This website will be unavailable from Friday, April 26, 2024 at 6:00 p.m. through Monday, April 29, 2024 at 7:00 a.m. due to data center maintenance.
By: West, Allen, Crabb, Casteel, Wise, H.B. No. 236
et al.
A BILL TO BE ENTITLED
AN ACT
relating to the punishment for the offense of obscenity and to
certain consequences related to convictions for certain sex
offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 43.23, Penal Code, is amended by
amending Subsections (b) and (d) and adding Subsections (h), (i),
and (j) to read as follows:
(b) Except as provided by Subsection (h), an [An] offense
under Subsection (a) is a state jail felony.
(d) Except as provided by Subsection (h), an [An] offense
under Subsection (c) is a Class A misdemeanor.
(h) The punishment for an offense under Subsection (a) is
increased to the punishment for a felony of the third degree and the
punishment for an offense under Subsection (c) is increased to the
punishment for a state jail felony if it is shown on the trial of the
offense that obscene material that is the subject of the offense
visually depicts activities described by Section 43.21(a)(1)(B)
engaged in by:
(1) a child younger than 18 years of age at the time
the image of the child was made;
(2) an image that to a reasonable person would be
virtually indistinguishable from the image of a child younger than
18 years of age; or
(3) an image created, adapted, or modified to be the
image of an identifiable child.
(i) In this section, "identifiable child" means a person,
recognizable as an actual person by the person's face, likeness, or
other distinguishing characteristic, such as a unique birthmark or
other recognizable feature:
(1) who was younger than 18 years of age at the time
the visual depiction was created, adapted, or modified; or
(2) whose image as a person younger than 18 years of
age was used in creating, adapting, or modifying the visual
depiction.
(j) An attorney representing the state who seeks an increase
in punishment under Subsection (h)(3) is not required to prove the
actual identity of an identifiable child.
SECTION 2. Section 12.42(c)(2), Penal Code, is amended to
read as follows:
(2) A defendant shall be punished by imprisonment in
the institutional division for life if:
(A) the defendant is convicted of an offense:
(i) under Section 22.021 or 22.011, Penal
Code;
(ii) under Section 20.04(a)(4), Penal Code,
if the defendant committed the offense with the intent to violate or
abuse the victim sexually; or
(iii) under Section 30.02, Penal Code,
punishable under Subsection (d) of that section, if the defendant
committed the offense with the intent to commit a felony described
by Subparagraph (i) or (ii) or a felony under Section 21.11 or
22.011, Penal Code; and
(B) the defendant has been previously convicted
of an offense:
(i) under Section 43.25 or 43.26, Penal
Code, or an offense under Section 43.23, Penal Code, punishable
under Subsection (h) of that section;
(ii) under Section 21.11, 22.011, 22.021,
or 25.02, Penal Code;
(iii) under Section 20.04(a)(4), Penal
Code, if the defendant committed the offense with the intent to
violate or abuse the victim sexually;
(iv) under Section 30.02, Penal Code,
punishable under Subsection (d) of that section, if the defendant
committed the offense with the intent to commit a felony described
by Subparagraph (ii) or (iii); or
(v) under the laws of another state
containing elements that are substantially similar to the elements
of an offense listed in Subparagraph (i), (ii), (iii), or (iv).
SECTION 3. Section 25.08(c), Penal Code, is amended to read
as follows:
(c) An offense under this section is a felony of the third
degree, except that the offense is a felony of the second degree if
the actor commits the offense with intent to commit an offense under
Section 43.25.
SECTION 4. Sections 43.25(a)(2) and (7), Penal Code, are
amended to read as follows:
(2) "Sexual conduct" means sexual contact, actual or
simulated sexual intercourse, deviate sexual intercourse, sexual
bestiality, masturbation, sado-masochistic abuse, or lewd
exhibition of the genitals, the anus, or any portion of the female
breast below the top of the areola.
(7) "Deviate sexual intercourse" and "sexual contact"
have the meanings assigned [has the meaning defined] by Section
43.01.
SECTION 5. Section 43.25(f), Penal Code, is amended to read
as follows:
(f) It is an affirmative defense to a prosecution under this
section that:
(1) [the defendant, in good faith, reasonably believed
that the child who engaged in the sexual conduct was 18 years of age
or older;
[(2)] the defendant was the spouse of the child at the
time of the offense;
(2) [(3)] the conduct was for a bona fide educational,
medical, psychological, psychiatric, judicial, law enforcement, or
legislative purpose; or
(3) [(4)] the defendant is not more than two years
older than the child.
SECTION 6. Subchapter B, Chapter 43, Penal Code, is amended
by adding Section 43.27 to read as follows:
Sec. 43.27. DUTY TO REPORT. (a) For purposes of this
section, "visual material" has the meaning assigned by Section
43.26.
(b) A business that develops or processes visual material
and determines that the material may be evidence of a criminal
offense under this subchapter shall report the existence of the
visual material to a local law enforcement agency.
SECTION 7. Article 59.01(2), Code of Criminal Procedure, is
amended to read as follows:
(2) "Contraband" means property of any nature,
including real, personal, tangible, or intangible, that is:
(A) used in the commission of:
(i) any first or second degree felony under
the Penal Code;
(ii) any felony under Section 15.031(b),
21.11, 38.04, Subchapter B of Chapter 43, [43.25, or 43.26] or
Chapter 29, 30, 31, 32, 33, 33A, or 35, Penal Code; or
(iii) any felony under The Securities Act
(Article 581-1 et seq., Vernon's Texas Civil Statutes);
(B) used or intended to be used in the commission
of:
(i) any felony under Chapter 481, Health
and Safety Code (Texas Controlled Substances Act);
(ii) any felony under Chapter 483, Health
and Safety Code;
(iii) a felony under Chapter 153, Finance
Code;
(iv) any felony under Chapter 34, Penal
Code;
(v) a Class A misdemeanor under Subchapter
B, Chapter 365, Health and Safety Code, if the defendant has been
previously convicted twice of an offense under that subchapter; or
(vi) any felony under Chapter 152, Finance
Code;
(C) the proceeds gained from the commission of a
felony listed in Paragraph (A) or (B) of this subdivision or a crime
of violence; or
(D) acquired with proceeds gained from the
commission of a felony listed in Paragraph (A) or (B) of this
subdivision or a crime of violence.
SECTION 8. Articles 62.01(5) and (6), Code of Criminal
Procedure, are amended to read as follows:
(5) "Reportable conviction or adjudication" means a
conviction or adjudication, regardless of the pendency of an
appeal, that is:
(A) a conviction for a violation of Section 21.11
(Indecency with a child), 22.011 (Sexual assault), 22.021
(Aggravated sexual assault), or 25.02 (Prohibited sexual conduct),
Penal Code;
(B) a conviction for a violation of Section 43.05
(Compelling prostitution), 43.25 (Sexual performance by a child),
or 43.26 (Possession or promotion of child pornography), Penal
Code, or a conviction for a violation of Section 43.23 (Obscenity),
Penal Code, if the offense is punishable under Subsection (h) of
that section;
(C) a conviction for a violation of Section
20.04(a)(4) (Aggravated kidnapping), Penal Code, if the defendant
committed the offense with intent to violate or abuse the victim
sexually;
(D) a conviction for a violation of Section 30.02
(Burglary), Penal Code, if the offense is punishable under
Subsection (d) of that section and the defendant committed the
offense with intent to commit a felony listed in Paragraph (A) or
(C);
(E) a conviction for a violation of Section 20.02
(Unlawful restraint), 20.03 (Kidnapping), or 20.04 (Aggravated
kidnapping), Penal Code, if the judgment in the case contains an
affirmative finding under Article 42.015;
(F) the second conviction for a violation of
Section 21.08 (Indecent exposure), Penal Code;
(G) a conviction for an attempt, conspiracy, or
solicitation, as defined by Chapter 15, Penal Code, to commit an
offense listed in Paragraph (A), (B), (C), (D), or (E);
(H) an adjudication of delinquent conduct:
(i) based on a violation of one of the
offenses listed in Paragraph (A), (B), (C), (D), or (G) or, if the
order in the hearing contains an affirmative finding that the
victim or intended victim was younger than 17 years of age, one of
the offenses listed in Paragraph (E); or
(ii) for which two violations of the
offense listed in Paragraph (F) are shown;
(I) a deferred adjudication for an offense listed
in:
(i) Paragraph (A), (B), (C), (D), or (G); or
(ii) Paragraph (E) if the papers in the case
contain an affirmative finding that the victim or intended victim
was younger than 17 years of age;
(J) a conviction under the laws of another state,
federal law, the laws of a foreign country, or the Uniform Code of
Military Justice for an offense containing elements that are
substantially similar to the elements of an offense listed under
Paragraph (A), (B), (C), (D), (E), or (G);
(K) an adjudication of delinquent conduct under
the laws of another state, [or] federal law, or the laws of a
foreign country based on a violation of an offense containing
elements that are substantially similar to the elements of an
offense listed under Paragraph (A), (B), (C), (D), (E), or (G);
(L) the second conviction under the laws of
another state, federal law, the laws of a foreign country, or the
Uniform Code of Military Justice for an offense containing elements
that are substantially similar to the elements of the offense of
indecent exposure; or
(M) the second adjudication of delinquent
conduct under the laws of another state, [or] federal law, or the
laws of a foreign country based on a violation of an offense
containing elements that are substantially similar to the elements
of the offense of indecent exposure.
(6) "Sexually violent offense" means any of the
following offenses committed by a person 17 years of age or older:
(A) an offense under Section 21.11(a)(1)
(Indecency with a child), 22.011 (Sexual assault), or 22.021
(Aggravated sexual assault), Penal Code;
(B) an offense under Section 43.25 (Sexual
performance by a child), Penal Code;
(C) an offense under Section 20.04(a)(4)
(Aggravated kidnapping), Penal Code, if the defendant committed the
offense with intent to violate or abuse the victim sexually;
(D) an offense under Section 30.02 (Burglary),
Penal Code, if the offense is punishable under Subsection (d) of
that section and the defendant committed the offense with intent to
commit a felony listed in Paragraph (A) or (C) of Subdivision (5);
or
(E) an offense under the laws of another state,
federal law, the laws of a foreign country, or the Uniform Code of
Military Justice if the offense contains elements that are
substantially similar to the elements of an offense listed under
Paragraph (A), (B), (C), or (D).
SECTION 9. Article 62.0101(a), Code of Criminal Procedure,
is amended to read as follows:
(a) The department is responsible for determining for the
purposes of this chapter whether an offense under the laws of
another state, federal law, the laws of a foreign country, or the
Uniform Code of Military Justice contains elements that are
substantially similar to the elements of an offense under the laws
of this state.
SECTION 10. Articles 62.021(a) and (c), Code of Criminal
Procedure, are amended to read as follows:
(a) This article applies to a person who:
(1) is required to register as a sex offender under:
(A) the laws of another state with which the
department has entered into a reciprocal registration agreement;
[or]
(B) federal law or the Uniform Code of Military
Justice; or
(C) the laws of a foreign country; and
(2) is not otherwise required to register under this
chapter because:
(A) the person does not have a reportable
conviction for an offense under the laws of the other state, federal
law, the laws of the foreign country, or the Uniform Code of
Military Justice containing elements that are substantially
similar to an offense requiring registration under this chapter; or
(B) the person does not have a reportable
adjudication of delinquent conduct based on a violation of an
offense under the laws of the other state, [or] federal law, or the
laws of the foreign country containing elements that are
substantially similar to an offense requiring registration under
this chapter.
(c) The duty to register for a person described by
Subsection (a) expires on the date the person's duty to register
would expire under the laws of the other state or foreign country
had the person remained in that state or foreign country, under
federal law, or under the Uniform Code of Military Justice, as
applicable.
SECTION 11. Article 62.12(a), Code of Criminal Procedure,
as amended by Chapters 211 and 1297, Acts of the 77th Legislature,
Regular Session, 2001, is reenacted and amended to read as follows:
(a) The duty to register for a person ends when the person
dies if the person has a reportable conviction or adjudication,
other than an adjudication of delinquent conduct, for:
(1) a sexually violent offense;
(2) an offense under Section 25.02, 43.05(a)(2), or
43.26, Penal Code, or an offense punishable under Section 43.23(h),
Penal Code;
(3) an offense under Section 21.11(a)(2), Penal Code,
if before or after the person is convicted or adjudicated for the
offense under Section 21.11(a)(2), Penal Code, the person receives
or has received another reportable conviction or adjudication,
other than an adjudication of delinquent conduct, for an offense or
conduct that requires registration under this chapter; or
(4) an offense under Section 20.02, 20.03, or 20.04,
Penal Code, or an attempt, conspiracy, or solicitation to commit
one of those offenses, if:
(A) the judgment in the case contains an
affirmative finding under Article 42.015, [as added by Chapter
1193, Acts of the 76th Legislature, Regular Session, 1999,] or for a
deferred adjudication, the papers in the case contain an
affirmative finding that the victim or intended victim was younger
than 17 years of age; and
(B) before or after the person is convicted or
adjudicated for the offense under Section 20.02, 20.03, or 20.04,
Penal Code, the person receives or has received another reportable
conviction or adjudication, other than an adjudication of
delinquent conduct, for an offense or conduct that requires
registration under this chapter.
SECTION 12. (a) The change in law made by this Act applies
only to an offense committed on or after the effective date of this
Act. For purposes of this section, an offense is committed before
the effective date of this Act if any element of the offense occurs
before the effective date.
(b) An offense committed before the effective date of this
Act is covered by the law in effect when the offense was committed,
and the former law is continued in effect for that purpose.
SECTION 13. The change in law made by this Act in amending
Articles 62.01, 62.0101, and 62.021, Code of Criminal Procedure,
applies to a person subject to registration under Chapter 62, Code
of Criminal Procedure, for an offense or conduct committed before,
on, or after the effective date of this Act.
SECTION 14. This Act takes effect September 1, 2003.