Texas 2017 - 85th 1st C.S.

Texas House Bill HB309 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	85S10923 KJE-F
2	2	By: Moody H.B. No. 309
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the creation of the offense of indecent assault, to
8	8	judicial protection for victims of that offense, and to certain
9	9	criminal acts committed in relation to that offense.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Chapter 22, Penal Code, is amended by adding
12	12	Section 22.012 to read as follows:
13	13	Sec. 22.012. INDECENT ASSAULT. (a) A person commits an
14	14	offense if, without the other person's consent and with the intent
15	15	to arouse or gratify the sexual desire of any person, the person:
16	16	(1) touches, including through clothing, the anus,
17	17	breast, or any part of the genitals of another person;
18	18	(2) touches another person, including through
19	19	clothing, with the anus, breast, or any part of the genitals of any
20	20	person;
21	21	(3) exposes or attempts to expose another person's
22	22	genitals, pubic area, anus, buttocks, or female areola; or
23	23	(4) causes another person to contact the blood,
24	24	seminal fluid, vaginal fluid, saliva, urine, or feces of any
25	25	person, including contact occurring through clothing.
26	26	(b) An offense under this section is a Class A misdemeanor.
27	27	(c) If conduct that constitutes an offense under this
28	28	section also constitutes an offense under another law, the actor
29	29	may be prosecuted under this section, the other law, or both.
30	30	SECTION 2. The heading to Chapter 7A, Code of Criminal
31	31	Procedure, is amended to read as follows:
32	32	CHAPTER 7A. PROTECTIVE ORDER FOR VICTIMS OF SEXUAL ASSAULT OR
33	33	ABUSE, INDECENT ASSAULT, STALKING, OR TRAFFICKING
34	34	SECTION 3. Article 7A.01(a), Code of Criminal Procedure, is
35	35	amended to read as follows:
36	36	(a) The following persons may file an application for a
37	37	protective order under this chapter without regard to the
38	38	relationship between the applicant and the alleged offender:
39	39	(1) a person who is the victim of an offense under
40	40	Section 21.02, 21.11, 22.011, 22.012, 22.021, or 42.072, Penal
41	41	Code;
42	42	(2) a person who is the victim of an offense under
43	43	Section 20A.02, 20A.03, or 43.05, Penal Code;
44	44	(3) a parent or guardian acting on behalf of a person
45	45	younger than 17 years of age who is the victim of an offense listed
46	46	in Subdivision (1);
47	47	(4) a parent or guardian acting on behalf of a person
48	48	younger than 18 years of age who is the victim of an offense listed
49	49	in Subdivision (2); or
50	50	(5) a prosecuting attorney acting on behalf of a
51	51	person described by Subdivision (1), (2), (3), or (4).
52	52	SECTION 4. Article 7A.02, Code of Criminal Procedure, is
53	53	amended to read as follows:
54	54	Art. 7A.02. TEMPORARY EX PARTE ORDER. If the court finds
55	55	from the information contained in an application for a protective
56	56	order that there is a clear and present danger of sexual assault or
57	57	abuse, indecent assault, stalking, trafficking, or other harm to
58	58	the applicant, the court, without further notice to the alleged
59	59	offender and without a hearing, may enter a temporary ex parte order
60	60	for the protection of the applicant or any other member of the
61	61	applicant's family or household.
62	62	SECTION 5. Article 7A.03(a), Code of Criminal Procedure, is
63	63	amended to read as follows:
64	64	(a) At the close of a hearing on an application for a
65	65	protective order under this chapter, the court shall find whether
66	66	there are reasonable grounds to believe that the applicant is the
67	67	victim of sexual assault or abuse, indecent assault, stalking, or
68	68	trafficking.
69	69	SECTION 6. Article 7A.035, Code of Criminal Procedure, is
70	70	amended to read as follows:
71	71	Art. 7A.035. HEARSAY STATEMENT OF CHILD VICTIM. In a
72	72	hearing on an application for a protective order under this
73	73	chapter, a statement that is made by a child younger than 14 years
74	74	of age who is the victim of an offense under Section 21.02, 21.11,
75	75	22.011, 22.012, or 22.021, Penal Code, and that describes the
76	76	offense committed against the child is admissible as evidence in
77	77	the same manner that a child's statement regarding alleged abuse
78	78	against the child is admissible under Section 104.006, Family Code,
79	79	in a suit affecting the parent-child relationship.
80	80	SECTION 7. Articles 17.292(a) and (g), Code of Criminal
81	81	Procedure, are amended to read as follows:
82	82	(a) At a defendant's appearance before a magistrate after
83	83	arrest for an offense involving family violence or an offense under
84	84	Section 20A.02, 20A.03, 22.011, 22.012, 22.021, or 42.072, Penal
85	85	Code, the magistrate may issue an order for emergency protection on
86	86	the magistrate's own motion or on the request of:
87	87	(1) the victim of the offense;
88	88	(2) the guardian of the victim;
89	89	(3) a peace officer; or
90	90	(4) the attorney representing the state.
91	91	(g) An order for emergency protection issued under this
92	92	article must contain the following statements printed in bold-face
93	93	type or in capital letters:
94	94	"A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED
95	95	BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY
96	96	CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR OR BY BOTH. AN ACT THAT
97	97	RESULTS IN [FAMILY VIOLENCE OR] A SEPARATE [STALKING OR
98	98	TRAFFICKING] OFFENSE MAY BE PROSECUTED AS A SEPARATE MISDEMEANOR OR
99	99	FELONY OFFENSE, AS APPLICABLE, IN ADDITION TO A VIOLATION OF THIS
100	100	ORDER. IF THE ACT IS PROSECUTED AS A SEPARATE FELONY OFFENSE, IT IS
101	101	PUNISHABLE BY CONFINEMENT IN PRISON FOR AT LEAST TWO YEARS. THE
102	102	POSSESSION OF A FIREARM BY A PERSON, OTHER THAN A PEACE OFFICER, AS
103	103	DEFINED BY SECTION 1.07, PENAL CODE, ACTIVELY ENGAGED IN EMPLOYMENT
104	104	AS A SWORN, FULL-TIME PAID EMPLOYEE OF A STATE AGENCY OR POLITICAL
105	105	SUBDIVISION, WHO IS SUBJECT TO THIS ORDER MAY BE PROSECUTED AS A
106	106	SEPARATE OFFENSE PUNISHABLE BY CONFINEMENT OR IMPRISONMENT.
107	107	"NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS
108	108	ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY
109	109	PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS
110	110	VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT
111	111	UNLESS A COURT CHANGES THE ORDER."
112	112	SECTION 8. The heading to Article 56.021, Code of Criminal
113	113	Procedure, is amended to read as follows:
114	114	Art. 56.021. RIGHTS OF VICTIM OF SEXUAL ASSAULT OR ABUSE,
115	115	INDECENT ASSAULT, STALKING, OR TRAFFICKING.
116	116	SECTION 9. Article 56.021(d), Code of Criminal Procedure,
117	117	as added by Chapter 1153 (S.B. 630), Acts of the 84th Legislature,
118	118	Regular Session, 2015, is amended to read as follows:
119	119	(d) This subsection applies only to a victim of an offense
120	120	under Section 20A.02, 20A.03, 21.02, 21.11, 22.011, 22.012, 22.021,
121	121	42.072, or 43.05, Penal Code. In addition to the rights enumerated
122	122	in Article 56.02 and, if applicable, Subsection (a) of this
123	123	article, a victim described by this subsection or a parent or
124	124	guardian of the victim is entitled to the following rights within
125	125	the criminal justice system:
126	126	(1) the right to request that the attorney
127	127	representing the state, subject to the Texas Disciplinary Rules of
128	128	Professional Conduct, file an application for a protective order
129	129	under Article 7A.01 on behalf of the victim;
130	130	(2) the right to be informed:
131	131	(A) that the victim or the victim's parent or
132	132	guardian, as applicable, may file an application for a protective
133	133	order under Article 7A.01;
134	134	(B) of the court in which the application for a
135	135	protective order may be filed; and
136	136	(C) that, on request of the victim or of the
137	137	victim's parent or guardian, as applicable, and subject to the
138	138	Texas Disciplinary Rules of Professional Conduct, the attorney
139	139	representing the state may file the application for a protective
140	140	order;
141	141	(3) if the victim or the victim's parent or guardian,
142	142	as applicable, is present when the defendant is convicted or placed
143	143	on deferred adjudication community supervision, the right to be
144	144	given by the court the information described by Subdivision (2)
145	145	and, if the court has jurisdiction over applications for protective
146	146	orders that are filed under Article 7A.01, the right to file an
147	147	application for a protective order immediately following the
148	148	defendant's conviction or placement on deferred adjudication
149	149	community supervision; and
150	150	(4) if the victim or the victim's parent or guardian,
151	151	as applicable, is not present when the defendant is convicted or
152	152	placed on deferred adjudication community supervision, the right to
153	153	be given by the attorney representing the state the information
154	154	described by Subdivision (2).
155	155	SECTION 10. Section 411.042(b), Government Code, as amended
156	156	by H.B. 2552 and S.B. 1242, Acts of the 85th Legislature, Regular
157	157	Session, 2017, and as effective September 1, 2017, is reenacted and
158	158	amended to read as follows:
159	159	(b) The bureau of identification and records shall:
160	160	(1) procure and file for record photographs, pictures,
161	161	descriptions, fingerprints, measurements, and other pertinent
162	162	information of all persons arrested for or charged with a criminal
163	163	offense or convicted of a criminal offense, regardless of whether
164	164	the conviction is probated;
165	165	(2) collect information concerning the number and
166	166	nature of offenses reported or known to have been committed in the
167	167	state and the legal steps taken in connection with the offenses, and
168	168	other information useful in the study of crime and the
169	169	administration of justice, including information that enables the
170	170	bureau to create a statistical breakdown of:
171	171	(A) offenses in which family violence was
172	172	involved;
173	173	(B) offenses under Sections 22.011 and 22.021,
174	174	Penal Code; and
175	175	(C) offenses under Sections 20A.02, 43.02(a),
176	176	43.02(b), 43.03, and 43.05, Penal Code;
177	177	(3) make ballistic tests of bullets and firearms and
178	178	chemical analyses of bloodstains, cloth, materials, and other
179	179	substances for law enforcement officers of the state;
180	180	(4) cooperate with identification and crime records
181	181	bureaus in other states and the United States Department of
182	182	Justice;
183	183	(5) maintain a list of all previous background checks
184	184	for applicants for any position regulated under Chapter 1702,
185	185	Occupations Code, who have undergone a criminal history background
186	186	check under Section 411.119, if the check indicates a Class B
187	187	misdemeanor or equivalent offense or a greater offense;
188	188	(6) collect information concerning the number and
189	189	nature of protective orders and magistrate's orders of emergency
190	190	protection and all other pertinent information about all persons
191	191	subject to active orders, including pertinent information about
192	192	persons subject to conditions of bond imposed for the protection of
193	193	the victim in any family violence, sexual assault or abuse,
194	194	indecent assault, stalking, or trafficking case. Information in
195	195	the law enforcement information system relating to an active order
196	196	shall include:
197	197	(A) the name, sex, race, date of birth, personal
198	198	descriptors, address, and county of residence of the person to whom
199	199	the order is directed;
200	200	(B) any known identifying number of the person to
201	201	whom the order is directed, including the person's social security
202	202	number or driver's license number;
203	203	(C) the name and county of residence of the
204	204	person protected by the order;
205	205	(D) the residence address and place of employment
206	206	or business of the person protected by the order, unless that
207	207	information is excluded from the order under Article 17.292(e),
208	208	Code of Criminal Procedure;
209	209	(E) the child-care facility or school where a
210	210	child protected by the order normally resides or which the child
211	211	normally attends, unless that information is excluded from the
212	212	order under Article 17.292(e), Code of Criminal Procedure;
213	213	(F) the relationship or former relationship
214	214	between the person who is protected by the order and the person to
215	215	whom the order is directed;
216	216	(G) the conditions of bond imposed on the person
217	217	to whom the order is directed, if any, for the protection of a
218	218	victim in any family violence, sexual assault or abuse, indecent
219	219	assault, stalking, or trafficking case;
220	220	(H) any minimum distance the person subject to
221	221	the order is required to maintain from the protected places or
222	222	persons; and
223	223	(I) the date the order expires;
224	224	(7) grant access to criminal history record
225	225	information in the manner authorized under Subchapter F;
226	226	(8) collect and disseminate information regarding
227	227	offenders with mental impairments in compliance with Chapter 614,
228	228	Health and Safety Code; and
229	229	(9) record data and maintain a state database for a
230	230	computerized criminal history record system and computerized
231	231	juvenile justice information system that serves:
232	232	(A) as the record creation point for criminal
233	233	history record information and juvenile justice information
234	234	maintained by the state; and
235	235	(B) as the control terminal for the entry of
236	236	records, in accordance with federal law and regulations, federal
237	237	executive orders, and federal policy, into the federal database
238	238	maintained by the Federal Bureau of Investigation.
239	239	SECTION 11. Section 411.042(g), Government Code, is amended
240	240	to read as follows:
241	241	(g) The department may adopt reasonable rules under this
242	242	section relating to:
243	243	(1) law enforcement information systems maintained by
244	244	the department;
245	245	(2) the collection, maintenance, and correction of
246	246	records;
247	247	(3) reports of criminal history information submitted
248	248	to the department;
249	249	(4) active protective orders and reporting procedures
250	250	that ensure that information relating to the issuance and dismissal
251	251	of an active protective order is reported to the local law
252	252	enforcement agency at the time of the order's issuance or dismissal
253	253	and entered by the local law enforcement agency in the state's law
254	254	enforcement information system;
255	255	(5) the collection of information described by
256	256	Subsection (h);
257	257	(6) a system for providing criminal history record
258	258	information through the criminal history clearinghouse under
259	259	Section 411.0845; and
260	260	(7) active conditions of bond imposed on a defendant
261	261	for the protection of a victim in any family violence, sexual
262	262	assault or abuse, indecent assault, stalking, or trafficking case,
263	263	and reporting procedures that ensure that information relating to
264	264	the issuance, modification, or removal of the conditions of bond is
265	265	reported, at the time of the issuance, modification, or removal,
266	266	to:
267	267	(A) the victim or, if the victim is deceased, a
268	268	close relative of the victim; and
269	269	(B) the local law enforcement agency for entry by
270	270	the local law enforcement agency in the state's law enforcement
271	271	information system.
272	272	SECTION 12. (a) This section takes effect only if the
273	273	comptroller determines that Sections 14 and 69, H.B. 7, Acts of the
274	274	85th Legislature, Regular Session, 2017, took effect as provided by
275	275	H.B. 7.
276	276	(b) The heading to Section 25.07, Penal Code, as effective
277	277	September 1, 2017, is amended to read as follows:
278	278	Sec. 25.07. VIOLATION OF CERTAIN COURT ORDERS OR CONDITIONS
279	279	OF BOND IN A FAMILY VIOLENCE, CHILD ABUSE OR NEGLECT, SEXUAL ASSAULT
280	280	OR ABUSE, INDECENT ASSAULT, STALKING, OR TRAFFICKING CASE.
281	281	(c) Section 25.07(a), Penal Code, as effective September 1,
282	282	2017, is amended to read as follows:
283	283	(a) A person commits an offense if, in violation of a
284	284	condition of bond set in a family violence, sexual assault or abuse,
285	285	indecent assault, stalking, or trafficking case and related to the
286	286	safety of a victim or the safety of the community, an order issued
287	287	under Chapter 7A, Code of Criminal Procedure, an order issued under
288	288	Article 17.292, Code of Criminal Procedure, an order issued under
289	289	Section 6.504, Family Code, Chapter 83, Family Code, if the
290	290	temporary ex parte order has been served on the person, Chapter 85,
291	291	Family Code, or Subchapter F, Chapter 261, Family Code, or an order
292	292	issued by another jurisdiction as provided by Chapter 88, Family
293	293	Code, the person knowingly or intentionally:
294	294	(1) commits family violence or an act in furtherance
295	295	of an offense under Section 20A.02, 22.011, 22.012, 22.021, or
296	296	42.072;
297	297	(2) communicates:
298	298	(A) directly with a protected individual or a
299	299	member of the family or household in a threatening or harassing
300	300	manner;
301	301	(B) a threat through any person to a protected
302	302	individual or a member of the family or household; or
303	303	(C) in any manner with the protected individual
304	304	or a member of the family or household except through the person's
305	305	attorney or a person appointed by the court, if the violation is of
306	306	an order described by this subsection and the order prohibits any
307	307	communication with a protected individual or a member of the family
308	308	or household;
309	309	(3) goes to or near any of the following places as
310	310	specifically described in the order or condition of bond:
311	311	(A) the residence or place of employment or
312	312	business of a protected individual or a member of the family or
313	313	household; or
314	314	(B) any child care facility, residence, or school
315	315	where a child protected by the order or condition of bond normally
316	316	resides or attends;
317	317	(4) possesses a firearm;
318	318	(5) harms, threatens, or interferes with the care,
319	319	custody, or control of a pet, companion animal, or assistance
320	320	animal that is possessed by a person protected by the order or
321	321	condition of bond; or
322	322	(6) removes, attempts to remove, or otherwise tampers
323	323	with the normal functioning of a global positioning monitoring
324	324	system.
325	325	(d) The heading to Section 25.072, Penal Code, as effective
326	326	September 1, 2017, is amended to read as follows:
327	327	Sec. 25.072. REPEATED VIOLATION OF CERTAIN COURT ORDERS OR
328	328	CONDITIONS OF BOND IN FAMILY VIOLENCE, CHILD ABUSE OR NEGLECT,
329	329	SEXUAL ASSAULT OR ABUSE, INDECENT ASSAULT, STALKING, OR TRAFFICKING
330	330	CASE.
331	331	(e) Sections 25.07 and 25.072, Penal Code, as amended by
332	332	this section, apply only to an offense committed on or after the
333	333	effective date of this Act. An offense committed before the
334	334	effective date of this Act is governed by the law in effect when the
335	335	offense was committed, and the former law is continued in effect for
336	336	that purpose. For purposes of this subsection, an offense was
337	337	committed before the effective date of this Act if any element of
338	338	the offense occurred before that date.
339	339	SECTION 13. (a) This section takes effect only if the
340	340	comptroller determines that Sections 14 and 69, H.B. 7, Acts of the
341	341	85th Legislature, Regular Session, 2017, did not take effect as
342	342	provided by H.B. 7.
343	343	(b) The heading to Section 25.07, Penal Code, is amended to
344	344	read as follows:
345	345	Sec. 25.07. VIOLATION OF CERTAIN COURT ORDERS OR CONDITIONS
346	346	OF BOND IN A FAMILY VIOLENCE, SEXUAL ASSAULT OR ABUSE, INDECENT
347	347	ASSAULT, STALKING, OR TRAFFICKING CASE.
348	348	(c) Section 25.07(a), Penal Code, is amended to read as
349	349	follows:
350	350	(a) A person commits an offense if, in violation of a
351	351	condition of bond set in a family violence, sexual assault or abuse,
352	352	indecent assault, stalking, or trafficking case and related to the
353	353	safety of a victim or the safety of the community, an order issued
354	354	under Chapter 7A, Code of Criminal Procedure, an order issued under
355	355	Article 17.292, Code of Criminal Procedure, an order issued under
356	356	Section 6.504, Family Code, Chapter 83, Family Code, if the
357	357	temporary ex parte order has been served on the person, or Chapter
358	358	85, Family Code, or an order issued by another jurisdiction as
359	359	provided by Chapter 88, Family Code, the person knowingly or
360	360	intentionally:
361	361	(1) commits family violence or an act in furtherance
362	362	of an offense under Section 20A.02, 22.011, 22.012, 22.021, or
363	363	42.072;
364	364	(2) communicates:
365	365	(A) directly with a protected individual or a
366	366	member of the family or household in a threatening or harassing
367	367	manner;
368	368	(B) a threat through any person to a protected
369	369	individual or a member of the family or household; or
370	370	(C) in any manner with the protected individual
371	371	or a member of the family or household except through the person's
372	372	attorney or a person appointed by the court, if the violation is of
373	373	an order described by this subsection and the order prohibits any
374	374	communication with a protected individual or a member of the family
375	375	or household;
376	376	(3) goes to or near any of the following places as
377	377	specifically described in the order or condition of bond:
378	378	(A) the residence or place of employment or
379	379	business of a protected individual or a member of the family or
380	380	household; or
381	381	(B) any child care facility, residence, or school
382	382	where a child protected by the order or condition of bond normally
383	383	resides or attends;
384	384	(4) possesses a firearm;
385	385	(5) harms, threatens, or interferes with the care,
386	386	custody, or control of a pet, companion animal, or assistance
387	387	animal that is possessed by a person protected by the order or
388	388	condition of bond; or
389	389	(6) removes, attempts to remove, or otherwise tampers
390	390	with the normal functioning of a global positioning monitoring
391	391	system.
392	392	(d) The heading to Section 25.072, Penal Code, is amended to
393	393	read as follows:
394	394	Sec. 25.072. REPEATED VIOLATION OF CERTAIN COURT ORDERS OR
395	395	CONDITIONS OF BOND IN FAMILY VIOLENCE, SEXUAL ASSAULT OR ABUSE,
396	396	INDECENT ASSAULT, STALKING, OR TRAFFICKING CASE.
397	397	(e) Sections 25.07 and 25.072, Penal Code, as amended by
398	398	this section, apply only to an offense committed on or after the
399	399	effective date of this Act. An offense committed before the
400	400	effective date of this Act is governed by the law in effect when the
401	401	offense was committed, and the former law is continued in effect for
402	402	that purpose. For purposes of this subsection, an offense was
403	403	committed before the effective date of this Act if any element of
404	404	the offense occurred before that date.
405	405	SECTION 14. Section 25.07(b), Penal Code, is amended by
406	406	adding Subdivision (8) to read as follows:
407	407	(8) "Indecent assault" means any conduct that
408	408	constitutes an offense under Section 22.012.
409	409	SECTION 15. Chapter 7A, Code of Criminal Procedure, as
410	410	amended by this Act, and Article 17.292, Code of Criminal
411	411	Procedure, as amended by this Act, apply only to a protective order
412	412	or magistrate's order for emergency protection that is issued on or
413	413	after the effective date of this Act. An order issued before the
414	414	effective date of this Act is governed by the law in effect on the
415	415	date the order is issued, and the former law is continued in effect
416	416	for that purpose.
417	417	SECTION 16. Article 56.021(d), Code of Criminal Procedure,
418	418	as amended by this Act, applies to a victim of criminally injurious
419	419	conduct for which a judgment of conviction is entered or a grant of
420	420	deferred adjudication is made on or after the effective date of this
421	421	Act, regardless of whether the criminally injurious conduct
422	422	occurred before, on, or after the effective date of this Act.
423	423	SECTION 17. Not later than the 30th day after the effective
424	424	date of this section, the comptroller shall make the determination
425	425	described by Sections 12(a) and 13(a) of this Act.
426	426	SECTION 18. (a) Except as provided by Subsection (b) of
427	427	this section, this Act takes effect January 1, 2018.
428	428	(b) Section 17 of this Act takes effect immediately if this
429	429	Act receives a vote of two-thirds of all the members elected to each
430	430	house, as provided by Section 39, Article III, Texas Constitution.
431	431	If this Act does not receive the vote necessary for immediate
432	432	effect, Section 17 of this Act takes effect on the 91st day after
433	433	the last day of the legislative session.