By: Schaefer H.B. No. 2198
A BILL TO BE ENTITLED
AN ACT
relating to the prosecution and punishment for certain offenses
regarding the possession or promotion of lewd material depicting a
child; creating criminal offenses; increasing criminal penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 43.25, Penal Code, is amended by
amending Subsection (g) to read as follows:
(g) When it becomes necessary for the purposes of this
section, [or] Section 43.26, Section 43.261, or Section 43.262 to
determine whether a child who participated in sexual conduct was
younger than 18 years of age, the court or jury may make this
determination by any of the following methods:
(1) personal inspection of the child;
(2) inspection of the photograph or motion picture
that shows the child engaging in the sexual performance;
(3) oral testimony by a witness to the sexual
performance as to the age of the child based on the child's
appearance at the time;
(4) expert medical testimony based on the appearance
of the child engaging in the sexual performance; or
(5) any other method authorized by law or by the rules
of evidence at common law.
SECTION 2. Section 43.26, Penal Code, is amended by
amending Subsection (h) to read as follows:
(h) It is a defense to prosecution under Subsection (a) or
(e) that the actor is a law enforcement officer or a school
administrator who:
(1) possessed or accessed the visual material in good
faith solely as a result of an allegation of a violation of Section
43.261 or Section 43.262;
(2) allowed other law enforcement or school
administrative personnel to possess or access the material only as
appropriate based on the allegation described by Subdivision (1);
and
(3) took reasonable steps to destroy the material
within an appropriate period following the allegation described by
Subdivision (1).
SECTION 3. Section 43.262, Penal Code, is amended by
amending Subsections (a) and (b), and adding Subsections (e)
through (i) to read as follows:
(a) In this section:
(1) "Promote", "sexual performance", "performance",
and "sexual conduct" have the meanings assigned by Section 43.25.
(2) "Visual material" has the meaning assigned by
Section 43.26.
(b) A person commits an offense if the person knowingly
possesses, accesses with intent to view, or promotes visual
material that[:
(1) ]depicts the lewd exhibition of the genitals, [or]
pubic area, or buttocks of an unclothed, partially clothed, or
clothed child who is younger than 18 years of age at the time the
visual material was created.[; and
(2) appeals to the prurient interest in sex; and
(3) has no serious literary, artistic, political, or
scientific value.]
(e) It is a defense to prosecution under this section that
the actor is a law enforcement officer or a school administrator
who:
(1) possessed or accessed the visual material in good
faith solely as a result of an allegation of a violation of Section
43.262;
(2) allowed other law enforcement or school
administrative personnel to possess or access the material only as
appropriate based on the allegation described by Subdivision (1);
and
(3) took reasonable steps to destroy the material
within an appropriate period following the allegation described by
Subdivision (1).
(f) It is an affirmative defense to a prosecution under this
section that:
(1) the defendant was the spouse of the child at the
time of the offense; or
(2) the defendant is not more than two years older than
the child.
(g) When it becomes necessary for the purposes of this
section to determine whether visual material depicts the lewd
exhibition of the genitals, pubic area, or buttocks of an
unclothed, partially clothed, or clothed child who is younger than
18 years of age at the time the visual material was created, the
court or jury may make this determination by any of the following
methods; whether:
(1) the focal point of the visual depiction is the
child's unclothed, partially clothed, or clothed genitalia or
buttocks;
(2) the place or pose of the child depicted in the
visual material is sexually suggestive;
(3) the child is depicted in an unnatural pose or
inappropriate attire;
(4) the child is fully or partially clothed or nude;
(5) the visual material suggests sexual coyness or a
willingness to engage in sexual activity;
(6) the visual material is intended or designed to
elicit a sexual response in the viewer; or
(7) by any other method authorized by law or by the
rules of evidence at common law.
(h) When it becomes necessary for the purposes of this
section to determine whether a child who participated in sexual
conduct, sexual performance, or lewd exhibition of the unclothed,
partially clothed, or clothed genitals or buttocks was younger than
18 years of age, the court or jury may make this determination by
any of the following methods:
(1) personal inspection of the child;
(2) inspection of the visual material that shows the
child engaging in sexual performance, sexual conduct or lewd
exhibition of the unclothed, partially clothed, or clothed genitals
or pubic area or buttocks of the child;
(3) oral testimony by a witness to the sexual
performance, sexual conduct, or lewd exhibition of the unclothed,
partially clothed, or clothed genitals or pubic area or buttocks of
the child as to the age of the child based on the child's appearance
at the time the visual material was created;
(4) expert medical testimony based on the appearance
of the child engaging in the sexual performance, sexual conduct or
lewd exhibition of the unclothed, partially clothed, or clothed
genitals or pubic area or buttocks of the child; or
(5) any other method authorized by law or by the rules
of evidence at common law.
(i) Conduct under this section constitutes an offense
regardless of whether the actor knows the age of the victim at the
time of the offense.
SECTION 4. Subchapter B, Chapter 43, Penal Code, is amended
by adding Section 43.28 to read as follows:
Section 43.28. NO MISTAKE OF LAW DEFENSE. Notwithstanding
any other law, including Section 8.03, Penal Code, the following
shall not be a defense to prosecution under this subchapter:
(1) ignorance or mistake of law;
(2) a defendant's belief that any of the requirements
of this subchapter are unconstitutional or were unconstitutional;
(3) a defendant's reliance on any court decision,
including a decision of the United States Supreme Court, that has
been overruled on appeal or by a subsequent court, even if that
court decision had not been overruled when the defendant engaged in
the conduct that violates this subchapter; or
(4) a defendant's reliance on any ruling or opinion
issued by a federal district court or the United States Court of
Appeals for the Fifth Circuit, which do not bind the state
judiciary.
SECTION 5. Subchapter B, Chapter 43, Penal Code, is amended
by adding Section 43.29 to read as follows:
Section 43.29. SEVERABILITY. (a) Mindful of Leavitt v.
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
the severability of a state statute the United States Supreme Court
held that an explicit statement of legislative intent is
controlling, it is the intent of the legislature that every
provision, section, subsection, sentence, clause, phrase, or word
in this subchapter, and every application of the provisions in this
subchapter, are severable from each other.
(b) If any application of any statutory provision in this
subchapter to any person, group of persons, or circumstances is
found by a court to be invalid or unconstitutional, the remaining
applications of that statutory provision to all other persons and
circumstances shall be severed and may not be affected. All
constitutionally valid applications of this subchapter shall be
severed from any applications that a court finds to be invalid or
unconstitutional, leaving the valid and constitutional
applications in force, because it is the legislature's intent and
priority that the valid and constitutional applications of each
statutory provision be allowed to stand alone. Even if a reviewing
court finds a substantial number of a statute's applications under
this subchapter to be unconstitutional, judged in relation to the
statute's plainly legitimate sweep, the applications that do not
presently violate the Constitution shall be severed from the
remaining applications and shall remain in force, and shall be
treated as if the legislature had enacted a statute limited to the
persons, group of persons, or circumstances for which the statute's
application does not violate the Constitution.
(c) The legislature further declares that it would have
enacted this subchapter, and each provision, section, subsection,
sentence, clause, phrase, or word, and all constitutional
applications of this subchapter, irrespective of the fact that any
provision, section, subsection, sentence, clause, phrase, or word,
or applications of this subchapter, were to be declared
unconstitutional.
(d) If any statutory provision of this subchapter is found
by any court to be unconstitutionally vague, then the applications
of that statutory provision that do not present constitutional
vagueness problems shall be severed and remain in force.
(e) No court may decline to enforce the severability
requirements of Subsections (a), (b), (c), and (d) on the ground
that severance would rewrite the statute or involve the court in
legislative or lawmaking activity. A court that declines to
enforce or enjoins a state official from enforcing a statutory
provision does not rewrite a statute, as the statute continues to
contain the same words as before the court's decision. A judicial
injunction or declaration of unconstitutionality:
(1) is nothing more than an edict prohibiting
enforcement that may subsequently be vacated by a later court if
that court has a different understanding of the requirements of the
Texas Constitution or United States Constitution;
(2) is not a formal amendment of the language in a
statute; and
(3) no more rewrites a statute than a decision by the
executive not to enforce a duly enacted statute in a limited and
defined set of circumstances.
(f) If any federal or state court declares unconstitutional
or enjoins the enforcement of a provision in this subchapter and
fails to enforce the severability requirements of Subsections (a),
(b), (c), (d), and (e), for any reason whatsoever, the Attorney
General shall:
(1) adopt rules that enforce the requirements
described by this subchapter to the maximum possible extent while
avoiding the constitutional problems or other problems identified
by the federal or state court; and
(2) issue notice of those rules, not later than the
30th day after the date of the court ruling.
(g) If the Attorney General fails to adopt the rules and
issue notice under Subsection (f), a person may petition for a writ
of mandamus requiring the executive commissioner to adopt the rules
and issue notice.
SECTION 6. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2021.