Bill Text: TX HB2198 | 2021-2022 | 87th Legislature | Introduced


Bill Title: Relating to the prosecution and punishment for certain offenses regarding the possession or promotion of lewd material depicting a child; creating criminal offenses; increasing criminal penalties.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2021-04-19 - No action taken in committee [HB2198 Detail]

Download: Texas-2021-HB2198-Introduced.html
 
 
  By: Schaefer H.B. No. 2198
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the prosecution and punishment for certain offenses
  regarding the possession or promotion of lewd material depicting a
  child; creating criminal offenses; increasing criminal penalties.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 43.25, Penal Code, is amended by
  amending Subsection (g) to read as follows:
         (g)  When it becomes necessary for the purposes of this
  section, [or] Section 43.26, Section 43.261, or Section 43.262 to
  determine whether a child who participated in sexual conduct was
  younger than 18 years of age, the court or jury may make this
  determination by any of the following methods:
               (1)  personal inspection of the child;
               (2)  inspection of the photograph or motion picture
  that shows the child engaging in the sexual performance;
               (3)  oral testimony by a witness to the sexual
  performance as to the age of the child based on the child's
  appearance at the time;
               (4)  expert medical testimony based on the appearance
  of the child engaging in the sexual performance; or
               (5)  any other method authorized by law or by the rules
  of evidence at common law.
         SECTION 2.  Section 43.26, Penal Code, is amended by
  amending Subsection (h) to read as follows:
         (h)  It is a defense to prosecution under Subsection (a) or
  (e) that the actor is a law enforcement officer or a school
  administrator who:
               (1)  possessed or accessed the visual material in good
  faith solely as a result of an allegation of a violation of Section
  43.261 or Section 43.262;
               (2)  allowed other law enforcement or school
  administrative personnel to possess or access the material only as
  appropriate based on the allegation described by Subdivision (1);
  and
               (3)  took reasonable steps to destroy the material
  within an appropriate period following the allegation described by
  Subdivision (1).
         SECTION 3.  Section 43.262, Penal Code, is amended by
  amending Subsections (a) and (b), and adding Subsections (e)
  through (i) to read as follows:
         (a)  In this section:
               (1)  "Promote", "sexual performance", "performance",
  and "sexual conduct" have the meanings assigned by Section 43.25.
               (2)  "Visual material" has the meaning assigned by
  Section 43.26.
         (b)  A person commits an offense if the person knowingly
  possesses, accesses with intent to view, or promotes visual
  material that[:
               (1)  ]depicts the lewd exhibition of the genitals, [or]
  pubic area, or buttocks of an unclothed, partially clothed, or
  clothed child who is younger than 18 years of age at the time the
  visual material was created.[; and
               (2)  appeals to the prurient interest in sex; and
               (3)  has no serious literary, artistic, political, or
  scientific value.]
         (e)  It is a defense to prosecution under this section that
  the actor is a law enforcement officer or a school administrator
  who:
               (1)  possessed or accessed the visual material in good
  faith solely as a result of an allegation of a violation of Section
  43.262;
               (2)  allowed other law enforcement or school
  administrative personnel to possess or access the material only as
  appropriate based on the allegation described by Subdivision (1);
  and
               (3)  took reasonable steps to destroy the material
  within an appropriate period following the allegation described by
  Subdivision (1).
         (f)  It is an affirmative defense to a prosecution under this
  section that:
               (1)  the defendant was the spouse of the child at the
  time of the offense; or
               (2)  the defendant is not more than two years older than
  the child.
         (g)  When it becomes necessary for the purposes of this
  section to determine whether visual material depicts the lewd
  exhibition of the genitals, pubic area, or buttocks of an
  unclothed, partially clothed, or clothed child who is younger than
  18 years of age at the time the visual material was created, the
  court or jury may make this determination by any of the following
  methods; whether:
               (1)  the focal point of the visual depiction is the
  child's unclothed, partially clothed, or clothed genitalia or
  buttocks;
               (2)  the place or pose of the child depicted in the
  visual material is sexually suggestive;
               (3)  the child is depicted in an unnatural pose or
  inappropriate attire;
               (4)  the child is fully or partially clothed or nude;
               (5)  the visual material suggests sexual coyness or a
  willingness to engage in sexual activity;
               (6)  the visual material is intended or designed to
  elicit a sexual response in the viewer; or
               (7)  by any other method authorized by law or by the
  rules of evidence at common law.
         (h)  When it becomes necessary for the purposes of this
  section to determine whether a child who participated in sexual
  conduct, sexual performance, or lewd exhibition of the unclothed,
  partially clothed, or clothed genitals or buttocks was younger than
  18 years of age, the court or jury may make this determination by
  any of the following methods:
               (1)  personal inspection of the child;
               (2)  inspection of the visual material that shows the
  child engaging in sexual performance, sexual conduct or lewd
  exhibition of the unclothed, partially clothed, or clothed genitals
  or pubic area or buttocks of the child;
               (3)  oral testimony by a witness to the sexual
  performance, sexual conduct, or lewd exhibition of the unclothed,
  partially clothed, or clothed genitals or pubic area or buttocks of
  the child as to the age of the child based on the child's appearance
  at the time the visual material was created;
               (4)  expert medical testimony based on the appearance
  of the child engaging in the sexual performance, sexual conduct or
  lewd exhibition of the unclothed, partially clothed, or clothed
  genitals or pubic area or buttocks of the child; or
               (5)  any other method authorized by law or by the rules
  of evidence at common law.
         (i)  Conduct under this section constitutes an offense
  regardless of whether the actor knows the age of the victim at the
  time of the offense.
         SECTION 4.  Subchapter B, Chapter 43, Penal Code, is amended
  by adding Section 43.28 to read as follows:
         Section 43.28.  NO MISTAKE OF LAW DEFENSE.  Notwithstanding
  any other law, including Section 8.03, Penal Code, the following
  shall not be a defense to prosecution under this subchapter:
               (1)  ignorance or mistake of law;
               (2)  a defendant's belief that any of the requirements
  of this subchapter are unconstitutional or were unconstitutional;
               (3)  a defendant's reliance on any court decision,
  including a decision of the United States Supreme Court, 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 subchapter; or
               (4)  a defendant's reliance on any ruling or opinion
  issued by a federal district court or the United States Court of
  Appeals for the Fifth Circuit, which do not bind the state
  judiciary.
         SECTION 5.  Subchapter B, Chapter 43, Penal Code, is amended
  by adding Section 43.29 to read as follows:
         Section 43.29.  SEVERABILITY.  (a)  Mindful of Leavitt v.
  Jane L., 518 U.S. 137 (1996), in which in the context of determining , 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 subchapter, and every application of the provisions in this
  subchapter, are severable from each other.
         (b)  If any application of any statutory provision in this
  subchapter 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 subchapter shall be
  severed from any applications that a court finds to be invalid or
  unconstitutional, leaving the valid and constitutional
  applications in force, because it is the legislature's intent and
  priority that the valid and constitutional applications of each
  statutory provision be allowed to stand alone.  Even if a reviewing
  court finds a substantial number of a statute's applications under
  this subchapter to be unconstitutional, judged in relation to the
  statute's plainly legitimate sweep, the applications that do not
  presently violate the 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, group of persons, or circumstances for which the statute's
  application does not violate the Constitution.
         (c)  The legislature further declares that it would have
  enacted this subchapter, and each provision, section, subsection,
  sentence, clause, phrase, or word, and all constitutional
  applications of this subchapter, irrespective of the fact that any
  provision, section, subsection, sentence, clause, phrase, or word,
  or applications of this subchapter, were to be declared
  unconstitutional.
         (d)  If any statutory provision of this subchapter is found
  by any court to be unconstitutionally vague, then the applications
  of that statutory provision that do not present constitutional
  vagueness problems shall be severed and remain in force.
         (e)  No court may decline to enforce the severability
  requirements of Subsections (a), (b), (c), and (d) 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
  Texas Constitution or United States 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.
         (f)  If any federal or state court declares unconstitutional
  or enjoins the enforcement of a provision in this subchapter and
  fails to enforce the severability requirements of Subsections (a),
  (b), (c), (d), and (e), for any reason whatsoever, the Attorney
  General shall:
               (1)  adopt rules that enforce the requirements
  described by this subchapter 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.
         (g)  If the Attorney General fails to adopt the rules and
  issue notice under Subsection (f), a person may petition for a writ
  of mandamus requiring the executive commissioner to adopt the rules
  and issue notice.
         SECTION 6.  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, 2021.
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