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A BILL TO BE ENTITLED
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AN ACT
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relating to harassment, bullying, and cyberbullying of a public |
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school student or minor and injury to or death of a minor; creating |
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a criminal offense. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. This Act shall be known as David's Law. |
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SECTION 2. Section 37.0832, Education Code, is amended by |
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amending Subsections (a) and (c) and adding Subsections (a-1) and |
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(f) to read as follows: |
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(a) In this section: |
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(1) "Bullying": |
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(A) [, "bullying"] means a pattern of acts by one |
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or more students directed at another student that exploits an |
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imbalance of power and involves[, subject to Subsection (b),] |
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engaging in written or verbal expression, expression through |
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electronic means, or physical conduct that satisfies the |
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applicability requirements provided by Subsection (a-1), [that
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occurs on school property, at a school-sponsored or school-related
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activity, or in a vehicle operated by the district] and that: |
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(i) [(1)] has the effect or will have the |
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effect of physically harming a student, causing a student to |
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experience substantial negative mental health effects, damaging a |
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student's property, or placing a student in reasonable fear of harm |
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to the student's person or of damage to the student's property; [or] |
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(ii) [(2)] is sufficiently severe, |
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persistent, or [and] pervasive enough that the action or threat |
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creates an intimidating, threatening, or abusive educational |
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environment for a student; |
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(iii) materially and substantially |
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disrupts the educational process or the orderly operation of a |
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classroom or school; or |
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(iv) infringes on the rights of the victim |
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at school; and |
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(B) includes cyberbullying. |
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(2) "Cyberbullying" means bullying that is done |
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through the use of any electronic communication device, including |
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through the use of a cellular or other type of telephone, a |
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computer, a camera, electronic mail, instant messaging, text |
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messaging, a social media application, an Internet website, or any |
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other Internet-based communication tool. |
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(a-1) This section applies to: |
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(1) bullying that occurs on or is delivered to school |
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property or to the site of a school-sponsored or school-related |
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activity on or off school property; |
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(2) bullying that occurs on a publicly or privately |
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owned school bus or vehicle being used for transportation of |
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students to or from school or a school-sponsored or school-related |
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activity; and |
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(3) cyberbullying that occurs off school property or |
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outside of a school-sponsored or school-related activity if the |
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cyberbullying: |
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(A) interferes with a student's educational |
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opportunities; or |
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(B) substantially disrupts the orderly operation |
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of a classroom, school, or school-sponsored or school-related |
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activity. |
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(c) The board of trustees of each school district shall |
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adopt a policy, including any necessary procedures, concerning |
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bullying that: |
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(1) prohibits the bullying of a student; |
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(2) prohibits retaliation against any person, |
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including a victim, a witness, or another person, who in good faith |
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provides information concerning an incident of bullying; |
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(3) establishes a procedure for providing notice of an |
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incident of bullying to: |
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(A) a parent or guardian of the alleged victim |
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not later than the next school day after the incident is reported; |
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and |
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(B) a parent or guardian of the alleged bully |
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within a reasonable amount of time after the incident; |
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(4) establishes the actions a student should take to |
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obtain assistance and intervention in response to bullying; |
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(5) sets out the available counseling options for a |
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student who is a victim of or a witness to bullying or who engages in |
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bullying; |
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(6) establishes procedures for reporting an incident |
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of bullying, including procedures for a student, parent, teacher, |
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or administrator to anonymously report an incident of bullying, |
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investigating a reported incident of bullying, and determining |
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whether the reported incident of bullying occurred; |
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(7) prohibits the imposition of a disciplinary measure |
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on a student who, after an investigation, is found to be a victim of |
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bullying, on the basis of that student's use of reasonable |
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self-defense in response to the bullying; and |
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(8) requires that discipline for bullying of a student |
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with disabilities comply with applicable requirements under |
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federal law, including the Individuals with Disabilities Education |
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Act (20 U.S.C. Section 1400 et seq.). |
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(f) Each school district shall establish a district-wide |
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mental health plan to prevent and mediate bullying incidents and |
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address suicide prevention. |
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SECTION 3. Subchapter A, Chapter 37, Education Code, is |
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amended by adding Section 37.0052 to read as follows: |
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Sec. 37.0052. PLACEMENT OR EXPULSION OF STUDENTS WHO HAVE |
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ENGAGED IN CERTAIN BULLYING BEHAVIOR. (a) In this section: |
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(1) "Bullying" has the meaning assigned by Section |
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37.0832. |
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(2) "Intimate visual material" has the meaning |
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assigned by Section 98B.001, Civil Practice and Remedies Code. |
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(b) A student may be removed from class and placed in a |
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disciplinary alternative education program as provided by Section |
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37.008 or expelled if the student: |
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(1) engages in bullying that encourages a student to |
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commit or attempt to commit suicide; |
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(2) incites violence against a student through group |
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bullying; or |
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(3) releases or threatens to release intimate visual |
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material of a minor or a student who is 18 years of age or older |
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without the student's consent. |
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(c) Nothing in this section exempts a school from reporting |
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a finding of intimate visual material of a minor. |
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SECTION 4. Subchapter A, Chapter 37, Education Code, is |
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amended by adding Section 37.0151 to read as follows: |
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Sec. 37.0151. REPORT TO LOCAL LAW ENFORCEMENT REGARDING |
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CERTAIN CONDUCT CONSTITUTING HARASSMENT; LIABILITY. (a) The |
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principal of a public primary or secondary school, or a person |
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designated by the principal under Subsection (c), shall make a |
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report to any school district police department, if applicable, or |
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the police department of the municipality in which the school is |
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located or, if the school is not in a municipality, the sheriff of |
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the county in which the school is located if, after an investigation |
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is completed, the principal has reasonable grounds to believe that |
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a student engaged in conduct that constitutes an offense under |
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Section 22.081, Penal Code. |
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(b) A person who makes a report under this section shall |
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include the name and address of each student the person believes may |
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have participated in the conduct. |
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(c) The principal of a public primary or secondary school |
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may designate a school employee, other than a school counselor, who |
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is under the supervision of the principal to make the report under |
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this section. |
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(d) A person who is not a school employee but is employed by |
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an entity that contracts with a district or school to use school |
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property is not required to make a report under this section and may |
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not be designated by the principal of a public primary or secondary |
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school to make a report. A person who voluntarily makes a report |
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under this section is immune from civil or criminal liability. |
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(e) A person who takes any action under this section is |
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immune from civil or criminal liability or disciplinary action |
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resulting from that action. |
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(f) Notwithstanding any other law, this section does not |
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create a civil, criminal, or administrative cause of action or |
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liability or create a standard of care, obligation, or duty that |
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provides a basis for a cause of action for an act under this |
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section. |
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(g) A school district and school personnel and school |
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volunteers are immune from suit resulting from an act under this |
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section, including an act under related policies and procedures. |
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(h) An act by school personnel or a school volunteer under |
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this section, including an act under related policies and |
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procedures, is the exercise of judgment or discretion on the part of |
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the school personnel or school volunteer and is not considered to be |
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a ministerial act for purposes of liability of the school district |
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or the district's employees. |
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SECTION 5. Sections 37.218(a)(1) and (2), Education Code, |
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are amended to read as follows: |
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(1) "Bullying" has the meaning assigned by Section |
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37.0832 [25.0342]. |
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(2) "Cyberbullying" has the meaning assigned by |
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Section 37.0832 [means the use of any electronic communication
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device to engage in bullying or intimidation]. |
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SECTION 6. Section 12.104(b), Education Code, is amended to |
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read as follows: |
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(b) An open-enrollment charter school is subject to: |
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(1) a provision of this title establishing a criminal |
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offense; and |
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(2) a prohibition, restriction, or requirement, as |
|
applicable, imposed by this title or a rule adopted under this |
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title, relating to: |
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(A) the Public Education Information Management |
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System (PEIMS) to the extent necessary to monitor compliance with |
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this subchapter as determined by the commissioner; |
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(B) criminal history records under Subchapter C, |
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Chapter 22; |
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(C) reading instruments and accelerated reading |
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instruction programs under Section 28.006; |
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(D) accelerated instruction under Section |
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28.0211; |
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(E) high school graduation requirements under |
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Section 28.025; |
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(F) special education programs under Subchapter |
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A, Chapter 29; |
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(G) bilingual education under Subchapter B, |
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Chapter 29; |
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(H) prekindergarten programs under Subchapter E |
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or E-1, Chapter 29; |
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(I) extracurricular activities under Section |
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33.081; |
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(J) discipline management practices or behavior |
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management techniques under Section 37.0021; |
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(K) health and safety under Chapter 38; |
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(L) public school accountability under |
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Subchapters B, C, D, E, F, G, and J, Chapter 39; |
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(M) the requirement under Section 21.006 to |
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report an educator's misconduct; |
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(N) intensive programs of instruction under |
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Section 28.0213; [and] |
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(O) the right of a school employee to report a |
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crime, as provided by Section 37.148; |
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(P) bullying prevention policies and procedures |
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under Section 37.0832; |
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(Q) the right of a school under Section 37.0052 |
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to place a student who has engaged in certain bullying behavior in a |
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disciplinary alternative education program or to expel the student; |
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and |
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(R) the requirement under Section 37.0151 to |
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report to local law enforcement certain conduct constituting |
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harassment. |
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SECTION 7. Section 33.006, Education Code, is amended by |
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amending Subsection (b) and adding Subsection (c) to read as |
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follows: |
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(b) In addition to a school counselor's responsibility |
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under Subsection (a), the school counselor shall: |
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(1) participate in planning, implementing, and |
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evaluating a comprehensive developmental guidance program to serve |
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all students and to address the special needs of students: |
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(A) who are at risk of dropping out of school, |
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becoming substance abusers, participating in gang activity, or |
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committing suicide; |
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(B) who are in need of modified instructional |
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strategies; or |
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(C) who are gifted and talented, with emphasis on |
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identifying and serving gifted and talented students who are |
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educationally disadvantaged; |
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(2) consult with a student's parent or guardian and |
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make referrals as appropriate in consultation with the student's |
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parent or guardian; |
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(3) consult with school staff, parents, and other |
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community members to help them increase the effectiveness of |
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student education and promote student success; |
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(4) coordinate people and resources in the school, |
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home, and community; |
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(5) with the assistance of school staff, interpret |
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standardized test results and other assessment data that help a |
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student make educational and career plans; [and] |
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(6) deliver classroom guidance activities or serve as |
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a consultant to teachers conducting lessons based on the school's |
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guidance curriculum; and |
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(7) serve as an impartial, nonreporting conciliator |
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for interpersonal conflicts and discord involving two or more |
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students arising out of accusations of bullying under Section |
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37.0832. |
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(c) Nothing in Subsection (b)(7) exempts a school counselor |
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from any mandatory reporting requirements imposed by other |
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provisions of law. |
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SECTION 8. Title 6, Civil Practice and Remedies Code, is |
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amended by adding Chapter 129A to read as follows: |
|
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CHAPTER 129A. RELIEF FOR BULLYING OF CHILD |
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Sec. 129A.001. DEFINITIONS. In this chapter: |
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(1) "Bullying communication" means unwanted |
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electronic communication directed at a recipient by a communicator: |
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(A) that consists of multiple communications: |
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(i) with respect to which the communicator |
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acts intentionally and with malice; |
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(ii) that: |
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(a) when taken together, were extreme |
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and outrageous in light of the content, manner, time, place, and |
|
number of the communications; or |
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(b) were harassing and offensive and |
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were made by the communicator acting in concert with two or more |
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individuals the communicator knew to be making harassing and |
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offensive communications directed at the recipient if the |
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communications, when taken together, were extreme and outrageous in |
|
light of the manner, time, place, and number of communications; and |
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(iii) with respect to which the actions of |
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the communicator caused or, if made in concert with other |
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individuals as provided by Subparagraph (ii)(b), contributed to |
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causing the recipient to suffer severe emotional distress; or |
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(B) in which the communicator in multiple |
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communications, acting intentionally and with malice: |
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(i) urges or incites the recipient to |
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commit or attempt to commit suicide; |
|
(ii) threatens to make available to any |
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third party, whether or not specified, by electronic communication |
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or otherwise, intimate visual material depicting the recipient; or |
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(iii) threatens the recipient with bodily |
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injury or bodily injury to a member of the recipient's family. |
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(2) "Claimant" means a party seeking to recover |
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damages under this chapter, including a plaintiff, |
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counterclaimant, cross-claimant, or third-party plaintiff, and |
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includes a party seeking recovery of damages under this chapter on |
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behalf of another person and the person on whose behalf the damages |
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are sought. |
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(3) "Communicator" means a natural person who sends |
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bullying communication. |
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(4) "Electronic communication" means a transfer of |
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signs, signals, writing, images, sounds, data, or intelligence of |
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any nature transmitted wholly or partly by a wire, radio, |
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electromagnetic, photoelectronic, or photo-optical system |
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including through the use of a cellular or other type of telephone, |
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a facsimile machine, a computer, a camera, electronic mail, instant |
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messaging, text messaging, a social media application, an Internet |
|
website, or any other Internet-based communication tool. |
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(5) "Intimate visual material" has the meaning |
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assigned by Section 98B.001. |
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(6) "Recipient" means a person who receives bullying |
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communication. |
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Sec. 129A.002. ACTIONABLE BULLYING. A person engages in |
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actionable bullying for the purposes of this chapter if the person |
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directs bullying communication toward a single recipient who, at |
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the time of the communication, is younger than 18 years of age. |
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Sec. 129A.003. LIABILITY. A defendant is liable to a |
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claimant under this chapter if the claimant shows that the |
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defendant engaged in actionable bullying directed toward the |
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recipient that proximately caused harm to the recipient. |
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Sec. 129A.004. DAMAGES. A claimant who prevails in a suit |
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under this chapter may recover actual damages for all physical, |
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mental, or emotional injury proximately caused by the actionable |
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bullying that is the subject of the suit. The claimant may recover |
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actual damages for mental anguish in an amount not to exceed $5,000 |
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in a suit brought under this chapter, regardless of the number of |
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defendants named in the suit. Total damages under this section may |
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not exceed $25,000 in a suit brought under this chapter, regardless |
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of the number of defendants named in the suit. |
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Sec. 129A.005. PARENTAL RESPONSIBILITY. (a) A parent of |
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or person standing in parental relation to a child who engages in |
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actionable bullying directed toward the recipient is liable to the |
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claimant for the lesser of: |
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(1) damages recoverable by the claimant under Section |
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129A.004; or |
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(2) $10,000. |
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(b) It is an affirmative defense to liability under this |
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chapter that a parent or person standing in parental relation: |
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(1) took reasonable actions to supervise a |
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communicator's use of the means employed by the communicator to |
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direct bullying communication to a recipient; and |
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(2) either: |
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(A) did not know about the bullying |
|
communication; or |
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(B) if the parent or person standing in parental |
|
relation knew about the bullying communication, took reasonable |
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actions to cause the communicator to cease sending bullying |
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communications. |
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Sec. 129A.006. INJUNCTIVE RELIEF. (a) A recipient of |
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bullying communication who is younger than 18 years of age at the |
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time the communication is received or a parent of or person standing |
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in parental relation to the recipient may seek injunctive relief |
|
under this chapter against the individual who sent the bullying |
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communication or, if the communicator is younger than 18 years of |
|
age, against a parent of or person standing in parental relation to |
|
the communicator. |
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(b) A court may issue a temporary restraining order, |
|
temporary injunction, or permanent injunction appropriate under |
|
the circumstances to prevent any further bullying communication, |
|
including an order or injunction: |
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(1) enjoining a defendant from sending bullying |
|
communication; or |
|
(2) compelling a defendant who is a parent of or person |
|
standing in parental relation to a communicator who is younger than |
|
18 years of age to take reasonable actions to cause the communicator |
|
to cease sending bullying communication. |
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(c) A plaintiff in an action for injunctive relief brought |
|
under this section is entitled to a temporary restraining order on |
|
showing that the plaintiff is likely to succeed in establishing |
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that the communicator sent bullying communication to the recipient. |
|
The plaintiff is not required to plead or prove that, before notice |
|
can be served and a hearing can be held, immediate and irreparable |
|
injury, loss, or damage is likely to result from past or future |
|
bullying communication by the communicator to the recipient. |
|
(d) A plaintiff is entitled to a temporary or permanent |
|
injunction under this section on showing that the communicator sent |
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bullying communication to the recipient. |
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(e) A court granting a temporary restraining order or |
|
temporary injunction under this section may, on motion of either |
|
party or sua sponte, order the preservation of any relevant |
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electronic communication. The temporary restraining order or |
|
temporary injunction is not required to: |
|
(1) define the injury or state why it is irreparable; |
|
(2) state why the order was granted without notice; or |
|
(3) include an order setting the cause for trial on the |
|
merits with respect to the ultimate relief requested. |
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Sec. 129A.007. PROMULGATION OF FORMS. (a) The supreme |
|
court shall, as the court finds appropriate, promulgate forms for |
|
use as an application for initial injunctive relief by individuals |
|
representing themselves in suits involving bullying communication |
|
and instructions for the proper use of each form or set of forms. |
|
(b) The forms and instructions: |
|
(1) must be written in language that is easily |
|
understood by the general public; |
|
(2) shall be made readily available to the general |
|
public in the manner prescribed by the supreme court; and |
|
(3) must be translated into the Spanish language. |
|
(c) The Spanish language translation of a form must: |
|
(1) state: |
|
(A) that the Spanish language translated form is |
|
to be used solely for the purpose of assisting in understanding the |
|
form and may not be submitted to the court; and |
|
(B) that the English language version of the form |
|
must be submitted to the court; or |
|
(2) be incorporated into the English language version |
|
of the form in a manner that is understandable to both the court and |
|
members of the general public. |
|
(d) Each form and its instructions must clearly and |
|
conspicuously state that the form is not a substitute for the advice |
|
of an attorney. |
|
(e) The attorney general and the clerk of a court shall make |
|
the form available free of charge. |
|
(f) A court shall accept a form promulgated by the supreme |
|
court under this section unless the form has been completed in a |
|
manner that causes a substantive defect that cannot be cured. |
|
Sec. 129A.008. ATTORNEY'S FEES AND COSTS. In a proceeding |
|
under this chapter, the court may award to any claimant or defendant |
|
costs and reasonable and necessary attorney's fees as are equitable |
|
and just. The amount awarded to any party under this section for |
|
attorney's fees may not exceed $5,000. |
|
Sec. 129A.009. INAPPLICABILITY. (a) An action filed under |
|
this chapter may not be joined with an action filed under Title 1, |
|
4, or 5, Family Code. |
|
(b) Chapter 27 does not apply to an action under this |
|
chapter. |
|
Sec. 129A.010. CERTAIN CONDUCT EXCEPTED. This chapter does |
|
not apply to a claim brought against an interactive computer |
|
service, as defined by 47 U.S.C. Section 230, for bullying |
|
communication. |
|
SECTION 9. Chapter 22, Penal Code, is amended by adding |
|
Section 22.081 to read as follows: |
|
Sec. 22.081. HARASSMENT OF CHILD TO CAUSE SUICIDE OR |
|
SERIOUS BODILY INJURY. (a) In this section, "child" means a |
|
person younger than 18 years of age. |
|
(b) A person commits an offense if the person directs |
|
multiple written, oral, or electronic communication toward a child |
|
in a manner that is reasonably likely to harass, annoy, alarm, |
|
abuse, torment, embarrass, or offend the child, with the intent |
|
that the child: |
|
(1) commit suicide; or |
|
(2) engage in conduct causing serious bodily injury to |
|
the child. |
|
(c) An offense under this section is a Class B misdemeanor, |
|
except that the offense is a Class A misdemeanor if: |
|
(1) it is shown on the trial of the offense that the |
|
actor: |
|
(A) acted in concert with another person to |
|
engage in the conduct described in this section with respect to the |
|
same victim; or |
|
(B) has been previously convicted of an offense |
|
under this section; or |
|
(2) the actor's conduct causes the child to commit |
|
suicide or causes the child to attempt to commit suicide and that |
|
attempt results in serious bodily injury to the child. |
|
(d) For the purposes of Subsection (c)(1)(B), a defendant |
|
has been previously convicted under this section if the defendant |
|
was adjudged guilty of the offense or entered a plea of guilty or |
|
nolo contendere in return for a grant of deferred adjudication |
|
community supervision, regardless of whether the sentence for the |
|
offense was ever imposed or whether the sentence was probated and |
|
the defendant was subsequently discharged from deferred |
|
adjudication community supervision. |
|
(e) A person who is subject to prosecution under both this |
|
section and another law may be prosecuted under either or both this |
|
section and the other law. |
|
SECTION 10. Section 37.0832(b), Education Code, is |
|
repealed. |
|
SECTION 11. Chapter 129A, Civil Practice and Remedies Code, |
|
as added by this Act, applies only to a cause of action that accrues |
|
on or after the effective date of this Act. A cause of action that |
|
accrues before the effective date of this Act is governed by the law |
|
in effect immediately before that date, and that law is continued in |
|
effect for that purpose. |
|
SECTION 12. 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 13. This Act takes effect September 1, 2017. |
|
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* * * * * |