Texas 2023 - 88th Regular

Texas House Bill HB3357 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	88R24392 MZM-F
2	2	By: Schatzline, Leo-Wilson, et al. H.B. No. 3357
3	3	Substitute the following for H.B. No. 3357:
4	4	By: Vasut C.S.H.B. No. 3357
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to civil liability for obscenity.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Title 4, Civil Practice and Remedies Code, is
12	12	amended by adding Chapter 98C to read as follows:
13	13	CHAPTER 98C. LIABILITY FOR OBSCENITY
14	14	Sec. 98C.001. DEFINITIONS. In this chapter:
15	15	(1) "Commercial entity" includes a corporation,
16	16	limited liability company, partnership, limited partnership, sole
17	17	proprietorship, or other legally recognized business entity.
18	18	(2) "Harmful material" has the meaning assigned by
19	19	Section 43.24, Penal Code.
20	20	(3) "Minor" has the meaning assigned by Section 43.24,
21	21	Penal Code.
22	22	(4) "News-gathering organization" includes:
23	23	(A) an employee of a newspaper, news publication,
24	24	or news source, printed or on an online or mobile platform, of
25	25	current news and public interest, who is acting within the course
26	26	and scope of that employment and can provide documentation of that
27	27	employment with the newspaper, news publication, or news source;
28	28	and
29	29	(B) an employee of a radio broadcast station,
30	30	television broadcast station, cable television operator, or wire
31	31	service who is acting within the course and scope of that employment
32	32	and can provide documentation of that employment.
33	33	(5) "Obscenity" means conduct that constitutes an
34	34	offense under Subchapter B, Chapter 43, Penal Code.
35	35	Sec. 98C.002. LIABILITY FOR OBSCENITY. A defendant is
36	36	liable, as provided by this chapter, to a person harmed for damages
37	37	arising from obscenity if the defendant:
38	38	(1) engages in the obscenity; or
39	39	(2) knowingly or intentionally benefits from
40	40	participating in an entity that engages in the obscenity.
41	41	Sec. 98C.003. COMMERCIAL ENTITY LIABILITY. A commercial
42	42	entity is liable, as provided by this chapter, to a person harmed
43	43	for damages arising from the distribution, transmission, or display
44	44	of harmful material to a minor if, knowing the character and content
45	45	of the material, the entity knowingly or intentionally benefits
46	46	from participating in the distribution, transmission, or display of
47	47	harmful material to a minor by facilitating, aiding, encouraging,
48	48	or contributing to the distribution, transmission, or display in a
49	49	manner that:
50	50	(1) is readily accessible to minors; or
51	51	(2) includes a minor's visual image, audio voice, or
52	52	participation in any manner.
53	53	Sec. 98C.004. SHAREHOLDER AND MEMBER LIABILITY. (a) This
54	54	section applies to a legal entity governed by Title 2, 3, or 7,
55	55	Business Organizations Code.
56	56	(b) Notwithstanding any provision of the Business
57	57	Organizations Code, a shareholder or member of a legal entity
58	58	described by Subsection (a) that is liable under this chapter is
59	59	jointly and severally liable with the entity to the person harmed by
60	60	the obscenity if the person demonstrates that the shareholder or
61	61	member caused the entity to be used for the purpose of engaging in
62	62	obscenity and that the conduct was for the direct personal benefit
63	63	of the shareholder or member.
64	64	Sec. 98C.005. PROHIBITED DEFENSES. It is not a defense to
65	65	liability under this chapter that the defendant:
66	66	(1) has been acquitted or has not been prosecuted or
67	67	convicted under Subchapter B, Chapter 43, Penal Code;
68	68	(2) has been convicted of a different offense or a
69	69	different type or class of offense for the conduct that is alleged
70	70	to give rise to liability under this chapter;
71	71	(3) claims ignorance or mistake of law;
72	72	(4) has a belief that the requirements of this chapter
73	73	are unconstitutional or were unconstitutional;
74	74	(5) relies on any court decision that has been
75	75	overruled on appeal or by a subsequent court, even if that court
76	76	decision had not been overruled when the defendant engaged in the
77	77	conduct that violates this chapter; or
78	78	(6) relies on any state or federal court decision that
79	79	is not binding on the court in which the action has been brought.
80	80	Sec. 98C.006. DAMAGES. (a) A court shall award a claimant
81	81	who prevails in an action under this chapter:
82	82	(1) actual damages, including damages for mental
83	83	anguish even if an injury other than mental anguish is not shown;
84	84	(2) court costs; and
85	85	(3) reasonable attorney's fees.
86	86	(b) In addition to an award under Subsection (a), a claimant
87	87	who prevails in an action under this chapter may recover exemplary
88	88	damages.
89	89	Sec. 98C.007. CAUSE OF ACTION CUMULATIVE. (a) The cause of
90	90	action created by this chapter is cumulative of any other remedy
91	91	provided by common law or statute.
92	92	(b) Each occurrence of obscenity that harms a person,
93	93	regardless of whether the occurrence is part of a pattern of
94	94	conduct, gives rise to a separate claim for civil liability under
95	95	this chapter.
96	96	Sec. 98C.008. JOINT AND SEVERAL LIABILITY. A person who
97	97	engages in conduct described by Section 98C.002 or 98C.003 and is
98	98	found liable under this chapter or other law for any amount of
99	99	damages arising from that conduct is jointly and severally liable
100	100	with any other defendant for the entire amount of damages arising
101	101	from that conduct.
102	102	Sec. 98C.009. LIBERAL CONSTRUCTION AND APPLICATION. (a)
103	103	This chapter shall be liberally construed and applied to promote
104	104	its underlying purpose to protect persons from obscenity and
105	105	provide adequate remedies to those who are harmed by obscenity.
106	106	(b) This chapter may not be construed to:
107	107	(1) wholly or partly repeal, either expressly or by
108	108	implication, any statute or part of a statute that prohibits
109	109	obscenity;
110	110	(2) restrict a political subdivision from regulating
111	111	or prohibiting obscenity in a manner that is at least as stringent
112	112	as the laws of this state; or
113	113	(3) legalize any conduct prohibited by this chapter or
114	114	Subchapter B, Chapter 43, Penal Code.
115	115	(c) This chapter does not apply to a bona fide news or public
116	116	interest broadcast, website video, report, or event and may not be
117	117	construed to affect the rights of a news-gathering organization.
118	118	(d) An Internet service provider, or its affiliates or
119	119	subsidiaries, a search engine, or a cloud service provider may not
120	120	be held to have violated this chapter solely for providing access or
121	121	connection to or from a website or other information or content on
122	122	the Internet or on a facility, system, or network not under that
123	123	provider's control, including transmission, downloading,
124	124	intermediate storage, access software, or other services to the
125	125	extent the provider or search engine is not responsible for the
126	126	creation of the content that constitutes the obscenity or harmful
127	127	material.
128	128	SECTION 2. (a) Mindful of Leavitt v. Jane L., 518 U.S. 137
129	129	(1996), in which in the context of determining the severability of a
130	130	state statute the United States Supreme Court held that an explicit
131	131	statement of legislative intent is controlling, it is the intent of
132	132	the legislature that every provision, section, subsection,
133	133	sentence, clause, phrase, or word in this Act, and every
134	134	application of the provisions in this Act, is severable from each
135	135	other.
136	136	(b) If any application of any statutory provision in this
137	137	Act to any person, group of persons, or circumstances is found by a
138	138	court to be invalid or unconstitutional, the remaining applications
139	139	of that statutory provision to all other persons and circumstances
140	140	shall be severed and may not be affected. All constitutionally
141	141	valid applications of this Act shall be severed from any
142	142	applications that a court finds to be unconstitutional or otherwise
143	143	invalid, leaving the valid applications in force, because it is the
144	144	legislature's intent and priority that the valid applications be
145	145	allowed to stand alone.
146	146	(c) Even if a reviewing court finds a substantial number of
147	147	a statute's applications under this Act to be unconstitutional,
148	148	judged in relation to this Act's plainly legitimate sweep, the
149	149	applications that do not presently violate the United States
150	150	Constitution or Texas Constitution shall be severed from the
151	151	remaining applications and shall remain in force, and shall be
152	152	treated as if the legislature had enacted a statute limited to the
153	153	persons, groups of persons, or circumstances for which the
154	154	statute's application does not violate the United States
155	155	Constitution or Texas Constitution.
156	156	(d) The legislature further declares that it would have
157	157	enacted this Act, and each provision, section, subsection,
158	158	sentence, clause, phrase, or word, and all constitutional
159	159	applications of this Act, irrespective of the fact that any
160	160	provision, section, subsection, sentence, clause, phrase, or word,
161	161	or applications of this Act, were to be declared unconstitutional.
162	162	(e) If any provision of this Act is found by any court to be
163	163	unconstitutionally vague, the applications of that provision that
164	164	do not present constitutional vagueness problems shall be severed
165	165	and remain in force.
166	166	(f) No court may decline to enforce the severability
167	167	requirements of Subsections (a), (b), (c), (d), and (e) of this
168	168	section on the ground that severance would rewrite the statute or
169	169	involve the court in legislative or lawmaking activity. A court
170	170	that declines to enforce or enjoins a state official from enforcing
171	171	a statutory provision does not rewrite a statute, as the statute
172	172	continues to contain the same words as before the court's decision.
173	173	A judicial injunction or declaration of unconstitutionality:
174	174	(1) is nothing more than an edict prohibiting
175	175	enforcement that may subsequently be vacated by a later court if
176	176	that court has a different understanding of the requirements of the
177	177	United States Constitution or Texas Constitution;
178	178	(2) is not a formal amendment of the language in a
179	179	statute; and
180	180	(3) no more rewrites a statute than a decision by the
181	181	executive not to enforce a duly enacted statute in a limited and
182	182	defined set of circumstances.
183	183	(g) If any federal or state court declares unconstitutional
184	184	or enjoins the enforcement of a provision in this Act and fails to
185	185	enforce the severability requirements of Subsections (a), (b), (c),
186	186	(d), (e), and (f) of this section, for any reason whatsoever, the
187	187	attorney general shall:
188	188	(1) adopt rules that enforce the requirements
189	189	described by this Act to the maximum possible extent while avoiding
190	190	the constitutional problems or other problems identified by the
191	191	federal or state court; and
192	192	(2) issue notice of those rules, not later than the
193	193	30th day after the date of the court ruling.
194	194	(h) If the attorney general fails to adopt the rules and
195	195	issue notice under Subsection (g) of this section, a person may
196	196	petition for a writ of mandamus requiring the attorney general to
197	197	adopt the rules and issue notice.
198	198	SECTION 3. The change in law made by this Act applies only
199	199	to a cause of action that accrues on or after the effective date of
200	200	this Act.
201	201	SECTION 4. This Act takes effect September 1, 2023.