| 82R20649 JRH-F | ||
| By: Simpson, Rodriguez, Menendez, Kolkhorst, | H.B. No. 1937 | |
| Chisum, et al. | ||
| Substitute the following for H.B. No. 1937: | ||
| By: Gallego | C.S.H.B. No. 1937 | |
| 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. | ||
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