|
|
| A BILL TO BE ENTITLED |
| AN ACT |
| relating to prosecution and punishment for the offense of official |
| oppression by the intrusive touching of persons seeking access to |
| public buildings and transportation; providing penalties. |
| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
| SECTION 1. Section 39.03, Penal Code, is amended by |
| amending Subsections (a) and (b) and adding Subsections (c-1) and |
| (c-2) to read as follows: |
| (a) A person who is a public servant [acting under color of |
| his office or employment] commits an offense if the person: |
| (1) while acting under color of the person’s office or |
| employment [he]: |
| (A) [(1)] intentionally subjects another person |
| to mistreatment or to arrest, detention, search, seizure, |
| dispossession, assessment, or lien that the actor [he] knows is |
| unlawful; |
| (B) [(2)] intentionally denies or impedes |
| another person in the exercise or enjoyment of any right, |
| privilege, power, or immunity, knowing the actor’s [his] conduct is |
| unlawful; or |
| (C) [(3)] intentionally subjects another person |
| to sexual harassment; or |
| (2) while acting under color of the person’s office or |
| employment without probable cause to believe the other person |
| committed an offense: |
| (A) performs a search for the purpose of granting |
| access to a publicly accessible building or form of transportation; |
| and |
| (B) intentionally, knowingly, or recklessly: |
| (i) touches the anus, sexual organ, |
| buttocks, or breast of the other person, including touching through |
| clothing; or |
| (ii) touches the other person in a manner |
| that would be offensive to a reasonable person. |
| (b) For purposes of this section, a person who is a public |
| servant acts under color of the person’s [his] office or employment |
| if the person [he] acts or purports to act in an official capacity |
| or takes advantage of such actual or purported capacity. |
| (c-1) For purposes of Subsection (a)(2), “public servant” |
| includes: |
| (1) an officer, employee, or agent of: |
| (A) the United States; |
| (B) a branch, department, or agency of the United |
| States; or |
| (C) another person acting under contract with a |
| branch, department, or agency of the United States for the purpose |
| of providing a security or law enforcement service; and |
| (2) any other person acting under color of federal |
| law. |
| (c-2) For a person described by Subsection (c-1)(1) or (2), |
| it is a defense to prosecution for an offense under Subsection |
| (a)(2) that the actor performed the search pursuant to and |
| consistent with an explicit and applicable grant of federal |
| statutory authority that is consistent with the United States |
| Constitution. |
| SECTION 2. (a) This section applies only to a prosecution of |
| an offense under Section 39.03(a)(2), Penal Code, as added by this |
| Act, in which the defendant was, at the time of the alleged offense, |
| acting under the color of federal law. |
| (b) In a prosecution described by Subsection (a) of this |
| section, if the government of the United States, the defendant, or |
| the defendant’s employer challenges the validity of Section |
| 39.03(a)(2), Penal Code, as added by this Act, on grounds of |
| unconstitutionality, preemption, or sovereign immunity, the |
| attorney general of this state, with the consent of the appropriate |
| local county or district attorney, shall take any actions necessary |
| on behalf of the state to defend the validity of the statute. The |
| attorney general may make any legal arguments the attorney general |
| considers appropriate, including that this Act constitutes a valid |
| exercise of: |
| (1) the state’s police powers; |
| (2) the liberty interests of the people secured by the |
| Ninth Amendment to the United States Constitution; |
| (3) the powers reserved to the states by the Tenth |
| Amendment to the United States Constitution; or |
| (4) the rights and protections secured by the Texas |
| Constitution. |
| SECTION 3. This Act takes effect immediately if it receives |
| a vote of two-thirds of all the members elected to each house, as |
| provided by Section 39, Article III, Texas Constitution. If this |
| Act does not receive the vote necessary for immediate effect, this |
| Act takes effect September 1, 2011. |
