By: Patrick, et al. S.B. No. 29
(In the Senate - Filed June 2, 2011; June 21, 2011, read
first time and referred to Committee on Transportation and Homeland
Security; June 27, 2011, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 5, Nays 3;
June 27, 2011, sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 29 By: Hinojosa
A BILL TO BE ENTITLED
AN ACT
relating to prosecution and punishment for the offense of official
oppression by the intrusive touching of persons seeking access to
public buildings and transportation; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 39.03, Penal Code, is amended by
amending Subsections (a) and (b) and adding Subsections (c-1),
(c-2), (c-3), (c-4), and (c-5) to read as follows:
(a) A person who is a public servant [acting under color of
his office or employment] commits an offense if the person:
(1) while acting under color of the person's office or
employment [he]:
(A) [(1)] intentionally subjects another person
to mistreatment or to arrest, detention, search, seizure,
dispossession, assessment, or lien that the actor [he] knows is
unlawful;
(B) [(2)] intentionally denies or impedes
another person in the exercise or enjoyment of any right,
privilege, power, or immunity, knowing the actor's [his] conduct is
unlawful; or
(C) [(3)] intentionally subjects another person
to sexual harassment; or
(2) while acting under color of the person's office or
employment without reasonable suspicion to believe the other person
committed an offense:
(A) performs a constitutionally unreasonable
search without effective consent for the purpose of granting access
to a publicly accessible building or form of transportation; and
(B) intentionally, knowingly, or recklessly, and
in violation of the United States Constitution, touches the anus,
sexual organ, buttocks, or breast of the other person, including
touching through clothing.
(b) For purposes of this section, a person who is a public
servant acts under color of the person's [his] office or employment
if the person [he] acts or purports to act in an official capacity
or takes advantage of such actual or purported capacity.
(c-1) For purposes of Subsection (a)(2), "public servant"
includes:
(1) an officer, employee, or agent of:
(A) the United States;
(B) a branch, department, or agency of the United
States; or
(C) another person acting under contract with a
branch, department, or agency of the United States for the purpose
of providing a security or law enforcement service; and
(2) any other person acting under color of federal
law.
(c-2) For a person described by Subsection (c-1)(1) or (2),
it is a defense to prosecution for an offense under Subsection
(a)(2) that the actor performed the search pursuant to and
consistent with the United States Constitution.
(c-3) For purposes of Subsection (a)(2), and
notwithstanding Sections 1.07(a)(11) and (19), consent is
effective only if, immediately before any search:
(1) the actor verbally describes:
(A) the area of the other person to be searched;
and
(B) the method to be used in the search; and
(2) the actor receives express consent for the search
only from:
(A) the other person; or
(B) the parent or guardian of the other person.
(c-4) It is a defense to prosecution for a person described
by Subsection (c-1)(1) or (2) that a reasonable person in the
defendant's position would have believed the defendant's conduct to
be lawful.
(c-5) This section shall be construed, as a matter of state
law, to be enforceable up to but no further than the maximum
possible extent consistent with federal constitutional
requirements, even if that construction is not readily apparent, as
such constructions are authorized only to the extent necessary to
save the section from judicial invalidation. If any court
determines that a provision of this section is unconstitutionally
vague, the court shall interpret the provision, as a matter of state
law, to avoid the vagueness issue and shall enforce the provision to
the maximum possible extent.
SECTION 2. (a) This section applies only to a prosecution
of an offense under Subdivision (2), Subsection (a), Section 39.03,
Penal Code, as added by this Act, in which the defendant was, at the
time of the alleged offense, acting under the color of federal law.
(b) In a prosecution described by Subsection (a) of this
section, if the government of the United States, the defendant, or
the defendant's employer challenges the validity of Subdivision
(2), Subsection (a), Section 39.03, Penal Code, as added by this
Act, on grounds of unconstitutionality, preemption, or sovereign
immunity, the attorney general of this state, with the consent of
the appropriate local county or district attorney, shall take any
actions necessary on behalf of the state to defend the validity of
the statute. The attorney general may make any legal arguments the
attorney general considers appropriate, including that this Act
constitutes a valid exercise of:
(1) the state's police powers;
(2) the liberty interests of the people that are
secured by the United States Constitution;
(3) the powers reserved to the states by the Tenth
Amendment to the United States Constitution; or
(4) the rights and protections secured by the Texas
Constitution.
SECTION 3. This Act takes effect on the 91st day after the
last day of the legislative session.
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