By: Minjarez H.B. No. 306
A BILL TO BE ENTITLED
AN ACT
relating to student harassment, bullying, cyberbullying, injury to
or death of a minor; creating a criminal offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. This Act shall be known as David's Law.
SECTION 2. Section 37.0832, Education Code, is amended by
amending Subsections (a), (c), (d), and (e) and adding Subsection
(a-1) to read as follows:
(a) In this section:
(1) "Bullying":
(A) [, "bullying"] means a single significant act
or a pattern of acts by one or more students directed at another
student that exploits an imbalance of power and involves[, subject
to Subsection (b),] engaging in written or verbal expression,
expression through electronic means, or physical conduct, that
satisfies the applicability requirements provided by Subsection
(a-1), [that occurs on school property, at a school-sponsored or
school-related activity, or in a vehicle operated by the district]
and that:
(i) [(1)] has the effect or will have the
effect of physically harming a student, causing a student to
experience substantial negative mental health effects, damaging a
student's property, or placing a student in reasonable fear of harm
to the student's person or of damage to the student's property; [or]
(ii) [(2)] is sufficiently severe,
persistent, and pervasive enough that the action or threat creates
an intimidating, threatening, or abusive educational environment
for a student;
(iii) materially and substantially
disrupts the educational process or the orderly operation of a
classroom or school; or
(iv) infringes on the rights of the victim
at school; and
(B) includes cyberbullying.
(2) "Cyberbullying" means bullying that is done
through the use of electronic communication, including through the
use of a cellular or other type of telephone, a computer, a pager, a
camera, electronic mail, instant messaging, text messaging, a
social media application, Internet website, or other
Internet-based communication tool.
(a-1) This section applies to:
(1) bullying that occurs on or is delivered to school
property or to the site of a school-sponsored or school-related
activity on or off school property;
(2) bullying that occurs on a publicly or privately
owned school bus or van being used for transportation of students to
or from school or a school-sponsored or school-related activity;
and
(3) cyberbullying that occurs off school property or
outside of a school-sponsored or school-related activity if the
cyberbullying:
(A) interferes with a student's educational
opportunities; or
(B) substantially disrupts the orderly operation
of a classroom, school, or school-sponsored or school-related
activity.
(c) The board of trustees of each school district and the
governing body of each open-enrollment charter school or private
school shall adopt a policy, including any necessary procedures,
concerning bullying that:
(1) prohibits the bullying and cyberbullying of a
student;
(2) prohibits retaliation against any person,
including a victim, a witness, or another person, who in good faith
provides information concerning an incident of bullying;
(3) establishes a procedure for providing notice of an
incident of bullying to a parent or guardian of the victim and a
parent or guardian of the bully not later than the next school day
[within a reasonable amount of time] after the incident is
reported;
(4) establishes the actions a student should take to
obtain assistance and intervention in response to bullying;
(5) sets out the available counseling options for a
student who is a victim of or a witness to bullying or who engages in
bullying;
(6) establishes procedures for reporting an incident
of bullying, including procedures for a student, parent, teacher,
or administrator to anonymously report an incident of bullying,
investigating a reported incident of bullying, and determining
whether the reported incident of bullying occurred;
(7) prohibits the imposition of a disciplinary measure
on a student who, after an investigation, is found to be a victim of
bullying, on the basis of that student's use of reasonable
self-defense in response to the bullying; and
(8) requires that discipline for bullying of a student
with disabilities comply with applicable requirements under
federal law, including the Individuals with Disabilities Education
Act (20 U.S.C. Section 1400 et seq.).
(d) The policy and any necessary procedures adopted under
Subsection (c) must be included:
(1) annually, in any [the] student and employee
[school district] handbooks; and
(2) in the district improvement plan under Section
11.252.
(e) The procedure for reporting bullying established under
Subsection (c) must be posted on the district's or school's Internet
website to the extent practicable.
SECTION 3. Subchapter A, Chapter 37, Education Code, is
amended by adding Section 37.0052 to read as follows:
Sec. 37.0052. PLACEMENT OR EXPULSION OF STUDENTS WHO HAVE
ENGAGED IN CERTAIN BULLYING BEHAVIOR. (a) In this section:
(1) "Bullying" has the meaning assigned by Section
37.0832.
(2) "Intimate visual material" has the meaning
assigned by Section 98B.001, Civil Practice and Remedies Code.
(b) A student may be removed from class and placed in a
disciplinary alternative education program as provided by Section
37.008 or expelled if the student:
(1) engages in bullying that encourages a minor to
commit or attempt to commit suicide;
(2) incites violence against a minor through group
bullying; or
(3) releases or threatens to release intimate visual
material of a minor.
SECTION 4. Subchapter A, Chapter 37, Education Code, is
amended by adding Section 37.0151 to read as follows:
Sec. 37.0151. REPORT TO LOCAL LAW ENFORCEMENT REGARDING
CERTAIN CONDUCT CONSTITUTING ASSAULT OR HARASSMENT; LIABILITY. (a)
The principal of a public or private primary or secondary school, or
a person designated by the principal under Subsection (c), shall
make a report to any school district police department and the
police department of the municipality in which the school is
located or, if the school is not in a municipality, the sheriff of
the county in which the school is located if the principal has
reasonable grounds to believe that a student engaged in conduct
that constitutes an offense under Section 22.01 or 42.07(a)(7),
Penal Code.
(b) A person who makes a report under this section shall
include the name and address of each student the person believes may
have participated in the conduct.
(c) The principal of a public or private primary or
secondary school may designate a school employee, other than a
school counselor, who is under the supervision of the principal to
make the report under this section.
(d) A person is not liable in civil damages for making a
report in good faith under this section.
SECTION 5. Sections 37.218(a)(1) and (2), Education Code,
are amended to read as follows:
(1) "Bullying" has the meaning assigned by Section
37.0832 [25.0342].
(2) "Cyberbullying" has the meaning assigned by
Section 37.0832 [means the use of any electronic communication
device to engage in bullying or intimidation].
SECTION 6. Section 33.006(b), Education Code, is amended to
read as follows:
(b) In addition to a school counselor's responsibility
under Subsection (a), the school counselor shall:
(1) participate in planning, implementing, and
evaluating a comprehensive developmental guidance program to serve
all students and to address the special needs of students:
(A) who are at risk of dropping out of school,
becoming substance abusers, participating in gang activity, or
committing suicide;
(B) who are in need of modified instructional
strategies; or
(C) who are gifted and talented, with emphasis on
identifying and serving gifted and talented students who are
educationally disadvantaged;
(2) consult with a student's parent or guardian and
make referrals as appropriate in consultation with the student's
parent or guardian;
(3) consult with school staff, parents, and other
community members to help them increase the effectiveness of
student education and promote student success;
(4) coordinate people and resources in the school,
home, and community;
(5) with the assistance of school staff, interpret
standardized test results and other assessment data that help a
student make educational and career plans; [and]
(6) deliver classroom guidance activities or serve as
a consultant to teachers conducting lessons based on the school's
guidance curriculum; and
(7) serve as an impartial mediator for interpersonal
conflicts involving two or more students, including accusations of
bullying or cyberbullying under Section 37.0832.
SECTION 7. Chapter 18, Civil Practice and Remedies Code, is
amended by adding Subchapter E to read as follows:
SUBCHAPTER E. SUBPOENAS
Sec. 18.101. PRE-SUIT SUBPOENAS FOR CERTAIN CLAIMS
INVOLVING MINORS. (a) The supreme court shall adopt rules of civil
procedure providing for the issuance of a pre-suit subpoena to:
(1) investigate a potential claim involving an injury
to or death of a minor; or
(2) perpetuate or obtain evidence or testimony from
any person for use in an anticipated action involving an injury to
or death of a minor.
(b) The rules must:
(1) allow a party to request a subpoena to compel an
oral or written deposition, the production of electronic or
magnetic data, or the production of documents or tangible things;
and
(2) require that a responding party provide any
electronic or magnetic data or documentary or tangible evidence to
the court under seal for the court to determine, after notice,
hearing, and an in camera inspection, if the evidence should be
released to the requesting party.
SECTION 8. Title 4, Civil Practice and Remedies Code, is
amended by adding Chapter 100B to read as follows:
CHAPTER 100B. LIABILITY FOR CERTAIN BULLYING OF CHILD
Sec. 100B.001. DEFINITIONS. In this chapter:
(1) "Bullying communication" means written or oral
expression, expression by means of electronic communication, or
non-verbal expression:
(A) that consists of multiple communications:
(i) with respect to which the individual
making the communication acts intentionally and with malice;
(ii) where the communications:
(a) when taken together, were extreme
and outrageous in light of the content, manner, time, place, and
number of such communications; or
(b) were harassing and offensive, and
the individual making the communication acts was acting in concert
with two or more other persons whose communications directed at the
recipient the individual making the communication acts knew to be
harassing and offensive, if such communications by the individual
making the communication acts and such other persons, when taken
together, were extreme and outrageous in light of the manner, time,
place, and number of such communications; and
(iii) with respect to which the actions of
the individual making the communication caused, or if made in
concert with other persons as provided in clause (1)(A)(ii)(b) of
this Section, contributed to causing, the recipient to suffer
severe emotional distress; or
(B) in which the individual making the
communication:
(i) urges or incites the recipient to
commit or attempt to commit suicide;
(ii) threatens to make available to any
third party, whether or not specified, by electronic communication
or otherwise, intimate visual material of or depicting the
recipient of the bullying communication; or
(iii) threatens bodily injury to the
recipient or a member of the recipient's family.
(2) "Claimant" means a party seeking to recover
damages under this chapter, including a plaintiff,
counterclaimant, cross-claimant, or third-party plaintiff, and
includes a party seeking recovery of damages under this chapter on
behalf of another person and the person on whose behalf the damages
are sought.
(3) "Defendant" includes any party from whom a
claimant seeks recovery of damages under this chapter, and includes
a person from whom a claimant seeks recovery under Section 100B.005
and the child who engaged in the actionable bullying that is the
subject of the action in which recovery is sought.
(4) "Electronic communication" means a transfer of
signs, signals, writing, images, sounds, data, or intelligence of
any nature transmitted wholly or partly by a wire, radio,
electromagnetic, photoelectronic, or photo-optical system
including through the use of a cellular or other type of telephone,
facsimile machine, a computer, a pager, a camera, electronic mail,
instant messaging, text messaging, a social media application,
Internet website, or other Internet-based communication tool.
(5) "Family" has the meaning assigned by Section
71.003, Family Code.
(6) "Interactive service" means an information
service, system, wireless telephone and text message service, or
access software provider that provides or enables electronic
communication through computer or wireless telephone access by
multiple users to a computer server or wireless telephone network,
including a system that provides access to the Internet or wireless
telephones.
(7) "Intimate visual material" has the meaning
assigned by Section 98B.001, Civil Practice and Remedies Code.
Sec. 100B.002. ACTIONABLE BULLYING. A person engages in
actionable bullying for the purposes of this chapter if the person
directs bullying communication toward a single recipient who, at
the time of the bullying communication, is younger than 18 years of
age.
Sec. 100B.003. LIABILITY. A defendant is liable to a
claimant as provided by this chapter if the claimant shows that the
defendant engaged in actionable bullying directed toward the
claimant.
Sec. 100B.004. DAMAGES. (a) A claimant who prevails in a
suit under this chapter may recover actual damages for all
physical, mental, or emotional injury caused by, resulting from, or
arising out of the actionable bullying that is the subject of the
suit. The claimant may recover actual damages for mental anguish
even if an injury other than mental anguish is not shown.
(b) Except as provided by Subsection (c), in addition to
damages awarded under Subsection (a), a claimant who prevails in a
suit under this chapter may recover:
(1) exemplary damages; and
(2) court costs and reasonable attorney's fees.
(c) Instead of recovering exemplary damages under
Subsection (b), a claimant who prevails in a suit under this chapter
may elect to treble the amount that would otherwise be awarded under
Subsection (a), not to exceed $75,000.00 under this subsection (c)
per actionable claim, if the claimant shows that:
(1) the defendant used an interactive service to
transfer electronic communication to the claimant that constituted
actionable bullying; and
(2) the defendant knew that two or more other persons
were using that interactive service to transfer electronic
communication that constituted actionable bullying as to the
claimant within 24 hours of each transfer by the defendant
described by Subdivision (1).
Sec. 100B.005. PARENTAL RESPONSIBILITY. A parent or other
person who has the duty of control and reasonable discipline of a
child who engages in actionable bullying directed toward the
claimant is liable to the claimant for:
(1) the lesser of:
(A) damages recoverable by the claimant under
Section 100B.004, including exemplary damages or multiplied
damages, as applicable; or
(B) $50,000; and
(2) court costs and reasonable attorney's fees.
Sec. 100B.006. INJUNCTIVE RELIEF. If a defendant is found
liable under this chapter, a court may order any injunctive relief
sought by the claimant that the court determines is appropriate
under the circumstances.
Sec. 100B.007. DEFENSE. It is a defense to liability under
this chapter that the defendant was engaged in conduct that
constituted a constitutionally protected exercise of the
defendant's rights to free speech.
Sec. 100B.008. CAUSE OF ACTION CUMULATIVE. The cause of
action created by this chapter is cumulative of any other remedy
provided by common law or statute.
SECTION 9. Chapter 22, Penal Code, is amended by adding
Section 22.081 to read as follows:
Sec. 22.081. INDUCING SUICIDE OR ATTEMPTED SUICIDE OF A
MINOR BY NONPHYSICAL BULLYING.
Sec 22.081. DEFINITIONS. In this section:
(1) "Electronic communication" has the meaning
assigned by Section 42.07(b)(1), Penal Code.
(2) "Intimate parts," "sexual conduct," and "visual
material" have the meanings assigned by Section 21.16, Penal Code.
(3) "Intimate visual material" means visual material
that depicts a person:
(A) with the person's intimate parts exposed; or
(B) engaged in sexual conduct.
(4) "Suicide baiting" means a communication by a
person directed at another by written or verbal expression,
expression through an electronic communication, or non-verbal
expression, that urges or incites the other to commit or attempt to
commit suicide.
(a) A person commits an offense if such person intentionally
and with malice directs one or more communications toward a child
younger than 18 years of age by written or oral expression,
expression through electronic communications, or nonverbal
expression, and such communication was, or such communications when
taken together were, harassing, extreme and outrageous in light of
the content, number, manner, time, and place of such communication
or communications; and
(1) the actor's conduct causes the suicide, or the
attempted suicide of such child that results in serious bodily
injury; or
(2) the actor was acting in concert with two or more
other persons whose communications directed at such child the actor
knew to be harassing, extreme and outrageous in light of the
content, number, manner, time, and place of such other
communications, and the cumulative effect of such communication or
communications by the actor and such communications by such other
persons was to cause the suicide of such child, or the attempted
suicide of such child that results in serious bodily injury.
(b) A person commits an offense if such person intentionally
and with malice directs one or more communications toward a child
younger than 18 years of age by written or oral expression,
expression through electronic communications, or non-verbal
expression, and in such communication or communications the person
threatened to make available to any third party, whether or not
specified, by electronic communication, or otherwise, intimate
visual material of or depicting such child, and such conduct by the
actor causes the suicide of such child, or the attempted suicide of
such child that results in serious bodily injury.
(c) An offense under this section is a Class A misdemeanor.
SECTION 10. Section 42.07(b)(1), Penal Code, is amended to
read as follows:
(1) "Electronic communication" means a transfer of
signs, signals, writing, images, sounds, data, or intelligence of
any nature transmitted in whole or in part by a wire, radio,
electromagnetic, photoelectronic, or photo-optical system. The
term includes:
(A) a communication initiated by electronic
mail, instant message, Internet website, social media application,
network call, [or] facsimile machine, or other Internet-based
communication tool; and
(B) a communication made to a pager.
SECTION 11. Section 37.0832(b), Education Code, is
repealed.
SECTION 12. Chapter 100B, Civil Practice and Remedies Code,
as added by this Act, applies only with respect to bullying
communications engaged in on or after the effective date of this
Act.
SECTION 13. The change in law made by this Act applies only
to an offense committed or conduct violating a penal law of this
state that occurs on or after the effective date of this Act. An
offense committed or conduct that occurs before the effective date
of this Act is governed by the law in effect on the date the offense
was committed or conduct occurred, and the former law is continued
in effect for that purpose. For purposes of this section, an
offense was committed or conduct violating a penal law of this state
occurred before the effective date of this Act if any element of the
offense or conduct occurred before that date.
SECTION 14. This Act takes effect September 1, 2017.