89R68 MCF-F
By: Swanson H.B. No. 403
A BILL TO BE ENTITLED
AN ACT
relating to housing and placement of inmates and children according
to biological sex.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. This Act may be cited as the Female Prisoner
Protection Act.
SECTION 2. (a) The legislature finds that:
(1) courts have repeatedly affirmed that the
separation of inmates by sex is unquestionably constitutional so
long as it serves a government interest, see Women Prisoners of the
D.C. Dep't of Corr. v. District of Columbia, 93 F.3d 910, 926 (D.C.
Cir. 1996);
(2) courts have affirmed that the government cannot
lawfully act in a manner that evinces the belief that women are
second-class citizens or unworthy of the consideration provided
male offenders, see Pitts v. Thornburgh, 866 F.2d 1450, 1459 (D.C.
Cir. 1989); and
(3) courts have repeatedly recognized that a
correctional system has a right to ensure women are protected from
sexual abuse and physical violence as well as having equal access to
all inmate rights, correctional programs, and opportunities for
rehabilitation.
(b) The purpose of this Act is to further the governmental
interest of ensuring that females confined or placed in facilities
operated by the Texas Department of Criminal Justice and Texas
Juvenile Justice Department are protected throughout their
sentence and have equal, safe access to basic facilities afforded
to all confined persons.
SECTION 3. Section 51.12(m), Family Code, is amended to
read as follows:
(m) The Texas Juvenile Justice Department may deny,
suspend, or revoke the registration of any facility required to
register under Subsection (i) if the facility fails to:
(1) adhere to all applicable minimum standards for the
facility; [or]
(2) timely correct any notice of noncompliance with
minimum standards; or
(3) strictly comply with the requirements of Section
51.127.
SECTION 4. Section 51.125(e), Family Code, is amended to
read as follows:
(e) The Texas Juvenile Justice Department may deny,
suspend, or revoke the registration of any facility required to
register under Subsection (d) if the facility fails to:
(1) adhere to all applicable minimum standards for the
facility; [or]
(2) timely correct any notice of noncompliance with
minimum standards; or
(3) strictly comply with the requirements of Section
51.127.
SECTION 5. Chapter 51, Family Code, is amended by adding
Section 51.127 to read as follows:
Sec. 51.127. PLACEMENT OF JUVENILES BASED ON BIOLOGICAL
SEX. (a) In this section, "department" means the Texas Juvenile
Justice Department.
(b) A juvenile board created under Chapter 152, Human
Resources Code, or the department, as applicable, shall place a
child in a detention or correctional facility according to the
child's biological sex, as determined by:
(1) the child's official birth certificate, if the
child's biological sex is correctly stated on the certificate as
described by Subsection (c); or
(2) if the child's official birth certificate
described by Subdivision (1) is unobtainable, another government
record that states the child's biological sex.
(c) For purposes of this section, a statement of a child's
biological sex on the child's official birth certificate is
considered to have correctly stated the child's biological sex only
if the statement was:
(1) entered at or near the time of the child's birth;
and
(2) not modified except as necessary to correct any
type of scrivener or clerical error in the child's biological sex.
(d) The vital statistics unit of the Department of State
Health Services may not charge a juvenile board or the department a
fee to issue a birth certificate for use under this section.
(e) Except as provided by Subsection (b), a juvenile board
or the department, as applicable, shall, in accordance with the
Prison Rape Elimination Act National Standards (28 C.F.R. Part 115,
Subpart D), consider the unique safety needs of each child and take
appropriate action to ensure a child's health and safety.
(f) A juvenile board and the Texas Juvenile Justice Board
shall adopt any rules necessary to implement this section. The
rules must ensure compliance with state and federal law.
SECTION 6. Subchapter D, Chapter 501, Government Code, is
amended by adding Section 501.115 to read as follows:
Sec. 501.115. HOUSING OF INMATES ACCORDING TO BIOLOGICAL
SEX. (a) The department shall house inmates in facilities,
dormitories, and cellblocks according to the inmate's biological
sex, as determined by:
(1) the inmate's sex organs as determined during the
intake screening required under the Prison Rape Elimination Act
National Standards (28 C.F.R. Section 115.41); and
(2) a statement of the inmate's biological sex on the
inmate's official birth certificate if the statement was:
(A) entered at or near the time of the inmate's
birth; and
(B) not modified except as necessary to correct
any type of scrivener or clerical error in the inmate's biological
sex.
(b) If there is a conflict between the determinations made
under Subsections (a)(1) and (2), the department shall defer to
Subsection (a)(2) for the purpose of determining an inmate's
biological sex.
(c) The vital statistics unit of the Department of State
Health Services may not charge the department a fee to issue a birth
certificate for use under this section.
(d) Except as provided by Subsection (a), the department
shall, in accordance with the Prison Rape Elimination Act National
Standards (28 C.F.R. Part 115), consider the unique safety needs of
each inmate and take appropriate action to ensure an inmate's
health and safety.
(e) The board shall adopt any rules necessary to implement
this section. The rules must ensure compliance with state and
federal law.
SECTION 7. 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, 2025.