81R736 KEL-D

By: Raymond H.B. No. 549

A BILL TO BE ENTITLED

AN ACT

relating to an affirmative defense to prosecution for certain sex offenses.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 21.11, Penal Code, is amended by amending Subsection (a) and adding Subsection (b-1) to read as follows:

(a) A person commits an offense if, with a child younger than 17 years of age [and not the person's spouse], whether the child is of the same or opposite sex, the person:

(1) engages in sexual contact with the child or causes the child to engage in sexual contact; or

(2) with intent to arouse or gratify the sexual desire of any person:

(A) exposes the person's anus or any part of the person's genitals, knowing the child is present; or

(B) causes the child to expose the child's anus or any part of the child's genitals.

(b-1) It is an affirmative defense to prosecution under this section that the actor was the spouse of the child at the time of the offense.

SECTION 2. Section 21.12, Penal Code, is amended by amending Subsection (a) and adding Subsection (b-1) to read as follows:

(a) An employee of a public or private primary or secondary school commits an offense if the employee engages in:

(1) sexual contact, sexual intercourse, or deviate sexual intercourse with a person who is enrolled in a public or private primary or secondary school at which the employee works [and who is not the employee's spouse]; or

(2) conduct described by Section 33.021, with a person described by Subdivision (1), regardless of the age of that person.

(b-1) It is an affirmative defense to prosecution under this section that the actor was the spouse of the enrolled person at the time of the offense.

SECTION 3. Section 22.011(c)(1), Penal Code, is amended to read as follows:

(1) "Child" means a person younger than 17 years of age [who is not the spouse of the actor].

SECTION 4. Section 22.011(e), Penal Code, is amended to read as follows:

(e) It is an affirmative defense to prosecution under Subsection (a)(2):

(1) that the actor was the spouse of the child at the time of the offense; or

(2) that:

(A) [(1)] the actor was not more than three years older than the victim and at the time of the offense:

(i) [(A)] was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or

(ii) [(B)] was not a person who under Chapter 62, Code of Criminal Procedure, had a reportable conviction or adjudication for an offense under this section; and

(B) [(2)] the victim:

(i) [(A)] was a child of 14 years of age or older; and

(ii) [(B)] was not a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.

SECTION 5. Section 39.04, Penal Code, is amended by amending Subsection (f) and adding Subsection (h) to read as follows:

(f) An employee of the Texas Department of Criminal Justice, the Texas Youth Commission, or a local juvenile probation department commits an offense if the employee engages in sexual contact, sexual intercourse, or deviate sexual intercourse with an individual [who is not the employee's spouse and] who the employee knows is under the supervision of the department, commission, or probation department but not in the custody of the department, commission, or probation department.

(h) It is an affirmative defense to prosecution under Subsection (f) that the actor was the spouse of the individual at the time of the offense.

SECTION 6. The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. 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. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.

SECTION 7. This Act takes effect September 1, 2009.