76R5969 GWK-D                           
         By Smith                                               H.B. No. 540
         Substitute the following for H.B. No. 540:
         By Smith                                           C.S.H.B. No. 540
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to improper sexual activity between certain law
 1-3     enforcement or correctional personnel and persons under custody or
 1-4     supervision; providing a penalty.
 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-6           SECTION 1.  Section 39.04, Penal Code, is amended to read as
 1-7     follows:
 1-8           Sec. 39.04.  VIOLATIONS OF THE CIVIL RIGHTS OF PERSON IN
 1-9     CUSTODY;  IMPROPER SEXUAL ACTIVITY WITH PERSON IN CUSTODY OR UNDER
1-10     SUPERVISED RELEASE.     (a)  An official or employee of a
1-11     correctional facility or a peace officer commits an offense if he
1-12     intentionally:
1-13                 (1)  denies or impedes a person in custody in the
1-14     exercise or enjoyment of any right, privilege, or immunity knowing
1-15     his conduct is unlawful; or
1-16                 (2)  engages in sexual contact, sexual intercourse, or
1-17     deviate sexual intercourse with an individual in custody.
1-18           (b)  An employee of the Texas Department of Criminal Justice
1-19     commits an offense if the employee engages in sexual contact,
1-20     sexual intercourse, or deviate sexual intercourse with an
1-21     individual who is not the employee's spouse and who the employee
1-22     knows is under the supervision of the department but not in the
1-23     custody of the department.
1-24           (c)  An offense under Subsection (a)(1) is a Class A
 2-1     misdemeanor. An offense under Subsection (a)(2) or Subsection (b)
 2-2     is a state jail felony.
 2-3           (d) [(c)]  This section shall not preclude prosecution for
 2-4     any other offense set out in this code.
 2-5           (e) [(d)]  The Attorney General of Texas shall have
 2-6     concurrent jurisdiction with law enforcement agencies to
 2-7     investigate violations of this statute involving serious bodily
 2-8     injury or death.
 2-9           (f) [(e)]  In this section:
2-10                 (1)  "Custody" means the detention, arrest, or
2-11     confinement of a person.
2-12                 (2)  "Sexual contact," "sexual intercourse," and
2-13     "deviate sexual intercourse" have the meanings assigned by Section
2-14     21.01.
2-15           SECTION 2.  (a)  The change in law made by this Act applies
2-16     only to an offense committed on or after the effective date of this
2-17     Act.  For purposes of this section, an offense is committed before
2-18     the effective date of this Act if any element of the offense occurs
2-19     before the effective date.
2-20           (b)  An offense committed before the effective date of this
2-21     Act is covered by the law in effect when the offense was committed,
2-22     and the former law is continued in effect for that purpose.
2-23           SECTION 3.  This Act takes effect September 1, 1999.
2-24           SECTION 4.  The importance of this legislation and the
2-25     crowded condition of the calendars in both houses create an
2-26     emergency and an imperative public necessity that the
2-27     constitutional rule requiring bills to be read on three several
 3-1     days in each house be suspended, and this rule is hereby suspended.