82R8321 SJM-D
By: West S.B. No. 1615
A BILL TO BE ENTITLED
AN ACT
relating to the creation of the offense of electronic transmission
of certain visual material depicting a minor.
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. ELECTRONIC TRANSMISSION OF CERTAIN VISUAL
MATERIAL DEPICTING A MINOR. (a) In this section:
(1) "Minor" means a person younger than 18 years of
age.
(2) "Produce" with respect to visual material includes
any conduct that directly contributes to the creation or
manufacture of the material.
(3) "Promote" has the meaning assigned by Section
43.25.
(4) "Sexual conduct" has the meaning assigned by
Section 43.25.
(5) "Social networking website" means an Internet
website that permits persons to become registered users for the
purpose of establishing personal relationships with other users
through direct or real-time communication with other users or
through the creation of web pages or profiles available to the
public or to other users. The term does not include an e-mail
program or a message board program.
(6) "Visual material" means:
(A) any film, picture, photograph, videotape,
negative, slide, or digital image or recording, or any other
similar visual depiction or reproduction that contains or
incorporates in any manner any film, picture, photograph,
videotape, negative, slide, or digital image or recording; or
(B) any disk, diskette, computer, video screen,
telecommunications device, or other physical medium that allows an
image to be displayed or electronically stored, converted, or
transmitted by any method, including through the use of a telephone
line, cable, satellite, or analog or digital electronic device.
(b) A person who is a minor commits an offense if the person
intentionally or knowingly:
(1) by electronic means promotes to another minor
visual material depicting a minor, including the actor, engaging in
sexual conduct, if the actor produced the visual material or knows
that another minor produced the visual material;
(2) on a social networking website promotes visual
material depicting a minor, including the actor, engaging in sexual
conduct, if the actor produced the visual material or knows that
another minor produced the visual material; or
(3) possesses in an electronic format visual material
depicting another minor engaging in sexual conduct, if the actor
produced the visual material or knows that another minor produced
the visual material.
(c) It is an affirmative defense to prosecution under this
section that:
(1) the actor was the spouse of the minor at the time
of the offense;
(2) the conduct was for a bona fide educational,
medical, psychological, psychiatric, judicial, law enforcement, or
legislative purpose;
(3) the visual material depicted only the actor and
was transmitted only to one other person who is not more than four
years older or younger than the actor; or
(4) the visual material:
(A) depicted:
(i) only one person who is not more than
four years older or younger than the actor; or
(ii) the actor and only one other person who
is described by Subparagraph (i); and
(B) was transmitted only to a person depicted in
the material.
(d) It is an affirmative defense to prosecution under
Subsection (b)(3) that the defendant:
(1) did not produce the visual material;
(2) possessed the visual material only after receiving
the material from another minor; and
(3) not later than 48 hours after receiving the visual
material from the other minor:
(A) reported receipt of the material to a law
enforcement agency; or
(B) took reasonable steps to destroy or eliminate
the visual material.
(e) An offense under this section is a Class C misdemeanor,
except that the offense is:
(1) a Class B misdemeanor if it is shown on the trial
of the offense that the defendant has, one time, been previously
convicted of an offense under this section or adjudicated to have
engaged in conduct that violates this section; and
(2) a Class A misdemeanor if it is shown on the trial
of the offense that the defendant has, two or more times, been
previously convicted of an offense under this section or
adjudicated to have engaged in conduct that violates this section.
(f) A punishment prescribed for an offense under this
section is increased to the punishment prescribed for the next
higher category of offense if it is shown on the trial of the
offense that the actor was more than four years older than the
child.
(g) If the actor was younger than 18 years of age at the time
of the commission of the offense, the punishment for an offense
under this section may be increased under Subsection (e) or (f), but
may not be increased under both of those subsections.
(h) If conduct that constitutes an offense under this
section also constitutes an offense under another section of this
code or any other law, the defendant may be prosecuted only under
this section.
SECTION 2. The heading to Chapter 6, Code of Criminal
Procedure, is amended to read as follows:
CHAPTER 6. PREVENTING OFFENSES BY THE ACT OF MAGISTRATES
AND OTHER OFFICERS; EDUCATION CONCERNING
CONSEQUENCES OF CERTAIN OFFENSES
SECTION 3. Chapter 6, Code of Criminal Procedure, is
amended by adding Article 6.09 to read as follows:
Art. 6.09. EDUCATIONAL PROGRAMS CONCERNING CERTAIN
OFFENSES COMMITTED BY MINORS; MANDATORY COURT ATTENDANCE. (a) In
this article, "parent" means a natural or adoptive parent, managing
or possessory conservator, or legal guardian. The term does not
include a parent whose parental rights have been terminated.
(b) On a finding by a county court that a defendant has
committed an offense under Section 43.261, Penal Code, the court
may enter an order requiring:
(1) the defendant to attend and successfully complete
an educational program designed to address:
(A) the possible psychological and social
consequences of engaging in conduct in violation of Section 43.261,
Penal Code, including negative effects on relationships and the
loss of educational and employment opportunities; and
(B) the possible legal consequences, including
criminal penalties, of engaging in subsequent conduct in violation
of Section 43.261, Penal Code; or
(2) if the defendant has not been emancipated by
marriage or court order, the defendant's parent to attend and
successfully complete an educational program described by
Subdivision (1).
(c) A court that enters an order under Subsection (b) shall
require the defendant or the defendant's parent to pay the cost of
attending an educational program under Subsection (b) if the court
determines that the defendant or the defendant's parent is
financially able to make payment.
SECTION 4. 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
ELECTRONIC TRANSMISSION OF CERTAIN VISUAL MATERIAL. (a) In this
section, "parent" means a natural or adoptive parent, managing or
possessory conservator, or legal guardian. The term does not
include a parent whose parental rights have been terminated.
(b) If a judge grants community supervision to a defendant
convicted of an offense under Section 43.261, Penal Code, the judge
may require as a condition of community supervision that the
defendant attend and successfully complete an educational program
designed to address:
(1) the possible psychological and social
consequences of committing an offense under Section 43.261, Penal
Code, including negative effects on relationships and the loss of
educational and employment opportunities; and
(2) the possible legal consequences, including
criminal penalties, of committing a subsequent offense under
Section 43.261, Penal Code.
(c) The court shall require the defendant or the defendant's
parent to pay the cost of attending an educational program under
Subsection (b) if the court determines that the defendant or the
defendant's parent is financially able to make payment.
SECTION 5. Article 45.0216, Code of Criminal Procedure, is
amended by amending Subsections (b), (d), and (f) and adding
Subsection (f-1) to read as follows:
(b) A person convicted of not more than one offense
described by Section 8.07(a)(4) or (5) or 43.261, Penal Code, while
the person was a child may, on or after the person's 17th birthday,
apply to the court in which the person [child] was convicted to have
the conviction expunged as provided by this article.
(d) The request must contain the person's statement that the
person was not convicted while the person was a child of any
additional offense as described by Subsection (f)(1) or (2), as
applicable [Section 8.07(a)(4) or (5), Penal Code, other than the
offense the person seeks to have expunged].
(f) The [If the court finds that the person was not
convicted of any other offense described by Section 8.07(a)(4) or
(5), Penal Code, while the person was a child, the] court shall
order the conviction, together with all complaints, verdicts,
sentences, and prosecutorial and law enforcement records, and any
other documents relating to the offense, expunged from the person's
record if the court finds that:
(1) for a person applying for the expunction of a
conviction for an offense described by Section 8.07(a)(4) or (5),
Penal Code, the person was not convicted of any other offense
described by Section 8.07(a)(4) or (5), Penal Code, while the
person was a child; and
(2) for a person applying for the expunction of a
conviction for an offense described by Section 43.261, Penal Code,
the person was not convicted of any other offense described by
Section 43.261, Penal Code.
(f-1) After entry of an [the] order under Subsection (f),
the person is released from all disabilities resulting from the
conviction and the conviction may not be shown or made known for any
purpose.
SECTION 6. Subchapter B, Chapter 45, Code of Criminal
Procedure, is amended by adding Article 45.061 to read as follows:
Art. 45.061. PROCEEDINGS CONCERNING ELECTRONIC
TRANSMISSION OF CERTAIN VISUAL MATERIAL DEPICTING A MINOR. (a) In
this article, "parent" means a natural or adoptive parent, managing
or possessory conservator, or legal guardian. The term does not
include a parent whose parental rights have been terminated.
(b) On a finding by a justice or municipal court that a
defendant has committed an offense under Section 43.261, Penal
Code, punishable as a Class C misdemeanor, the court may enter an
order requiring:
(1) the defendant to attend and successfully complete
an educational program designed to address:
(A) the possible psychological and social
consequences of engaging in conduct in violation of Section 43.261,
Penal Code, including negative effects on relationships and the
loss of educational and employment opportunities; and
(B) the possible legal consequences, including
criminal penalties, of engaging in subsequent conduct in violation
of Section 43.261, Penal Code; or
(2) if the defendant has not been emancipated by
marriage or court order, the defendant's parent to attend and
successfully complete an educational program described by
Subdivision (1).
(c) A court that enters an order under Subsection (b) may
require the defendant or the defendant's parent to pay the cost of
attending an educational program under Subsection (b) if the court
determines that the defendant or the defendant's parent is
financially able to make payment.
SECTION 7. Section 51.13, Family Code, is amended by
amending Subsection (a) and adding Subsection (e) to read as
follows:
(a) Except as provided by Subsections [Subsection] (d) and
(e), an order of adjudication or disposition in a proceeding under
this title is not a conviction of crime. Except as provided by
Chapter 841, Health and Safety Code, an order of adjudication or
disposition does not impose any civil disability ordinarily
resulting from a conviction or operate to disqualify the child in
any civil service application or appointment.
(e) An adjudication for conduct engaged in by a child in
violation of Section 43.261, Penal Code, is a conviction only for
the purposes of Section 43.261(e), Penal Code.
SECTION 8. Chapter 54, Family Code, is amended by adding
Section 54.0402 to read as follows:
Sec. 54.0402. CHILD PLACED ON PROBATION FOR ELECTRONIC
TRANSMISSION OF CERTAIN VISUAL MATERIAL. (a) If a court or jury
places on probation under Section 54.04(d) a child adjudicated as
having engaged in conduct in violation of Section 43.261, Penal
Code, in addition to other conditions of probation, the court may
enter an order requiring:
(1) the child to attend and successfully complete an
educational program designed to address:
(A) the possible psychological and social
consequences of engaging in conduct in violation of Section 43.261,
Penal Code, including negative effects on relationships and the
loss of educational and employment opportunities; and
(B) the possible legal consequences, including
criminal penalties, of engaging in subsequent conduct in violation
of Section 43.261, Penal Code; or
(2) if the child has not been emancipated by marriage
or court order, the child's parent to attend and successfully
complete an educational program described by Subdivision (1).
(b) A court that enters an order under Subsection (a) may
require the child or the child's parent to pay the cost of attending
an educational program under Subsection (a) if the court determines
that the child or the child's parent is financially able to make
payment.
SECTION 9. Section 54.041, Family Code, is amended by
adding Subsection (i) to read as follows:
(i) If a child is found to have engaged in conduct in
violation of Section 43.261, Penal Code, the court may order the
child's parent or guardian to attend a program described by Section
54.0402(a)(1).
SECTION 10. This Act takes effect September 1, 2011.