84R15653 JRR-F

By: Miller of Comal, Thompson of Harris, H.B. No. 3196

Herrero, Moody, Anderson of Dallas

Substitute the following for H.B. No. 3196:

By: Herrero C.S.H.B. No. 3196

A BILL TO BE ENTITLED

AN ACT

relating to the prosecution of the offense of improper photography or visual recording; increasing a criminal penalty.

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

SECTION 1. Section 21.15, Penal Code, is amended to read as follows:

Sec. 21.15. IMPROPER PHOTOGRAPHY OR VISUAL RECORDING. (a) In this section:

(1) "Changing room" means a room or partitioned area provided or primarily used for the changing of clothing, including a dressing room, locker room, or swimwear changing area.

(2) "Promote" [, "promote"] has the meaning assigned by Section 43.21.

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

(4) "Sexual or other intimate parts" means the human genitals, pubic area, anus, buttocks, or any portion of the female breast below the top of the areola, regardless of whether those parts are naked or covered by undergarments or other clothing.

(b) A person commits an offense if the person:

(1) knowingly photographs or by videotape or other electronic means knowingly records, broadcasts, or transmits a visual image of the sexual or other intimate parts of another person or a visual image of another person engaged in sexual conduct [at a location that is not a bathroom or private dressing room]:

(A) without the other person's consent; and

(B) when a reasonable person would believe that the person's sexual or other intimate parts or the person's sexual conduct would not be visible to the public [with intent to arouse or gratify the sexual desire of any person]; or

(2) [photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is a bathroom or private dressing room:

[(A) without the other person's consent; and

[(B) with intent to:

[(i) invade the privacy of the other person; or

[(ii) arouse or gratify the sexual desire of any person; or

[(3)] knowing the character and content of the photograph, recording, broadcast, or transmission, promotes a photograph, recording, broadcast, or transmission described by Subdivision (1) [or (2)].

(b-1) In a prosecution for an offense under this section, there is a rebuttable presumption that the actor's conduct is without the consent of the other person if it is shown on the trial of the offense that:

(1) the actor compelled the other person to submit or participate by:

(A) the use of physical force or violence; or

(B) threatening to use force or violence against the other person or another person, and the other person believed that the actor had the ability to execute the threat;

(2) the other person did not consent and the actor knew:

(A) the other person was unconscious or physically unable to resist; or

(B) the other person was unaware that the conduct was occurring;

(3) the actor knew that as a result of mental disease or defect the other person was at the time of the offense incapable either of appraising the nature of the act or of resisting it;

(4) the actor intentionally impaired the other person's power to appraise or control the other person's conduct by administering any substance without the other person's knowledge;

(5) the actor was a public servant who coerced the other person to submit or participate;

(6) the offense was accomplished by:

(A) conduct that was hidden or conducted secretly or an attempt of such conduct;

(B) conduct that used equipment such as a telephoto lens that allowed a visual image of another person's sexual or other intimate parts or another person's sexual conduct to be made, when such conduct would not ordinarily be visible to the public; or

(C) deception, including misrepresenting how the photograph, recording, broadcast, or transmission would be used or disseminated; or

(7) the victim of the offense was younger than 18 years of age at the time of the offense.

(c) An offense under this section is a state jail felony, except that the offense is a felony of the third degree if it is shown on the trial of the offense that the victim was younger than 18 years of age at the time of the offense.

(d) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, [or] the other law, or both.

(e) In the application of this section to conduct in a bathroom or changing room [For purposes of Subsection (b)(2)], a sign or signs posted indicating that the person is being photographed or that a visual image of the person is being recorded, broadcast, or transmitted is not sufficient to establish the person's consent or to negate the person's reasonable expectation that the person's sexual or other intimate parts or the person's sexual conduct would not be visible to the public [under that subdivision].

SECTION 2. The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.

SECTION 3. This Act takes effect September 1, 2015.