Bill Text: TX SB179 | 2017-2018 | 85th Legislature | Engrossed
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-Engrossed.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-Engrossed.html
By: Menéndez, et al. | S.B. No. 179 |
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relating to harassment, bullying, and cyberbullying of a public | ||
school student or minor and 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) and (c) and adding Subsections (a-1) and | ||
(f) 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, 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, or [ |
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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 | ||
not later than the next school day after 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, 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.). | ||
(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 [ |
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(2) "Cyberbullying" has the meaning assigned by | ||
Section 37.0832 [ |
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SECTION 6. 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; [ |
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(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 requirement under Section 37.0151 to | ||
report to local law enforcement certain conduct constituting | ||
harassment. | ||
SECTION 7. 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; [ |
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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, nonreporting conciliator | ||
for interpersonal conflicts and discord involving two or more | ||
students arising out of 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 8. 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 make | ||
the forms 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 9. 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 | ||
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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 10. 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) | ||
against a child under 18 years of age with the intent that the | ||
child: | ||
(A) commit suicide; or | ||
(B) engage in conduct causing serious bodily | ||
injury to the child. | ||
SECTION 11. Section 37.0832(b), Education Code, is | ||
repealed. | ||
SECTION 12. Chapter 129A, Civil Practice and Remedies Code, | ||
as added by this Act, applies only to a cause of action that accrues | ||
on or after the effective date of this Act. A cause of action that | ||
accrues before the effective date of this Act is governed by the law | ||
in effect immediately before that date, and that law is continued in | ||
effect for that purpose. | ||
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 14. This Act takes effect September 1, 2017. |