Texas 2011 - 82nd Regular

Texas House Bill HB1309 Compare Versions

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1	1	82R22902 SJM-F
2	2	By: Craddick, Gallego, Menendez, Carter H.B. No. 1309
3	3	Substitute the following for H.B. No. 1309:
4	4	By: Gallego C.S.H.B. No. 1309
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the creation of the offense of possession or promotion
10	10	of certain visual material depicting a minor and to certain
11	11	educational programs concerning the prevention and awareness of
12	12	that offense.
13	13	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
14	14	SECTION 1. Subchapter B, Chapter 43, Penal Code, is amended
15	15	by adding Section 43.261 to read as follows:
16	16	Sec. 43.261. POSSESSION OR PROMOTION OF CERTAIN VISUAL
17	17	MATERIAL DEPICTING MINOR. (a) In this section:
18	18	(1) "Dating relationship" has the meaning assigned by
19	19	Section 71.0021, Family Code.
20	20	(2) "Minor" means a person 14 years of age or older and
21	21	younger than 18 years of age.
22	22	(3) "Produce" with respect to visual material includes
23	23	any conduct that directly contributes to the creation or
24	24	manufacture of the material.
25	25	(4) "Promote" has the meaning assigned by Section
26	26	43.25.
27	27	(5) "Sexual conduct" has the meaning assigned by
28	28	Section 43.25.
29	29	(6) "Visual material" has the meaning assigned by
30	30	Section 43.26.
31	31	(b) A person who is a minor commits an offense if the person
32	32	intentionally or knowingly:
33	33	(1) possesses visual material depicting another minor
34	34	engaging in sexual conduct, if the actor produced the visual
35	35	material; or
36	36	(2) promotes to another minor visual material
37	37	depicting a minor, including the actor, who is engaging in sexual
38	38	conduct.
39	39	(c) It is an affirmative defense to prosecution under
40	40	Subsection (b)(1) or (2) that, at the time of the offense, the
41	41	defendant is:
42	42	(1) the spouse of the minor depicted in the visual
43	43	material;
44	44	(2) the minor depicted in the visual material, if the
45	45	visual material is promoted or received only to or from a minor who
46	46	is the defendant's spouse; or
47	47	(3) not a person who had a reportable conviction or
48	48	adjudication, as defined by Chapter 62, Code of Criminal Procedure,
49	49	for any offense and:
50	50	(A) not more than three years older or younger
51	51	than, and involved in a current dating relationship with, the minor
52	52	depicted in the visual material; or
53	53	(B) the minor depicted in the visual material and
54	54	not more than three years older or younger than, and involved in a
55	55	current dating relationship with, the minor to or from whom the
56	56	visual material was promoted or received.
57	57	(d) An offense under this section is a Class B misdemeanor.
58	58	(e) If conduct that constitutes an offense under this
59	59	section also constitutes an offense under any other law, the
60	60	defendant may be prosecuted under this section, the other law, or
61	61	both.
62	62	(f) An offense under this section is not a lesser included
63	63	offense of an offense under Section 43.24 or 43.26.
64	64	SECTION 2. The heading to Article 38.45, Code of Criminal
65	65	Procedure, is amended to read as follows:
66	66	Art. 38.45. CERTAIN VISUAL MATERIAL DEPICTING SEXUAL
67	67	CONDUCT BY [EVIDENCE THAT CONSTITUTES] CHILD OR MINOR
68	68	[PORNOGRAPHY].
69	69	SECTION 3. Article 38.45(a), Code of Criminal Procedure, is
70	70	amended to read as follows:
71	71	(a) During the course of a criminal hearing or proceeding,
72	72	the court may not make available or allow to be made available for
73	73	copying or dissemination to the public property or material that:
74	74	(1) constitutes child pornography, as described by
75	75	Section 43.26(a)(1), Penal Code; or
76	76	(2) the possession or promotion of which is prohibited
77	77	under Section 43.261, Penal Code.
78	78	SECTION 4. The heading to Article 39.15, Code of Criminal
79	79	Procedure, is amended to read as follows:
80	80	Art. 39.15. DISCOVERY OF CERTAIN VISUAL MATERIAL DEPICTING
81	81	SEXUAL CONDUCT BY [EVIDENCE THAT CONSTITUTES] CHILD OR MINOR
82	82	[PORNOGRAPHY].
83	83	SECTION 5. Article 39.15(a), Code of Criminal Procedure, is
84	84	amended to read as follows:
85	85	(a) In the manner provided by this article, a court shall
86	86	allow discovery under Article 39.14 of property or material:
87	87	(1) that constitutes child pornography, as described
88	88	by Section 43.26(a)(1), Penal Code; or
89	89	(2) the possession or promotion of which is prohibited
90	90	under Section 43.261, Penal Code.
91	91	SECTION 6. Article 42.12, Code of Criminal Procedure, is
92	92	amended by adding Section 13H to read as follows:
93	93	Sec. 13H. DEFENDANTS PLACED ON COMMUNITY SUPERVISION FOR
94	94	POSSESSION OR PROMOTION OF CERTAIN VISUAL MATERIAL DEPICTING MINOR.
95	95	If a court grants community supervision to a defendant who is
96	96	convicted of or charged with an offense under Section 43.261, Penal
97	97	Code, the court may require as a condition of community supervision
98	98	that the defendant attend and successfully complete an educational
99	99	program described by Section 37.218, Education Code, or another
100	100	equivalent educational program.
101	101	SECTION 7. Section 51.03(b), Family Code, is amended to
102	102	read as follows:
103	103	(b) Conduct indicating a need for supervision is:
104	104	(1) subject to Subsection (f), conduct, other than a
105	105	traffic offense, that violates:
106	106	(A) the penal laws of this state of the grade of
107	107	misdemeanor that are punishable by fine only; or
108	108	(B) the penal ordinances of any political
109	109	subdivision of this state;
110	110	(2) the absence of a child on 10 or more days or parts
111	111	of days within a six-month period in the same school year or on
112	112	three or more days or parts of days within a four-week period from
113	113	school;
114	114	(3) the voluntary absence of a child from the child's
115	115	home without the consent of the child's parent or guardian for a
116	116	substantial length of time or without intent to return;
117	117	(4) conduct prohibited by city ordinance or by state
118	118	law involving the inhalation of the fumes or vapors of paint and
119	119	other protective coatings or glue and other adhesives and the
120	120	volatile chemicals itemized in Section 485.001, Health and Safety
121	121	Code;
122	122	(5) an act that violates a school district's
123	123	previously communicated written standards of student conduct for
124	124	which the child has been expelled under Section 37.007(c),
125	125	Education Code; [or]
126	126	(6) conduct that violates a reasonable and lawful
127	127	order of a court entered under Section 264.305; or
128	128	(7) conduct that violates Section 43.261, Penal Code.
129	129	SECTION 8. Chapter 54, Family Code, is amended by adding
130	130	Section 54.0404 to read as follows:
131	131	Sec. 54.0404. POSSESSION OR PROMOTION OF CERTAIN VISUAL
132	132	MATERIAL DEPICTING MINOR: EDUCATIONAL PROGRAMS. (a) If a child is
133	133	found to have engaged in conduct indicating a need for supervision
134	134	described by Section 51.03(b)(7), the juvenile court may enter an
135	135	order requiring the child to attend and successfully complete an
136	136	educational program described by Section 37.218, Education Code, or
137	137	another equivalent educational program.
138	138	(b) A juvenile court that enters an order under Subsection
139	139	(a) shall require the child or the child's parent or other person
140	140	responsible for the child's support to pay the cost of attending an
141	141	educational program under Subsection (a) if the court determines
142	142	that the child, parent, or other person is financially able to make
143	143	payment.
144	144	SECTION 9. Section 59.004(a), Family Code, is amended to
145	145	read as follows:
146	146	(a) For a child at sanction level one, the juvenile court or
147	147	probation department may:
148	148	(1) require counseling for the child regarding the
149	149	child's conduct;
150	150	(2) inform the child of the progressive sanctions that
151	151	may be imposed on the child if the child continues to engage in
152	152	delinquent conduct or conduct indicating a need for supervision;
153	153	(3) inform the child's parents or guardians of the
154	154	parents' or guardians' responsibility to impose reasonable
155	155	restrictions on the child to prevent the conduct from recurring;
156	156	(4) provide information or other assistance to the
157	157	child or the child's parents or guardians in securing needed social
158	158	services;
159	159	(5) require the child or the child's parents or
160	160	guardians to participate in a program for services under Section
161	161	264.302, if a program under Section 264.302 is available to the
162	162	child or the child's parents or guardians;
163	163	(6) refer the child to a community-based citizen
164	164	intervention program approved by the juvenile court; [and]
165	165	(7) release the child to the child's parents or
166	166	guardians; and
167	167	(8) require the child to attend and successfully
168	168	complete an educational program described by Section 37.218,
169	169	Education Code, or another equivalent educational program.
170	170	SECTION 10. Subchapter G, Chapter 37, Education Code, is
171	171	amended by adding Section 37.218 to read as follows:
172	172	Sec. 37.218. PROGRAMS ON DANGERS OF STUDENTS SHARING VISUAL
173	173	MATERIAL DEPICTING MINOR ENGAGED IN SEXUAL CONDUCT. (a) In this
174	174	section:
175	175	(1) "Bullying" has the meaning assigned by Section
176	176	25.0342.
177	177	(2) "Cyberbullying" means the use of any electronic
178	178	communication device to engage in bullying or intimidation.
179	179	(3) "Harassment" has the meaning assigned by Section
180	180	37.001.
181	181	(4) "Sexual conduct" has the meaning assigned by
182	182	Section 43.25, Penal Code.
183	183	(b) The center, in consultation with the office of the
184	184	attorney general, shall develop programs for use by school
185	185	districts that address:
186	186	(1) the possible legal consequences, including
187	187	criminal penalties, of sharing visual material depicting a minor
188	188	engaged in sexual conduct;
189	189	(2) other possible consequences of sharing visual
190	190	material depicting a minor engaged in sexual conduct, including:
191	191	(A) negative effects on relationships;
192	192	(B) loss of educational and employment
193	193	opportunities; and
194	194	(C) possible removal, if applicable, from
195	195	certain school programs or extracurricular activities;
196	196	(3) the unique characteristics of the Internet and
197	197	other communications networks that could affect visual material
198	198	depicting a minor engaged in sexual conduct, including:
199	199	(A) search and replication capabilities; and
200	200	(B) a potentially worldwide audience;
201	201	(4) the prevention of, identification of, responses
202	202	to, and reporting of incidents of bullying; and
203	203	(5) the connection between bullying, cyberbullying,
204	204	harassment, and a minor sharing visual material depicting a minor
205	205	engaged in sexual conduct.
206	206	(c) Each school district shall annually provide or make
207	207	available information on the programs developed under Subsection
208	208	(b) to parents and students in a grade level the district considers
209	209	appropriate. Each district shall provide or make available the
210	210	information by any means the district considers appropriate.
211	211	SECTION 11. (a) Not later than January 1, 2012, the Texas
212	212	School Safety Center shall develop the programs required under
213	213	Section 37.218(b), Education Code, as added by this Act.
214	214	(b) Section 37.218(c), Education Code, as added by this Act,
215	215	applies beginning with the 2012-2013 school year.
216	216	SECTION 12. This Act takes effect September 1, 2011.