Bill Text: TX SB179 | 2017-2018 | 85th Legislature | Enrolled


Bill Title: Relating to harassment, bullying, and cyberbullying of a public school student or minor and certain mental health programs for public school students; increasing a criminal penalty.

Spectrum: Slight Partisan Bill (Democrat 25-15)

Status: (Passed) 2017-06-09 - Effective on 9/1/17 [SB179 Detail]

Download: Texas-2017-SB179-Enrolled.html
 
 
  S.B. No. 179
 
 
 
 
AN ACT
  relating to harassment, bullying, and cyberbullying of a public
  school student or minor and certain mental health programs for
  public school students; increasing a criminal penalty.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  This Act shall be known as David's Law.
         SECTION 2.  Section 37.0832, Education Code, is amended by
  amending Subsections (a) and (c) and adding Subsections (a-1) and
  (f) to read as follows:
         (a)  In this section:
               (1)  "Bullying":
                     (A)  [, "bullying"] means a single significant act
  or a pattern of acts by one or more students directed at another
  student that exploits an imbalance of power and involves[, subject
  to Subsection (b),] engaging in written or verbal expression,
  expression through electronic means, or physical conduct that
  satisfies the applicability requirements provided by Subsection
  (a-1), [that occurs on school property, at a school-sponsored or
  school-related activity, or in a vehicle operated by the district]
  and that:
                           (i) [(1)]  has the effect or will have the
  effect of physically harming a student, damaging a student's
  property, or placing a student in reasonable fear of harm to the
  student's person or of damage to the student's property; [or]
                           (ii) [(2)]  is sufficiently severe,
  persistent, or [and] pervasive enough that the action or threat
  creates an intimidating, threatening, or abusive educational
  environment for a student;
                           (iii)  materially and substantially
  disrupts the educational process or the orderly operation of a
  classroom or school; or
                           (iv)  infringes on the rights of the victim
  at school; and
                     (B)  includes cyberbullying.
               (2)  "Cyberbullying" means bullying that is done
  through the use of any electronic communication device, including
  through the use of a cellular or other type of telephone, a
  computer, a camera, electronic mail, instant messaging, text
  messaging, a social media application, an Internet website, or any
  other Internet-based communication tool.
         (a-1)  This section applies to:
               (1)  bullying that occurs on or is delivered to school
  property or to the site of a school-sponsored or school-related
  activity on or off school property;
               (2)  bullying that occurs on a publicly or privately
  owned school bus or vehicle being used for transportation of
  students to or from school or a school-sponsored or school-related
  activity; and
               (3)  cyberbullying that occurs off school property or
  outside of a school-sponsored or school-related activity if the
  cyberbullying:
                     (A)  interferes with a student's educational
  opportunities; or
                     (B)  substantially disrupts the orderly operation
  of a classroom, school, or school-sponsored or school-related
  activity.
         (c)  The board of trustees of each school district shall
  adopt a policy, including any necessary procedures, concerning
  bullying that:
               (1)  prohibits the bullying of a student;
               (2)  prohibits retaliation against any person,
  including a victim, a witness, or another person, who in good faith
  provides information concerning an incident of bullying;
               (3)  establishes a procedure for providing notice of an
  incident of bullying to:
                     (A)  a parent or guardian of the alleged victim on
  or before the third business day after the date the incident is
  reported; and
                     (B)  a parent or guardian of the alleged bully
  within a reasonable amount of time after the incident;
               (4)  establishes the actions a student should take to
  obtain assistance and intervention in response to bullying;
               (5)  sets out the available counseling options for a
  student who is a victim of or a witness to bullying or who engages in
  bullying;
               (6)  establishes procedures for reporting an incident
  of bullying, including procedures for a student to anonymously
  report an incident of bullying, investigating a reported incident
  of bullying, and determining whether the reported incident of
  bullying occurred;
               (7)  prohibits the imposition of a disciplinary measure
  on a student who, after an investigation, is found to be a victim of
  bullying, on the basis of that student's use of reasonable
  self-defense in response to the bullying; and
               (8)  requires that discipline for bullying of a student
  with disabilities comply with applicable requirements under
  federal law, including the Individuals with Disabilities Education
  Act (20 U.S.C. Section 1400 et seq.).
         (f)  Each school district may establish a district-wide
  policy to assist in the prevention and mediation of bullying
  incidents between students that:
               (1)  interfere with a student's educational
  opportunities; or
               (2)  substantially disrupt the orderly operation of a
  classroom, school, or school-sponsored or school-related activity.
         SECTION 3.  Subchapter A, Chapter 37, Education Code, is
  amended by adding Section 37.0052 to read as follows:
         Sec. 37.0052.  PLACEMENT OR EXPULSION OF STUDENTS WHO HAVE
  ENGAGED IN CERTAIN BULLYING BEHAVIOR. (a)  In this section:
               (1)  "Bullying" has the meaning assigned by Section
  37.0832.
               (2)  "Intimate visual material" has the meaning
  assigned by Section 98B.001, Civil Practice and Remedies Code.
         (b)  A student may be removed from class and placed in a
  disciplinary alternative education program as provided by Section
  37.008 or expelled if the student:
               (1)  engages in bullying that encourages a student to
  commit or attempt to commit suicide;
               (2)  incites violence against a student through group
  bullying; or
               (3)  releases or threatens to release intimate visual
  material of a minor or a student who is 18 years of age or older
  without the student's consent.
         (c)  Nothing in this section exempts a school from reporting
  a finding of intimate visual material of a minor.
         SECTION 4.  Subchapter A, Chapter 37, Education Code, is
  amended by adding Section 37.0151 to read as follows:
         Sec. 37.0151.  REPORT TO LOCAL LAW ENFORCEMENT REGARDING
  CERTAIN CONDUCT CONSTITUTING ASSAULT OR HARASSMENT; LIABILITY.
  (a)  The principal of a public primary or secondary school, or a
  person designated by the principal under Subsection (c), may make a
  report to any school district police department, if applicable, or
  the police department of the municipality in which the school is
  located or, if the school is not in a municipality, the sheriff of
  the county in which the school is located if, after an investigation
  is completed, the principal has reasonable grounds to believe that
  a student engaged in conduct that constitutes an offense under
  Section 22.01 or 42.07(a)(7), Penal Code.
         (b)  A person who makes a report under this section may
  include the name and address of each student the person believes may
  have participated in the conduct.
         (c)  The principal of a public primary or secondary school
  may designate a school employee, other than a school counselor, who
  is under the supervision of the principal to make the report under
  this section.
         (d)  A person who is not a school employee but is employed by
  an entity that contracts with a district or school to use school
  property is not required to make a report under this section and may
  not be designated by the principal of a public primary or secondary
  school to make a report. A person who voluntarily makes a report
  under this section is immune from civil or criminal liability.
         (e)  A person who takes any action under this section is
  immune from civil or criminal liability or disciplinary action
  resulting from that action.
         (f)  Notwithstanding any other law, this section does not
  create a civil, criminal, or administrative cause of action or
  liability or create a standard of care, obligation, or duty that
  provides a basis for a cause of action for an act under this
  section.
         (g)  A school district and school personnel and school
  volunteers are immune from suit resulting from an act under this
  section, including an act under related policies and procedures.
         (h)  An act by school personnel or a school volunteer under
  this section, including an act under related policies and
  procedures, is the exercise of judgment or discretion on the part of
  the school personnel or school volunteer and is not considered to be
  a ministerial act for purposes of liability of the school district
  or the district's employees.
         SECTION 5.  Sections 37.218(a)(1) and (2), Education Code,
  are amended to read as follows:
               (1)  "Bullying" has the meaning assigned by Section
  37.0832 [25.0342].
               (2)  "Cyberbullying" has the meaning assigned by
  Section 37.0832 [means the use of any electronic communication
  device to engage in bullying or intimidation].
         SECTION 6.  Section 5.001, Education Code, is amended by
  adding Subdivision (5-a) to read as follows:
               (5-a)  "Mental health condition" means an illness,
  disease, or disorder, other than epilepsy, dementia, substance
  abuse, or intellectual disability, that:
                     (A)  substantially impairs a person's thought,
  perception of reality, emotional process, or judgment; or
                     (B)  grossly impairs behavior as demonstrated by
  recent disturbed behavior.
         SECTION 7.  Section 12.104(b), Education Code, is amended to
  read as follows:
         (b)  An open-enrollment charter school is subject to:
               (1)  a provision of this title establishing a criminal
  offense; and
               (2)  a prohibition, restriction, or requirement, as
  applicable, imposed by this title or a rule adopted under this
  title, relating to:
                     (A)  the Public Education Information Management
  System (PEIMS) to the extent necessary to monitor compliance with
  this subchapter as determined by the commissioner;
                     (B)  criminal history records under Subchapter C,
  Chapter 22;
                     (C)  reading instruments and accelerated reading
  instruction programs under Section 28.006;
                     (D)  accelerated instruction under Section
  28.0211;
                     (E)  high school graduation requirements under
  Section 28.025;
                     (F)  special education programs under Subchapter
  A, Chapter 29;
                     (G)  bilingual education under Subchapter B,
  Chapter 29;
                     (H)  prekindergarten programs under Subchapter E
  or E-1, Chapter 29;
                     (I)  extracurricular activities under Section
  33.081;
                     (J)  discipline management practices or behavior
  management techniques under Section 37.0021;
                     (K)  health and safety under Chapter 38;
                     (L)  public school accountability under
  Subchapters B, C, D, E, F, G, and J, Chapter 39;
                     (M)  the requirement under Section 21.006 to
  report an educator's misconduct;
                     (N)  intensive programs of instruction under
  Section 28.0213; [and]
                     (O)  the right of a school employee to report a
  crime, as provided by Section 37.148;
                     (P)  bullying prevention policies and procedures
  under Section 37.0832;
                     (Q)  the right of a school under Section 37.0052
  to place a student who has engaged in certain bullying behavior in a
  disciplinary alternative education program or to expel the student;
  and
                     (R)  the right under Section 37.0151 to report to
  local law enforcement certain conduct constituting assault or
  harassment.
         SECTION 8.  Section 21.054, Education Code, is amended by
  adding Subsections (d-2) and (e-2) to read as follows:
         (d-2)  Continuing education requirements for a classroom
  teacher may include instruction regarding how grief and trauma
  affect student learning and behavior and how evidence-based,
  grief-informed, and trauma-informed strategies support the
  academic success of students affected by grief and trauma.
         (e-2)  Continuing education requirements for a principal may
  include instruction regarding how grief and trauma affect student
  learning and behavior and how evidence-based, grief-informed, and
  trauma-informed strategies support the academic success of
  students affected by grief and trauma.
         SECTION 9.  Subchapter J, Chapter 21, Education Code, is
  amended by adding Section 21.462 to read as follows:
         Sec. 21.462.  RESOURCES REGARDING STUDENTS WITH MENTAL
  HEALTH NEEDS. The agency, in coordination with the Health and Human
  Services Commission, shall establish and maintain an Internet
  website to provide resources for school district or open-enrollment
  charter school employees regarding working with students with
  mental health conditions.  The agency must include on the Internet
  website information about:
               (1)  grief-informed and trauma-informed practices;
               (2)  building skills related to managing emotions,
  establishing and maintaining positive relationships, and
  responsible decision-making;
               (3)  positive behavior interventions and supports; and
               (4)  a safe and supportive school climate.
         SECTION 10.  Section 33.006, Education Code, is amended by
  amending Subsection (b) and adding Subsection (c) to read as
  follows:
         (b)  In addition to a school counselor's responsibility
  under Subsection (a), the school counselor shall:
               (1)  participate in planning, implementing, and
  evaluating a comprehensive developmental guidance program to serve
  all students and to address the special needs of students:
                     (A)  who are at risk of dropping out of school,
  becoming substance abusers, participating in gang activity, or
  committing suicide;
                     (B)  who are in need of modified instructional
  strategies; or
                     (C)  who are gifted and talented, with emphasis on
  identifying and serving gifted and talented students who are
  educationally disadvantaged;
               (2)  consult with a student's parent or guardian and
  make referrals as appropriate in consultation with the student's
  parent or guardian;
               (3)  consult with school staff, parents, and other
  community members to help them increase the effectiveness of
  student education and promote student success;
               (4)  coordinate people and resources in the school,
  home, and community;
               (5)  with the assistance of school staff, interpret
  standardized test results and other assessment data that help a
  student make educational and career plans; [and]
               (6)  deliver classroom guidance activities or serve as
  a consultant to teachers conducting lessons based on the school's
  guidance curriculum; and
               (7)  serve as an impartial, nonreporting resource for
  interpersonal conflicts and discord involving two or more students,
  including accusations of bullying under Section 37.0832.
         (c)  Nothing in Subsection (b)(7) exempts a school counselor
  from any mandatory reporting requirements imposed by other
  provisions of law.
         SECTION 11.  Title 6, Civil Practice and Remedies Code, is
  amended by adding Chapter 129A to read as follows:
  CHAPTER 129A. RELIEF FOR CYBERBULLYING OF CHILD
         Sec. 129A.001.  DEFINITION. In this chapter,
  "cyberbullying" has the meaning assigned by Section 37.0832(a),
  Education Code.
         Sec. 129A.002.  INJUNCTIVE RELIEF. (a)  A recipient of
  cyberbullying behavior who is younger than 18 years of age at the
  time the cyberbullying occurs or a parent of or person standing in
  parental relation to the recipient may seek injunctive relief under
  this chapter against the individual who was cyberbullying the
  recipient or, if the individual is younger than 18 years of age,
  against a parent of or person standing in parental relation to the
  individual.
         (b)  A court may issue a temporary restraining order,
  temporary injunction, or permanent injunction appropriate under
  the circumstances to prevent any further cyberbullying, including
  an order or injunction:
               (1)  enjoining a defendant from engaging in
  cyberbullying; or
               (2)  compelling a defendant who is a parent of or person
  standing in parental relation to an individual who is younger than
  18 years of age to take reasonable actions to cause the individual
  to cease engaging in cyberbullying.
         (c)  A plaintiff in an action for injunctive relief brought
  under this section is entitled to a temporary restraining order on
  showing that the plaintiff is likely to succeed in establishing
  that the individual was cyberbullying the recipient. The plaintiff
  is not required to plead or prove that, before notice can be served
  and a hearing can be held, immediate and irreparable injury, loss,
  or damage is likely to result from past or future cyberbullying by
  the individual against the recipient.
         (d)  A plaintiff is entitled to a temporary or permanent
  injunction under this section on showing that the individual was
  cyberbullying the recipient.
         (e)  A court granting a temporary restraining order or
  temporary injunction under this section may, on motion of either
  party or sua sponte, order the preservation of any relevant
  electronic communication. The temporary restraining order or
  temporary injunction is not required to:
               (1)  define the injury or state why it is irreparable;
               (2)  state why the order was granted without notice; or
               (3)  include an order setting the cause for trial on the
  merits with respect to the ultimate relief requested.
         Sec. 129A.003.  PROMULGATION OF FORMS. (a)  The supreme
  court shall, as the court finds appropriate, promulgate forms for
  use as an application for initial injunctive relief by individuals
  representing themselves in suits involving cyberbullying and
  instructions for the proper use of each form or set of forms.
         (b)  The forms and instructions:
               (1)  must be written in language that is easily
  understood by the general public;
               (2)  shall be made readily available to the general
  public in the manner prescribed by the supreme court; and
               (3)  must be translated into the Spanish language.
         (c)  The Spanish language translation of a form must:
               (1)  state:
                     (A)  that the Spanish language translated form is
  to be used solely for the purpose of assisting in understanding the
  form and may not be submitted to the court; and
                     (B)  that the English language version of the form
  must be submitted to the court; or
               (2)  be incorporated into the English language version
  of the form in a manner that is understandable to both the court and
  members of the general public.
         (d)  Each form and its instructions must clearly and
  conspicuously state that the form is not a substitute for the advice
  of an attorney.
         (e)  The attorney general and the clerk of a court shall
  inform members of the general public of the availability of a form
  promulgated by the supreme court under this section as appropriate
  and make the form available free of charge.
         (f)  A court shall accept a form promulgated by the supreme
  court under this section unless the form has been completed in a
  manner that causes a substantive defect that cannot be cured.
         Sec. 129A.004.  INAPPLICABILITY. (a)  An action filed under
  this chapter may not be joined with an action filed under Title 1,
  4, or 5, Family Code.
         (b)  Chapter 27 does not apply to an action under this
  chapter.
         Sec. 129A.005.  CERTAIN CONDUCT EXCEPTED. This chapter does
  not apply to a claim brought against an interactive computer
  service, as defined by 47 U.S.C. Section 230, for cyberbullying.
         SECTION 12.  Sections 161.325(a-1), (d), (e), (f), and (i),
  Health and Safety Code, are amended to read as follows:
         (a-1)  The list must include programs in the following areas:
               (1)  early mental health intervention;
               (2)  mental health promotion [and positive youth
  development];
               (3)  substance abuse prevention;
               (4)  substance abuse intervention; [and]
               (5)  suicide prevention;
               (6)  grief-informed and trauma-informed practices;
               (7)  building skills related to managing emotions,
  establishing and maintaining positive relationships, and
  responsible decision-making;
               (8)  positive behavior interventions and supports and
  positive youth development; and
               (9)  safe and supportive school climate.
         (d)  A [The board of trustees of each] school district may
  develop practices and procedures [may adopt a policy] concerning
  each area listed in Subsection (a-1), including mental health
  promotion and intervention, substance abuse prevention and
  intervention, and suicide prevention, that:
               (1)  include [establishes] a procedure for providing
  notice of a recommendation for early mental health or substance
  abuse intervention regarding a student to a parent or guardian of
  the student within a reasonable amount of time after the
  identification of early warning signs as described by Subsection
  (b)(2);
               (2)  include [establishes] a procedure for providing
  notice of a student identified as at risk of committing suicide to a
  parent or guardian of the student within a reasonable amount of time
  after the identification of early warning signs as described by
  Subsection (b)(2);
               (3)  establish [establishes] that the district may
  develop a reporting mechanism and may designate at least one person
  to act as a liaison officer in the district for the purposes of
  identifying students in need of early mental health or substance
  abuse intervention or suicide prevention; and
               (4)  set [sets] out available counseling alternatives
  for a parent or guardian to consider when their child is identified
  as possibly being in need of early mental health or substance abuse
  intervention or suicide prevention.
         (e)  The practices and procedures developed under Subsection
  (d) [policy] must prohibit the use without the prior consent of a
  student's parent or guardian of a medical screening of the student
  as part of the process of identifying whether the student is
  possibly in need of early mental health or substance abuse
  intervention or suicide prevention.
         (f)  The practices [policy] and [any necessary] procedures
  developed [adopted] under Subsection (d) must be included in:
               (1)  the annual student handbook; and
               (2)  the district improvement plan under Section
  11.252, Education Code.
         (i)  Nothing in this section is intended to interfere with
  the rights of parents or guardians and the decision-making
  regarding the best interest of the child. Practices [Policy] and
  procedures developed [adopted] in accordance with this section are
  intended to notify a parent or guardian of a need for mental health
  or substance abuse intervention so that a parent or guardian may
  take appropriate action. Nothing in this section shall be
  construed as giving school districts the authority to prescribe
  medications. Any and all medical decisions are to be made by a
  parent or guardian of a student.
         SECTION 13.  Section 42.07(b)(1), Penal Code, is amended to
  read as follows:
               (1)  "Electronic communication" means a transfer of
  signs, signals, writing, images, sounds, data, or intelligence of
  any nature transmitted in whole or in part by a wire, radio,
  electromagnetic, photoelectronic, or photo-optical system. The
  term includes:
                     (A)  a communication initiated through the use of
  [by] electronic mail, instant message, network call, a cellular or
  other type of telephone, a computer, a camera, text message, a
  social media platform or application, an Internet website, any
  other Internet-based communication tool, or facsimile machine; and
                     (B)  a communication made to a pager.
         SECTION 14.  Section 42.07(c), Penal Code, is amended to
  read as follows:
         (c)  An offense under this section is a Class B misdemeanor,
  except that the offense is a Class A misdemeanor if:
               (1)  the actor has previously been convicted under this
  section; or
               (2)  the offense was committed under Subsection (a)(7)
  and:
                     (A)  the offense was committed against a child
  under 18 years of age with the intent that the child:
                           (i)  commit suicide; or
                           (ii)  engage in conduct causing serious
  bodily injury to the child; or
                     (B)  the actor has previously violated a temporary
  restraining order or injunction issued under Chapter 129A, Civil
  Practice and Remedies Code.
         SECTION 15.  Section 37.0832(b), Education Code, is
  repealed.
         SECTION 16.  The change in law made by this Act applies only
  to an offense committed or conduct violating a penal law of this
  state that occurs on or after the effective date of this Act. An
  offense committed or conduct that occurs before the effective date
  of this Act is governed by the law in effect on the date the offense
  was committed or conduct occurred, and the former law is continued
  in effect for that purpose. For purposes of this section, an
  offense was committed or conduct violating a penal law of this state
  occurred before the effective date of this Act if any element of the
  offense or conduct occurred before that date.
         SECTION 17.  It is the intent of the legislature that every
  provision, section, subsection, sentence, clause, phrase, or word
  in this Act, and every application of the provisions in this Act to
  each person or entity, are severable from each other.  If any
  application of any provision in this Act to any person, group of
  persons, or circumstances is found by a court to be invalid for any
  reason, the remaining applications of that provision to all other
  persons and circumstances shall be severed and may not be affected.
         SECTION 18.  This Act takes effect September 1, 2017.
 
 
 
 
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
         I hereby certify that S.B. No. 179 passed the Senate on
  May 3, 2017, by the following vote:  Yeas 31, Nays 0; May 17, 2017,
  Senate refused to concur in House amendments and requested
  appointment of Conference Committee; May 19, 2017, House granted
  request of the Senate; May 27, 2017, Senate adopted Conference
  Committee Report by the following vote:  Yeas 31, Nays 0.
 
 
  ______________________________
  Secretary of the Senate    
 
         I hereby certify that S.B. No. 179 passed the House, with
  amendments, on May 12, 2017, by the following vote:  Yeas 130,
  Nays 11, one present not voting; May 19, 2017, House granted
  request of the Senate for appointment of Conference Committee;
  May 27, 2017, House adopted Conference Committee Report by the
  following vote:  Yeas 136, Nays 11, two present not voting.
 
 
  ______________________________
  Chief Clerk of the House   
 
 
 
  Approved:
 
  ______________________________ 
             Date
 
 
  ______________________________ 
            Governor
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