By: Schaefer H.B. No. 2198

A BILL TO BE ENTITLED

AN ACT

relating to the prosecution and punishment for certain offenses regarding the possession or promotion of lewd material depicting a child; creating criminal offenses; increasing criminal penalties.

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

SECTION 1. Section 43.25, Penal Code, is amended by amending Subsection (g) to read as follows:

(g) When it becomes necessary for the purposes of this section, [or] Section 43.26, Section 43.261, or Section 43.262 to determine whether a child who participated in sexual conduct was younger than 18 years of age, the court or jury may make this determination by any of the following methods:

(1) personal inspection of the child;

(2) inspection of the photograph or motion picture that shows the child engaging in the sexual performance;

(3) oral testimony by a witness to the sexual performance as to the age of the child based on the child's appearance at the time;

(4) expert medical testimony based on the appearance of the child engaging in the sexual performance; or

(5) any other method authorized by law or by the rules of evidence at common law.

SECTION 2. Section 43.26, Penal Code, is amended by amending Subsection (h) to read as follows:

(h) It is a defense to prosecution under Subsection (a) or (e) that the actor is a law enforcement officer or a school administrator who:

(1) possessed or accessed the visual material in good faith solely as a result of an allegation of a violation of Section 43.261 or Section 43.262;

(2) allowed other law enforcement or school administrative personnel to possess or access the material only as appropriate based on the allegation described by Subdivision (1); and

(3) took reasonable steps to destroy the material within an appropriate period following the allegation described by Subdivision (1).

SECTION 3. Section 43.262, Penal Code, is amended by amending Subsections (a) and (b), and adding Subsections (e) through (i) to read as follows:

(a) In this section:

(1) "Promote", "sexual performance", "performance", and "sexual conduct" have the meanings assigned by Section 43.25.

(2) "Visual material" has the meaning assigned by Section 43.26.

(b) A person commits an offense if the person knowingly possesses, accesses with intent to view, or promotes visual material that[:

(1) ]depicts the lewd exhibition of the genitals, [or] pubic area, or buttocks of an unclothed, partially clothed, or clothed child who is younger than 18 years of age at the time the visual material was created.[; and

(2) appeals to the prurient interest in sex; and

(3) has no serious literary, artistic, political, or scientific value.]

(e) It is a defense to prosecution under this section that the actor is a law enforcement officer or a school administrator who:

(1) possessed or accessed the visual material in good faith solely as a result of an allegation of a violation of Section 43.262;

(2) allowed other law enforcement or school administrative personnel to possess or access the material only as appropriate based on the allegation described by Subdivision (1); and

(3) took reasonable steps to destroy the material within an appropriate period following the allegation described by Subdivision (1).

(f) It is an affirmative defense to a prosecution under this section that:

(1) the defendant was the spouse of the child at the time of the offense; or

(2) the defendant is not more than two years older than the child.

(g) When it becomes necessary for the purposes of this section to determine whether visual material depicts the lewd exhibition of the genitals, pubic area, or buttocks of an unclothed, partially clothed, or clothed child who is younger than 18 years of age at the time the visual material was created, the court or jury may make this determination by any of the following methods; whether:

(1) the focal point of the visual depiction is the child's unclothed, partially clothed, or clothed genitalia or buttocks;

(2) the place or pose of the child depicted in the visual material is sexually suggestive;

(3) the child is depicted in an unnatural pose or inappropriate attire;

(4) the child is fully or partially clothed or nude;

(5) the visual material suggests sexual coyness or a willingness to engage in sexual activity;

(6) the visual material is intended or designed to elicit a sexual response in the viewer; or

(7) by any other method authorized by law or by the rules of evidence at common law.

(h) When it becomes necessary for the purposes of this section to determine whether a child who participated in sexual conduct, sexual performance, or lewd exhibition of the unclothed, partially clothed, or clothed genitals or buttocks was younger than 18 years of age, the court or jury may make this determination by any of the following methods:

(1) personal inspection of the child;

(2) inspection of the visual material that shows the child engaging in sexual performance, sexual conduct or lewd exhibition of the unclothed, partially clothed, or clothed genitals or pubic area or buttocks of the child;

(3) oral testimony by a witness to the sexual performance, sexual conduct, or lewd exhibition of the unclothed, partially clothed, or clothed genitals or pubic area or buttocks of the child as to the age of the child based on the child's appearance at the time the visual material was created;

(4) expert medical testimony based on the appearance of the child engaging in the sexual performance, sexual conduct or lewd exhibition of the unclothed, partially clothed, or clothed genitals or pubic area or buttocks of the child; or

(5) any other method authorized by law or by the rules of evidence at common law.

(i) Conduct under this section constitutes an offense regardless of whether the actor knows the age of the victim at the time of the offense.

SECTION 4. Subchapter B, Chapter 43, Penal Code, is amended by adding Section 43.28 to read as follows:

Section 43.28. NO MISTAKE OF LAW DEFENSE. Notwithstanding any other law, including Section 8.03, Penal Code, the following shall not be a defense to prosecution under this subchapter:

(1) ignorance or mistake of law;

(2) a defendant's belief that any of the requirements of this subchapter are unconstitutional or were unconstitutional;

(3) a defendant's reliance on any court decision, including a decision of the United States Supreme Court, that has been overruled on appeal or by a subsequent court, even if that court decision had not been overruled when the defendant engaged in the conduct that violates this subchapter; or

(4) a defendant's reliance on any ruling or opinion issued by a federal district court or the United States Court of Appeals for the Fifth Circuit, which do not bind the state judiciary.

SECTION 5. Subchapter B, Chapter 43, Penal Code, is amended by adding Section 43.29 to read as follows:

Section 43.29. SEVERABILITY. (a) Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in which in the context of determining , 518 U.S. 137 (1996), in which in the context of determining the severability of a state statute the United States Supreme Court held that an explicit statement of legislative intent is controlling, it is the intent of the legislature that every provision, section, subsection, sentence, clause, phrase, or word in this subchapter, and every application of the provisions in this subchapter, are severable from each other.

(b) If any application of any statutory provision in this subchapter to any person, group of persons, or circumstances is found by a court to be invalid or unconstitutional, the remaining applications of that statutory provision to all other persons and circumstances shall be severed and may not be affected. All constitutionally valid applications of this subchapter shall be severed from any applications that a court finds to be invalid or unconstitutional, leaving the valid and constitutional applications in force, because it is the legislature's intent and priority that the valid and constitutional applications of each statutory provision be allowed to stand alone. Even if a reviewing court finds a substantial number of a statute's applications under this subchapter to be unconstitutional, judged in relation to the statute's plainly legitimate sweep, the applications that do not presently violate the Constitution shall be severed from the remaining applications and shall remain in force, and shall be treated as if the legislature had enacted a statute limited to the persons, group of persons, or circumstances for which the statute's application does not violate the Constitution.

(c) The legislature further declares that it would have enacted this subchapter, and each provision, section, subsection, sentence, clause, phrase, or word, and all constitutional applications of this subchapter, irrespective of the fact that any provision, section, subsection, sentence, clause, phrase, or word, or applications of this subchapter, were to be declared unconstitutional.

(d) If any statutory provision of this subchapter is found by any court to be unconstitutionally vague, then the applications of that statutory provision that do not present constitutional vagueness problems shall be severed and remain in force.

(e) No court may decline to enforce the severability requirements of Subsections (a), (b), (c), and (d) on the ground that severance would rewrite the statute or involve the court in legislative or lawmaking activity. A court that declines to enforce or enjoins a state official from enforcing a statutory provision does not rewrite a statute, as the statute continues to contain the same words as before the court's decision. A judicial injunction or declaration of unconstitutionality:

(1) is nothing more than an edict prohibiting enforcement that may subsequently be vacated by a later court if that court has a different understanding of the requirements of the Texas Constitution or United States Constitution;

(2) is not a formal amendment of the language in a statute; and

(3) no more rewrites a statute than a decision by the executive not to enforce a duly enacted statute in a limited and defined set of circumstances.

(f) If any federal or state court declares unconstitutional or enjoins the enforcement of a provision in this subchapter and fails to enforce the severability requirements of Subsections (a), (b), (c), (d), and (e), for any reason whatsoever, the Attorney General shall:

(1) adopt rules that enforce the requirements described by this subchapter to the maximum possible extent while avoiding the constitutional problems or other problems identified by the federal or state court; and

(2) issue notice of those rules, not later than the 30th day after the date of the court ruling.

(g) If the Attorney General fails to adopt the rules and issue notice under Subsection (f), a person may petition for a writ of mandamus requiring the executive commissioner to adopt the rules and issue notice.

SECTION 6. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2021.