By: Menéndez, Zaffirini S.B. No. 179

A BILL TO BE ENTITLED

AN ACT

relating to student harassment, bullying, cyberbullying, injury to or death of a minor; creating a criminal offense.

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

SECTION 1. This Act shall be known as David's Law.

SECTION 2. Section 37.0832, Education Code, is amended by amending Subsections (a), (c), (d), and (e) and adding Subsection (a-1) to read as follows:

(a) In this section:

(1) "Bullying":

(A) [ "bullying"] means a single significant act or a pattern of acts by one or more students directed at another student that exploits an imbalance of power and involves[, subject to Subsection (b),] engaging in written or verbal expression, expression through electronic means, or physical conduct, that satisfies the applicability requirements provided by Subsection (a-1), [that occurs on school property, at a school-sponsored or school-related activity, or in a vehicle operated by the district] and that:

(i) [(1)] has the effect or will have the effect of physically harming a student, causing a student to experience substantial negative mental health effects, damaging a student's property, or placing a student in reasonable fear of harm to the student's person or of damage to the student's property; [or]

(ii) [(2)] is sufficiently severe, persistent, and pervasive enough that the action or threat creates an intimidating, threatening, or abusive educational environment for a student;

(iii) materially and substantially disrupts the educational process or the orderly operation of a classroom or school; or

(iv) infringes on the rights of the victim at school; and

(B) includes cyberbullying.

(2) "Cyberbullying" means bullying that is done through the use of electronic communication, including through the use of a cellular or other type of telephone, a computer, a pager, a camera, electronic mail, instant messaging, text messaging, a social media application, Internet website, or other Internet-based communication tool.

(a-1) This section applies to:

(1) bullying that occurs on or is delivered to school property or to the site of a school-sponsored or school-related activity on or off school property;

(2) bullying that occurs on a publicly or privately owned school bus or van being used for transportation of students to or from school or a school-sponsored or school-related activity;

(3) cyberbullying that occurs off school property or outside of a school-sponsored or school-related activity if the cyberbullying:

(A) interferes with a student's educational opportunities; or

(B) substantially disrupts the orderly operation of a classroom, school, or school-sponsored or school-related activity.

(c) The board of trustees of each school district and the governing body of each open-enrollment charter school or private school shall adopt a policy, including any necessary procedures, concerning bullying that:

(1) prohibits the bullying and cyberbullying of a student;

(2) prohibits retaliation against any person, including a victim, a witness, or another person, who in good faith provides information concerning an incident of bullying;

(3) establishes a procedure for providing notice of an incident of bullying to a parent or guardian of the victim and a parent or guardian of the bully not later than the next school day [within a reasonable amount of time] after the incident is reported;

(4) establishes the actions a student should take to obtain assistance and intervention in response to bullying;

(5) sets out the available counseling options for a student who is a victim of or a witness to bullying or who engages in bullying;

(6) establishes procedures for reporting an incident of bullying, including procedures for a student, parent, teacher, or administrator to anonymously report an incident of bullying, investigating a reported incident of bullying, and determining whether the reported incident of bullying occurred;

(7) prohibits the imposition of a disciplinary measure on a student who, after an investigation, is found to be a victim of bullying, on the basis of that student's use of reasonable self-defense in response to the bullying; and

(8) requires that discipline for bullying of a student with disabilities comply with applicable requirements under federal law, including the Individuals with Disabilities Education Act (20 U.S.C. Section 1400 et seq.).

(d) The policy and any necessary procedures adopted under Subsection (c) must be included:

(1) annually, in any [the] student and employee [school district] handbooks; and

(2) in the district improvement plan under Section 11.252.

(e) The procedure for reporting bullying established under Subsection (c) must be posted on the district's or school's Internet website to the extent practicable.

SECTION 3. Subchapter A, Chapter 37, Education Code, is amended by adding Section 37.0052 to read as follows:

Sec. 37.0052. PLACEMENT OR EXPULSION OF STUDENTS WHO HAVE ENGAGED IN CERTAIN BULLYING BEHAVIOR. (a) In this section:

(1) "Bullying" has the meaning assigned by Section 37.0832.

(2) "Intimate visual material" has the meaning assigned by Section 98B.001, Civil Practice and Remedies Code.

(b) A student may be removed from class and placed in a disciplinary alternative education program as provided by Section 37.008 or expelled if the student:

(1) engages in bullying that encourages a minor to commit or attempt to commit suicide;

(2) incites violence against a minor through group bullying; or

(3) releases or threatens to release intimate visual material of a minor.

SECTION 4. Subchapter A, Chapter 37, Education Code, is amended by adding Section 37.0151 to read as follows:

Sec. 37.0151. REPORT TO LOCAL LAW ENFORCEMENT REGARDING CERTAIN CONDUCT CONSTITUTING ASSAULT OR HARASSMENT; LIABILITY. (a) The principal of a public or private primary or secondary school, or a person designated by the principal under Subsection (c), shall make a report to any school district police department and the police department of the municipality in which the school is located or, if the school is not in a municipality, the sheriff of the county in which the school is located if the principal has reasonable grounds to believe that a student engaged in conduct that constitutes an offense under Section 22.01 or 42.07(a)(7), Penal Code.

(b) A person who makes a report under this section shall include the name and address of each student the person believes may have participated in the conduct.

(c) The principal of a public or private primary or secondary school may designate a school employee, other than a school counselor, who is under the supervision of the principal to make the report under this section.

(d) A person is not liable in civil damages for making a report in good faith under this section.

SECTION 5. Sections 37.218(a)(1) and (2), Education Code, are amended to read as follows:

(1) "Bullying" has the meaning assigned by Section 37.0832 [25.0342].

(2) "Cyberbullying" has the meaning assigned by Section 37.0832 [means the use of any electronic communication device to engage in bullying or intimidation].

SECTION 6. Section 33.006(b), Education Code, is amended to read as follows:

(b) In addition to a school counselor's responsibility under Subsection (a), the school counselor shall:

(1) participate in planning, implementing, and evaluating a comprehensive developmental guidance program to serve all students and to address the special needs of students:

(A) who are at risk of dropping out of school, becoming substance abusers, participating in gang activity, or committing suicide;

(B) who are in need of modified instructional strategies; or

(C) who are gifted and talented, with emphasis on identifying and serving gifted and talented students who are educationally disadvantaged;

(2) consult with a student's parent or guardian and make referrals as appropriate in consultation with the student's parent or guardian;

(3) consult with school staff, parents, and other community members to help them increase the effectiveness of student education and promote student success;

(4) coordinate people and resources in the school, home, and community;

(5) with the assistance of school staff, interpret standardized test results and other assessment data that help a student make educational and career plans; [and]

(6) deliver classroom guidance activities or serve as a consultant to teachers conducting lessons based on the school's guidance curriculum; and

(7) serve as an impartial mediator for interpersonal conflicts involving two or more students, including accusations of bullying or cyberbullying under Section 37.0832.

SECTION 7. Chapter 18, Civil Practice and Remedies Code, is amended by adding Subchapter E to read as follows:

SUBCHAPTER E. SUBPOENAS

Sec. 18.101. PRE-SUIT SUBPOENAS FOR CERTAIN CLAIMS INVOLVING MINORS. (a) The supreme court shall adopt rules of civil procedure providing for the issuance of a pre-suit subpoena to:

(1) investigate a potential claim involving an injury to or death of a minor; or

(2) perpetuate or obtain evidence or testimony from any person for use in an anticipated action involving an injury to or death of a minor.

(b) The rules must:

(1) allow a party to request a subpoena to compel an oral or written deposition, the production of electronic or magnetic data, or the production of documents or tangible things; and

(2) require that a responding party provide any electronic or magnetic data or documentary or tangible evidence to the court under seal for the court to determine, after notice, hearing, and an in camera inspection, if the evidence should be released to the requesting party.

SECTION 8. Title 4, Civil Practice and Remedies Code, is amended by adding Chapter 100B to read as follows:

CHAPTER 100B. LIABILITY FOR CERTAIN BULLYING OF CHILD

Sec. 100B.001. DEFINITIONS. In this chapter:

(1) "Bullying communication" means written or oral expression, expression by means of electronic communication, or non-verbal expression:

(A) that consists of multiple communications:

(i) with respect to which the individual making the communication acts intentionally and with malice;

(ii) where the communications:

(a) when taken together, were extreme and outrageous in light of the content, manner, time, place, and number of such communications; or

(b) were harassing and offensive, and the individual making the communication acts was acting in concert with two or more other persons whose communications directed at the recipient the individual making the communication acts knew to be harassing and offensive, if such communications by the individual making the communication acts and such other persons, when taken together, were extreme and outrageous in light of the manner, time, place, and number of such communications; and

(iii) with respect to which the actions of the individual making the communication caused, or if made in concert with other persons as provided in clause (1)(A)(ii)(b) of this Section, contributed to causing, the recipient to suffer severe emotional distress; or

(B) in which the individual making the communication:

(i) urges or incites the recipient to commit or attempt to commit suicide;

(ii) threatens to make available to any third party, whether or not specified, by electronic communication or otherwise, intimate visual material of or depicting the recipient of the bullying communication; or

(iii) threatens bodily injury to the recipient or a member of the recipient's family.

(2) "Claimant" means a party seeking to recover damages under this chapter, including a plaintiff, counter-claimant, crossclaimant, or third-party plaintiff, and includes a party seeking recovery of damages under this chapter on behalf of another person and the person on whose behalf the damages are sought.

(3) "Defendant" includes any party from whom a claimant seeks recovery of damages under this chapter, and includes a person from whom a claimant seeks recovery under Section 100B.005 and the child who engaged in the actionable bullying that is the subject of the action in which recovery is sought.

(4) "Electronic communication" means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted wholly or partly by a wire, radio, electromagnetic, photoelectronic, or photo-optical system including through the use of a cellular or other type of telephone, facsimile machine, a computer, a pager, a camera, electronic mail, instant messaging, text messaging, a social media application, Internet website, or other Internet-based communication tool.

(5) "Family" has the meaning assigned by Section 71.003, Family Code.

(6) "Interactive service" means an information service, system, wireless telephone and text message service, or access software provider that provides or enables electronic communication through computer or wireless telephone access by multiple users to a computer server or wireless telephone network, including a system that provides access to the Internet or wireless telephones.

(7) "Intimate visual material" has the meaning assigned by Section 98B.001, Civil Practice and Remedies Code.

Sec. 100B.002. ACTIONABLE BULLYING. A person engages in actionable bullying for the purposes of this chapter if the person directs bullying communication toward a single recipient who, at the time of the bullying communication, is younger than 18 years of age.

Sec. 100B.003. LIABILITY. A defendant is liable to a claimant as provided by this chapter if the claimant shows that the defendant engaged in actionable bullying directed toward the claimant.

Sec. 100B.004. DAMAGES. (a) A claimant who prevails in a suit under this chapter may recover actual damages for all physical, mental, or emotional injury caused by, resulting from, or arising out of the actionable bullying that is the subject of the suit. The claimant may recover actual damages for mental anguish even if an injury other than mental anguish is not shown.

(b) Except as provided by Subsection (c), in addition to damages awarded under Subsection (a), a claimant who prevails in a suit under this chapter may recover:

(1) exemplary damages; and

(2) court costs and reasonable attorney's fees.

(c) Instead of recovering exemplary damages under Subsection (b), a claimant who prevails in a suit under this chapter may elect to treble the amount that would otherwise be awarded under Subsection (a), not to exceed $75,000.00 under this subsection (c) per actionable claim, if the claimant shows that:

(1) the defendant used an interactive service to transfer electronic communication to the claimant that constituted actionable bullying; and

(2) the defendant knew that two or more other persons were using that interactive service to transfer electronic communication that constituted actionable bullying as to the claimant within 24 hours of each transfer by the defendant described by Subdivision (1).

Sec. 100B.005. PARENTAL RESPONSIBILITY. A parent or other person who has the duty of control and reasonable discipline of a child who engages in actionable bullying directed toward the claimant is liable to the claimant for:

(1) the lesser of:

(A) damages recoverable by the claimant under Section 100B.004, including exemplary damages or multiplied damages, as applicable; or

(B) $50,000; and

(2) court costs and reasonable attorney's fees.

Sec. 100B.006. INJUNCTIVE RELIEF. If a defendant is found liable under this chapter, a court may order any injunctive relief sought by the claimant that the court determines is appropriate under the circumstances.

Sec. 100B.007. DEFENSE. It is a defense to liability under this chapter that the defendant was engaged in conduct that constituted a constitutionally protected exercise of the defendant's rights to free speech.

Sec. 100B.008. CAUSE OF ACTION CUMULATIVE. The cause of action created by this chapter is cumulative of any other remedy provided by common law or statute.

SECTION 9. Chapter 22, Penal Code, is amended by adding Section 22.081 to read as follows:

Sec. 22.081. INDUCING SUICIDE OR ATTEMPTED SUICIDE OF A MINOR BY NONPHYSICAL BULLYING.

Sec 22.081 DEFINITIONS. In this section:

(1) "Electronic communication" has the meaning assigned by Section 42.07(b)(1), Penal Code.

(2) "Intimate parts," "sexual conduct," and "visual material" have the meanings assigned by Section 21.16, Penal Code.

(3) "Intimate visual material" means visual material that depicts a person:

(A) with the person's intimate parts exposed; or

(B) engaged in sexual conduct.

(4) "Suicide baiting" means a communication by a person directed at another by written or verbal expression, expression through an electronic communication, or non-verbal expression, that urges or incites the other to commit or attempt to commit suicide.

(a) A person commits an offense if such person intentionally and with malice directs one or more communications toward a child younger than 18 years of age by written or oral expression, expression through electronic communications, or nonverbal expression, and such communication was, or such communications when taken together were, harassing, extreme and outrageous in light of the content, number, manner, time, and place of such communication or communications; and

(1) the actor's conduct causes the suicide, or the attempted suicide of such child that results in serious bodily injury; or

(2) the actor was acting in concert with two or more other persons whose communications directed at such child the actor knew to be harassing, extreme and outrageous in light of the content, number, manner, time, and place of such other communications, and the cumulative effect of such communication or communications by the actor and such communications by such other persons was to cause the suicide of such child, or the attempted suicide of such child that results in serious bodily injury.

(b) A person commits an offense if such person intentionally and with malice directs one or more communications toward a child younger than 18 years of age by written or oral expression, expression through electronic communications, or non-verbal expression, and in such communication or communications the person threatened to make available to any third party, whether or not specified, by electronic communication, or otherwise, intimate visual material of or depicting such child, and such conduct by the actor causes the suicide of such child, or the attempted suicide of such child that results in serious bodily injury.

(c) An offense under this section is a Class A misdemeanor.

SECTION 10. Section 42.07(b)(1), Penal Code, is amended to read as follows:

(1) "Electronic communication" means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term includes:

(A) a communication initiated by electronic mail, instant message, Internet website, social media application, network call, [or] facsimile machine, or other Internet-based communication tool; and

(B) a communication made to a pager.

SECTION 11. Section 37.0832(b), Education Code, is repealed.

SECTION 12. Chapter 100B, Civil Practice and Remedies Code, as added by this Act, applies only with respect to bullying communications engaged in on or after the effective date of this Act.

SECTION 13. The change in law made by this Act applies only to an offense committed or conduct violating a penal law of this state that occurs on or after the effective date of this Act. An offense committed or conduct that occurs before the effective date of this Act is governed by the law in effect on the date the offense was committed or conduct occurred, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed or conduct violating a penal law of this state occurred before the effective date of this Act if any element of the offense or conduct occurred before that date.

SECTION 10. This Act takes effect September 1, 2017.