82R8321 SJM-D

By: West S.B. No. 1615

A BILL TO BE ENTITLED

AN ACT

relating to the creation of the offense of electronic transmission of certain visual material depicting a minor.

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) "Social networking website" means an Internet website that permits persons to become registered users for the purpose of establishing personal relationships with other users through direct or real-time communication with other users or through the creation of web pages or profiles available to the public or to other users. The term does not include an e-mail program or a message board program.

(6) "Visual material" means:

(A) any film, picture, photograph, videotape, negative, slide, or digital image or recording, or any other similar visual depiction or reproduction that contains or incorporates in any manner any film, picture, photograph, videotape, negative, slide, or digital image or recording; or

(B) any disk, diskette, computer, video screen, telecommunications device, or other physical medium that allows an image to be displayed or electronically stored, converted, or transmitted by any method, including through the use of a telephone line, cable, satellite, or analog or digital electronic device.

(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;

(2) on a social networking website promotes 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

(3) 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 this section that:

(1) the actor was the spouse of the minor at the time of the offense;

(2) the conduct was for a bona fide educational, medical, psychological, psychiatric, judicial, law enforcement, or legislative purpose;

(3) the visual material depicted only the actor and was transmitted only to one other person who is not more than four years older or younger than the actor; or

(4) the visual material:

(A) depicted:

(i) only one person who is not more than four years older or younger than the actor; or

(ii) the actor and only one other person who is described by Subparagraph (i); and

(B) was transmitted only to a person depicted in the material.

(d) It is an affirmative defense to prosecution under Subsection (b)(3) 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:

(A) reported receipt of the material to a law enforcement agency; or

(B) took reasonable steps to destroy or eliminate the visual material.

(e) 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, one time, been previously convicted of an offense under this section or adjudicated to have engaged in conduct that violates this section; and

(2) a Class A misdemeanor if it is shown on the trial of the offense that the defendant has, two or more times, been previously convicted of an offense under this section or adjudicated to have engaged in conduct that violates this section.

(f) A punishment prescribed for an offense under this section is increased to the punishment prescribed for the next higher category of offense if it is shown on the trial of the offense that the actor was more than four years older than the child.

(g) If the actor was younger than 18 years of age at the time of the commission of the offense, the punishment for an offense under this section may be increased under Subsection (e) or (f), but may not be increased under both of those subsections.

(h) 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) 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).

(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 4. Article 42.12, Code of Criminal Procedure, is amended by adding Section 13H to read as follows:

Sec. 13H. DEFENDANTS PLACED ON COMMUNITY SUPERVISION FOR ELECTRONIC TRANSMISSION OF CERTAIN VISUAL MATERIAL. (a) In this section, "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) If a judge grants community supervision to a defendant convicted of an offense under Section 43.261, Penal Code, the judge may require as a condition of community supervision that the defendant attend and successfully complete an educational program designed to address:

(1) the possible psychological and social consequences of committing an offense under Section 43.261, Penal Code, including negative effects on relationships and the loss of educational and employment opportunities; and

(2) the possible legal consequences, including criminal penalties, of committing a subsequent offense under Section 43.261, Penal Code.

(c) The court 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 5. Article 45.0216, Code of Criminal Procedure, is amended by amending Subsections (b), (d), and (f) and adding Subsection (f-1) to read as follows:

(b) A person convicted of not more than one offense described by Section 8.07(a)(4) or (5) or 43.261, 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.

(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.

SECTION 6. 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, punishable as a Class C misdemeanor, 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) may 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 7. Section 51.13, Family Code, is amended by amending Subsection (a) and adding Subsection (e) to read as follows:

(a) Except as provided by Subsections [Subsection] (d) and (e), an order of adjudication or disposition in a proceeding under this title is not a conviction of crime. Except as provided by Chapter 841, Health and Safety Code, an order of adjudication or disposition does not impose any civil disability ordinarily resulting from a conviction or operate to disqualify the child in any civil service application or appointment.

(e) An adjudication for conduct engaged in by a child in violation of Section 43.261, Penal Code, is a conviction only for the purposes of Section 43.261(e), Penal Code.

SECTION 8. Chapter 54, Family Code, is amended by adding Section 54.0402 to read as follows:

Sec. 54.0402. CHILD PLACED ON PROBATION FOR ELECTRONIC TRANSMISSION OF CERTAIN VISUAL MATERIAL. (a) If a court or jury places on probation under Section 54.04(d) a child adjudicated as having engaged in conduct in violation of Section 43.261, Penal Code, in addition to other conditions of probation, the 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 court that enters an order under Subsection (a) may require the child or the child's parent to pay the cost of attending an educational program under Subsection (a) if the court determines that the child or the child's parent is financially able to make payment.

SECTION 9. Section 54.041, Family Code, is amended by adding Subsection (i) to read as follows:

(i) If a child is found to have engaged in conduct in violation of Section 43.261, Penal Code, the court may order the child's parent or guardian to attend a program described by Section 54.0402(a)(1).

SECTION 10. This Act takes effect September 1, 2011.