By: Patrick, et al. S.B. No. 29
(Simpson)
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), and (c-3) 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 of the presence of an
unknown, unlawful, or prohibited object:
(A) performs a 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
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"
means:
(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 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-3) 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.
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.