82R22902 SJM-F
By: Craddick, Gallego, Menendez, Carter H.B. No. 1309
Substitute the following for H.B. No. 1309:
By: Gallego C.S.H.B. No. 1309
A BILL TO BE ENTITLED
AN ACT
relating to the creation of the offense of possession or promotion
of certain visual material depicting a minor and to certain
educational programs concerning the prevention and awareness of
that offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter B, Chapter 43, Penal Code, is amended
by adding Section 43.261 to read as follows:
Sec. 43.261. POSSESSION OR PROMOTION OF CERTAIN VISUAL
MATERIAL DEPICTING MINOR. (a) In this section:
(1) "Dating relationship" has the meaning assigned by
Section 71.0021, Family Code.
(2) "Minor" means a person 14 years of age or older and
younger than 18 years of age.
(3) "Produce" with respect to visual material includes
any conduct that directly contributes to the creation or
manufacture of the material.
(4) "Promote" has the meaning assigned by Section
43.25.
(5) "Sexual conduct" has the meaning assigned by
Section 43.25.
(6) "Visual material" has the meaning assigned by
Section 43.26.
(b) A person who is a minor commits an offense if the person
intentionally or knowingly:
(1) possesses visual material depicting another minor
engaging in sexual conduct, if the actor produced the visual
material; or
(2) promotes to another minor visual material
depicting a minor, including the actor, who is engaging in sexual
conduct.
(c) It is an affirmative defense to prosecution under
Subsection (b)(1) or (2) that, at the time of the offense, the
defendant is:
(1) the spouse of the minor depicted in the visual
material;
(2) the minor depicted in the visual material, if the
visual material is promoted or received only to or from a minor who
is the defendant's spouse; or
(3) not a person who had a reportable conviction or
adjudication, as defined by Chapter 62, Code of Criminal Procedure,
for any offense and:
(A) not more than three years older or younger
than, and involved in a current dating relationship with, the minor
depicted in the visual material; or
(B) the minor depicted in the visual material and
not more than three years older or younger than, and involved in a
current dating relationship with, the minor to or from whom the
visual material was promoted or received.
(d) An offense under this section is a Class B misdemeanor.
(e) If conduct that constitutes an offense under this
section also constitutes an offense under any other law, the
defendant may be prosecuted under this section, the other law, or
both.
(f) An offense under this section is not a lesser included
offense of an offense under Section 43.24 or 43.26.
SECTION 2. The heading to Article 38.45, Code of Criminal
Procedure, is amended to read as follows:
Art. 38.45. CERTAIN VISUAL MATERIAL DEPICTING SEXUAL
CONDUCT BY [EVIDENCE THAT CONSTITUTES] CHILD OR MINOR
[PORNOGRAPHY].
SECTION 3. Article 38.45(a), Code of Criminal Procedure, is
amended to read as follows:
(a) During the course of a criminal hearing or proceeding,
the court may not make available or allow to be made available for
copying or dissemination to the public property or material that:
(1) constitutes child pornography, as described by
Section 43.26(a)(1), Penal Code; or
(2) the possession or promotion of which is prohibited
under Section 43.261, Penal Code.
SECTION 4. The heading to Article 39.15, Code of Criminal
Procedure, is amended to read as follows:
Art. 39.15. DISCOVERY OF CERTAIN VISUAL MATERIAL DEPICTING
SEXUAL CONDUCT BY [EVIDENCE THAT CONSTITUTES] CHILD OR MINOR
[PORNOGRAPHY].
SECTION 5. Article 39.15(a), Code of Criminal Procedure, is
amended to read as follows:
(a) In the manner provided by this article, a court shall
allow discovery under Article 39.14 of property or material:
(1) that constitutes child pornography, as described
by Section 43.26(a)(1), Penal Code; or
(2) the possession or promotion of which is prohibited
under Section 43.261, Penal Code.
SECTION 6. Article 42.12, Code of Criminal Procedure, is
amended by adding Section 13H to read as follows:
Sec. 13H. DEFENDANTS PLACED ON COMMUNITY SUPERVISION FOR
POSSESSION OR PROMOTION OF CERTAIN VISUAL MATERIAL DEPICTING MINOR.
If a court grants community supervision to a defendant who is
convicted of or charged with an offense under Section 43.261, Penal
Code, the court may require as a condition of community supervision
that the defendant attend and successfully complete an educational
program described by Section 37.218, Education Code, or another
equivalent educational program.
SECTION 7. Section 51.03(b), Family Code, is amended to
read as follows:
(b) Conduct indicating a need for supervision is:
(1) subject to Subsection (f), conduct, other than a
traffic offense, that violates:
(A) the penal laws of this state of the grade of
misdemeanor that are punishable by fine only; or
(B) the penal ordinances of any political
subdivision of this state;
(2) the absence of a child on 10 or more days or parts
of days within a six-month period in the same school year or on
three or more days or parts of days within a four-week period from
school;
(3) the voluntary absence of a child from the child's
home without the consent of the child's parent or guardian for a
substantial length of time or without intent to return;
(4) conduct prohibited by city ordinance or by state
law involving the inhalation of the fumes or vapors of paint and
other protective coatings or glue and other adhesives and the
volatile chemicals itemized in Section 485.001, Health and Safety
Code;
(5) an act that violates a school district's
previously communicated written standards of student conduct for
which the child has been expelled under Section 37.007(c),
Education Code; [or]
(6) conduct that violates a reasonable and lawful
order of a court entered under Section 264.305; or
(7) conduct that violates Section 43.261, Penal Code.
SECTION 8. Chapter 54, Family Code, is amended by adding
Section 54.0404 to read as follows:
Sec. 54.0404. POSSESSION OR PROMOTION OF CERTAIN VISUAL
MATERIAL DEPICTING MINOR: EDUCATIONAL PROGRAMS. (a) If a child is
found to have engaged in conduct indicating a need for supervision
described by Section 51.03(b)(7), the juvenile court may enter an
order requiring the child to attend and successfully complete an
educational program described by Section 37.218, Education Code, or
another equivalent educational program.
(b) A juvenile court that enters an order under Subsection
(a) shall require the child or the child's parent or other person
responsible for the child's support to pay the cost of attending an
educational program under Subsection (a) if the court determines
that the child, parent, or other person is financially able to make
payment.
SECTION 9. Section 59.004(a), Family Code, is amended to
read as follows:
(a) For a child at sanction level one, the juvenile court or
probation department may:
(1) require counseling for the child regarding the
child's conduct;
(2) inform the child of the progressive sanctions that
may be imposed on the child if the child continues to engage in
delinquent conduct or conduct indicating a need for supervision;
(3) inform the child's parents or guardians of the
parents' or guardians' responsibility to impose reasonable
restrictions on the child to prevent the conduct from recurring;
(4) provide information or other assistance to the
child or the child's parents or guardians in securing needed social
services;
(5) require the child or the child's parents or
guardians to participate in a program for services under Section
264.302, if a program under Section 264.302 is available to the
child or the child's parents or guardians;
(6) refer the child to a community-based citizen
intervention program approved by the juvenile court; [and]
(7) release the child to the child's parents or
guardians; and
(8) require the child to attend and successfully
complete an educational program described by Section 37.218,
Education Code, or another equivalent educational program.
SECTION 10. Subchapter G, Chapter 37, Education Code, is
amended by adding Section 37.218 to read as follows:
Sec. 37.218. PROGRAMS ON DANGERS OF STUDENTS SHARING VISUAL
MATERIAL DEPICTING MINOR ENGAGED IN SEXUAL CONDUCT. (a) In this
section:
(1) "Bullying" has the meaning assigned by Section
25.0342.
(2) "Cyberbullying" means the use of any electronic
communication device to engage in bullying or intimidation.
(3) "Harassment" has the meaning assigned by Section
37.001.
(4) "Sexual conduct" has the meaning assigned by
Section 43.25, Penal Code.
(b) The center, in consultation with the office of the
attorney general, shall develop programs for use by school
districts that address:
(1) the possible legal consequences, including
criminal penalties, of sharing visual material depicting a minor
engaged in sexual conduct;
(2) other possible consequences of sharing visual
material depicting a minor engaged in sexual conduct, including:
(A) negative effects on relationships;
(B) loss of educational and employment
opportunities; and
(C) possible removal, if applicable, from
certain school programs or extracurricular activities;
(3) the unique characteristics of the Internet and
other communications networks that could affect visual material
depicting a minor engaged in sexual conduct, including:
(A) search and replication capabilities; and
(B) a potentially worldwide audience;
(4) the prevention of, identification of, responses
to, and reporting of incidents of bullying; and
(5) the connection between bullying, cyberbullying,
harassment, and a minor sharing visual material depicting a minor
engaged in sexual conduct.
(c) Each school district shall annually provide or make
available information on the programs developed under Subsection
(b) to parents and students in a grade level the district considers
appropriate. Each district shall provide or make available the
information by any means the district considers appropriate.
SECTION 11. (a) Not later than January 1, 2012, the Texas
School Safety Center shall develop the programs required under
Section 37.218(b), Education Code, as added by this Act.
(b) Section 37.218(c), Education Code, as added by this Act,
applies beginning with the 2012-2013 school year.
SECTION 12. This Act takes effect September 1, 2011.