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.