By: Menéndez, et al. S.B. No. 179
(In the Senate - Filed November 14, 2016; January 25, 2017,
read first time and referred to Committee on State Affairs;
April 25, 2017, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 6, Nays 1; April 25, 2017,
sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR S.B. No. 179 By: Creighton
A BILL TO BE ENTITLED
AN ACT
relating to harassment, bullying, and cyberbullying of a public
school student or minor and 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) and (c) and adding Subsections (a-1) and
(f) to read as follows:
(a) In this section:
(1) "Bullying":
(A) [, "bullying"] means 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, 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 any electronic communication device, 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:
(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 vehicle 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 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) a parent or guardian of the alleged victim
not later than the next school day after the incident is reported;
and
(B) 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, 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.).
(f) Each school district shall establish a district-wide
mental health plan to prevent and mediate bullying incidents and
address suicide prevention.
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 student to
commit or attempt to commit suicide;
(2) incites violence against a student through group
bullying; or
(3) releases or threatens to release intimate visual
material of a minor or a student who is 18 years of age or older
without the student's consent.
(c) Nothing in this section exempts a school from reporting
a finding of 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 HARASSMENT; LIABILITY. (a) The
principal of a public primary or secondary school, or a person
designated by the principal under Subsection (c), shall make a
report to any school district police department, if applicable, or
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, after an investigation
is completed, the principal has reasonable grounds to believe that
a student engaged in conduct that constitutes an offense under
Section 22.081, 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 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 who is not a school employee but is employed by
an entity that contracts with a district or school to use school
property is not required to make a report under this section and may
not be designated by the principal of a public primary or secondary
school to make a report. A person who voluntarily makes a report
under this section is immune from civil or criminal liability.
(e) A person who takes any action under this section is
immune from civil or criminal liability or disciplinary action
resulting from that action.
(f) Notwithstanding any other law, this section does not
create a civil, criminal, or administrative cause of action or
liability or create a standard of care, obligation, or duty that
provides a basis for a cause of action for an act under this
section.
(g) A school district and school personnel and school
volunteers are immune from suit resulting from an act under this
section, including an act under related policies and procedures.
(h) An act by school personnel or a school volunteer under
this section, including an act under related policies and
procedures, is the exercise of judgment or discretion on the part of
the school personnel or school volunteer and is not considered to be
a ministerial act for purposes of liability of the school district
or the district's employees.
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 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;
(P) bullying prevention policies and procedures
under Section 37.0832;
(Q) the right of a school under Section 37.0052
to place a student who has engaged in certain bullying behavior in a
disciplinary alternative education program or to expel the student;
and
(R) the requirement under Section 37.0151 to
report to local law enforcement certain conduct constituting
harassment.
SECTION 7. Section 33.006, Education Code, is amended by
amending Subsection (b) and adding Subsection (c) 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 conciliator
for interpersonal conflicts and discord involving two or more
students arising out of accusations of bullying under Section
37.0832.
(c) Nothing in Subsection (b)(7) exempts a school counselor
from any mandatory reporting requirements imposed by other
provisions of law.
SECTION 8. Title 6, Civil Practice and Remedies Code, is
amended by adding Chapter 129A to read as follows:
CHAPTER 129A. RELIEF FOR BULLYING OF CHILD
Sec. 129A.001. DEFINITIONS. In this chapter:
(1) "Bullying communication" means unwanted
electronic communication directed at a recipient by a communicator:
(A) that consists of multiple communications:
(i) with respect to which the communicator
acts intentionally and with malice;
(ii) that:
(a) when taken together, were extreme
and outrageous in light of the content, manner, time, place, and
number of the communications; or
(b) were harassing and offensive and
were made by the communicator acting in concert with two or more
individuals the communicator knew to be making harassing and
offensive communications directed at the recipient if the
communications, when taken together, were extreme and outrageous in
light of the manner, time, place, and number of communications; and
(iii) with respect to which the actions of
the communicator caused or, if made in concert with other
individuals as provided by Subparagraph (ii)(b), contributed to
causing the recipient to suffer severe emotional distress; or
(B) in which the communicator in multiple
communications, acting intentionally and with malice:
(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 depicting the recipient; or
(iii) threatens the recipient with bodily
injury or bodily injury to 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) "Communicator" means a natural person who sends
bullying communication.
(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,
a facsimile machine, a computer, a camera, electronic mail, instant
messaging, text messaging, a social media application, an Internet
website, or any other Internet-based communication tool.
(5) "Intimate visual material" has the meaning
assigned by Section 98B.001.
(6) "Recipient" means a person who receives bullying
communication.
Sec. 129A.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 communication, is younger than 18 years of age.
Sec. 129A.003. LIABILITY. A defendant is liable to a
claimant under this chapter if the claimant shows that the
defendant engaged in actionable bullying directed toward the
recipient that proximately caused harm to the recipient.
Sec. 129A.004. DAMAGES. A claimant who prevails in a suit
under this chapter may recover actual damages for all physical,
mental, or emotional injury proximately caused by the actionable
bullying that is the subject of the suit. The claimant may recover
actual damages for mental anguish in an amount not to exceed $5,000
in a suit brought under this chapter, regardless of the number of
defendants named in the suit. Total damages under this section may
not exceed $25,000 in a suit brought under this chapter, regardless
of the number of defendants named in the suit.
Sec. 129A.005. PARENTAL RESPONSIBILITY. (a) A parent of
or person standing in parental relation to a child who engages in
actionable bullying directed toward the recipient is liable to the
claimant for the lesser of:
(1) damages recoverable by the claimant under Section
129A.004; or
(2) $10,000.
(b) It is an affirmative defense to liability under this
chapter that a parent or person standing in parental relation:
(1) took reasonable actions to supervise a
communicator's use of the means employed by the communicator to
direct bullying communication to a recipient; and
(2) either:
(A) did not know about the bullying
communication; or
(B) if the parent or person standing in parental
relation knew about the bullying communication, took reasonable
actions to cause the communicator to cease sending bullying
communications.
Sec. 129A.006. INJUNCTIVE RELIEF. (a) A recipient of
bullying communication who is younger than 18 years of age at the
time the communication is received or a parent of or person standing
in parental relation to the recipient may seek injunctive relief
under this chapter against the individual who sent the bullying
communication or, if the communicator is younger than 18 years of
age, against a parent of or person standing in parental relation to
the communicator.
(b) A court may issue a temporary restraining order,
temporary injunction, or permanent injunction appropriate under
the circumstances to prevent any further bullying communication,
including an order or injunction:
(1) enjoining a defendant from sending bullying
communication; or
(2) compelling a defendant who is a parent of or person
standing in parental relation to a communicator who is younger than
18 years of age to take reasonable actions to cause the communicator
to cease sending bullying communication.
(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 communicator sent bullying communication to 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
bullying communication by the communicator to the recipient.
(d) A plaintiff is entitled to a temporary or permanent
injunction under this section on showing that the communicator sent
bullying communication to the recipient.
(e) A court granting a temporary restraining order or
temporary injunction under this section may, on motion of either
party or sua sponte, 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.007. 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 bullying communication
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 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.008. 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.009. 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.010. 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 bullying
communication.
SECTION 9. Chapter 22, Penal Code, is amended by adding
Section 22.081 to read as follows:
Sec. 22.081. HARASSMENT OF CHILD TO CAUSE SUICIDE OR
SERIOUS BODILY INJURY. (a) In this section, "child" means a
person younger than 18 years of age.
(b) A person commits an offense if the person directs
multiple written, oral, or electronic communication toward a child
in a manner that is reasonably likely to harass, annoy, alarm,
abuse, torment, embarrass, or offend the child, with the intent
that the child:
(1) commit suicide; or
(2) engage in conduct causing serious bodily injury to
the child.
(c) An offense under this section is a Class B misdemeanor,
except that the offense is a Class A misdemeanor if:
(1) it is shown on the trial of the offense that the
actor:
(A) acted in concert with another person to
engage in the conduct described in this section with respect to the
same victim; or
(B) has been previously convicted of an offense
under this section; or
(2) the actor's conduct causes the child to commit
suicide or causes the child to attempt to commit suicide and that
attempt results in serious bodily injury to the child.
(d) For the purposes of Subsection (c)(1)(B), a defendant
has been previously convicted under this section if the defendant
was adjudged guilty of the offense or entered a plea of guilty or
nolo contendere in return for a grant of deferred adjudication
community supervision, regardless of whether the sentence for the
offense was ever imposed or whether the sentence was probated and
the defendant was subsequently discharged from deferred
adjudication community supervision.
(e) A person who is subject to prosecution under both this
section and another law may be prosecuted under either or both this
section and the other law.
SECTION 10. Section 37.0832(b), Education Code, is
repealed.
SECTION 11. Chapter 129A, Civil Practice and Remedies Code,
as added by this Act, applies only to a cause of action that accrues
on or after the effective date of this Act. A cause of action that
accrues before the effective date of this Act is governed by the law
in effect immediately before that date, and that law is continued in
effect for that purpose.
SECTION 12. 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 13. This Act takes effect September 1, 2017.
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