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A BILL TO BE ENTITLED
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AN ACT
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relating to prosecution and punishment for the offense of official |
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oppression by the intrusive touching of persons seeking access to |
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public buildings and transportation; providing penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 39.03, Penal Code, is amended by |
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amending Subsections (a) and (b) and adding Subsections (c-1), |
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(c-2), and (c-3) to read as follows: |
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(a) A person who is a public servant [acting under color of
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his office or employment] commits an offense if the person: |
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(1) while acting under color of the person's office or |
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employment [he]: |
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(A) [(1)] intentionally subjects another person |
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to mistreatment or to arrest, detention, search, seizure, |
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dispossession, assessment, or lien that the actor [he] knows is |
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unlawful; |
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(B) [(2)] intentionally denies or impedes |
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another person in the exercise or enjoyment of any right, |
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privilege, power, or immunity, knowing the actor's [his] conduct is |
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unlawful; or |
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(C) [(3)] intentionally subjects another person |
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to sexual harassment; or |
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(2) while acting under color of the person's office or |
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employment without probable cause to believe the other person |
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committed an offense: |
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(A) performs a search without effective consent |
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for the purpose of granting access to a publicly accessible |
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building or form of transportation; and |
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(B) intentionally, knowingly, or recklessly: |
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(i) touches the anus, sexual organ, |
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buttocks, or breast of the other person, including touching through |
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clothing; or |
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(ii) causes physical contact with the other |
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person when the actor knows or should reasonably believe that the |
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other person will regard the contact as offensive or provocative. |
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(b) For purposes of this section, a person who is a public |
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servant acts under color of the person's [his] office or employment |
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if the person [he] acts or purports to act in an official capacity |
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or takes advantage of such actual or purported capacity. |
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(c-1) For purposes of Subsection (a)(2), "public servant" |
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includes: |
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(1) an officer, employee, or agent of: |
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(A) the United States; |
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(B) a branch, department, or agency of the United |
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States; or |
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(C) another person acting under contract with a |
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branch, department, or agency of the United States for the purpose |
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of providing a security or law enforcement service; and |
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(2) any other person acting under color of federal |
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law. |
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(c-2) For a person described by Subsection (c-1)(1) or (2), |
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it is a defense to prosecution for an offense under Subsection |
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(a)(2) that the actor performed the search pursuant to and |
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consistent with an explicit and applicable grant of federal |
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statutory authority that is consistent with the United States |
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Constitution. |
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(c-3) For purposes of Subsection (a)(2), and |
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notwithstanding Sections 1.07(a)(11) and (19), consent is |
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effective only if, immediately before any search: |
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(1) the actor verbally describes: |
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(A) the area of the other person to be searched; |
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and |
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(B) the method to be used in the search; and |
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(2) the actor receives express consent for the search |
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only from: |
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(A) the other person; or |
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(B) the parent or guardian of the other person. |
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SECTION 2. (a) This section applies only to a prosecution |
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of an offense under Section 39.03(a)(2), Penal Code, as added by |
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this Act, in which the defendant was, at the time of the alleged |
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offense, acting under the color of federal law. |
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(b) In a prosecution described by Subsection (a) of this |
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section, if the government of the United States, the defendant, or |
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the defendant's employer challenges the validity of Section |
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39.03(a)(2), Penal Code, as added by this Act, on grounds of |
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unconstitutionality, preemption, or sovereign immunity, the |
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attorney general of this state, with the consent of the appropriate |
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local county or district attorney, shall take any actions necessary |
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on behalf of the state to defend the validity of the statute. The |
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attorney general may make any legal arguments the attorney general |
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considers appropriate, including that this Act constitutes a valid |
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exercise of: |
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(1) the state's police powers; |
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(2) the liberty interests of the people that are |
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secured by the United States Constitution; |
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(3) the powers reserved to the states by the Tenth |
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Amendment to the United States Constitution; or |
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(4) the rights and protections secured by the Texas |
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Constitution. |
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SECTION 3. This Act shall be construed, as a matter of state |
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law, to be enforceable up to but no further than the maximum |
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possible extent consistent with federal constitutional |
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requirements, even if that construction is not readily apparent, as |
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such constructions are authorized only to the extent necessary to |
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save the statute from judicial invalidation. |
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SECTION 4. This Act takes effect on the 91st day after the |
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last day of the legislative session. |