By: Moody, Dale, Alvarado, Burkett, Neave H.B. No. 142
A BILL TO BE ENTITLED
AN ACT
relating to the creation of the offense of indecent assault, to
judicial protection for victims of that offense, and to certain
criminal acts committed in relation to that offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 22, Penal Code, is amended by adding
Section 22.012 to read as follows:
Sec. 22.012. INDECENT ASSAULT. (a) A person commits an
offense if, without the other person's consent and with the intent
to arouse or gratify the sexual desire of any person, the person:
(1) touches, including through clothing, the anus,
breast, or any part of the genitals of another person;
(2) touches another person, including through
clothing, with the anus, breast, or any part of the genitals of any
person;
(3) removes or attempts to remove any clothing
covering another person's genitals, pubic area, anus, buttocks, or
female areola; or
(4) causes another person to contact the blood,
seminal fluid, vaginal fluid, saliva, urine, or feces of any
person, including contact occurring through clothing.
(b) An offense under this section is a Class A misdemeanor.
(c) If conduct that constitutes an offense under this
section also constitutes an offense under another law, the actor
may be prosecuted under this section, the other law, or both.
SECTION 2. The heading to Chapter 7A, Code of Criminal
Procedure, is amended to read as follows:
CHAPTER 7A. PROTECTIVE ORDER FOR VICTIMS OF SEXUAL ASSAULT OR
ABUSE, INDECENT ASSAULT, STALKING, OR TRAFFICKING
SECTION 3. Article 7A.01(a), Code of Criminal Procedure, is
amended to read as follows:
(a) The following persons may file an application for a
protective order under this chapter without regard to the
relationship between the applicant and the alleged offender:
(1) a person who is the victim of an offense under
Section 21.02, 21.11, 22.011, 22.012, 22.021, or 42.072, Penal
Code;
(2) a person who is the victim of an offense under
Section 20A.02, 20A.03, or 43.05, Penal Code;
(3) a parent or guardian acting on behalf of a person
younger than 17 years of age who is the victim of an offense listed
in Subdivision (1);
(4) a parent or guardian acting on behalf of a person
younger than 18 years of age who is the victim of an offense listed
in Subdivision (2); or
(5) a prosecuting attorney acting on behalf of a
person described by Subdivision (1), (2), (3), or (4).
SECTION 4. Article 7A.02, Code of Criminal Procedure, is
amended to read as follows:
Art. 7A.02. TEMPORARY EX PARTE ORDER. If the court finds
from the information contained in an application for a protective
order that there is a clear and present danger of sexual assault or
abuse, indecent assault, stalking, trafficking, or other harm to
the applicant, the court, without further notice to the alleged
offender and without a hearing, may enter a temporary ex parte order
for the protection of the applicant or any other member of the
applicant's family or household.
SECTION 5. Article 7A.03(a), Code of Criminal Procedure, is
amended to read as follows:
(a) At the close of a hearing on an application for a
protective order under this chapter, the court shall find whether
there are reasonable grounds to believe that the applicant is the
victim of sexual assault or abuse, indecent assault, stalking, or
trafficking.
SECTION 6. Article 7A.035, Code of Criminal Procedure, is
amended to read as follows:
Art. 7A.035. HEARSAY STATEMENT OF CHILD VICTIM. In a
hearing on an application for a protective order under this
chapter, a statement that is made by a child younger than 14 years
of age who is the victim of an offense under Section 21.02, 21.11,
22.011, 22.012, or 22.021, Penal Code, and that describes the
offense committed against the child is admissible as evidence in
the same manner that a child's statement regarding alleged abuse
against the child is admissible under Section 104.006, Family Code,
in a suit affecting the parent-child relationship.
SECTION 7. Articles 17.292(a) and (g), Code of Criminal
Procedure, are amended to read as follows:
(a) At a defendant's appearance before a magistrate after
arrest for an offense involving family violence or an offense under
Section 20A.02, 20A.03, 22.011, 22.012, 22.021, or 42.072, Penal
Code, the magistrate may issue an order for emergency protection on
the magistrate's own motion or on the request of:
(1) the victim of the offense;
(2) the guardian of the victim;
(3) a peace officer; or
(4) the attorney representing the state.
(g) An order for emergency protection issued under this
article must contain the following statements printed in bold-face
type or in capital letters:
"A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED
BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY
CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR OR BY BOTH. AN ACT THAT
RESULTS IN [FAMILY VIOLENCE OR] A SEPARATE [STALKING OR
TRAFFICKING] OFFENSE MAY BE PROSECUTED AS A SEPARATE MISDEMEANOR OR
FELONY OFFENSE, AS APPLICABLE, IN ADDITION TO A VIOLATION OF THIS
ORDER. IF THE ACT IS PROSECUTED AS A SEPARATE FELONY OFFENSE, IT IS
PUNISHABLE BY CONFINEMENT IN PRISON FOR AT LEAST TWO YEARS. THE
POSSESSION OF A FIREARM BY A PERSON, OTHER THAN A PEACE OFFICER, AS
DEFINED BY SECTION 1.07, PENAL CODE, ACTIVELY ENGAGED IN EMPLOYMENT
AS A SWORN, FULL-TIME PAID EMPLOYEE OF A STATE AGENCY OR POLITICAL
SUBDIVISION, WHO IS SUBJECT TO THIS ORDER MAY BE PROSECUTED AS A
SEPARATE OFFENSE PUNISHABLE BY CONFINEMENT OR IMPRISONMENT.
"NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS
ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY
PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS
VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT
UNLESS A COURT CHANGES THE ORDER."
SECTION 8. The heading to Article 56.021, Code of Criminal
Procedure, is amended to read as follows:
Art. 56.021. RIGHTS OF VICTIM OF SEXUAL ASSAULT OR ABUSE,
INDECENT ASSAULT, STALKING, OR TRAFFICKING.
SECTION 9. (a) Article 56.021(d), Code of Criminal
Procedure, as added by Chapter 1032 (H.B. 1447), Acts of the 84th
Legislature, Regular Session, 2015, is amended to read as follows:
(d) This subsection applies only to a victim of an offense
under Section 20A.02, 20A.03, 21.02, 21.11, 22.011, 22.012, 22.021,
42.072, or 43.05, Penal Code. In addition to the rights enumerated
in Article 56.02 and, if applicable, Subsection (a) of this
article, a victim described by this subsection or a parent or
guardian of the victim is entitled to the following rights within
the criminal justice system:
(1) the right to request that the attorney
representing the state, subject to the Texas Disciplinary Rules of
Professional Conduct, file an application for a protective order
under Article 7A.01 on behalf of the victim;
(2) the right to be informed:
(A) that the victim or the victim's parent or
guardian, as applicable, may file an application for a protective
order under Article 7A.01;
(B) of the court in which the application for a
protective order may be filed; and
(C) that, on request of the victim or the
victim's parent or guardian, as applicable, and subject to the
Texas Disciplinary Rules of Professional Conduct, the attorney
representing the state may file the application for a protective
order;
(3) if the victim or the victim's parent or guardian,
as applicable, is present when the defendant is convicted or placed
on deferred adjudication community supervision, the right to be
given by the court the information described by Subdivision (2)
and, if the court has jurisdiction over applications for protective
orders that are filed under Article 7A.01, the right to file an
application for a protective order immediately following the
defendant's conviction or placement on deferred adjudication
community supervision; and
(4) if the victim or the victim's parent or guardian,
as applicable, is not present when the defendant is convicted or
placed on deferred adjudication community supervision, the right to
be given by the attorney representing the state the information
described by Subdivision (2).
(b) Article 56.021(d), Code of Criminal Procedure, as added
by Chapter 1153 (S.B. 630), Acts of the 84th Legislature, Regular
Session, 2015, is repealed as duplicative of Article 56.021(d),
Code of Criminal Procedure, as added by Chapter 1032 (H.B. 1447),
Acts of the 84th Legislature, Regular Session, 2015.
SECTION 10. Sections 411.042(b) and (g), Government Code,
are amended to read as follows:
(b) The bureau of identification and records shall:
(1) procure and file for record photographs, pictures,
descriptions, fingerprints, measurements, and other pertinent
information of all persons arrested for or charged with a criminal
offense or convicted of a criminal offense, regardless of whether
the conviction is probated;
(2) collect information concerning the number and
nature of offenses reported or known to have been committed in the
state and the legal steps taken in connection with the offenses, and
other information useful in the study of crime and the
administration of justice, including information that enables the
bureau to create a statistical breakdown of:
(A) offenses in which family violence was
involved;
(B) offenses under Sections 22.011 and 22.021,
Penal Code; and
(C) offenses under Sections 20A.02 and 43.05,
Penal Code;
(3) make ballistic tests of bullets and firearms and
chemical analyses of bloodstains, cloth, materials, and other
substances for law enforcement officers of the state;
(4) cooperate with identification and crime records
bureaus in other states and the United States Department of
Justice;
(5) maintain a list of all previous background checks
for applicants for any position regulated under Chapter 1702,
Occupations Code, who have undergone a criminal history background
check under Section 411.119, if the check indicates a Class B
misdemeanor or equivalent offense or a greater offense;
(6) collect information concerning the number and
nature of protective orders and magistrate's orders of emergency
protection and all other pertinent information about all persons
subject to active orders, including pertinent information about
persons subject to conditions of bond imposed for the protection of
the victim in any family violence, sexual assault or abuse,
indecent assault, stalking, or trafficking case. Information in
the law enforcement information system relating to an active order
shall include:
(A) the name, sex, race, date of birth, personal
descriptors, address, and county of residence of the person to whom
the order is directed;
(B) any known identifying number of the person to
whom the order is directed, including the person's social security
number or driver's license number;
(C) the name and county of residence of the
person protected by the order;
(D) the residence address and place of employment
or business of the person protected by the order, unless that
information is excluded from the order under Section 85.007, Family
Code, or Article 17.292(e), Code of Criminal Procedure;
(E) the child-care facility or school where a
child protected by the order normally resides or which the child
normally attends, unless that information is excluded from the
order under Section 85.007, Family Code, or Article 17.292(e), Code
of Criminal Procedure;
(F) the relationship or former relationship
between the person who is protected by the order and the person to
whom the order is directed;
(G) the conditions of bond imposed on the person
to whom the order is directed, if any, for the protection of a
victim in any family violence, sexual assault or abuse, indecent
assault, stalking, or trafficking case;
(H) any minimum distance the person subject to
the order is required to maintain from the protected places or
persons; and
(I) the date the order expires;
(7) grant access to criminal history record
information in the manner authorized under Subchapter F;
(8) collect and disseminate information regarding
offenders with mental impairments in compliance with Chapter 614,
Health and Safety Code; and
(9) record data and maintain a state database for a
computerized criminal history record system and computerized
juvenile justice information system that serves:
(A) as the record creation point for criminal
history record information and juvenile justice information
maintained by the state; and
(B) as the control terminal for the entry of
records, in accordance with federal law and regulations, federal
executive orders, and federal policy, into the federal database
maintained by the Federal Bureau of Investigation.
(g) The department may adopt reasonable rules under this
section relating to:
(1) law enforcement information systems maintained by
the department;
(2) the collection, maintenance, and correction of
records;
(3) reports of criminal history information submitted
to the department;
(4) active protective orders and reporting procedures
that ensure that information relating to the issuance and dismissal
of an active protective order is reported to the local law
enforcement agency at the time of the order's issuance or dismissal
and entered by the local law enforcement agency in the state's law
enforcement information system;
(5) the collection of information described by
Subsection (h);
(6) a system for providing criminal history record
information through the criminal history clearinghouse under
Section 411.0845; and
(7) active conditions of bond imposed on a defendant
for the protection of a victim in any family violence, sexual
assault or abuse, indecent assault, stalking, or trafficking case,
and reporting procedures that ensure that information relating to
the issuance, modification, or removal of the conditions of bond is
reported, at the time of the issuance, modification, or removal,
to:
(A) the victim or, if the victim is deceased, a
close relative of the victim; and
(B) the local law enforcement agency for entry by
the local law enforcement agency in the state's law enforcement
information system.
SECTION 11. The heading to Section 25.07, Penal Code, is
amended to read as follows:
Sec. 25.07. VIOLATION OF CERTAIN COURT ORDERS OR CONDITIONS
OF BOND IN A FAMILY VIOLENCE, SEXUAL ASSAULT OR ABUSE, INDECENT
ASSAULT, STALKING, OR TRAFFICKING CASE.
SECTION 12. Section 25.07(a), Penal Code, is amended to
read as follows:
(a) A person commits an offense if, in violation of a
condition of bond set in a family violence, sexual assault or abuse,
indecent assault, stalking, or trafficking case and related to the
safety of a victim or the safety of the community, an order issued
under Chapter 7A, Code of Criminal Procedure, an order issued under
Article 17.292, Code of Criminal Procedure, an order issued under
Section 6.504, Family Code, Chapter 83, Family Code, if the
temporary ex parte order has been served on the person, or Chapter
85, Family Code, or an order issued by another jurisdiction as
provided by Chapter 88, Family Code, the person knowingly or
intentionally:
(1) commits family violence or an act in furtherance
of an offense under Section 20A.02, 22.011, 22.012, 22.021, or
42.072;
(2) communicates:
(A) directly with a protected individual or a
member of the family or household in a threatening or harassing
manner;
(B) a threat through any person to a protected
individual or a member of the family or household; or
(C) in any manner with the protected individual
or a member of the family or household except through the person's
attorney or a person appointed by the court, if the violation is of
an order described by this subsection and the order prohibits any
communication with a protected individual or a member of the family
or household;
(3) goes to or near any of the following places as
specifically described in the order or condition of bond:
(A) the residence or place of employment or
business of a protected individual or a member of the family or
household; or
(B) any child care facility, residence, or school
where a child protected by the order or condition of bond normally
resides or attends;
(4) possesses a firearm;
(5) harms, threatens, or interferes with the care,
custody, or control of a pet, companion animal, or assistance
animal that is possessed by a person protected by the order or
condition of bond; or
(6) removes, attempts to remove, or otherwise tampers
with the normal functioning of a global positioning monitoring
system.
SECTION 13. Section 25.07(b), Penal Code, is amended by
adding Subdivision (8) to read as follows:
(8) "Indecent assault" means any conduct that
constitutes an offense under Section 22.012.
SECTION 14. The heading to Section 25.072, Penal Code, is
amended to read as follows:
Sec. 25.072. REPEATED VIOLATION OF CERTAIN COURT ORDERS OR
CONDITIONS OF BOND IN FAMILY VIOLENCE, SEXUAL ASSAULT OR ABUSE,
INDECENT ASSAULT, STALKING, OR TRAFFICKING CASE.
SECTION 15. Chapter 7A, Code of Criminal Procedure, as
amended by this Act, and Article 17.292, Code of Criminal
Procedure, as amended by this Act, apply only to a protective order
or magistrate's order for emergency protection that is issued on or
after the effective date of this Act. An order issued before the
effective date of this Act is governed by the law in effect on the
date the order is issued, and the former law is continued in effect
for that purpose.
SECTION 16. Article 56.021(d), Code of Criminal Procedure,
as amended by this Act, applies to a victim of criminally injurious
conduct for which a judgment of conviction is entered or a grant of
deferred adjudication is made on or after the effective date of this
Act, regardless of whether the criminally injurious conduct
occurred before, on, or after the effective date of this Act.
SECTION 17. Sections 25.07 and 25.072, Penal Code, as
amended by this Act, apply only to an offense committed on or after
the effective date of this Act. An offense committed before the
effective date of this Act is governed by the law in effect on the
date the offense was committed, and the former law is continued in
effect for that purpose. For purposes of this section, an offense
was committed before the effective date of this Act if any element
of the offense occurred before that date.
SECTION 18. To the extent of any conflict, this Act prevails
over another Act of the 85th Legislature, Regular Session, 2017,
relating to nonsubstantive additions to and corrections in enacted
codes.
SECTION 19. This Act takes effect September 1, 2017.