| |
|
|
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), |
|
|
(c-2), and (c-3) 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 reasonable suspicion of the presence of an |
|
|
unknown, unlawful, or prohibited object: |
|
|
(A) performs a search without effective consent |
|
|
for the purpose of granting access to a publicly accessible |
|
|
building or form of transportation; and |
|
|
(B) intentionally, knowingly, or recklessly |
|
|
touches the anus, sexual organ, buttocks, or breast of the other |
|
|
person, including touching through clothing. |
|
|
(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" |
|
|
means: |
|
|
(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 purposes of Subsection (a)(2), and |
|
|
notwithstanding Sections 1.07(a)(11) and (19), consent is |
|
|
effective only if, immediately before any search: |
|
|
(1) the actor verbally describes: |
|
|
(A) the area of the other person to be searched; |
|
|
and |
|
|
(B) the method to be used in the search; and |
|
|
(2) the actor receives express consent for the search |
|
|
only from: |
|
|
(A) the other person; or |
|
|
(B) the parent or guardian of the other person. |
|
|
(c-3) This section shall be construed, as a matter of state |
|
|
law, to be enforceable up to but no further than the maximum |
|
|
possible extent consistent with federal constitutional |
|
|
requirements, even if that construction is not readily apparent, as |
|
|
such constructions are authorized only to the extent necessary to |
|
|
save the section from judicial invalidation. |
|
|
SECTION 2. (a) This section applies only to a prosecution |
|
|
of an offense under Subdivision (2), Subsection (a), Section 39.03, |
|
|
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 Subdivision |
|
|
(2), Subsection (a), Section 39.03, 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 that are |
|
|
secured by 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 on the 91st day after the |
|
|
last day of the legislative session. |