82R3976 SJM/VOO-D
By: Watson S.B. No. 407
A BILL TO BE ENTITLED
AN ACT
relating to the creation of the offense of electronic transmission
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. 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) "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) 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; or
(2) 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
Subsection (b)(2) 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, reported receipt of the material to a
law enforcement agency.
(d) 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 previously been convicted one
time of an offense under this section; and
(2) a Class A misdemeanor if it is shown on the trial
of the offense that the defendant has previously been convicted two
or more times of an offense under this section.
(e) 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) This article applies to a defendant who has not had the
disabilities of minority removed and has been charged with an
offense under Section 43.261, Penal Code.
(c) The judge of a county court:
(1) must take the defendant's plea in open court; and
(2) shall issue a summons to compel the defendant's
parent to be present during:
(A) the taking of the defendant's plea; and
(B) all other proceedings relating to the case.
(d) 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).
(e) A court that enters an order under Subsection (d) shall
require the defendant or the defendant's parent to pay the cost of
attending an educational program under Subsection (d) if the court
determines that the defendant or the defendant's parent is
financially able to make payment.
SECTION 4. 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 A [EVIDENCE THAT CONSTITUTES] CHILD OR MINOR
[PORNOGRAPHY].
SECTION 5. 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 promotion or possession of which is prohibited
under Section 43.261, Penal Code.
SECTION 6. 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 A [EVIDENCE THAT CONSTITUTES] CHILD OR MINOR
[PORNOGRAPHY].
SECTION 7. 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 promotion or possession of which is prohibited
under Section 43.261, Penal Code.
SECTION 8. Article 45.0215, Code of Criminal Procedure, is
amended by amending Subsection (a) and adding Subsection (a-1) to
read as follows:
(a) This article applies to [If] a defendant who has not had
the disabilities of minority removed and has been:
(1) charged with an offense other than an offense
under Section 43.261, Penal Code, if the defendant is younger than
17 years of age; or
(2) charged with an offense under Section 43.261,
Penal Code, if the defendant is younger than 18 years of age.
(a-1) The [and has not had the disabilities of minority
removed, the] judge or justice:
(1) must take the defendant's plea in open court; and
(2) shall issue a summons to compel the defendant's
parent, guardian, or managing conservator to be present during:
(A) the taking of the defendant's plea; and
(B) all other proceedings relating to the case.
SECTION 9. The heading to Article 45.0216, Code of Criminal
Procedure, is amended to read as follows:
Art. 45.0216. EXPUNCTION OF CERTAIN CONVICTION RECORDS [OF
CHILDREN].
SECTION 10. Article 45.0216, Code of Criminal Procedure, is
amended by amending Subsections (b), (d), (f), and (h) and adding
Subsection (f-1) to read as follows:
(b) A person may [convicted of not more than one offense
described by Section 8.07(a)(4) or (5), 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:
(1) on or after the person's 17th birthday, if the
person was convicted of not more than one offense described by
Section 8.07(a)(4) or (5), Penal Code, while the person was a child;
or
(2) on or after the person's 18th birthday, if the
person was convicted of not more than one offense under Section
43.261, Penal Code.
(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.
(h) A record [Records of a person under 17 years of age]
relating to a complaint dismissed as provided by Article 45.051 or
45.052 may be expunged under this article on application of the
following persons:
(1) for a complaint alleging an offense other than an
offense under Section 43.261, Penal Code, a person under 17 years of
age; and
(2) for a complaint alleging an offense under Section
43.261, Penal Code, a person under 18 years of age.
SECTION 11. 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, 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 12. Chapter 54, Family Code, is amended by adding
Section 54.0404 to read as follows:
Sec. 54.0404. ELECTRONIC TRANSMISSION OF CERTAIN VISUAL
MATERIAL DEPICTING A MINOR: EDUCATIONAL PROGRAMS. (a) If a child
is adjudicated to have engaged in delinquent conduct constituting
an offense under Section 43.261, Penal Code, the juvenile 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 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 13. 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 A 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 14. (a) Not later than January 1, 2012, the Texas
School Safety Center shall develop the program 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 15. This Act takes effect September 1, 2011.