By: Raymond (Senate Sponsor - Zaffirini) H.B. No. 549
(In the Senate - Received from the House April 27, 2009;
May 1, 2009, read first time and referred to Committee on Criminal
Justice; May 14, 2009, reported favorably by the following vote:
Yeas 7, Nays 0; May 14, 2009, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to an affirmative defense to prosecution for certain sex
offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 21.11, Penal Code, is amended by
amending Subsection (a) and adding Subsection (b-1) to read as
follows:
(a) A person commits an offense if, with a child younger
than 17 years of age [and not the person's spouse], whether the
child is of the same or opposite sex, the person:
(1) engages in sexual contact with the child or causes
the child to engage in sexual contact; or
(2) with intent to arouse or gratify the sexual desire
of any person:
(A) exposes the person's anus or any part of the
person's genitals, knowing the child is present; or
(B) causes the child to expose the child's anus
or any part of the child's genitals.
(b-1) It is an affirmative defense to prosecution under this
section that the actor was the spouse of the child at the time of
the offense.
SECTION 2. Section 21.12, Penal Code, is amended by
amending Subsection (a) and adding Subsection (b-1) to read as
follows:
(a) An employee of a public or private primary or secondary
school commits an offense if the employee engages in:
(1) sexual contact, sexual intercourse, or deviate
sexual intercourse with a person who is enrolled in a public or
private primary or secondary school at which the employee works
[and who is not the employee's spouse]; or
(2) conduct described by Section 33.021, with a person
described by Subdivision (1), regardless of the age of that person.
(b-1) It is an affirmative defense to prosecution under this
section that the actor was the spouse of the enrolled person at the
time of the offense.
SECTION 3. Section 22.011(c)(1), Penal Code, is amended to
read as follows:
(1) "Child" means a person younger than 17 years of age
[who is not the spouse of the actor].
SECTION 4. Section 22.011(e), Penal Code, is amended to
read as follows:
(e) It is an affirmative defense to prosecution under
Subsection (a)(2):
(1) that the actor was the spouse of the child at the
time of the offense; or
(2) that:
(A) [(1)] the actor was not more than three years
older than the victim and at the time of the offense:
(i) [(A)] was not required under Chapter
62, Code of Criminal Procedure, to register for life as a sex
offender; or
(ii) [(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
(B) [(2)] the victim:
(i) [(A)] was a child of 14 years of age or
older; and
(ii) [(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.
SECTION 5. Section 39.04, Penal Code, is amended by
amending Subsection (f) and adding Subsection (h) to read as
follows:
(f) An employee of the Texas Department of Criminal Justice,
the Texas Youth Commission, or a local juvenile probation
department commits an offense if the employee engages in sexual
contact, sexual intercourse, or deviate sexual intercourse with an
individual [who is not the employee's spouse and] who the employee
knows is under the supervision of the department, commission, or
probation department but not in the custody of the department,
commission, or probation department.
(h) It is an affirmative defense to prosecution under
Subsection (f) that the actor was the spouse of the individual at
the time of the offense.
SECTION 6. 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
covered 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 section, an offense was committed before the effective date of
this Act if any element of the offense occurred before that date.
SECTION 7. This Act takes effect September 1, 2009.
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