Texas 2021 - 87th Regular

Texas House Bill HB2198 Compare Versions

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

Old	New	Differences
1	1	By: Schaefer H.B. No. 2198
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to the prosecution and punishment for certain offenses
7	7	regarding the possession or promotion of lewd material depicting a
8	8	child; creating criminal offenses; increasing criminal penalties.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 43.25, Penal Code, is amended by
11	11	amending Subsection (g) to read as follows:
12	12	(g) When it becomes necessary for the purposes of this
13	13	section, [or] Section 43.26, Section 43.261, or Section 43.262 to
14	14	determine whether a child who participated in sexual conduct was
15	15	younger than 18 years of age, the court or jury may make this
16	16	determination by any of the following methods:
17	17	(1) personal inspection of the child;
18	18	(2) inspection of the photograph or motion picture
19	19	that shows the child engaging in the sexual performance;
20	20	(3) oral testimony by a witness to the sexual
21	21	performance as to the age of the child based on the child's
22	22	appearance at the time;
23	23	(4) expert medical testimony based on the appearance
24	24	of the child engaging in the sexual performance; or
25	25	(5) any other method authorized by law or by the rules
26	26	of evidence at common law.
27	27	SECTION 2. Section 43.26, Penal Code, is amended by
28	28	amending Subsection (h) to read as follows:
29	29	(h) It is a defense to prosecution under Subsection (a) or
30	30	(e) that the actor is a law enforcement officer or a school
31	31	administrator who:
32	32	(1) possessed or accessed the visual material in good
33	33	faith solely as a result of an allegation of a violation of Section
34	34	43.261 or Section 43.262;
35	35	(2) allowed other law enforcement or school
36	36	administrative personnel to possess or access the material only as
37	37	appropriate based on the allegation described by Subdivision (1);
38	38	and
39	39	(3) took reasonable steps to destroy the material
40	40	within an appropriate period following the allegation described by
41	41	Subdivision (1).
42	42	SECTION 3. Section 43.262, Penal Code, is amended by
43	43	amending Subsections (a) and (b), and adding Subsections (e)
44	44	through (i) to read as follows:
45	45	(a) In this section:
46	46	(1) "Promote", "sexual performance", "performance",
47	47	and "sexual conduct" have the meanings assigned by Section 43.25.
48	48	(2) "Visual material" has the meaning assigned by
49	49	Section 43.26.
50	50	(b) A person commits an offense if the person knowingly
51	51	possesses, accesses with intent to view, or promotes visual
52	52	material that[:
53	53	(1) ]depicts the lewd exhibition of the genitals, [or]
54	54	pubic area, or buttocks of an unclothed, partially clothed, or
55	55	clothed child who is younger than 18 years of age at the time the
56	56	visual material was created.[; and
57	57	(2) appeals to the prurient interest in sex; and
58	58	(3) has no serious literary, artistic, political, or
59	59	scientific value.]
60	60	(e) It is a defense to prosecution under this section that
61	61	the actor is a law enforcement officer or a school administrator
62	62	who:
63	63	(1) possessed or accessed the visual material in good
64	64	faith solely as a result of an allegation of a violation of Section
65	65	43.262;
66	66	(2) allowed other law enforcement or school
67	67	administrative personnel to possess or access the material only as
68	68	appropriate based on the allegation described by Subdivision (1);
69	69	and
70	70	(3) took reasonable steps to destroy the material
71	71	within an appropriate period following the allegation described by
72	72	Subdivision (1).
73	73	(f) It is an affirmative defense to a prosecution under this
74	74	section that:
75	75	(1) the defendant was the spouse of the child at the
76	76	time of the offense; or
77	77	(2) the defendant is not more than two years older than
78	78	the child.
79	79	(g) When it becomes necessary for the purposes of this
80	80	section to determine whether visual material depicts the lewd
81	81	exhibition of the genitals, pubic area, or buttocks of an
82	82	unclothed, partially clothed, or clothed child who is younger than
83	83	18 years of age at the time the visual material was created, the
84	84	court or jury may make this determination by any of the following
85	85	methods; whether:
86	86	(1) the focal point of the visual depiction is the
87	87	child's unclothed, partially clothed, or clothed genitalia or
88	88	buttocks;
89	89	(2) the place or pose of the child depicted in the
90	90	visual material is sexually suggestive;
91	91	(3) the child is depicted in an unnatural pose or
92	92	inappropriate attire;
93	93	(4) the child is fully or partially clothed or nude;
94	94	(5) the visual material suggests sexual coyness or a
95	95	willingness to engage in sexual activity;
96	96	(6) the visual material is intended or designed to
97	97	elicit a sexual response in the viewer; or
98	98	(7) by any other method authorized by law or by the
99	99	rules of evidence at common law.
100	100	(h) When it becomes necessary for the purposes of this
101	101	section to determine whether a child who participated in sexual
102	102	conduct, sexual performance, or lewd exhibition of the unclothed,
103	103	partially clothed, or clothed genitals or buttocks was younger than
104	104	18 years of age, the court or jury may make this determination by
105	105	any of the following methods:
106	106	(1) personal inspection of the child;
107	107	(2) inspection of the visual material that shows the
108	108	child engaging in sexual performance, sexual conduct or lewd
109	109	exhibition of the unclothed, partially clothed, or clothed genitals
110	110	or pubic area or buttocks of the child;
111	111	(3) oral testimony by a witness to the sexual
112	112	performance, sexual conduct, or lewd exhibition of the unclothed,
113	113	partially clothed, or clothed genitals or pubic area or buttocks of
114	114	the child as to the age of the child based on the child's appearance
115	115	at the time the visual material was created;
116	116	(4) expert medical testimony based on the appearance
117	117	of the child engaging in the sexual performance, sexual conduct or
118	118	lewd exhibition of the unclothed, partially clothed, or clothed
119	119	genitals or pubic area or buttocks of the child; or
120	120	(5) any other method authorized by law or by the rules
121	121	of evidence at common law.
122	122	(i) Conduct under this section constitutes an offense
123	123	regardless of whether the actor knows the age of the victim at the
124	124	time of the offense.
125	125	SECTION 4. Subchapter B, Chapter 43, Penal Code, is amended
126	126	by adding Section 43.28 to read as follows:
127	127	Section 43.28. NO MISTAKE OF LAW DEFENSE. Notwithstanding
128	128	any other law, including Section 8.03, Penal Code, the following
129	129	shall not be a defense to prosecution under this subchapter:
130	130	(1) ignorance or mistake of law;
131	131	(2) a defendant's belief that any of the requirements
132	132	of this subchapter are unconstitutional or were unconstitutional;
133	133	(3) a defendant's reliance on any court decision,
134	134	including a decision of the United States Supreme Court, that has
135	135	been overruled on appeal or by a subsequent court, even if that
136	136	court decision had not been overruled when the defendant engaged in
137	137	the conduct that violates this subchapter; or
138	138	(4) a defendant's reliance on any ruling or opinion
139	139	issued by a federal district court or the United States Court of
140	140	Appeals for the Fifth Circuit, which do not bind the state
141	141	judiciary.
142	142	SECTION 5. Subchapter B, Chapter 43, Penal Code, is amended
143	143	by adding Section 43.29 to read as follows:
144	144	Section 43.29. SEVERABILITY. (a) Mindful of Leavitt v.
145	145	Jane L., 518 U.S. 137 (1996), in which in the context of determining , 518 U.S. 137 (1996), in which in the context of determining
146	146	the severability of a state statute the United States Supreme Court
147	147	held that an explicit statement of legislative intent is
148	148	controlling, it is the intent of the legislature that every
149	149	provision, section, subsection, sentence, clause, phrase, or word
150	150	in this subchapter, and every application of the provisions in this
151	151	subchapter, are severable from each other.
152	152	(b) If any application of any statutory provision in this
153	153	subchapter to any person, group of persons, or circumstances is
154	154	found by a court to be invalid or unconstitutional, the remaining
155	155	applications of that statutory provision to all other persons and
156	156	circumstances shall be severed and may not be affected. All
157	157	constitutionally valid applications of this subchapter shall be
158	158	severed from any applications that a court finds to be invalid or
159	159	unconstitutional, leaving the valid and constitutional
160	160	applications in force, because it is the legislature's intent and
161	161	priority that the valid and constitutional applications of each
162	162	statutory provision be allowed to stand alone. Even if a reviewing
163	163	court finds a substantial number of a statute's applications under
164	164	this subchapter to be unconstitutional, judged in relation to the
165	165	statute's plainly legitimate sweep, the applications that do not
166	166	presently violate the Constitution shall be severed from the
167	167	remaining applications and shall remain in force, and shall be
168	168	treated as if the legislature had enacted a statute limited to the
169	169	persons, group of persons, or circumstances for which the statute's
170	170	application does not violate the Constitution.
171	171	(c) The legislature further declares that it would have
172	172	enacted this subchapter, and each provision, section, subsection,
173	173	sentence, clause, phrase, or word, and all constitutional
174	174	applications of this subchapter, irrespective of the fact that any
175	175	provision, section, subsection, sentence, clause, phrase, or word,
176	176	or applications of this subchapter, were to be declared
177	177	unconstitutional.
178	178	(d) If any statutory provision of this subchapter is found
179	179	by any court to be unconstitutionally vague, then the applications
180	180	of that statutory provision that do not present constitutional
181	181	vagueness problems shall be severed and remain in force.
182	182	(e) No court may decline to enforce the severability
183	183	requirements of Subsections (a), (b), (c), and (d) on the ground
184	184	that severance would rewrite the statute or involve the court in
185	185	legislative or lawmaking activity. A court that declines to
186	186	enforce or enjoins a state official from enforcing a statutory
187	187	provision does not rewrite a statute, as the statute continues to
188	188	contain the same words as before the court's decision. A judicial
189	189	injunction or declaration of unconstitutionality:
190	190	(1) is nothing more than an edict prohibiting
191	191	enforcement that may subsequently be vacated by a later court if
192	192	that court has a different understanding of the requirements of the
193	193	Texas Constitution or United States Constitution;
194	194	(2) is not a formal amendment of the language in a
195	195	statute; and
196	196	(3) no more rewrites a statute than a decision by the
197	197	executive not to enforce a duly enacted statute in a limited and
198	198	defined set of circumstances.
199	199	(f) If any federal or state court declares unconstitutional
200	200	or enjoins the enforcement of a provision in this subchapter and
201	201	fails to enforce the severability requirements of Subsections (a),
202	202	(b), (c), (d), and (e), for any reason whatsoever, the Attorney
203	203	General shall:
204	204	(1) adopt rules that enforce the requirements
205	205	described by this subchapter to the maximum possible extent while
206	206	avoiding the constitutional problems or other problems identified
207	207	by the federal or state court; and
208	208	(2) issue notice of those rules, not later than the
209	209	30th day after the date of the court ruling.
210	210	(g) If the Attorney General fails to adopt the rules and
211	211	issue notice under Subsection (f), a person may petition for a writ
212	212	of mandamus requiring the executive commissioner to adopt the rules
213	213	and issue notice.
214	214	SECTION 6. This Act takes effect immediately if it receives
215	215	a vote of two-thirds of all the members elected to each house, as
216	216	provided by Section 39, Article III, Texas Constitution. If this
217	217	Act does not receive the vote necessary for immediate effect, this
218	218	Act takes effect September 1, 2021.