88R24392 MZM-F
By: Schatzline, Leo-Wilson, et al. H.B. No. 3357
Substitute the following for H.B. No. 3357:
By: Vasut C.S.H.B. No. 3357
A BILL TO BE ENTITLED
AN ACT
relating to civil liability for obscenity.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 4, Civil Practice and Remedies Code, is
amended by adding Chapter 98C to read as follows:
CHAPTER 98C. LIABILITY FOR OBSCENITY
Sec. 98C.001. DEFINITIONS. In this chapter:
(1) "Commercial entity" includes a corporation,
limited liability company, partnership, limited partnership, sole
proprietorship, or other legally recognized business entity.
(2) "Harmful material" has the meaning assigned by
Section 43.24, Penal Code.
(3) "Minor" has the meaning assigned by Section 43.24,
Penal Code.
(4) "News-gathering organization" includes:
(A) an employee of a newspaper, news publication,
or news source, printed or on an online or mobile platform, of
current news and public interest, who is acting within the course
and scope of that employment and can provide documentation of that
employment with the newspaper, news publication, or news source;
and
(B) an employee of a radio broadcast station,
television broadcast station, cable television operator, or wire
service who is acting within the course and scope of that employment
and can provide documentation of that employment.
(5) "Obscenity" means conduct that constitutes an
offense under Subchapter B, Chapter 43, Penal Code.
Sec. 98C.002. LIABILITY FOR OBSCENITY. A defendant is
liable, as provided by this chapter, to a person harmed for damages
arising from obscenity if the defendant:
(1) engages in the obscenity; or
(2) knowingly or intentionally benefits from
participating in an entity that engages in the obscenity.
Sec. 98C.003. COMMERCIAL ENTITY LIABILITY. A commercial
entity is liable, as provided by this chapter, to a person harmed
for damages arising from the distribution, transmission, or display
of harmful material to a minor if, knowing the character and content
of the material, the entity knowingly or intentionally benefits
from participating in the distribution, transmission, or display of
harmful material to a minor by facilitating, aiding, encouraging,
or contributing to the distribution, transmission, or display in a
manner that:
(1) is readily accessible to minors; or
(2) includes a minor's visual image, audio voice, or
participation in any manner.
Sec. 98C.004. SHAREHOLDER AND MEMBER LIABILITY. (a) This
section applies to a legal entity governed by Title 2, 3, or 7,
Business Organizations Code.
(b) Notwithstanding any provision of the Business
Organizations Code, a shareholder or member of a legal entity
described by Subsection (a) that is liable under this chapter is
jointly and severally liable with the entity to the person harmed by
the obscenity if the person demonstrates that the shareholder or
member caused the entity to be used for the purpose of engaging in
obscenity and that the conduct was for the direct personal benefit
of the shareholder or member.
Sec. 98C.005. PROHIBITED DEFENSES. It is not a defense to
liability under this chapter that the defendant:
(1) has been acquitted or has not been prosecuted or
convicted under Subchapter B, Chapter 43, Penal Code;
(2) has been convicted of a different offense or a
different type or class of offense for the conduct that is alleged
to give rise to liability under this chapter;
(3) claims ignorance or mistake of law;
(4) has a belief that the requirements of this chapter
are unconstitutional or were unconstitutional;
(5) relies on any court decision 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 chapter; or
(6) relies on any state or federal court decision that
is not binding on the court in which the action has been brought.
Sec. 98C.006. DAMAGES. (a) A court shall award a claimant
who prevails in an action under this chapter:
(1) actual damages, including damages for mental
anguish even if an injury other than mental anguish is not shown;
(2) court costs; and
(3) reasonable attorney's fees.
(b) In addition to an award under Subsection (a), a claimant
who prevails in an action under this chapter may recover exemplary
damages.
Sec. 98C.007. CAUSE OF ACTION CUMULATIVE. (a) The cause of
action created by this chapter is cumulative of any other remedy
provided by common law or statute.
(b) Each occurrence of obscenity that harms a person,
regardless of whether the occurrence is part of a pattern of
conduct, gives rise to a separate claim for civil liability under
this chapter.
Sec. 98C.008. JOINT AND SEVERAL LIABILITY. A person who
engages in conduct described by Section 98C.002 or 98C.003 and is
found liable under this chapter or other law for any amount of
damages arising from that conduct is jointly and severally liable
with any other defendant for the entire amount of damages arising
from that conduct.
Sec. 98C.009. LIBERAL CONSTRUCTION AND APPLICATION. (a)
This chapter shall be liberally construed and applied to promote
its underlying purpose to protect persons from obscenity and
provide adequate remedies to those who are harmed by obscenity.
(b) This chapter may not be construed to:
(1) wholly or partly repeal, either expressly or by
implication, any statute or part of a statute that prohibits
obscenity;
(2) restrict a political subdivision from regulating
or prohibiting obscenity in a manner that is at least as stringent
as the laws of this state; or
(3) legalize any conduct prohibited by this chapter or
Subchapter B, Chapter 43, Penal Code.
(c) This chapter does not apply to a bona fide news or public
interest broadcast, website video, report, or event and may not be
construed to affect the rights of a news-gathering organization.
(d) An Internet service provider, or its affiliates or
subsidiaries, a search engine, or a cloud service provider may not
be held to have violated this chapter solely for providing access or
connection to or from a website or other information or content on
the Internet or on a facility, system, or network not under that
provider's control, including transmission, downloading,
intermediate storage, access software, or other services to the
extent the provider or search engine is not responsible for the
creation of the content that constitutes the obscenity or harmful
material.
SECTION 2. (a) Mindful of Leavitt v. Jane L., 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 Act, and every
application of the provisions in this Act, is severable from each
other.
(b) If any application of any statutory provision in this
Act 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 Act shall be severed from any
applications that a court finds to be unconstitutional or otherwise
invalid, leaving the valid applications in force, because it is the
legislature's intent and priority that the valid applications be
allowed to stand alone.
(c) Even if a reviewing court finds a substantial number of
a statute's applications under this Act to be unconstitutional,
judged in relation to this Act's plainly legitimate sweep, the
applications that do not presently violate the United States
Constitution or Texas 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, groups of persons, or circumstances for which the
statute's application does not violate the United States
Constitution or Texas Constitution.
(d) The legislature further declares that it would have
enacted this Act, and each provision, section, subsection,
sentence, clause, phrase, or word, and all constitutional
applications of this Act, irrespective of the fact that any
provision, section, subsection, sentence, clause, phrase, or word,
or applications of this Act, were to be declared unconstitutional.
(e) If any provision of this Act is found by any court to be
unconstitutionally vague, the applications of that provision that
do not present constitutional vagueness problems shall be severed
and remain in force.
(f) No court may decline to enforce the severability
requirements of Subsections (a), (b), (c), (d), and (e) of this
section 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
United States Constitution or Texas 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.
(g) If any federal or state court declares unconstitutional
or enjoins the enforcement of a provision in this Act and fails to
enforce the severability requirements of Subsections (a), (b), (c),
(d), (e), and (f) of this section, for any reason whatsoever, the
attorney general shall:
(1) adopt rules that enforce the requirements
described by this Act 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.
(h) If the attorney general fails to adopt the rules and
issue notice under Subsection (g) of this section, a person may
petition for a writ of mandamus requiring the attorney general to
adopt the rules and issue notice.
SECTION 3. The change in law made by this Act applies only
to a cause of action that accrues on or after the effective date of
this Act.
SECTION 4. This Act takes effect September 1, 2023.