88R7582 SRA-D
By: Slaton H.B. No. 4129
A BILL TO BE ENTITLED
AN ACT
relating to prohibiting certain erotic performances; creating a
criminal offense; authorizing a civil penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 102.001, Business & Commerce Code, is
amended to read as follows:
Sec. 102.001. DEFINITIONS. In this subchapter:
(1) "Child" means an individual younger than 18 years
of age.
(2) "Erotic performance" has the meaning assigned by
Section 243.002, Local Government Code.
(3) "Sex offender" means a person who has been
convicted of or placed on deferred adjudication for an offense for
which a person is subject to registration under Chapter 62, Code of
Criminal Procedure.
(4) [(2)] "Sexually oriented business" has the
meaning assigned by Section 243.002, Local Government Code.
SECTION 2. Section 102.0031, Business & Commerce Code, is
amended to read as follows:
Sec. 102.0031. PROHIBITION ON [CERTAIN ACTIVITIES BY]
BUSINESS ALLOWING [IN RELATION TO A] CHILD ON PREMISES. A sexually
oriented business may not allow a child [an individual younger than
18 years of age] to enter the premises of the business.
SECTION 3. Subchapter A, Chapter 102, Business & Commerce
Code, is amended by adding Section 102.0032 to read as follows:
Sec. 102.0032. PROHIBITION ON BUSINESS ALLOWING EROTIC
PERFORMANCE IN PRESENCE OF CHILD. A sexually oriented business may
not allow an erotic performance to take place in the presence of a
child.
SECTION 4. Section 102.004(a), Business & Commerce Code, is
amended to read as follows:
(a) The attorney general or appropriate district or county
attorney, in the name of the state, may bring an action for an
injunction or other process against a person who violates or
threatens to violate Section 102.002, 102.003, [or] 102.0031, or
102.0032.
SECTION 5. Section 102.005, Business & Commerce Code, is
amended by amending Subsection (c) and adding Subsections (b-1) and
(d) to read as follows:
(b-1) A sexually oriented business commits an offense if the
business violates Section 102.0032.
(c) An offense under Subsection (a) or (b) [this section] is
a Class A misdemeanor.
(d) An offense under Subsection (b-1) is a felony of the
third degree.
SECTION 6. Subchapter A, Chapter 102, Business & Commerce
Code, is amended by adding Sections 102.006 and 102.007 to read as
follows:
Sec. 102.006. CIVIL AND OTHER PENALTY. (a) A sexually
oriented business that violates Section 102.0032 is:
(1) liable to this state for a civil penalty not to
exceed $10,000 for each violation; and
(2) subject to the revocation of applicable licenses
for a second violation in accordance with Section 102.007.
(b) The attorney general may bring an action in the name of
the state to recover a civil penalty under this section.
(c) The action may be brought in a district court in:
(1) Travis County; or
(2) a county in which any part of the violation occurs.
(d) A civil penalty collected under this section shall be
deposited in the state treasury to the credit of the general revenue
fund.
Sec. 102.007. NOTICE TO LICENSING AUTHORITY; REVOCATION OF
CERTAIN LICENSES. (a) In this section:
(1) "License" means a license, certificate,
registration, permit, or other authorization that:
(A) is issued by a licensing authority;
(B) is subject before expiration to renewal,
suspension, revocation, forfeiture, or termination by a licensing
authority; and
(C) a person must obtain to:
(i) practice or engage in a particular
business, occupation, or profession; or
(ii) engage in any other regulated
commercial activity for which a license or permit is required.
(2) "Licensing authority" means a department,
commission, board, office, or other agency of this state or a
political subdivision of this state, including a municipality or
county with regulatory authority under Section 243.007, Local
Government Code, that issues or renews a license or that otherwise
has authority to suspend or refuse to renew a license.
(b) Not later than the 30th day after the date the attorney
general prevails in a second action against a sexually oriented
business under Section 102.006, the attorney general shall provide
notice to each appropriate licensing authority with regulatory
authority over licensing the business. If authorized under
applicable law, the licensing authority shall revoke the business's
license through the applicable revocation process.
SECTION 7. Section 102.051, Business & Commerce Code, is
amended to read as follows:
Sec. 102.051. DEFINITIONS. In this subchapter:
(1) "Business" means a foreign or domestic for-profit
or nonprofit entity.
(1-a) "Erotic performance" has the meaning assigned by
Section 243.002, Local Government Code.
(1-b) "Nude" means:
(A) entirely unclothed; or
(B) clothed in a manner that leaves uncovered or
visible through less than fully opaque clothing any portion of the
breasts below the top of the areola of the breasts, if the person is
female, or any portion of the genitals or buttocks.
(2) "Sexually oriented business" means:
(A) a nightclub, bar, restaurant, or similar
commercial enterprise that:
(i) [(A)] provides for an audience of two
or more individuals live nude entertainment or live nude
performances; and
(ii) [(B)] authorizes on-premises
consumption of alcoholic beverages, regardless of whether the
consumption of alcoholic beverages is under a license or permit
issued under the Alcoholic Beverage Code; or
(B) a business that provides for an audience of
two or more individuals an erotic performance.
SECTION 8. Section 243.002, Local Government Code, is
amended to read as follows:
Sec. 243.002. DEFINITIONS [DEFINITION]. In this chapter:
(1) "Biological sex" means the physical condition of
being male or female as determined by the sex organs, chromosomes,
and endogenous profile of the individual at birth.
(2) "Business" means a foreign or domestic for-profit
or nonprofit entity.
(3) "Erotic performance" means a performance with the
intent to or in such a way that a reasonable person would conclude
the movement is intended to, likely to, or would naturally cause
sexual arousal or gratification or any performance that would
otherwise appeal to the prurient interest of any person, including
a performance:
(A) depicting a sex act, including depicting a
sex act while nude;
(B) involving the progressive removal of
clothing or the placement of money into undergarments; and
(C) in which a person exhibits a sex or gender
that is different than the person's biological sex, using clothing,
makeup, or other physical markers, and sings, lip-syncs, dances, or
otherwise performs for an audience.
(4) "Sexually [, "sexually] oriented business" means:
(A) a sex parlor, nude studio, modeling studio,
love parlor, adult bookstore, adult movie theater, adult video
arcade, adult movie arcade, adult video store, adult motel, or
other commercial enterprise the primary business of which is the
offering of a service or the selling, renting, or exhibiting of
devices or any other items intended to provide sexual stimulation
or sexual gratification to the customer; or
(B) a business that provides for an audience of
two or more individuals an erotic performance.
SECTION 9. Subchapter B, Chapter 43, Penal Code, is amended
by adding Section 43.28 to read as follows:
Sec. 43.28. CERTAIN EROTIC PERFORMANCES PROHIBITED. (a)
In this section:
(1) "Biological sex" means the physical condition of
being male or female as determined by the sex organs, chromosomes,
and endogenous profile of the individual at birth.
(2) "Erotic performance" means an act that is
performed with the intent to or in such a way that a reasonable
person would conclude the act is intended to, likely to, or would
naturally cause arousal or gratify the sexual desire of any person
or to otherwise appeal to the prurient interest of any person in sex
or nudity, including an act:
(A) depicting a sex act, including depicting a
sex act while nude;
(B) involving the progressive removal of
clothing or the placement of money into undergarments; and
(C) in which a person exhibits a sex or gender
that is different than the person's biological sex, using clothing,
makeup, or other physical markers, and sings, lip-syncs, dances, or
otherwise performs for an audience.
(b) A person commits an offense if the person engages in an
erotic performance in a location where the performance is
reasonably likely to be viewed by a person younger than 18 years of
age.
(c) An offense under this section is a felony of the third
degree.
SECTION 10. This Act takes effect September 1, 2023.