Texas 2011 - 82nd 1st C.S.

Texas House Bill HB41 Compare Versions

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Old	New	Differences
1	1	82S10081 JRH-F
2	2	By: Simpson, et al. H.B. No. 41
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to prosecution and punishment for the offense of official
8	8	oppression by the intrusive touching of persons seeking access to
9	9	public buildings and transportation; providing penalties.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Section 39.03, Penal Code, is amended by
12	12	amending Subsections (a) and (b) and adding Subsections (c-1),
13	13	(c-2), and (c-3) to read as follows:
14	14	(a) A person who is a public servant [acting under color of
15	15	his office or employment] commits an offense if the person:
16	16	(1) while acting under color of the person's office or
17	17	employment [he]:
18	18	(A) [(1)] intentionally subjects another person
19	19	to mistreatment or to arrest, detention, search, seizure,
20	20	dispossession, assessment, or lien that the actor [he] knows is
21	21	unlawful;
22	22	(B) [(2)] intentionally denies or impedes
23	23	another person in the exercise or enjoyment of any right,
24	24	privilege, power, or immunity, knowing the actor's [his] conduct is
25	25	unlawful; or
26	26	(C) [(3)] intentionally subjects another person
27	27	to sexual harassment; or
28	28	(2) while acting under color of the person's office or
29	29	employment without probable cause to believe the other person
30	30	committed an offense:
31	31	(A) performs a search without effective consent
32	32	for the purpose of granting access to a publicly accessible
33	33	building or form of transportation; and
34	34	(B) intentionally, knowingly, or recklessly:
35	35	(i) touches the anus, sexual organ,
36	36	buttocks, or breast of the other person, including touching through
37	37	clothing; or
38	38	(ii) causes physical contact with the other
39	39	person when the actor knows or should reasonably believe that the
40	40	other person will regard the contact as offensive or provocative.
41	41	(b) For purposes of this section, a person who is a public
42	42	servant acts under color of the person's [his] office or employment
43	43	if the person [he] acts or purports to act in an official capacity
44	44	or takes advantage of such actual or purported capacity.
45	45	(c-1) For purposes of Subsection (a)(2), "public servant"
46	46	includes:
47	47	(1) an officer, employee, or agent of:
48	48	(A) the United States;
49	49	(B) a branch, department, or agency of the United
50	50	States; or
51	51	(C) another person acting under contract with a
52	52	branch, department, or agency of the United States for the purpose
53	53	of providing a security or law enforcement service; and
54	54	(2) any other person acting under color of federal
55	55	law.
56	56	(c-2) For a person described by Subsection (c-1)(1) or (2),
57	57	it is a defense to prosecution for an offense under Subsection
58	58	(a)(2) that the actor performed the search pursuant to and
59	59	consistent with an explicit and applicable grant of federal
60	60	statutory authority that is consistent with the United States
61	61	Constitution.
62	62	(c-3) For purposes of Subsection (a)(2), and
63	63	notwithstanding Sections 1.07(a)(11) and (19), consent is
64	64	effective only if, immediately before any search:
65	65	(1) the actor verbally describes:
66	66	(A) the area of the other person to be searched;
67	67	and
68	68	(B) the method to be used in the search; and
69	69	(2) the actor receives express consent for the search
70	70	only from:
71	71	(A) the other person; or
72	72	(B) the parent or guardian of the other person.
73	73	SECTION 2. (a) This section applies only to a prosecution
74	74	of an offense under Section 39.03(a)(2), Penal Code, as added by
75	75	this Act, in which the defendant was, at the time of the alleged
76	76	offense, acting under the color of federal law.
77	77	(b) In a prosecution described by Subsection (a) of this
78	78	section, if the government of the United States, the defendant, or
79	79	the defendant's employer challenges the validity of Section
80	80	39.03(a)(2), Penal Code, as added by this Act, on grounds of
81	81	unconstitutionality, preemption, or sovereign immunity, the
82	82	attorney general of this state, with the consent of the appropriate
83	83	local county or district attorney, shall take any actions necessary
84	84	on behalf of the state to defend the validity of the statute. The
85	85	attorney general may make any legal arguments the attorney general
86	86	considers appropriate, including that this Act constitutes a valid
87	87	exercise of:
88	88	(1) the state's police powers;
89	89	(2) the liberty interests of the people that are
90	90	secured by the United States Constitution;
91	91	(3) the powers reserved to the states by the Tenth
92	92	Amendment to the United States Constitution; or
93	93	(4) the rights and protections secured by the Texas
94	94	Constitution.
95	95	SECTION 3. This Act shall be construed, as a matter of state
96	96	law, to be enforceable up to but no further than the maximum
97	97	possible extent consistent with federal constitutional
98	98	requirements, even if that construction is not readily apparent, as
99	99	such constructions are authorized only to the extent necessary to
100	100	save the statute from judicial invalidation.
101	101	SECTION 4. This Act takes effect on the 91st day after the
102	102	last day of the legislative session.