83R1313 JRH-F
By: Patrick S.B. No. 20
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 probable cause to believe the other person
committed an offense:
(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:
(i) touches the anus, sexual organ,
buttocks, or breast of the other person, including touching through
clothing; or
(ii) causes physical contact with the other
person when the actor knows or should reasonably believe that the
other person will regard the contact as offensive or provocative.
(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), it is a
defense to prosecution for an offense under Subsection (a)(2) that
the actor performed the search pursuant to and consistent with an
explicit and applicable grant of federal statutory authority that
is 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.
SECTION 2. (a) This section applies only to a prosecution
of an offense under Section 39.03(a)(2), 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 Section
39.03(a)(2), 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 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 statute from judicial invalidation.
SECTION 4. This Act takes effect September 1, 2013.