| |
| |
|
|
A BILL TO BE ENTITLED
|
|
|
AN ACT
|
|
|
relating to civil liability for bullying of a child. |
|
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
|
SECTION 1. 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 a written or oral |
|
|
expression or expression by means of electronic communication: |
|
|
(A) that is a communication: |
|
|
(i) with respect to which the individual |
|
|
making the communication acts intentionally and with malice; |
|
|
(ii) that is extreme and outrageous or is |
|
|
part of multiple communications directed by a single individual |
|
|
toward a single recipient that, when taken together, are extreme |
|
|
and outrageous; and |
|
|
(iii) with respect to which the actions of |
|
|
the individual making the communication caused the recipient to |
|
|
suffer severe emotional distress; or |
|
|
(B) in which the individual making the |
|
|
communication: |
|
|
(i) urges 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, an indecent photograph of the recipient; 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, |
|
|
counterclaimant, cross-claimant, 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, |
|
|
a computer, a pager, a camera, electronic mail, instant messaging, |
|
|
text messaging, a social media application, or an Internet website. |
|
|
(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 |
|
|
communications 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. |
|
|
Sec. 100B.002. ACTIONABLE BULLYING. A person engages in |
|
|
actionable bullying for the purposes of this chapter if the person |
|
|
directs two or more bullying communications toward a single |
|
|
recipient who, at the time of the communications, 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 double the amount that would otherwise be awarded under |
|
|
Subsection (a) if the claimant shows that: |
|
|
(1) the defendant used an interactive service to |
|
|
transfer electronic communications 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 |
|
|
communications 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. |
|
|
Sec. 100B.009. SEVERABILITY; CONSTRUCTION. (a) Every |
|
|
provision of this chapter and every application of the provisions |
|
|
of this chapter are severable from each other as a matter of state |
|
|
law. If any application of any provision of this chapter to any |
|
|
person, group of persons, or circumstances is found by a court to be |
|
|
invalid, the remainder of this chapter and the application of the |
|
|
chapter's provisions to all other persons and circumstances will |
|
|
not be affected. All constitutionally valid applications of this |
|
|
chapter shall be severed from any applications that a court finds to |
|
|
be invalid, leaving the valid applications in force, as it is the |
|
|
legislature's intent and priority that the valid applications be |
|
|
allowed to stand alone. Even if a reviewing court finds a provision |
|
|
of this chapter invalid in a large or substantial fraction of |
|
|
relevant cases, the remaining valid applications shall be severed |
|
|
and allowed to remain in force. |
|
|
(b) This chapter shall be construed, as a matter of state |
|
|
law, to be enforceable up to but no further than the maximum |
|
|
possible extent consistent with federal law and constitutional |
|
|
requirements, even if that construction is not readily apparent, as |
|
|
such constructions that are not readily apparent are authorized |
|
|
only to the extent necessary to save the statute from judicial |
|
|
invalidation. |
|
|
SECTION 2. 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 3. This Act takes effect September 1, 2017. |