85R26482 MEW-F
By: Minjarez, Faircloth, Moody, Larson, H.B. No. 306
King of Hemphill, et al.
Substitute the following for H.B. No. 306:
By: Bernal C.S.H.B. No. 306
A BILL TO BE ENTITLED
AN ACT
relating to harassment, bullying, and cyberbullying of a public
school student or minor and certain mental health programs for
public school students.
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) and (c) 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, 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, or [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 camera,
electronic mail, instant messaging, text messaging, a social media
application, an Internet website, or any other Internet-based
communication tool.
(a-1) This section applies to bullying that occurs on school
property or at the site of a school-sponsored or school-related
activity on or off school property if the bullying:
(1) interferes with a student's educational
opportunities; or
(2) 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 shall
adopt a policy, including any necessary procedures, concerning
bullying that:
(1) prohibits the bullying 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 alleged victim
and a parent or guardian of the alleged bully within a reasonable
amount of time after the incident;
(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 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.).
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. 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 5. Section 12.104(b), Education Code, is amended to
read as follows:
(b) An open-enrollment charter school is subject to:
(1) a provision of this title establishing a criminal
offense; and
(2) a prohibition, restriction, or requirement, as
applicable, imposed by this title or a rule adopted under this
title, relating to:
(A) the Public Education Information Management
System (PEIMS) to the extent necessary to monitor compliance with
this subchapter as determined by the commissioner;
(B) criminal history records under Subchapter C,
Chapter 22;
(C) reading instruments and accelerated reading
instruction programs under Section 28.006;
(D) accelerated instruction under Section
28.0211;
(E) high school graduation requirements under
Section 28.025;
(F) special education programs under Subchapter
A, Chapter 29;
(G) bilingual education under Subchapter B,
Chapter 29;
(H) prekindergarten programs under Subchapter E
or E-1, Chapter 29;
(I) extracurricular activities under Section
33.081;
(J) discipline management practices or behavior
management techniques under Section 37.0021;
(K) health and safety under Chapter 38;
(L) public school accountability under
Subchapters B, C, D, E, F, G, and J, Chapter 39;
(M) the requirement under Section 21.006 to
report an educator's misconduct;
(N) intensive programs of instruction under
Section 28.0213; [and]
(O) the right of a school employee to report a
crime, as provided by Section 37.148; and
(P) bullying prevention policies and procedures
under Section 37.0832.
SECTION 6. Section 21.054, Education Code, is amended by
adding Subsections (d-2) and (e-2) to read as follows:
(d-2) Continuing education requirements for a classroom
teacher may include instruction regarding how grief and trauma
affect student learning and behavior and how evidence-based,
grief-informed, and trauma-informed strategies support the
academic success of students affected by grief and trauma.
(e-2) Continuing education requirements for a principal may
include instruction regarding how grief and trauma affect student
learning and behavior and how evidence-based, grief-informed, and
trauma-informed strategies support the academic success of
students affected by grief and trauma.
SECTION 7. Subchapter J, Chapter 21, Education Code, is
amended by adding Section 21.462 to read as follows:
Sec. 21.462. RESOURCES REGARDING STUDENTS WITH MENTAL
HEALTH NEEDS. The agency, in coordination with the Health and Human
Services Commission, shall establish and maintain an Internet
website to provide resources for school district or open-enrollment
charter school employees regarding working with students with
mental health conditions. The agency must include on the Internet
website information about:
(1) grief-informed and trauma-informed practices;
(2) building skills related to managing emotions,
establishing and maintaining positive relationships, and
responsible decision-making;
(3) positive behavior interventions and supports; and
(4) a safe and supportive school climate.
SECTION 8. 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, nonreporting resource for
interpersonal conflicts and discord involving two or more students,
including accusations of bullying under Section 37.0832.
SECTION 9. Title 6, Civil Practice and Remedies Code, is
amended by adding Chapter 129A to read as follows:
CHAPTER 129A. RELIEF FOR CYBERBULLYING OF CHILD
Sec. 129A.001. DEFINITION. In this chapter,
"cyberbullying" has the meaning assigned by Section 37.0832(a),
Education Code.
Sec. 129A.002. INJUNCTIVE RELIEF. (a) A recipient of
cyberbullying behavior who is younger than 18 years of age at the
time the cyberbullying occurs or a parent of or person standing in
parental relation to the recipient may seek injunctive relief under
this chapter against the individual who was cyberbullying the
recipient or, if the individual is younger than 18 years of age,
against a parent of or person standing in parental relation to the
individual.
(b) A court may issue a temporary restraining order,
temporary injunction, or permanent injunction appropriate under
the circumstances to prevent any further cyberbullying, including
an order or injunction:
(1) enjoining a defendant from engaging in
cyberbullying; or
(2) compelling a defendant who is a parent of or person
standing in parental relation to an individual who is younger than
18 years of age to take reasonable actions to cause the individual
to cease engaging in cyberbullying.
(c) A plaintiff in an action for injunctive relief brought
under this section is entitled to a temporary restraining order on
showing that the plaintiff is likely to succeed in establishing
that the individual was cyberbullying the recipient. The plaintiff
is not required to plead or prove that, before notice can be served
and a hearing can be held, immediate and irreparable injury, loss,
or damage is likely to result from past or future cyberbullying by
the individual against the recipient.
(d) A plaintiff is entitled to a temporary or permanent
injunction under this section on showing that the individual was
cyberbullying the recipient.
(e) A temporary restraining order or temporary injunction
granted under this section shall order the preservation of any
relevant electronic communication. The temporary restraining
order or temporary injunction is not required to:
(1) define the injury or state why it is irreparable;
(2) state why the order was granted without notice; or
(3) include an order setting the cause for trial on the
merits with respect to the ultimate relief requested.
Sec. 129A.003. PROMULGATION OF FORMS. (a) The supreme
court shall, as the court finds appropriate, promulgate forms for
use as an application for initial injunctive relief by individuals
representing themselves in suits involving cyberbullying and
instructions for the proper use of each form or set of forms.
(b) The forms and instructions:
(1) must be written in language that is easily
understood by the general public;
(2) shall be made readily available to the general
public in the manner prescribed by the supreme court; and
(3) must be translated into the Spanish language.
(c) The Spanish language translation of a form must:
(1) state:
(A) that the Spanish language translated form is
to be used solely for the purpose of assisting in understanding the
form and may not be submitted to the court; and
(B) that the English language version of the form
must be submitted to the court; or
(2) be incorporated into the English language version
of the form in a manner that is understandable to both the court and
members of the general public.
(d) Each form and its instructions must clearly and
conspicuously state that the form is not a substitute for the advice
of an attorney.
(e) The attorney general and the clerk of a court shall
inform members of the general public of the availability of a form
promulgated by the supreme court under this section as appropriate
and make the form available free of charge.
(f) A court shall accept a form promulgated by the supreme
court under this section unless the form has been completed in a
manner that causes a substantive defect that cannot be cured.
Sec. 129A.004. ATTORNEY'S FEES AND COSTS. In a proceeding
under this chapter, the court may award to any claimant or defendant
costs and reasonable and necessary attorney's fees as are equitable
and just. The amount awarded to any party under this section for
attorney's fees may not exceed $5,000.
Sec. 129A.005. INAPPLICABILITY. (a) An action filed under
this chapter may not be joined with an action filed under Title 1,
4, or 5, Family Code.
(b) Chapter 27 does not apply to an action under this
chapter.
Sec. 129A.006. CERTAIN CONDUCT EXCEPTED. This chapter does
not apply to a claim brought against an interactive computer
service, as defined by 47 U.S.C. Section 230, for cyberbullying.
SECTION 10. Sections 161.325(a-1), (d), (e), (f), and (i),
Health and Safety Code, are amended to read as follows:
(a-1) The list must include programs in the following areas:
(1) early mental health intervention;
(2) mental health promotion [and positive youth
development];
(3) substance abuse prevention;
(4) substance abuse intervention; [and]
(5) suicide prevention;
(6) grief-informed and trauma-informed practices;
(7) building skills related to managing emotions,
establishing and maintaining positive relationships, and
responsible decision-making;
(8) positive behavior interventions and supports and
positive youth development; and
(9) safe and supportive school climate.
(d) A [The board of trustees of each] school district shall
develop practices and procedures [may adopt a policy] concerning
each area listed in Subsection (a-1), including mental health
promotion and intervention, substance abuse prevention and
intervention, and suicide prevention that:
(1) includes [establishes] a procedure for providing
notice of a recommendation for early mental health or substance
abuse intervention regarding a student to a parent or guardian of
the student within a reasonable amount of time after the
identification of early warning signs as described by Subsection
(b)(2);
(2) includes [establishes] a procedure for providing
notice of a student identified as at risk of committing suicide to a
parent or guardian of the student within a reasonable amount of time
after the identification of early warning signs as described by
Subsection (b)(2);
(3) establishes that the district may develop a
reporting mechanism and may designate at least one person to act as
a liaison officer in the district for the purposes of identifying
students in need of early mental health or substance abuse
intervention or suicide prevention; and
(4) sets out available counseling alternatives for a
parent or guardian to consider when their child is identified as
possibly being in need of early mental health or substance abuse
intervention or suicide prevention.
(e) The practices and procedures developed under Subsection
(d) [policy] must prohibit the use without the prior consent of a
student's parent or guardian of a medical screening of the student
as part of the process of identifying whether the student is
possibly in need of early mental health or substance abuse
intervention or suicide prevention.
(f) The practices [policy] and [any necessary] procedures
developed [adopted] under Subsection (d) must be included in:
(1) the annual student handbook; and
(2) the district improvement plan under Section
11.252, Education Code.
(i) Nothing in this section is intended to interfere with
the rights of parents or guardians and the decision-making
regarding the best interest of the child. Practices [Policy] and
procedures developed [adopted] in accordance with this section are
intended to notify a parent or guardian of a need for mental health
or substance abuse intervention so that a parent or guardian may
take appropriate action. Nothing in this section shall be
construed as giving school districts the authority to prescribe
medications. Any and all medical decisions are to be made by a
parent or guardian of a student.
SECTION 11. Sections 42.07(a) and (c), Penal Code, are
amended to read as follows:
(a) A person commits an offense if, with intent to harass,
annoy, alarm, abuse, torment, or embarrass another, the person:
(1) initiates communication and in the course of the
communication makes a comment, request, suggestion, or proposal
that is obscene;
(2) threatens, in a manner reasonably likely to alarm
the person receiving the threat, to inflict bodily injury on the
person or to commit a felony against the person, a member of the
person's family or household, or the person's property;
(3) conveys, in a manner reasonably likely to alarm
the person receiving the report, a false report, which is known by
the conveyor to be false, that another person has suffered death or
serious bodily injury;
(4) causes the telephone of another to ring repeatedly
or makes repeated telephone communications anonymously or in a
manner reasonably likely to harass, annoy, alarm, abuse, torment,
embarrass, or offend another;
(5) makes a telephone call and intentionally fails to
hang up or disengage the connection;
(6) knowingly permits a telephone under the person's
control to be used by another to commit an offense under this
section; [or]
(7) sends repeated electronic communications in a
manner reasonably likely to harass, annoy, alarm, abuse, torment,
embarrass, or offend another; or
(8) engages in bullying, as that term is defined by
Section 37.0832(a), Education Code.
(c) An offense under this section is a Class B misdemeanor,
except that the offense is a Class A misdemeanor if the actor:
(1) has previously been convicted under this section;
or
(2) engages in the conduct described by Subsection
(a)(8) and:
(A) the actor has previously violated a temporary
restraining order or injunction issued under Chapter 129A, Civil
Practice and Remedies Code; or
(B) the actor's conduct results in serious bodily
injury or death.
SECTION 12. 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 through the use of
[by] electronic mail, instant message, network call, a cellular or
other type of telephone, a computer, a camera, text message, a
social media platform or application, an Internet website, any
other Internet-based communication tool, or facsimile machine; and
(B) a communication made to a pager.
SECTION 13. Section 37.0832(b), Education Code, is
repealed.
SECTION 14. 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 15. It is the intent of the legislature that every
provision, section, subsection, sentence, clause, phrase, or word
in this Act, and every application of the provisions in this Act to
each person or entity, are severable from each other. If any
application of any provision in this Act to any person, group of
persons, or circumstances is found by a court to be invalid for any
reason, the remaining applications of that provision to all other
persons and circumstances shall be severed and may not be affected.
SECTION 16. This Act takes effect September 1, 2017.