By: Zwiener H.B. No. 2705

A BILL TO BE ENTITLED

AN ACT

relating to the protection of free speech rights at institutions of higher education, including the prosecution of the offenses of trespass, damage, and defacement at certain institutions of higher education, and criminal trespass.

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

SECTION 1. Chapter 38, Code of Criminal Procedure, is amended by adding Article 38.52 to read as follows:

Art. 38.52. EVIDENCE IN PROSECUTION FOR CERTAIN OFFENSES INVOLVING EXPRESSIVE ACTIVITY AT HIGHER EDUCATION INSTITUTION. (a) In this article, "expressive activities" has the meaning assigned by Section 51.9315, Education Code.

(b) This article applies only to the prosecution of an offense under Section 30.05 or 42.03, Penal Code, that occurred on the campus of an institution of higher education while the defendant was engaging in expressive activities.

(c) In the prosecution of an offense described by Subsection (b), evidence of the following is admissible:

(1) an institution of higher education's resolution of an alleged violation of the institution's policies on expressive activities related to the defendant's conduct giving rise to the offense; and

(2) a resolution by the campus free expression review board established under Section 51.9316, Education Code, of an appeal to the review board of an institution of higher education's resolution described by Subdivision (1).

SECTION 2. Section 51.204, Education Code, is amended by adding Subsection (c) to read as follows:

(c) It is an affirmative defense to prosecution under this section that the person:

(1) at the time of the offense, was engaging in expressive activities, as defined by Section 51.9315; and

(2) was found not to have engaged in any misconduct by the institution or the campus free expression review board established under Section 51.9316 with respect to the conduct giving rise to the offense.

SECTION 3. Section 51.9315(a), Education Code, is amended by amending Subdivision (2) and adding Subdivision (3-a) to read as follows:

(2) "Expressive activities" means any speech or expressive conduct protected by the First Amendment to the United States Constitution or by Section 8, Article I, Texas Constitution, and includes assemblies, protests, speeches, the distribution of written material, the carrying of signs, [and] the distribution and circulation of petitions or digital media, and symbolic expression, including the wearing of symbolic clothing or accessories. The term does not include commercial speech or hate speech, including symbols associated with hate speech.

(3-a) "Review board" means the campus free expression review board established under Section 51.9316.

SECTION 4. Section 51.9315, Education Code, is amended by amending Subsections (b), (c), (d), (f), and (h) and adding Subsections (d-1) and (h-1) to read as follows:

(b) It is the policy of this state and the purpose of this section to ensure an open, inclusive exchange of ideas fundamental to higher education and protect the expressive rights of persons guaranteed by the constitutions of the United States and of this state by:

(1) recognizing freedom of speech and assembly as central to the mission of institutions of higher education; and

(2) ensuring that all persons may assemble peaceably on the campuses of institutions of higher education for expressive activities, including to listen to or observe the expressive activities of others.

(c) An institution of higher education shall:

(1) ensure that the common outdoor areas of the institution's campus are deemed traditional public forums; and

(2) permit any person to engage in expressive activities in those areas of the institution's campus freely, as long as the person's conduct:

(A) is not unlawful; and

(B) does not materially and substantially disrupt the academic instruction of classrooms or administrative functioning of the institution.

(d) Notwithstanding Subsection (c), an institution of higher education may adopt a policy that imposes reasonable restrictions on the time, place, and manner of expressive activities in the common outdoor areas of the institution's campus if those restrictions:

(1) are narrowly tailored to serve a significant institutional interest;

(2) employ clear, published, content-neutral, and viewpoint-neutral criteria;

(3) provide for ample alternative means of expression; and

(4) allow members of the university community to assemble or distribute written, digital, or symbolic material without a permit or other permission from the institution.

(d-1) A policy adopted under Subsection (d) must be approved by the review board and amended in accordance with an order of the review board.

(f) Each institution of higher education shall adopt a policy detailing students' rights and responsibilities regarding expressive activities at the institution. The policy must:

(1) allow:

(A) any person to, subject to reasonable restrictions adopted under Subsection (d), engage in expressive activities on campus, including by responding to the expressive activities of others; and

(B) student organizations and faculty to, subject to Subsection (h), invite speakers to speak on campus;

(2) establish disciplinary sanctions for students, student organizations, or faculty who unduly interfere with the expressive activities of others on campus;

(3) include a grievance procedure for addressing complaints of a violation of this section that includes mechanisms for redress;

(4) be approved by a majority vote of the institution's governing board before final adoption; [and]

(5) be posted on the institution's Internet website;

(6) be approved by the review board; and

(7) be amended in accordance with an order of the review board.

(h) In determining whether to approve a speaker to speak on campus or in determining the amount of a fee to be charged for use of the institution's facilities for purposes of engaging in expressive activities, an institution of higher education:

(1) may consider only content-neutral and viewpoint-neutral criteria related to the needs of the event, such as:

(A) the proposed venue and the expected size of the audience;

(B) any anticipated need for campus security based on the factors described by Paragraph (A) and any history of unprotected or unlawful speech by the speaker or the requesting student organization or faculty member;

(C) any necessary accommodations; and

(D) any relevant history of compliance or noncompliance by the requesting student organization or faculty member with the institution's policy adopted under Subsection (f) and any other relevant policies; and

(2) may not consider any anticipated controversy related to the event.

(h-1) If an institution of higher education charges a fee for use of the institution's facilities for purposes of engaging in expressive activities, the institution shall provide to the person directed to pay the fee an itemized receipt detailing the method for determining the amount of the fee.

SECTION 5. Subchapter Z, Chapter 51, Education Code, is amended by adding Sections 51.9316 and 51.9317 to read as follows:

Sec. 51.9316. CAMPUS FREE EXPRESSION REVIEW BOARD. (a) In this section, "review board" means the campus free expression review board established under this section.

(b) The campus free expression review board is established to assess the policies and practices of institutions of higher education regarding expressive activities under Section 51.9315 to ensure fairness, viewpoint neutrality, and protection of those activities.

(c) The review board is composed of the following eight members:

(1) two members appointed by the most senior member of the majority party of the Texas House of Representatives;

(2) two members appointed by the most senior member of the minority party of the Texas House of Representatives;

(3) two members appointed by the most senior member of the majority party of the Texas State Senate; and

(4) two members appointed by the most senior member of the minority party of the Texas State Senate.

(d) In appointing members of the review board, the appointing authorities under Subsection (c) shall coordinate to ensure that the review board includes legal scholars, legal professionals, or professionals in the nonprofit sector who specialize in the First Amendment to the United States Constitution and free speech protections.

(e) A member of the review board serves a two-year term.

(f) The members of the review board shall elect a chairperson by majority vote.

(g) A member of the review board is not entitled to compensation but may be reimbursed for actual and necessary travel and other expenses incurred in the performance of the member's duties on the review board.

(h) A person aggrieved by an institution of higher education's resolution of the grievance procedure under Section 51.9315(f) may appeal that decision to the review board. In considering the appeal, the review board shall review the content of the institution's policies adopted under Section 51.9315 and may require the institution to amend those policies to resolve any infringements on protected speech or violations of Section 51.9315 that the review board identifies.

(i) The review board shall establish and make available to institutions of higher education criteria for:

(1) evaluating the viewpoint neutrality, clarity, and accessibility of policies adopted by an institution of higher education under Section 51.9315; and

(2) hearing appeals to an institution of higher education's grievance procedure under Section 51.9315(f).

Sec. 51.9317. SUIT FOR PROTECTED SPEECH VIOLATION. (a) In this section, "institution of higher education" has the meaning assigned by Section 61.003.

(b) A person may bring an action for injunctive relief against an institution of higher education to compel the institution to comply with the First Amendment to the United States Constitution, Section 8, Article I, Texas Constitution, or Section 51.9315. On a finding that the institution violated one or more of those provisions, the court shall award the person compensatory damages, reasonable attorney fees, and court costs.

(c) An institution of higher education's sovereign immunity to suit and from liability is waived and abolished to the extent of liability created under this section.

SECTION 6. Section 30.05, Penal Code, is amended by adding Subsection (j) to read as follows:

(j) It is an affirmative defense to prosecution under this section that the actor entered property owned or leased by an institution of higher education or other higher education institution and:

(1) at the time of the offense, was engaging in expressive activities, as defined by Section 51.9315, Education Code; and

(2) was found not to have engaged in any misconduct by the institution or the campus free expression review board established under Section 51.9316, Education Code, with respect to the conduct giving rise to the offense.

SECTION 7. Article 38.52, Code of Criminal Procedure, Section 51.204(c), Education Code, and Section 30.05(j), Penal Code, as added by this Act, apply only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.

SECTION 8. Section 51.9315, Education Code, as amended by this Act, applies beginning with the 2026-2027 academic year.

SECTION 9. Section 51.9317, Education Code, as added by this Act, applies only to a cause of action that accrues on or after the effective date of this Act.

SECTION 10. This Act takes effect September 1, 2025.