Bill Text: TX SB2238 | 2017-2018 | 85th Legislature | Comm Sub

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Bill Title: Relating to certain sexual offenses and certain other offenses involving conduct of a sexual nature, including the creation of the criminal offenses of sexual coercion, indecent assault, and possession or promotion of lewd visual material depicting a child, and to certain criminal acts committed in relation to those offenses.

Spectrum: Slight Partisan Bill (Democrat 2-1)

Status: (Engrossed - Dead) 2017-05-23 - Placed on General State Calendar [SB2238 Detail]

Download: Texas-2017-SB2238-Comm_Sub.html

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85R29822 JRR-D
By: Garcia S.B. No. 2238
(Dale, Moody)
Substitute the following for S.B. No. 2238: No.

A BILL TO BE ENTITLED
AN ACT
relating to certain sexual offenses and certain other offenses
involving conduct of a sexual nature, including the creation of the
criminal offenses of sexual coercion, indecent assault, and
possession or promotion of lewd visual material depicting a child,
and to certain criminal acts committed in relation to those
offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 21, Penal Code, is amended by adding
Section 21.18 to read as follows:
Sec. 21.18. SEXUAL COERCION. (a) In this section:
(1) "Intimate visual material" means the visual
material described by Section 21.16(b)(1) or (c), as added by
Chapter 852 (S.B. 1135), Acts of the 84th Legislature, Regular
Session, 2015.
(2) "Sexual conduct" has the meaning assigned by
Section 43.25.
(b) A person commits an offense if:
(1) with the intent to coerce another person either to
engage in sexual conduct or to produce, provide, or distribute
intimate visual material, the actor communicates a threat:
(A) against the other person's person, property,
or reputation; or
(B) to distribute or cause distribution of
intimate visual material of the other person; or
(2) the actor knowingly causes another person to
engage in sexual conduct or to produce, provide, or distribute
intimate visual material, by means of a threat:
(A) against the other person's person, property,
or reputation; or
(B) to distribute or cause distribution of
intimate visual material of the other person.
(c) This section applies to a threat regardless of how that
threat is communicated, including a threat transmitted through
e-mail or an Internet website, social media account, or chat room
and a threat made by other electronic or technological means.
(d) An offense under this section is a state jail felony,
except that the offense is a felony of the third degree if it is
shown on the trial of the offense that the defendant has previously
been convicted of an offense under this section.
(e) If conduct that constitutes an offense under this
section also constitutes an offense under any other law, the actor
may be prosecuted under this section, the other law, or both.
SECTION 2. Section 22.011, Penal Code, is amended by
amending Subsection (b) and adding Subsection (e-1) to read as
follows:
(b) A sexual assault under Subsection (a)(1) is without the
consent of the other person if:
(1) the actor compels the other person to submit or
participate by the use of physical force, [or] violence, or
coercion;
(2) the actor compels the other person to submit or
participate by threatening to use force or violence against the
other person or to cause harm to the other person, and the other
person believes that the actor has the present ability to execute
the threat;
(3) the other person has not consented and the actor
knows the other person is:
(A) unconscious;
(B) [or] physically unable to resist;
(C) incapable of appraising the nature of the
act; or
(D) unaware that the sexual assault is occurring;
(4) the actor knows that as a result of mental disease
or defect the other person is at the time of the sexual assault
incapable either of appraising the nature of the act or of resisting
it;
(5) [the other person has not consented and the actor
knows the other person is unaware that the sexual assault is
occurring;
[(6) the actor has intentionally impaired the other
person's power to appraise or control the other person's conduct by
administering any substance without the other person's knowledge;
[(7)] the actor compels the other person to submit or
participate by threatening to use force or violence against any
person, and the other person believes that the actor has the ability
to execute the threat;
(6) [(8) the actor is a public servant who coerces the
other person to submit or participate;
[(9)] the actor is a mental health services provider
or a health care services provider who causes the other person, who
is a patient or former patient of the actor, to submit or
participate by exploiting the other person's emotional dependency
on the actor;
(7) [(10)] the actor is a clergyman who causes the
other person to submit or participate by exploiting the other
person's emotional dependency on the clergyman in the clergyman's
professional character as spiritual adviser; [or]
(8) [(11)] the actor is an employee of a facility
where the other person is a resident, unless the employee and
resident are formally or informally married to each other under
Chapter 2, Family Code; or
(9) the actor knows that the other person has
withdrawn consent to the act and the actor persists in the act after
consent is withdrawn.
(e-1) It is not a defense to prosecution under this section
that the actor mistakenly believed that the other person consented
to the conduct if a reasonable person should have known or
understood that the other person did not consent to the conduct.
SECTION 3. Chapter 22, Penal Code, is amended by adding
Section 22.012 to read as follows:
Sec. 22.012. INDECENT ASSAULT. (a) A person commits an
offense if, without the other person's consent and with the intent
to arouse or gratify the sexual desire of any person, the person:
(1) touches, including through clothing, the anus,
breast, or any part of the genitals of another person;
(2) touches another person, including through
clothing, with the anus, breast, or any part of the genitals of any
person;
(3) exposes or attempts to expose another person's
genitals, pubic area, anus, buttocks, or female areola; or
(4) causes another person to contact the blood,
seminal fluid, vaginal fluid, saliva, urine, or feces of any
person, including contact occurring through clothing.
(b) An offense under this section is a Class A misdemeanor.
(c) If conduct that constitutes an offense under this
section also constitutes an offense under another law, the actor
may be prosecuted under this section, the other law, or both.
SECTION 4. Section 22.021, Penal Code, is amended by
amending Subsection (a) and adding Subsection (d-1) to read as
follows:
(a) A person commits an offense:
(1) if the person:
(A) intentionally or knowingly:
(i) causes the penetration of the anus or
sexual organ of another person by any means, without that person's
consent;
(ii) causes the penetration of the mouth of
another person by the sexual organ of the actor, without that
person's consent; or
(iii) causes the sexual organ of another
person, without that person's consent, to contact or penetrate the
mouth, anus, or sexual organ of another person, including the
actor; or
(B) intentionally or knowingly:
(i) causes the penetration of the anus or
sexual organ of a child by any means;
(ii) causes the penetration of the mouth of
a child by the sexual organ of the actor;
(iii) causes the sexual organ of a child to
contact or penetrate the mouth, anus, or sexual organ of another
person, including the actor;
(iv) causes the anus of a child to contact
the mouth, anus, or sexual organ of another person, including the
actor; or
(v) causes the mouth of a child to contact
the anus or sexual organ of another person, including the actor; and
(2) if:
(A) the person:
(i) causes serious bodily injury or
attempts to cause the death of the victim or another person in the
course of the same criminal episode;
(ii) by acts or words places the victim in
fear that any person will become the victim of an offense under
Section 20A.02(a)(3), (4), (7), or (8) or that death, serious
bodily injury, or kidnapping will be imminently inflicted on any
person;
(iii) by acts or words occurring in the
presence of the victim threatens to cause any person to become the
victim of an offense under Section 20A.02(a)(3), (4), (7), or (8) or
to cause the death, serious bodily injury, or kidnapping of any
person;
(iv) uses or exhibits a deadly weapon in the
course of the same criminal episode;
(v) acts in concert with another who
engages in conduct described by Subdivision (1) directed toward the
same victim and occurring during the course of the same criminal
episode; or
(vi) with the intent of facilitating the
commission of the offense, administers or provides [flunitrazepam,
otherwise known as rohypnol, gamma hydroxybutyrate, or ketamine] to
the victim of the offense any substance capable of impairing the
victim's ability to appraise the nature of the act or to resist the
act [with the intent of facilitating the commission of the
offense];
(B) the victim is younger than 14 years of age; or
(C) the victim is an elderly individual or a
disabled individual.
(d-1) It is not a defense to prosecution under this section
that the actor mistakenly believed that the other person consented
to the conduct if a reasonable person should have known or
understood that the other person did not consent to the conduct.
SECTION 5. Subchapter B, Chapter 43, Penal Code, is amended
by adding Section 43.262 to read as follows:
Sec. 43.262. POSSESSION OR PROMOTION OF LEWD VISUAL
MATERIAL DEPICTING CHILD. (a) In this section:
(1) "Promote" 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 of an unclothed, partially clothed, or clothed child who
is younger than 18 years of age at the time the visual material was
created;
(2) appeals to the prurient interest in sex; and
(3) has no serious literary, artistic, political, or
scientific value.
(c) An offense under this section is a state jail felony,
except that the offense is:
(1) a felony of the third degree if it is shown on the
trial of the offense that the person has been previously convicted
one time of an offense under this section or Section 43.26; and
(2) a felony of the second degree if it is shown on the
trial of the offense that the person has been previously convicted
two or more times of an offense under this section or Section 43.26.
(d) It is not a defense to prosecution under this section
that the depicted child consented to the creation of the visual
material.
SECTION 6. The heading to Chapter 7A, Code of Criminal
Procedure, is amended to read as follows:
CHAPTER 7A. PROTECTIVE ORDER FOR VICTIMS OF SEXUAL ASSAULT OR
ABUSE, INDECENT ASSAULT, STALKING, OR TRAFFICKING
SECTION 7. Article 7A.01(a), Code of Criminal Procedure, is
amended to read as follows:
(a) The following persons may file an application for a
protective order under this chapter without regard to the
relationship between the applicant and the alleged offender:
(1) a person who is the victim of an offense under
Section 21.02, 21.11, 22.011, 22.012, 22.021, or 42.072, Penal
Code;
(2) a person who is the victim of an offense under
Section 20A.02, 20A.03, or 43.05, Penal Code;
(3) a parent or guardian acting on behalf of a person
younger than 17 years of age who is the victim of an offense listed
in Subdivision (1);
(4) a parent or guardian acting on behalf of a person
younger than 18 years of age who is the victim of an offense listed
in Subdivision (2); or
(5) a prosecuting attorney acting on behalf of a
person described by Subdivision (1), (2), (3), or (4).
SECTION 8. Article 7A.02, Code of Criminal Procedure, is
amended to read as follows:
Art. 7A.02. TEMPORARY EX PARTE ORDER. If the court finds
from the information contained in an application for a protective
order that there is a clear and present danger of sexual assault or
abuse, indecent assault, stalking, trafficking, or other harm to
the applicant, the court, without further notice to the alleged
offender and without a hearing, may enter a temporary ex parte order
for the protection of the applicant or any other member of the
applicant's family or household.
SECTION 9. Article 7A.03(a), Code of Criminal Procedure, is
amended to read as follows:
(a) At the close of a hearing on an application for a
protective order under this chapter, the court shall find whether
there are reasonable grounds to believe that the applicant is the
victim of sexual assault or abuse, indecent assault, stalking, or
trafficking.
SECTION 10. Article 7A.035, Code of Criminal Procedure, is
amended to read as follows:
Art. 7A.035. HEARSAY STATEMENT OF CHILD VICTIM. In a
hearing on an application for a protective order under this
chapter, a statement that is made by a child younger than 14 years
of age who is the victim of an offense under Section 21.02, 21.11,
22.011, 22.012, or 22.021, Penal Code, and that describes the
offense committed against the child is admissible as evidence in
the same manner that a child's statement regarding alleged abuse
against the child is admissible under Section 104.006, Family Code,
in a suit affecting the parent-child relationship.
SECTION 11. Articles 17.292(a) and (g), Code of Criminal
Procedure, are amended to read as follows:
(a) At a defendant's appearance before a magistrate after
arrest for an offense involving family violence or an offense under
Section 20A.02, 20A.03, 22.011, 22.012, 22.021, or 42.072, Penal
Code, the magistrate may issue an order for emergency protection on
the magistrate's own motion or on the request of:
(1) the victim of the offense;
(2) the guardian of the victim;
(3) a peace officer; or
(4) the attorney representing the state.
(g) An order for emergency protection issued under this
article must contain the following statements printed in bold-face
type or in capital letters:
"A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED
BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY
CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR OR BY BOTH. AN ACT THAT
RESULTS IN [FAMILY VIOLENCE OR] A SEPARATE [STALKING OR
TRAFFICKING] OFFENSE MAY BE PROSECUTED AS A SEPARATE MISDEMEANOR OR
FELONY OFFENSE, AS APPLICABLE, IN ADDITION TO A VIOLATION OF THIS
ORDER. IF THE ACT IS PROSECUTED AS A SEPARATE FELONY OFFENSE, IT IS
PUNISHABLE BY CONFINEMENT IN PRISON FOR AT LEAST TWO YEARS. THE
POSSESSION OF A FIREARM BY A PERSON, OTHER THAN A PEACE OFFICER, AS
DEFINED BY SECTION 1.07, PENAL CODE, ACTIVELY ENGAGED IN EMPLOYMENT
AS A SWORN, FULL-TIME PAID EMPLOYEE OF A STATE AGENCY OR POLITICAL
SUBDIVISION, WHO IS SUBJECT TO THIS ORDER MAY BE PROSECUTED AS A
SEPARATE OFFENSE PUNISHABLE BY CONFINEMENT OR IMPRISONMENT.
"NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS
ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY
PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS
VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT
UNLESS A COURT CHANGES THE ORDER."
SECTION 12. The heading to Article 56.021, Code of Criminal
Procedure, is amended to read as follows:
Art. 56.021. RIGHTS OF VICTIM OF SEXUAL ASSAULT OR ABUSE,
INDECENT ASSAULT, STALKING, OR TRAFFICKING.
SECTION 13. (a) Article 56.021(d), Code of Criminal
Procedure, as added by Chapter 1032 (H.B. 1447), Acts of the 84th
Legislature, Regular Session, 2015, is amended to read as follows:
(d) This subsection applies only to a victim of an offense
under Section 20A.02, 20A.03, 21.02, 21.11, 22.011, 22.012, 22.021,
42.072, or 43.05, Penal Code. In addition to the rights enumerated
in Article 56.02 and, if applicable, Subsection (a) of this
article, a victim described by this subsection or a parent or
guardian of the victim is entitled to the following rights within
the criminal justice system:
(1) the right to request that the attorney
representing the state, subject to the Texas Disciplinary Rules of
Professional Conduct, file an application for a protective order
under Article 7A.01 on behalf of the victim;
(2) the right to be informed:
(A) that the victim or the victim's parent or
guardian, as applicable, may file an application for a protective
order under Article 7A.01;
(B) of the court in which the application for a
protective order may be filed; and
(C) that, on request of the victim or the
victim's parent or guardian, as applicable, and subject to the
Texas Disciplinary Rules of Professional Conduct, the attorney
representing the state may file the application for a protective
order;
(3) if the victim or the victim's parent or guardian,
as applicable, is present when the defendant is convicted or placed
on deferred adjudication community supervision, the right to be
given by the court the information described by Subdivision (2)
and, if the court has jurisdiction over applications for protective
orders that are filed under Article 7A.01, the right to file an
application for a protective order immediately following the
defendant's conviction or placement on deferred adjudication
community supervision; and
(4) if the victim or the victim's parent or guardian,
as applicable, is not present when the defendant is convicted or
placed on deferred adjudication community supervision, the right to
be given by the attorney representing the state the information
described by Subdivision (2).
(b) Article 56.021(d), Code of Criminal Procedure, as added
by Chapter 1153 (S.B. 630), Acts of the 84th Legislature, Regular
Session, 2015, is repealed as duplicative of Article 56.021(d),
Code of Criminal Procedure, as added by Chapter 1032 (H.B. 1447),
Acts of the 84th Legislature, Regular Session, 2015.
SECTION 14. Sections 411.042(b) and (g), Government Code,
are amended to read as follows:
(b) The bureau of identification and records shall:
(1) procure and file for record photographs, pictures,
descriptions, fingerprints, measurements, and other pertinent
information of all persons arrested for or charged with a criminal
offense or convicted of a criminal offense, regardless of whether
the conviction is probated;
(2) collect information concerning the number and
nature of offenses reported or known to have been committed in the
state and the legal steps taken in connection with the offenses, and
other information useful in the study of crime and the
administration of justice, including information that enables the
bureau to create a statistical breakdown of:
(A) offenses in which family violence was
involved;
(B) offenses under Sections 22.011 and 22.021,
Penal Code; and
(C) offenses under Sections 20A.02 and 43.05,
Penal Code;
(3) make ballistic tests of bullets and firearms and
chemical analyses of bloodstains, cloth, materials, and other
substances for law enforcement officers of the state;
(4) cooperate with identification and crime records
bureaus in other states and the United States Department of
Justice;
(5) maintain a list of all previous background checks
for applicants for any position regulated under Chapter 1702,
Occupations Code, who have undergone a criminal history background
check under Section 411.119, if the check indicates a Class B
misdemeanor or equivalent offense or a greater offense;
(6) collect information concerning the number and
nature of protective orders and magistrate's orders of emergency
protection and all other pertinent information about all persons
subject to active orders, including pertinent information about
persons subject to conditions of bond imposed for the protection of
the victim in any family violence, sexual assault or abuse,
indecent assault, stalking, or trafficking case. Information in
the law enforcement information system relating to an active order
shall include:
(A) the name, sex, race, date of birth, personal
descriptors, address, and county of residence of the person to whom
the order is directed;
(B) any known identifying number of the person to
whom the order is directed, including the person's social security
number or driver's license number;
(C) the name and county of residence of the
person protected by the order;
(D) the residence address and place of employment
or business of the person protected by the order, unless that
information is excluded from the order under Section 85.007, Family
Code, or Article 17.292(e), Code of Criminal Procedure;
(E) the child-care facility or school where a
child protected by the order normally resides or which the child
normally attends, unless that information is excluded from the
order under Section 85.007, Family Code, or Article 17.292(e), Code
of Criminal Procedure;
(F) the relationship or former relationship
between the person who is protected by the order and the person to
whom the order is directed;
(G) the conditions of bond imposed on the person
to whom the order is directed, if any, for the protection of a
victim in any family violence, sexual assault or abuse, indecent
assault, stalking, or trafficking case;
(H) any minimum distance the person subject to
the order is required to maintain from the protected places or
persons; and
(I) the date the order expires;
(7) grant access to criminal history record
information in the manner authorized under Subchapter F;
(8) collect and disseminate information regarding
offenders with mental impairments in compliance with Chapter 614,
Health and Safety Code; and
(9) record data and maintain a state database for a
computerized criminal history record system and computerized
juvenile justice information system that serves:
(A) as the record creation point for criminal
history record information and juvenile justice information
maintained by the state; and
(B) as the control terminal for the entry of
records, in accordance with federal law and regulations, federal
executive orders, and federal policy, into the federal database
maintained by the Federal Bureau of Investigation.
(g) The department may adopt reasonable rules under this
section relating to:
(1) law enforcement information systems maintained by
the department;
(2) the collection, maintenance, and correction of
records;
(3) reports of criminal history information submitted
to the department;
(4) active protective orders and reporting procedures
that ensure that information relating to the issuance and dismissal
of an active protective order is reported to the local law
enforcement agency at the time of the order's issuance or dismissal
and entered by the local law enforcement agency in the state's law
enforcement information system;
(5) the collection of information described by
Subsection (h);
(6) a system for providing criminal history record
information through the criminal history clearinghouse under
Section 411.0845; and
(7) active conditions of bond imposed on a defendant
for the protection of a victim in any family violence, sexual
assault or abuse, indecent assault, stalking, or trafficking case,
and reporting procedures that ensure that information relating to
the issuance, modification, or removal of the conditions of bond is
reported, at the time of the issuance, modification, or removal,
to:
(A) the victim or, if the victim is deceased, a
close relative of the victim; and
(B) the local law enforcement agency for entry by
the local law enforcement agency in the state's law enforcement
information system.
SECTION 15. The heading to Section 25.07, Penal Code, is
amended to read as follows:
Sec. 25.07. VIOLATION OF CERTAIN COURT ORDERS OR CONDITIONS
OF BOND IN A FAMILY VIOLENCE, SEXUAL ASSAULT OR ABUSE, INDECENT
ASSAULT, STALKING, OR TRAFFICKING CASE.
SECTION 16. Section 25.07(a), Penal Code, is amended to
read as follows:
(a) A person commits an offense if, in violation of a
condition of bond set in a family violence, sexual assault or abuse,
indecent assault, stalking, or trafficking case and related to the
safety of a victim or the safety of the community, an order issued
under Chapter 7A, Code of Criminal Procedure, an order issued under
Article 17.292, Code of Criminal Procedure, an order issued under
Section 6.504, Family Code, Chapter 83, Family Code, if the
temporary ex parte order has been served on the person, or Chapter
85, Family Code, or an order issued by another jurisdiction as
provided by Chapter 88, Family Code, the person knowingly or
intentionally:
(1) commits family violence or an act in furtherance
of an offense under Section 20A.02, 22.011, 22.012, 22.021, or
42.072;
(2) communicates:
(A) directly with a protected individual or a
member of the family or household in a threatening or harassing
manner;
(B) a threat through any person to a protected
individual or a member of the family or household; or
(C) in any manner with the protected individual
or a member of the family or household except through the person's
attorney or a person appointed by the court, if the violation is of
an order described by this subsection and the order prohibits any
communication with a protected individual or a member of the family
or household;
(3) goes to or near any of the following places as
specifically described in the order or condition of bond:
(A) the residence or place of employment or
business of a protected individual or a member of the family or
household; or
(B) any child care facility, residence, or school
where a child protected by the order or condition of bond normally
resides or attends;
(4) possesses a firearm;
(5) harms, threatens, or interferes with the care,
custody, or control of a pet, companion animal, or assistance
animal that is possessed by a person protected by the order or
condition of bond; or
(6) removes, attempts to remove, or otherwise tampers
with the normal functioning of a global positioning monitoring
system.
SECTION 17. Section 25.07(b), Penal Code, is amended by
adding Subdivision (8) to read as follows:
(8) "Indecent assault" means any conduct that
constitutes an offense under Section 22.012.
SECTION 18. The heading to Section 25.072, Penal Code, is
amended to read as follows:
Sec. 25.072. REPEATED VIOLATION OF CERTAIN COURT ORDERS OR
CONDITIONS OF BOND IN FAMILY VIOLENCE, SEXUAL ASSAULT OR ABUSE,
INDECENT ASSAULT, STALKING, OR TRAFFICKING CASE.
SECTION 19. Chapter 7A, Code of Criminal Procedure, as
amended by this Act, and Article 17.292, Code of Criminal
Procedure, as amended by this Act, apply only to a protective order
or magistrate's order for emergency protection that is issued on or
after the effective date of this Act. An order issued before the
effective date of this Act is governed by the law in effect on the
date the order is issued, and the former law is continued in effect
for that purpose.
SECTION 20. Article 56.021(d), Code of Criminal Procedure,
as amended by this Act, applies to a victim of criminally injurious
conduct for which a judgment of conviction is entered or a grant of
deferred adjudication is made on or after the effective date of this
Act, regardless of whether the criminally injurious conduct
occurred before, on, or after the effective date of this Act.
SECTION 21. Sections 22.011, 22.021, 25.07, and 25.072,
Penal Code, as amended by this Act, apply only to an offense
committed on or after the effective date of this Act. An offense
committed before the effective date of this Act is governed by the
law in effect on the date the offense was committed, and the former
law is continued in effect for that purpose. For purposes of this
section, an offense was committed before the effective date of this
Act if any element of the offense occurred before that date.
SECTION 22. To the extent of any conflict, this Act prevails
over another Act of the 85th Legislature, Regular Session, 2017,
relating to nonsubstantive additions to and corrections in enacted
codes.
SECTION 23. This Act takes effect September 1, 2017.