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A BILL TO BE ENTITLED
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AN ACT
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relating to civil liability for obscenity. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Title 4, Civil Practice and Remedies Code, is |
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amended by adding Chapter 98C to read as follows: |
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CHAPTER 98C. LIABILITY FOR OBSCENITY |
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Sec. 98C.001. DEFINITIONS. In this chapter: |
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(1) "Harmful material" has the meaning assigned by |
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Section 43.24, Penal Code. |
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(2) "Information content provider" and "interactive |
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computer service" have the meanings assigned by Section 43.01, |
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Penal Code. |
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(3) "Minor" has the meaning assigned by Section 43.24, |
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Penal Code. |
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(4) "Obscenity" means conduct that constitutes an |
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offense under Subchapter B, Chapter 43, Penal Code. |
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Sec. 98C.002. LIABILITY FOR OBSCENITY. A defendant is |
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liable, as provided by this chapter, to a person harmed for damages |
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arising from obscenity if the defendant: |
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(1) engages in the obscenity; or |
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(2) knowingly or intentionally benefits from |
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participating in an entity that engages in the obscenity. |
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Sec. 98C.003. INFORMATION CONTENT PROVIDER AND INTERACTIVE |
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COMPUTER SERVICE LIABILITY. An information content provider or |
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interactive computer service is liable, as provided by this |
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chapter, to a person harmed for damages arising from the |
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distribution, transmission, or display of harmful material to a |
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minor if, knowing the character and content of the material, the |
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provider or service knowingly or intentionally benefits from |
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participating in the distribution, transmission, or display of |
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harmful material to a minor by facilitating, aiding, encouraging, |
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or contributing to the distribution, transmission, or display in a |
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manner that: |
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(1) is readily accessible to minors; or |
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(2) includes a minor's visual image, audio voice, or |
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participation in any manner. |
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Sec. 98C.004. SHAREHOLDER AND MEMBER LIABILITY. (a) This |
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section applies to a legal entity governed by Title 2, 3, or 7, |
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Business Organizations Code. |
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(b) Notwithstanding any provision of the Business |
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Organizations Code, a shareholder or member of a legal entity |
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described by Subsection (a) that is liable under this chapter is |
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jointly and severally liable with the entity to the person harmed by |
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the obscenity if the person demonstrates that the shareholder or |
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member caused the entity to be used for the purpose of engaging in |
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obscenity and that the conduct was for the direct personal benefit |
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of the shareholder or member. |
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Sec. 98C.005. PROHIBITED DEFENSES. It is not a defense to |
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liability under this chapter that the defendant: |
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(1) has been acquitted or has not been prosecuted or |
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convicted under Subchapter B, Chapter 43, Penal Code; |
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(2) has been convicted of a different offense or a |
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different type or class of offense for the conduct that is alleged |
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to give rise to liability under this chapter; |
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(3) claims ignorance or mistake of law; |
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(4) has a belief that the requirements of this chapter |
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are unconstitutional or were unconstitutional; |
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(5) relies on any court decision that has been |
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overruled on appeal or by a subsequent court, even if that court |
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decision had not been overruled when the defendant engaged in the |
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conduct that violates this chapter; or |
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(6) relies on any state or federal court decision that |
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is not binding on the court in which the action has been brought. |
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Sec. 98C.006. DAMAGES. (a) A court shall award a claimant |
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who prevails in an action under this chapter: |
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(1) actual damages, including damages for mental |
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anguish even if an injury other than mental anguish is not shown; |
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(2) court costs; and |
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(3) reasonable attorney's fees. |
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(b) In addition to an award under Subsection (a), a claimant |
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who prevails in an action under this chapter may recover exemplary |
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damages. |
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Sec. 98C.007. CAUSE OF ACTION CUMULATIVE. (a) The cause of |
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action created by this chapter is cumulative of any other remedy |
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provided by common law or statute. |
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(b) Each occurrence of obscenity that harms a person, |
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regardless of whether the occurrence is part of a pattern of |
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conduct, gives rise to a separate claim for civil liability under |
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this chapter. |
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Sec. 98C.008. JOINT AND SEVERAL LIABILITY. A person who |
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engages in conduct described by Section 98C.002 or 98C.003 and is |
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found liable under this chapter or other law for any amount of |
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damages arising from that conduct is jointly and severally liable |
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with any other defendant for the entire amount of damages arising |
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from that conduct. |
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Sec. 98C.009. LIBERAL CONSTRUCTION AND APPLICATION. (a) |
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This chapter shall be liberally construed and applied to promote |
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its underlying purpose to protect persons from obscenity and |
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provide adequate remedies to those who are harmed by obscenity. |
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(b) This chapter may not be construed to: |
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(1) wholly or partly repeal, either expressly or by |
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implication, any statute or part of a statute that prohibits |
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obscenity; |
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(2) restrict a political subdivision from regulating |
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or prohibiting obscenity in a manner that is at least as stringent |
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as the laws of this state; or |
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(3) legalize any conduct prohibited by this chapter or |
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Subchapter B, Chapter 43, Penal Code. |
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SECTION 2. (a) Mindful of Leavitt v. Jane L., 518 U.S. 137 |
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(1996), in which in the context of determining the severability of a |
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state statute the United States Supreme Court held that an explicit |
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statement of legislative intent is controlling, it is the intent of |
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the legislature that every provision, section, subsection, |
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sentence, clause, phrase, or word in this Act, and every |
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application of the provisions in this Act, are severable from each |
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other. |
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(b) If any application of any statutory provision in this |
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Act to any person, group of persons, or circumstances is found by a |
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court to be invalid or unconstitutional, the remaining applications |
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of that statutory provision to all other persons and circumstances |
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shall be severed and may not be affected. All constitutionally |
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valid applications of this Act shall be severed from any |
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applications that a court finds to be unconstitutional or otherwise |
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invalid, leaving the valid applications in force, because it is the |
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legislature's intent and priority that the valid applications be |
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allowed to stand alone. |
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(c) Even if a reviewing court finds a substantial number of |
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a statute's applications under this Act to be unconstitutional, |
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judged in relation to this Act's plainly legitimate sweep, the |
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applications that do not presently violate the United States |
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Constitution or Texas Constitution shall be severed from the |
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remaining applications and shall remain in force, and shall be |
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treated as if the legislature had enacted a statute limited to the |
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persons, groups of persons, or circumstances for which the |
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statute's application does not violate the United States |
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Constitution or Texas Constitution. |
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(d) The legislature further declares that it would have |
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enacted this Act, and each provision, section, subsection, |
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sentence, clause, phrase, or word, and all constitutional |
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applications of this Act, irrespective of the fact that any |
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provision, section, subsection, sentence, clause, phrase, or word, |
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or applications of this Act, were to be declared unconstitutional. |
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(e) If any provision of this Act is found by any court to be |
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unconstitutionally vague, the applications of that provision that |
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do not present constitutional vagueness problems shall be severed |
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and remain in force. |
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(f) No court may decline to enforce the severability |
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requirements of Subsections (a), (b), (c), (d), and (e) of this |
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section on the ground that severance would rewrite the statute or |
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involve the court in legislative or lawmaking activity. A court |
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that declines to enforce or enjoins a state official from enforcing |
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a statutory provision does not rewrite a statute, as the statute |
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continues to contain the same words as before the court's decision. |
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A judicial injunction or declaration of unconstitutionality: |
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(1) is nothing more than an edict prohibiting |
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enforcement that may subsequently be vacated by a later court if |
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that court has a different understanding of the requirements of the |
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United States Constitution or Texas Constitution; |
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(2) is not a formal amendment of the language in a |
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statute; and |
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(3) no more rewrites a statute than a decision by the |
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executive not to enforce a duly enacted statute in a limited and |
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defined set of circumstances. |
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(g) If any federal or state court declares unconstitutional |
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or enjoins the enforcement of a provision in this Act and fails to |
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enforce the severability requirements of Subsections (a), (b), (c), |
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(d), (e), and (f) of this section, for any reason whatsoever, the |
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attorney general shall: |
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(1) adopt rules that enforce the requirements |
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described by this Act to the maximum possible extent while avoiding |
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the constitutional problems or other problems identified by the |
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federal or state court; and |
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(2) issue notice of those rules, not later than the |
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30th day after the date of the court ruling. |
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(h) If the attorney general fails to adopt the rules and |
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issue notice under Subsection (g) of this section, a person may |
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petition for a writ of mandamus requiring the attorney general to |
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adopt the rules and issue notice. |
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SECTION 3. The change in law made by this Act applies only |
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to a cause of action that accrues on or after the effective date of |
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this Act. |
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SECTION 4. This Act takes effect September 1, 2023. |