By: Zwiener H.B. No. 2705
A BILL TO BE ENTITLED
AN ACT
relating to the protection of free speech rights at institutions of
higher education, including the prosecution of the offenses of
trespass, damage, and defacement at certain institutions of higher
education, and criminal trespass.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 38, Code of Criminal Procedure, is
amended by adding Article 38.52 to read as follows:
Art. 38.52. EVIDENCE IN PROSECUTION FOR CERTAIN OFFENSES
INVOLVING EXPRESSIVE ACTIVITY AT HIGHER EDUCATION INSTITUTION. (a)
In this article, "expressive activities" has the meaning assigned
by Section 51.9315, Education Code.
(b) This article applies only to the prosecution of an
offense under Section 30.05 or 42.03, Penal Code, that occurred on
the campus of an institution of higher education while the
defendant was engaging in expressive activities.
(c) In the prosecution of an offense described by Subsection
(b), evidence of the following is admissible:
(1) an institution of higher education's resolution of
an alleged violation of the institution's policies on expressive
activities related to the defendant's conduct giving rise to the
offense; and
(2) a resolution by the campus free expression review
board established under Section 51.9316, Education Code, of an
appeal to the review board of an institution of higher education's
resolution described by Subdivision (1).
SECTION 2. Section 51.204, Education Code, is amended by
adding Subsection (c) to read as follows:
(c) It is an affirmative defense to prosecution under this
section that the person:
(1) at the time of the offense, was engaging in
expressive activities, as defined by Section 51.9315; and
(2) was found not to have engaged in any misconduct by
the institution or the campus free expression review board
established under Section 51.9316 with respect to the conduct
giving rise to the offense.
SECTION 3. Section 51.9315(a), Education Code, is amended
by amending Subdivision (2) and adding Subdivision (3-a) to read as
follows:
(2) "Expressive activities" means any speech or
expressive conduct protected by the First Amendment to the United
States Constitution or by Section 8, Article I, Texas Constitution,
and includes assemblies, protests, speeches, the distribution of
written material, the carrying of signs, [and] the distribution and
circulation of petitions or digital media, and symbolic expression,
including the wearing of symbolic clothing or accessories. The
term does not include commercial speech or hate speech, including
symbols associated with hate speech.
(3-a) "Review board" means the campus free expression
review board established under Section 51.9316.
SECTION 4. Section 51.9315, Education Code, is amended by
amending Subsections (b), (c), (d), (f), and (h) and adding
Subsections (d-1) and (h-1) to read as follows:
(b) It is the policy of this state and the purpose of this
section to ensure an open, inclusive exchange of ideas fundamental
to higher education and protect the expressive rights of persons
guaranteed by the constitutions of the United States and of this
state by:
(1) recognizing freedom of speech and assembly as
central to the mission of institutions of higher education; and
(2) ensuring that all persons may assemble peaceably
on the campuses of institutions of higher education for expressive
activities, including to listen to or observe the expressive
activities of others.
(c) An institution of higher education shall:
(1) ensure that the common outdoor areas of the
institution's campus are deemed traditional public forums; and
(2) permit any person to engage in expressive
activities in those areas of the institution's campus freely, as
long as the person's conduct:
(A) is not unlawful; and
(B) does not materially and substantially
disrupt the academic instruction of classrooms or administrative
functioning of the institution.
(d) Notwithstanding Subsection (c), an institution of
higher education may adopt a policy that imposes reasonable
restrictions on the time, place, and manner of expressive
activities in the common outdoor areas of the institution's campus
if those restrictions:
(1) are narrowly tailored to serve a significant
institutional interest;
(2) employ clear, published, content-neutral, and
viewpoint-neutral criteria;
(3) provide for ample alternative means of expression;
and
(4) allow members of the university community to
assemble or distribute written, digital, or symbolic material
without a permit or other permission from the institution.
(d-1) A policy adopted under Subsection (d) must be approved
by the review board and amended in accordance with an order of the
review board.
(f) Each institution of higher education shall adopt a
policy detailing students' rights and responsibilities regarding
expressive activities at the institution. The policy must:
(1) allow:
(A) any person to, subject to reasonable
restrictions adopted under Subsection (d), engage in expressive
activities on campus, including by responding to the expressive
activities of others; and
(B) student organizations and faculty to,
subject to Subsection (h), invite speakers to speak on campus;
(2) establish disciplinary sanctions for students,
student organizations, or faculty who unduly interfere with the
expressive activities of others on campus;
(3) include a grievance procedure for addressing
complaints of a violation of this section that includes mechanisms
for redress;
(4) be approved by a majority vote of the institution's
governing board before final adoption; [and]
(5) be posted on the institution's Internet website;
(6) be approved by the review board; and
(7) be amended in accordance with an order of the
review board.
(h) In determining whether to approve a speaker to speak on
campus or in determining the amount of a fee to be charged for use of
the institution's facilities for purposes of engaging in expressive
activities, an institution of higher education:
(1) may consider only content-neutral and
viewpoint-neutral criteria related to the needs of the event, such
as:
(A) the proposed venue and the expected size of
the audience;
(B) any anticipated need for campus security
based on the factors described by Paragraph (A) and any history of
unprotected or unlawful speech by the speaker or the requesting
student organization or faculty member;
(C) any necessary accommodations; and
(D) any relevant history of compliance or
noncompliance by the requesting student organization or faculty
member with the institution's policy adopted under Subsection (f)
and any other relevant policies; and
(2) may not consider any anticipated controversy
related to the event.
(h-1) If an institution of higher education charges a fee
for use of the institution's facilities for purposes of engaging in
expressive activities, the institution shall provide to the person
directed to pay the fee an itemized receipt detailing the method for
determining the amount of the fee.
SECTION 5. Subchapter Z, Chapter 51, Education Code, is
amended by adding Sections 51.9316 and 51.9317 to read as follows:
Sec. 51.9316. CAMPUS FREE EXPRESSION REVIEW BOARD. (a) In
this section, "review board" means the campus free expression
review board established under this section.
(b) The campus free expression review board is established
to assess the policies and practices of institutions of higher
education regarding expressive activities under Section 51.9315 to
ensure fairness, viewpoint neutrality, and protection of those
activities.
(c) The review board is composed of the following eight
members:
(1) two members appointed by the most senior member of
the majority party of the Texas House of Representatives;
(2) two members appointed by the most senior member of
the minority party of the Texas House of Representatives;
(3) two members appointed by the most senior member of
the majority party of the Texas State Senate; and
(4) two members appointed by the most senior member of
the minority party of the Texas State Senate.
(d) In appointing members of the review board, the
appointing authorities under Subsection (c) shall coordinate to
ensure that the review board includes legal scholars, legal
professionals, or professionals in the nonprofit sector who
specialize in the First Amendment to the United States Constitution
and free speech protections.
(e) A member of the review board serves a two-year term.
(f) The members of the review board shall elect a
chairperson by majority vote.
(g) A member of the review board is not entitled to
compensation but may be reimbursed for actual and necessary travel
and other expenses incurred in the performance of the member's
duties on the review board.
(h) A person aggrieved by an institution of higher
education's resolution of the grievance procedure under Section
51.9315(f) may appeal that decision to the review board. In
considering the appeal, the review board shall review the content
of the institution's policies adopted under Section 51.9315 and may
require the institution to amend those policies to resolve any
infringements on protected speech or violations of Section 51.9315
that the review board identifies.
(i) The review board shall establish and make available to
institutions of higher education criteria for:
(1) evaluating the viewpoint neutrality, clarity, and
accessibility of policies adopted by an institution of higher
education under Section 51.9315; and
(2) hearing appeals to an institution of higher
education's grievance procedure under Section 51.9315(f).
Sec. 51.9317. SUIT FOR PROTECTED SPEECH VIOLATION. (a) In
this section, "institution of higher education" has the meaning
assigned by Section 61.003.
(b) A person may bring an action for injunctive relief
against an institution of higher education to compel the
institution to comply with the First Amendment to the United States
Constitution, Section 8, Article I, Texas Constitution, or Section
51.9315. On a finding that the institution violated one or more of
those provisions, the court shall award the person compensatory
damages, reasonable attorney fees, and court costs.
(c) An institution of higher education's sovereign immunity
to suit and from liability is waived and abolished to the extent of
liability created under this section.
SECTION 6. Section 30.05, Penal Code, is amended by adding
Subsection (j) to read as follows:
(j) It is an affirmative defense to prosecution under this
section that the actor entered property owned or leased by an
institution of higher education or other higher education
institution and:
(1) at the time of the offense, was engaging in
expressive activities, as defined by Section 51.9315, Education
Code; and
(2) was found not to have engaged in any misconduct by
the institution or the campus free expression review board
established under Section 51.9316, Education Code, with respect to
the conduct giving rise to the offense.
SECTION 7. Article 38.52, Code of Criminal Procedure,
Section 51.204(c), Education Code, and Section 30.05(j), Penal
Code, as added by this Act, apply only to an offense committed on or
after the effective date of this Act. An offense committed before
the effective date of this Act is governed by the law in effect on
the date the offense was committed, and the former law is continued
in effect for that purpose. For purposes of this section, an
offense was committed before the effective date of this Act if any
element of the offense occurred before that date.
SECTION 8. Section 51.9315, Education Code, as amended by
this Act, applies beginning with the 2026-2027 academic year.
SECTION 9. Section 51.9317, Education Code, as added by
this Act, applies only to a cause of action that accrues on or after
the effective date of this Act.
SECTION 10. This Act takes effect September 1, 2025.