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AN ACT
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relating to an affirmative defense to prosecution for certain sex |
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offenses. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 21.11, Penal Code, is amended by |
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amending Subsection (a) and adding Subsection (b-1) to read as |
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follows: |
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(a) A person commits an offense if, with a child younger |
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than 17 years of age [and not the person's spouse], whether the |
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child is of the same or opposite sex, the person: |
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(1) engages in sexual contact with the child or causes |
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the child to engage in sexual contact; or |
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(2) with intent to arouse or gratify the sexual desire |
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of any person: |
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(A) exposes the person's anus or any part of the |
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person's genitals, knowing the child is present; or |
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(B) causes the child to expose the child's anus |
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or any part of the child's genitals. |
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(b-1) It is an affirmative defense to prosecution under this |
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section that the actor was the spouse of the child at the time of |
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the offense. |
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SECTION 2. Section 21.12, Penal Code, is amended by |
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amending Subsection (a) and adding Subsection (b-1) to read as |
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follows: |
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(a) An employee of a public or private primary or secondary |
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school commits an offense if the employee engages in: |
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(1) sexual contact, sexual intercourse, or deviate |
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sexual intercourse with a person who is enrolled in a public or |
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private primary or secondary school at which the employee works |
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[and who is not the employee's spouse]; or |
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(2) conduct described by Section 33.021, with a person |
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described by Subdivision (1), regardless of the age of that person. |
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(b-1) It is an affirmative defense to prosecution under this |
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section that the actor was the spouse of the enrolled person at the |
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time of the offense. |
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SECTION 3. Section 22.011(c)(1), Penal Code, is amended to |
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read as follows: |
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(1) "Child" means a person younger than 17 years of age |
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[who is not the spouse of the actor]. |
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SECTION 4. Section 22.011(e), Penal Code, is amended to |
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read as follows: |
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(e) It is an affirmative defense to prosecution under |
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Subsection (a)(2): |
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(1) that the actor was the spouse of the child at the |
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time of the offense; or |
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(2) that: |
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(A) [(1)] the actor was not more than three years |
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older than the victim and at the time of the offense: |
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(i) [(A)] was not required under Chapter |
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62, Code of Criminal Procedure, to register for life as a sex |
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offender; or |
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(ii) [(B)] was not a person who under |
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Chapter 62, Code of Criminal Procedure, had a reportable conviction |
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or adjudication for an offense under this section; and |
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(B) [(2)] the victim: |
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(i) [(A)] was a child of 14 years of age or |
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older; and |
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(ii) [(B)] was not a person whom the actor |
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was prohibited from marrying or purporting to marry or with whom the |
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actor was prohibited from living under the appearance of being |
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married under Section 25.01. |
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SECTION 5. Section 39.04, Penal Code, is amended by |
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amending Subsection (f) and adding Subsection (h) to read as |
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follows: |
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(f) An employee of the Texas Department of Criminal Justice, |
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the Texas Youth Commission, or a local juvenile probation |
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department commits an offense if the employee engages in sexual |
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contact, sexual intercourse, or deviate sexual intercourse with an |
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individual [who is not the employee's spouse and] who the employee |
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knows is under the supervision of the department, commission, or |
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probation department but not in the custody of the department, |
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commission, or probation department. |
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(h) It is an affirmative defense to prosecution under |
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Subsection (f) that the actor was the spouse of the individual at |
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the time of the offense. |
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SECTION 6. The change in law made by this Act applies only |
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to an offense committed on or after the effective date of this Act. |
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An offense committed before the effective date of this Act is |
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covered by the law in effect when the offense was committed, and the |
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former law is continued in effect for that purpose. For purposes of |
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this section, an offense was committed before the effective date of |
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this Act if any element of the offense occurred before that date. |
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SECTION 7. This Act takes effect September 1, 2009. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I certify that H.B. No. 549 was passed by the House on April |
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24, 2009, by the following vote: Yeas 138, Nays 0, 1 present, not |
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voting. |
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______________________________ |
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Chief Clerk of the House |
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I certify that H.B. No. 549 was passed by the Senate on May |
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18, 2009, by the following vote: Yeas 31, Nays 0. |
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______________________________ |
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Secretary of the Senate |
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APPROVED: _____________________ |
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Date |
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_____________________ |
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Governor |