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A BILL TO BE ENTITLED
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AN ACT
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relating to the creation of the offense of electronic transmission |
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of certain visual material depicting a minor and to certain |
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educational programs concerning the prevention and awareness of |
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that offense. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subchapter B, Chapter 43, Penal Code, is amended |
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by adding Section 43.261 to read as follows: |
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Sec. 43.261. ELECTRONIC TRANSMISSION OF CERTAIN VISUAL |
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MATERIAL DEPICTING A MINOR. (a) In this section: |
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(1) "Minor" means a person younger than 18 years of |
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age. |
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(2) "Produce" with respect to visual material includes |
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any conduct that directly contributes to the creation or |
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manufacture of the material. |
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(3) "Promote" has the meaning assigned by Section |
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43.25. |
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(4) "Sexual conduct" has the meaning assigned by |
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Section 43.25. |
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(5) "Visual material" has the meaning assigned by |
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Section 43.26. |
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(b) A person who is a minor commits an offense if the person |
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intentionally or knowingly: |
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(1) by electronic means promotes to another minor |
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visual material depicting a minor, including the actor, engaging in |
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sexual conduct, if the actor produced the visual material or knows |
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that another minor produced the visual material; or |
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(2) possesses in an electronic format visual material |
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depicting another minor engaging in sexual conduct, if the actor |
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produced the visual material or knows that another minor produced |
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the visual material. |
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(c) It is an affirmative defense to prosecution under |
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Subsection (b)(2) that the defendant: |
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(1) did not produce the visual material; |
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(2) possessed the visual material only after receiving |
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the material from another minor; and |
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(3) not later than 48 hours after receiving the visual |
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material from the other minor, reported receipt of the material to a |
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law enforcement agency. |
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(d) An offense under this section is a Class C misdemeanor, |
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except that the offense is: |
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(1) a Class B misdemeanor if it is shown on the trial |
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of the offense that the defendant has previously been convicted one |
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time of an offense under this section; and |
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(2) a Class A misdemeanor if it is shown on the trial |
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of the offense that the defendant has previously been convicted two |
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or more times of an offense under this section. |
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(e) If conduct that constitutes an offense under this |
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section also constitutes an offense under another section of this |
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code or any other law, the defendant may be prosecuted only under |
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this section. |
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SECTION 2. The heading to Chapter 6, Code of Criminal |
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Procedure, is amended to read as follows: |
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CHAPTER 6. PREVENTING OFFENSES BY THE ACT OF MAGISTRATES AND OTHER |
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OFFICERS; EDUCATION CONCERNING CONSEQUENCES OF CERTAIN OFFENSES |
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SECTION 3. Chapter 6, Code of Criminal Procedure, is |
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amended by adding Article 6.09 to read as follows: |
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Art. 6.09. EDUCATIONAL PROGRAMS CONCERNING CERTAIN |
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OFFENSES COMMITTED BY MINORS; MANDATORY COURT ATTENDANCE. (a) In |
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this article, "parent" means a natural or adoptive parent, managing |
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or possessory conservator, or legal guardian. The term does not |
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include a parent whose parental rights have been terminated. |
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(b) This article applies to a defendant who has not had the |
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disabilities of minority removed and has been charged with an |
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offense under Section 43.261, Penal Code. |
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(c) The judge of a county court: |
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(1) must take the defendant's plea in open court; and |
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(2) shall issue a summons to compel the defendant's |
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parent to be present during: |
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(A) the taking of the defendant's plea; and |
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(B) all other proceedings relating to the case. |
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(d) On a finding by a county court that a defendant has |
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committed an offense under Section 43.261, Penal Code, the court |
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may enter an order requiring: |
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(1) the defendant to attend and successfully complete |
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an educational program designed to address: |
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(A) the possible psychological and social |
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consequences of engaging in conduct in violation of Section 43.261, |
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|
Penal Code, including negative effects on relationships and the |
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|
loss of educational and employment opportunities; and |
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(B) the possible legal consequences, including |
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criminal penalties, of engaging in subsequent conduct in violation |
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of Section 43.261, Penal Code; or |
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(2) if the defendant has not been emancipated by |
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marriage or court order, the defendant's parent to attend and |
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successfully complete an educational program described by |
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Subdivision (1). |
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(e) A court that enters an order under Subsection (d) shall |
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require the defendant or the defendant's parent to pay the cost of |
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attending an educational program under Subsection (d) if the court |
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determines that the defendant or the defendant's parent is |
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financially able to make payment. |
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SECTION 4. The heading to Article 38.45, Code of Criminal |
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Procedure, is amended to read as follows: |
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Art. 38.45. CERTAIN VISUAL MATERIAL DEPICTING SEXUAL |
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CONDUCT BY A [EVIDENCE THAT CONSTITUTES] CHILD OR MINOR |
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[PORNOGRAPHY]. |
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SECTION 5. Article 38.45(a), Code of Criminal Procedure, is |
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amended to read as follows: |
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(a) During the course of a criminal hearing or proceeding, |
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the court may not make available or allow to be made available for |
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copying or dissemination to the public property or material that: |
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(1) constitutes child pornography, as described by |
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Section 43.26(a)(1), Penal Code; or |
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(2) the promotion or possession of which is prohibited |
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under Section 43.261, Penal Code. |
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SECTION 6. The heading to Article 39.15, Code of Criminal |
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Procedure, is amended to read as follows: |
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Art. 39.15. DISCOVERY OF CERTAIN VISUAL MATERIAL DEPICTING |
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SEXUAL CONDUCT BY A [EVIDENCE THAT CONSTITUTES] CHILD OR MINOR |
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[PORNOGRAPHY]. |
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SECTION 7. Article 39.15(a), Code of Criminal Procedure, is |
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amended to read as follows: |
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(a) In the manner provided by this article, a court shall |
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allow discovery under Article 39.14 of property or material: |
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(1) that constitutes child pornography, as described |
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by Section 43.26(a)(1), Penal Code; or |
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(2) the promotion or possession of which is prohibited |
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under Section 43.261, Penal Code. |
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SECTION 8. Article 45.0215, Code of Criminal Procedure, is |
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|
amended by amending Subsection (a) and adding Subsection (a-1) to |
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read as follows: |
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(a) This article applies to [If] a defendant who has not had |
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|
the disabilities of minority removed and has been: |
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|
(1) charged with an offense other than an offense |
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|
under Section 43.261, Penal Code, if the defendant is younger than |
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|
17 years of age; or |
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|
(2) charged with an offense under Section 43.261, |
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|
Penal Code, if the defendant is younger than 18 years of age. |
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(a-1) The [and has not had the disabilities of minority
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|
removed, the] judge or justice: |
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(1) must take the defendant's plea in open court; and |
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(2) shall issue a summons to compel the defendant's |
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|
parent, guardian, or managing conservator to be present during: |
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(A) the taking of the defendant's plea; and |
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(B) all other proceedings relating to the case. |
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SECTION 9. The heading to Article 45.0216, Code of Criminal |
|
|
Procedure, is amended to read as follows: |
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Art. 45.0216. EXPUNCTION OF CERTAIN CONVICTION RECORDS [OF
|
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CHILDREN]. |
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SECTION 10. Article 45.0216, Code of Criminal Procedure, is |
|
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amended by amending Subsections (b), (d), (f), and (h) and adding |
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Subsection (f-1) to read as follows: |
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(b) A person may [convicted of not more than one offense
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described by Section 8.07(a)(4) or (5), Penal Code, while the
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person was a child may, on or after the person's 17th birthday,] |
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apply to the court in which the person [child] was convicted to have |
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the conviction expunged as provided by this article: |
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(1) on or after the person's 17th birthday, if the |
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|
person was convicted of not more than one offense described by |
|
|
Section 8.07(a)(4) or (5), Penal Code, while the person was a child; |
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|
or |
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|
(2) on or after the person's 18th birthday, if the |
|
|
person was convicted of not more than one offense under Section |
|
|
43.261, Penal Code. |
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(d) The request must contain the person's statement that the |
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|
person was not convicted [while the person was a child] of any |
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|
additional offense as described by Subsection (f)(1) or (2), as |
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applicable [Section 8.07(a)(4) or (5), Penal Code, other than the
|
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|
offense the person seeks to have expunged]. |
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(f) The [If the court finds that the person was not
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convicted of any other offense described by Section 8.07(a)(4) or
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|
(5), Penal Code, while the person was a child, the] court shall |
|
|
order the conviction, together with all complaints, verdicts, |
|
|
sentences, and prosecutorial and law enforcement records, and any |
|
|
other documents relating to the offense, expunged from the person's |
|
|
record if the court finds that: |
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(1) for a person applying for the expunction of a |
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|
conviction for an offense described by Section 8.07(a)(4) or (5), |
|
|
Penal Code, the person was not convicted of any other offense |
|
|
described by Section 8.07(a)(4) or (5), Penal Code, while the |
|
|
person was a child; and |
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(2) for a person applying for the expunction of a |
|
|
conviction for an offense described by Section 43.261, Penal Code, |
|
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the person was not convicted of any other offense described by |
|
|
Section 43.261, Penal Code. |
|
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(f-1) After entry of an [the] order under Subsection (f), |
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the person is released from all disabilities resulting from the |
|
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conviction and the conviction may not be shown or made known for any |
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purpose. |
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(h) A record [Records of a person under 17 years of age] |
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relating to a complaint dismissed as provided by Article 45.051 or |
|
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45.052 may be expunged under this article on application of the |
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following persons: |
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(1) for a complaint alleging an offense other than an |
|
|
offense under Section 43.261, Penal Code, a person under 17 years of |
|
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age; and |
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(2) for a complaint alleging an offense under Section |
|
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43.261, Penal Code, a person under 18 years of age. |
|
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SECTION 11. Subchapter B, Chapter 45, Code of Criminal |
|
|
Procedure, is amended by adding Article 45.061 to read as follows: |
|
|
Art. 45.061. PROCEEDINGS CONCERNING ELECTRONIC |
|
|
TRANSMISSION OF CERTAIN VISUAL MATERIAL DEPICTING A MINOR. (a) In |
|
|
this article, "parent" means a natural or adoptive parent, managing |
|
|
or possessory conservator, or legal guardian. The term does not |
|
|
include a parent whose parental rights have been terminated. |
|
|
(b) On a finding by a justice or municipal court that a |
|
|
defendant has committed an offense under Section 43.261, Penal |
|
|
Code, the court may enter an order requiring: |
|
|
(1) the defendant to attend and successfully complete |
|
|
an educational program designed to address: |
|
|
(A) the possible psychological and social |
|
|
consequences of engaging in conduct in violation of Section 43.261, |
|
|
Penal Code, including negative effects on relationships and the |
|
|
loss of educational and employment opportunities; and |
|
|
(B) the possible legal consequences, including |
|
|
criminal penalties, of engaging in subsequent conduct in violation |
|
|
of Section 43.261, Penal Code; or |
|
|
(2) if the defendant has not been emancipated by |
|
|
marriage or court order, the defendant's parent to attend and |
|
|
successfully complete an educational program described by |
|
|
Subdivision (1). |
|
|
(c) A court that enters an order under Subsection (b) shall |
|
|
require the defendant or the defendant's parent to pay the cost of |
|
|
attending an educational program under Subsection (b) if the court |
|
|
determines that the defendant or the defendant's parent is |
|
|
financially able to make payment. |
|
|
SECTION 12. Chapter 54, Family Code, is amended by adding |
|
|
Section 54.0404 to read as follows: |
|
|
Sec. 54.0404. ELECTRONIC TRANSMISSION OF CERTAIN VISUAL |
|
|
MATERIAL DEPICTING A MINOR: EDUCATIONAL PROGRAMS. (a) If a child |
|
|
is adjudicated to have engaged in delinquent conduct constituting |
|
|
an offense under Section 43.261, Penal Code, the juvenile court may |
|
|
enter an order requiring: |
|
|
(1) the child to attend and successfully complete an |
|
|
educational program designed to address: |
|
|
(A) the possible psychological and social |
|
|
consequences of engaging in conduct in violation of Section 43.261, |
|
|
Penal Code, including negative effects on relationships and the |
|
|
loss of educational and employment opportunities; and |
|
|
(B) the possible legal consequences, including |
|
|
criminal penalties, of engaging in subsequent conduct in violation |
|
|
of Section 43.261, Penal Code; or |
|
|
(2) if the child has not been emancipated by marriage |
|
|
or court order, the child's parent to attend and successfully |
|
|
complete an educational program described by Subdivision (1). |
|
|
(b) A juvenile court that enters an order under Subsection |
|
|
(a) shall require the child or the child's parent or other person |
|
|
responsible for the child's support to pay the cost of attending an |
|
|
educational program under Subsection (a) if the court determines |
|
|
that the child, parent, or other person is financially able to make |
|
|
payment. |
|
|
SECTION 13. Subchapter G, Chapter 37, Education Code, is |
|
|
amended by adding Section 37.218 to read as follows: |
|
|
Sec. 37.218. PROGRAMS ON DANGERS OF STUDENTS SHARING VISUAL |
|
|
MATERIAL DEPICTING A MINOR ENGAGED IN SEXUAL CONDUCT. (a) In this |
|
|
section: |
|
|
(1) "Bullying" has the meaning assigned by Section |
|
|
25.0342. |
|
|
(2) "Cyberbullying" means the use of any electronic |
|
|
communication device to engage in bullying or intimidation. |
|
|
(3) "Harassment" has the meaning assigned by Section |
|
|
37.001. |
|
|
(4) "Sexual conduct" has the meaning assigned by |
|
|
Section 43.25, Penal Code. |
|
|
(b) The center, in consultation with the office of the |
|
|
attorney general, shall develop programs for use by school |
|
|
districts that address: |
|
|
(1) the possible legal consequences, including |
|
|
criminal penalties, of sharing visual material depicting a minor |
|
|
engaged in sexual conduct; |
|
|
(2) other possible consequences of sharing visual |
|
|
material depicting a minor engaged in sexual conduct, including: |
|
|
(A) negative effects on relationships; |
|
|
(B) loss of educational and employment |
|
|
opportunities; and |
|
|
(C) possible removal, if applicable, from |
|
|
certain school programs or extracurricular activities; |
|
|
(3) the unique characteristics of the Internet and |
|
|
other communications networks that could affect visual material |
|
|
depicting a minor engaged in sexual conduct, including: |
|
|
(A) search and replication capabilities; and |
|
|
(B) a potentially worldwide audience; |
|
|
(4) the prevention of, identification of, responses |
|
|
to, and reporting of incidents of bullying; and |
|
|
(5) the connection between bullying, cyberbullying, |
|
|
harassment, and a minor sharing visual material depicting a minor |
|
|
engaged in sexual conduct. |
|
|
(c) Each school district shall annually provide or make |
|
|
available information on the programs developed under Subsection |
|
|
(b) to parents and students in a grade level the district considers |
|
|
appropriate. Each district shall provide or make available the |
|
|
information by any means the district considers appropriate. |
|
|
SECTION 14. (a) Not later than January 1, 2012, the Texas |
|
|
School Safety Center shall develop the program required under |
|
|
Section 37.218(b), Education Code, as added by this Act. |
|
|
(b) Section 37.218(c), Education Code, as added by this Act, |
|
|
applies beginning with the 2012-2013 school year. |
|
|
SECTION 15. This Act takes effect September 1, 2011. |