the person
believes to be a minor to engage in specific conduct that, under the
circumstances surrounding the actor's conduct as the actor believes
them to be, would constitute an offense under one of those sections
or would make the minor or other believed by the person to be a minor
a party to the commission of an offense under one of those sections.
SECTION 5. Section 22.06(a), Penal Code, is amended to read
as follows:
(a) The victim's effective consent or the actor's reasonable
belief that the victim consented to the actor's conduct is a defense
to prosecution under Section 22.01 (Assault), 22.02 (Aggravated
Assault), 22.03(a)(1) (Assault with Bodily Fluids), or 22.05
(Deadly Conduct) if:
(1) the conduct did not threaten or inflict serious
bodily injury; or
(2) the victim knew the conduct was a risk of:
(A) his occupation;
(B) recognized medical treatment; or
(C) a scientific experiment conducted by
recognized methods.
SECTION 6. Article 21.31(a), Code of Criminal Procedure, is
amended to read as follows:
(a) A person who is indicted for or who waives indictment
for an offense under Section 21.02, 21.11(a)(1), 22.011, [or]
22.021, or 22.03(a)(2) or (3), Penal Code, shall, at the direction
of the court, undergo a medical procedure or test designed to show
or help show whether the person has a sexually transmitted disease
or has acquired immune deficiency syndrome (AIDS) or human
immunodeficiency virus (HIV) infection, antibodies to HIV, or
infection with any other probable causative agent of AIDS. The
court may direct the person to undergo the procedure or test on its
own motion or on the request of the victim of the alleged offense.
If the person refuses to submit voluntarily to the procedure or
test, the court shall require the person to submit to the procedure
or test. The court may require a defendant previously required
under this article to undergo a medical procedure or test on
indictment for an offense to undergo a subsequent medical procedure
or test following conviction of the offense. The person performing
the procedure or test shall make the test results available to the
local health authority, and the local health authority shall be
required to make the notification of the test result to the victim
of the alleged offense and to the defendant.
SECTION 7. Section 1, Article 38.071, Code of Criminal
Procedure, is amended to read as follows:
Sec. 1. This article applies only to a hearing or proceeding
in which the court determines that a child younger than 13 years of
age would be unavailable to testify in the presence of the defendant
about an offense defined by any of the following sections of the
Penal Code:
(1) Section 19.02 (Murder);
(2) Section 19.03 (Capital Murder);
(3) Section 19.04 (Manslaughter);
(4) Section 20.04 (Aggravated Kidnapping);
(5) Section 21.11 (Indecency with a Child);
(6) Section 22.011 (Sexual Assault);
(7) Section 22.02 (Aggravated Assault);
(8) Section 22.021 (Aggravated Sexual Assault);
(9) Section 22.03(a)(3) (Assault with Bodily Fluids);
(10) Section 22.04(e) (Injury to a Child, Elderly
Individual, or Disabled Individual);
(11) [(10)] Section 22.04(f) (Injury to a Child,
Elderly Individual, or Disabled Individual), if the conduct is
committed intentionally or knowingly;
(12) [(11)] Section 25.02 (Prohibited Sexual
Conduct);
(13) [(12)] Section 29.03 (Aggravated Robbery);
(14) [(13)] Section 43.25 (Sexual Performance by a
Child); or
(15) [(14)] Section 21.02 (Continuous Sexual Abuse of
Young Child or Children).
SECTION 8. Section 3g(a), Article 42.12, Code of Criminal
Procedure, as amended by Chapters 405 (S.B. 877) and 593 (H.B. 8),
Acts of the 80th Legislature, Regular Session, 2007, is reenacted
and amended to read as follows:
(a) The provisions of Section 3 of this article do not
apply:
(1) to a defendant adjudged guilty of an offense
under:
(A) Section 19.02, Penal Code (Murder);
(B) Section 19.03, Penal Code (Capital murder);
(C) Section 21.11(a)(1), Penal Code (Indecency
with a child);
(D) Section 20.04, Penal Code (Aggravated
kidnapping);
(E) Section 22.021, Penal Code (Aggravated
sexual assault);
(F) Section 29.03, Penal Code (Aggravated
robbery);
(G) Chapter 481, Health and Safety Code, for
which punishment is increased under:
(i) Section 481.140, Health and Safety
Code; or
(ii) Section 481.134(c), (d), (e), or (f),
Health and Safety Code, if it is shown that the defendant has been
previously convicted of an offense for which punishment was
increased under any of those subsections;
(H) Section 22.011, Penal Code (Sexual assault);
[or]
(I) Section 22.04(a)(1), Penal Code (Injury to a
child, elderly individual, or disabled individual), if the offense
is punishable as a felony of the first degree and the victim of the
offense is a child; [or]
(J) [(I)] Section 43.25, Penal Code (Sexual
performance by a child); or
(K) Section 22.03(a)(2) or (3), Penal Code
(Assault with bodily fluids); or
(2) to a defendant when it is shown that a deadly
weapon as defined in Section 1.07, Penal Code, was used or exhibited
during the commission of a felony offense or during immediate
flight therefrom, and that the defendant used or exhibited the
deadly weapon or was a party to the offense and knew that a deadly
weapon would be used or exhibited. On an affirmative finding under
this subdivision, the trial court shall enter the finding in the
judgment of the court. On an affirmative finding that the deadly
weapon was a firearm, the court shall enter that finding in its
judgment.
SECTION 9. Section 5(d), Article 42.12, Code of Criminal
Procedure, is amended to read as follows:
(d) In all other cases the judge may grant deferred
adjudication unless:
(1) the defendant is charged with an offense:
(A) under Sections 49.04-49.08, Penal Code; or
(B) for which punishment may be increased under
Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it
is shown that the defendant has been previously convicted of an
offense for which punishment was increased under any one of those
subsections;
(2) the defendant:
(A) is charged with an offense under Section
21.11, 22.011, [or] 22.021, or 22.03(a)(2) or (3), Penal Code,
regardless of the age of the victim, or any other [a] felony
described by Section 13B(b) of this article; and
(B) has previously been placed on community
supervision for any offense under Paragraph (A) of this
subdivision; or
(3) the defendant is charged with an offense under:
(A) Section 21.02, Penal Code; or
(B) Section 22.021, Penal Code, that is
punishable under Subsection (f) of that section or under Section
12.42(c)(3), Penal Code.
SECTION 10. Section 13B(b), Article 42.12, Code of Criminal
Procedure, is amended to read as follows:
(b) This section applies to a defendant placed on community
supervision for an offense:
(1) under Section 43.25 or 43.26, Penal Code;
(2) under Section 21.08, 21.11, 22.011, 22.021,
22.03(a)(3), or 25.02, Penal Code;
(3) under Section 20.04(a)(4), Penal Code, if the
defendant committed the offense with the intent to violate or abuse
the victim sexually; or
(4) under Section 30.02, Penal Code, punishable under
Subsection (d) of that section, if the defendant committed the
offense with the intent to commit a felony listed in Subdivision (2)
or (3) of this subsection.
SECTION 11. Article 62.001(5), Code of Criminal Procedure,
is amended to read as follows:
(5) "Reportable conviction or adjudication" means a
conviction or adjudication, including an adjudication of
delinquent conduct or a deferred adjudication, that, regardless of
the pendency of an appeal, is a conviction for or an adjudication
for or based on:
(A) a violation of Section 21.02 (Continuous
sexual abuse of young child or children), 21.11 (Indecency with a
child), 22.011 (Sexual assault), 22.021 (Aggravated sexual
assault), 22.03(a)(2) or (3) (Assault with bodily fluids), or 25.02
(Prohibited sexual conduct), Penal Code;
(B) a violation of Section 43.05 (Compelling
prostitution), 43.25 (Sexual performance by a child), or 43.26
(Possession or promotion of child pornography), Penal Code;
(C) a violation of Section 20.04(a)(4)
(Aggravated kidnapping), Penal Code, if the actor committed the
offense or engaged in the conduct with intent to violate or abuse
the victim sexually;
(D) a violation of Section 30.02 (Burglary),
Penal Code, if the offense or conduct is punishable under
Subsection (d) of that section and the actor committed the offense
or engaged in the conduct with intent to commit a felony listed in
Paragraph (A) or (C);
(E) a violation of Section 20.02 (Unlawful
restraint), 20.03 (Kidnapping), or 20.04 (Aggravated kidnapping),
Penal Code, if, as applicable:
(i) the judgment in the case contains an
affirmative finding under Article 42.015; or
(ii) the order in the hearing or the papers
in the case contain an affirmative finding that the victim or
intended victim was younger than 17 years of age;
(F) the second violation of Section 21.08
(Indecent exposure), Penal Code, but not if the second violation
results in a deferred adjudication;
(G) an attempt, conspiracy, or solicitation, as
defined by Chapter 15, Penal Code, to commit an offense or engage in
conduct listed in Paragraph (A), (B), (C), (D), or (E);
(H) a violation of the laws of another state,
federal law, the laws of a foreign country, or the Uniform Code of
Military Justice for or based on the violation of an offense
containing elements that are substantially similar to the elements
of an offense listed under Paragraph (A), (B), (C), (D), (E), (G),
or (J), but not if the violation results in a deferred adjudication;
(I) the second violation of the laws of another
state, federal law, the laws of a foreign country, or the Uniform
Code of Military Justice for or based on the violation of an offense
containing elements that are substantially similar to the elements
of the offense of indecent exposure, but not if the second violation
results in a deferred adjudication; or
(J) a violation of Section 33.021 (Online
solicitation of a minor), Penal Code.
SECTION 12. Article 62.001(6), Code of Criminal Procedure,
is amended to read as follows:
(6) "Sexually violent offense" means any of the
following offenses committed by a person 17 years of age or older:
(A) an offense under Section 21.02 (Continuous
sexual abuse of young child or children), 21.11(a)(1) (Indecency
with a child), 22.011 (Sexual assault), [or] 22.021 (Aggravated
sexual assault), or 22.03(a)(2) or (3) (Assault with bodily
fluids), Penal Code;
(B) an offense under Section 43.25 (Sexual
performance by a child), Penal Code;
(C) an offense under Section 20.04(a)(4)
(Aggravated kidnapping), Penal Code, if the defendant committed the
offense with intent to violate or abuse the victim sexually;
(D) an offense under Section 30.02 (Burglary),
Penal Code, if the offense is punishable under Subsection (d) of
that section and the defendant committed the offense with intent to
commit a felony listed in Paragraph (A) or (C) of Subdivision (5);
or
(E) an offense under the laws of another state,
federal law, the laws of a foreign country, or the Uniform Code of
Military Justice if the offense contains elements that are
substantially similar to the elements of an offense listed under
Paragraph (A), (B), (C), or (D).
SECTION 13. Article 102.0186(a), Code of Criminal
Procedure, is amended to read as follows:
(a) A person convicted of an offense under Section 21.02,
21.11, 22.011(a)(2), 22.021(a)(1)(B), 22.03(a)(3), 43.25, 43.251,
or 43.26, Penal Code, shall pay $100 on conviction of the offense.
SECTION 14. Section 25.0341(a), Education Code, is amended
to read as follows:
(a) This section applies only to:
(1) a student:
(A) who has been convicted of continuous sexual
abuse of young child or children under Section 21.02, Penal Code, or
convicted of or placed on deferred adjudication for the offense of
sexual assault under Section 22.011, Penal Code, [or] aggravated
sexual assault under Section 22.021, Penal Code, or assault with
bodily fluids under Section 22.03(a)(2) or (3), Penal Code,
committed against another student who, at the time the offense
occurred, was assigned to the same campus as the student convicted
or placed on deferred adjudication;
(B) who has been adjudicated under Section 54.03,
Family Code, as having engaged in conduct described by Paragraph
(A);
(C) whose prosecution under Section 53.03,
Family Code, for engaging in conduct described by Paragraph (A) has
been deferred; or
(D) who has been placed on probation under
Section 54.04(d)(1), Family Code, for engaging in conduct described
by Paragraph (A); and
(2) a student who is the victim of conduct described by
Subdivision (1)(A).
SECTION 15. Section 37.007(a), Education Code, is amended
to read as follows:
(a) A student shall be expelled from a school if the
student, on school property or while attending a school-sponsored
or school-related activity on or off of school property:
(1) uses, exhibits, or possesses:
(A) a firearm as defined by Section 46.01(3),
Penal Code;
(B) an illegal knife as defined by Section
46.01(6), Penal Code, or by local policy;
(C) a club as defined by Section 46.01(1), Penal
Code; or
(D) a weapon listed as a prohibited weapon under
Section 46.05, Penal Code;
(2) engages in conduct that contains the elements of
the offense of:
(A) aggravated assault under Section 22.02,
Penal Code, sexual assault under Section 22.011, Penal Code, or
aggravated sexual assault under Section 22.021, Penal Code;
(B) arson under Section 28.02, Penal Code;
(C) murder under Section 19.02, Penal Code,
capital murder under Section 19.03, Penal Code, or criminal
attempt, under Section 15.01, Penal Code, to commit murder or
capital murder;
(D) indecency with a child under Section 21.11,
Penal Code;
(E) aggravated kidnapping under Section 20.04,
Penal Code;
(F) aggravated robbery under Section 29.03,
Penal Code;
(G) manslaughter under Section 19.04, Penal
Code;
(H) criminally negligent homicide under Section
19.05, Penal Code; [or]
(I) continuous sexual abuse of young child or
children under Section 21.02, Penal Code; or
(J) assault with bodily fluids under Section
22.03(a)(2) or (3), Penal Code; or
(3) engages in conduct specified by Section
37.006(a)(2)(C) or (D), if the conduct is punishable as a felony.
SECTION 16. Section 33.009, Family Code, is amended to read
as follows:
Sec. 33.009. OTHER REPORTS OF SEXUAL ABUSE OF A MINOR. A
court or the guardian ad litem or attorney ad litem for the minor
shall report conduct reasonably believed to violate Section 21.02,
22.011, 22.021, 22.03(a)(3), or 25.02, Penal Code, based on
information obtained during a confidential court proceeding held
under this chapter to:
(1) any local or state law enforcement agency;
(2) the Department of Family and Protective Services,
if the alleged conduct involves a person responsible for the care,
custody, or welfare of the child;
(3) the state agency that operates, licenses,
certifies, or registers the facility in which the alleged conduct
occurred, if the alleged conduct occurred in a facility operated,
licensed, certified, or registered by a state agency; or
(4) an appropriate agency designated by the court.
SECTION 17. Section 33.010, Family Code, is amended to read
as follows:
Sec. 33.010. CONFIDENTIALITY. Notwithstanding any other
law, information obtained by the Department of Family and
Protective Services or another entity under Section 33.008 or
33.009 is confidential except to the extent necessary to prove a
violation of Section 21.02, 22.011, 22.021, 22.03(a)(3), or 25.02,
Penal Code.
SECTION 18. Section 156.104, Family Code, is amended to
read as follows:
Sec. 156.104. MODIFICATION OF ORDER ON CONVICTION FOR CHILD
ABUSE; PENALTY. (a) Except as provided by Section 156.1045, the
conviction of a conservator for an offense under Section 21.02,
Penal Code, or the conviction of a conservator or an order deferring
adjudication with regard to the conservator, for an offense
involving the abuse of a child under Section 21.11, 22.011, [or]
22.021, or 22.03(a)(3), Penal Code, is a material and substantial
change of circumstances sufficient to justify a temporary order and
modification of an existing court order or portion of a decree that
provides for the appointment of a conservator or that sets the terms
and conditions of conservatorship or for the possession of or
access to a child.
(b) A person commits an offense if the person files a suit to
modify an order or portion of a decree based on the grounds
permitted under Subsection (a) and the person knows that the person
against whom the motion is filed has not been convicted of an
offense, or received deferred adjudication for an offense, under
Section 21.02, 21.11, 22.011, [or] 22.021, or 22.03(a)(3), Penal
Code. An offense under this subsection is a Class B misdemeanor.
SECTION 19. Section 161.001, Family Code, is amended to
read as follows:
Sec. 161.001. INVOLUNTARY TERMINATION OF PARENT-CHILD
RELATIONSHIP. The court may order termination of the parent-child
relationship if the court finds by clear and convincing evidence:
(1) that the parent has:
(A) voluntarily left the child alone or in the
possession of another not the parent and expressed an intent not to
return;
(B) voluntarily left the child alone or in the
possession of another not the parent without expressing an intent
to return, without providing for the adequate support of the child,
and remained away for a period of at least three months;
(C) voluntarily left the child alone or in the
possession of another without providing adequate support of the
child and remained away for a period of at least six months;
(D) knowingly placed or knowingly allowed the
child to remain in conditions or surroundings which endanger the
physical or emotional well-being of the child;
(E) engaged in conduct or knowingly placed the
child with persons who engaged in conduct which endangers the
physical or emotional well-being of the child;
(F) failed to support the child in accordance
with the parent's ability during a period of one year ending within
six months of the date of the filing of the petition;
(G) abandoned the child without identifying the
child or furnishing means of identification, and the child's
identity cannot be ascertained by the exercise of reasonable
diligence;
(H) voluntarily, and with knowledge of the
pregnancy, abandoned the mother of the child beginning at a time
during her pregnancy with the child and continuing through the
birth, failed to provide adequate support or medical care for the
mother during the period of abandonment before the birth of the
child, and remained apart from the child or failed to support the
child since the birth;
(I) contumaciously refused to submit to a
reasonable and lawful order of a court under Subchapter D, Chapter
261;
(J) been the major cause of:
(i) the failure of the child to be enrolled
in school as required by the Education Code; or
(ii) the child's absence from the child's
home without the consent of the parents or guardian for a
substantial length of time or without the intent to return;
(K) executed before or after the suit is filed an
unrevoked or irrevocable affidavit of relinquishment of parental
rights as provided by this chapter;
(L) been convicted or has been placed on
community supervision, including deferred adjudication community
supervision, for being criminally responsible for the death or
serious injury of a child under the following sections of the Penal
Code or adjudicated under Title 3 for conduct that caused the death
or serious injury of a child and that would constitute a violation
of one of the following Penal Code sections:
(i) Section 19.02 (murder);
(ii) Section 19.03 (capital murder);
(iii) Section 19.04 (manslaughter);
(iv) Section 21.11 (indecency with a
child);
(v) Section 22.01 (assault);
(vi) Section 22.011 (sexual assault);
(vii) Section 22.02 (aggravated assault);
(viii) Section 22.021 (aggravated sexual
assault);
(ix) Section 22.03(a)(3) (assault with
bodily fluids);
(x) Section 22.04 (injury to a child, elderly
individual, or disabled individual);
(xi) [(x)] Section 22.041 (abandoning or
endangering child);
(xii) [(xi)] Section 25.02 (prohibited
sexual conduct);
(xiii) [(xii)] Section 43.25 (sexual
performance by a child);
(xiv) [(xiii)] Section 43.26 (possession or
promotion of child pornography); and
(xv) [(xiv)] Section 21.02 (continuous
sexual abuse of young child or children);
(M) had his or her parent-child relationship
terminated with respect to another child based on a finding that the
parent's conduct was in violation of Paragraph (D) or (E) or
substantially equivalent provisions of the law of another state;
(N) constructively abandoned the child who has
been in the permanent or temporary managing conservatorship of the
Department of Family and Protective Services or an authorized
agency for not less than six months, and:
(i) the department or authorized agency has
made reasonable efforts to return the child to the parent;
(ii) the parent has not regularly visited
or maintained significant contact with the child; and
(iii) the parent has demonstrated an
inability to provide the child with a safe environment;
(O) failed to comply with the provisions of a
court order that specifically established the actions necessary for
the parent to obtain the return of the child who has been in the
permanent or temporary managing conservatorship of the Department
of Family and Protective Services for not less than nine months as a
result of the child's removal from the parent under Chapter 262 for
the abuse or neglect of the child;
(P) used a controlled substance, as defined by
Chapter 481, Health and Safety Code, in a manner that endangered the
health or safety of the child, and:
(i) failed to complete a court-ordered
substance abuse treatment program; or
(ii) after completion of a court-ordered
substance abuse treatment program, continued to abuse a controlled
substance;
(Q) knowingly engaged in criminal conduct that
has resulted in the parent's:
(i) conviction of an offense; and
(ii) confinement or imprisonment and
inability to care for the child for not less than two years from the
date of filing the petition;
(R) been the cause of the child being born
addicted to alcohol or a controlled substance, other than a
controlled substance legally obtained by prescription, as defined
by Section 261.001;
(S) voluntarily delivered the child to a
designated emergency infant care provider under Section 262.302
without expressing an intent to return for the child; or
(T) been convicted of the murder of the other
parent of the child under Section 19.02 or 19.03, Penal Code, or
under a law of another state, federal law, the law of a foreign
country, or the Uniform Code of Military Justice that contains
elements that are substantially similar to the elements of an
offense under Section 19.02 or 19.03, Penal Code; and
(2) that termination is in the best interest of the
child.
SECTION 20. Section 161.007, Family Code, is amended to
read as follows:
Sec. 161.007. TERMINATION WHEN PREGNANCY RESULTS FROM
CRIMINAL ACT. The court may order the termination of the
parent-child relationship of a parent and a child if the court finds
that:
(1) the parent has been convicted of an offense
committed under Section 21.02, 22.011, 22.021, 22.03(a)(3), or
25.02, Penal Code;
(2) as a direct result of the commission of the offense
by the parent, the victim of the offense became pregnant with the
parent's child; and
(3) termination is in the best interest of the child.
SECTION 21. Section 261.001(1), Family Code, is amended to
read as follows:
(1) "Abuse" includes the following acts or omissions
by a person:
(A) mental or emotional injury to a child that
results in an observable and material impairment in the child's
growth, development, or psychological functioning;
(B) causing or permitting the child to be in a
situation in which the child sustains a mental or emotional injury
that results in an observable and material impairment in the
child's growth, development, or psychological functioning;
(C) physical injury that results in substantial
harm to the child, or the genuine threat of substantial harm from
physical injury to the child, including an injury that is at
variance with the history or explanation given and excluding an
accident or reasonable discipline by a parent, guardian, or
managing or possessory conservator that does not expose the child
to a substantial risk of harm;
(D) failure to make a reasonable effort to
prevent an action by another person that results in physical injury
that results in substantial harm to the child;
(E) sexual conduct harmful to a child's mental,
emotional, or physical welfare, including conduct that constitutes
the offense of continuous sexual abuse of young child or children
under Section 21.02, Penal Code, indecency with a child under
Section 21.11, Penal Code, sexual assault under Section 22.011,
Penal Code, [or] aggravated sexual assault under Section 22.021,
Penal Code, or assault with bodily fluids under Section
22.03(a)(3), Penal Code;
(F) failure to make a reasonable effort to
prevent sexual conduct harmful to a child;
(G) compelling or encouraging the child to engage
in sexual conduct as defined by Section 43.01, Penal Code;
(H) causing, permitting, encouraging, engaging
in, or allowing the photographing, filming, or depicting of the
child if the person knew or should have known that the resulting
photograph, film, or depiction of the child is obscene as defined by
Section 43.21, Penal Code, or pornographic;
(I) the current use by a person of a controlled
substance as defined by Chapter 481, Health and Safety Code, in a
manner or to the extent that the use results in physical, mental, or
emotional injury to a child;
(J) causing, expressly permitting, or
encouraging a child to use a controlled substance as defined by
Chapter 481, Health and Safety Code; or
(K) causing, permitting, encouraging, engaging
in, or allowing a sexual performance by a child as defined by
Section 43.25, Penal Code.
SECTION 22. Section 262.2015(b), Family Code, is amended to
read as follows:
(b) The court may find under Subsection (a) that a parent
has subjected the child to aggravated circumstances if:
(1) the parent abandoned the child without
identification or a means for identifying the child;
(2) the child is a victim of serious bodily injury or
sexual abuse inflicted by the parent or by another person with the
parent's consent;
(3) the parent has engaged in conduct against the
child that would constitute an offense under the following
provisions of the Penal Code:
(A) Section 19.02 (murder);
(B) Section 19.03 (capital murder);
(C) Section 19.04 (manslaughter);
(D) Section 21.11 (indecency with a child);
(E) Section 22.011 (sexual assault);
(F) Section 22.02 (aggravated assault);
(G) Section 22.021 (aggravated sexual assault);
(H) Section 22.03(a)(3) (assault with bodily
fluids);
(I) Section 22.04 (injury to a child, elderly
individual, or disabled individual);
(J) [(I)] Section 22.041 (abandoning or
endangering child);
(K) [(J)] Section 25.02 (prohibited sexual
conduct);
(L) [(K)] Section 43.25 (sexual performance by a
child);
(M) [(L)] Section 43.26 (possession or promotion
of child pornography); or
(N) [(M)] Section 21.02 (continuous sexual abuse
of young child or children);
(4) the parent voluntarily left the child alone or in
the possession of another person not the parent of the child for at
least six months without expressing an intent to return and without
providing adequate support for the child;
(5) the parent's parental rights with regard to
another child have been involuntarily terminated based on a finding
that the parent's conduct violated Section 161.001(1)(D) or (E) or
a substantially equivalent provision of another state's law;
(6) the parent has been convicted for:
(A) the murder of another child of the parent and
the offense would have been an offense under 18 U.S.C. Section
1111(a) if the offense had occurred in the special maritime or
territorial jurisdiction of the United States;
(B) the voluntary manslaughter of another child
of the parent and the offense would have been an offense under 18
U.S.C. Section 1112(a) if the offense had occurred in the special
maritime or territorial jurisdiction of the United States;
(C) aiding or abetting, attempting, conspiring,
or soliciting an offense under Subdivision (A) or (B); or
(D) the felony assault of the child or another
child of the parent that resulted in serious bodily injury to the
child or another child of the parent; or
(7) the parent's parental rights with regard to two
other children have been involuntarily terminated.
SECTION 23. Section 411.1471(a), Government Code, is
amended to read as follows:
(a) This section applies to a defendant who is:
(1) indicted or waives indictment for a felony
prohibited or punishable under any of the following Penal Code
sections:
(A) Section 20.04(a)(4);
(B) Section 21.11;
(C) Section 22.011;
(D) Section 22.021;
(E) Section 22.03(a)(2) or (3);
(F) Section 25.02;
(G) [(F)] Section 30.02(d);
(H) [(G)] Section 43.05;
(I) [(H)] Section 43.25;
(J) [(I)] Section 43.26; or
(K) [(J)] Section 21.02;
(2) arrested for a felony described by Subdivision (1)
after having been previously convicted of or placed on deferred
adjudication for an offense described by Subdivision (1) or an
offense punishable under Section 30.02(c)(2), Penal Code; or
(3) convicted of an offense under Section 21.07 or
21.08, Penal Code.
SECTION 24. Section 420.003(4), Government Code, is amended
to read as follows:
(4) "Sexual assault" means any act or attempted act as
described by Section 21.02, 21.11, 22.011, 22.021, 22.03(a)(2) or
(3), or 25.02, Penal Code.
SECTION 25. Section 501.061(a), Government Code, is amended
to read as follows:
(a) A physician employed or retained by the department may
perform an orchiectomy on an inmate only if:
(1) the inmate has been convicted of an offense under
Section 21.02, 21.11, 22.011(a)(2), [or] 22.021(a)(2)(B), or
22.03(a)(3), Penal Code, and has previously been convicted under
one or more of those sections;
(2) the inmate is 21 years of age or older;
(3) the inmate requests the procedure in writing;
(4) the inmate signs a statement admitting the inmate
committed the offense described by Subsection (a)(1) for which the
inmate has been convicted;
(5) a psychiatrist and a psychologist who are
appointed by the department and have experience in the treatment of
sex offenders:
(A) evaluate the inmate and determine that the
inmate is a suitable candidate for the procedure; and
(B) counsel the inmate before the inmate
undergoes the procedure;
(6) the physician obtains the inmate's informed,
written consent to undergo the procedure;
(7) the inmate has not previously requested that the
department perform the procedure and subsequently withdrawn the
request; and
(8) the inmate consults with a monitor as provided by
Subsection (f).
SECTION 26. Section 508.046, Government Code, is amended to
read as follows:
Sec. 508.046. EXTRAORDINARY VOTE REQUIRED. To release on
parole an inmate who was convicted of an offense under Section
21.02, 21.11(a)(1), [or] 22.021, or 22.03(a)(3), Penal Code, or who
is required under Section 508.145(c) to serve 35 calendar years
before becoming eligible for release on parole, all members of the
board must vote on the release on parole of the inmate, and at least
two-thirds of the members must vote in favor of the release on
parole. A member of the board may not vote on the release unless the
member first receives a copy of a written report from the department
on the probability that the inmate would commit an offense after
being released on parole.
SECTION 27. Section 508.145(d), Government Code, is amended
to read as follows:
(d) An inmate serving a sentence for an offense described by
Section 3g(a)(1)(A), (C), (D), (E), (F), (G), (H), [or] (I), (J), or
(K), Article 42.12, Code of Criminal Procedure, or for an offense
for which the judgment contains an affirmative finding under
Section 3g(a)(2) of that article, is not eligible for release on
parole until the inmate's actual calendar time served, without
consideration of good conduct time, equals one-half of the sentence
or 30 calendar years, whichever is less, but in no event is the
inmate eligible for release on parole in less than two calendar
years.
SECTION 28. Section 508.149(a), Government Code, is amended
to read as follows:
(a) An inmate may not be released to mandatory supervision
if the inmate is serving a sentence for or has been previously
convicted of:
(1) an offense for which the judgment contains an
affirmative finding under Section 3g(a)(2), Article 42.12, Code of
Criminal Procedure;
(2) a first degree felony or a second degree felony
under Section 19.02, Penal Code;
(3) a capital felony under Section 19.03, Penal Code;
(4) a first degree felony or a second degree felony
under Section 20.04, Penal Code;
(5) an offense under Section 21.11, Penal Code;
(6) a felony under Section 22.011, Penal Code;
(7) a first degree felony or a second degree felony
under Section 22.02, Penal Code;
(8) a first degree felony under Section 22.021, Penal
Code;
(9) a first degree felony under Section 22.04, Penal
Code;
(10) a first degree felony under Section 28.02, Penal
Code;
(11) a second degree felony under Section 29.02, Penal
Code;
(12) a first degree felony under Section 29.03, Penal
Code;
(13) a first degree felony under Section 30.02, Penal
Code;
(14) a felony for which the punishment is increased
under Section 481.134 or Section 481.140, Health and Safety Code;
(15) an offense under Section 43.25, Penal Code; [or]
(16) an offense under Section 21.02, Penal Code; or
(17) a felony under Section 22.03, Penal Code.
SECTION 29. Section 508.187(a), Government Code, is amended
to read as follows:
(a) This section applies only to a releasee serving a
sentence for an offense under:
(1) Section 43.25 or 43.26, Penal Code;
(2) Section 21.02, 21.11, 22.011, 22.021,
22.03(a)(3), or 25.02, Penal Code;
(3) Section 20.04(a)(4), Penal Code, if the releasee
committed the offense with the intent to violate or abuse the victim
sexually; or
(4) Section 30.02, Penal Code, punishable under
Subsection (d) of that section, if the releasee committed the
offense with the intent to commit a felony listed in Subdivision (2)
or (3).
SECTION 30. Section 508.189(a), Government Code, is amended
to read as follows:
(a) A parole panel shall require as a condition of parole or
mandatory supervision that a releasee convicted of an offense under
Section 21.02, 21.08, 21.11, 22.011, 22.021, 22.03(a)(2) or (3),
25.02, 43.25, or 43.26, Penal Code, pay to the division a parole
supervision fee of $5 each month during the period of parole
supervision.
SECTION 31. Section 242.126(c), Health and Safety Code, is
amended to read as follows:
(c) The agency shall begin the investigation:
(1) within 24 hours of receipt of the report or other
allegation, if the report of abuse or neglect or other complaint
alleges that:
(A) a resident's health or safety is in imminent
danger;
(B) a resident has recently died because of
conduct alleged in the report of abuse or neglect or other
complaint;
(C) a resident has been hospitalized or been
treated in an emergency room because of conduct alleged in the
report of abuse or neglect or other complaint;
(D) a resident has been a victim of any act or
attempted act described by Section 21.02, 21.11, 22.011, [or]
22.021, or 22.03(a)(2) or (3), Penal Code; or
(E) a resident has suffered bodily injury, as
that term is defined by Section 1.07, Penal Code, because of conduct
alleged in the report of abuse or neglect or other complaint; or
(2) before the end of the next working day after the
date of receipt of the report of abuse or neglect or other
complaint, if the report or complaint alleges the existence of
circumstances that could result in abuse or neglect and that could
place a resident's health or safety in imminent danger.
SECTION 32. Section 250.006(a), Health and Safety Code, is
amended to read as follows:
(a) A person for whom the facility is entitled to obtain
criminal history record information may not be employed in a
facility if the person has been convicted of an offense listed in
this subsection:
(1) an offense under Chapter 19, Penal Code (criminal
homicide);
(2) an offense under Chapter 20, Penal Code
(kidnapping and unlawful restraint);
(3) an offense under Section 21.02, Penal Code
(continuous sexual abuse of young child or children), or Section
21.11, Penal Code (indecency with a child);
(4) an offense under Section 22.011, Penal Code
(sexual assault);
(5) an offense under Section 22.02, Penal Code
(aggravated assault), or Section 22.03(a)(2) or (3), Penal Code
(assault with bodily fluids);
(6) an offense under Section 22.04, Penal Code (injury
to a child, elderly individual, or disabled individual);
(7) an offense under Section 22.041, Penal Code
(abandoning or endangering child);
(8) an offense under Section 22.08, Penal Code (aiding
suicide);
(9) an offense under Section 25.031, Penal Code
(agreement to abduct from custody);
(10) an offense under Section 25.08, Penal Code (sale
or purchase of a child);
(11) an offense under Section 28.02, Penal Code
(arson);
(12) an offense under Section 29.02, Penal Code
(robbery);
(13) an offense under Section 29.03, Penal Code
(aggravated robbery);
(14) an offense under Section 21.08, Penal Code
(indecent exposure);
(15) an offense under Section 21.12, Penal Code
(improper relationship between educator and student);
(16) an offense under Section 21.15, Penal Code
(improper photography or visual recording);
(17) an offense under Section 22.05, Penal Code
(deadly conduct);
(18) an offense under Section 22.021, Penal Code
(aggravated sexual assault);
(19) an offense under Section 22.07, Penal Code
(terroristic threat);
(20) an offense under Section 33.021, Penal Code
(online solicitation of a minor);
(21) an offense under Section 34.02, Penal Code (money
laundering);
(22) an offense under Section 35A.02, Penal Code
(Medicaid fraud);
(23) an offense under Section 42.09, Penal Code
(cruelty to animals); or
(24) a conviction under the laws of another state,
federal law, or the Uniform Code of Military Justice for an offense
containing elements that are substantially similar to the elements
of an offense listed by this subsection.
SECTION 33. Section 841.002(8), Health and Safety Code, is
amended to read as follows:
(8) "Sexually violent offense" means:
(A) an offense under Section 21.02, 21.11(a)(1),
22.011, [or] 22.021, or 22.03(a)(2) or (3), Penal Code;
(B) an offense under Section 20.04(a)(4), Penal
Code, if the person committed the offense with the intent to violate
or abuse the victim sexually;
(C) an offense under Section 30.02, Penal Code,
if the offense is punishable under Subsection (d) of that section
and the person committed the offense with the intent to commit an
offense listed in Paragraph (A) or (B);
(D) an offense under Section 19.02 or 19.03,
Penal Code, that, during the guilt or innocence phase or the
punishment phase for the offense, during the adjudication or
disposition of delinquent conduct constituting the offense, or
subsequently during a civil commitment proceeding under Subchapter
D, is determined beyond a reasonable doubt to have been based on
sexually motivated conduct;
(E) an attempt, conspiracy, or solicitation, as
defined by Chapter 15, Penal Code, to commit an offense listed in
Paragraph (A), (B), (C), or (D);
(F) an offense under prior state law that
contains elements substantially similar to the elements of an
offense listed in Paragraph (A), (B), (C), (D), or (E); or
(G) an offense under the law of another state,
federal law, or the Uniform Code of Military Justice that contains
elements substantially similar to the elements of an offense listed
in Paragraph (A), (B), (C), (D), or (E).
SECTION 34. (a) Except as provided by Subsection (b) of this
section, the change in law made by this Act applies only to an
offense committed on or after the effective date of this Act. An
offense committed before the effective date of this Act 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
subsection, an offense was committed before the effective date of
this Act if any element of the offense was committed before that
date.
(b) The change in law made by this Act to Section 841.002,
Health and Safety Code, applies only to an individual who on or
after the effective date of this Act is serving a sentence in the
Texas Department of Criminal Justice or is committed to the
Department of State Health Services or the Department of Aging and
Disability Services for an offense committed before, on, or after
the effective date of this Act.
SECTION 35. This Act takes effect September 1, 2009.