Bill Text: TX HB41 | 2011 | 82nd Legislature 1st Special | Comm Sub
Bill Title: Relating to prosecution and punishment for the offense of official oppression by the intrusive touching of persons seeking access to public buildings and transportation; providing penalties.
Spectrum: Slight Partisan Bill (Republican 86-29)
Status: (Introduced - Dead) 2011-06-29 - Companion considered in lieu of [HB41 Detail]
Download: Texas-2011-HB41-Comm_Sub.html
82S10081 JRH-F | ||
By: Simpson, et al. | H.B. No. 41 |
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relating to prosecution and punishment for the offense of official | ||
oppression by the intrusive touching of persons seeking access to | ||
public buildings and transportation; providing penalties. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Section 39.03, Penal Code, is amended by | ||
amending Subsections (a) and (b) and adding Subsections (c-1), | ||
(c-2), and (c-3) to read as follows: | ||
(a) A person who is a public servant [ |
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(1) while acting under color of the person's office or | ||
employment [ |
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(A) [ |
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to mistreatment or to arrest, detention, search, seizure, | ||
dispossession, assessment, or lien that the actor [ |
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unlawful; | ||
(B) [ |
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another person in the exercise or enjoyment of any right, | ||
privilege, power, or immunity, knowing the actor's [ |
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unlawful; or | ||
(C) [ |
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to sexual harassment; or | ||
(2) while acting under color of the person's office or | ||
employment without probable cause to believe the other person | ||
committed an offense: | ||
(A) performs a search without effective consent | ||
for the purpose of granting access to a publicly accessible | ||
building or form of transportation; and | ||
(B) intentionally, knowingly, or recklessly: | ||
(i) touches the anus, sexual organ, | ||
buttocks, or breast of the other person, including touching through | ||
clothing; or | ||
(ii) causes physical contact with the other | ||
person when the actor knows or should reasonably believe that the | ||
other person will regard the contact as offensive or provocative. | ||
(b) For purposes of this section, a person who is a public | ||
servant acts under color of the person's [ |
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if the person [ |
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or takes advantage of such actual or purported capacity. | ||
(c-1) For purposes of Subsection (a)(2), "public servant" | ||
includes: | ||
(1) an officer, employee, or agent of: | ||
(A) the United States; | ||
(B) a branch, department, or agency of the United | ||
States; or | ||
(C) another person acting under contract with a | ||
branch, department, or agency of the United States for the purpose | ||
of providing a security or law enforcement service; and | ||
(2) any other person acting under color of federal | ||
law. | ||
(c-2) For a person described by Subsection (c-1)(1) or (2), | ||
it is a defense to prosecution for an offense under Subsection | ||
(a)(2) that the actor performed the search pursuant to and | ||
consistent with an explicit and applicable grant of federal | ||
statutory authority that is consistent with the United States | ||
Constitution. | ||
(c-3) For purposes of Subsection (a)(2), and | ||
notwithstanding Sections 1.07(a)(11) and (19), consent is | ||
effective only if, immediately before any search: | ||
(1) the actor verbally describes: | ||
(A) the area of the other person to be searched; | ||
and | ||
(B) the method to be used in the search; and | ||
(2) the actor receives express consent for the search | ||
only from: | ||
(A) the other person; or | ||
(B) the parent or guardian of the other person. | ||
SECTION 2. (a) This section applies only to a prosecution | ||
of an offense under Section 39.03(a)(2), Penal Code, as added by | ||
this Act, in which the defendant was, at the time of the alleged | ||
offense, acting under the color of federal law. | ||
(b) In a prosecution described by Subsection (a) of this | ||
section, if the government of the United States, the defendant, or | ||
the defendant's employer challenges the validity of Section | ||
39.03(a)(2), Penal Code, as added by this Act, on grounds of | ||
unconstitutionality, preemption, or sovereign immunity, the | ||
attorney general of this state, with the consent of the appropriate | ||
local county or district attorney, shall take any actions necessary | ||
on behalf of the state to defend the validity of the statute. The | ||
attorney general may make any legal arguments the attorney general | ||
considers appropriate, including that this Act constitutes a valid | ||
exercise of: | ||
(1) the state's police powers; | ||
(2) the liberty interests of the people that are | ||
secured by the United States Constitution; | ||
(3) the powers reserved to the states by the Tenth | ||
Amendment to the United States Constitution; or | ||
(4) the rights and protections secured by the Texas | ||
Constitution. | ||
SECTION 3. This Act shall be construed, as a matter of state | ||
law, to be enforceable up to but no further than the maximum | ||
possible extent consistent with federal constitutional | ||
requirements, even if that construction is not readily apparent, as | ||
such constructions are authorized only to the extent necessary to | ||
save the statute from judicial invalidation. | ||
SECTION 4. This Act takes effect on the 91st day after the | ||
last day of the legislative session. |