Bill Text: TX SB179 | 2017-2018 | 85th Legislature | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
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: Bipartisan Bill
Status: (Passed) 2017-06-09 - Effective on 9/1/17 [SB179 Detail]
Download: Texas-2017-SB179-Introduced.html
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: Bipartisan Bill
Status: (Passed) 2017-06-09 - Effective on 9/1/17 [SB179 Detail]
Download: Texas-2017-SB179-Introduced.html
By: Menéndez, Zaffirini | S.B. No. 179 | |
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relating to student harassment, bullying, cyberbullying, injury to | ||
or death of a minor; creating a criminal offense. | ||
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), (c), (d), and (e) and adding Subsection | ||
(a-1) to read as follows: | ||
(a) In this section: | ||
(1) "Bullying": | ||
(A) [ |
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or a pattern of acts by one or more students directed at another | ||
student that exploits an imbalance of power and involves[ |
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expression through electronic means, or physical conduct, that | ||
satisfies the applicability requirements provided by Subsection | ||
(a-1), [ |
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and that: | ||
(i) [ |
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effect of physically harming a student, causing a student to | ||
experience substantial negative mental health effects, 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; [ |
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(ii) [ |
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persistent, 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 electronic communication, including through the | ||
use of a cellular or other type of telephone, a computer, a pager, a | ||
camera, electronic mail, instant messaging, text messaging, a | ||
social media application, Internet website, or 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 van being used for transportation of students to | ||
or from school or a school-sponsored or school-related activity; | ||
(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 and the | ||
governing body of each open-enrollment charter school or private | ||
school shall adopt a policy, including any necessary procedures, | ||
concerning bullying that: | ||
(1) prohibits the bullying and cyberbullying 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 parent or guardian of the victim and a | ||
parent or guardian of the bully not later than the next school day | ||
[ |
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reported; | ||
(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, parent, teacher, | ||
or administrator 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.). | ||
(d) The policy and any necessary procedures adopted under | ||
Subsection (c) must be included: | ||
(1) annually, in any [ |
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[ |
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(2) in the district improvement plan under Section | ||
11.252. | ||
(e) The procedure for reporting bullying established under | ||
Subsection (c) must be posted on the district's or school's Internet | ||
website to the extent practicable. | ||
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 minor to | ||
commit or attempt to commit suicide; | ||
(2) incites violence against a minor through group | ||
bullying; or | ||
(3) releases or threatens to release 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 or private primary or secondary school, or | ||
a person designated by the principal under Subsection (c), shall | ||
make a report to any school district police department and 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 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 shall | ||
include the name and address of each student the person believes may | ||
have participated in the conduct. | ||
(c) The principal of a public or private 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 is not liable in civil damages for making a | ||
report in good faith under this section. | ||
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 [ |
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(2) "Cyberbullying" has the meaning assigned by | ||
Section 37.0832 [ |
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SECTION 6. Section 33.006(b), Education Code, is amended 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; [ |
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(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 mediator for interpersonal | ||
conflicts involving two or more students, including accusations of | ||
bullying or cyberbullying under Section 37.0832. | ||
SECTION 7. Chapter 18, Civil Practice and Remedies Code, is | ||
amended by adding Subchapter E to read as follows: | ||
SUBCHAPTER E. SUBPOENAS | ||
Sec. 18.101. PRE-SUIT SUBPOENAS FOR CERTAIN CLAIMS | ||
INVOLVING MINORS. (a) The supreme court shall adopt rules of | ||
civil procedure providing for the issuance of a pre-suit subpoena | ||
to: | ||
(1) investigate a potential claim involving an injury | ||
to or death of a minor; or | ||
(2) perpetuate or obtain evidence or testimony from | ||
any person for use in an anticipated action involving an injury to | ||
or death of a minor. | ||
(b) The rules must: | ||
(1) allow a party to request a subpoena to compel an | ||
oral or written deposition, the production of electronic or | ||
magnetic data, or the production of documents or tangible things; | ||
and | ||
(2) require that a responding party provide any | ||
electronic or magnetic data or documentary or tangible evidence to | ||
the court under seal for the court to determine, after notice, | ||
hearing, and an in camera inspection, if the evidence should be | ||
released to the requesting party. | ||
SECTION 8. Title 4, Civil Practice and Remedies Code, is | ||
amended by adding Chapter 100B to read as follows: | ||
CHAPTER 100B. LIABILITY FOR CERTAIN BULLYING OF CHILD | ||
Sec. 100B.001. DEFINITIONS. In this chapter: | ||
(1) "Bullying communication" means written or oral | ||
expression, expression by means of electronic communication, or | ||
non-verbal expression: | ||
(A) that consists of multiple communications: | ||
(i) with respect to which the individual | ||
making the communication acts intentionally and with malice; | ||
(ii) where the communications: | ||
(a) when taken together, were extreme | ||
and outrageous in light of the content, manner, time, place, and | ||
number of such communications; or | ||
(b) were harassing and offensive, and | ||
the individual making the communication acts was acting in concert | ||
with two or more other persons whose communications directed at the | ||
recipient the individual making the communication acts knew to be | ||
harassing and offensive, if such communications by the individual | ||
making the communication acts and such other persons, when taken | ||
together, were extreme and outrageous in light of the manner, time, | ||
place, and number of such communications; and | ||
(iii) with respect to which the | ||
actions of the individual making the communication caused, or if | ||
made in concert with other persons as provided in clause | ||
(1)(A)(ii)(b) of this Section, contributed to causing, the | ||
recipient to suffer severe emotional distress; or | ||
(B) in which the individual making the | ||
communication: | ||
(i) urges or incites the recipient to | ||
commit or attempt to commit suicide; | ||
(ii) threatens to make available to | ||
any third party, whether or not specified, by electronic | ||
communication or otherwise, intimate visual material of or | ||
depicting the recipient of the bullying communication; or | ||
(iii) threatens bodily injury to the | ||
recipient or a member of the recipient's family. | ||
(2) "Claimant" means a party seeking to recover | ||
damages under this chapter, including a plaintiff, | ||
counter-claimant, crossclaimant, or third-party plaintiff, and | ||
includes a party seeking recovery of damages under this chapter on | ||
behalf of another person and the person on whose behalf the damages | ||
are sought. | ||
(3) "Defendant" includes any party from whom a | ||
claimant seeks recovery of damages under this chapter, and includes | ||
a person from whom a claimant seeks recovery under Section 100B.005 | ||
and the child who engaged in the actionable bullying that is the | ||
subject of the action in which recovery is sought. | ||
(4) "Electronic communication" means a transfer of | ||
signs, signals, writing, images, sounds, data, or intelligence of | ||
any nature transmitted wholly or partly by a wire, radio, | ||
electromagnetic, photoelectronic, or photo-optical system | ||
including through the use of a cellular or other type of telephone, | ||
facsimile machine, a computer, a pager, a camera, electronic mail, | ||
instant messaging, text messaging, a social media application, | ||
Internet website, or other Internet-based communication tool. | ||
(5) "Family" has the meaning assigned by Section | ||
71.003, Family Code. | ||
(6) "Interactive service" means an information | ||
service, system, wireless telephone and text message service, or | ||
access software provider that provides or enables electronic | ||
communication through computer or wireless telephone access by | ||
multiple users to a computer server or wireless telephone network, | ||
including a system that provides access to the Internet or wireless | ||
telephones. | ||
(7) "Intimate visual material" has the meaning | ||
assigned by Section 98B.001, Civil Practice and Remedies Code. | ||
Sec. 100B.002. ACTIONABLE BULLYING. A person engages in | ||
actionable bullying for the purposes of this chapter if the person | ||
directs bullying communication toward a single recipient who, at | ||
the time of the bullying communication, is younger than 18 years of | ||
age. | ||
Sec. 100B.003. LIABILITY. A defendant is liable to a | ||
claimant as provided by this chapter if the claimant shows that the | ||
defendant engaged in actionable bullying directed toward the | ||
claimant. | ||
Sec. 100B.004. DAMAGES. (a) A claimant who prevails in a | ||
suit under this chapter may recover actual damages for all | ||
physical, mental, or emotional injury caused by, resulting from, or | ||
arising out of the actionable bullying that is the subject of the | ||
suit. The claimant may recover actual damages for mental anguish | ||
even if an injury other than mental anguish is not shown. | ||
(b) Except as provided by Subsection (c), in addition to | ||
damages awarded under Subsection (a), a claimant who prevails in a | ||
suit under this chapter may recover: | ||
(1) exemplary damages; and | ||
(2) court costs and reasonable attorney's fees. | ||
(c) Instead of recovering exemplary damages under | ||
Subsection (b), a claimant who prevails in a suit under this chapter | ||
may elect to treble the amount that would otherwise be awarded under | ||
Subsection (a), not to exceed $75,000.00 under this subsection (c) | ||
per actionable claim, if the claimant shows that: | ||
(1) the defendant used an interactive service to | ||
transfer electronic communication to the claimant that constituted | ||
actionable bullying; and | ||
(2) the defendant knew that two or more other persons | ||
were using that interactive service to transfer electronic | ||
communication that constituted actionable bullying as to the | ||
claimant within 24 hours of each transfer by the defendant | ||
described by Subdivision (1). | ||
Sec. 100B.005. PARENTAL RESPONSIBILITY. A parent or other | ||
person who has the duty of control and reasonable discipline of a | ||
child who engages in actionable bullying directed toward the | ||
claimant is liable to the claimant for: | ||
(1) the lesser of: | ||
(A) damages recoverable by the claimant under | ||
Section 100B.004, including exemplary damages or multiplied | ||
damages, as applicable; or | ||
(B) $50,000; and | ||
(2) court costs and reasonable attorney's fees. | ||
Sec. 100B.006. INJUNCTIVE RELIEF. If a defendant is found | ||
liable under this chapter, a court may order any injunctive relief | ||
sought by the claimant that the court determines is appropriate | ||
under the circumstances. | ||
Sec. 100B.007. DEFENSE. It is a defense to liability under | ||
this chapter that the defendant was engaged in conduct that | ||
constituted a constitutionally protected exercise of the | ||
defendant's rights to free speech. | ||
Sec. 100B.008. CAUSE OF ACTION CUMULATIVE. The cause of | ||
action created by this chapter is cumulative of any other remedy | ||
provided by common law or statute. | ||
SECTION 9. Chapter 22, Penal Code, is amended by adding | ||
Section 22.081 to read as follows: | ||
Sec. 22.081. INDUCING SUICIDE OR ATTEMPTED SUICIDE OF | ||
A MINOR BY NONPHYSICAL BULLYING. | ||
Sec 22.081 DEFINITIONS. In this section: | ||
(1) "Electronic communication" has the meaning | ||
assigned by Section 42.07(b)(1), Penal Code. | ||
(2) "Intimate parts," "sexual conduct," and | ||
"visual material" have the meanings assigned by Section 21.16, | ||
Penal Code. | ||
(3) "Intimate visual material" means visual | ||
material that depicts a person: | ||
(A) with the person's intimate parts exposed; or | ||
(B) engaged in sexual conduct. | ||
(4) "Suicide baiting" means a communication by a | ||
person directed at another by written or verbal expression, | ||
expression through an electronic communication, or non-verbal | ||
expression, that urges or incites the other to commit or attempt to | ||
commit suicide. | ||
(a) A person commits an offense if such person intentionally | ||
and with malice directs one or more communications toward a child | ||
younger than 18 years of age by written or oral expression, | ||
expression through electronic communications, or nonverbal | ||
expression, and such communication was, or such communications when | ||
taken together were, harassing, extreme and outrageous in light of | ||
the content, number, manner, time, and place of such communication | ||
or communications; and | ||
(1) the actor's conduct causes the suicide, or the | ||
attempted suicide of such child that results in serious bodily | ||
injury; or | ||
(2) the actor was acting in concert with two or more | ||
other persons whose communications directed at such child the actor | ||
knew to be harassing, extreme and outrageous in light of the | ||
content, number, manner, time, and place of such other | ||
communications, and the cumulative effect of such communication or | ||
communications by the actor and such communications by such other | ||
persons was to cause the suicide of such child, or the attempted | ||
suicide of such child that results in serious bodily injury. | ||
(b) A person commits an offense if such person intentionally | ||
and with malice directs one or more communications toward a child | ||
younger than 18 years of age by written or oral expression, | ||
expression through electronic communications, or non-verbal | ||
expression, and in such communication or communications the person | ||
threatened to make available to any third party, whether or not | ||
specified, by electronic communication, or otherwise, intimate | ||
visual material of or depicting such child, and such conduct by the | ||
actor causes the suicide of such child, or the attempted suicide of | ||
such child that results in serious bodily injury. | ||
(c) An offense under this section is a Class A misdemeanor. | ||
SECTION 10. 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 by electronic | ||
mail, instant message, Internet website, social media application, | ||
network call, [ |
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communication tool; and | ||
(B) a communication made to a pager. | ||
SECTION 11. Section 37.0832(b), Education Code, is | ||
repealed. | ||
SECTION 12. Chapter 100B, Civil Practice and Remedies Code, | ||
as added by this Act, applies only with respect to bullying | ||
communications engaged in on or after the effective date of this | ||
Act. | ||
SECTION 13. 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 10. This Act takes effect September 1, 2017. |