82R3976 SJM/VOO-D

By: Craddick H.B. No. 1309

A BILL TO BE ENTITLED

AN ACT

relating to the creation of the offense of electronic transmission of certain visual material depicting a minor and to certain educational programs concerning the prevention and awareness of that offense.

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

SECTION 1. Subchapter B, Chapter 43, Penal Code, is amended by adding Section 43.261 to read as follows:

Sec. 43.261. ELECTRONIC TRANSMISSION OF CERTAIN VISUAL MATERIAL DEPICTING A MINOR. (a) In this section:

(1) "Minor" means a person younger than 18 years of age.

(2) "Produce" with respect to visual material includes any conduct that directly contributes to the creation or manufacture of the material.

(3) "Promote" has the meaning assigned by Section 43.25.

(4) "Sexual conduct" has the meaning assigned by Section 43.25.

(5) "Visual material" has the meaning assigned by Section 43.26.

(b) A person who is a minor commits an offense if the person intentionally or knowingly:

(1) by electronic means promotes to another minor visual material depicting a minor, including the actor, engaging in sexual conduct, if the actor produced the visual material or knows that another minor produced the visual material; or

(2) possesses in an electronic format visual material depicting another minor engaging in sexual conduct, if the actor produced the visual material or knows that another minor produced the visual material.

(c) It is an affirmative defense to prosecution under Subsection (b)(2) that the defendant:

(1) did not produce the visual material;

(2) possessed the visual material only after receiving the material from another minor; and

(3) not later than 48 hours after receiving the visual material from the other minor, reported receipt of the material to a law enforcement agency.

(d) An offense under this section is a Class C misdemeanor, except that the offense is:

(1) a Class B misdemeanor if it is shown on the trial of the offense that the defendant has previously been convicted one time of an offense under this section; and

(2) a Class A misdemeanor if it is shown on the trial of the offense that the defendant has previously been convicted two or more times of an offense under this section.

(e) If conduct that constitutes an offense under this section also constitutes an offense under another section of this code or any other law, the defendant may be prosecuted only under this section.

SECTION 2. The heading to Chapter 6, Code of Criminal Procedure, is amended to read as follows:

CHAPTER 6. PREVENTING OFFENSES BY THE ACT OF MAGISTRATES AND OTHER

OFFICERS; EDUCATION CONCERNING CONSEQUENCES OF CERTAIN OFFENSES

SECTION 3. Chapter 6, Code of Criminal Procedure, is amended by adding Article 6.09 to read as follows:

Art. 6.09. EDUCATIONAL PROGRAMS CONCERNING CERTAIN OFFENSES COMMITTED BY MINORS; MANDATORY COURT ATTENDANCE. (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) This article applies to a defendant who has not had the disabilities of minority removed and has been charged with an offense under Section 43.261, Penal Code.

(c) The judge of a county court:

(1) must take the defendant's plea in open court; and

(2) shall issue a summons to compel the defendant's parent to be present during:

(A) the taking of the defendant's plea; and

(B) all other proceedings relating to the case.

(d) On a finding by a county 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).

(e) A court that enters an order under Subsection (d) shall require the defendant or the defendant's parent to pay the cost of attending an educational program under Subsection (d) if the court determines that the defendant or the defendant's parent is financially able to make payment.

SECTION 4. The heading to Article 38.45, Code of Criminal Procedure, is amended to read as follows:

Art. 38.45. CERTAIN VISUAL MATERIAL DEPICTING SEXUAL CONDUCT BY A [EVIDENCE THAT CONSTITUTES] CHILD OR MINOR [PORNOGRAPHY].

SECTION 5. Article 38.45(a), Code of Criminal Procedure, is amended to read as follows:

(a) During the course of a criminal hearing or proceeding, the court may not make available or allow to be made available for copying or dissemination to the public property or material that:

(1) constitutes child pornography, as described by Section 43.26(a)(1), Penal Code; or

(2) the promotion or possession of which is prohibited under Section 43.261, Penal Code.

SECTION 6. The heading to Article 39.15, Code of Criminal Procedure, is amended to read as follows:

Art. 39.15. DISCOVERY OF CERTAIN VISUAL MATERIAL DEPICTING SEXUAL CONDUCT BY A [EVIDENCE THAT CONSTITUTES] CHILD OR MINOR [PORNOGRAPHY].

SECTION 7. Article 39.15(a), Code of Criminal Procedure, is amended to read as follows:

(a) In the manner provided by this article, a court shall allow discovery under Article 39.14 of property or material:

(1) that constitutes child pornography, as described by Section 43.26(a)(1), Penal Code; or

(2) the promotion or possession of which is prohibited under Section 43.261, Penal Code.

SECTION 8. Article 45.0215, Code of Criminal Procedure, is amended by amending Subsection (a) and adding Subsection (a-1) to read as follows:

(a) This article applies to [If] a defendant who has not had the disabilities of minority removed and has been:

(1) charged with an offense other than an offense under Section 43.261, Penal Code, if the defendant is younger than 17 years of age; or

(2) charged with an offense under Section 43.261, Penal Code, if the defendant is younger than 18 years of age.

(a-1) The [and has not had the disabilities of minority removed, the] judge or justice:

(1) must take the defendant's plea in open court; and

(2) shall issue a summons to compel the defendant's parent, guardian, or managing conservator to be present during:

(A) the taking of the defendant's plea; and

(B) all other proceedings relating to the case.

SECTION 9. The heading to Article 45.0216, Code of Criminal Procedure, is amended to read as follows:

Art. 45.0216. EXPUNCTION OF CERTAIN CONVICTION RECORDS [OF CHILDREN].

SECTION 10. Article 45.0216, Code of Criminal Procedure, is amended by amending Subsections (b), (d), (f), and (h) and adding Subsection (f-1) to read as follows:

(b) A person may [convicted of not more than one offense described by Section 8.07(a)(4) or (5), Penal Code, while the person was a child may, on or after the person's 17th birthday,] apply to the court in which the person [child] was convicted to have the conviction expunged as provided by this article:

(1) on or after the person's 17th birthday, if the 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; or

(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.

(d) The request must contain the person's statement that the person was not convicted [while the person was a child] of any additional offense as described by Subsection (f)(1) or (2), as applicable [Section 8.07(a)(4) or (5), Penal Code, other than the offense the person seeks to have expunged].

(f) The [If the court finds that 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, 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:

(1) for a person applying for the expunction of a 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

(2) for a person applying for the expunction of a conviction for an offense described by Section 43.261, Penal Code, the person was not convicted of any other offense described by Section 43.261, Penal Code.

(f-1) After entry of an [the] order under Subsection (f), the person is released from all disabilities resulting from the conviction and the conviction may not be shown or made known for any purpose.

(h) A record [Records of a person under 17 years of age] relating to a complaint dismissed as provided by Article 45.051 or 45.052 may be expunged under this article on application of the following persons:

(1) for a complaint alleging an offense other than an offense under Section 43.261, Penal Code, a person under 17 years of age; and

(2) for a complaint alleging an offense under Section 43.261, Penal Code, a person under 18 years of age.

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.